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Exceptions to Every Rule – Under Kansas Law, Parties Can Contractually Agree to Shorten the Statute of Limitations

What most everyone knows is there are fixed time periods in which you have to file a lawsuit. Further, what most everyone knows is if you don’t file your lawsuit within that time period, it is forever barred.  For example, Kansas law (K.S.A. 60-511) provides a five-year time limit for filing any lawsuit based on an agreement, contract or promise in writing.  So, if you have a dispute arising out of a written contract or agreement, the time to file any lawsuit is five years, right?  Not always.  If the written contract or agreement provides for a shorter time period, the lawsuit must be filed within that time.

In 2013, the Kansas Supreme Court handed down the case of Pfeifer v. Federal Express Corporation.  In that case, the Court held parties can enter into contracts which shorten the time period for filing lawsuits.  Prior to the Pfeifer case, it was unclear whether parties in Kansas could contractually agree to shorten the time period to file a lawsuit.  Shortly after Pfeifer, the United States District Court for the District of Kansas was faced with a question relating to enforcement of a provision in an insurance policy limiting the time in which to file a lawsuit in Infinity Energy Resources v. St. Paul Fire & Marine Ins. Co.  The insurance policy in that case required the lawsuit to be filed within two years.  Given the lawsuit was not filed within the two year time limit, the Court held the case was barred.  More recently, on May 27, 2014, the United States District Court for the District of Kansas handed down an opinion in B.S.C. Holding, Inc. v. Lexington Ins. Co.  In that case, the insurance policy required the lawsuit to be filed within one year.   Again, given the lawsuit was not filed within the required time period, the Court held the case was barred.

What these cases establish is there are exceptions to almost every rule.  So while Kansas law may specify a five-year time limit for filing a lawsuit based on a written contract or agreement, if the written contract or agreement contains a shorter time period, Kansas courts will enforce it and require the lawsuit to be filed within the shorter time period.

If you get into a dispute involving any type of written document, including a dispute with your insurance carrier arising out of your insurance policy, the first thing you should do is read the document thoroughly to determine if there is a specified time period in which any lawsuit must be filed.   If there is, based on recent Kansas law, the lawsuit must be filed within that time period or it is barred.  And, if you get into a dispute involving any type of written document, it would be prudent to consult an attorney to ensure you know when any lawsuit must be filed because if you miss that deadline, the consequences can be severe.

Merry “Maggie” Tucker

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Bullying and Other Off-Campus Student Speech — The Precious Position of School Districts

Growing up in the 1970’s, the kids I knew, including myself, felt safe at school.  It never crossed our minds a student might bring a gun to school.  We didn’t have metal detectors.  Back then, no one sent text messages or used social media to distribute inappropriate information because it simply didn’t exist.  The most we did was pass notes in class possibly talking about someone we didn’t like for one reason or another.  We didn’t make racial or sexual comments in our notes.   It just wasn’t something we did.  And, if such a note had been intercepted by a teacher, we would have been sent to the principal’s office for a spanking and our parents notified.   Back then, I wouldn’t have been able to tell you whether getting the spanking or my parents finding out I had done something like that would have been worse.  In retrospect, I know my parents finding out would have been worse.   At least the spanking would have been over and done.

Times have changed and not always for the better.  While school should be a place to feel safe and students should be able to learn in a secure environment free of bullying and harassment, we know that is becoming more and more difficult.   One reason is modern technology.

Over the last few years, there has been a great deal of media coverage about school-related incidents.  We have heard stories of young girls sending text messages containing risqué pictures to their boyfriends who then forward the messages and pictures to other students when they are no longer in the relationship, with the girls being subjected to taunts and other inappropriate and lewd comments by fellow students.  We have also heard stories of students using their social media accounts to rant and engage in inappropriate diatribes about fellow students, who are then mocked and teased at school.   And, we have too often heard stories of student-on-student school shootings with information coming to light after the fact about online harassment that may have led to the shooting.

What has become clear from the media coverage is bullying can take many forms.  What is equally clear from the coverage is the consequences of bullying are far reaching, including suicides by students who have been taunted and shootings perpetrated by students who have been mocked and teased.

