HeplerBroom, LLC

HeplerBroom LLC provides comprehensive representation for its business clients, from entity selection and formation to day-to-day management and employment issues, tax planning, contract preparation, real estate matters, environmental compliance, succession planning, and representation in mergers, acquisitions, and sales.

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Latest from HeplerBroom, LLC - Page 17

In determining whether a lawyer must report a potential malpractice claim on a professional liability “errors and omissions” renewal or application form, must the insured attorney foresee how Missouri appellate courts would interpret a legal issue never before addressed? Based on a recent Missouri Court of Appeals opinion, the answer seems to be perhaps yes.
In Ruiz v. Bar Plan Mutual Insurance Co., 2019 WL 4145480 (E.D. Mo. 2019)(Sept. 3, 2019), the Missouri Court of Appeals found that an attorney’s failure to notify his legal malpractice carrier of a potential malpractice claim (arising out of the attorney’s representation of a…
Continue Reading Putting Your Legal Malpractice Carrier on Notice of a Potential Claim: Must a Missouri Lawyer “Foresee” Changes in the Law?

Grauer v. Clare Oaks, et al, 2019 IL App (1st) 180835, is noteworthy to all counsel who regularly encounter fee-shifting statutes in their practice. Grauer was borne out of a verdict against a nursing home, but the court’s analysis as to the reasonableness of attorney’s fees and what constitutes “costs” in the context of the Illinois Nursing Home Care Act is important to all practitioners.
The Nursing Home Act provides that “the licensee shall pay the actual damages and costs and attorney’s fees to a facility resident whose rights” under the Act are violated. 210 ILCS 45/3-602. The rationale for…
Continue Reading No “Costs” Uncovered: The Appellate Court’s Expansive Redefinition of “Costs”

 
The Missouri Supreme Court recently affirmed a trial court’s order denying an insurance company’s motion to intervene and set aside a judgment that was entered following the plaintiffs’ contract with a defendant to limit recovery of the judgment against the insurance company pursuant to Missouri Statute Section 537.065. Desai, M.D., et al. v. Seneca Specialty Insurance Company, SC97361.
Plaintiffs Dr. Neil Desai and Heta Desai filed a lawsuit for personal injuries against defendant Garcia Empire, LLC. Garcia Empire had a commercial general liability policy issued by Seneca Specialty Insurance Company. Seneca sought to intervene in the lawsuit after the…
Continue Reading Right to Intervene Under Missouri Statute Section 537.065 is Not Retroactive to Trials and Contracts Pre-Dating the 2017 Amended Statute – Even if Judgment Was Not Yet Entered

Anyone who has spent time reviewing claim forms and bills submitted by medical providers has probably encountered at least some of the more typical fraud schemes: overbilling, false claims, or maybe even kickbacks and bribery. Sophisticated technology, investigative techniques, and data analytics let us zoom in – and out – to identify these traditional forms of fraud at the individual claim level and on a system-wide scale.

But a recent opinion by the New York Court of Appeals, the state’s highest court, should serve as a reminder to look out for a different sort of fraud that might not be…
Continue Reading Uncovering Fraudulently Incorporated Professional Service Corporations

On September 9, 2019, Midwest Generation, LLC (“MWG”) asked the Illinois Pollution Control Board (“Board”) to reconsider its interim order of June 20, 2019, in the enforcement case of Sierra Club v. Midwest Generation, LLC (docketed as PCB 13-15). That decision may have far-reaching implications for any party that has entered into an environmental compliance or remediation agreement with regulators incorporating Groundwater Management Zones (“GMZs”). According to MWG, the Board misconstrued the Illinois Environmental Protection Act and operative regulations when it found the company liable for continued violations and, in the process, drastically lowered the value of GMZs.
Midwest Generation’s…
Continue Reading Midwest Generation Seeks Reconsideration of Pollution Control Board Ruling Constricting Effective Period of Groundwater Management Zones to Duration of Active Remedial Work

As construction projects become more complex, new technologies and innovations more specialized, trades more regulated, and bidding more competitive, general construction contractors have become increasingly reliant on subcontractors to perform construction contracts. The result is that general contractors are less able to control, inspect, and even assess the work. Yet despite this continued shift, general contractors continue to assume almost complete contractual responsibility for job completion.
Imagine this scenario from a recent case that was tried to verdict. A construction contract for a large building renovation included the installation of two elevators. The contract documents and specifications (all drafted by…
Continue Reading Not Just Another Day at the “Breach”: Risk Allocation in a Specialized Construction Climate

Missouri’s inaugural medical marijuana facility application period ended just over two weeks ago on August 19, 2019. Now that the smoke begins to clear from the application process, hopeful applicants can focus their energy on fostering relationships so that their businesses can launch as soon as possible. With even the earliest anticipated harvest being at least several weeks after licenses are issued in December of this year, Missouri residents can expect this new industry to begin taking shape in the early months of 2020.
The Missouri Department of Health and Senior Services (“Department” or “DHSS”) is expected to issue 348…
Continue Reading Weeding Through the Landscape of Missouri’s New Medical Marijuana Regulations

On May 1, 2019, Senate Bill 7 was passed as part of the Missouri legislature’s overarching goal to refine Missouri’s broad venue rules, which previously had allowed plaintiffs to pursue their claims in Missouri venues with no connection to their injuries or events which led to their injuries.
Particular provisions of the new venue rules apply specifically to lawsuits involving claims against insurance companies. First, Sections 375.1800 and 508.010 now provide that domestic and foreign insurance companies are deemed a resident of the county where their registered offices are maintained, including for venue purposes. A foreign insurance company that does…
Continue Reading Missouri Introduces New Venue Statutes for Lawsuits Against Insurance Companies

HeplerBroom has a long history of defending insurance producers across Illinois, with a strong appellate record on the ordinary-care duty and statute of limitations issues in particular. Western Cons. Prem. Properties, Inc., v. Norman-Spencer Agency, Inc., 845 F.3d 313 (7th Cir. 2017) (duty); RVP, LLC, v. Advantage Insurance Services, Inc., 2017 IL App (3d) 160276 (statute of limitations). We’re seeing new cases in which the producer defendant is alleged to owe a duty not only to its client to procure the policy he requests, but also to an additional insured on that policy.

