Amy L. Coopman and Luke R. Hertenstein are members of the firm’s Employee Rights Practice Group, known as KC Employment Lawyers. Amy can be contacted at (816) 460-2887 (direct) or ACoopman@fwpclaw.com. Luke can be contacted at (816) 460-2838 (direct) or LHertenstein@fwpclaw.com.

Whenever the death of a person results from any act…or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who…would have been liable had death not ensued shall be liable in an action for damages, notwithstanding the death of the person injured…

In wrongful death actions brought against health care providers, R.S.Mo. §538.210 places the following limit, or “cap”, on the amount of non-economic damages which can be recovered, which may, by statute, be adjusted for inflation:

In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars per occurrence for non-economic damages from any one defendant as defendant is defined in subsection 2 of this section.

The constitutionality of R.S.Mo. §538.210 was recently challenged in Sanders v. Ahmed, M.D., et al., 2012 Mo. LEXIS 88 (Mo. banc April 3, 2012). In Sanders, plaintiff Ronald Sanders obtained a judgment against Iftekhar Ahmed, M.D. and Iftekhar Ahmed, P.A. for the wrongful death of his wife. Sanders alleged Ahmed failed to recognize and properly treat increasing levels of ammonia in his wife’s body, causing Ms. Sanders irreversible brain damage which ultimately caused her death. The jury awarded the following damages:

Ahmed filed a motion pursuant to §538.210 for the application of the cap on non-economic damages. The parties and court agreed the cap, adjusted for inflation at the time of the trial, was set at $632,603.82 per each of the two defendants. Applying the statutory cap, the court reduced the non-economic damages award from $9.2 million to $1,265,207.64. Sanders filed a motion to amend the judgment, alleging the statutory caps were unconstitutional. The trial court denied the motion, and Sanders appealed the decision. The Missouri Supreme Court accepted review of the case to determine the constitutionality of the statutory cap.

On appeal, Sanders argued the statutory cap (i) violated the Missouri Constitution’s right of trial by jury, and (ii) impermissibly interfered with the judiciary’s performance of its constitutionally assigned power to render judgments in conformity with the jury’s verdict. Article I, section 22(a) of the Missouri Constitution, first adopted in 1820, provides “[t]hat the right of a trial by jury as heretofore enjoyed shall remain inviolate.” The Court noted the material language in this clause is “as heretofore enjoyed,” and found this language creates a “cutoff” , in that the Missouri Constitution “protects the right as it existed when the constitution was adopted and does not provide a jury trial for proceedings subsequently created.”

The Court reaffirmed prior case law holding that “Missouri does not recognize a common-law claim for wrongful death,” and that “a claim for damages for wrongful death is statutory; it has no common-law antecedent.” Therefore, because the wrongful death cause of action was created by the legislature, the legislature retains the power to define and limit the remedy available, as in this instance, where the legislature elected to place a cap on the amount of non-economic damages recoverable under R.S.Mo. §538.210. Thus, the statute does not violate Article I, section 22(a) of the Missouri Constitution.

As to Sanders’ claim of a separation of powers violation, the Court quotes Article II, section 1 of the Missouri Constitution, which states:

The powers of government shall be divided into three distinct departments – the legislative, executive and judicial – each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.

The Court then walks through the history of the wrongful death cause of action and the process of adjudicating a wrongful death claim, holding:

In adopting this statute, the General Assembly created the law through which the wrongful death cause of action operates. The fact-finder – whether judge or jury – makes a factual determination when returning its verdict. The judge then enters judgment by applying the law to the fact-finder’s determination. The limit on damages within section 538.210 [sic] interferes neither with the jury’s ability to render a verdict nor with the judge’s task of entering judgment; rather, it informs those duties.

The remedy available in a statutorily created cause of action is “a matter of law, not fact, and not within the purview of the jury.” [citation omitted]. To hold otherwise would be to tell the legislature it could not legislate; it could neither create nor negate causes of action, and in doing so could not prescribe the measure of damages for the same.