In Missouri, bullying is defined to mean “intimidation or harassment that causes a reasonable student to fear for his or her physical safety or property.  Bullying may consist of physical actions, including gestures, or oral, cyberbullying, electronic, or written communication, and any threat of retaliation for reporting any such acts.” R.S.Mo. 160.775.2.  To address the problem of bullying in schools, the Missouri legislature has placed requirements on school districts.

Each school district in Missouri is required to have an anti-bullying policy.  The policy must be founded on the assumption all students need a safe learning environment.  The policy must treat students equally and cannot contain specific lists of protected classes of students who are to receive special treatment.   The policy must contain a statement of the consequences of bullying.  Additionally, the policy must require district employees to report any instance of bullying of which they have first hand knowledge and must address training of employees in the requirements of the policy.  R.S.Mo. 160.775.3 and 160.775.4.  Similarly, the board of education of each Kansas school district must adopt a policy to prohibit bullying on or while utilizing school property, in a school vehicle or at a school-sponsored activity or event.  Further, the board of education must adopt and implement a plan to address such bullying and the plan must include provisions for the training and education for staff and students.  K.S.A. 72-8256 (b) and (c).

What is clear is Missouri school districts are required to be both proactive and reactive.  They must act proactively to prevent bullying.  And, they must also be reactive if they become aware bullying is taking place.  But what happens if a school district becomes aware bullying or some other concerning behavior is occurring away from school?  Does the school district have the ability do anything about it at school?  In Missouri, it appears the answer is yes.

In S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. 2012), the Lee’s Summit R-7 School District issued 180 day suspensions for two brothers.  The brothers had created a website called NorthPress which contained a blog.  According to the brothers, the purpose of the blog was to discuss, satirize and vent about events that occurred at school.  While they used a Dutch domain site which prevented U.S. users from locating it via a google search, anyone could access it if they knew the website address.   The brothers made posts on the blog that contained a variety of offensive and racists comments as well as sexually explicit and degrading comments about a female classmate they identified by name.  The blog also discussed fights at school and mocked black students.  The parties disagreed as to the extent to which school computers were used to create, maintain or access the site and blog.  While the brothers testified they only intended their friends to know about it and only told a few friends, the student body at large learned about the website.  Once school administrators learned of it, they suspended the brothers for ten days.  Following a hearing, appeal and second hearing, the school district suspended them both but allowed them to enroll in another school during the suspensions.  As a result, suit was filed and the brothers moved for a preliminary injunction to lift the suspensions.  After a hearing, the district court granted the preliminary injunction and ruled the brothers could return to school.   The School District appealed.

On appeal, the brothers argued off-campus speech was protected and could not be the subject of school discipline, even if directed at the school or specified students.  In addressing this argument, the Court noted that in the school environment, some speech is not protected by the First Amendment and school officials may lawfully punish some forms of unprotected student speech.   “Under Tinker, conduct by the student, in class or out of it, which for any reason-whether it stems from time, place or type of behavior-materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech.”  “Thus, student speech that causes a substantial disruption is not protected.”  The Court noted the district court found NorthPress was “targeted at” the school and so Tinker was likely to apply.  Further, the Court noted the district court found the posts caused substantial disruption and so the brothers were unlikely to succeed on the merits under Tinker.  Later in the opinion, the Court noted, “the specter of cyber-bullying hangs over this case.  The repercussions of cyber-bullying are serious and sometimes tragic.  The parties focus their arguments on the disruption caused by the racist comments, but possibly even more significant is the distress the Wilsons’ return to Lee’s Summit North could have caused the female students whom the Wilsons targeted.”  In closing its opinion, the Court concluded the entry of the injunction was in error, vacated it and indicated it was leaving to the district court the unenviable task of fashioning a remedy several months after the entry of the judgment and the brothers return to school.

What the opinions makes clear is School Districts do have power to address off-campus speech and bullying under certain circumstances.  Even so, School Districts are in the no-win position of potentially being sued by students who claim their off-campus speech is protected such that they cannot be disciplined for it or being sued by the victims of such students when the School District does not take what they believe are appropriate steps to address the off-campus speech.

Merry “Maggie” Tucker

Crash! What to do if you’re involved in a non-injury car accident.

Almost everyone understands the basics of what to do if you are involved in a non-injury car accident: (1) exchange insurance and contact information with the other driver, (2) make a police report, and (3) contact your own insurance carrier.  However, after doing all that, what else should you be doing?

