Inside this issue. 2 The Firm Inquiry Is Going Digital

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1 Winter 2011 M I S S O U R I I L L I N O I S K A N S A S A R K A N S A S Inside this issue 2 The Firm Inquiry Is Going Digital 2 The Rules of the Road Approach An Examination of a Plaintiff s Strategy for Proving Liability in Trucking Cases 3 The Increasing Role of Indemnity Agreements in Allocating Insurance Proceeds and its Effect on the Transportation Industry 3 Still the Trucking Company s Best Friend? The Status of McHaffie v. Bunch 4 The Carmack Amendment: Implications for Liability for Claims Against Interstate Carriers 5 Limitation on Uninsured/Underinsured Insurance Coverage Stacking in Illinois 6 Fifth District Appellate Court of Illinois Reverses Rail Carrier Asbestos Ruling on Motion to Dismiss for Forum Non Conveniens Brown & James Awarded Winningest Defense Firm, Several Individual Attorney Awards Missouri Lawyers Weekly repeatedly honored Brown & James at its year-end awards ceremony on January 28, With 19 defense verdicts, more than triple the number of the next leading law firm, 2010 marked the third straight year in which Brown & James has won the top honor for the most defense verdicts in Missouri. Missouri Lawyers Weekly also honored T. Michael Ward as Law Firm Leader and awarded David Bub and Irene Marusic the Winningest Defense Attorneys of Robert Rosenthal and Halle Dimar, and Corey Kraushaar and Christopher Seibold, were also honored by the legal publication for receiving the year s second and third largest defense verdicts, respectively. Editors: Russell F. Watters Michael Ward Visit our website at: For current and previous issues of The Firm Inquiry. The Firm Inquiry is published by Brown & James, P.C. For more information, call one of our offices or visit us at From left to right: Irene Marusic, Mike Ward, Chris Seibold, Corey Kraushaar, Bob Rosenthal, Brenda Hamilton, David Bub Transportation Law Edition Brown & James dedicates this issue of The Firm Inquiry to transportation law and the many legal issues affecting the transportation industry. Thankfully, many of our transportation industry friends are reporting that business is starting to pick up. Of course, with more miles comes the prospect of more accidents. This issue of The Firm Inquiry includes articles written by lawyers in the Brown & James Transportation Law and Insurance Law practice groups. Their articles address a number of transportation law issues that carriers and their insurers regularly face as well as updates on recent case law and statutory changes in the area. Their articles demonstrate the breadth of Brown & James transportation law practice. Should you have any questions or desire additional information concerning the topics discussed in this issue, please contact Brown & James.

2 The Firm Inquiry Is Going Digital Dear Friends: Brown & James, in publishing The Firm Inquiry for our clients and friends, seeks to provide an insightful, engaging, and useful tool for your professional use in staying abreast of legal developments in Missouri, Illinois, and Kansas. We are grateful for the warm reception that you have given The Firm Inquiry. We are mindful of the environmental impact of our newsletter and the trend in professional publishing to transmit newsletters electronically. We, too, have decided to go green. As part of our Green Initiative, this issue will be the last edition that will be printed and delivered by mail. Beginning with our spring edition, The Firm Inquiry will be published as an interactive digital newsletter on our website and distributed electronically to our subscribers. We know that some of you will prefer to receive a hard copy edition. For those of you who do, we will continue to make available paper copies. If you prefer a paper copy, please let us know and we will ensure that each future edition of The Firm Inquiry is sent to you by mail. We invite your feedback on our transition as we go digital. Please send us your comments, and if you would like to continue to receive The Firm Inquiry by mail, please submit your requests to Michael Taylor, mtaylor@bjpc.com, (314) We look forward to your comments and suggestions as we strive to make our newsletter the best law firm newsletter in the Midwest. Russ Watters and Mike Ward, Co-Editors The Rules of the Road Approach An Examination of a Plaintiff s Strategy for Proving Liability in Trucking Cases Joseph R. Swift Staying abreast of plaintiff lawyers strategies has become almost as important as knowing the FMCSA regulations. Several trial guide books have been published over the last few years, including: David Ball on Damages, The Essential Update, A Plaintiff s Attorney s Guide for Personal Injury and Wrongful Death Cases (2d ed. 2005); David Ball and Don Keenan, Reptile, The 2009 Manual of the Plaintiff s Revolution (2009); and Rules of The Road A Plaintiff s Lawyer s Guide to Proving Liability (2d ed. 2010). Many of the authors of these books explain why they are willing to share their top secret advice. For instance, Dr. Ball, in Damages, writes: This book is for Plaintiff s attorneys. Defense attorneys will be wise to eavesdrop. The Rules of the Road authors are a bit more arrogant; they write: A final word: some have asked why write a book and possibly reveal these secrets to the defense bar. We believe there is no effective defense to this technique. (Pg. 5) This article summarizes the Rules of the Road technique and hopefully suggests some strategies when confronted with plaintiff lawyers who use the method. The Rules book presents a method of proving liability in all types of cases, not just 2 auto cases. The title, Rules of the Road, is meant to illustrate the need for the method. Most jurors know traffic rules, i.e., the rules of the road. The book uses that example to point out, that unlike driving a car, most jurors have no sense of the rules for common carriers, insurance companies, physicians, product manufacturers, and the like. In a nutshell, the method attempts to put meat on the bones of what the authors deem esoteric legal terminology. In fact, the authors argue that the defense wields three weapons to defeat plaintiffs cases that should be won -- complexity, confusion, and ambiguity. The reasoning is that if a jury is left wondering or undecided, the jury will tend not to find for a plaintiff. In fact, the authors even go so far to say that sometimes complexity, confusion, and ambiguity are part of a conscious defense strategy. (Pg 2) The avowed purpose of the book reads: Ultimately, this book is about how to breathe life into ambiguous legal standards and create an indisputable standard for everyone judges, juries, and defendants to see. The standard must be as clear as a double yellow line on a highway. (Pg 3) What Are Rules? The authors suggest that plaintiffs strategize by defining rules for proving their case. These rules are to be used in all facets of the case, including discovery, opening statement, and closing argument. The authors declare: A Rule of the Road should be: 1. A requirement that the defendant do, or not do, something. 2. Easy for the jury to understand. 3. A requirement the defense cannot credibly dispute. 4. A requirement the defendant has violated. 5. Important enough in the context of the case that proof of its violation will significantly increase the chance of a plaintiff s verdict. (Pg 22) The theme provided by a rule is woven into written discovery, depositions, opening statement, direct and cross examinations, and summation. The rule is designed so that the company must concede the rule or look foolish for not conceding. When the concession is made with the testimony of a company representative, a plaintiff s lawyer can then argue that the company s safety director and executives will tell you they agree, for example, that drivers must not drive tired. They then argue the principle was violated. The authors boast: If everyone agrees with these standards, and if we can prove these standards were violated, it will be very hard for the defense to convince the jury there was a reasonable basis for its actions. Stated another way, these principles define reasonableness for the jury. We no longer have a single ambiguous, (continued on page 7)

