Transfer Accepted: Court to Consider Whether Negligent Failure to Diagnose Terminal Illness can give Rise to a Wrongful Death Claim

July 2, 2015 – The Supreme Court accepted transfer on June 30 in Mickels v. Danrad, SC94844, following the Eastern District Court of Appeals’ decision (Amburg, Quigless, & Richter, JJ), available at 2014 WL 7344250 and here.

Joseph Mickels, Sr. saw Dr. Raman Danrad for numbness in his extremities, blurred vision and headaches.  Dr. Danrad conducted an MRI but did not diagnose a brain tumor at that time.  About two months later, Mr. Mickels returned to the hospital in an altered mental state.  Dr. Danrad conducted a CT study of Mr. Mickels’ brain and then diagnosed a terminal brain tumor.  Despite immediate surgery and other treatments, Mr. Mickels died approximately four months later.  His surviving family members brought a wrongful death action against Dr. Danrad claiming that, but for his negligence in failing to diagnose the brain tumor at Mr. Mickels’ first visit, Mr. Mickels would have lived six months longer.  The trial court granted summary judgment in favor of Dr. Danrad.

The Eastern District affirmed, holding that a cause of action for wrongful death will not lie where alleged medical negligence merely accelerated death from a terminal illness, because the terminal illness defeats the necessary “but for” causation element of the claim.  Because the evidence showed that the brain tumor was terminal and that Mr. Mickels would have died even if Dr. Danrad had diagnosed it at the first visit, Plaintiffs’ wrongful death claim failed.

In their application for transfer, the plaintiffs argue that a viable wrongful death claim need only show that the defendant’s negligence contributed to cause the decedent to die at a particular time.  Plaintiffs argue that the Eastern District’s holding is inconsistent with certain Missouri cases permitting recovery for wrongful death when a defendant’s negligent nonmedical act cause the death of a terminally ill decedent.  Plaintiffs also argue that this case presents an issue of general interest and importance.

Plaintiffs are represented by Stephen R. Woodley and Thomas K. Neill of Gray, Ritter & Graham, P.C.  Dr. Danrad is represented by John B. Morthland and Amy L. Ohnemus of Wasinger, Parham, Morthland, Terrell & Wasinger, L.C.

Transfer Accepted: Court to Consider Whether Electric Company is Immune for Wrongful Death Action under Recreation Use Act

October 4, 2014– The Supreme Court granted transfer on September 30 in Anderson v. Union Elec. Co., SC94372, following the Western District Court of Appeals’ decision (Pfeiffer, P.J., Hardwick & Gabbert, JJ), available at 2014 WL 2574628 and here.

Alexandra and Brayden Anderson were electrocuted while swimming in the Lake of the Ozarks.  The electrical current that shocked the children originated at the family’s dock.  Their mother filed a wrongful death suit against Union Electric (Ameren). Mother’s complaint alleged that Ameren charged an annual or lump sum use for placement, maintenance, use and/or enjoyment of docks on the lake.  The trial court dismissed Mother’s claim pursuant to the Recreation Use Act, sections 537.345 et seq., which confers immunity on landowners who hold their land open to the public for recreational use without charge.

The Western District reversed, finding that the Recreation Use Act did not apply in this case because the complaint alleged that Ameren charged a fee to all those who wished to use their own docks to enjoy the Lake of the Ozarks.

In its Application for Transfer, Ameren argues that it has immunity under the Act because it does not charge an admission fee to swim at the Lake, and it therefore holds its land open to the public for recreational use without charge within the meaning of the Act.

Mother is represented by Kevin J. Davidson, David M. Zevan, and Rachel L. Roman of the Zevan & Davidson Law Firm, LLC.  Ameren is represented by James J. Virtel, Karen A. Baudendistel, and Jeffery T. McPherson of Armstrong Teasdale.


Transfer Accepted: Court to Consider Accrual of Cause of Action for Wrongful Death in Case where Criminal Conduct Alleged to be Fraudulently Concealed

March 27, 2014 – The Supreme Court granted transfer on March 25 in State ex rel. Beisly v. Perigo, SC94030, following the Southern District Court of Appeals’ per curiam decision, available at 2014 WL 257277 and here.