In cases where the other driver is clearly at fault, and the accident only involved property damage to your vehicle, there are still things you should be doing.  First, even though you might initially feel as though you are not injured, it is not uncommon to have at least some mild soreness or aches within the hours or days following the accident.  If that is the case, you should seek medical attention as soon as possible.  Seeking medical treatment will at least document the symptoms you are experiencing, even if they ultimately resolve without further treatment.

Second, you need to secure your own repair estimates from repair shops you trust.  Often times, this can be accomplished even before the other driver’s insurance company has contacted you to set up a time to inspect your vehicle.  Obtaining this information early in the process gives you the benefit of knowing a general range of the amount of damage your vehicle sustained.  In cases where the amount of the damage may lead to the other driver’s insurance company declaring your vehicle “totaled”, knowing the general amount needed to repair the vehicle can also help you assess whether you need to develop additional evidence regarding the value of your vehicle. Additionally, you have the right to have your vehicle repaired by whomever you select, and you are not required to use the “preferred” or “partner” repair shop for a particular insurance company.

Third, you need to develop evidence regarding the value of your vehicle.  If the other driver’s insurance company is considering declaring your vehicle “totaled”, in addition to assessing the cost to repair your vehicle they will also establish a value for your vehicle.  Different insurance companies use different computer programs to establish this value, but you are not limited to what the other driver’s insurance company says your vehicle is worth.  There are many resources on the internet which can help you determine a value of your specific vehicle such as NADA (www.nadaguides.com), Kelley Blue Book (www.kbb.com), CarGurus (www.cargurus.com), as well as more common sites like www.cars.com and www.carmax.com.  Additionally, you can look at classified listings and Craigslist in your local area to see whether there is a vehicle similar to yours being offered for private sale.

Fourth, document your communications with the other driver’s insurance company.  Communicating by email where possible is quite helpful in that it creates a written record of your communications.  Even in situations where you have communicated in person or by telephone with the other driver’s insurance company or adjuster, send a follow-up email summarizing the main points of your conversation.  Doing so may prove extremely valuable in the future if the matter is not able to be resolved.

Finally, if you have questions about the process or your legal rights, you should consult with an attorney immediately to ensure you completely understand all issues involved.  In virtually all cases, the other driver’s insurance company will ultimately ask you to sign a document to either agree to a settlement amount and/or release any and all claims you may have arising from the accident.  It is critical that you fully understand your rights before you sign anything the other driver’s insurance company puts in front of you.

Larry Nordling

Kansas Reinforces When Social Security Set-Off Applies to Workers’ Compensation Benefits

In the case of Farley v. Above Par Transportation and National Interstate Ins. Co. (decided September 5, 2014), at the age of 64, Farley started working for Above Par Transportation as an over-the-road trucker driver.  Farley’s first day of work was on October 20, 2009, and he suffered injuries to his left leg and back on October 29, 2009.  After a lengthy rehabilitation, Farley finally reached maximum medical improvement (MMI).

Prior to the regular hearing, the report of Farley’s retained rehabilitation consultant indicated a gap in employment from May, 2008 to October, 2009 when Farley started working for Above Par.  The report also indicated Farley had attempted to obtain Social Security disability benefits, but his application was denied in 2008.  During the regular hearing, Farley’s testimony acknowledged he had been receiving social security and had continued to work in the open labor market.

In addition to establishing Farley’s permanent partial general work disability, the ALJ also found Farley never retired, but instead, had just chosen to receive Social Security benefits while continuing to work.  Based on that finding, the ALJ determined the offset for Social Security was mandated by K.S.A. 44-501(h) and the decision in McIntosh v. Sedgwick County, 32 Kan. App. 2d 889, Syl. ¶ 3, 91 P.3d 545, rev. denied 278 Kan. 846 (2004)(holding that the offset applied to compensation awarded to a worker who was drawing Social Security at the time of the injury but had not retired before the injury).

Above Par challenged nearly every aspect of the ALJ’s award except for the Social Security offset, although it still addressed the offset issue including argument and authority contending the holding in Dickens v. Pizza Co., 266 Kan. 1066, 974 P.2d 601 (1999) was bad law.  Farley responded, arguing Dickens was still good law, but the ALJ had misapplied it.  Farley cited no evidence in the records which contradicted the ALJ’s finding that Farley had never retired.  The Board found there was “no evidence the claimant has ever retired”.

