1. law, govt and politics

MODL Quarterly Report
A Publication of the Missouri Organization of Defense Lawyers
Spring, 2013
2012-2013
MODL Board of Directors
MODL President’s Message
President
Robert J. Buckley s Columbia, MO
Vice President
Steven F. Coronado s Kansas City, MO
Secretary
John S. Farmer s St. Louis, MO
Treasurer
Scott E. Bellm s Springfield, MO
Board of Directors
Jennifer A. Baumann s St. Louis, MO
Kenneth W. Bean s St. Louis, MO
Jeffrey H. Blaylock s Columbia, MO
Jenny Brown s Kansas City, MO
Stephen M. Buckley s St. Louis, MO
Wm. Clayton (Clay) Crawford s KC, MO
Mariam W. Decker s Columbia, MO
S. Jay Dobbs s St. Louis, MO
Mimi Elizabeth Doherty s Kansas City, MO
David P. Ellington s St. Louis, MO
Dana Frese s Jefferson City, MO
Kurt Hentz s St. Louis, MO
Tiffany D. Hogan s Kansas City, MO
Timothy Lavin s Kansas City, MO
Louis (Lou) J. Leonatti s Mexico, MO
Emily Little s Columbia, MO
Michael D. Murphy s Cape Girardeau, MO
Donald O’Keefe s St. Louis, MO
Theresa Otto s Kansas City, MO
Elizabeth Raines s Kansas City, MO
Jason Scott s Kansas City, MO
Elizabeth H. Weber s Columbia, MO
Gary J. Willnauer s Kansas City, MO
Richard (Rick) Wuestling s St. Louis, MO
Tracy L. Zuckett s St. Louis, MO
DRI Representative
Gay L. Tedder s Kansas City, MO
Executive Director
Randy J. Scherr
101 East High St.- Ste. 200
P.O. Box 1072
Jefferson City, MO 65102
573-636-6100
FAX 573-636-9749
[email protected]
Robert J. Buckley, MODL President
Oliver Walker Wilson LLC s Columbia, MO
In the early 1980s, a handful of civil defense attorneys
from across Missouri joined in an effort to create a
statewide organization whose purpose would be to
support and work for the improvement of the civil
adversary system of jurisprudence and to promote the
interests of defendants in civil litigation. At the time,
the plaintiffs’ bar had been formally organized for
more than 30 years and had been exercising considerable influence in both the
legislative and judicial branches of our state government. The efforts of these
defense attorneys resulted in the formation of this great Organization. And for the
past three decades, MODL has tirelessly worked to carry out the mission of its
founders, and may I add with great success.
As the Missouri legislature currently convenes in Jefferson City, MODL is not only
monitoring but actively working to support legislation that promotes our mission.
Throughout the legislative session, MODL’s Executive Director and Chief Lobbyist
Randy Scherr will be continuously updating MODL’s Legislative Committee on the
progression of bills filed, as well as garnering support for legislation supported by
the Organization. In this edition of the Quarterly Report, MODL Legislative Chair
Mimi Doherty highlights some of the proposed legislation that has already been
filed. If you have particular interest in any specific legislation, please let your voice
be heard and contact the legislative committee. Moreover, if you would be
interested in testifying with respect to any particular pending legislation, please let
the committee know.
Coming up during the first week in March, MODL will once again be teaming up
with MATA to host the Advanced Trial Skills Seminar for Missouri trial judges. This
two-day seminar, held at the Lake of the Ozarks, will cover all aspects of trial
practice, and each topic will be presented by both a MODL and MATA
representative. The seminar also includes a reception for the judges hosted jointly
by the Organizations. Obviously, the importance of having a voice and perspective
from the civil defense bar at such an event cannot be understated.
“President’s Message” >p2
President’s Message
(from page 1)
During the last week in March, MODL
will once again host the John L. Oliver
Trial Academy at the University of
Missouri School of Law. Although
space is very limited, I strongly
encourage all of younger members to
consider attending. Former MODL
Presidents Karl Blanchard and Lou
Leonatti have put together a faculty
comprised of some of the top trial
attorneys in the state, including several
members of the American College of
Trial Lawyers. The three-day trial
college provides a tremendous
foundation for one’s legal career.
Registration is capped to maintain a
low “student/faculty” ratio, so if you
are interested in attending, or if you
have a blossoming attorney in your
firm who would benefit from
attending, enroll now! The registration
form
can
be
found
at
www.modllaw.com.