Again, it is important to note that the statutory cap on non-economic damages for wrongful death claims addressed in Sanders applies only to those wrongful death claims brought against a “health care provider” which arise out of the rendering, or failure to render, health care services. However, to the extent a plaintiff brings such a claim, Sanders instructs that R.S.Mo. §538.210 is a constitutional and enforceable limitation on recoverable non-economic damages.

Christopher Zarda is an Associate at Foland, Wickens, Eisfelder, Roper & Hofer, P.C. in Kansas City, Missouri. He can be reached at (816) 460-2860.

Well, the Family Educational Rights and Privacy Act (“FERPA”), and its implementing regulations, afford you the legal ability to view and challenge that record. 20 U.S.C. §1232g; 34 C.F.R. §§99.1 et seq.

Enforcement of Access

You have the right to access to view your file.  20 U.S.C. §1232g(a)(1)(A).  A school must provide you that access within 45 days of your request at the latest.  34 C.F.R. §99.10(b).  Although not required by the Federal Regulations, it is best practice to put your request in writing.

A problem can occur at this stage.  For example, the school might forbid you access, or the school wants to charge you fees for searching for, retrieving or allowing inspection of the educational records.  While the school can charge for the actual copies, it may not charge fees for search, retrieval or inspection. 34 C.F.R. §99.11.

If you are denied timely or complete access, the most recent Supreme Court discussion on the matter leads to the conclusion that one does not have a private cause of action for a school’s violation of FERPA.  Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002); Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 431 (2002).

You, however, may file a written complaint with Secretary of the United States Department of Education. 34 C.F.R. §99.63.  The Secretary of Education has full power and standing to enforce FERPA.  20 U.S.C.  §1232g(f).  The Secretary is vested with broad powers for violations, including voluntary compliance agreements, compulsion and removal of federal funding.  34 C.F.R. §99.67.

The Secretary has designated the below address as the location to file complaints:

Family Policy Compliance Office (“FPCO”)
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202

 34 C.F.R. §99.63. 

FPCO has a useful website which contains the Federal Regulations discussed: http://www2.ed.gov/policy/gen/guid/fpco/index.html (Consultation of this website for specific definitions, which is beyond the scope of this article, is useful). This website also has some complaint forms, which should be completed and attached to any letter sent.

A FERPA complaint is not a matter that is filed with your local Office of Civil Rights (“OCR”).  Although, those local OCR offices might have some concurrent ability to handle the matter.

Your complaint must be filed within 180 days of its occurrence, and it must state facts demonstrating the violation. 34 C.F.R. §99.64.  It is best to attach any documents that support your facts.  If the school made a response to your request, a copy of that should be included too.  An example of a complaint letter might be:

Re:    FERPA Violation
Records of Student Bob Doe
XYZ School District                         

Dear Secretary of Education:

We are the parents of Bob Doe who attends 6^th Grade in the XYZ School District.  On January 4, 2012, I requested the ability to view my child’s education records at the XYZ School District.  I placed that request in writing. (Please see the attached email).  It is presently, March 4, 2012. The school has responded that I am not allowed to view my child’s file. (Please see attached response to my email). To date, I have not been permitted access to my child’s records.  More than the 45 days permitted by 34 C.F.R. §99.10(b) have elapsed.  Therefore, I am filing this written complaint against the XYZ School District.  Also, please help me obtain access to these records.

Sincerely,
John and Jane Doe

The FPCO will acknowledge your complaint and keep you apprised of its progress and outcome.  34 C.F.R. §§99.65-.67.  

 Challenging Accuracy (Amendment and Enforcement)

Problems can occur while viewing the file.  Say you find:

a) something missing;
b) something included that should not be; or
c) an error. 

You have recourse and may challenge the content of your educational record. 20 U.S.C. §1232g(a)(2).

