All posts by Michelle Funkenbusch

I have been working in the Missouri legal community for 17 years and have been a trial lawyer since 1999. I started out my practice as a lawyer working for a large insurance defense firm representing big and small businesses, with a handful of cases where I represented injured persons. Over the years, I had the growing desire to represent people full time instead of businesses. I opened the doors on my own firm five years ago relying on referrals from friends who respected me as a lawyer. I continue to receive most of my work from friends who believe in my passion for representing people. Why hire me as a personal injury lawyer? Here are some representative verdicts and settlements: Local Trial Counsel on Walter Huggins v. Fed Ex Ground which was a personal injury case tried in December 2010 in federal court in St. Louis, Missouri. Won $1,050,000.00. Trial Counsel on railroad crossing collision case representing truck driver and trucking company against Union Pacific railroad. Won $600,000.00 plus verdict after two week trial in St. Louis City. Settlement prior to filing suit for $500,000.00 against railroad company for a dangerous railroad crossing where a minister was hit by a train at an unprotected and dangerous crossing. I have also dedicated my life to being a cycling advocate and have made a lifetime commitment to volunteerism. I am currently the Immediate Past President of the non-profit PayBack, Inc. I have also had the great honor of being elected by my peers to the Missouri Bar YLS and was awarded the Chairman's Award for Outstanding Service to the Legal Community and Public two years in a row.

Congress did something SMART… no really: St. Louis Trial Lawyer Breaks Down The SMART Act of 2013.

How to Handle Medicare Liens on Personal Injury Cases

While we were all worrying about falling off the fiscal cliff, Congress and the President did something SMART… literally.   The SMART Act was signed by President Obama on January 10, 2013. It makes numerous complicated administrative changes to Medicare that effect personal injury cases where the employee or plaintiff is on Medicare and has had treatment paid by Medicare.  While most of this may be over the average person’s head, if you stop reading now, just know that something “good” happened to reduce bureaucracy and to speed up settlements that need the federal government’s approval.

For example, when a senior citizen covered by Medicare is treated after an accident or an injury, it’s generally paid for by Medicare. Those medical expenses must then be reimbursed through insurance or a legal settlement. But, the process by which that was to happen has not been running smoothly. The Strengthening Medicare and Repaying Taxpayers, or SMART, Act aims to remedy that.

Many claims involving Medicare beneficiaries could not settle because the parties  could not determine their respective obligations to reimburse the federal government in the Medicare Trust Fund.  The result was a lose-lose-lose for the beneficiary, the defendant, and the Medicare Trust Fund – all because under the former law, Medicare had no pathway to provide the amount due the Trust Fund for “conditional payments” – those payments previously made by Medicare for the injury that will be covered by the settlement.

The SMART Act  fixes this problem by creating a process for Medicare to advise parties in the process of settling, before settlement, of how much is owed, so that the parties can appropriately allocate and resolve their Medicare obligations during settlement. By requiring Medicare to provide the amount due within 65 days of a request, the settling parties will know how much money has to be set aside for Medicare, and factor that amount into their final settlement.

There were numerous other changes. I have summarized some of them for you below.  These amendments will require changes to settlement procedure, lien resolution and reporting, and release language.  If you are on Medicare and have a personal injury case, make sure you have a lawyer that knows and understands the SMART ACT.

SUMMARY OF SOME OF THE CHANGES

Access to Information About How Much Medicare Paid

Old Law:   Did not require Medicare to give immediate access to the conditional payments that were made on behalf of a claimant.

New Law:  Up-to-date Conditional Payment Information Available Online

Claimants and responsible reporting entities (RREs, as defined by 42 U.S.C. § 1395y(b)(8)) will now have access to up-to-date information on the claims for which conditional payments have been made by CMS. Again,  conditional payments are those payments previously made by Medicare for the injury that will be covered by the settlement. The SMART Act requires CMS to make claims information—including payment amounts and information regarding claims related to a potential settlement, judgment, or other payment—available to claimants or their authorized representatives and RREs (that have obtained the claimant’s consent) through a secure website. This information must be updated no later than fifteen (15) days after the date that payment is made.

Additionally, claimants or RREs now may provide notice to CMS that a settlement, judgment, award, or other payment is reasonably expected and the date of the expected payment up to 120 days before the reasonably expected date of the payment.

CMS already has a web-based portal for claims information, the Medicare Secondary payer Recovery Portal [https://www.cob.cms.hhs.gov/MSPRP/], which appears to satisfy the requirements of the SMART Act. Final regulations must be promulgated by  October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.