Lastly, as MODL Vice-President Steve
Coronado details in his enclosed
article, this year’s MODL Annual
Meeting in Branson promises to be one
of the biggest and best ever! This
annual event brings together lawyers
and judges from across our State to
celebrate the great works of the
Organization while providing the
membership with a first-class CLE
program. With activities and events for
all ages, you and your family will not
want to miss it. Mark your calendar for
June 6-8 and watch for the registration
brochure which will be sent in the next
few weeks. I hope to see you there!
Missouri Organization of
Defense Lawyers (MODL)
101 East High St.- Ste. 200
P.O. Box 1072 s Jefferson City, MO 65102
573-636-6100
FAX 573-636-9749
Web: www.MODLLAW.com
2013 Legislative Update
by Mimi Elizabeth Doherty; Deacy & Deacy, LLP; Kansas City, MO
The MODL Legislative Committee met in late January to discuss pending legislation
that is of interest to MODL members. To date, there have only been a handful of
bills proposed which directly affect the practices of MODL members. Interestingly,
for the first time in 40 years the chairman and vice-chairman of the Senate Judiciary
Committee are non-lawyers.
Missouri Human Rights Act (MHRA) and Whistleblowers Act
The House is considering two bills which would directly affect employers. HB 319
would establish the Whistleblower’s Protection Act (as part of Mo. Rev. Stat. §
285) to codify existing common law exceptions to the at-will employment
doctrine, making it unlawful for an employer to terminate a person who qualifies
as a whistleblower.
HB 320 would establish a Whistleblower’s Protection Act (as part of Mo. Rev. Stat.
§ 213) and would also make changes to the section of the Missouri Human Rights
Act which relates to unlawful discriminatory employment practices. The bill would
change the standard used to determine whether an employer’s practices are
unlawful. The current standard provides that a practice is unlawful when the
protected trait is a “contributing factor” in the employer’s decisions or actions.
This bill would require that the protected trait be a “motivating factor” in the
employer’s action or decision. All 501(c) non-profit groups would be exempt from
the definition of “employer.”
The bill also proposes to change the damage provisions of the MHRA, so as to
mirror the damage provisions of the federal discrimination statutes. The
maximum amount of damages that can be assessed against an employer who
unlawfully discriminates would depend on the employer’s size.
Similar legislation passed last year, but was vetoed by Gov. Jay Nixon. The
Legislature failed to override the Governor’s veto. MODL supports passage of
these bills.
“Legislative Update” >p3
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Legislative Update (from page 2)
HB 318 - This bill would authorize any court in a civil
Workers’ Compensation/Second Injury Fund
case to order that jury costs (including compensation,
mileage, meals and lodging) be paid by the party against
whom a judgment is made.
Senate Bill No. 1 proposes to modify the laws relating both
to the Second Injury Fund and to occupational diseases
within the Worker’s Compensation system. The bill provides
that occupational disease is exclusively covered under
Worker’s Compensation laws. The bill proposes new criteria
for establishing claims against the Second Injury Fund for
permanent total disability (PTD). The bill would eliminate
claims for permanent partial disability (PPD) against the
Second Injury Fund. The bill would limit the amount of any
settlement the State Treasurer can agree to without
obtaining the authorization of a majority of the Second
Injury Fund commission.
SB 12 - This bill would amend Mo. Rev. Stat. § 537 to add
a section providing immunity from civil liability, including
malpractice claims, for attorneys who are appointed by
courts to represent indigent parties. The act would
provide that court appointed attorneys may be liable for
conduct that is willfully wrong or with malice or
corruption.
SB 21 - This bill would allow the Missouri Supreme
Court to transfer circuit and associate circuit judge
positions from one circuit to another as the
administration of justice requires. The Supreme Court
would be authorized to transfer a judicial position only
when a vacancy occurs and would be required to consider
certain criteria before determining whether to transfer a
position to a different circuit.
The MODL legislative committee has requested that the
MODL worker’s compensation committee review this bill
and provide input as to what position MODL should take
regarding this bill.
Medical Malpractice
Both the House (HB 112) and Senate (SB 105) have proposed
legislation that would establish a statutory cause of action,
replacing the common law action, for damages against a
health care provider for personal injury arising out of the
rendering of or failure to render health care services.