The Court of Appeals panel in Farley noted the Court in Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 286, 241 P.3d 15 (2010) confirmed the Dickens/McIntosh approach to K.S.A. 44-501(h).  Simply put, if a claimant is injured before he or she retires, the employer is entitled to the statutory reduction, as an injured employee is not entitled to recover both retirement benefits and workers compensation benefits beyond the value of the functional impairment.  McIntosh, 32 Kan. App. 2d at 894, 897-98.  Conversely, if an employee retires and then returns to work to supplement his or her income, the reduction does not apply, as the employee’s receipt of both workers’ compensation benefits and social security retirement benefits are not duplicative.  Dickens v. Pizza Co., 266 Kan. 1066, 1071, 974 P.2d 601 (1999).

For a complete copy of the opinion, click here.

 Larry Nordling

Six Rules For Saving a Working Mom’s Sanity

If you are a working mother reading this, I am sure you can relate to the feeling some mornings when you get to the office, you feel like you have already worked an entire day.  In fact, I have worked several hours before I get to the office – it’s just not the type of work working mothers get paid to do.  On the weekends, there is no time to rest, relax and recover from the hectic workweek.  Instead, I am cleaning the house, paying bills, doing more laundry, running errands, going to the grocery store, taking care of extended family and attending soccer games, all the while trying to make my family a priority.

I have a full schedule.  Like me, working mothers know it’s a full-time job at home and a full-time job at the office.  So, how do we do it?  How do working mothers juggle and keep so many balls in the air?

For me, there are some basic rules which allow me to do what I do while keeping my sanity.  These rules work for me, and perhaps they will work for you.  I am sharing them so other working mothers can see they are not alone and to perhaps share a few tips that may make life a little easier.

  1. Do Not Procrastinate

We can all procrastinate at times.  Whether it’s doing the laundry or the dishes, we put it off.  Why?  Do we really gain anything by putting it off?  Personally, I have found the only thing I gain by procrastinating is more work.

I try not to procrastinate.  At home, when I have something which needs to be done, I do it when I see it.  For example, I do a little laundry every evening.  On those rare occasions when I do procrastinate, I always regret it later.  A small pile of laundry turns into heaps and mounds of laundry, which I have to do on the weekend and which takes hours to complete, in addition to all the other things I have to get done.  Also, when I cook, I clean up as I go.  I do this because I cannot enjoy my meal while stacks of dirty dishes are staring at me.  And, after my stomach is full, I find that I am just not motivated to do the dishes.  By learning the hard way over the years, I have realized procrastination just makes more work for me in the end–it does not offer me any benefit.

I also apply this rule at the office.  At work, I am one of those people who get things done ahead of time.  I do not put things off because I can’t.  Why?  I cannot predict when my son will wake up sick and be unable to go to school. Or, I cannot predict when I will get that call in the middle of the day to pick my son up from school because he is sick.  It always seems like he gets sick at the most inopportune times for my work schedule. Thus, the primary reason I don’t procrastinate at work is simply because I can’t.  The second reason I don’t procrastinate at work is because I realize it affects other people in my office.  For example, if I procrastinate, then my secretary has to rush around trying to get done today what could have been done yesterday, or the day before, or the day before that.  This makes for one unhappy and stressed secretary.

  1. Plan and Communicate as Much as Possible

As working mothers, we cannot plan everything; however, we can make an effort to organize our time.  It is critical we make the best use of our time and communicate with others so everyone is on the same page.  For me, when I am organized I seem to be able to accomplish more with less stress on everyone involved..  Additionally, when I communicate my plans, it just helps make sure everyone is moving in the same direction toward a common goal.

