Companies took a beating from Missouri appellate courts in 2014

Missouri appellate courts dealt more than one blow to businesses in 2014 with an onslaught of rulings that can be construed as pro-consumer or pro-employee.

The most consequential is a Missouri Supreme Court decision holding that the state law capping punitive damages could not be applied in the case of an elderly woman who won a fraud claim against a used car dealership.

In the Sept. 9 case of Lewellen v. Franklin, the high court reinstated the $1 million punitive damages award against the dealership, finding that the cap violated the right to a jury trial. This decision rides on the heels of the high court’s 2012 decision in Watts v. Cox Medical Centers, which tossed the state law cap on non-economic damages in medical malpractice cases.

Combine these anti-damage cap cases with the controversial, standout case from the first half of this year, Templemire v. W&M Welding, Inc., and the trend for 2014 appears to be distinctly anti-business.

In Templemire, handed down April 15, the Missouri Supreme Court increased liability for employers and lowered the burden for fired employees by replacing the “exclusive cause” standard with the “contributing factor” standard for workers’ compensation retaliation claims. Legal experts say the decision will force employers to record in detail the reasons for their actions against employees and to be consistent in their discipline.

These cases are the motivation for a first-ever “Judicial Hellhole” ranking from the American Tort Reform Association.

The ATRA listed the Missouri Supreme Court as sixth out of the seven venues it says are unfair to civil defendants. The report also cited Coomer v. Kansas City Royals, handed down in the first half of this year, in which the high court granted a new trial for a baseball fan who was hit in the eye by a hot dog thrown by a mascot.

The Missouri Supreme Court handed down 73 opinions in 2014, compared to 75 last year, 83 in 2012 and 69 in 2011.

The high court’s cases are included in this special issue, which includes the 192 major opinions of the last half of 2014. This issue also highlights the case stories that reported these decisions.

Banks beware

Further illustrating the pro-consumer trend, a pair of Missouri Supreme Court cases issued in August broadened consumer protections offered by the Missouri Merchandising Practices Act by expanding the liability of lenders in connection with real estate mortgage loans.

In the companion cases of Conway v. CitiMortgage and Watson v. Wells Fargo Home Mortgage, the court allowed homeowners to bring unfair or deceptive practices claims under the MMPA.

In Conway, the court also held that third parties that did not originate the loans but became servicers later could still be held liable. These rulings could be applied at some point to other consumer loan and collection activities.

The Conway and Watson opinions joined a decision by the 8th U.S. Circuit Court of Appeals holding that a Kansas City homeowner fighting foreclosure had stated a claim for breach of contract against the lender. The case was Topchian v. JPMorgan Chase Bank.

“Between this case and the Conway and Watson decisions, it’s been a very good couple of months for homeowners. There are now two ways to make banks accountable for wrongful foreclosures,” said John Campbell, the St. Louis attorney who represented the homeowner on appeal.

Not all doom and gloom

But it wasn’t all doom and gloom for businesses as illustrated by mixed decisions coming from Missouri appellate courts in negligence cases.

Although Coomer, mentioned above for its role in raising the ire of tort reformers, was a victory for the injured baseball-fan plaintiff, corporate defendants have held their own in personal injury actions this year.

In DeCormier v. Harley-Davidson Motor Company Group, Inc., the Missouri Supreme Court held that a plaintiff’s allegations of recklessness did not invalidate the corporate defendant’s release of liability in a case that pitted a new motorcycle rider against the motorcycle dealership and its parent company. The rider was injured on a training course during inclement weather, but the court found that the waiver was valid because she did not show a genuine dispute as to whether the defendants had acted in reckless disregard for her safety by sending her out on the course.

In the same November hand down, the Supreme Court also threw out a $225,000 jury verdict for a young girl who was injured on a water ride. In Chavez v. Cedar Fair LP, the issue was jury instructions that the defendant argued employed the wrong standard of care. The 5-2 high court majority granted a new trial, holding that the trial court judge should have used the “ordinary care” standard rather than the “highest degree of care” standard.

Insurance companies may also be coming out on the winning side of Missouri appellate decisions more often, as reported in our Aug. 11 issue after the high court’s opinion in Floyd-Tunnell v. Shelter Mutual Insurance Co.

In Floyd-Tunnell, the court ruled that the widow of a man killed in an automobile accident could not combine the full value of three uninsured motorist polices she and her husband had purchased. The decision marked the third time since last year that the court has favored the insurer.