3 The Increasing Role of Indemnity Agreements in Allocating Insurance Proceeds and its Effect on the Transportation Industry Kenneth R. Goleaner Determining the number of carriers that may owe coverage for an accident, and how that coverage is to be allocated amongst those carriers, can often be a difficult and complicated task. This is because there may be truckers or other business auto policies issued to the hauler, and there may also be policies in place that have been purchased by the driver and the agent under whose authority the hauler is operating. While determining how to allocate insurance proceeds amongst concurrent insurers is generally determined by comparing the applicable policies other insurance clauses, there is an increasing trend, both in Missouri and around the country, towards an allocation scheme that gives effect to indemnity provisions in contracts between the insureds, even where to do so would contradict the provisions of the applicable other insurance clauses. Consider the following example: Company A is a moving and storage business that, per an agency agreement, is given the authority to operate under the name and authority of Company B, whose name has national recognition. The drivers of the vehicles are usually independent contractors. All likely have liability insurance covering accidents involving the vehicle subject to the agency agreement. In the most common scenario, the agency agreement will require Company A, the moving and storage business, to indemnify the nationally recognized company, Company B, which is allowing Company A to operate under its name and authority. More importantly, these agency agreements will almost always require that Company A carry a specified amount of truckers or other relevant liability insurance that adds Company B as an additional insured. Based on this arrangement, when an accident occurs and Company A and B are both named in the lawsuit, Company B naturally looks to Company A and its insurer to provide Company B with defense and indemnity. The issue of whether Company B (the indemnitee ) is in fact an additional insured and entitled to coverage under the policy issued to Company A (the indemnitor ) depends on the terms and provisions of the insurance policy at issue. Where such coverage does exist, courts have been increasingly willing to look to the indemnity provisions in the parties agency agreements in deciding how the existing coverage should be allocated. In other words, there is a clear trend in Missouri and other jurisdictions towards finding that the indemnitor s coverage provides insurance that is primary to the policy or policies insuring the indemnitee. Indeed, even an excess or umbrella policy issued to the indemnitor may be triggered before even the primary layer of the indemnitee s coverage is implicated. Of great importance to this analysis is to make an early determination of which state s (continued on page 8) Still the Trucking Company s Best Friend? The Status of McHaffie v. Bunch Kurt Schmid There is a Missouri Supreme Court case that, for those who defend companies in the transportation industry can all agree, is a great help: McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995). The decision provides an excellent shield against claims for negligent hiring, negligent retention, and negligent supervision. In McHaffie, the plaintiff was a passenger in an automobile who was injured in a collision with a tractor-trailer. The plaintiff alleged the tractor-trailer driver s employer negligently hired and supervised him. The jury found the employer s negligent hiring and supervision were the cause of 10 percent of the passenger s damages. On appeal, the employer argued it was improper for the judge to submit the plaintiff s negligent entrustment and hiring claims to the jury because the employer admitted the driver was acting in the course and scope of his employment at the time of the accident. The Missouri Supreme Court agreed, and reversed the judgment entered on those claims. Missouri s Supreme Court pointed out that most states do not allow plaintiffs to pursue negligent hiring/supervision/ retention claims when an employer/ employee relationship is admitted because these claims waste court and litigant time and expense. Plus, the Court observed that potentially inflammatory evidence comes into the record that is irrelevant to any contested issue in the case. Therefore, the Court ultimately concluded in McHaffie that once an agency relationship is admitted, it is error to permit a separate assessment of fault to the employer based upon negligent entrustment or hiring theories and to admit evidence on those theories. During the last decade, we have seen some chinks in the armor provided by the McHaffie holding. Interestingly, while Missouri s state appellate courts have left the case alone, federal courts interpreting Missouri law have not been as hands off. In Miller v. Crete Carrier Corp., 2003 WL (E.D. Mo. 2003), the plaintiffs sued a trucking company and included negligent hiring and retention claims. The plaintiffs also sought punitive damages. The trucking company moved for summary judgment on the negligent hiring and retention claims, citing McHaffie in support. The plaintiffs argued, in response, that their case was different because they were seeking punitive damages. The federal district court agreed and denied the trucking company s motion. In so doing, the court looked to dicta in McHaffie that suggested it may be possible that an employer may be held liable on a negligence theory that does not derive from, and is not dependent on, the (continued on page 9) 3

4 The Carmack Amendment: Implications for Liability for Claims Against Interstate Carriers James Craney The 1906 Carmack Amendment was originally enacted to govern bills of lading in the rail transportation industry. The Amendment has been altered and recodified over the last century. In its current form, the Amendment provides a uniform national system of liability for interstate rail and motor carriers. See 49 U.S.C and 49 U.S.C , respectively. In general, Carmack provides a federal cause of action that allows a shipper to bring a cause of action against certain carriers for property damage, and also provides carriers with a basis to limit their liability. Preemption of State-Law Claims and Removal Courts have uniformly held that the Carmack Amendment preempts all state and common-law claims and provides the sole and exclusive remedy to shippers for loss or damage in interstate transit. Hughes Aircraft v. North American Van Lines, 970 F.2d 609, 613 (9th Cir. 1992). The preemptive effect of the Carmack Amendment also applies to claims of damage or loss relating to storage and other services rendered by interstate carriers, Margetson v. United Van Lines, Inc., 785 F.Supp. 917, 919 (D. N.M. 1991), and for delay or the failure to deliver cargo. Hall v. North American Van Lines, 476 F.3d 683 (9th Cir. 2007). Additionally, causes of action for negligence, breach of insurance contract, breach of contract of carriage, conversion, intentional misrepresentation, negligent misrepresentation, and negligent infliction of emotional distress are also preempted by the Amendment. See R.H. Fulton v. Chicago, Rock Island & Pacific R.R. Co., 481 F.2d 326 (8th Cir. 1973). The Amendment itself allows a civil suit to be brought against a carrier in either state or federal court. However, when the damages exceed $10,000, federal courts retain original jurisdiction over an action brought under Carmack, and the matter may therefore be removable from state to federal court. See 28 U.S.C Plaintiffs will often attempt to include well-pleaded, state-law claims to defeat removal. Under the well-pleaded complaint rule, a plaintiff may avoid federal jurisdiction by exclusive reliance on state law. Caterpillar v. Williams, 482 U.S. 386, 392 (1987). This rule applies even though the defense is