Every personal injury claim is unique, but hearing others' stories can help you understand what to expect. Burger Law offers a new collection of our previous clients' stories and how we were able to help.
I cannot recall another year so many wanted to be done with. No election year, vaccines are coming and the St. Louis Blues start regular season play on January 13 at Colorado.
In this newsletter, I thought I would focus on some really hard-working clients we were able to recently help in their employment. Below I discuss some workers' compensation settlements, a radio interview with Lawyer v Lawyer, and a great overtime wage case where we were able to get our hard-working clients paid time and a half for overtime.
We just settled a federal case representing three long-term Water Distribution Supervisors against the City of St. Louis.
Our hardworking clients worked hundreds or even thousands of hours of overtime every year for years, but they did not get paid time and a half for overtime!!! Ever.
But Water distribution supervisors would continue being paid at their straight hourly rate for time above 40 hours.
Each had worked for the city for more than 20 years at the time of suit. They helped to maintain and repair the water systems that provide water to the city and its residents. They are required to work mandatory overtime, weekend and holiday assignments, and be on 24-hour call to attend to emergencies like water main breaks.
That they had always received only straight-time pay for overtime, rather than time-and-a-half, yielded a strange result. Their subordinates, who were considered nonexempt, made more money than them with the overtime.
We filed suit in the case and each side took depositions. The city argued the Supervisors are exempt employees under the Fair Labor Standards Act (FLSA) and do not have to be paid time-and-a-half. Although at first blush it’s surprising our clients did not get paid time and a half for overtime considering how many hours and how hard they worked.
But it was a really difficult case because a significant amount of Missouri and Eighth Circuit law supported the City's argument. The FLSA is written and interpreted in a way that provides favorable treatment for employers, especially public employers. The FLSA actually permits a number of exemptions to the usual time-and-half rule, including for employees working in an "executive" capacity, meaning the employee supervises other employees in a management position.
The parties actually both filed motions for summary judgment; each side arguing to the Court that it could resolve the case without involving a jury. We did not think our supervisors digging up water pipes in the middle of the night were "executives." But the law is tough.
While the summary judgment motion was pending, we were able to reach an amicable settlement to obtain full back pay for our clients, as well as an agreement with the city to change the Supervisors' employment classifications and guarantee them time-and-a-half pay for overtime going forward, changing a pay ordinance that had existed for more than 20 years.
The city paid $135,000 to settle the case. But the most important impact for the supervisors is the increase to time-and-a-half for overtime effective now and into the future - which will make their pay commensurate with their position. This case resolution benefits not only our clients but other employees who will be working as Water Distribution Supervisors for the City.
I would also note what good and professional lawyers were on the other side of the case. Our clients are very happy with the result and we were honored to represent them in their effort to be paid fairly by the city for the important and difficult work they do.
We handle many types of cases at Burger Law and I’ve recently written about successes in various cases involving premises liability, truck accidents and wrongful death. However, we also handle a large number of workers’ compensation cases.
These cases involve injuries suffered by our clients while on the job. Below are a few of the cases we successfully resolved for our clients this month:
Our client, Ashli Platt, was injured while working as a nurse in a hospital. She was assisting a patient getting out of bed and when the patient stood up, she fell to the floor, suffering multiple herniated discs in her back. We filed her claim for compensation and litigated her case. We were able to get her a great settlement of $65,269.80.
Martin Moreno is a construction worker and was injured on the job when he stepped on a patch of glue and twisted his right ankle. He suffered an ankle sprain and a bone fracture in his foot. He then injured his back in a separate incident while on the job. His injuries limited what he could do at work and he ultimately required surgery. Our great attorney, Genavieve Perino, fought hard on Martin’s case and obtained a settlement of $57,500.00.
Caleb Bingham works at a rock quarry and was turning a rock cutting table when he felt a pop and pull in the base of his neck. He was diagnosed with an acute cervical strain and a herniated disc, and required physical therapy and steroid injections. We fought hard for him and obtained a settlement of $42, 939.00.
Finally, our client Ricky Ems worked for a pool service company and was injured on the job when he slipped and tore his meniscus. He reported his injuries to his employer who wrongfully terminated him. We litigated the case extensively and even took Ricky’s deposition. We were ultimately able to get him a settlement of $27,353.56.
We were happy to represent these individuals and help them get the compensation they deserved.