Pre-Settlement Lien Demands

Old Law:  Medicare could not provide a final lien demand until after settlement.  The inability to finalize Medicare’s reimbursement interest prior to settlement complicated settlement and lien resolution.

New Law: Establishing Conditional Payment Exposure Prior to Settlement

The SMART Act provides a mechanism by which a claimant or RRE (responsible reporting entities as defined by 42 U.S.C. § 1395y(b)(8)) determines liability for conditional payments prior to a settlement, judgment, award, or other payment for conditional payments. To do so:

  • the claimant or RRE (with the claimant’s consent) must obtain a statement of reimbursement amount from the website during the “protected period”—defined as the time, if any, after the expiration of the federal government’s response period following notice of a settlement, judgment, award, or other payment
    • the federal government’s response period is 65 days following notice
    • it may be extended by an additional 30 days if additional time is required to address claims for which payment has been made
    • it does not include any days where there was a failure in the claims payment and posting system due to exceptional circumstances as defined by regulation
  • the related settlement, judgment, award, or other payment must be made during that period, and
  • the last statement of reimbursement downloaded during that period and within three (3) business days of the date of the settlement, judgment, award, or other payment shall constitute the final conditional amount subject to recovery by the federal government related to that settlement, judgment, award, or other payment.

Final regulations must be promulgated by October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.

Minimum Values Established

Old Law: The Medicare Lien reimbursement process currently applies even to settlements of minimal value.

New Law:  The SMART Act establishes a threshold below which the lien reimbursement and Section 111 reporting obligations do not apply.  The threshold will be established each year beginning in 2014.  The minimum threshold exception does not apply to settlements concerning alleged ingestion, implantation or exposure (including asbestos).

UPDATED July 31, 2013:

To further explain the minimum values… the SMART Act requires HHS to set a “single monetary compliance threshold” for certain claims, starting on November 15, 2014.  The purpose underlying that amendment is to avoid expending resources in seeking to recover conditional payments the value of which is less than the expense necessary to recover them. This is sort of a common sense provision as you will.  The “monetary compliance threshold” that the Act contemplates would be a dollar figure that defines the minimum value of a conditional payment for which Medicare could pursue reimbursement without wasting more resources in seeking to recover the payment than the claim itself is worth.  The SMART Act requires the Secretary of HHS to set and adjust that minimum threshold figure no later than November 15 each year, starting in 2014.  Attorneys should calander this date to learn the threshold for that year.

The monetary compliance threshold does not apply to all conditional payments.  More specifically, the monetary compliance threshold applies only to (1) liability TPOC reporting (total payment obligation to the claimant); and (2) conditional payments pertaining to “alleged physical trauma-based incidents,” but not incidents based on alleged ingestion, implantation, or exposure.

§111 Penalty Modification

Old Law: Companies that reported settlements involving Medicare beneficiaries to CMS either late or erroneously were subject to automatic fines of $1,000 per-day, per-claim.

New Law: Such penalties are now discretionary, not automatic.  HHS is directed to create “safe harbors” for companies that report in good faith, despite being late or in error. §203, SMART Act.

No SSN or HICN

Old Law: Claims professionals and settlement parties use claimants’ Social Security numbers (SSNs) or Health Insurance Claim Numbers (“Medicare numbers”) to access claimant health records. This situation has obvious and troubling privacy implications.

New Law: Within 18 months, the Secretary of HHS is to change §111 of Mandatory Insurance Reporting to make use of SSNs and Medicare numbers optional rather than required. Medicare beneficiaries are understandably reluctant to provide this information – given the high incidence of identity theft.  The SMART Act protects beneficiaries’ sensitive personal information while also reducing professionals’ liability exposure in the event of subsequent beneficiary identity theft. §204, SMART Act.

UPDATE:  July 31, 2013

I received a call from a lawyer today asking if SSN’s are still required as his client does not want to give out his SSN. As of this date, SSN’s are still required.   The Act provides that CMS must implement this requirement within 18 months of the SMART Act’s enactment, or by the middle of 2014.  That deadline is not a firm one, however.  The Act permits the Secretary of the Department of Health and Human Services (HHS) (the agency in which CMS operates) to request an extension of that 18-month deadline by “one or more periods up to one year each” if the Secretary believes that eliminating the use of social security numbers and health insurance claim numbers by the operative deadline “threatens patient privacy or the integrity of the secondary payer program[.]”  I will keep monitoring for changes but I suggest if you are an attorney and uncertain that you contact the HHS Department.