The typical circumstance is when a general…
Continue Reading Does an Illinois Insurance Producer Owe a Legal Duty to an Additional Insured on a Policy It Procured? It Certainly Shouldn’t, and Here’s Why?

Chances are you first become aware that your company is a target or subject of a criminal antitrust investigation when you receive a grand jury subpoena, or worse, when federal agents show up with a search warrant asking questions. This is serious business, given the consequences. Among the many questions experienced antitrust counsel will ask you early on is whether you have an antitrust compliance program, and if so, how it is set up and operates. In recent years, the Antitrust Division of the United States Department of Justice (“DOJ”) assigned no weight to the existence of a compliance program,…
Continue Reading Antitrust Compliance Programs – Now More than Ever

On July 10, 2019, Missouri Governor Michael Parson signed significant pieces of legislation that confirmed his emphasis on tort reform in Missouri. The Governor previously highlighted tort reform in his State of the State address in January 2019. In that address, Parson referenced the need for increased regulatory and venue reform in the Show-Me State. The legislation signed in this month’s slate achieved the goals outlined in that speech and more. The relevant bills will significantly impact litigation and trial practice in Missouri’s courts via considerations to venue, joinder, and discovery issues. Additionally, the legislation changes the long-time approach towards…
Continue Reading MISSOURI GOV. PARSON ENACTS TORT REFORM SIGNIFICANT TO LITIGATION AND TRIAL PRACTICE

Be our guest, be our guestWatch your step, may we suggestFrom known dangers, we’ll protectBut we have no duty to inspect!

If Beauty and the Beast took place in modern-day Missouri instead of 18th century France, those probably would have been the words to “Be Our Guest.” That’s because property owners in Missouri do not have a duty to inspect their premises for the safety of their social guests, also known as “licensees.” On the other hand, property owners must inspect their premises for dangerous conditions in order to protect customers or clients, a.k.a. “invitees.” In the recent case Scholdberg…
Continue Reading Be Our Licensee: The Distinction between Licensees and Invitees Still Matters in Missouri

On June 20, 2019, the Supreme Court of Illinois affirmed an appellate court’s ruling on an Illinois Pollution Control Board (“Board”) decision involving groundwater monitoring at clean construction or demolition debris fill sites, in The County of Will v. The Pollution Control Board, 2019 IL 122798, Case Nos. 122798, 122813. The case concerned the Board’s adoption of regulations governing the use of clean construction or demolition debris (“CCDD”) and uncontaminated soil (“US”) as fill material at CCDD fill operations.

CCDD is uncontaminated broken concrete without protruding metal bars, stone, bricks, rock, or reclaimed asphalt pavement generated from construction or demolition…
Continue Reading Illinois Supreme Court Affirms Pollution Control Board’s Decision Regarding Groundwater Monitoring at Clean Construction or Demolition Debris Fill Operations

The Illinois Department of Financial and Professional Responsibility (IDFPR) is the state agency that oversees licensure and discipline of various health care practitioners, including physicians, nurses, and dentists, among others. The IDFPR is charged with overseeing enforcement of the various healthcare practice acts, and it typically investigates matters brought to its attention, primarily from patient complaints. With the advent of electronic communications, dissatisfied patients can pursue complaints with far greater ease. The simplicity of electronically filing a patient complaint against a healthcare provider does not alleviate the responsibility of the Department to do a proper investigation of a complaint, but…
Continue Reading Healthcare Practitioners: Anatomy of an IDFPR Complaint

Nursing Home litigation has increased significantly in Illinois in recent years in large part due to the failure of Illinois to institute damages caps and eliminate attorney’s fees from their nursing home statute. Attorneys’ fees are recoverable under the Nursing Home Care Act. In fact, the Illinois Nursing Home Care Act provides for fee shifting and specifically states that “The licensee shall pay the actual damages and costs and attorney’s fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated.” 210 ILCS 45/3-602. An attorney’s fees in a matter worked…
Continue Reading Fee Shifting Provision of Illinois Nursing Home Care Act: Insight into Appellate Court’s Potential Interpretations

The Biometric Information Privacy Act (BIPA) establishes safeguards and procedures relating to the retention, collection, disclosure, and destruction of biometric data. 740 ILCS 14/15. Passed in October 2008, BIPA is intended to protect a person’s unique biological traits – the data encompassed in a person’s fingerprint, voice print, retinal scan, or facial geometry. Id. But in the last few years, BIPA – with its statutory penalties of $1,000 for each negligent violation and $5,000 for each intentional or reckless violation – has quickly become the bane of corporate defendants. The situation became even worse after the Illinois Supreme Court’s Rosenbach…
Continue Reading Is the Illinois Biometric Information Privacy Act (BIPA) Unconstitutional?