In order for the exemption to the FLSA requirement that workers be paid time and a half for overtime, the employee must:
The employer has the burden to prove its employee is an executive and therefore exempt. Madden v. Lumber One Home Center, Inc., 745 F.3d 899, 903 (8th Cir. 2014) (citing Fife v. Harmon, 171 F.3d 1173, 1174 (8th Cir. 1999)).
“The designation of an employee as FLSA exempt or nonexempt must ultimately rest on the duties actually performed by the employee.” 5 C.F.R. § 551.202(e). Employers must prove the employees meet each prong to be exempt. See, e.g., Perez v. Radioshack Corp., 552 F.Supp.2d 731 (N.D. Ill. 2005).
We argued in the City Water supervisor case that the city could not prove either the first or third requirements are satisfied. Plaintiffs’ “primary duty” is not “management of the enterprise.” They also do not have authority to hire or fire and their suggestions or recommendations are not given “particular weight.”
The “primary duty” stated above in the first requirement is “the principal, main, major or most important duty that the employee performs.” 29 C.F.R. § 541.700(a). The regulations also provide a non-exclusive list of factors to consider:
The regulations also set forth a list of management activities:
interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures. 29 C.F.R. § 541.102.
We argued that Water Distribution Supervisors do none of this and do not: have hiring or firing power; set employee pay; maintain production or sales records; have any ability to promote or demote employees; have any ability to suspend employees; make grievance decisions; enforce employee discipline; perform quality control; control the materials used on job sites; set safety policies or policies of any kind; or enforce legal compliance.
Water Distribution Supervisors only arguably “direct” employee labor, which is also something foremen, a non-exempt position, do. For the relative importance of exempt duties as compared with other duties, Courts must consider whether the employer’s goals can be accomplished if the employee failed to perform either his managerial or non-managerial duties. Cort v. Kum & Go, L.C., 923 F.Supp.2d 1173, 1178 (W.D.Mo. 2013) (internal citations omitted).
The Court also considers the employee’s job description, performance review criteria, bonus plan, and training. Id. The plaintiffs’ testimony made clear their hands-on labor and on-site work keeping the City’s water up and running is their most important duty. Following Cort, the City’s “goals” of keeping the water running are not met if plaintiffs do not perform their on-site and hands-on labor.
“The amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee,” though time is not the sole test. 29 C.F.R. § 541.700(b).
If a manager is closely supervised and earns little more than nonexempt employees, the manager will generally not meet the primary duty requirement. 29 C.F.R. § 541.700(a); Cort, 923 F.Supp.2d at 1181.
The fourth primary duty factor concerns the relationship between an employee’s salary and the wages paid to other nonexempt employees for the kind of nonexempt work performed by the employees. 29 C.F.R. § 541.700.
The regulations and cases do not prescribe a specific mathematical formula, rather the Court generally compares a manager’s weekly salary with the highest nonexempt weekly wage. Cort, 923 F.Supp.2d at 1183.
This comparison also proves the plaintiffs are not executives. The Water Distribution Supervisor base rate earns $1,781 every two weeks. The Water Maintenance Foreman base rate earns $1,601 every two weeks, but they earned more with overtime. So, the pay disparity was absent.
Thought I would talk a little bit about two separate issues that we have been dealing with for a while.
Insurance companies sell underinsured motorist coverage as part of their coverage and always charge more for it. Underinsured coverage provides extra coverage if a person is involved in a motor vehicle accident caused by someone who carries less coverage than they do.
And underinsurance always sets off from its coverage the level of coverage of the other, negligent driver. What happens when the underinsured coverage is too low so no real coverage is provided? We fight that in cases (and sue on regular underinsured claims often).
Also, we represent a lot of folks in crashes with trucks, and I am intrigued by where truck crashes happen – rural versus urban, what type of road, what speed, etc. So, I did some research on that too. Then I have some videos with a client and explain how bees survive in the winter. Thanks for reading.
An illusion is a deception – something that will be misinterpreted. Visually, people are most familiar with optical illusions, perhaps a still object drawn on paper that appears to move, or magicians who appear to make objects disappear and reappear, or perform other tricks.
Contracts can create illusions as well, however, and when they do so Courts call those contracts “illusory.” An illusory contract is one where a party appears to agree to perform, but their promise does not actually obligate them to do anything at all.
For example, Joe and Frank agree Joe will pay Frank $100 to maybe paint Joe’s house. Frank’s promise is illusory – he did not agree to paint Joe’s house, he only agreed to “maybe” paint it. Frank is not obligated to do so and his promise is illusory.