solely grounded in federal law, or where the parties agree that the claim involves federal law. Id. However, the recent trend has been for federal courts to find that Carmack completely preempts even well-pleaded, state-law claims, thus allowing removal to federal court (so long as the $10,000 amount-in-controversy requirement is met). See, e.g., Hall v. North American Van Lines, 476 F.3d 683 (9th Cir. 2007); Hoskins v. Bekins Van Lines, 343 F.3d 769 (5th Cir. 2003); and Hughes Aircraft, 970 F.2d at 613. Nonetheless, under certain narrow circumstances, the inclusion in the complaint of state-law claims, such as intentional infliction of emotional distress, may prevent removal to federal court. See, e.g., Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th Cir.1997). Liability under the Carmack Amendment Carmack provides that any common carrier receiving property for transportation in interstate commerce must issue a receipt or bill of lading to the shipper. Carmack imposes liability upon receiving carriers, and delivering carriers, for damage caused during the transportation of goods under the bill of lading, regardless of which carrier caused the damage. Carmack s purpose is to relieve cargo owners of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods. To help achieve this goal, Carmack constrains the carriers ability to limit liability by contract. Kawasaki Kaisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S.Ct (U.S. 2010). Thus, the Amendment provides that the receiving carrier (the first carrier in the shipping chain), and the delivering carrier (which ultimately delivers the cargo), will each be liable to the shipper (or any other lawful holder of the receipt or bill of lading) for loss, damage, or injury to the property before its delivery to the consignee. This liability attaches whether the loss, damage, or injury is caused by the receiving carrier, or by any other carrier to which the property might be delivered, or over whose lines it might pass. Although Carmack allows the shipper to elect to recover damages from a receiving carrier, or the delivering carrier, those carriers are not left holding the bag if it can be shown that another carrier is at fault for the alleged loss. In such a case, that carrier is entitled to recover the amount required to be paid to the owners of the property from the carrier over whose line or route the loss or injury occurred. That carrier is also entitled to recover the amount of its expenses reasonably incurred in defending a civil action brought by the plaintiff. 49 U.S.C (b). Limitation of Liability under Carmack Carmack includes special rules that allow a shipper to limit liability. First, a carrier may limit its liability for any such damage under 49 U.S.C , which provides that [t]he Interstate Commerce Commission ( ICC ) may require or authorize a carrier... to establish rates for transportation of property under which the liability of the carrier for that property is limited to a value established by written declaration of the shipper, or by a written agreement, when that value would be reasonable under the circumstances surrounding the transportation. The ICC allows a carrier to file a written document, known as a tariff, which sets forth terms and conditions of shipment, available freight rates, and other relevant information, including any applicable liability limitations. Before a carrier s attempt to limit its liability will be effective, the carrier must: (1) maintain a tariff in compliance with ICC requirements; (2) give the shipper a reasonable opportunity to choose between two or more levels of liability; (3) obtain the shipper s agreement as to his choice of carrier liability limit; and (4) issue a bill of lading before moving the shipment that reflects any such agreement. (continued on page 9) 4

5 Limitation on Uninsured/Underinsured Insurance Coverage Stacking in Illinois Joseph Rousseau Stacking is a practice that permits a party injured in a car accident, after recovering any available insurance policy proceeds from the party responsible for the accident (which failed to fully compensate him for his damages), to seek recovery from his insurer based on the cumulative uninsured/ underinsured coverage limits in his multivehicle insurance policy. Illinois courts have found that stacking can be appropriate when an insurance policy is ambiguous concerning the uninsured/ underinsured coverage that it provides. This ambiguity normally occurs when the policy s declarations page lists such coverage for several vehicles, each with separately listed uninsured/underinsured coverage limits and premiums. See Johnson v. Davis, 377 Ill. App.3d 602 (5th Dist. 2007). Like normal contract interpretation, insurance policy terms are to be applied as written unless the policy language is ambiguous or against public policy. A policy s terms are deemed ambiguous when the policy language is subject to more than one reasonable interpretation. Hobbs v. Hartford Ins. Co. of the Midwest, 214 Ill.2d 11, 17 (2005). Ambiguous policy terms that purport to limit an insurer s liability are liberally construed in the insured s favor. Id. Whether the terms of an insurance policy allow the stacking of uninsured/underinsured coverage is a question of law. Id. In the recent case of Hanson v. Lumley Trucking, LLC, the plaintiff, who was injured in a car accident and settled with the responsible party for that party s liability limits, filed a declaratory judgment action seeking to establish that he was entitled to underinsured motorist (UIM) coverage based on the cumulative amount of coverage provided to all vehicles under his policy. 403 Ill.App.3d 445 (5th Dist. 2010). Specifically, the plaintiff argued that his policy provided $40,000 in UIM coverage limits for each of the 25 vehicles covered by the policy, thereby providing total UIM coverage of $1 million. After the defendants filed a motion for judgment on the pleadings, the court held the policy was unambiguous and that stacking would not be permitted. The court reached this conclusion based on the fact that the declarations page for the plaintiff s policy contained only a single line setting forth the amount of UIM coverage available ($40,000), did not separately list the UIM coverage limits for each covered vehicle, and contained an anti-stacking provision limiting such coverage to $40,000. The plaintiff argued that he was entitled to stack the UIM coverage because the single line on the declarations page, which set forth the amount of UIM coverage available, was cross-referenced to the 25 vehicles covered under the policy, and because there were separate premiums for uninsured/underinsured coverage listed for each of the 25 vehicles. However, the court relied on prior cases that held the mere listing of premium amounts for uninsured/ underinsured coverage was insufficient to allow stacking. See Bruder v. Country Mut. Ins. Co., 156 Ill.2d 179 (1993); Prudential Prop. & Cas. Ins. Co. v. Kelly, 352 Ill. App.3d 873 (2004). The court also found the cross-reference to the 25 covered vehicles was not an invitation to stack the UIM coverage and that the only reasonable interpretation of the policy was that the UIM coverage provision, which was listed in a single line with a single identification of a single amount of coverage, provided a maximum coverage amount of $40,000 for any one accident. Based on the Hanson decision, an insurance company issuing policies in Illinois can protect itself from the stacking of uninsured/underinsured coverage limits by including an anti-stacking clause in the policy and by listing the uninsured/ underinsured coverage limit only once on the declarations page (not listing such coverage limit for each vehicle covered) and, to be safe, not listing the premium attributable to each vehicle for such coverage. Brown & James Builds for Habitat for Humanity Brown & James recently served as a Build Sponsor for Habitat for Humanity St. Louis, and participated in a Phase 3 build in north St. Louis. This is the second year the firm has served as a Build Sponsor, helping Habitat redevelop the underserved neighborhood and contributing to Habitat s mission of eliminating substandard housing in the St. Louis area. Brown & James lawyers, staff and clients spent consecutive Saturdays, Feb. 5 and Feb. 12, 2011, working on the Phase 3 build by laying down flooring, putting up siding and installing ventilation equipment. The firm is committed to giving back to our community and was thrilled to contribute to this great organization. 5