At home, my husband and I discuss our schedules for the week and the weekend and determine how our respective schedules affect our family time together.  Admittedly, my husband gives me some grief about planning things because he says I am not “living in the moment.”  To an extent he is right; however, he also recognizes our lives are less hectic with proper planning.  For example, one weekend my son had a soccer game at 9:00 a.m.  On Friday, I knew I needed to go to the bank, but I didn’t go–breaking my own rule not to procrastinate.  This meant I had to get everyone up and moving early Saturday morning so I could get to the bank and we could get to the soccer game on time.  Unfortunately, the alarm clock didn’t go off as planned.  Luckily, I happened to crack an eye and glanced at the clock at 7:52 a.m.  At that point, I literally jumped out of bed, tearing off the comforter, while yelling for everyone to get up, get in the shower, get something to eat, informing them that I would be back by 8:30 a.m. to go to the game.  By the look on the faces of my son and my husband, who are not morning people to begin with, I could tell I had started our weekend off on the wrong foot.  When I arrived back home at 8:30 a.m., I was still in a hurry and in “Go! Go! Go!” mode, but my son and husband were eating their Coco Puffs while watching cartoons.  My husband looked at me and said while he does hate all my organizing and planning, it certainly does make life less stressful for everyone.  For me, planning and communication make life at home less stressful and more enjoyable.

Planning and communication also make life at the office less stressful and more enjoyable as well.  Before I leave work every evening, I plan ahead by making a list for the following day of things I need to accomplish and also things I would like to get done.  While the things I need to accomplish get completed, I don’t always get everything on the “want to do” list completed.  That’s just the nature of the beast.  But, planning ahead and making a list helps me focus my attention and better allocate my time.  I also communicate with others to let them know when I will be gone from the office for personal reasons and enter these dates on my calendar, in addition to my work related activities.  Communicating with those with whom I work and making sure people know where I am and how they can reach me helps make sure things are covered and flow smoothly for everyone involved.

  1. Clean Out the Clutter

Whether we want to admit it or not, we all have clutter we do not need.  Why do we keep the clutter?  Does it make us feel better or give us a sense of security?  Clutter just makes me feel overwhelmed and out of control.

I am not a pack rat at home.  At least once a year, I go through the house collecting things we do not use for donation to Goodwill.  In addition to the once-a-year house purging, I also take time to keep things organized and tidy on a daily basis.  I cannot tell you how much better my mood is when my house is semi-organized and tidy versus when it is in total disarray.  When my house is out of control, I feel out of control.

I feel the same way at the office.  When my office is out of control, I feel out of control.  I don’t like to walk into my office in the morning and see my desk covered with papers and files.  It makes me feel like I have lost the battle before I even begin to fight.  Seeing piles or stacks on my desk makes me feel overwhelmed and is just not the way to start the day.  So, to deal with this, I clean up and organize my desk before I leave every evening.  I do not routinely keep files in my office.  I get rid of them at the end of the day.  I take any filing or dictation to my secretary.  It only takes a few minutes to do these things at the end of the day so when I walk in the following morning, I do not feel immediately overwhelmed with the tasks of the day.  I also ensure my files are organized when they are placed back on the shelf.  I get rid of copies of the same document.  I do not keep “working files” in my office.  Everything important should be in the file so that all office personnel have access to it.  Keeping “working files” simply adds to the unnecessary clutter.

  1. Try to Be Realistic

As working mothers, we have to be realistic about what we can do in the time we have.  My mother used to often say to me “there are only so many hours in the day.”  Now I realize how true those words really are.

This is a big rule for me.  While I do a lot, I cannot do it all at home all the time, in addition to working full-time outside the home.  I have a great husband who is very helpful but he, too, has a full-time job.  Even when my husband helps, there are still things I, as mommy and wife, have to take care of and do.  One example is cleaning.  My husband believes if the house is picked up and looks clean, it is clean.  I, on the other hand, know every so often you really do need to do some deep cleaning.  However, while I keep the house clean and tidy daily, I realize I do not have time to do the deep cleaning.    So like perhaps many of you, we have used a cleaning service to do it.  I have learned it does not matter where the help comes from as long as it comes.  Like my mother, I have grown to be realistic and prioritize what needs to be done.  I have realized there are only so many hours in the day.

At the office, being realistic is just as important.  I work with a group of great male attorneys.   We joke at our office that I need a wife at home and I do.  I have always said I am unable to do what my male counterparts in the office do.  For example, they get to the office early.  I don’t get to the office early as I take my son to school and then head to work.  When I say I cannot do what my male counterparts do, I am not complaining, looking for sympathy or suggesting working mothers are not equal to their male counterparts.  I am simply being realistic about what I personally can and cannot do and recognizing what working mothers do may be different from what working fathers do.