Insurance policies are simply contracts, though they are complicated. In short, a policyholder (the insured) buys a policy from an insurance company (the insurer) to pay the policyholder money under certain circumstances, like a car wreck or a house fire. Occasionally, the insurance company’s promises to pay contain terms or definitions that render those promises illusory – they appear to promise to pay but actually do not.
These illusory promises can arise in both Missouri and Illinois in the context of underinsured motor vehicle coverage. Underinsured coverage is designed to protect a policyholder in the event they are involved in a motor vehicle accident caused by someone who carries less coverage than they do.
To use Joe and Frank again as an example, Joe holds a $25,000 insurance policy, meaning the most it will pay in liability coverage is $25,000. Frank holds a $100,000 underinsured motorist policy. If Joe runs a red light, hits Frank’s car, and causes $100,000 in damages, Joe only has $25,000 in coverage.
Frank will therefore collect the $25,000 from Joe’s insurance and then make an underinsured motorist coverage claim against his own insurance to recover the remaining $75,000, up to $100,000. Normally underinsured policies allow the insurance company to offset the money already received from the responsible party, here Joe, against the total limit, so the most Frank can recover in total is $100,000.
Policies will also carry uninsured motorist coverage, so if Joe does not have insurance at all and runs the red light, causing Frank $100,000 in damage, Frank will recover up to $100,000 from his own insurance company. Joe here is an “uninsured motorist” – someone who does not have any insurance but causes an accident and damage.
States require drivers to carry a minimum amount of liability coverage, in Missouri and Illinois that minimum is $25,000 per person, $50,000 per accident.
Many policies are written so the uninsured and underinsured motorist coverage matches the liability coverage on the policy, so a policy with $25,000/$50,000 in liability coverage will also carry $25,000/$50,000 in uninsured and underinsured motorist coverage. These state minimum coverages for uninsured and underinsured motorist coverage can end up creating illusory coverage – what appears to be a promise to pay but does not actually obligate the insurance company to do anything.
If any driver whose policy is paying out less than $25,000 is uninsured, then they are not underinsured and no driver can be underinsured for a $25,000 underinsured policy. Another possibility is if the policy allows the company to set off the entire $25,000 minimum amount against underinsured motorist coverage of $25,000, because then minimum underinsured coverage won’t be paid when it is fully offset.
Under these circumstances, underinsured coverage is illusory. It appears that the insurance company is offering $25,000 in underinsured coverage but nothing will ever be paid under that coverage – the promise to pay is an illusion.
Missouri and Illinois have each addressed this potential illusory promise in different ways, Missouri by statute and Illinois in a more ad hoc fashion. RSMo. § 379.204, states underinsured motorist coverage with a limit less than twice the minimum coverage (so less than $50,000) will be excess over liability coverage.
By statute, if a policyholder recovers $25,000 from a minimum limit at-fault driver, that policyholder can recover another $25,000 from his or her underinsured policy as “excess” coverage.
Illinois’ manner of addressing this issue is more complicated because the legislature has not directly addressed it via statute. Illinois has an underinsured motorist statute, 215 ILCS 5/143a-2, which requires underinsured motorist coverage to be included with all policies sold except for minimum-coverage policies.
This specific exemption implies the Illinois legislature has recognized the illusory nature of this coverage and permits insurance companies to sell coverage without a $25,000 underinsured provision to avoid selling policyholders coverage that does not actually cover anything. Illinois case law has taken this a step farther, though the matter has not been much litigated in Illinois and there are not many cases interpreting minimum-level underinsured motorist policies specifically.
One case in particular though, Glazewski v. Coronet Ins. Co., states a plaintiff may pursue fraud and consumer fraud claims against an insurance company selling a $25,000 underinsured motorist policy, based on the theory the coverage is illusory. Glazewski, 91 Ill.Dec. 628, 631, 483 N.E.2d 1263, 1266 (Ill. 1985).
We are currently pursuing two underinsured cases against insurance companies asserting claims based on illusory coverage for minimum policies. Insurance companies should not be allowed to sell illusory non-existent coverage to drivers. If you or anyone you know has been wrongfully denied insurance coverage under circumstances like these, please contact us.
For most U.S. citizens, they believe that the main concept for truck crashes is driver fatigue or substance abuse. However, though these can be involved in semi-truck crashes they are not the sole cause of truck crashes. Instead, the location of where a truck is driving can have an important role in whether there is a higher or lower risk of an accident.