Three-Year Statute of Limitations

Old Law:   The MSP statute permits the government to pursue settling defendants for unsatisfied Medicare Liens in certain circumstances, even after the defendant has paid settlement funds to the plaintiff. Unclear law and inconsistent court rulings left settlement parties without a clear answer on the scope of the statute of limitations for the government to bring an action seeking conditional payment.

New Law: The SMART Act codifies a 2010 U.S. District Court decision – U.S. v. Stricker – which held that the government must file a complaint within three years of receiving notice that a judgment or settlement has been reached. §205, SMART Act.

Full Text of H.R. 1845: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1845rds/pdf/BILLS-112hr1845rds.pdf

 

A Lawyer’s Timeline Under SMART for Finding Out How Much to Pay Back Medicare

For those lawyer fans of this blog, starting in October 2013, you should follow these rules to obtain a Final Conditional Amount.

  1. T-120 days to settlement – Send an Expected Settlement Notice to the MSPRC;
  2. T-115 days to settlement – Check to see if the MSPRC received the Expected Settlement Notice.  Everyone knows the MSPRC response, “we don’t have that in the file” or “I don’t see that here.”  If you don’t check you might waste the entire process.
  3. T-55 days to settlement – You should receive notice that the Final Conditional Amount is available for download on the MSPRC website, or more likely, the Medicare Secondary Payer Recovery Portal (MSPRP).  If you have not, contact the MSPRC to check the status.  Keep in mind the rule states they have 65 days from receipt of your notice – so we will have to keep track of how they define the word receipt.  If your case qualifies for “exceptional circumstances” the MSPRC will tell you it needs another 30 days to process the Final Conditional Amount.
  4. T-25 days to settlement – You should receive notice that your exceptional circumstances request is completed and the Final Conditional Amount is available for download.
  5. T-3 days to settlement – You must download the Final Conditional Amount from the designated website.  If you do so at 4 days to settlement it is apparently invalid and does not constitute a Final amount.  If you do so more than 3 days after settlement (we believe after is still okay – the rule uses the word “within”) it is also invalid.

-Published January 31, 2013.  Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer

If you know someone in need of a personal injury lawyer, please contact St. Louis Personal Injury Lawyer Michelle Funkenbusch at 314-338-3500 .

 

 © 2013 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

 

How To Find Out What is On Your Missouri Driver’s Record For Free! Answers from a St. Louis Traffic Ticket Lawyer

The Missouri Traffic Ticket Point System and Free Driver’s Record Over the Phone: Advice from a Traffic Ticket Lawyer

Do you fear you are accumulating points on your license? Here is how to find out what you have on your record and what you risk with new tickets.

The First Step: What is Already on Your Missouri Driver’s Record? Call (573) 526-2407!

You can find out what is on your Missouri driver’s record for FREE by calling the Missouri State interactive voice response system at (573) 526-2407 – available 24 hours a day, 7days a week. You don’t need a traffic ticket lawyer to do this!  Make sure to have your driver’s license number available. If you have questions about what Missouri traffic tickets are listed on your driver’s record or if you want to know about a suspension, or revocation on your Missouri driver record, call this number. It will tell you when you had a prior alcohol suspension of your license and whether you have officially been reinstated.

The Second Step: Finding Out What Points You Might Receive for New Violations

If you just received a ticket, but don’t have a traffic ticket lawyer, and want to know what points you might get on your record if you don’t get the ticket reduced to a nonmoving violation, you can refer to this chart: http://dor.mo.gov/forms/899.pdf .

The Third Step: What Happens When You Accumulate Points

Too many points means you lose your privilege to drive in Missouri!!! For example, a speeding ticket and no proof of insurance may mean 8 points on your license and you will be suspended from driving by the Department of Revenue!

It is not easy to figure out the point system. Here are the details:

If you accumulate a total of 4 points in 12 months, the Department of Revenue will send you a point accumulation advisory letter.

If you accumulate a total of 8 or more points in 18 months, the Department of Revenue will SUSPEND your driving privilege.

1st suspension – 30 days
2nd suspension – 60 days
3rd or more suspensions – 90 days

The Department of Revenue will REVOKE your driving privilege for one year if you accumulate:
12 or more points in 12 months
18 or more points in 24 months
24 or more points in 36 months
When your driving privilege is reinstated following a Point Suspension or Revocation, the Department of Revenue reduces your total points to 4.
Every year you drive without getting new points on your record, the points will be reduced.