SB 22 - This act would allow the Missouri Supreme Court
to redraw the circuit and appellate districts every 10 years,
beginning in 2015. The Supreme Court would have to
follow certain criteria when redrawing the judicial
boundaries.
House Joint Resolution No. 6 proposes an amendment to
the Missouri Constitution which would limit the liability for
noneconomic damages in medical malpractice actions and
other cases to $350,000. This amendment would appear on
the ballot in 2014.
SB 62 - This bill would increase the fine for a seatbelt
violation from $10 to $50.
SB 64 - This bill would change the evidentiary standard
for noneconomic damages in medical malpractice cases
to “clear and convincing” from the current “by a
preponderance of the evidence” standard.
MODL supports passage of these bills and the joint
resolution.
MODL will monitor the above bills.
Other Bills That Have Been Proposed Are:
Judicial Selection Process
HB 90 - This bill would give an insurer the right to
intervene in a civil action in which it may be contractually
obligated to pay the cost of defending a civil lawsuit or a
portion of any judgment that may be rendered in the
lawsuit.
Unlike last year, there have been no bills proposed to date
this year which would modify or eliminate the Missouri
Non-Partisan Court Plan.
Conclusion
HB 190 - This bill would establish the Volunteer Health
It is unknown which of the above bills will be passed by
the House and Senate and sent to Gov. Nixon. Both the
House and Senate have veto-proof majorities, so it is likely
that any bill vetoed by the Governor would be overridden.
Additional information about these bills, as well as other
pending bills, can be found on the websites of both the
Missouri House and Senate.
Services Act, which would allow certain licensed health
professionals to volunteer their services to certain
organizations such as school sports teams. The volunteer
would not be liable for any civil damages for any act or
omission resulting from his services, so long as he
exercised ordinary care when performing the services.
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MODL Annual Meeting:
Relax, Reflect and Re-Energize
by Steven F. Coronado;
Coronado Katz LLC; Kansas City, MO
vendors and to take advantage of the gifts they offer. Be sure
to provide your card for a chance to win a door prize!
Relax, Reflect and Re-energize is the theme for this year’s
Annual Meeting of the Missouri Organization of Defense
Lawyers. The venue is the Hilton at Branson Landing, an upto-date facility that offers great access to Lake Tanneycomo
as well as shopping, numerous family activities and eating
establishments. It is a great place to relax with family and
friends. The overall program this year will offer a few new
twists and will build on the successes of the programs of
recent years, with plenty of opportunity to obtain critical CLE
hours as attendees reflect on and re-energize their defense
practices.
Please join your MODL colleagues June 6th through the 8th
at the Hilton in wonderful Branson Missouri where you can
relax, reflect and re-energize. We look forward to seeing you
there.
Like previous Annual
Meetings pictured here,
the 2013 Annual Meeting
will be a great chance to
spend some time with
the family, catch up
with some old friends,
make some new ones,
share some laughs,
and maybe even learn
a thing or two!
As in years past, there will be a number of MODL social
events to give everyone a chance to see and speak with
friends and to make new friends. Of course, it wouldn’t be
the same without the MODL golf tournament. There will be
plenty of time for golf, and for those who enjoy other forms
of relaxation, there will be additional activities available.
When not engaged in social activities offered during this
year’s Annual Meeting, attendees will have the opportunity
to hear presentations by Judge William Francis and Judge
Jeffery Bates of the Missouri Court of Appeals, Southern
District, on the topic of summary judgment. This year’s ethics
presentation will be provided by Gary Myers, Dean from the
University Of Missouri School of Law, with the assistance of
former MODL President Lou Leonatti. Judge Gary
Oxenhandler will share his insight on jury selection. Greg
Aubuchon will provide helpful pointers for cross-examination
of a plaintiff’s economist. Finally, a panel of Missouri’s bestregarded mediators will share their views on strategies for a
successful mediation. We are exceptionally thankful to have
Dean Myers and so many current and former Judges willing
to help us out this year.
Before and after each session and during the breaks,
attendees will have the opportunity to spend time with the
various vendors who help make this event possible. We
encourage all who attend to spend time with the various
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The Young Lawyers Committee:
Activities Around the State Encourage MODL Membership
by Tracy L. Zuckett; Brown & James P.C.; St. Louis, MO
The goal of the Young Lawyer's Committee is to
encourage attorneys who are age 36 or younger, or have
been practicing law for five years or less, to join MODL
and to participate in MODL's Trial Academy, Judicial
Luncheons, Annual Meeting, and various other
networking events.
participants and faculty. And, do not forget the activities
in the works during this year’s Annual Meeting, June 6-8,
2013, at the Hilton Branson Convention Center. The
networking and social events during the Annual Meeting
are always a good time.
