Recent Legal Accomplishments

William Johnson v. Barb Mac IV

Sean Sturdivan and Doug Hill won full summary judgment for their client, a McDonald’s franchisee, in a slip-and-fall case in Wyandotte County, Kansas. The plaintiff and his wife took their grandchildren to McDonald’s on Christmas Eve 2009, while the children’s parents wrapped Christmas presents. After staying at the McDonald’s indoor playground for one to two hours, the plaintiff left with his family and began walking back toward his car. Although there was no falling precipitation and no snow accumulated on the ground, a thin layer of ice had formed on the building’s sidewalk, which caused the plaintiff to fall and allegedly tear a rotator cuff. Sturdivan and Hill argued that, under Kansas case law, the “winter storm doctrine” precluded the plaintiff’s claim. They worked with their expert witness, local TV weatherman Bryan Busby, to show that even though there was no falling precipitation, the ice that formed on the sidewalk was part of a larger winter storm that began before plaintiff’s fall and lasted into the next day. Thus, the defendant argued, the McDonald’s franchise had no legal duty to remove the ice until a reasonable time after the storm had ended. The trial court agreed and granted full summary judgment to the defendant.

Gerlach v. Highwoods Properties

The Missouri Court of Appeals recently handed down a ruling affirming a summary judgment obtained by John Bordeau for his client Highwoods, the owner of property at the shopping district known as the Country Club Plaza in Kansas City. The plaintiff and his daughter were pedestrians, crossing the street on the Plaza and were struck by a negligent motorist. Plaintiffs claimed the traffic conditions at this location were unreasonably dangerous. The trial court granted summary judgment for Highwoods based on the longstanding rule that an abutting private landowner has no responsibility for the traffic controls or condition of the public streets absent special circumstances. After proceeding to trial against other defendants, plaintiff appealed the summary judgment, arguing that Highwoods should have an expanded responsibility for the roadways since it owns property on both sides of the street in question. The Court of Appeals rejected this argument and affirmed the summary judgment in favor of Highwoods. Terri Austenfeld assisted on the brief.

Fire Insurance Exchange v. Caleb Horner and Gail and Darrell Mansfield WD 73902 (consolidated with WD73903) The Missouri Court of Appeals, Western District

Christopher Carpenter and Tracy Hayes successful obtained an affirmation of the trial court's grant of summary judgment in this matter for Fire Insurance Exchange (FIE). FIE provided homeowners insurance to Caleb Horner. Caleb's wife, Misty, died shortly after giving birth to their still born daughter, Sydney, in their home. Based on religious beliefs, Misty Horner did not receive any medical treatment during the pregnancy or delivery. The Mansfields, Misty's parents, have brought a wrongful death action against Caleb Horner and various other parties for the wrongful death of Misty and Sydney. At issue in the appeal was whether there was insurance coverage for the wrongful death of Sydney. Pursuant to the terms of the insurance contract, there was an exclusion for injury to "any resident of the residence premises". FIE denied coverage for both Misty and Sydney as residents of the household. FIE filed a declaratory judgment and the trial court granted summary judgment in favor of FIE. Horner and the Mansfields appealed arguing that the insurance agreement was ambiguous as it related to Sydney because the policy did not define the residency for an unborn child. The Western District Court of Appeals affirmed the trial court's ruling that the policy was not ambiguous, that an unborn child resides wherever her mother resides, and therefore, the policy did not provide coverage in the underlying wrongful death claim.

Proctor v. Kansas City Heart Group, PC, et al.