1 year — total remaining points reduced by one-third
2 years — remaining points reduced by one-half
3 years — points reduced to zero

Although your points may be reduced to zero, certain types of convictions must remain listed permanently on your Missouri driver record.

It is never a good idea to accumulate points as you can quickly get to a suspension by receiving just a few traffic tickets.  Further, your insurance rates can skyrocket when they do annual driver’s record checks to determine premiums. If you need advice about your traffic related matters, Funkenbusch has handled hundreds of tickets for her clientele.  She has been able to get Driving While Suspended charges dismissed, speeding tickets reduced to littering, and can help you clean up your record with the DOR if you are looking to purge your old tickets from your record.   Call a trial expert and traffic ticket lawyer at the Law Office of Michelle M. Funkenbusch, 314-338-3500, to have your traffic tickets resolved.  Free consultation.

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We would love to hear from you so contact us as soon as you get the ticket. Unless other arrangements have been made, you MUST appear on your court date until you have paid us to hire us. If your court date is in the next week, fill out the form but make sure to call us to confirm we can enter our appearance before your court date. Again, Please fill out this form and we will get in touch with you shortly.
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Do you need a Will? Mention this Article for $50.00 off a Basic Will Package.

If You’re One of the 70% of Americans Without a Will, Read On…

Do you have a will? Between half and two-thirds of American adults don’t. Do you need one? Only if you answer yes to any of the questions below:
1. Do you care who gets your property if you die?
2. Do you care who gets your money if you die?
3. Do you care who is appointed guardian of your minor children if you die?
Who Needs A Will?
Wills are not just for the rich. Regardless of how much or how little money you have, a will ensures that whatever personal belongings and assets you do have will go to family or beneficiaries you designate. Without a will, the court makes these decisions.If you have children, a will is a must, to ensure that you get to choose your children’s guardian. Few people plan to die in the near future, but if you die suddenly without a will, you’ll be subjecting your family and loved ones to confusion and anxiety at what is already a difficult time.

There are other benefits to having a will, including tax benefits.

You may amend your will at any time. In fact, it’s a good idea to review it periodically and especially when your marital status changes. At the same time, review your beneficiary designations for your 401(k), IRA, pension and life insurance policy since those accounts will be transferred automatically to your named beneficiaries when you die.

A will is also useful if you have a trust.  A trust is a legal mechanism that lets you put conditions on how your assets are distributed after you die and it often lets you minimize gift and estate taxes. But you still need a will since most trusts deal only with specific assets such as life insurance or a piece of property, but not the sum total of your holdings.

Even if you have what’s known as a revocable living trust in which you can put the bulk of your assets, you still need what’s known as a pour-over will. In addition to letting you name a guardian for your children, a pour-over will ensures that all the assets you intended to put into the trust are put there even if you fail to retitle some of them before your death.

Any assets that are not re-titled in the name of the trust are considered subject to probate. As a result, if you haven’t specified in a will who should get those assets, a court may decide to distribute them to heirs whom you may not have chosen.

In addition to the will or trust, we ask our clients to fill out Durable Powers of Attorney for Financial Decisions, Health Care Directives, and other documents that are free and part of life planning.

If you have questions about whether you need a will or trust, contact Michelle M. Funkenbusch. Working with Joan M. Swartz, for complex estate planning, and tax professionals conveniently located in our building, we can provide you with full-service estate planning.  Fees range from $300.00 to $3000.00 depending on the complexity of your estate and whether you want a will or trust.

 

Do You Have or Want a Home Office? A New Tax Law May Benefit You!

IRS Announces Simplified Option for Claiming Home Office Deduction Starting This Year; Eligible Home-Based Businesses May Deduct up to $1,500; Saves Taxpayers 1.6 Million Hours A Year

The Internal Revenue Service today announced a simplified option that many owners of home-based businesses and some home-based workers may use to figure their deductions for the business use of their homes.

In tax year 2010, the most recent year for which figures are available, nearly 3.4 million taxpayers claimed deductions for business use of a home (commonly referred to as the home office deduction).

The new optional deduction, capped at $1,500 per year based on $5 a square foot for up to 300 square feet, will reduce the paperwork and recordkeeping burden on small businesses by an estimated 1.6 million hours annually.

“This is a common-sense rule to provide taxpayers an easier way to calculate and claim the home office deduction,” said Acting IRS Commissioner Steven T. Miller. “The IRS continues to look for similar ways to combat complexity and encourages people to look at this option as they consider tax planning in 2013.”