The first step in the process is a request to the institution to change the record. 34 C.F.R. §99.20(a).  There is no written request requirement in the Federal Regulations.  However, the school might have a written request requirement.  Even if it does not, it is always best to put the request in writing to avoid confusion.  For example:

Re:    Records of Student Bob Doe

Dear Superintendent Jones:

We are the parents of Bob Doe who attends 6^th Grade in your XYZ School District.  On January 4, 2012, I requested the ability to view my child’s education records at the XYZ School District.  After doing so, I found that Bob’s grade for his 1^st quarter Math is listed as “Incomplete.”  The report card we received on October 28, 2011 shows that Bob received a “B” for his 1^st quarter Math grade.  Please rectify this inaccuracy in Bob’s records to show that he received a “B”; not an “Incomplete.”

Sincerely,
John and Jane Doe

In this manner, you are setting forth the exact inaccuracy you believe exists and the specific action that you wish the school to take.  After receipt of the request, the school must make an administrative decision on whether or not to grant the amendment.  34 C.F.R. §99.20(b).  The only time restriction for this decision is a “reasonable time.”  I would posit, that with the 45-day time limitation concerning access (discussed above), anything longer than 45 days would likely violate the “reasonable time” standard.

If the school opts to change the record, congratulations.  The school is required to send you written confirmation and a copy of the amendment. 34 C.F.R. §99.21.

If not, the school is required to inform you of its decision and of your right to a hearing.  34 C.F.R. §99.20(c).  (Nothing in this section requires that school’s notification to you to be in writing).  If you request a hearing, one must be provided within a “reasonable time.”  If you request a hearing, although the Federal Regulations do not require it, you should put the same in writing. For example:

Re:    Records of Student Bob Doe

Dear Superintendent Jones:

We understand that the XYZ School District has refused to grant the amendment to Bob Doe’s records that we requested in our correspondence of March 1, 2012.  As such, we request our right to a hearing based on 34 C.F.R. §99.20-.22.

Sincerely,
John and Jane Doe

A member of the school district that has no direct vested interest in the matter may serve as the hearing officer. 34 C.F.R. §99.21. While this might not seem like the most impartial hearing officer, it is the current state of the law but is changeable by the Secretary of Education issuing new implementing regulations.  If enough people ask for the regulation to change, the Secretary might consider doing so.

You will have the right to notification of the hearing’s date, time and location; the right to have an attorney at your own expense; and the right to present evidence. 34 C.F.R. §99.22.  The Hearing Officer must issue a reasoned decision using only the evidence presented at the hearing, and stating why the Hearing Officer is issuing that particular decision.  Id.

The Federal Regulations do not denote any right to judicial review of the Hearing Officer’s decision to Federal District Court.  Gonzaga Univ. leaves the distinct impression that there is no federal judicial review of the Hearing Officer’s decision.  536 U.S. at  298.  But also, the Secretary of Education would have the ability to issue a decision contrary to the Hearing Officer.  Id.

As such, if you are not satisfied with the outcome of the hearing, you could file a complaint with FPCO in the same manner as set forth above concerning your rights to access.

By:  Michael L. Belancio

The statute defines credit agreement as “an agreement by a financial institution to lend or delay repayment of money, goods or things in action, to otherwise extend credit or to make any other financial accommodations.”  A creditor is “a financial institution which extends credit or extends a financial accommodation under a credit agreement with a debtor.”  A debtor is simply a person who obtains credit or receives a financial accommodation under a credit agreement with a financial institution.

A purpose of the Commercial Statute of Frauds is to prevent misunderstandings between banks and borrowers when borrowers attempt to renegotiate their notes or indebtedness.  Often is the case where a bank officer makes certain statements or appears to promise concessions that the borrower misconstrues.  Unless such statements are in writing, contain the material terms, and the writing is signed by both the bank and the borrower, they are not enforceable. 

Another example is after a notice of foreclosure is sent.  The borrower in default might call the bank in hopes of working out a postponement or cancellation of the foreclosure.  However, a diligent bank requires that the borrower come to the bank and in exchange for the postponement or cancelation offer some sort of consideration.  The agreement, including the consideration offered by the borrower, to postpone or cancel the foreclosure should be in writing. 