Learning that it is okay to ask for help at the office is important.  It does not mean working mothers are weak.  It simply means we can honestly evaluate what needs to be done and realize we cannot do it all by ourselves.  Just as important is the confidence to say “no” or “I’m sorry, I can’t.”   Everyone has a tendency to spread themselves thin, especially working mothers.  We cannot be everything to everyone.  As other working mothers may have realized, trying to be everything to everyone keeps you from being the best for anyone.  We have to accept limitations and place limitations and boundaries on what we can and cannot do, both at home and the office.  I have realized I am only one person and I cannot do the job at home or the office of ten people.

  1. Keep Your Word

It sounds so easy–keep your word.  Yet, sometimes it can be so hard.

As I leave for work on any given day, it never fails my son uses his sweetest voice and smiles, along with “please, please, please,” to ask if we can go do something or go get something in the evening after I get home from work.  Right now, my son is on a miniature LEGOS figurine kick.  In order to appease my son and get him out the door on time for school in the morning, I occasionally break down and I tell him “yes.”  When I get home in the evening, it is late and I am tired and hungry and just want to sit down; however, I am quickly reminded of my promise.  Because of that promise, I change my clothes, grab a piece of fruit and hurry off to the toy store to find another LEGOS figurine.  You ask why I do it?  I do it because I gave my word.  Even though my son is young, I want him to grow up knowing  when mommy gives her word, she keeps it.  I want him to grow up knowing keeping his word is important.  I try very hard not to make unrealistic promises or those I am not willing to keep.

The same applies at the office.  In the last few years, I had an opportunity to work on a case where opposing counsel had a reputation of being difficult.  I encountered that difficulty early on and continually during the case.  We had heated disagreements over many things; however, when the case was finally resolved, opposing counsel sincerely told me I drove him crazier than any other attorney with whom he had worked because I was more detail-oriented than anyone else he knew.  Then, he said if he were ever personally sued and needed an attorney, he would be pleased to have me represent him.  I took that as a truly sincere compliment.  I believe I received the compliment because I was always true to my word.  While opposing counsel may not have always liked what I had to say or the position I took, he always knew when I told him something, it was true and he could believe it.  I keep my word because my word is the only thing I have at the end of the day.  I can only imagine how difficult it would be to practice law in our community if I had a reputation for being untrustworthy or unreliable.

  1. Keep a Sense of Humor

Even when I do my best to complete tasks on time, plan, and organize, things will still happen I cannot control.  When this happens, the natural tendency may be to get upset and stressed.  Instead, I try to smile, keep things in perspective and find humor in the situation.

Recently, I was running short on time to get to a meeting.  That morning I was preparing breakfast for my son.  I distractedly reached in the refrigerator for milk and dropped it.  You can guess what happened.  The carton hit the floor and exploded with milk flying everywhere—the floor, refrigerator, cabinets, me and my son.  I had to take a moment, a deep breath and say to myself there is nothing I can do about this.  At that point, I looked at my son, covered in milk, who then began to laugh hysterically which lightened my entire mood.  It really turned out to be a great morning.

Life happens.  We have to try to appreciate it all, the good and bad, and roll with the punches.  Whether it is spilled milk, or an aggravation at work, I have learned it is best to try to not take life too seriously and keep a sense of humor.  I will admit I have tried to control everything in the past.  I have tried to make sure everybody likes me.  Even with all my hard work, unexpected things still happened and I could not make everyone like me.  I have learned the only thing I can really control is me and the only person who really has to like me is me, my husband and son.  I try to conduct myself at home and the office in a way that would make my family proud.  I am not saying I have never lost my cool and done or said things I later wished I had not done or said; however, I continually strive to be better.  I think, as working mothers, the most we can ask of ourselves is we strive to do and be the best we can for ourselves, spouses, children, parents, friends, employers and clients.  Once we do that, there is really nothing more we can ask of ourselves or that anyone else can ask of us.  We have to learn to accept our limitations and embrace our imperfections.

So, these are my rules.   I try to apply these rules every day at home and the office.  These rules have become how I live my life and almost occur unconsciously. They work for me.  I hope they can help other working mothers or can inspire other working mothers to find their own way to balance their home and work lives.

Merry “Maggie” Tucker

Beware of Dog! Every Dog Does Not Get One Free Bite in Missouri.

