Missouri Law Blog

No workers comp exclusivity for employers that fail to obtain comp insurance

The Missouri Court of Appeals for the Western District, in Lewis v. Gilmore, finds: 

Nothing in the Workers' Compensation Act prohibits an employee or his dependents from recovering workers' compensation from one employer and tort damages from another employer who failed to secure workers' compensation insurances for its employees. In fact, the plain language of section 287.280.1 allows it. 

Download Lewis v Gilmore 2011

 

Missouri SB 188 on employment law heads to Governor's desk

Senate Bill 188 passed and is sent to Nixon for signature.  According the the Missouri Chamber of Commerce:

Language in the bill approved by the Senate is crafted to reflect federal standards used in the Title VII and the Civil Rights Act of 1964. SB 188 seeks to address problems by capping damages, allowing the courts to utilize summary judgment and changing the standard of review for a finding of discrimination to that of “a motivating factor” rather than the present “a contributing factor.” The caps as proposed utilize a sliding scale of combined compensatory and punitive damages caps ranging from $50,000 to $300,000.

SB 188 also seeks to codify whistleblower protection, so that whistleblower protection applies when an employee alerts proper authorities to an actual illegal act, and establishes caps on compensatory damages under the MHRA based on the number of employees who work at a business. At present, the whistleblower protections are not in statute and leads to inconsistent rulings.

New Missouri case declares exclusion of uninsured coverage for vehicles owned but not insured to be unenforceable as violating public policy

After a crash in Missouri caused by a driver who left the scene, an insured sought uninsured motorist coverage under the policies that covered his two cars, but not the motorcycle he was operating at the time of the crash (which was insured under a policy with another company).  The policies for the two cars excluded uninsured motorist coverage if the insured was injured while operating a vehicle that was owned, but not insured, under the policy.  The Missouri Court of Appeals held that the exclusion was in conflict with the Motor Vehicle Financial Responsibility Law, under which uninsured motorist protection inures to an individual insured for bodily injury inflicted by the tortious act of an uninsured motorist, rather than to any particular vehicle.  The court held that the exclusion was unenforceable up to the statutory minimum for uninsured motorist coverage ($25,000 per vehicle).  Blumer v. Automobile Club Inter-Ins. Exchange, No. WD72753, --- S.W.3d ----, 2011 WL 1118686 (Mo. Ct. App. March 28, 2011). Download Blumer

EEOC issues new regs on who qualifies as disabled

The EEOC issued new regulations on when an employee qualifies as disabled. http://www.eeoc.gov/eeoc/newsroom/release/3-24-11.cfm

While the regs list some particular impairments such as diabetes, HIV infection and bipolar disorder, most of these would have been considered diabilities prior to the issuance of the regulations.  The regs are not a radical departure.  They were blessed by the Chamber of Commerce.

Disability claims, however, have been on the rise.  According to Bloomberg, there were 25,000 disability discrimination claims in 2010, up from 21,400 the prior year.

Update on labor bills in Missouri Legislature

SB 8 passed the Missouri Senate.  This bill would protect employees from being sued by a coworker for work place accidents and would require occupational diseases to be covered by workers' compensation.  The companion House bill, HB 162 is in the Senate Judiciary Committee.

SB 188 passed the Senate and has been referred to the House.  It companion bill, HB 205, is in referral to the Senate Commerce Committee.  See http://www.showmelawblog.com/2011/02/employment-discrimination-reform-bill-hearing-held.html for a run down on the employment law changes.

The Missouri Legislature reconvenes on March 28.

Patent decision elevates burden for false marking plaintiffs

Companies being sued for false patent marking won an important victory on March 15, 2011, when the United States Court of Appeals for the Federal Circuit ruled that plaintiffs must meet heightened pleading standards in their cases. This opinion assists defendants challenging false patent marking actions at the earliest stage of litigation.

The Federal Circuit held in the opinion, In re BP Lubricants USA, Inc., --- F.3d ---, 2011 WL 873147 (Fed. Cir. 2011), that allegations under the false patent marking statute (35 U.S.C. § 292) must be pled with particularity under Rule 9(b) as opposed to the more lenient pleading requirements of Rule 8(a)(2). Under the false patent marking statute, anyone can sue on behalf of the government to enforce violations of its provisions. That plaintiff may collect half of the penalty of up to $500 for each individual product that is wrongly marked. Prior to this ruling, many plaintiffs have been able to plead their claims under the more lenient rule.

Insurer-friendly new case on duty to defend after settlement

In this new case, the Missouri Court of Appeals, Eastern District, held that an insurer that had paid its policy limits in full settlement of one claim arising from an incident was no longer required to provide a defense to the insured in connection with another claim arising from the same incident. 

National Beef Packing v. Zurich:  http://www.courts.mo.gov/file.jsp?id=45195

 

Important new case on arbitration

Here is a rare case from the Missouri Court of Appeals, Western District, sitting en banc, with two separate opinions. The case provides a very detailed discussion of whether an arbitration provision in a contract between an insurer and a chiropractor is enforceable. The court concludes that the agreement is unconscionable:

While an ordinary person could reasonably expect general arbitration provisions in an adhesion contract, an ordinary person would not reasonably expect provisions that allow the other party to unilaterally revise the arbitration rules, render the arbitrator powerless to resolve a large class of claims, or fail to provide an adequate remedy for the dispute. The practical effect of these provisions is to grant BCBS immunity for improper conduct in declaring procedures medically unnecessary or, as in this case, re-categorizing a treatment as medically experimental and, therefore, not subject to reimbursement. While purporting to provide a remedy for disputes between the parties through arbitration, the limitations placed on the arbitrators' authority prevent arbitration from providing much, if any, remedy at all. As noted by the trial court, "[t]he arbitrators are rendered practically powerless and arbitration is effectively no remedy at all." Where, as here, the practical effect of forcing a case to arbitration would be to deny the injured party a remedy, requiring the case to be arbitrated is unconscionable. 

Manfridi v. Blue Cross: Download File.jsp

Highly Publicized NLRB Facebook Case Settles

The ambulance company that fired a worker after she criticized her supervisor and employer on Facebook has settled a complaint issued by the National Labor Relations Board (NLRB). Under the accord, which was announced this week in an NLRB press release, American Medical Response of Connecticut, Inc., agreed it would change its “overly broad rules” to ensure it does not restrict employees’ speech while they are away from work.

The NLRB’s unfair labor practice complaint against American Medical Response was originally scheduled for a hearing on January 25, 2011, but was reportedly delayed so that the parties could finalize a settlement. The formal settlement announcement came one day before the rescheduled hearing was to begin.

Second Injury Fund Challenge Filed in Federal Court

The first suit attempting to challenge the Missouri Second Injury Fund's imminent insolvency was filed in federal court in St. Louis this week.  According to Attorney General Koster, there are 27,000 Second Injury Fund cases pending with liability claims over $189 million.  The suit attempts to invalidate the 3% surcharge as inadequate.

The troubles stem from the rapid expansion of compensable claims covered by the Fund.