Background
Virtually all property policies provide an insurer with the right to rescind coverage when there’s evidence that the insured intentionally concealed or misrepresented material facts in their application for insurance. For a misrepresentation to be deemed material, it must have been an untrue fact that would have, if the truth was known, caused the insurer to reject the application. In other words, an insurer is entitled to truthful responses so that it can determine whether the applicant meets its underwriting criteria.
Under that backdrop, the U. S. Court of Appeals ...
The U. S. Court of Appeals for the Third Circuit found private health insurers could seek double damages in federal court under the Medicare Secondary Payer Act. In re Avandia Marketing, Sales Practices and Products Liability Litigation, 685 F.3d 353 (3d Cir. 2012) is believed to be the first appellate case to reach this holding. The Court’s reasoning has been adopted by other circuits in similar cases. This case has significant implications for defendants and their insurers who settle cases or pay judgments involving Medicare Part C beneficiaries. Precautions employed to ...
The Madison County Circuit Court recently granted defendant U.S. Steel Corporation’s Motion for Summary Judgment, in the matter of Taylor v. Air & Liquid Systems Corp., a/k/a Buffalo Pumps, Inc., et al., Case No. 15 L 652. This was a wrongful-death case arising from alleged exposure to asbestos on U.S. Steel’s premises. A key question was whether U.S. Steel, as the premises owner, owed a duty under negligence law in Illinois to the spouse of an employee of an independent contractor who had worked at its facilities.
The decedent, Cheryl Taylor, developed and died from mesothelioma ...
In its October 31, 2017, opinion in Doe Run Resources Corp. v. American Guarantee & Liability Ins., the Missouri Supreme Court considered whether a general liability policy’s pollution exclusion barred coverage for alleged bodily harm caused by exposure to toxic emissions emanating from Doe Run’s lead production facilities in La Oroya, Peru. The exclusion removed coverage for “injury or damage or medical expenses that result from pollution at, on, in…or from any…protected person’s premises.” The policy defined “pollution” to mean “any actual, alleged ...
Recently, in the matter of Tate v. Pecora Corp., Case No. 16-L-1399, the Madison County Circuit Court has dismissed a Plaintiff’s asbestos complaint for lack of personal jurisdiction pursuant to M.M. ex rel. Meyers v. GlaxoSmithKline LLC, 61 N.E. 3d 1026 (Ill. App. 2016). In GlaxoSmithKline, the Chicago-based Illinois First Appellate District ruled that plaintiffs had made a prima facie showing that their claims arose directly from, or were related to, GlaxoSmithKline’s (GSK) “purposeful activities” in Illinois, that GSK failed to rebut this prima facie showing, and ...
Judicial estoppel, also known as estoppel by inconsistent positions of law, precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings. Often, it is asserted as an affirmative defense in a personal injury lawsuit where the plaintiff failed to disclose the existence of the personal injury lawsuit as an asset in a prior bankruptcy. A plaintiff’s failure to disclose a personal injury cause of action in the bankruptcy proceeding deprives the trustee, and by proxy, the plaintiff’s creditors, of an asset that the creditors ...
Since 2005, Missouri attorneys have struggled with the interpretation and application of Missouri’s collateral source rule as it related to evidence of a plaintiff’s medical treatment bills. Generally speaking, the collateral source rule bars a defendant from introducing evidence that part of a plaintiff’s damages were paid for by a party other than the defendant; i.e., the plaintiff’s insurance company or some other form of public benefit. In Missouri, however, that rule had been applied to allow plaintiffs to present evidence of the total amount billed by a health care ...
Southern Illinois was recently in the national spotlight as the path of a total solar eclipse passed across the state. This rare occurrence brought hundreds of thousands of people to a thin path of the state to experience a natural phenomenon that, if not experienced correctly, could cause serious and permanent eye injuries. It also created opportunities for some to profit from this influx of celestially motivated travelers. This event provided a reminder of the potential uses of exculpatory language in contract; namely to limit or eliminate liability by an express assumption of ...
As of August 28, 2017, the Daubert standard will now govern the admissibility of expert witness testimony in certain cases in Missouri.[1] This is the result of House Bill 153, one of the first bills signed by Governor Eric Greitens, which effectively changes the language in Missouri Revised Statute Section 490.065 moving the standard for admissibility of expert testimony from a broad to more stringent standard requiring the Court to assess the basis of a proposed expert’s testimony before allowing the expert to testify at trial.
The new language in the statute makes it clear that in ...
Three recent successful Cook County defense verdicts in medical and dental malpractice cases show that the age old theory of teamwork and a united defense go a long way to winning cases. In all three trials, there were potential issues that could have split the defense camps, and efforts by opposing counsel in each case to divide and conquer the defendants. Despite those efforts, all defense counsel and clients alike worked together in the discovery phase, and through the course of lengthy trials, to achieve excellent defense outcomes.
In the first case, plaintiff claimed dental ...