If banks and borrowers follow the Commercial Statute of Frauds, each will be protected.  The intent of the statute is “to insure there is written evidence of credit agreements and to prevent lawsuits based on disputed oral agreements to lend money or the disputed terms for lending the money.”  In Re Bryant Manor, LLC v. Bank of America, N.A., 434 B.R. 629, 633 (Bankr. D. Kan. 2010).

Submitted by Jason Leiker

On April 2, 2004, Bonnie Rodrick tripped on a rug at a Wal-Mart store in Maryville, Missouri, fracturing her left hip and requiring surgery, rehabilitation, and subsequently, a total hip replacement.  Invoking diversity jurisdiction, Rodrick sued Wal-Mart in 2007 in the United States District Court for the Western District of Missouri, asserting tort claims.  When the jury returned a verdict in favor or Wal-Mart, Rodrick filed a motion for new trial, which was denied. 

On appeal to the 8^th Circuit, Rodrick argued that the district court erred in denying her motion for a new trial, challenging: (1) the court’s admission of the testimony and “expert” report of Dr. Simon, a physician who conducted an independent medical examination, who testified based upon his own personal observations of Rodrick; (2) the court’s exclusion of evidence regarding prior falls on the same rug, which Rodrick sought to introduce by way of cross-examination; and (3) statements from defense counsel during closing arguments regarding the good character of the Wal-Mart store manager, which had been discussed during voir dire.

First, regarding the “expert” report of Dr. Simon, Rodrick argued that it should not have been admitted at trial because it did not comply with Fed. R. Civ. P. 26(a)(2), which dictates the form and framework of disclosed expert reports.  Although the report did not comply with Rule 26, Dr. Simon was still allowed to testify at trial regarding his personal observations of Rodrick during his independent medical examination. 

The court found that the use of Dr. Simon’s report at trial was harmless because there was no surprise or prejudice to Rodrick.  Wal-Mart disclosed Dr. Simon and his report a year and a half prior to trial.  Rodrick made no objections to Dr. Simon’s report or requests for supplementation until the day he was to testify at trial.  Dr. Simon was not allowed to testify as an expert, but rather, he testified only about his own observations, as specifically directed by the district court.  Although Dr. Simon’s report was discussed during trial, it was never admitted into evidence.  Based on the foregoing, the 8^th Circuit declined to reverse based on the admission of Dr. Simon’s testimony, finding that it could only have had only a slight impact, if any at all, on the jury’s verdict.

Second, regarding prior incidents, Rodrick obtained a copy of written notes from a Wal-Mart “Risk Control Weekly Team Meeting” that was held five days after Rodrick’s fall.  These notes referenced that Wal-Mart pulled up the rug that Rodrick tripped on because it was the second incident involving that rug at that location.  Rodrick sought to use this evidence to impeach the Wal-Mart store manager who testified that it was standard protocol when an accident like this occurs to “take pictures, do the incident report, and then [in a case like Rodick’s], store the mat away.”

Outside the presence of the jury, the parties discussed the first incident at length.  The prior incident involved a Wal-Mart customer who had recently undergone knee surgery.  The customer put his foot down on the rug and pushed it forward, causing stress to the customer’s knee, which apparently led to a fall.  According to the testimony of the store manager, there was nothing wrong with the rug at that point, nor was the rug the cause of the fall.  Rather, the customer pushed the rug, which is the reason it was not picked up.  The district court found that although the two incidents involved the same rug at the same location, they were too dissimilar to allow use of the prior incident evidence for impeachment purposes at Rodrick’s trial, assuming the evidence was proper impeachment evidence in the first place.  The 8^th Circuit held that the district court did not abuse its discretion in denying use of the prior incident evidence, finding that the two incidents were not similar – one a slip because a customer pushed a rug and became off-balance, and one a trip.

