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2015 Noneconomic Damage Cap
In 2015, RSMO § 538.210 put into effect a noneconomic damage cap for use in cases against healthcare provider defendants. This includes two different cap limits, one of which will apply to any given suit. The higher limit is reserved for “catastrophic” personal injury or death, and the lower limit is for all other “non-catastrophic” injury. The statutory limits are $400,000 for “catastrophic” personal injury/death and $700,000 for “non-catastrophic” injury. These limits increase by 1.7% each year for inflation and are determined as of the date the case is tried. Velazquez v. Univ. Physician Assocs., 625 S.W.3d 445,
Continue Reading Severe Burn Injury Leads to Application of Higher Noneconomic Damage Cap Limit after Plaintiff Verdict in Missouri Medical Malpractice Trial

Tradition holds that couples should exchange paper gifts on their first anniversary. The third anniversary gift is leather; the fifth, wood. And those fortunate enough to reach their tenth anniversary are advised to exchange aluminum or tin, symbolizing the strength and resilience of their bond. But for the parties in Petrone, et al v. Werner Enterprises, Inc., as their litigation approaches its tenth year, and a second mandate from the Eighth Circuit sends the case back to the District of Nebraska, an exchange of gifts is probably not top of mind.

In 2012, a group of plaintiffs filed a
Continue Reading After Ten Years of Litigation, Trucking Company and Former Drivers Head Back to Court, Again

The Missouri Supreme Court, in an en banc Opinion issued last month, reversed the Missouri Court of Appeals’ opinion and held in favor of a movant’s attempt to compel arbitration. The Missouri Court of Appeals had previously upheld the respective trial courts’ decision in companion cases, where Bridgecrest’s motion to compel arbitration was denied.
Framed within a somewhat unique procedural posture wherein the party compelling arbitration was the first to initiate suit, the Bridgecrest opinion is a helpful practice reminder that, although courts may look for factual bases to decline to compel arbitration, it is a tough sell to win
Continue Reading Arbitration Agreements Need Not Be Balanced

In Owners Insurance Company v. Fidelity and Deposit Company of Maryland, the Eighth Circuit was asked to determine whether a private construction payment bond containing the phrase “all sums justly due” requires a commercial surety to pay attorneys’ fees incurred by the bond claimant. Its holding was a resounding Yes, at least where the underlying contract between the bond principal and the bond claimant contains an attorneys’ fee provision.
As the court stated, this matter involved “a construction project gone wrong.” Ben F. Blanton, Inc. was hired by BCC Partners, LLC to build luxury apartments in the St. Louis
Continue Reading Feeding the Beast: In a Payment Bond, "All Sums Justly Due" May Include Attorneys' Fees

In the recent decision of State & 9 Street Corporation et al. v. Society Insurance; the Appellate Court of Illinois First Judicial District affirmed the circuit court’s judgment on the pleadings in favor of Society Insurance Company, finding the restaurant company plaintiffs were not entitled to business income, extra expense, civil authority, or contamination provisions in their property damage policies.
The pertinent facts are as follows: Plaintiffs own and operate 14 taverns in Illinois; On March 16, 2020 Governor Pritzker issued several executive orders in response to the COVID-19 pandemic, including a suspension of on-premises consumption of food and
Continue Reading Illinois Court of Appeals Affirms Denial of Loss of Business Coverage Caused by COVID-19

In the recent decision M.O. v. Geico General Insurance Company and Government Employees Insurance Company, the Missouri Court of Appeals for the Western District upheld a judgment against Geico affirming an award from an arbitration that only the insured participated in with the tortfeasor.
The pertinent facts are as follows: the driver had consensual sexual relations with the plaintiff in his vehicle, which allegedly resulted in the transmission of a sexually transmitted infection. The insured driver failed to disclose to plaintiff that he had this transmissible illness, and the plaintiff brought a claim against the insured and his insurer claiming
Continue Reading Court of Appeals Reaffirms Arbitration Award in Sec. 537.065 Case Where Insurer Not Present; Though All is Not Lost

On July 19 Baker Sterchi and out-of-state co-counsel obtained summary judgment in a case pending in the Circuit Court of Johnson County, Missouri alleging bad faith failure to settle against their insurance carrier client.
According to the court’s order, the original plaintiff’s policy limits settlement demand did not constitute a reasonable opportunity to settle the case because it was conditioned on the insured’s acceptance of a 537.065 agreement. The court further concluded that the post-judgment agreement between the original plaintiff and the insured protected the insured from execution of the underlying judgment, such that the agreement could not constitute evidence
Continue Reading Summary Judgment Obtained on Bad Faith Claim for Insurance Carrier