Belinda Beisly was murdered in July 2009.  The state did not conclude its investigation until February 2013, when felony charges were filed against Bob Beisly and Jeremy Maples.  Maples was charged with shooting Belinda and Beisly was charged with encouraging or aiding Maples.  Belinda’s mother brought a wrongful death claim on Belinda’s behalf against Beisly and Maples.  Beisly moved to dismiss on the basis that the claim was barred by the three-year wrongful death statute of limitations.  Beisly’s mother argued that the wrongful death statute of limitations did not apply because Beisly and Maples fraudulently concealed their involvement in Belinda’s death.  The trial court denied the motion to dismiss and Beisly appealed to the Southern District, which issued a writ of prohibition, ordering the trial court to dismiss the case.

The Southern District determined that the statute of limitations should not be tolled due to fraudulent concealment.  Neither the date of Belinda’s death, nor that it was due to suspicious circumstances, was concealed.  The Southern District noted, and declined to follow, the Western District’s recent decision in Boland (on which the Supreme Court has also granted transfer).

In her Application for Transfer, Belinda’s mother argues that there is a direct conflict between the Southern and Western Districts, in that the Southern District explicitly disagreed with the Western District’s recent decision.  She also argues that the statutory language and public policy both support the interpretation that a wrongful death cause of action does not necessarily accrue at the moment of death, but rather is subject to equitable tolling.  She argues that Boland was correctly decided and should be followed.

Beisly is represented by Mark Evans Turley of Smith & Turley.  Belinda’s mother is represented by Todd P. Graves, Edward D. Greim, and Ryan Parks of Graves Garrett LLC.

Transfer Accepted: Court to Consider Accrual and Tolling of Wrongful Death Statute when Fraudulent Concealment is Alleged

March 27, 2014 – The Supreme Court granted transfer on March 25 in Boland et al. v. St. Luke’s Health Sys., Inc., et al., SC93906, following the Western District Court of Appeals’ consolidated decision (Newton, P.J., Mitchell & Witt, JJ), available at 2013 WL 6170598 and here.

Three separate wrongful death lawsuits were brought on behalf of five plaintiffs, all alleging that patients were intentionally killed by a respiratory therapist at a hospital owned by defendants.  Plaintiffs allege that the hospital and its employees intentionally and fraudulently concealed the fact that there were multiple suspicious deaths which were all linked to the same emplolyee and other facts that indicated the employee’s improper actions.

The trial court granted defendants’ motion for judgment on the pleadings on the basis that the lawsuits were barred by the three-year statute of limitations for wrongful death claims.  The Western District reversed, finding that the statute of limitations could be tolled where there was evidence of fraudulent concealment.  Although  a wrongful death cause of action usually accrues at the moment of death, the Western District held that is not necessarily so where there is fraudulent concealment that would prevent a diligent plaintiff from discovering the facts sufficient to apprise him of the cause of action.

In their application for transfer, the hospital defendants argue that the Western District’s opinion is contrary to Missouri Supreme Court decisions which held that the Wrongful Death Act contains a special statute of limitations which cannot be tolled.  Defendants argue that the Western District’s opinion misconstrues the “discovery rule,” which is an element of tolling, as an “accrual.”  Defendants argue that plaintiffs’ petitions lacked required factual allegations concerning how and when the alleged fraud was discovered.  Defendants also argue that when a wrongful death claim accrues or is tolled is an issue of general interest and importance.

In their Suggestions in Opposition, Plaintiffs argue that adopting Defendants’ theory would allow a defendant to avoid wrongful death liability simply by concealing the facts related to the death for three years.  They argue that the most recent precedent establishes that the Wrongful Death Act is to be interpreted liberally and supports their position.

Plaintiffs are represented by J. Kent Emison, Michael W. Manners, Brett A. Emison, and Jessica M. Agnelly of Langdon & Emison, by L. Annette Griggs and David L. McCollum of McCollum & Griggs, LLC, and by Steven J. Streen.  Defendants are represented by Thomas W. Wagstaff and Christopher L. Schneiders of Wagstaff & Cartmell, LLP, and by Scott Adam and Sean McGrevey of Adam & McDonald, PA.

Transfer Accepted: Court to Consider Stacking of UM Policies in Wrongful Death Case

February 28, 2014 – The Supreme Court granted transfer on February 25 in Floyd-Tunnell, et al. v. Shelter Mut. Ins. Co., SC93904, following the Western District Court of Appeals en banc’s decision (Welsh, C.J., Hardwick, Newton, Ahuja, Mitchell, & Martin, JJ) (Pfeiffer, J, dissenting) (Howard, Witt, Gabbert, JJ, concurring in Pfeiffer’s dissent) (Ellis, J, concurring in part in Pfeiffer’s dissent), available at 2013 WL 5978452 and here.