Finally, in July, the 8th  Circuit upheld a $31.3 million verdict against an investment firm for allegedly misappropriating and using confidential research data. The verdict in favor of Hallmark Cards included $10 million in punitive damages and was the seventh-largest plaintiffs’ win of 2012 as reported by Missouri Lawyers Weekly. The case is Hallmark Cards v. Monitor Clipper Partners.

What’s next?

The Missouri Supreme Court is set to decide several hot-button issues in 2015. Gay marriage was the news-making issue that gained the most steam in 2014, with a state court in St. Louis and a federal court in Kansas City ruling that the state’s ban was unconstitutional.

At the appellate level, the Missouri Supreme Court is set to weigh in on whether two men legally married in another state can be divorced in Missouri. The court heard arguments on the case of M.S. v. D.S. on Dec. 3.  Experts say the court does not have to overturn the gay marriage ban to allow the divorce to proceed.

The high court also heard arguments this fall on whether victims of “fraudulently concealed” deaths can file a wrongful-death action after the expiration of the three-year statute of limitations. The upcoming decision should resolve a conflict from the Court of Appeals. The cases are Boland v. St. Luke’s Health System Inc. and State ex rel. Beisly v. Perigo.

The Court of Appeals also issued conflicting opinions on the issue of co-employee liability. In Peters v. Wady Industries, the Eastern District affirmed a dismissal of a worker’s negligence claim against a supervisor after the worker was injured by a falling stack of baskets. A dissenting opinion requested transfer to the high court based on the Western District’s conflicting decision in Leeper v. Asmus.

Major opinion summaries

Administrative

• Agency Jurisdiction — Neglect Claim — Investigation Deadline
• Agency Jurisdiction — Investigation Deadline — Good Cause
• Garnishment — Agency Immunity — Department Employee
• Income — Self Employment — Agriculture Program
• Tax Refund Request — Subject Matter Jurisdiction
• Taxation — Tobacco Products — First Sale
• Sales Tax — Refunds — Bad Debt
• Sales Tax Exemption — ‘Product’
• Sales Tax — Refunds — Bad Debt
• Social Security — Denial Of Benefits — IQ Test
• Supplemental Security Income — Treating Doctor’s Opinion
• Work Injury — Merit-System Employee — Exclusive Forum

Arbitration

• Motion To Compel — Validity Of Agreement — Consideration
• Rental Purchase Agreement — Tort Case
• Vacated Award — Arbitrator’s Authority — Employee Insubordination

Attorneys

• Multidistrict Litigation — Attorney’s Fees — Common Benefit Fund
• Unjust Enrichment — Attorney’s Fees — Personal Jurisdiction

Bankruptcy

• Administrative Expense Claim — Unpaid Equipment Lease
• Sanctions — Spoliation
• Student Loans — Discharge — Undue Hardship
• Violation Of Stay — Lapse Of Stay — Punitive Damages

Civil Practice

• Default Judgment — Motion To Set Aside — Good Cause
• Mandamus Relief — State Legal Expense Fund — Satisfaction Of Judgment
• Personal Jurisdiction — Notice — Appointment Of Guardian
• Sunshine Law — Exemption — Federal Copyright Act
• Venue — Forum Non Conveniens — Intrastate Transfer

Civil Rights

• Excessive Force — Taser Death — ADA Violations
• Excessive Force — Qualified Immunity
• First Amendment — Campaign Statements — Qualified Immunity
• FMLA — First Amendment — Qualified Immunity
• Police Coercion — Rape Investigation — Qualified Immunity
• Sexual Assault — Jury Instruction — Damages
• Warrantless Arrest — Order Of Protection

Constitutional

• Contraceptive Mandate — Enforcement — Standing
• Religious Freedom — Constitutional Avoidance Doctrine
• Ten Commandments — Establishment Clause

Consumer Law

• Credit Card Dispute — Credit Disability Insurance — Breach Of Contract
• Fair Debt Collection Practices Act — Exclusion Of Evidence — Business Records
• Foreclosure — Mediation Requirement — Ordinance
• Foreclosure — Motion To Remand — Fraudulent Joinder
• MMPA — Educational Program — Punitive Damages
• MMPA — Mortgage Lender — Valuable Consideration
• MMPA — Punitive Damages — Statutory Cap
• MMPA — Wrongful Foreclosure — Loan Modification
• MMPA — Wrongful Foreclosure — ‘In Connection With’
• Mortgage Company Defendant — MMPA — Unauthorized Practice
• Promissory Note — Assignment — Split Cause Of Action