Jana Richards successfully defended the Kansas City Heart Group, P.C. (“KCHG”) and Timothy Blackburn, M.D. against Plaintiff’s allegations of medical malpractice. Plaintiff Bobbie Jean Proctor was hospitalized after an acute myocardial infarction (emergency heart attack) which required percutaneous transluminal coronary angioplasty with stent. The surgery was performed by Dr. Gerald Mancuso of the Kansas City Heart Group. Post-operatively Mrs. Proctor developed a retroperitoneal bleed, a known but rare complication of the surgery, which then caused respiratory arrest, another rare complication. Mrs. Proctor’s overnight progress was monitored by Dr. Timothy Blackburn of the Kansas City Heart Group. Following the arrest, Mrs. Proctor’s condition was stabilized and she eventually improved back to baseline. Mrs. Proctor made a full recovery following the surgery. Plaintiff sued KCHG claiming that the actions of Dr. Mancuso were negligent for ordering the administration of heparin and integrilin post-op. She also sued KCHG and Dr. Blackburn for failing to recognize the retroperitoneal bleed prior to the respiratory arrest. Defendants’ position was that the administration of heparin and integrilin was warranted based upon the acute/emergency nature of Mrs. Proctor’s heart attack and the occlusion of her arteries. Additionally, based upon Mrs. Proctor’s nighttime vital signs, there was no definitive indication of a bleed as her vitals fluctuated and any issues resolved with conservative treatment. The jury agreed and rendered a defense verdict in favor of the Kansas City Heart Group, P.C. and Timothy Blackburn, M.D.

Hall, et al v. Balderama, et al.

Jana Richards obtained a defense verdict for the trucking company Universal Am-Can, Ltd. and their driver Roque Balderama on a wrongful death claim. Plaintiffs, decedent Stanley Hall’s surviving wife and daughters, claimed that Roque Balderama negligently backed his tractor trailer into the dock at the Hayes-Lemmerz facility in Sedalia, Missouri when Stanley Hall was standing behind the truck facing the dock. Plaintiffs alleged negligence on the part of Mr. Balderama for failing to ascertain the location of Mr. Hall prior to backing his rig into the dock. Mr. Hall, an experienced truck driver, was standing in Mr. Balderama’s blind spot when the truck was backing into the loading facility. Plaintiffs claimed $5,000,000 in damages. Missouri Lawyer’s Weekly voted this verdict to be the 8th top defense verdict in the state of Missouri for 2011.

Runyon, et al. v. Christopher Jones, et al

Brad Russell and Doug Hill successfully defended a construction contract laborer in two consolidated property damage and personal injury cases arising out of a construction zone traffic accident. Plaintiffs alleged that the firm’s client, a roadway construction contract laborer, contributed to the cause of a construction zone accident by failing to place adequate warnings of construction and by failing to use required amber lights on his construction vehicle. On cross-examination at trial, the plaintiff who was driving the vehicle involved in the accident admitted that the presence or absence of amber lighting would not have made any difference in the outcome of the accident, and the jury returned a verdict of zero liability and zero damages.

Kent E. Dobbins v. Cathy Clark

Brad Russell and Sean Sturdivan obtained a defense verdict for a motorist who turned left in front of a world-class triathlete bicyclist. Plaintiff claimed a full thickness tear of his left rotator cuff as well as his past and future medical bills, future lost wages, and pain and suffering. Plaintiff claimed damages of $280,000. Plaintiff’s last pre-trial demand was $70,000. After a 3-day trial, the jury agreed with defendant’s theory that plaintiff bicyclist, who ran into the side of the defendant’s vehicle, was 95% at fault for the accident, resulting in no recovery for the plaintiff.

McClintock v Cortinas

Brad Russell obtained dismissal of an attending psychiatrist from a lawsuit brought by the heirs of a patient who committed suicide. After the dismissal, the case was tried to a jury against the remaining party and a verdict of over $800,000 was issued by the jury.

Buchan v Petersen

Brad Russell obtained the dismissal of an emergency room doctor in a case where the patient died from sudden cardiac arrest within 30 minutes after being discharged from the emergency room.

Adam Leon v. Andrew Herndon

William Denning won a defense verdict in an admitted liability case in the District Court of Wyandotte County, Kansas. The Wyandotte County jury endorsed the defense theory of the case and concluded that though defendant rear-ended plaintiff’s vehicle, plaintiff did not suffer any injury as a result of the accident. Plaintiff sought $16,731.00 for medical expenses, lost wages and pain and suffering.