Third, regarding improper statements of counsel during closing arguments, Wal-Mart’s counsel referenced statements made by potential jurors during voir dire, stating, in effect, that the jury heard other potential jurors talk about the good character of Wal-Mart’s store manager.  Rodrick’s counsel objected to these statements, which were sustained by the district court with an instruction to the jury to disregard them.  The 8^th Circuit stated that a new trial can only be granted based on improper statements made during closing arguments if the statements are “plainly unwarranted and clearly injurious” and “cause prejudice to the opposing party and unfairly influence a jury’s verdict.”  The 8^th Circuit found that Rodrick had failed to meet this burden, finding that the comments were not clearly injurious, given the context in which they were made, the immediate objection, which was sustained, and the court’s immediate curing instruction.

AFFIRMED.

Author: Philip V. Sumner, (816) 460-2811 (direct), psumner@fwpclaw.com

The approved procedure can be found in Distributor Overhaul Information Letters (DOILs) issued first by RR’s predecessor and then by RR themselves.  DOIL 24 related specifically to the compressor case and was periodically updated. Because RR’s predecessor did not restrict redistribution of the earlier versions, AHS was able to acquire DOIL 24, revisions 1 through 7, sometime in the 1990s.  Thereafter, RR’s predecessor began protecting the revisions to DOIL 24 by including a proprietary rights legend and requiring its Authorized Maintenance Centers (“AMCs”), to whom the DOIL revisions were exclusively distributed, to execute agreements specifying the proprietary nature of the information, a prohibition on distribution, and a requirement that all proprietary information be returned at the end of the relationship.

This lawsuit arose over, among others, AHS’ use of DOIL 24, revision 13 – which had been drafted after RR began protecting its proprietary information.  The 8^th Circuit affirmed the district court’s ruling that DOIL-revision 13 qualified as a trade-secret under the Uniform Trade Secret Act (“UTSA”).  The UTSA defines a trade secret as information “… that (1) derives independent economic value… [and] is not readily ascertainable by proper means… and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy”.  

AHS argued the information contained in DOIL 24 could not provide independent economic value because there was only a trivial amount of information that was not readily ascertainable from prior revisions.  The Eighth Circuit dismissed this argument stating, “we need not examine [this issue] so long as the documents have a value independent of older publicly available versions.”  The Court then discussed RR’s efforts to maintain the DOILs secrecy and ruled that because the documents in question were misappropriated, the fact that there were reasonable efforts to maintain its secrecy was not defeated.

 Mark M. Haddad is an Associate at Foland, Wickens, Eisfelder, Roper, & Hofer, P.C. in Kansas City, Missouri.  He can be reached at mhaddad@fwpclaw.com.

The plaintiffs in Overbey purchased a vehicle and entered into a contract with Chad Franklin Auto Sales for a “payment for life” program.  Plaintiffs paid a one-time joining fee of $500.00 in exchange for a monthly payment of $49.00.  Six months after entering into the contract, Plaintiffs returned to the dealership to attempt to trade for another vehicle.  The sales person denied the existence of the contract and informed Plaintiffs they owed a monthly payment of $719.52 for the next 65 months.

Plaintiffs filed suit under the Missouri Merchandising Practices Act (“MMPA”), alleging the dealer and dealership made fraudulent misrepresentations regarding the sale.  A jury awarded Plaintiffs $76,000.00 in actual damages and $250,000.00 in punitive damages against the dealership.  The jury also awarded Plaintiffs $4,500.00 in actual damages and $1 million in punitive damages against the dealer in his personal capacity.

The trial court, pursuant to the MMPA’s punitive damage caps, reduced the punitive damages award against the dealer to $500,000.00.  On appeal, the plaintiffs claimed the cap on punitive damages violated the right to trial by jury, Due Process and Equal Protection, the Separation of Powers Doctrine, and that the cap constituted a special law prohibited by the Missouri Constitution.

The Court rejected Plaintiffs’ jury right argument, noting that the MMPA was a statutory creation and that the legislature is permitted to choose what remedies are permitted under a statutorily created cause of action.  The Court analogized this position with similar conclusions reached concerning damages caps applied to claims and judgments under Title VII of the Civil Rights Act of 1964.