6 Fifth District Appellate Court of Illinois Reverses Rail Carrier Asbestos Ruling on Motion to Dismiss for Forum Non Conveniens Tara Lang Gibbons The Fifth District of the Appellate Court of Illinois recently reversed a Madison County trial court ruling denying a motion to dismiss an asbestos case for forum non conveniens. The Fifth District s decision constitutes a significant defense victory for parties involved in the Madison County asbestos litigation. In Laverty v. CSX Transp., Inc., Civ. No , 2010 WL (Ill. Ct. App. 5th Dist., August 20, 2010), the plaintiff, Claudious Laverty, individually and as special administrator of the estate of her deceased husband, Thomas Laverty, filed a complaint in Madison County Circuit Court against CSX Transportation and other defendants for willful and wanton misconduct and negligence under the Federal Employers Liability Act (FELA). CSX and 35 of the 38 co-defendants filed motions to dismiss based on interstate forum non conveniens. The plaintiff and decedent were residents of Texas, and previously lived in Michigan and Ohio, but never resided in Illinois. The decedent was employed as a railway fireman and engineer from the early 1940s until CSX is a successorin-interest to the decedent s previous employers. In its motion, CSX argued Madison County was an inappropriate forum because the decedent worked for its predecessors in Saginaw, Michigan, and not from any location in Illinois. CSX further argued its predecessors did not operate tracks in Illinois, but had only limited trackage rights running to Chicago from Michigan to Indiana. Finally, CSX argued that no witnesses or treating physicians were located in Illinois. To further illustrate Illinois lack of relation to the case, CSX argued the decedent s alleged exposure as a railroad employee would have occurred primarily in Michigan, and that he would have received medical care in Michigan. The manager of field investigations was also located in Michigan. CSX argued that it would be inconvenient for it to defend a lawsuit in Madison County, Illinois, because the investigation of the plaintiff s claims would occur in Michigan, the primary location where the decedent worked, and because all identified medical provider and coworker witnesses were located outside of Illinois. At the hearing on CSX s motion, the plaintiff conceded that no witnesses were located in Illinois and that the decedent had not been exposed to asbestos in Illinois. The court denied CSX s motion. The Fifth District of the Appellate Court of Illinois granted CSX s petition for leave to appeal. On appeal, CSX argued the trial court had improperly denied its motion to dismiss based on forum non conveniens. CSX argued Illinois had no connection to the litigation and the facts warranted the case s dismissal for refiling in Michigan. The Fifth District agreed. The Illinois venue statute provides that an action must be filed in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against the defendant and not solely for the purpose of fixing venue in a particular county, or in the county wherein the transaction or some part of the transaction occurred which gave rise to the cause of action. 735 ILCS 5/2-101 (West 2009). Where more than one potential forum exists, the court may invoke the doctrine of forum non conveniens to determine the most appropriate forum. See Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 171 (2003). In resolving forum non conveniens questions, the trial court must balance private interest factors affecting the parties convenience and public interest factors affecting the court s administration. Bland v. Norfolk & Western Ry. Co., 116 Ill.2d 217, (1987). Private interest factors include the parties convenience, relative ease of access to sources of testimonial, documentary, and real evidence and other considerations that will make the trial easy, expeditious, and inexpensive. Public interest factors include having controversies decided in the forum where they occurred and administrative concerns, such as docket congestion and the imposition of jury duty upon the citizens of a forum with little or no connection to the litigation. There is no one factor greater than the other when evaluating a case under forum non conveniens. Due deference is given to the plaintiff s choice of forum because a plaintiff s right to select the forum is substantial. Dawdy, 207 Ill.2d at 173. However, a non-resident plaintiff s choice of forum deserves less deference, especially when the cause of action has little or no connection to the forum chosen. In concluding the circuit court erred in denying CSX s motion to dismiss based upon forum non conveniens, the Fifth District pointed out that the decedent was never exposed to asbestos in Illinois, as conceded by the plaintiff s counsel, and the decedent s co-workers and medical provider witnesses were not located in Illinois. These out-of-state witnesses would not be subject to the subpoena power of the Illinois courts. The Fifth District also pointed out that an important consideration when ruling on a forum motion is the possibility of the jury viewing the accident site. Dawdy, 207 Ill.2d at 179. When evaluating this aspect, the Fifth District stated that it is not the necessity of viewing the site by the injury, but rather the possibility of viewing the site, if necessary. With the plaintiff s attorney s concession that none of the exposure occurred in Illinois, the court explained it would be wholly irrational to believe that a Madison County jury should be required to travel outside Illinois to view the injury site. In reviewing the public interest factors, the Fifth District focused on the administrative difficulties caused when a case is litigated in congested venues instead of being handled where the cause of action originated; the unfairness of imposing jury duty on residents of a county, or as in this case, a state, with no connection to the litigation; and the interest in having controversies decided where they occurred. See Dawdy, 207 Ill.2d at 173. The Annual Report of the Administrative Office of the Illinois Courts (continued on page 10) 6

7 (continued from page 2) The Rules of the Road Approach An Examination of a Plaintiff s Strategy for Proving Liability in Trucking Cases Joseph R. Swift amorphous standard; we have a number of specific concrete standards - ones we know we can prove were violated. (Pg 18) Where Do Rules Come From? The rules are gleaned from FMCSA regulations, statutes, codes of state regulations, other codes of federal regulations, textbooks, treatises, pamphlets, articles, bulletins, authoritative sources, a defendant s web site, a defendant s marketing materials, a defendant s company manual, and the like. Also, the source of a rule can be good old fashioned common sense. The point is that the rule is expressed in such a way to make it uncomfortable for the defendant to deny it. How are the Rules Used? The rationale for the use of the rule is that it puts meat on the bones of what are sometimes considered abstract legal concepts that find their way into jury instructions. The argument is that when jurors are asked to apply an ambiguous standard they are either confused or invent their own definition for the standard. If that happens, the authors feel that the defense wins. The thought is that psychologically, when faced with a decision about something you don t feel comfortable that you understand, you will hesitate to make a decision. The authors assert that this uncertainty is of a huge advantage for the defense. This may be true, especially in light of standard defense arguments that emphasize the burden of proof. The rules are meant to flesh out what might be considered an abstract jury charge. A typical jury instruction in a Missouri rear-end accident case might include these ultimate facts: Defendant s tractor trailer came into collision with the rear of plaintiff s automobile; and/or Defendant drove at a speed which made it impossible for him to stop within the range of his visibility; and/or Defendant failed to keep a careful lookout. Claim professionals and safety directors have a good understanding of what these instructions mean from the hundreds and possibly thousands of real-life examples they have had to litigate. But what do those submissions mean to a juror who has no day-to-day experience with them? A plaintiff s lawyer using the Rules method might develop the following rules : A. Applied to a safety director of a trucking company: 1. A company must ensure that its drivers do not drive while tired. 