Kenneth Showalter v. Charles Delay and Goodville Mutual Casualty Co.

Curt Roggow and Brad Russell successfully represented an injured party in an action against Goodville Mutual Insurance Company regarding whether a homeowner’s policy covered a Consent Judgment arising out of an accident with an ATV that was being used in place of a golf cart at a golf course. The court found the policy was ambiguous regarding whether coverage for a golf cart was limited to a piece of equipment specifically designed and manufactured as a “golf cart” as opposed to another mechanized vehicle used for the same purpose.

Dawn Berkvam, DDS v. Henry Schein, Inc.

John Bordeau and Douglas Hill obtained a defense verdict after a jury trial on a claim for breach of contract in Kansas City, Missouri. The plaintiff, a dentist, sought $135,000 for her claim that the defendant had overcharged her for dental supplies over a three year period by failing to live up to an alleged “price matching” agreement. Mr. Bordeau and Mr. Hill argued that no such contract existed, and the jury returned a defense verdict.

Contractor Supply Co., et al v. Ammon Painting Co., et al.

Curt Roggow obtained summary judgment in favor of an equipment rental company and the company’s insurers in a claim for indemnification and coverage regarding a construction accident that resulted in severe bodily injury to an employee of the contractor. Roggow successfully argued that an indemnity clause in the rental contract obligated the contractor that rented the equipment to defend and indemnify the rental company for claims the injured employee and his wife brought against the rental company, and that the indemnity clause was an “insured contract” under the contractor’s policies. The court also agreed that the rental company was an additional insured under the contractor’s insurance policies, and that the contractor’s policies were primary to the rental company’s policies under the terms of the rental agreement.

The Western District for the Missouri Court of Appeals affirmed summary judgment in Case No. 2009WL2365578. The case later settled while transfer to the Missouri Supreme Court was pending.

American Home Assurance Company v. The Hertz Corporation

Curt Roggow obtained summary judgment for The Hertz Corporation regarding a claim by American Home Assurance Company for contribution or indemnity for settlement of bodily injury claims by passengers in a rental car who were involved in a one-car accident. Roggow argued the terms of the rental agreement unambiguously made the driver’s auto liability coverage primary to any self-insured liability protection Hertz would provide. Roggow also argued that since Hertz was a “self-insurer,” the self-insured liability protection it offered under the rental agreement did not constitute “insurance” within the meaning of the “other insurance” clause of the driver’s policy. The trial court granted summary judgment to Hertz on the claim.

Michael Hanna v. Derek, Inc. d/b/a McDonald’s

Sean Sturdivan obtained defense verdict in products liability case where plaintiff alleged personal injuries resulting from an alleged foreign object in his Sausage and Egg McMuffin. After a bench trial and filing of legal briefs on the standard applicable to strict liability cases involving food products in Kansas, the Court found Mr. Sturdivan’s arguments persuasive and entered judgment in favor of the defendant.

State of Missouri ex rel. Chris Koster, Attorney General v. Professional Debt Management, Inc.

Sean Sturdivan obtained a dismissal with prejudice for the defendant by successfully arguing that the Attorney General failed to state a claim on its allegations that defendant, a debt collection company, violated the Missouri Merchandising Practices Act (MMPA) through its debt collection activities. Sturdivan argued that the MMPA did not apply to debt collection activities. The Circuit Court agreed and dismissed the case with prejudice. The case presented an issue of first impression for the Missouri state courts and was upheld on appeal by the Eastern District of Missouri Court of Appeals.

Morton Glazer v. Geoffrey L. Blatt, M.D., et al

Brad Russell obtained dismissal of Dr. Blatt in a medical negligence case claiming that the physician failed to properly treat a post-traumatic subarachnoid hemorrhage.

Kinnaird v. Farmers Insurance Company, Inc., et al.