The Court rejected Plaintiffs’ argument that the trial court’s use of remittitur to reduce the punitive damages violated the separation of powers doctrine, finding that remittitur was merely incidental to the legislature’s power to define the right it created.  The reduction was not based on the trial court’s findings, but rather a legislative limitation on damages.

The MMPA exempts three types of claims from its cap on punitive damages: (1) claims brought by the State; (2) claims in arising from the same acts for which the defendant has been convicted of a felony; and (3) claims brought for housing discrimination.  The Court rejected Plaintiffs’ Equal Protection and Special Law argument, finding that a rational basis existed for all three exceptions.  The Court held there is a rational basis for claims brought by the State in that the State brings suits on behalf of all citizens.  The Court found a rational basis for felony convictions, noting that a felony conviction signifies reprehensible conduct.  The Court found a rational basis for housing discrimination claims in that housing discrimination victims fall into a traditionally suspect or vulnerable class of citizens.

Finally, the Court summarily rejected Plaintiffs’ Due Process claim.  The Court noted that Plaintiffs’ argument was based on the flawed premise that Plaintiffs’ had property rights in the damages award.  The Court held that Plaintiffs could not have property rights in the amount over the cap because they never had a right to the monetary amount over the cap.

Overbey leaves no doubt that damages caps are constitutional if enacted by the legislature for statutorily created causes of action.

Cory Atkins is an associate focusing on litigation.  He is a former law clerk to the Honorable Zel M. Fischer, Supreme Court of Missouri.

In claims arising out of construction defects and faulty workmanship, insurers are often faced with many difficult coverage questions. Not the least among these are the issues surrounding the “occurrence” and “property damage” issues, but equally important is a proper assessment of the applicability of Business Risk exclusions. On January 31, 2012, the Missouri Court of Appeals, Eastern District, rendered an opinion providing guidance as to the interpretation of the “your work” exclusion found in many commercial general liability policies.

In Cook’s Fabrication & Welding, Inc. v. Mid-Continent Cas. Co., Continental Equipment Co. hired Cook’s to install two mast radial stackers at quarries owned by LaFarge North America, Inc. Cook’s installed the stackers at two Missouri quarries owned by LaFarge. Greystone, Inc. manufactured the stackers, which were intended for use as conveyors to move rock and gravel from one location to another. After Cook’s completed installation, both stackers collapsed, causing damage including hindrances to each quarry’s ability to continue doing business while awaiting repairs. 

In 2006, LaFarge filed a products liability suit against Greystone in federal court alleging damages of lost business, business opportunities, and profits. In turn, Greystone filed a claim against Cook’s for indemnification, alleging Cook’s had negligently installed the stackers.

At the time of the stacker collapses, Cook’s was insured under a CGL policy issued by Mid-Continent. Mid-Continent initially agreed to defend Cook’s in the federal lawsuit but then withdrew its defense, having determined coverage was precluded by the policy’s “Damage To Your Work” exclusion. In April of 2008, Cook’s filed a declaratory judgment action against Mid-Continent in state court asking the court to declare any liability assigned to Cook’s in the federal suit was covered by the CGL policy.

In November of 2008, Greystone paid $380,000 to LaFarge in settlement of the federal suit. It then initiated a state-court lawsuit against Cook’s for indemnification, again alleging Cook’s negligently installed the stackers and was responsible for the damages to LaFarge. Greystone alleged the money it paid satisfied LaFarge’s damages for lost profits during the time the stackers were inoperable and under repair. Mid-Continent against declined to defend Cook’s. The trial court found for Greystone’s and ordered Cook’s to indemnify Greystone for the full amount paid to LaFarge.

Greystone then filed a cross-claim in Cook’s declaratory judgment action seeking garnishment against the Mid-Continent policy. All parties filed summary judgment motions, and the court ruled in favor of Mid-Continent. Naturally, an appeal followed.

Mid-Continent contended its “your work” exclusion barred coverage completely. The exclusion stated, “This insurance does not apply to … ‘property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’” Mid-Continent focused on the phrase “arising out of,” arguing that because all the damages at issue arose out of Cook’s work they were not covered. Cook’s and Greystone disagreed, asserting the exclusion applied only to damage to Cook’s work, not all damage arising out of Cook’s work.