Prior to the enactment of Missouri Statute §273.036 in 2009, when a dog bit someone, the dog owner would only be liable if (1) the owner knew of the dog’s abnormally dangerous propensities (under common law strict liability); or (2) if the dog/land owner knew or should have known the dog presented a foreseeable danger to the invitee (under premises liability law).  Under either circumstance, there needed to be some sort of notice of the dog’s dangerous propensity.  Although not completely accurate, people generally characterized the law as being the “one free bite rule”.  The enactment of §273.036 R.S.Mo substantially changed the law.  Missouri Statute   §273.036 states in relevant part:

The owner or possessor of any dog that bites, without provocation, any person while such person is on public property, or lawfully on private property, including the property of the owner or possessor of the dog, is strictly liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owner’s or possessor’s knowledge of such viciousness. . .

Accordingly, under §273.036 R.S.Mo, a dog owner will be liable for injuries caused by the owner’s dog if the dog bit someone without provocation, even if the dog had never bit anyone previously.

One critical issue is what is meant by “without provocation”.  The statute does not define “provocation” and there is no case law defining the term.  Webster’s defines it as (1) “the act of provoking: incitement” or “(2) something that provokes, arouses, or stimulates”.

In conclusion, when someone is bitten by a dog, depending on the circumstances, the dog does not necessarily get “one free bite” and the owner may be liable even though he or she was not negligent.

Coronado Katz LLC

Insurer Has No Duty To Defend Intentional Conduct

The Missouri Western District Court of Appeals recently held “[a]n insurer does not have a duty to defend a suit where the petition upon its face alleges a state of facts which fail to bring the case within the coverage of the policy.”  In Stanley Brand, M.D. and Bradley L. Freilich, M.D. v. Kansas City Gastroenterology & Hepatology, LLC and Travelers Indemnity Company of America (decided September 17, 2013), the court considered a case where Dr. Freilich and Kansas City Gastroenterology & Hepatology, LLC (KCGH) were alleged to have intentionally fired Dr. Brand to get Dr. Brand off KCGH’s group health insurance plan.  KCGH’s commercial general liability policy included an employment benefit provision which covered the employer’s negligence in managing health benefits.  Specifically, Dr. Freilich and KCGH presented Dr. Brand with two options: (1) execute an independent contractor agreement which, among other things, would effectively remove Dr. Brand from the employer’s group health insurance plan, or (2) be terminated.  Dr. Brand refused to sign the agreement and brought suit against Dr. Freilich and KCGH.  Dr. Freilich and KCGH notified Travelers, its insurer, about the lawsuit and Travelers denied a defense and indemnity after determining there was no coverage under the CGL policy for Dr. Brand’s claims because (among other reasons) they did not fall within the coverage provided in that the allegations did not allege a “negligent act, error, or omission” and did not result from the “administration” of Dr. Freilich’s “employee benefit program.”  Dr. Freilich responded to Travelers that one of the claims in the case was specifically pleaded as negligence claim, and further, the basis for the claims is Dr. Brand’s allegation that he should not have been terminated from participation in the insured’s health insurance plan.  Travelers stood by its initial denial of a defense and indemnity finding the act of terminating an employee would not constitute a “negligent act, error or omission” as set forth in the policy.

The underlying case proceed to a jury trial, which after some of the causes of action being either abandoned by Dr. Brand, or dismissed on motions for directed verdict by the trial court, resulted in the jury awarding Dr. Brand damages in the amount of $406,074 for wrongful discharge and $300,000 for negligence per se.  Post-trial motions reduced the total verdict amount to $430,746.  Both sides appealed, and the Western District affirmed the verdict on wrongful discharge, reversed the verdict on negligence per se due to the lack of a requisite statutory violation, and remanded for a new trial on the issue of punitive damages for wrongful discharge.  Following issuance of the Western District’s opinion, Dr. Freilich and KCGH filed an application for transfer to the Missouri Supreme Court.  While the transfer application was pending, Dr. Brand entered into a settlement agreement with Dr. Freilich and KCGH, purportedly pursuant to section 537.065, for the purpose of settling “all claims” and “nullifying the previous judgment entered…and any appellate ruling thereon.”  Pursuant to the settlement agreement, Dr. Freilich an KCGH agreed to pay $365,000 to Dr. Brand’s attorneys for Dr. Brand’s discrimination claim and $65,000 to Dr. Brand “for damages sustained as a result of Defendant KCG[H] and/or its agent’s negligent administration of an employee benefit plan.”  The parties further agreed to either dismiss the pending suit without prejudice or to transfer to the Missouri Supreme Court for the sole purpose of that Court remanding the Lawsuit to the trial court for completion of the settlement agreement, and upon either remand and/or re-filing, KCGH would consent to a judgment against it for $300,000 on plaintiff’s negligence per se claim only for KCGH’s negligent administration of an employee benefit plan.  The Missouri Supreme Court remanded the case, and the trial court entered a new judgment reflecting dismissal of all claims in the petition except for Court VI (negligence per se).  As to the negligence per se claim, the trial court made factual findings which appeared to be premised upon a claim of general negligence (a claim which did not appear in any pleading before the trial court), and then entered judgment against KCGH only for $300,000 plus interest.