In 2017 alone, 4,761 people were killed in a crash involving a large truck. This was a 9.0% increase in fatalities from the previous year in 2016 where 4,369 fatalities occurred to 4,761 in 2017.
From 2008 until 2017 the average increase in truck crashes over these 10 years was a 12 percent increase in the total number of people killed in large-truck crashes, from 4,245 in 2008 to 4,761 fatalities in 2017.
Breakdown of fatalities in 2017:
Crash Statistics:
Driving next to a semi-truck can be extremely dangerous because large vehicles are more likely to be involved in fatal multiple-vehicle crashes as opposed to fatal single vehicle crashes than are passenger vehicles. In 2017, 82% of fatal crashes involving large trucks were multiple-vehicle crashes, compared with 62% for fatal crashes involving passenger vehicles.
Did you Know?
Country Statistics:
Vehicle Traffic Volume and Accident Risks:
The volume of traffic increases truck accidents however, crashes even further increase when the volume of truck traffic increases. According to ScienceDaily, this increases regardless of whether the overall traffic volume goes up or down.
They also discovered a direct disproportionate relationship between truck volume increases and accident risk. According to the data when the volume of trucks on the road goes up by one percent, the risk of an accident goes up by even more than that.
Speed vs. Accident Risks:
ScienceDaily further discovered that there was a correlation between higher speeds with higher accident reports. An error in driver manipulation of a vehicle, such as improper lane change, was found to have a lower impact on crashes than did speed. In contrast, the chance of a fatality was found to double when a truck is driven at a speed over 45 miles per hour.
Truck accidents can occur because of all kinds of factors that are not in our control. Due to so many possible reasons for why a fatal truck accident occurred you need to pick an experienced attorney who has dealt with various truck accidents.
Our firm Burger Law has been representing our clients for over 30 years in fatal truck accidents and has plenty of success stories and tips to help you win your case. Call us at [dynamic-phone-number].
So happy to have our super cold weather break and a springy light at the end of our winter tunnel.
Everyone at the firm worked really hard towards the end of 2020 to resolve cases for our clients. It was a team effort with everyone pulling hard. And our firms’ efforts paid off for our clients. We settled 43 cases in the last quarter.
Here are discussions of three very recent settlements: a medical malpractice case, a multivehicle crash in Illinois and a car crash with a head injury in Missouri.
What lessons can you take from them? Call me at [dynamic-phone-number] if you want more information or details.
I settled a birth injury case for $750,000 recently. Rather than discussing the details of the case, I thought I would discuss confidentiality provisions that surround these types of cases.
The first is, should you agree to a confidentiality provision? These provisions make the amount of the settlement and sometimes the facts of the underlying claim, confidential.
I will not do confidentiality provisions in routine cases. However, in employment discrimination and medical malpractice cases, and in higher figure cases, confidentiality provisions are the norm. Typically, those cases do not settle without them.
Arguments in favor of confidentiality are that an insurer or defendant will often require confidentiality as a condition of settlement. This protects them from publicity and any negative effect of the allegations of the lawsuit and protects their public image. Confidentiality also has a hidden benefit for the plaintiff as they often do not want to disclose or share the details of their finances with friends, family or the public. So, a client may want confidentiality and/or not object to it if the settlement amount is enough.
However, the public and our community has an interest in knowing the value of these cases. If there is a bad actor or someone routinely committing negligence and hurting or killing people, we need to know. Disclosure of settlement amounts along with the facts and details of the settlements promote safety in the community.
And someone who gets injured a week or year from now wants to know what other cases settled for to try to determine the value of those or what would be a fair settlement in their case rather than just having to try the case. My general rule is that I do not agree to confidentiality in most cases. I get in disagreements with the opposing party on confidentiality and try to stick to my guns on that. I think it is really in the interest of the public to know when a tortfeasor pays money to settle a claim. Plaintiffs have a hard enough burden to prove and win their case without having additional confidentiality hampering them.
Further, we have seen, glaringly, what confidentiality in the sexual assault context can foster. High profile and rich serial sexual harassers and abusers can get away with terrible things for decades without being called to account. They or their companies pay big money for silence from those who bring claims against them.
