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A number of recent court decisions have invalidated employment arbitration agreements where the employer reserves the right to modify terms. Courts have increasingly held that modification rights make the employer’s promise to arbitrate illusory, and thus, the agreement to arbitrate lacks consideration. Bucking this trend, however, the District of Kansas, in an opinion by Judge Toby Crouse, recently affirmed that an employment arbitration agreement which does not give the employer “unfettered” authority to modify its terms is supported by valid consideration and is enforceable. The Court also held that an arbitration agreement which incorporates AAA delegation rules is a “clear…
Continue Reading Court Compels Arbitration where Employer's Right to Modify Terms is not "Unfettered"

In Noelke v. Heartland Independent Living Center, the Missouri Court of Appeals, Eastern District, reversed a trial court’s grant of summary judgment in favor of an in-home personal care provider on statute of limitations grounds, where the plaintiff had filed her personal injury suit two years and one day after the date of injury. The suit was brought by a plaintiff with spina bifida resulting in paraplegia. Noelke claimed that defendant Heartland’s employee, a certified nurse’s aide, injured her with hot water while bathing, resulting in severe permanent injury requiring skin grafting and debridement surgery. This decision has potentially significant…
Continue Reading Missouri Court of Appeals Holds Two-year Statutory Limitations Period Does Not Apply to Action Against In-home Personal Care Provider

Baker Sterchi Member Laura Beasley joins the Association of Defense Trial Attorneys (ADTA) as a prime member, a designation awarded to only one defense trial attorney per one million population for each city, town, or municipality.
Established nearly 80 years ago, ADTA is a prestigious defense trial attorney organization with a mission to improve the practices of its members through collegial relationships, educational programs, and business referral opportunities while maintaining the highest standards of professionalism and ethics. Prime membership in the organization reflects the high regard peers in the defense trial bar have for those selected in their city and…
Continue Reading Laura Beasley Joins Prestigious Association of Defense Trial Attorneys as Prime Member

Since President Biden’s September announcement that employers with 100 or more employees must require vaccination or weekly testing of their employees, observers have waited anxiously for details from the Occupational Safety and Health Administration. The new Emergency Temporary Standard (ETS), published by OSHA in the Federal Register on November 5, 2021, contains three main components: full vaccination, or weekly testing of employees who are not “fully vaccinated” (with attendant recordkeeping requirements), and a face covering requirement. These components are discussed in detail below. As employers and practitioners begin to navigate the ETS requirements, they should keep in mind these important…
Continue Reading OSHA Reacts to COVID-19 Pandemic and Issues Vaccine-or-Testing Mandate: What Employers Need to Know

In 2012 and 2014, the Missouri Supreme Court sent shudders down the spine of defense lawyers throughout the state, via its decisions in Watts v. Lester E. Cox. Medical Centers and Lewellen v. Franklin, which refused to apply statutory limitations on noneconomic damages (Watts) and punitive damages (Lewellen), on the grounds that the statutes abridged the Missouri Constitution’s right to trial by jury. Those cases reversed decades of Supreme Court authority to the contrary. The legal theory goes as follows: (1) if a case has been brought under a common law cause of action (e.g.,…
Continue Reading Once More unto the Breach: the Missouri Supreme Court Again Takes Up the Question of Constitutional Limits on Missouri’s Statutory Punitive Damages Cap

Whether due to a government mandate or a self-imposed work rule, every day more employers are requiring employees to be vaccinated against Covid-19.

Employers are eager to attract vaccinated employees to open positions. Employers have analyzed the costs they may save by hiring vaccinated workers. Vaccinated employees are less likely to contract Covid-19 or suffer serious health consequences from the virus, and they are therefore less likely to miss time from work. Employers will also save time and administrative costs associated with processing accommodation requests, paying for testing, or providing time off to employees awaiting tests or vaccines. Employers with…
Continue Reading Job Seekers Using Vaccine Mandates to Stand Out from the Crowd: Potential Pitfalls for Employees

The Missouri Court of Appeals recently affirmed a trial court’s holding that a mere “Acknowledgement of Receipt,” attached to an Alternative Dispute Resolution Policy given to the employee upon hire, does not constitute an “offer” that can bind the employee to arbitrate future employment claims.

In Trunnel v. Missouri Higher Education Loan Authority, the Court of Appeals reasoned that MOHELA’s ADR Policy did not create an agreement to arbitrate because MOHELA never extended an offer to be bound by the arbitration process that could be accepted by the employee. When MOHELA hired Trunnel, Trunnel was given two documents, one…
Continue Reading I Didn’t Agree to That! Court Holds No Arbitration without Offer and Acceptance.