Each of the above events promotes the benefits of MODL
membership for both current and potential young lawyer
members. Please encourage your young lawyer
colleagues to attend and to join MODL. To join the Young
Lawyers’ Committee, or to suggest future networking
events, please e-mail:
One such networking event recently took place in Kansas
City, and several more are coming up. In December, a
group of twenty or so “young lawyers” from the KC metro
bar gathered in the heart of what was once dubbed “the
lawyer’s ghetto” to celebrate MODL’s annual Holiday
Happy Hour at Charlie Hooper’s in Brookside. Those in
attendance had a great time socializing, swapping war
stories and simply blowing off steam as the 2012 billables
came to a close. On March 1, 2013, St. Louis metro young
lawyers (along with several not-so-young lawyers) met for
a happy hour at Franco’s, next to the Soulard Market.
The next networking opportunity is planned for 6:00pm
at the Grand Cru (2600 S. Providence Rd.) in Columbia on
March 28, 2013, during this year’s Trial Academy for
Committee Chair:
Emily Little ([email protected])
Committee Vice Chairs:
Jason Scott ([email protected])
Tiffany Hogan (tiff[email protected])
Matt Noce ([email protected])
Tracy Zuckett ([email protected])
2013 MODL Judicial/Legislative Reception
MODL Board Members visit with The Honorable
George Draper, The Honorable Patricia Breckenridge,
Supreme Court Clerk Bill Thompson and State
Representatives Bill White and Chris Kelly during the
MODL Reception held on January 28th.
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Requiring an Independent Tort Duty in
Alarm Services Lawsuits
by Jason Scott; Shook, Hardy & Bacon L.L.P.; Kansas City, MO
at Jeannie’s store resulted in ADT assuming a common-law
duty to provide those services. Id.
I serve as national counsel for ADT Security Services, Inc. In
doing so, I frequently face the same question: Is an alarm
company responsible in tort for damages caused by theft if
the company fails to properly install or monitor an alarm
system? The answer is no, but not for the reason you may
think. Traditionally, alarm service companies like ADT relied
heavily on the exculpatory and limitation provisions in their
contracts. But recently, plaintiffs started to creatively plead
around these limitations by suing under various tort theories.
This novel argument posed a serious risk to ADT. First,
because of the type of services ADT offered, § 323 would
always create an independent duty, thereby rendering the
parties’ contract and the contract’s limitations meaningless.
Second, because ADT’s monthly charges were based on the
services it provided, and not on any underwritten risk of loss,
Jeannie’s § 323 argument threatened to undermine ADT’s
continued ability to provide alarm monitoring services at
reasonable prices. Fortunately, I was able to draw on a
previous success in the District of New Jersey to defeat
Jeannie’s argument. See Lala v. ADT Sec. Servs., Inc., 2010 WL
4923452 at *4 (D.N.J. Nov. 29, 2010) (dismissing plaintiff’s §
323 argument, holding “if a relation exists which would give
rise to a legal duty without enforcing the contract promise
itself, the tort action will lie, otherwise not”) (quoting
Pfenninger v. Hunterdon Cent. Reg. High Sch., 167 N.J. 230,
241 (N.J. 2001)). Using Lala’s holding, I argued that § 323’s
purpose was to provide a remedy to injured parties where a
duty may not otherwise exist; it was not meant to upend
parties’ bargained-for obligations. Id. The Eastern District of
Virginia agreed, dismissed Jeannie’s negligence claims with
prejudice, and limited Jeannie’s remaining claim for breach
of contract to the contractually agreed-upon amount. Id. at *4.
I recently faced a new twist on this issue in arguing a motion
to dismiss in the Eastern District of Virginia. Jeannie’s
Jewelers, Inc. v. ADT Sec. Servs., Inc., 2012 WL 1869319 (E.D.
Va. May 22, 2012). There, Jeannie’s Jewelers sued ADT for
breach of contract, negligence, and gross negligence, alleging
that the ADT alarm system failed to activate during a burglary
at Jeannie’s jewelry store. Id. at *1-2. Before the burglary,
Jeannie’s contracted with ADT to takeover monitoring of the
existing alarm system and add additional components. Id.