2. Talking on a cell phone while driving can cause drivers to violate other important driving safety rules. 3. At the time of this wreck Danny Driver was driving using a cell phone; that is a formula for an accident. B. Applied to a driver in a rear-end collision: 1. While driving my truck, it is my responsibility to monitor the road 15 seconds ahead of me. 2. I know that if I drive without scanning the roadway for hazards ahead, I am putting the lives and safety of other motorists in jeopardy. 3. I know that if I do not monitor and scan the road 15 seconds ahead of me, I am putting the lives of other motorists in jeopardy. 4. When I drive at night, I am required to drive at a speed and in a manner that allows me to stop within the distance illuminated by my head lights. 5. I know that if I drive at night in such a manner that I am unable to stop within the distance illuminated by my lights, I am putting the lives and safety of other motorists in jeopardy. 6. If I drive while fatigued, I know I am putting the safety and lives of other drivers in jeopardy. 7. It is my responsibility to stop driving if I am fatigued. 8. It is my responsibility not to start driving if I am fatigued or tired. The above rules are invoked throughout the case, but the most crucial times are during the video deposition and trial cross examination of the driver and safety director. Typically, the rules are placed on a poster board exhibit for the jurors to read, while the plaintiff s lawyer asks the safety director or driver to agree or disagree with each. When a safety director or driver is faced with these rules, they must admit them. They look foolish denying them. Once they make the admission, the lawyer, or the witness himself, takes a marker and marks the rule, signifying their agreement. Now the lawyer has a compelling exhibit to use for the rest of trial -- especially in closing argument. The lawyer displays the rules exhibit next to the jury instruction and explains how the defendant s violation of the rules means the plaintiff should recover. Combating the Rules Approach You can sometimes see a Rules approach coming. The best way is to learn the plaintiff s counsel s reputation and try to secure other depositions in trucking cases that the plaintiff s lawyer has taken. Also, you should carefully examine the nature of the discovery served. Typically, interrogatories and requests for production will very specifically ask about the defendant s protocols, guidelines, rules, regulations, standards, policies, and/or practices. They will also ask specifically about authoritative sources, text books, and training manuals and procedures used at a company. You should be able to discern, rather quickly, if a Rules approach is going to be taken. There are some strategies for depositions and trial testimony. The first and foremost is to be able to identify the rules that are going to be thrown at you. They (continued on page 11) 7

8 (continued from page 3) The Increasing Role of Indemnity Agreements in Allocating Insurance Proceeds and its Effect on the Transportation Industry Kenneth R. Goleaner law applies. Transportation agreements, of course, envision travel through many states. Frequently, the agreements between the parties will mandate the application of a particular state s law. If no state s law is specified, a most significant contacts analysis must be performed. After a determination of which state s law will control, it is important to consider whether that state has a transportation Anti-Indemnity Statute. For example, Missouri s Anti-Indemnity Statute 1, Section , R.S.Mo., provides as follows: 1. Notwithstanding any provision of law to the contrary, a provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract that purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the promisee from or against any liability for loss or damage resulting from the negligence or intentional acts or omissions of the promisee is against the public policy of this state and is void and unenforceable. 2. For the purposes of this section, the following terms shall mean: (1) Motor carrier transportation contract - a contract, agreement, or understanding covering: (a) The transportation of property for compensation or hire by the motor carrier; (b) The entrance on property by the motor carrier for the purpose of loading, unloading, or transporting property for compensation or hire; or (c) A service incidental to activity described in paragraphs (a) and (b) of this subdivision, including but not limited to, storage of property; Motor carrier transportation contract shall not include the Uniform Intermodal Interchange and Facilities Access Agreement administered by the Intermodal Association of North America or other agreements providing for the interchange, use or possession of intermodal chassis, or other intermodal equipment; (2) Promisee, the promisee and any agents, employees, servants, or independent contractors who are directly responsible to the promisee except for motor or rail carriers who are party to a motor carrier transportation contract, and such motor or rail carrier s agents, employees, servants, or independent contractors directly responsible to such motor or rail carriers. If an anti-indemnity statute is in place, the following analysis may be unnecessary. However, in the absence of such a statute, the parties indemnity agreements may well be dispositive in determining the priority of coverage. This will be especially true in contexts in which anti-indemnity statutes have no application. The decision of the United States Court of Appeals for the Eighth Circuit in Wal-Mart Stores, Inc. v. RLI Ins. Co., 292 F.3d 583 (8th Cir. 2002), illustrates how courts have treated this issue in the context of a product liability claim. In Wal-Mart, one of Wal-Mart s suppliers agreed to indemnify Wal-Mart and provide $2 million in coverage to Wal-Mart as an additional insured. An accident occurred involving the product provided by the supplier and resulted in an $11 million settlement. Wal-Mart had a $10 million policy, and the supplier had $11 million in coverage, though $10 million of that coverage was through an excess policy. The issue in Wal-Mart was which of the two carriers was responsible for the remaining $10 million of the settlement proceeds after the supplier/indemnitor s $1 million primary policy had been exhausted. In Wal-Mart, the Eighth Circuit held the other insurance clauses of the two policies were not determinative of the case. Rather, the court held the parties indemnity agreement controls the outcome. Id. at 587. Significant to the court s holding was its requirement that the supplier/indemnitor indemnify the entire $11 million settlement even though it noted the supplier s insurance obligation under its vendor s agreement with Wal-Mart was only $2 million. The court also noted this was the majority rule among states that have considered the issue, and further found no significance in the fact that the supplier s $10 million policy was characterized by that insurer as an excess policy. In Federal Ins. Co. v. Gulf Ins. Co., 162 S.W.3d 160 (Mo. App. E.D. 2005), the Missouri Court of Appeals adopted the same