Drs. Brand and Freilich then filed a separate lawsuit against KCGH and Travelers on the underlying judgment pursuant to both section 379.200 and a claim of bad faith refusal to defendant and indemnify.  Travelers moved for summary judgment on the ground it had no duty to defend because Dr. Brand’s lawsuit did not arise out of any negligent act, error or omission by the insured.  The circuit court granted Traveler’s motion finding the underlying lawsuit was based upon intentional and deliberate conduct.  Finding no duty to defend, the circuit court also found there was no duty to indemnify.

The concept of “if no duty to defend, there is no duty to indemnify” has long been known in Missouri, however prior appellate decisions have caused insurers significant pause when considering denying a defense.  An insurer’s duty to defend an insured “arises whenever there is a potential or possible liability to pay based on the facts at the outset of the case and is not depend[e]nt on the probable liability to pay based on the facts ascertained through trial.”  McCormack Baron Mgmt. Servs., Inc. v. Am. Guarantee & Liab.  Ins. Co., 989 S.W.2d 168, 170 (Mo. banc 1999)(emphasis added).  “The duty to defend is determined by comparing the language of the insurance policy with the allegations in the complaint.”  Id.  “If the complaint…alleges facts that give rise to a claim potentially within the policy’s coverage, the insurer has a duty to defend.  Id. at 170-71.

To be sure, there is authority that an insurer is not required to defend a suit where the petition on its face alleges a state of facts which fail to bring the case within the coverage of the policy.  See, e.g., Trainwreck West Inc. v. Burlington Ins. Co. 235 S.W.3d 33, 42 (Mo. App. E.D. 2007)(quoting Benningfield v. Avemco Ins. Co., 561 S.W.2d 736, 737 (Mo. App. 1978)).  However, the decision on whether an insurer can rightfully deny a defense to an insured in cases where multiple causes of action are alleged, some intentional and some negligent, becomes more difficult.  In such circumstances, plaintiffs will allege in their petition the defendant committed one or more negligent acts in an effort to come within coverage of the defendant’s insurance policy.

A petition’s mere mention of the word, “negligence,” does not trigger a duty to defend where the factual allegations forming the “negligence” claim demonstrate intentional conduct.  See Allen v. Continental W. Ins. Co., No. ED99111, 2013 WL 1803476, *6 (Mo. App. E.D. Apr. 30, 2013)(finding insurer had no duty to defend under liability policy where petition against insured alleged negligence premised upon intentional conduct).  In Brand, the original petition in the underlying suit presented six (6) separate counts, but all were premised upon intentional conduct by Dr. Frelich and KCGH, despite one of the counts alleging negligence per se.  Indeed, the negligence per se count alleged conduct by defendants “knowingly undertaken with the intention of depriving Plaintiff of his legal rights”.  The Court in Brand reiterated Missouri Courts have consistently held an insured’s intentional infliction of damage cannot be covered by liability insurance, and permitting an insured to insure himself against his wanton, reckless or willful acts would be contrary to public policy.  Finding Dr. Frelich’s actions could not be characterized as negligent regardless of the label attached to the same, the Court in Brand found Travelers had no duty to defend.  Without the duty to defend, there was no duty to indemnify.

Though an insurer’s decision to deny a defense to an insured should always be made with caution, and only after proper consultation with coverage counsel, the recent decision in Brand signals a willingness of the Western District to make a true comparison of the language of the policy and the allegations in the petition regardless of the attempts by a plaintiff and/or the insured to frame intentional acts as negligent conduct.

Click HERE for a full copy of the opinion.

— Larry Nordling