Contracts

• Construction Contract — Expert Witness Struck — Account Stated
• Joint Venture Agreement — Termination Date — Equitable Estoppel
• Termination Agreement — Profit Sharing — Implied Amendment Theory

Corporate

• Fiduciary Duty — Derivative Claim — Merger
• Malpractice Insurance — Corporate Dissolution — Fraud

Criminal Law

• Assault — Intent — Law Officer Defendant
• Assault — Lesser-Included Offense
• Burglary — Stealing — Value Of Goods
• Child Abuse — Evidence
• Confrontation Clause — Pathologist’s Testimony — Impeachment Evidence
• Drug Manufacturing — Joint Control
• Drunk Driving Accident — Blood Sample Seizure — Armed Criminal Action
• DWI — Review Of Testimony — Bench Trial
• Enticement Of Child — Sufficiency Of Evidence — Entrapment
• Excessive BAC — Operating Vehicle — Sufficiency Of Evidence
• Execution Witness — Right To Select — Security
• Felony Child Abuse — Restricted Diet — Sufficiency Of Evidence
• Felony Murder — Instructions
• First-Degree Murder — Confession — Sentencing
• Fraud — Search Warrant — Forfeiture
• Habeas Relief — Effectiveness Of Counsel — Death Penalty
• Habeas Relief — Execution — Competency Hearing
• Involuntary Manslaughter — Sufficiency Of Evidence — Auto Accident
• Laser Pointer — Aimed At Aircraft — Intent
• Post-Conviction Relief — Abandonment — Independent Inquiry
• Post-Conviction Relief — Effectiveness Of Counsel — Plea Agreement Advice
• Post-Conviction Relief — Guilty Plea — Criminal Non-Support
• Racketeering Conspiracy — Sufficiency Of Evidence — Motorcycle Club
• Sex Crimes — Corroboration Rule — Destructive Contradictions — Doctrine
• Rape And Sodomy — Forcible Compulsion — Sufficiency Of Evidence
• Robbery — Sufficiency Of Evidence — Stealing
• Search Warrant — Probable Cause
• Second-Degree Robbery — Physical Force — Sufficiency Of Evidence
• Sentencing — Prior Convictions — Career Offender
• Terry Stop — Officer’s Initial Contact
• Voir Dire — Closed Courtroom — Right To Public Trial
• Voir Dire — Second-Degree Murder — Range Of Punishment
• Warrantless Entry — Consent — Drug Conspiracy

Domestic Relations

• Adoption — Denial Of Petition — Incapacitated Adult
• Adoption — Intervention — Grandparent Visitation
• Adoption — Motion To Intervene — Third-Party Rights
• Child Custody — Settlement Agreement — GAL
• Child Support Extension — Incapacitated Child — Retroactive Application
• Guardianship — Abandonment — Third Party
• Juvenile Jurisdiction — Neglect — Findings
• Maintenance — Appellate Review
• Maintenance — Motion To Terminate — Cohabitation
• Parental Rights — Termination — Abuse And Neglect
• Paternity Judgment — Custody Provision — Subsequent Marriage
• Relocation — Bad Faith — Child Support

Driver’s License

• DWI — Breath Test — Refusal
• DWI — Breath Test Refusal — Reinstatement
• DWI — Private Driveway

Elections

• Ballot Title — Summary Statement

Employer – Employee

• Age Discrimination — Pretext
• Disability Discrimination — Damages — Attorney’s Fees
• Discriminatory Harassment — Hostile Environment — Cerebral Palsy
• Minimum Wage Law — Overtime Compensation — Breach Of Contract
• Minimum Wage Law — Temporary Agency — Joint Employer
• MHRA — Attorney’s Fees
• MHRA — Statute Of Limitations — Savings Statute
• Non-Compete Agreement — Enforceability — Geographic Restriction
• Professional Contract — Independent Contractor — FMLA Claim
• State Employee — Whistleblower Claim — ‘Disclosures’
• Unpaid Commissions — Insurance Broker — Written Agreement
• Work Comp Law — Exercise Of Rights — Contributing Factor
• Wrongful Discharge — Public Policy — Clear Mandate
• Wrongful Termination — Age Discrimination — Reduction In Force
• Wrongful Termination — At-Will Employees — Fire Chiefs
• Wrongful Termination — Whistleblower Law — Emotional Distress
• Employment — Unemployment Compensation — Voluntary Discharge