reasoning as the Eighth Circuit did in Wal-Mart and also found this approach to be the majority rule. In deciding whether the exception to the general rule for indemnity agreements applies, the court in Federal identified three factors to be considered: (1) the validity of the indemnification agreement; (2) an insurance policy that covers the settlement; and (3) the parties intentions and relationships and the absence of unfair prejudice to the insurers. Also significant was the court s refusal to afford the indemnitee s excess insurance a remedy through equitable contribution, despite the fact that the amount of the settlement and the amount of the indemnitor s excess policy, as in Wal-Mart, exceeded the amount of insurance that the indemnitor was required to obtain. Hence, when the exception applies, recent cases make relatively clear that an indemnitor s entire policy may be deemed to be primary even in excess of the amount of insurance that the indemnitor contracted to provide. See also Hertz Equip. Rental Corp. v. Ammon Painting Co., 2009 WL (Mo. App. W.D.) (vacated by the Missouri Supreme Court upon acceptance of transfer and before the case s settlement while pending before the Missouri Supreme Court on post-opinion review). Finally, we note this rule has not been applied in every case involving an indemnity agreement. In an unpublished decision, one Missouri appellate court declined to compel an indemnitor s excess carrier to provide coverage before the exhaustion of the indemnitee s primary insurance. See East End Transfer & Storage, Inc. v. Travelers Indem. Co. of Illinois, 211 S.W.3d 103 (Mo. App. E.D. 2006). The court s decision may have turned on the fact that the indemnitor was also an additional insured under the primary policies purchased by the indemnitee, which allowed the indemnitor s excess carrier to successfully (continued on page 11) 8

9 (continued from page 3) Still the Trucking Company s Best Friend? The Status of McHaffie v. Bunch Kurt Schmid employee s negligence, and that it is possible an employer may be liable for punitive damages that could not be assessed against the employee. In Jackson v. Wiersema Charter Serv., Inc., 2009 WL (E.D. Mo. 2009), the plaintiff also made negligent hiring and retention claims against the defendant. The plaintiff also sought punitive damages. In response, the defendant moved to dismiss the plaintiff s negligent hiring and retention claims, citing McHaffie in support. The federal district court denied the defendant s motion, cited the Miller v. Crete Carrier Rohner Gehrig Co., Inc. v. Tri-State Motor Transit, 950 F.2d 1079, 1081 (5th Cir.1992); Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir.1987). In addition to allowing a carrier to limit the amount of its liability, Carmack allows a carrier to limit the time for filing a claim. Under the Amendment, a carrier may, by contract, require that a claim be made to it by a shipper within nine months of the shipment. The carrier may also require that a civil action be instituted within two years after the denial of such a claim. 49 U.S.C (e). The purpose of the claim period is to provide the carrier with knowledge that the shipper will be seeking reimbursement. Taisho Marine & Fire Ins. Co. v. Vessel Gladiolus, 762 F.2d 1364 (9th Cir. 1985). As a general rule, such written claims are liberally construed and the standard applied is one of substantial performance. The form of the written notice is less important than its adequacy in apprising the carrier of the basis for the claim and of the fact that reimbursement will be sought. Wisconsin Packing Co. v. Indiana Refrigerator Lines, Inc., 618 F.2d 441, 444 (7th Cir. 1980). decision, and ruled that the plaintiff at least could jump the motion to dismiss hurdle. In Burroughs v. Mackie Moving Systems Corp., 2010 WL (E.D. Mo. 2010), the defendant sought to bar expert testimony attacking its hiring, training, supervision, and entrustment practices, citing McHaffie in support of its position that such evidence is irrelevant when agency is admitted. The court denied the defendant s motion, pointing out that it had previously held that McHaffie does not bar such claims. The McHaffie case has been helpful to (continued from page 4) The Carmack Amendment: Implications for Liability for Claims Against Interstate Carriers James Craney Implications for Litigation In any litigation involving claims against an interstate carrier, the insurer and defense counsel should be aware of Carmack and its implications. The defendant carrier should be contacted immediately to determine whether it has limited its liability through the use of a tariff. If so, defense counsel should move to dismiss any state-law claims at the outset of litigation and evaluate the potential for removal to federal court, if that venue is preferable to the state court. Additionally, if the defendant carrier has imposed notice requirements, the plaintiff s failure to comply with those may present another basis for dismissal or summary judgment. Finally, the defense should be mindful of deadlines for the amendment of pleadings or for the filing of contribution claims. When the defense investigation reveals that the property damage occurred on another carrier s watch, the Amendment will provide a basis to seek reimbursement of both the amount of the judgment or settlement, and reasonable attorney fees. defendant trucking companies from disputes over what documents need to be produced to what expert opinions can be communicated to the jury. We are left to wonder whether Missouri s state courts will follow the lead of the federal district courts sitting in Missouri. A wholesale abandonment of the rule in McHaffie would be a most prejudicial development for trucking companies and their insurers in Missouri and would result in increased litigation costs and the introduction of inflammatory evidence to juries. Case Results Tyson Foods v. Aceva Technologies. Washington County, Arkansas. Brown & James represented the plaintiff in a case involving a complicated dispute over computer software. After a two-week trial, the jury returned a plaintiff s verdict for our client, awarding substantial damages and attorney fees. Tried by Steven H. Schwartz. Kathy Johnson v. Dupo Fuel Mart. St. Clair County, Illinois. The plaintiff alleged our gas station client failed to warn its patrons of a deteriorating driveway upon which the plaintiff fell. After arguing the driveway s condition was open and obvious, our client received summary judgment. Tried by John P. Cunningham and Matthew Young. Tate v. OneBeacon Ins. Co. Missouri Court of Appeals, the Eastern District. The Missouri Court of Appeals held there was no coverage under a commercial general liability insurance policy for an underlying $200,000 judgment against OneBeacon s insured who had been found liable for his tenant s personal injuries due to mold exposure resulting from a sewer backup. The court ruled for our client based on the policy s mold and pollution exclusions. Tried by Russell Watters and Kenneth Goleaner. 9