Jeannie’s alleged that ADT failed to properly connect the
existing system’s phone line anti-tampering feature to the
new system. Id. As a result, the system did not generate an
alarm signal when burglars cut the phone line to the store,
allowing them ample time to break into safes and escape
with millions in jewelry. Id.
I moved to dismiss the complaint for failure to state a claim,
arguing (1) that ADT’s failure to properly install and monitor
Jeannie’s alarm system could not support Jeannie’s
negligence and gross negligence claims because these were
contractual (and not common-law) duties; and (2) the
parties’ contract limited Jeannie’s damages for its breach of
contract claim. Id. In response, Jeannie’s argued that, under
Restatement (Second) of Torts § 323 1, ADT’s assumption of
its contractual duty to install and monitor security equipment
So, to answer my own question, ADT routinely defeats tort
claims because it has no common-law duty to install and
monitor alarm systems; as a result, tort claims premised on
ADT’s failure to adequately perform its contractual duties fail
as a matter of law. But just like Jeannie’s, plaintiffs will
continue to manufacture new claims and new arguments
aimed at avoiding the contract’s limitations. Luckily,
“Tort Duty” >p7
1
Restatement § 323 states:
reasonable care to perform his undertaking if
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of the other’s person or things, is subject to liability to
the other for physical harm resulting from his failure to exercise
(a) his failure to exercise such care increases the risk of such harm,
or
(b) the harm is suffered because of the other’s reliance upon the
undertaking.
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Tort Duty (from page 6)
Jeannie’s represents a recent trend of courts looking past
creative pleading to get at the heart of a plaintiff’s claims –
the source of the duty. See Valenzuela v. ADT Sec. Servs., Inc.,
475 F. App’x 115, 117 (9th Cir. 2012) (upholding district
court’s dismissal of plaintiffs’ negligence and gross negligence
claims because ADT’s obligation to properly install an alarm
system and notify plaintiffs of an alarm signal “arose solely
from its contractual relationship with [plaintiffs], not from
any duty independent of the parties’ contract”); Spengler v.
ADT Sec. Servs., Inc., 505 F.3d 456 (6th Cir. 2007) (holding that
an alarm company’s failure to perform its contracted for
obligations would not support tort claims); Ram Int’., Inc., v.
ADT Sec. Servs., Inc., No. 11-10259, 2011 WL 5244936 (E.D.
Mich. Nov. 3, 2011) (clarifying holding in Spengler to apply to
claims for gross negligence).
S.W.2d 134 (Mo. En Banc 1987) (dismissing plaintiff’s tort
claim “because the mere failure to perform a contract cannot
serve as the basis for tort liability for negligence); Grus v.
Patton, 790 S.W.2d 936 (Mo. App. E.D. 1990) (analyzing
contract/tort distinction in context of statute of limitations
for tractor repair services); Preferred Physicians Mut. Mgmt.
Group v. Preferred Physicians Mut. Risk Retention, 918 S.W.2d
805 (Mo. App. W.D. 1996) (discussing at length the
separation of contract and tort, and holding that nonperformance of an oral contract will not support a tort claim
absent misfeasance).
Although my success is limited to the alarm services industry,
the principles underlying these opinions apply to a wide
range of service-based industries, such as automotive repair,
pest control, HVAC repair, commercial and residential
sprinkler systems, and home inspections. Unfortunately,
Missouri courts have yet to address the requirement of an
independent tort duty in an alarm services case, and the
cases discussing and applying the contract/tort distinction
are dated. See William Ranni Assoc., Inc. v. Hartenbach, 742
Today, tort has a tendency to engulf contract. But,
as under the common law, limitations on the
remedy of tort should be imposed; otherwise tort
will engulf contract. The two remedies, while
related, are not identical. The circumstances of this
case show that each of the remedies should be
kept within their proper bound. Otherwise all
remedies could be maintained under a tort theory.
As plaintiffs continue to develop new arguments to
circumvent contract remedies, it will be interesting to see
how Missouri courts respond. To echo the concerns of the
Eastern District:
Grus, 790 S.W.2d at 944.
J
L
2013 John L. Oliver, Jr.
Trial Academy
March 27-29, 2013
University of Missouri
School of Law
Columbia, MO
O
To register: www.MODLLAW.com
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