Insurance

• CGL Policy — Bank Errand — Dual Purpose Doctrine
• CGL Policy — Collection Of Judgment — ‘Temporary Worker’
• CGL Policy — Negligence Action — ‘One Occurrence’
• Declaratory Judgment — Attorney’s Fees — Breach of Fiduciary Duty
• Derivatives Litigation — Notice — Ambiguity
• Failure To Settle — Bad Faith — Damages
• Fire Loss — Jury Instructions
• Flood Coverage — Proof Of Loss Form — Condition Precedent
• Flood Coverage — Proof Of Loss Form — Waiver
• Refusal To Settle — Bad Faith — Equitable Subrogation
• Stacking — Auto Liability Policies — ‘Other Insurance’
• UM Coverage — Owned Vehicle — Partial Exclusion
• Vexatious Refusal — Statute Of Limitations — Title Insurance Policy

Intellectual Property

• Licensing Agreement — False Advertising — Third-Party Beneficiary Claims
• Third-Party Beneficiary Claims — Licensing Agreement — Lanham Act
• Trade Secrets — PowerPoint Presentations — Punitive Damages

Juvenile Law

• Second-Degree Assault — Amended Charge — Right To Notice

Labor

• Workers’ Compensation — Permanently Totally Disabled

Negligence

• Amusement Park Accident — Instruction — Degree Of Care
• Auto Accident — Damages — New Trial Motion
• Auto Accident — Police Chase — Causation
• City Defendant — Affirmative Defense — Notice
• Co-Employee Liability — Safe Workplace — Duty
• Drug Manufacturer Defendants — Failure To Warn — Preemption
• Drug Manufacturer Defendants — Failure To Warn — Statute Of Limitations
• Failure To Warn — Generic Drug Manufacturer
• Juror Nondisclosure — Expert Testimony — Bus Accident
• Lead Poisoning — Agency Law — Punitive Damages
• Legal Malpractice — Fiduciary Duty — Fraud
• Legal Malpractice — Public Stock Offering — Proof Of Profitability
• Medical Malpractice — Causation — Rebuttal
• Medical Malpractice — ‘Employee’
• Medical Malpractice — Statute Of Limitations — Rule Of Nine
• Motorcycle Accident — Training Course — Release Of Liability
• Personal Injury Award — Taxation — Lost Wages
• Personal Injury — Tram Accident — Causation
• Product Liability — Police Car Fuel Tank — Government Report
• Police Interrogation — Right To Counsel — Official Immunity
• Rear-End Collision — Affirmative Defense
• Slip And Fall — Icy Parking Lot — ‘General Condition’
• Wrongful Death — Duty — Traffic Control
• Wrongful Death — Failure To Diagnose — Incurable Tumor
• Wrongful Death — Prejudgment Interest — Waiver
• Wrongful Death — Sovereign Immunity — Fire Department
• Wrongful Incarceration — Res Judicata — Public Duty Doctrine

Probate

• Breach Of Fiduciary Duty — Actual Damages — Sufficiency Of Evidence
• Disputed Conveyance — Beneficiary Deed — Warranty Deed
• Estate Plan Changes — Mental Capacity — Undue Influence
• Fraud — Statute Of Limitations — Substituted Defendant
• Sexually Violent Predator — Civil Commitment — Cross Examination
• Transfer Upon Death — Beneficiary — IRA
• Trust — Letter — Intent To Amend
• Public Utilities — Zoning — Public Hearings — Standard of Review

Real Property

• Condemnation — Jurisdiction — Damages
• Deed Of Release — Below Market Sale — Good Faith
• Fence Dispute — Equitable Relief — Attorney’s Fees
• Quiet Title — Necessary Parties
• Trustees’ Filing — Notice Of Appeal — Unauthorized Practice
• TIF Act — Condemnation

Tort

• Post-Judgment Interest — Nunc Pro Tunc Judgment

Unemployment Compensation

• Denial Of Benefits — Voluntary Quit — Good Cause
• Tax Contributions — Independent Contractors — Control

Workers’ Compensation

• Attorney’s Lien — Undiscounted Medical Bills — Waiver
• Compensable Injury — Parking Lot —Extended Premises
• Compensable Injury — Prevailing Factor — Competing Medical Evidence
• Death Benefits — Lump Sum Settlement — Approval
• Occupational Disease — Causation — Law Of The Case
• PTD Benefits — Termination — Medical Examination
• Settlement Agreement — Specific Performance — Knee Surgery
• Temporary Total Disability — Maximum Medical Improvement