10 Case Results Maduros v. Krugh. United States District Court, Western District of Missouri. Brown & James obtained a defense verdict for our client who had allegedly cut off the plaintiff s vehicle at high speed, causing the plaintiff s vehicle to strike a telephone pole. The plaintiff shattered his knee cap, which required surgery and tendon repair, and demanded $175,000 in damages at trial. Tried by Timothy J. Wolf. Edwards v. Millstadt Rendering Co. Madison County, Illinois. Joseph Swift successfully defeated a claim against a major St. Louis trucking company. The plaintiff argued the trucking company s driver was incompetent to operate a tractor-trailer because he was severely diabetic. In the same case, Joe obtained a $103,000 verdict on our client s counterclaim for the property damage that its tractor-trailer had sustained in the accident. York v. Wolven. Stone County, Missouri. Brown & James successfully defended our client in a construction defect case in southwest Missouri. An elderly plaintiff was attending a church function on the defendant s property when she fell on a wooden walkway that was under construction. She alleged a construction defect and claimed in excess of $70,000 in medical bills. The jury returned a defense verdict for our client. Tried by Brad Hansmann. Travelers Prop. & Cas. Co. v. National Union. United States Court of Appeals, Eighth Circuit. The Eighth Circuit ruled for Travelers, our excess insurer client, in an action addressing the subrogation rights of excess and primary insuers and held that Travelers was entitled to recover its $10 million payment in subrogation before the primary carrier could recover. The Eighth Circuit, in so ruling, explained that as excess carriers are the last insurers obligated to pay claims, they are also the first insurers entitled to recover proceeds obtained from third parties by subrogation. Tried by Robert W. Cockerham and Corey L. Kraushaar. Foshee v. Werner. Williamson County, Illinois. Our client received a favorable jury verdict in a clear liability auto crash case in which the plaintiff had demanded $45,000 in settlement. At trial, the plaintiff s attorney asked the jury for $120,000, and after a three-day trial, the jury returned a verdict of only $22,000. Tried by James Craney. Charles McNeil v. Metro. Missouri Division of Workers Compensation. A bus driver filed a workers compensation claim, claiming his back was affected by a minor accident. No other injuries were sustained by passengers. After arguing the driver s back problems were pre-existing, the claim was denied and a defense verdict was returned for our client. Tried by John J. Johnson. Daryl and Tabitha Mick v. Timothy Mattern Electric. Callaway County, Missouri. The plaintiffs insurer paid $791,000 (home and contents) for a fire claim at the Micks residence. Their insurer then filed a subrogation claim against our client, Tim Mattern Electric, which had installed recessed lights in the insureds basement, claiming defects with the lights installation had caused the fire. After a four-day trial, the jury returned a verdict for our client. Tried by David P. Bub. (continued from page 6) Fifth District Appellate Court of Illinois Reverses Rail Carrier Asbestos Ruling on Motion to Dismiss for Forum Non Conveniens Tara Lang Gibbons revealed that in 2007 the total number of civil cases pending in Madison County was 15,709 including 2,194 jury actions seeking in excess of $50 million. The circuit court in Saginaw County, Michigan, had a total of 780 civil cases pending in The Fifth District also pointed out that Illinois had little or no interest in trying the action of a nonresident whose claim arose outside of Illinois. The courts have a responsibility to protect finite judicial resources and the efficient functioning of their judicial systems so that they are not impeded by nonresident litigation to the extent that their availability to local citizens is diminished. Laverty v. CSX Transp., Inc., Civ. No , 2010 Westlaw , *5 (Ill. 5th Dist., Aug. 20, 2010), citing Botello v. Illinois Central R.R. Co., 348 Ill. App.3d 445, 459 (1st Dist. 2004), relying on Espinosa v. Norfolk & Western Ry. Co., 86 Ill.2d 111, 121 (1981). The Fifth District, thus, concluded that the public interest factors strongly favored dismissal. Madison County has long been the plaintiff s forum of choice for filing asbestos cases. So much so that the court has a standing order that addresses anticipated disputes related to discovery, objections during depositions, and even scheduling trials. This writer has personally been involved in cases in which the plaintiffs were residents of Alaska and had never set foot in Illinois, not to mention Madison County; yet motions to dismiss based on forum non conveniens were denied. The Fifth District s recent decision was wellwritten and well-reasoned. It seems clear that this case never belonged in Madison County. However, the opinion did not have the support of all three members of the appellate panel chosen to hear the case. Presiding Justice Goldenhersh filed a dissenting opinion. Justice Goldenhersh did not believe that CSX had met its burden of proving that the alternative forum was substantially more convenient than the one chosen by the plaintiff. Few defendants are willing to invest the time and money involved in taking a case to the appellate court on the issue of forum. This case was filed in December In February 2008, CSX filed a motion to dismiss based upon forum non conveniens. The hearing on CSX s motion was not held until January 2009, almost a year later. The issue was not finally resolved until August 2010, with the issuance of the Fifth District s opinion. In litigating this issue, CSX expended money on attorney fees and costs associated with the filing of the case, defending depositions, responding to discovery, and incurring the fees and costs associated with filing before the appellate court. All will agree that this was the best result possible for CSX, but how much did it really cost CSX? 10

11 (continued from page 8) The Increasing Role of Indemnity Agreements in Allocating Insurance Proceeds and its Effect on the Transportation Industry Kenneth R. Goleaner argue that the indemnitor was entitled to satisfy its indemnity obligations through the primary policies under which the indemnitor qualified as an additional insured. Again, this decision was an unpublished one; therefore, it has no precedential effect and may not call into question the relatively clear holding of the Missouri Court of Appeals in the Federal case discussed above. Based on these decisions and the prevalence of indemnity agreements in the transportation industry, insurers need to be aware of this developing trend because it could affect how their policies are allocated. Under this new majority rule, policies are subject to allocation under a scheme different than that which would result from the traditional application of competing other insurance clauses. In addition, insurers should undertake to learn more about their insureds contracts, contracts that may include a specific obligation to procure insurance for an indemnitee. Finally, insurers should be mindful of choice-of-law issues and whether an anti-indemnity statute may be applicable. Moreover, as courts have shown a willingness to hold the indemnitor s insurance primary beyond the amount of the insurance obligation in the insured s contract with its indemnitee, insurers may want to consider appropriate ways to address this issue in their policies, such as including language in either the other insurance clause or the additional insured endorsement that limits the amount of available coverage, or the amount of primary coverage, to the amount of insurance that the named insured is contractually obligated to provide for an additional insured. While this is obviously a developing area of the law one in which there are still more questions than answers such a policy addition might serve to curtail the possibility of an indemnitor s excess carrier being required to exhaust its entire policy limits despite its named insured s insurance obligation being much smaller than that, as was the result in both the Wal-Mart and Federal cases discussed above. 