Brandy Simpson and Jessica Cozart’s article “Employer Return-to-Work and Vaccine Mandates: Just Because You Can Doesn’t Mean You Should” is featured in the October 2021 edition of Defense Research Institute’s Women in the Law Committee newsletter.
The article addresses two of the most popular employer questions of 2021: (1) whether employers can require employees to return to the workplace, and (2) whether employers can mandate their employees be vaccinated against COVID-19.
Simpson and Cozart are located in the firm’s St. Louis office. Simpson’s practice focuses on medical malpractice defense along with premises liability, personal injury, and product liability…
Continue Reading DRI Publishes Brandy Simpson and Jessica Cozart Article on Employer Return-to-Work and Vaccine Mandates

More than eight years after the Country Club Plaza district in Kansas City, Missouri was rocked by a gas line explosion that destroyed JJ’s Restaurant, the United States Court of Appeals for the Eighth Circuit has ruled that utility-locating company USIC has no duty to indemnify natural gas company Spire.
The explosion led to a series of lawsuits against Spire, many of which Spire settled for a collective $75 million. USIC was subsequently asked USIC to indemnify it on the basis that the contract between the two companies placed sole financial responsibility upon USIC—regardless of who was actually at fault.…
Continue Reading Natural Gas Company Cannot Evade Anti-Indemnification Statute's Application in Dispute with Utility Locator after JJ's Restaurant Explosion

On August 16, 2021, the Eighth Circuit Court of Appeals reversed a District Court decision striking class action plaintiffs’ experts and granting summary judgment to 3M Company in the In re Bair Hugger Forced Air Warming Devices Products Liability Litigation. This case is part of Multi-district Litigation (MDL) proceedings, consisting of nearly 6,000 lawsuits, pending in the District of Minnesota. The MDL court, following similar rulings by the trial court in the first bellwether case, excluded Plaintiffs’ general-causation medical experts as well as one of their engineering experts, and granted 3M summary judgment as to all of plaintiffs’ claims.
Plaintiffs in…
Continue Reading Eighth Circuit breathes new life into In Re Bair Hugger Products Liability MDL

The Missouri Court of Appeals, Western District, recently reversed a trial court decision and subsequent arbitration award in favor of an automobile repossessor. In Car Credit, Inc. v. Pitts, the Court of Appeals held that the trial court incorrectly allowed arbitration of Pitts’ claims against Car Credit. The contract at issue designated the National Arbitration Forum (“NAF”) as arbitrator of disputes arising between Car Credit and Pitts related to the vehicle purchase.  At the time Pitts filed her lawsuit, the NAF was not available to serve as arbiter.  Consequently, Car Credit could not resolve Pitts’ claims through arbitration.  
Following Car…
Continue Reading Missouri Court of Appeals Finds Arbitrator Lacked Authority to Resolve Automobile Repossession Dispute

COVID-19 created unprecedented situations in every type of job, industry, and profession, including the legal field.  Change, evolution, and adaptation became commonplace as everyone learned how to navigate the process of operating from both work and home. Essentially, the COVID-19 pandemic turned our working lives upside down for the better part of two years.
As more people become fully vaccinated, many are eagerly anticipating a return to “normalcy.”  For most, that includes returning to the office (whether full-time, part-time, or by remote or virtual means). But more than 100 million Americans have worked remotely (at least part-time) since the beginning…
Continue Reading Returning to Work Post-COVID – Handle with Care, Employers

Baker Sterchi attorney Joe Swift obtained a favorable verdict for a trucking client, one of the nation’s leading flatbed trucking companies, and its driver, in a personal injury action tried in the United States District Court for the Southern District of Illinois. Originally filed in Cook County, Illinois, plaintiff’s petition alleged his vehicle was stopped on I-70 Highway due to a traffic backup, when our client’s semi-tractor trailer violently struck his vehicle from behind.  Our clients’ dash camera (capturing both inward and outward views) showed 9 seconds of driver inattention and a violent crash.  Plaintiff further alleged the crash caused…
Continue Reading Jury Returns Favorable Verdict for Trucking Client in Personal Injury Action

The Eastern District of the Missouri Court of Appeals reversed a trial court’s grant of summary judgment in Pelopidas, LLC et al. v. Keller due to that court’s erroneous contract interpretation, and instead ordered that summary judgment be entered for the opposing party. In its ruling, the Court of Appeals underscored the basic tenets of contract interpretation and highlighted the role of the American Bar Association’s A Manual of Style for Contract Drafting as “a highly regarded authority on contract drafting.”
The case originated from a 2016 dispute concerning the management of a commercial enterprise jointly owned by ex-spouses. The…
Continue Reading Back to Basics: Missouri Court of Appeals Highlights Importance of "Plain-Meaning" Rule in Contract Interpretation

After a week-long trial in Missouri State Court, Baker Sterchi successfully obtained a defense verdict in a wrongful death claim. Defendants were a trucking company and its driver.   Plaintiff alleged the driver could have avoided the interstate accident, which resulted in the death of her husband.   The case involved significant pretrial motion practice.  At trial, multiple experts testified for the parties.  Plaintiff asked the jury for $3M.  Ultimately, after a hard-fought battle, the jury agreed with the defense position.  
Continue Reading Baker Sterchi Obtains Defense Verdict in State Court for Trucking Client

The Eighth Circuit recently upheld a ruling by the Southern District of Iowa granting a Motion to Dismiss a policyholder’s lawsuit for failure to state a claim, finding that the policyholder failed to allege facts that showed a direct physical loss that would trigger coverage under the policy.
In Oral Surgeons v. Cincinnati Insurance, the policyholder owned and operated oral surgery clinics in and around Des Moines, Iowa. The Oral Surgeons brought suit against the insurer for breach of contract and bad faith in its denial of coverage for losses suffered as a result of the suspension of non-emergency…
Continue Reading Oral Surgeons Get Drilled in Eighth Circuit Ruling on COVID Coverage