Plaintiffs are the daughter and wife of Jerry Floyd, who died from injuries suffered in a car accident caused by an uninsured motorist.  The Floyds had three insurance policies with Shelter, on three different vehicles, including the vehicle Floyd was driving at the time of the accident.  All three policies had uninsured motorist coverage up to $100,000, but with an exclusion that only the statutory minimum would be paid if the vehicle with the policy was not involved in the accident.  Shelter paid the full $100,000 on the vehicle Floyd was driving and paid the $25,000 statutory minimum on each of the other two policies.  Plaintiffs sued Shelter for the remaining $150,000 plus penalties and attorney’s fees, for “vexatious refusal to pay.”  The circuit court granted Shelter’s motion for summary judgment, finding that Shelter only had to pay the statutory minimum on the other two policies pursuant to the  language of the exclusion.

The Western District majority affirmed.  The majority focused on the issue of whether Floyd or his wife was the “insured” as that term is used in the policy.  Plaintiffs argued that “insured” referred to Floyd’s wife because she was the one seeking damages for wrongful death.  The Western District found that Plaintiffs’ right to recover under the policy is solely a function of Floyd’s status as a named insured; the fact that his wife is also named on the policies is irrelevant.  The Western District noted that Plaintiff’s interpretation would give the wife the right to collect under the policies for the wrongful death of anyone as to whom she could maintain a wrongful death claim under the statute, regardless of whether that person was a named insured on the policy or not.  The Western District also found that the UM exclusion in the policies was not ambiguous.

The Western District dissent argues that the majority opinion incorrectly gives a liberal construction to the exclusion, in favor of the drafter, instead of strictly construing it against the drafter.  The dissent argues that the policies are contrary to the wrongful death statute in instances where the accident was fatal to an insured.  The dissent argues that the exclusion is ambiguous when construed together with the rest of the policy.  Judge Ellis concurred in that part of the dissent finding the exclusion clause ambiguous.

In their application for transfer, Plaintiffs argue that the case presents an issue of general interest and importance because it would prevent stacking of uninsured motorist policies in other wrongful death cases.  Plaintiffs also argue that the Western District’s opinion is contrary to other case law which has allowed such stacking, and which required that exclusions in insurance policies be read narrowly and against the drafter.

Plaintiffs are represented by James E. Corbett of Corbett Law Firm, P.C.  Shelter is represented by William Clayton Crawford and James P. Maloney of Foland, Wickens, Eisfelder, Roper & Hofer, P.C.

Transfer Accepted: Court to Consider Scope of Evidence on Remand for Punitive Damages

January 11, 2013 – The Supreme Court ordered transfer on December 18, 2012 in Smith et al. v. Brown & Williamson Tobacco Corp., SC92961, following the Western District Court of Appeals’ en banc opinion (Ellis, Howard, Newton, Pfeiffer, Mitchell, Martin, Witt, JJ and Cook, Sp. J.) (Ahuja and Smart, JJ and Welsh, C.J., dissenting), available at 2012 WL 4497553 and here.

This case has been in litigation since March 2003.  The Western District had previously affirmed a determination that Brown & Williamson was liable for the death of the plaintiffs’ mother and had remanded to the trial court solely on the issue of the amount of punitive damages.  On remand, plaintiffs introduced evidence of the net worth of the company which had acquired the assets and liabilities of Brown & Williamson and which would pay any punitive damages awarded.  Defendants introduced evidence of the new company’s conduct since it took over.  Plaintiffs objected to this evidence on the basis that it exceeded the scope of the remand but did not object on relevance or any other basis. 

Plaintiffs appealed the award of $1.5 million in punitive damages.  Brown & Williamson cross-appealed, arguing that plaintiffs did not make a submissible case for punitive damages.  The Western District reversed and remanded on the basis that the trial court exceeded the scope of the remand, which was supposed to be solely concerned with the amount of punitive damages to be awarded.  The Western District majority found that allowing evidence as to the later company’s conduct allowed defendants to “effectively substitute” the new entity for the old. 