Then the assault continues on unknowing victims. Having these things public warns the next victim and dissuades bad conduct. A company is not going to keep manufacturing a defective product or continue to employ a serial sexual assaulter or harasser if that knowledge was public. If you are going to agree to confidentiality, then what kind? just the amount of the settlement or the underlying facts? mutual non-disparagement provisions? If there's a breach, is it the whole amount of the settlement or a portion?
Some lawyers agree to confidentially on most or all cases and most agree to confidentially on something. If a defendant is going to offer and pay enough money for confidentiality, they can get what they pay for. And if the client understands and agrees, lawyers should not get in the way.
We are proud to represent Eric, as well as his daughter Rylee, who unfortunately were both injured in a motor vehicle accident in Franklin County, Illinois, on September 4, 2019, despite riding in separate vehicles at the time of the accident.
Both vehicles were stopped as the result of road construction on I-57, when a driver rear-ended Rylee's vehicle with such force it pushed it into Eric's vehicle. Rylee aggravated a pre-existing shoulder problem and ended up needing arthroscopic surgery to repair a torn ligament. We settled her claim for $106,500.
Eric's injuries were unfortunately more extensive than Rylee's, and he suffered severe neck and lower back injuries. Eric ended up suffering disc herniations in his cervical spine and tears in his lumbar spine. Eric received treatment for his injuries at the Orthopedic Center of St. Louis, including epidural injections, and ultimately, a two-level disc replacement in his lower back.
His medical bills total more than $200,000, and he has also lost wages as a result of his injuries. According to his surgeon, Eric will also eventually need a future surgery on his lower back to further treat his injuries.
The at-fault driver had insurance coverage of $250,000 per person, $500,000 per accident, and his insurance company paid the $250,000 policy limit for Eric's claim.
Fortunately for Eric, he also had an underinsured motor vehicle policy on his vehicle, which provides for coverage in circumstances like these, when his damages exceed the policy limit for an at-fault driver. Eric's underinsured coverage provides for $1 million in underinsured coverage.
His underinsured motor vehicle claim is ongoing and we are fighting hard to make sure Eric obtains a recovery that will help him through this difficult time and recovery. When purchasing insurance for yourself and your family, please keep in mind the importance of purchasing additional coverage to protect yourself and your family in cases of catastrophic injury. This additional protection can make a significant difference in your life if you ever need it.
Some states require underinsured motorist coverage to be automatically included in policies, but Missouri does not have such a requirement. Illinois requires underinsured motorist coverage on policies exceeding the state-minimum $25,000 limit. If you are unsure as to whether your policy includes underinsured motorist coverage, contact your insurance agent and discuss the matter with them.
Genavieve obtained a $69,000 settlement in a car accident case for her client Brandon where there was less than $14,000 in medical billing and approximately $5,500.00 in lost wages.
Brandon was primarily treated on a lien basis meaning that his medical expenses were not paid until we obtained a settlement. This is common practice for clients that don’t have health insurance. We were also able to negotiate with the medical providers and we were able to reduce his medical bills by over $5,000.
After our fee and paying his outstanding medical expenses, Brandon received a check for over $36,500 of tax-free money. Brandon netted approximately $31,000! Brandon suffered a concussion and a neck strain. After the accident Brandon had consistent headaches, trouble with memory, dizziness, trouble sleeping, and loss of feeling in his hands.
At Burger Law, we know how to add value to your claim and persuade insurance companies to compensate for concussions fairly. Injury claims involving concussions can be difficult, because oftentimes there is no objective evidence of injury, the treatment is sparse, the bills are low, and insurance adjusters disregard your client’s subjective complaints of memory loss and headaches.
It is crucially important for a concussion patient to be evaluated by a neurologist. Concussions cannot be diagnosed through X-rays or MRIs. Insurance adjusters tend to discredit symptoms that are only based on what a patient says, such as memory loss or headaches.
However, a neurologist will utilize specialized cognitive testing that leads to the best care for your client AND that will help convince an insurance adjuster (or jury!) that the concussion is legitimate. Burger Law assisted Brandon in coordinating his appointment with a neurologist, who diagnosed him with post-concussion syndrome.
The demand letter in these cases is also uniquely important. A concussion is a type of mild “traumatic brain injury.” The phrase “traumatic brain injury” tends to evoke more of a response from insurance companies than just “concussion,” so this terminology was used in the letter.
Since the bills were not very high, Genavieve emphasized the severity of the injury in a way that is not captured in the records. She described the difficulties Brandon experienced in detail, such as memory lapses, headaches, difficulties with word retrieval, critical thinking, and attention deficits, and illustrated how they interfered with his daily life.