The Court of Appeals agreed with Cook’s and Greystone, noting the exclusion clearly barred coverage only for damage to Cook’s work (as opposed to damages to property other than Cook’s work but which still arose out of it). Additionally, the Court compared the exclusion to the policy’s definition of “products-completed operations hazard” and concluded the interpretation urged by Mid-Continent was impermissible. The Court reasoned, “A plain reading of these two policy provisions reveals that while the PCOH definition in the instant case encompasses certain ‘“property damage”…arising out of…“your work,”’ the exclusion addresses only the portion of that same property damage which was actually caused to ‘your work.’ Both contain the same language concerning property damage arising from the insured’s work, and both clearly address property damage falling within the definition of PCOH. However, the exclusion contains the qualifying phrase ‘to your work,’ thereby removing from coverage property damage that falls within the PCOH definition, but that actually occurred to the insured’s work. Any remaining property damage meeting the definition of PCOH but occurring to property that was not the insured’s work, it follows, would be covered.” The Court further found these provisions to be unambiguous.

Actually, the Court concluded an ambiguity would exist only under the interpretation of the exclusion advanced by Mid-Continent. “If the exclusion in fact addresses all property damage arising from ‘your work’ and ‘included in the PCOH definition,’ then the exclusion would remove coverage for all property damage included in the PCOH definition, rendering the latter provision illusory.”   

Thus, the Court held the “your work” exclusion applies not to any damage arising out of an insured’s work but only to damage specifically to the insured’s work. The exclusion, therefore, does not apply to damage to other property even if it does arise out of the insured’s work.

The Court then assessed the application of the exclusion in light of the specific damages assessed against Greystone and, as indemnitor, Cook’s.  The policy defined “your work” as “(1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or operations.” The Court held, “It is clear that the work or operation Cook’s performed was installation of the mast radial stackers. The materials and equipment furnished in connection with the installation would include the stackers themselves and any equipment necessary for installation. Therefore, applying the plain language of the policy, any physical damage to the stackers or related equipment Cook’s installed, or any loss of use of those items, would constitute ‘property damage’ to Cook’s’ ‘work,’ and would not be covered due to the policy exclusion.”

The more interesting issue, however, concerned LaFarge’s loss of use of other equipment and the quarry itself. Remember, the damages Greystone paid to LaFarge in settlement of the latter’s claim included the loss of production capacity and loss of use of its facilities as a result of the stacker collapse. The Court held this was “damage to property falling under the definition of PCOH, but property that is not part of the mast radial stackers or the installation thereof. This would therefore not be excluded by the ‘Damage To Your Work’ policy exclusion, rather these damages would be coverd by the PCOH definition in the policy.”

In essence, the Court determined that, while loss of use of the stackers themselves was not covered because it was damage to Cook’s work, loss of use of the quarries and other equipment used at the quarries – including profits lost – were covered because that damage was not damage to “your work,” even though the loss of use of those items was caused by the loss of use of Cook’s work.

By:  Jim Maloney

If one’s prior D.U.I. convictions are over 10 years old, the third D.U.I. is now only a misdemeanor.  In this manner, someone who had some youthful indiscretions can obtain a break if they obtain a D.U.I. later in life.

It should be noted, that the over 10 year old provision does not provide any leniency for fourth or subsequent D.U.I.s.

Also, even where the third D.U.I. is a misdemeanor, many of the same minimum punishments are still applicable.  And, regardless of whether a felony or misdemeanor, the third D.U.I. usually results in one’s license being suspended for 1 year with the need to have an ignition interlock for another two – three years (depending on the severity of one’s BAC).  The main benefit is that one is protected from being a felon – with the loss of civil liberties that come with it.

With this new wrinkle in the D.U.I. law it is as important as ever to have competent representation at one’s criminal and administrative D.U.I. proceedings.

 By:  Michael Belancio