Brown & Williamson seeks transfer on the issues of whether the trial court is required to exclude evidence on remand when no objection is made to the evidence at trial and whether it is permissible to restrict remand only to the amount of damages without consideration of the related issue of whether the defendant is liable for such damages.  Brown & Williamson argues that the Western District’s opinion will have the effect of limiting the scope of evidence that may be presented on remands in the future and will be confusing to litigants and trial courts. 

The plaintiffs are represented by Kenneth Blair McClain  and Scott B. Hall of Humphrey Farrington McClain and Susan Ford Robertson of The Robertson Law Group

Brown & Williamson is represented by Bruce David Ryder of Thompson Coburn LLP.   

Decided Cases: Court hands down decision in Lewis

June 14, 2012. This week the Supreme Court of Missouri handed down Lewis v. Gilmore, SC91834, which reversed the circuit court’s judgment that a worker’s compensation award against an insured employer bans a wrongful death claim against an uninsured employer, because section 287.280.1, RSMo expressly allows an injured party or his or her dependants to proceed in a civil action against the uninsured employer.  

The court’s communications counsel provided the following summary:

The surviving dependents of a man killed when the tractor trailer in which he was a passenger overturned obtained a workers’ compensation award against one of the man’s two employers and brought a wrongful death suit against the other employer, who had failed to carry workers’ compensation insurance as required by law. The circuit court determined the civil action was barred by the workers’ compensation award. In a 4-3 decision written by Chief Justice Richard B. Teitelman, the Supreme Court of Missouri reverses the circuit court’s judgment and remands the case. The plain language of the workers’ compensation statute permits an employee or his dependents to elect to bring a civil action against an uninsured employer. Cases holding an employee or his dependents cannot recover on both a workers’ compensation claim and a civil suit against the same uninsured employer do not apply here, as the dependents’ actions were against different employers. There also is no impermissible double recovery here because any recovery by the dependents in the civil action would be subject to the other employer’s subrogation rights.

Judge Mary R. Russell dissents. She would hold the statute cannot be interpreted without consideration of the election of remedies doctrine or other workers’ compensation laws. The statute’s purpose is not to allow an additional avenue to pursue double compensation for the same injury simply because the immediate employer fails to carry workers’ compensation insurance and there is another employer who can be pursued for a remedy.

Decided Cases: Court hands down opinions in Sanders and Bateman

April 4, 2012. Yesterday, the Supreme Court of Missouri handed down decisions in two civil cases: Sanders v. Ahmed, SC91492, upholding the constitutionality of Section 538.210’s cap on non-economic damages in wrongful death cases and Section 538.220’s provision for a periodic payment plan, and Bateman v. Platte County, SC91898, regarding pleading requirements for a statute of limitations defense.

The court’s communications counsel provided the following summaries:

In a wrongful death lawsuit, a man appeals a trial court’s reduction of the amount of noneconomic damages awarded to him pursuant to a statutory cap, and the doctor appeals the court’s decision not to reduce the amount of damages based on the amount of a settlement with other defendants and not to allow him to make periodic payments. In a 5-2 decision written by Judge William Ray Price Jr., the Supreme Court of Missouri affirms the judgment in part, reverses it in part and remands the case for further consideration. The legislature has the right to create causes of action and to prescribe their remedies, including giving courts the right to establish a plan for future payments, and did not violate the constitution in doing so here. Because the doctor failed to object and move to strike opinion testimony of the man’s expert witness at trial, he waives the right to object to its admissibility now. The man established a submissible case for the jury regarding evidence of what caused the wrongful death. State law requires the doctor to present evidence of the man’s settlement with other parties for reduction. Because proper discovery of this evidence was denied the doctor at trial, this portion of the judgment is reversed, and the case is remanded.

In a dissenting opinion, Judge George W. Draper III disagrees that the statutory cap on noneconomic damages is not unconstitutional. He believes the Court should find that the statutory cap on noneconomic damages is an impermissible burden on the right to a trial by jury and violates the separation of powers as set in the state constitution.

A county and certain property owners appeal a trial court’s judgment that a particular road is a private, not public, road. In a unanimous decision written by Chief Justice Richard B. Teitelman, the Supreme Court of Missouri affirms the judgment. Because the county never pleaded a specific statute of limitations as a defense before the trial, it waived this defense. Further, the evidence supports the trial court’s   finding that the road never was used by the public.