Burger Law knows how to maximize settlements in these complex head injury cases. Call us today at [dynamic-phone-number] or contact us online for a free consultation.
We are pleased to announce a great CLE about a month from now. We have worked really hard to adapt to the pandemic with zoom depositions and mediations, and great settlements, that we thought we would teach other lawyers all we have learned.
We have been really busy at the firm and at home. Also below is a discussion of how to safeguard a child's money in a settlement, videos of a great client and an update on my bees – which made it well through the winter.
Burger Law is hosting a virtual Zoom CLE on April 15. As usual, we will have nuts and bolts presentations with robust written materials. I will present on how to conduct advanced Zoom depositions and mediations from 11 to 11:50 a.m. I’m excited to teach all the tricks I’ve learned over the last year for conducting successful virtual depositions and mediations.
My presentation will include tactics I use to nail liability and present expert medical testimony. I will also show actual video examples from depositions I’ve done during the pandemic. Genavieve and Tyler will follow my presentation with a session on advanced demand and negotiation tricks. They will discuss successful strategies they’ve used to obtain great settlements for high policy limits and 15 times special damages.
All materials are available here: CLE.
I talked in my last newsletter about a large minor settlement in a medical malpractice case and what to do about confidentiality. The second issue that arises in these types of cases is what to do with the settlement money. RSMo. § 507.150 says that if the net amount to any minor over $10,000, a conservatorship or guardianship, restricted accounts or other safeguard is mandatory.
The statute reads:
Bond of person acting for infant, when — effect of failure to give. — 1. Before a next friend or guardian ad litem can receive or receipt for any money or property, personal or real, and before he can acknowledge satisfaction or discharge of any judgment, he must execute a bond to such infant; except, that no bond shall be required if the total value of the property or money, exclusive of expenses and fees approved by the court, is not in excess of ten thousand dollars and all of the money or property is to be turned over to the infant or his parent.
All minor settlements have to be approved by Courts in Missouri and Illinois. There are a couple of ways to safeguard the settlement money for the child.
First, you can file a conservatorship where the Court takes jurisdiction over the settlement funds until the minor reaches the age of 18. Another option for some judges, for a smaller settlement amount, will put the money in a restricted account so the money can only be withdrawn for the benefit of the minor or by Court approval or Court order.
The third most common way to handle this is to set up a structured settlement. This is the purchase of an annuity from a well rated and well bonded insurance company which agrees to payments in the future after the child reaches the age of 18.
Typically, we set this up for some payments for college and then space out payments much later after the age of 18. I find that very few 18-year-olds make smart decisions about money, so I encourage my clients to extend those payments out further in the future.
This structure checks a couple of boxes also. It ensures the money goes solely to the use for the minor and when the minor reaches the age of majority.
Second, it makes the interest on the money non-taxable. Personal injury settlements are nontaxable and even if the money is saved in a structure and earns interest on that when it is eventually paid to the recipient, that is still not a taxable event. So, no income or any taxes are charged on that amount.
I always use my friend Tom Parmelee for structured settlements. Call him at 314-768-7632. He and his brother have been doing this for decades and are great people. We work with the parents to make sure the payment schedule is what they want for their child. As always, call [dynamic-phone-number] with any questions about these issues if you need help.
My hives made it well through the winter. The temperature has been a little up and down, so I think they will start increasing their size next week. I opened up the hives and got them ready for spring recently.
I have had a bunch of important depositions in three different cases in the last three weeks. All by Zoom – a change I hope stays with us after the pandemic is over.
For a lot of depos I do, I am not that worried about questions or preparation as I have done similar ones many times. But with depos that can really make a case, I still get anxious. These usually are of the main defendants in big exposure cases.
On the one hand, I get a little tired of worrying about not messing up – which can be stressful. But that's part of the job. On the other hand, it’s great that after almost 30 years of practice, I still care enough to want to do a great job in every depo.
My long-time paralegal Casey and I have a joke where we say I need to go win the case in these types of depos. That's all, no pressure – just win the entire case in one depo. But again, that's the job. And, I really love it and am lucky to be able to do what I do.
Two Fridays ago, I deposed a construction company "safety" representative. The company's driver went across the center line, crashed into my client's car, and killed him and his passenger. It's a sad case. The deponent was their ‘pro’ testifier who tried to wiggle away from the company’s conduct.
Before I continue my story, consider attending our CLE on Zoom depositions and getting great results in the pandemic.