Jeannette Layton, a physician’s office manager for Mercy Health East Community (“Mercy”), filed a complaint against Mercy with the Missouri Commission on Human Rights (“the Commission”), alleging age discrimination. Under § 213.111.1 RSMo., if the Commission fails to complete administrative investigation on alleged discrimination, the Commission must issue a right-to-sue notice upon the aggrieved party’s request in writing. Layton requested a right-to-sue notice in writing approximately 185 days after the filing of her complaint. Without issuing the requested notice, the Commission sent Layton correspondence about a month after her request, stating that the agency was still conducting investigation on
Continue Reading Missouri Court of Appeals Doubles Down on Its Strict Application of 180-day Time Limit to Investigate Employment Discrimination

Factual and Procedural Background

In November 2008, Gianinna Gallardo, a 13-year-old student, was struck by a pickup truck after getting off a school bus. She suffered devastating injuries that left her in a permanent vegetative state. Florida’s Medicaid agency paid $862,688.77 towards Gallardo’s medical expenses and continues to pay her medical expenses. Gallardo’s family brought suit against the owner and driver of the truck and the school board, eventually settling for $800,000. The settlement allocated $35,367.52 for past medical expenses without expressly designating any amount for future medical expenses.

The Medicaid Act requires recipients of state-approved Medicaid assistance to assign
Continue Reading SCOTUS Rules States May Seek Recovery from Settlement Payments Allocated for Future Medical Expenses

On June 21, 2022, the Supreme Court denied Monsanto’s petition for a writ of certiorari in Monsanto Company v. Edwin Hardeman, leaving in place the Ninth Circuit Court of Appeals decision affirming a $25 million damage award to a consumer with non-Hodgkin’s lymphoma, who alleged that Roundup caused his cancer. Monsanto argued that the Ninth Circuit’s decision conflicted with the Court’s and other circuit’s decisions on two important federal questions: (1) whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a state-law failure-to-warn claim when the warning cannot be added to a product without the Environmental Protection Agency’s approval and
Continue Reading U.S. Supreme Court Declines to Hear Monsanto's Appeal to End Roundup Lawsuits

Baker Sterchi Member Jennifer Maloney has been honored with the 2022 Illinois Defense Counsel (IDC) President’s Award. Baker Sterchi Member and IDC President, Laura Beasley, presented Maloney with the award at the recent IDC Annual Meeting and Awards Luncheon held at the East Bank Club in Chicago.
“I am honored to receive the President’s Award from the IDC, especially from Laura Beasley, who has been a close friend and colleague for many years,” said Maloney. “It has truly been an honor to support her endeavors to push the defense bar forward in progressive and relevant ways and to always advocate
Continue Reading Jennifer Maloney Honored with IDC President's Award

As part of a movement toward deregulation of several industries, Congress, via the Motor Carrier Act of 1980, partially preempted state regulatory authority over trucking. Congress found that States’ regulation of intrastate transportation of property imposed an unreasonable burden on interstate commerce, impeded the free flow of transportation of interstate commerce and placed an unreasonable cost on the American consumer.
Congress expressly prohibited States from enacting and or enforcing laws, regulations or other provisions having the force and effect of law related to a price, route or service of any motor carrier…broker or freight forwarder. However, preemption was not to
Continue Reading Brokers lose preemption battle (for now) in the war of broker liability.

The U.S. Supreme Court has regularly stated that arbitration agreements subject to the Federal Arbitration Act should not have special rules above and beyond those for ordinary contracts. The Supreme Court recently reaffirmed that this principle applies to contract defenses, including waiver. In Morgan v. Sundance, Inc., a unanimous Court held that a party opposing a motion to compel arbitration based on the defense of waiver need not demonstrate that it was prejudiced. The only relevant consideration is whether the actions of the party seeking arbitration demonstrated a knowing waiver of the right to arbitrate.

In Morgan, the
Continue Reading If You Want to Arbitrate, You Had Better Act Like It

In Worth v. Roden, the Eastern District Missouri Court of Appeals, held that when a timely motion for change of judge under Missouri Supreme Court Rule 51.05 is filed, the trial judge is “divested of authority to take any action other than ruling on motions already under submission and granting the change.”
Missouri Supreme Court Rule 51.05 provides in relevant part:
(a) A change shall be ordered in any civil action upon the timely filing of a written application therefore by a party…The application need not allege or prove any cause for such change of judge and need not
Continue Reading Timely Motion for Change of Judge Strips a Judge's Authority to Rule on Subsequent Motions

On June 20, a ceremony was held on the eastern plaza of the Civil Courts Building in downtown St. Louis to unveil the Freedom Suits Memorial.
The memorial honors courageous slave plaintiffs who sued for their freedom in the decades leading up to the Civil War and the judges, lawyers and jurors who assisted them. Collectively referred to as freedom suits, Dred and Harriet Scott are likely the most famous plaintiffs.
The centerpiece of the memorial, designed by artist Preston Jackson, is a fourteen-foot-tall cast bronze sculpture standing atop a black granite base etched with the names of all the
Continue Reading Paul Venker Comments on Freedom Suits Memorial Unveiling in Downtown St. Louis