Chris Carpenter and Doug Hill secured summary judgment for their client on a wrongful death case in which the insured was attempting to stack several uninsured motorist insurance policies. The insured’s adult son, which was not a resident of the insured’s home at the time of the loss, was killed in an automobile accident, but had just moved out of his father’s residence a few days before the accident. On behalf of their client, Carpenter and Hill filed and argued a motion for summary judgment stating that the plaintiff could not stack the UM limits of the policies in the plaintiff’s household since the plaintiff’s son was not a member of his household on the date of the accident. The trial court agreed and granted the motion for summary judgment.

Nance v City of Desoto, Kansas et al

Brad Russell obtained a defense verdict in a nuisance case tried in the District Court of Johnson County, Kansas. An adjoining landowner claimed that the defendants caused an unnatural alteration in the water flow when constructing a residential home which led to damages of $490,000.

Keith v. Timberman, et al.

Brad Russell prevailed on a Motion to Dismiss resulting in a dismissal with prejudice of the Firm’s client. Plaintiffs attempted to bring suit against the Firm’s client, the owner of a business providing motorcycle escorts for funeral proceedings, under the “something more” doctrine. Plaintiffs alleged that the owner of the funeral escort company put its employee, the decedent, in a position of danger or peril, and therefore, were liable to the decedent’s heirs.

On behalf of their client, Russell and Roth filed a Motion to Dismiss arguing that the “something more” doctrine did not apply to the facts of the case and the Court lacked jurisdiction over the matter. The Court agreed, and dismissed the case against the Firm’s client with prejudice.

Wick et al v Paris Beauty Salons

Brad Russell and William Denning recently obtained summary judgment in a multi-party products liability action pending in the Circuit Court of Jackson County, Missouri. The 3 plaintiffs had demanded more than $10 million in damages based on claims that the defendants acrylic nail products caused auto-immune disorders.

Gerlach v. Highwoods Properties

John Bordeau successfully obtained summary judgment for Highwoods Properties in a case arising out of a vehicle and pedestrian accident in Kansas City within the area known as the Country Club Plaza. Highwoods owns several properties surrounding the city street where plaintiff was struck by a third-party motorist while crossing the street in a crosswalk. Plaintiff claimed that Highwoods failed to control traffic conditions through the use of traffic control devices, thereby resulting in the accident and plaintiff’s injuries.

Highwoods moved for summary judgment on the basis of Missouri’s “abutting landowner rule,” which holds that an abutting landowner is not responsible for the conditions on a public street, including traffic controls, because such controls are exclusively within the jurisdiction of the municipality. No exceptions to the abutting landowner rule applied in this case and city officials testified that only the city had the legal ability to install or alter traffic controls. The trial court agreed, and the case against Highwoods was dismissed. Plaintiff sought damages in the amount of $2,000,000 plus punitive damages.

Andrei S. Sorkin, et al. v. Stephens & Company, Inc., et al.

Curtis Roggow of the Firm successfully defended a professional liability claim against a real estate agent/land broker. Plaintiffs alleged negligence and breach of fiduciary duty in connection with the sale of 287 acres of land. Plaintiffs alleged that Stephens & Company was negligent and failed to use the care and skill required of a real estate agent in listing and selling the property. After a four day jury Trial, plaintiffs asked the jury to award $1.7 million dollars. The jury returned a verdict finding 0% fault on Stephens & Company.

Joyce Greer v. Ann Galbraith

In this personal injury lawsuit defended by Brad Russell and William Denning in Johnson County, Kansas, plaintiff alleged a torn medial meniscus in the knee, S.I. joint dysfunction in the hip, lower back injuries, and soft tissue injuries to the neck. Plaintiff had incurred $32,140.04 in past medical expenses and alleged $118,000 in future medical expenses. Plaintiff also claimed significant interruption of her household services in that the injuries impaired her ability to provide care to a disabled adult daughter including feeding her three times a day by bending down onto the floor, and lifting her out of the bed. Prior to trial, plaintiff’s only demand was for the defendant’s $100,000 policy limits. Defendant had offered $6,500 in a pretrial settlement conference and was willing to contribute additional sums of money towards settlement; however, plaintiff never reduced her settlement demand below the $100,000 policy limits. At trial, the jury returned a verdict totaling only $7,100.