Burger Law is hosting a virtual Zoom CLE on April 15. As usual, we will have nuts and bolts presentations with robust written materials. I will present on how to conduct advanced Zoom depositions and mediations. I’m excited to teach all the tricks I’ve learned over the last year for conducting successful virtual depositions and mediations. My presentation will include tactics I use to nail liability and present expert medical testimony. I will also show actual video examples from depositions I’ve done during the pandemic. Genavieve and Tyler will follow my presentation with a session on advanced demand and negotiation tricks.
All materials are available here: CLE.
In the depo, I was able to show that their training was minimal and not documented, they had little oversight of drug use of their driver and had about 1/5 of the drug test results they should have had in his file. No investigation of what happened or how their driver, who tested positive for marijuana, was a daily pot user, had it all over social media, but they claim they did not know.
That was a depo where the company designates a representative to testify about certain matters on their behalf. And the great thing about zoom is I could be anywhere to do it. I had planned to be there live (first live depo in a year) - but then decided to travel to New Orleans to visit my oldest son in college.
I got to enjoy the weekend with my family while doing the depo from a hotel conference room for a few hours. I had another big one of those three Fridays ago and then the following Tuesday. We are pursuing a claim against the State of Wisconsin similar to the one we had in Missouri for Correctional Officers not paid for pre- and post-shift activity.
In those depos (for two days) we successfully checked boxes on class certification and liability. They admitted almost all corrections officers and sergeants (our class) (99%+) had to do pre and post shift activity without pay per uniform department wide policy.
They would never pay for it and had prior complaints about it. Didn’t treat anyone different. Of course, none of this is written down in policies. Even though they promised their employees they would comply with FLSA. They agreed the pre and post shift activity was pretty important too.
But boy was it a lot of work, my office organized all the documents with the help of anywhere sit paralegals. We identified all the good exhibits we have so far in the case – about 50 documents out of 20,000 produced. Interestingly, the Wisconsin DOC pays for health screening at the beginning of shifts. But isn’t regular pre and post shift activity more connected to their job than corona testing? They agreed it was for health and safety - as are all the previous shift activities. Once this screening is over, they will go back to not paying for any of it.
The third big depo was last week – it was of the top officer of a local correctional institution where my client was an inmate who was injured. I do not want to go into too much detail, as the case is pending, but the deposition went really well and the witness agreed with almost all of the opinions of our expert.
But that good result was only after I had poured over prior notes and depos to get the best result possible. And, again, I had to synthesize a bunch of documents down to just the key ones.
Stepping back and reflecting, I enjoy seeing myself rise to the challenge of establishing great evidence in these cases – i.e., going a long way towards winning the case. We accomplished that in all three. And I laugh at myself for getting nervous – cause after they are over, I appreciate how hard I worked to get them to go well. I wonder why I get anxious about them. I should know they will go well and not stress – but that’s the way it goes.
I also laugh at myself for, again, learning the lesson to work hard and trust my abilities as a trial lawyer. How lucky am I to be able to help my clients like this? And have fun and assess how I handle these situations all at the same time.
Negligent entrustment is a variant of the common law tort of negligence. Hays v. Royer, 384 S.W.3d 330, 333 (Mo. App. W.D. 2012). It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor if that would create an unreasonable risk of harm to others.
The essential elements of a negligent entrustment claim are:
To assert a successful claim of negligent entrustment, the defendant must have an ownership interest in the vehicle (or other thing) entrusted or must have authority to control the use of it.
“Negligent entrustment occurs when the defendant ‘supplies’ a chattel to another” with actual or constructive knowledge that the entrustment creates an unreasonable risk of injury.
A “supplier” means someone who “gives possession of a chattel for another’s use.” Missouri court's apply negligent entrustment but have not used it when a parent entrusts a vehicle owned by an adult child. We are trying to do this in a case. Other states have done so with inconsistent results:
In every Missouri decision recognizing a viable negligent entrustment claim, the defendant has exercised control of the chattel, or at a minimum has had the capacity to exercise control over the chattel either before and/or after the purported “entrustment.” See Hays, 384 S.W.3d at 337 (stating that the plaintiff must show that the entrustor’s right of control was superior to that of the entrustee’s).
The parent/adult child relationship between parent and adult child simply cannot serve as a substitute for the adult child’s lack of authority or dominion over the vehicle. Wish us luck.
Thanks for reading.