1 The following states have transportation anti-indemnity statutes: Alaska, California, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Missouri, Nebraska, New Mexico, North Carolina, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, Virginia, Washington, West Virginia, and Wyoming Best Law Firms U.S. News Media Group, in conjunction with Best Lawyers, has ranked Brown & James, P.C. as one of the nation s 2010 Best Law Firms for the St. Louis metropolitan region in their inaugural Best Law Firms rankings. The first-tier rankings were published in the October issue of U.S. News & World Report. The methodology for choosing the 2010 Best Law Firms included surveys of thousands of law firm clients, leading lawyers, and law firm managers who were asked what factors they considered vital for clients hiring law firms, for lawyers choosing a firm for referrals, and for lawyers seeking employment. (continued from page 7) The Rules of the Road Approach An Examination of a Plaintiff s Strategy for Proving Liability in Trucking Cases Joseph R. Swift need to be written out and reviewed. For any authoritative sources that are disclosed in discovery, the witness needs to be prepared to discuss the rule found in that document. Also, a very clear explanation needs to be developed as to whether or not the rule is applicable. If a rule is not applicable, the reasoning for its non-applicability must be clearly in hand. Beware of manipulation. A witness can be manipulated by asking about his familiarity with rules. Remember familiarity does not mean that the rule governs. Often, plaintiff s counsel makes the leap that familiarity equals authoritativeness. That may not be the case. The witness has to be patient and consistently explain that a rule was not followed because it was not applicable. Another potential response is that the rule was, in fact, followed. Of course, plaintiff s counsel will want to see substantiation of that compliance. Finally, if you are faced with a situation where it appears a rule was broken, you may be able to explain why breaking the rule does not make a difference in the case. The Rules of The Road method is becoming more and more prevalent in litigation. Like most things, being forewarned is forearmed. Developing an understanding, early on, of the applicable rules and how they should be addressed will allow you to effectively combat the rules stratagem. 11

12 If anyone receiving The Firm Inquiry would prefer to receive it by , simply Michael Taylor at and Brown & James will arrange for it to be sent electronically to you. The Firm Inquiry is a quarterly publication and is offered as a service to the clients and friends of Brown & James, P.C. The Firm Inquiry does not constitute legal advice or a legal opinion and is not an adequate substitute for the advice of counsel. Brown & James, P.C. Offices Saint Louis, MO 1010 Market Street, 20th Floor St. Louis, Missouri Phone Kansas City, MO 1100 Main Street, Suite 1900 Kansas City, Missouri Phone Springfield, MO 300 John Q. Hammons Pkwy., Suite 202 Springfield, Missouri Phone Belleville, IL 525 West Main Street, Suite 200 Belleville, Illinois Phone Little Rock, AR 400 West Capitol Avenue, 17th Floor Little Rock, Arkansas Phone (Meetings in the Arkansas Office by Appointment Only) David P. Ellington, Lawrence B. Grebel, Robert S. Rosenthal and T. Michael Ward have been named Best Lawyers for the 2011 edition of Best Lawyers in America. Attorneys are selected through peer nominations for their respective practice areas. For a quarter century, Best Lawyers has been regarded - by both the legal profession and the public - as a definitive guide to legal excellence in the United States. Joe Swift has been elected to the Board of Directors for ALFA International. He was elected by the ALFA membership at ALFA s Annual Business Meeting held on October 21-23, 2010, in Atlanta. He will serve a three-year term. Firm Inquiry Announcements Kristie Crawford, who was recently promoted to principal, was interviewed for a Q&A with the Springfield Business Journal to discuss her legal career. Ms. Crawford practices in the firm s Springfield, Missouri office. Visit our website to read the article. John J. Johnson has been recognized by the Missouri Bar in its Best of CLE Spotlight for his ongoing contributions to continuing legal education in the field of Missouri workers compensation law. Mr. Johnson is chair of the firm s Workers Compensation practice group and routinely lectures on workers compensation issues. Tara Gibbons was named a recipient of the 2010 Diverse Business Leaders Award by the St. Louis Business Journal. The award promotes diversity in race, sexual orientation, and disability, and is given annually to exemplary business leaders in the St. Louis metropolitan area. Tim Wolf has been selected to present Representing Insurers in the 21st Century at the Council on Litigation Management s 2011 Annual Conference, March 23-25, 2011, in New Orleans. David Bub recently spoke at the Missouri Association of Mutual Insurance Companies Annual Conference as a Legal Forum panelist. David has also been selected to speak on The Trial of the Complex Soft Tissue Injury Case at the PLRB/LIRB 2011 Claims Conference on April 3-6, 2011, in Nashville, Tennessee.

13 Case Results Rosie Forrest v. Petersen Health Care. Jefferson County, Illinois. The family of a nursing home resident brought suit against a nursing home, alleging the defendants violated the Nursing Home Care Act and failed to properly supervise and take care of the resident who broke her hip. Plaintiffs alleged the defendants left the resident alone in her room, failed to monitor the resident, and left her alone in a wheelchair instead of putting her in bed. After a three-day trial, the jury returned a verdict for our client after only one hour of deliberation. Tried by John L. McMullin. William Doom v. AutoZone Stores Inc. St. Louis City. In a premises liability case against our national retail client, the plaintiff sought $125,000 in damages after tripping and falling and fracturing his shoulder. After only 20 minutes of deliberation, the jury returned a defense verdict, awarding the plaintiff nothing. Tried by Justin S. Chapell. See v. Creative Building & Development. Greene County, Missouri. Brown & James successfully defended a Springfield area developer after the plaintiffs, who bought a new condo from the defendant, alleged there was moisture damage as a result of an inadequately designed crawlspace. The plaintiffs claimed the moisture caused significant damage and resulted in a loss when they sold the property. After showing a one-time significant rainfall contributed to excess water that the defendant cured, and that a poor real estate market resulted in the loss at sale, the jury returned a defense verdict after a three-day trial. Tried by David P. Bub. Hotop v. Lukefahr Farms. Perry County, Missouri. Brown & James successfully defended Lukefahr Farms in a motor vehicle accident case in which the plaintiff claimed the defendant s driver had operated the defendant s truck at night without lights. The plaintiff claimed $55,000 in medical specials. Our successful defense limited the verdict to $11,500 after reductions for comparative fault. Tried by Brad Hansmann. Ferguson v. Stumpf. St. Charles County, Missouri. Brown & James obtained a defense verdict for our firm s client who was allegedly drag racing another car driven by a codefendant. The co-defendant collided with another vehicle severely injuring the plaintiff. While our client obtained a defense verdict, the jury awarded $280,000 against the co-defendant. Tried by Irene J. Marusic.

14 Firm Inquiry Announcements Patrick Mickey has been invited to join the Theodore McMillian Inns of Court at St. Louis University. Membership is reserved for those lawyers recommended by Masters of the Bench, who represent the most experienced judges, lawyers, and law professors in the St. Louis area. David Ellington presented Apportionment of Fault and Impeachment of Evidence at the ProAssurance Defense Attorney Seminar on October 12, Bob Cockerham presented Investigating, Adjusting and Defending Catastrophic Fire Injury or Death Claims at the 2010 Advanced Insurance Fraud Seminar presented by the Missouri Chapter of the National Society of Professional Insurance Investigators on September 23, Elaine Moss moderated the ALFA International Professional Liability Practice Group tele-seminar, Which Hat Was That Director Wearing? The Entanglement of Professional Liability and Directors and Officers Coverage, on October 28, T. Michael Ward presented Fundamental Issues in Insurance Policy Construction and Interpretation at the Missouri Bar s Annual Insurance Coverage & Litigation Seminar on December 10, 2010, in Clayton, Missouri. Donald L. James, Brown & James founder and an American College of Trial Lawyers member, served as a judge for the ACTL s Region 9 Trial Competition, held on February 17-19, 2011, at the St. Louis Civil Courthouse.