The new option provides eligible taxpayers an easier path to claiming the home office deduction. Currently, they are generally required to fill out a 43-line form (Form 8829) often with complex calculations of allocated expenses, depreciation and carryovers of unused deductions. Taxpayers claiming the optional deduction will complete a significantly simplified form.

Though homeowners using the new option cannot depreciate the portion of their home used in a trade or business, they can claim allowable mortgage interest, real estate taxes and casualty losses on the home as itemized deductions on Schedule A. These deductions need not be allocated between personal and business use, as is required under the regular method.

Business expenses unrelated to the home, such as advertising, supplies and wages paid to employees are still fully deductible.

Current restrictions on the home office deduction, such as the requirement that a home office must be used regularly and exclusively for business and the limit tied to the income derived from the particular business, still apply under the new option.

The new simplified option is available starting with the 2013 return most taxpayers file early in 2014. Further details on the new option can be found in Revenue Procedure 2013-13, posted today on IRS.gov. Revenue Procedure 2013-13 is effective for taxable years beginning on or after Jan. 1, 2013.

If you want information on how to create your own home-based business, form a L.L.C., or have other business related questions, do not hesitate to contact the Law Offices of Michelle M. Funkenbusch. Working in conjunction with attorney Joan M. Swartz and reputable accountant advisors, we can answer any question you may have.  Call 314-338-3500 for more information.

Audio Recording of Police Once Again Found to Be Protected By Right to Free Speech. Author: Trial Lawyer Michelle Funkenbusch

Audio Recording of Police: Constitutionally Protected under the First Amendment According to St. Louis Trial Lawyer

First Ammendment
Audio Recordings of Police Protected By First Amendment According to Two Different Courts Of Appeal… U.S. Supreme Court Lets Rulings Stand.

St. Louis Civil Rights Trial Lawyer Michelle Funkenbusch isn’t surprised if this First Amendment ruling makes you scratch your head but simply put… “recording public police speech” = “speech”.  So yes… laws attempting to limit the audio recording of speakers (even though the person recording is not necessarily speaking)  can violate the recorder’s constitutional protections of free speech.

The U.S. Supreme Court on Monday delivered a blow to Illinois’ 50-year-old anti-eavesdropping law according to trial lawyer Funkenbusch.  The Illinois Eavesdropping Act, enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all the parties involved agree. It sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded.   In refusing to hear the appeal, the U.S. Supreme Court let stand a lower court finding that major parts of the eavesdropping law violate constitutional protections of free speech.

The 7th Circuit majority found that the Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. In particular, the court noted that the statute restricts far more speech than necessary to protect legitimate privacy interests.

THE LAW AT ISSUE: Felony to Record Police Acting in Official Capacity Performing Public Duties

The provision at issue of the Illinois eavesdropping law is 720 ILCS 5/14-4 . It imposes a Class 1 felony penalty upon an individual who, in violating § 14-2 of the statute, records an oral conversation of a police officer or certain other public officials in the performance of their official duties. This provision and its explicit effect has long been criticized. In fact, the Illinois State Bar Association proposed legislation, originating through its Intellectual Property Section Council, amending the Illinois Eavesdropping Statute to eliminate the very effect of § 14-4.

In the appeals court ruling in May, the 7th U.S. Circuit Court of Appeals found that 720 ILCS 5/14-4– one of the toughest of its kind in the country – violates the First Amendment.

[Legal Fact of the Day:  The First Amendment states; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This case came about when the ACLU of Illinois brought suit against Cook County State’s Attorney Anita Alvarez in 2010, after her office wanted to bring charges against ACLU staff recording audio of police officers performing their public duties in a public place and speaking loudly enough to be heard by a passerby.”

On May 8, 2012, the 7th Circuit U.S. Court of Appeals in Chicago sided with the ACLU, ruling that audio or audiovisual recording of police doing their public duties in a public place, particularly in the case at hand, is indeed a constitutionally protected right under the First Amendment right to free speech.

Civil right’s activists believe the ability to record helps guard against police abuse.   The most notorious incident was the infamous 1991 videotaping of LAPD officers beating Rodney King. The taping created a media scurry and national controversy over the effect of racial tensions between police and crime suspects.

The eavesdropping law’s proponents, however, say it protects the privacy rights of officers and civilians, as well as ensures that those wielding recording devices don’t interfere with urgent police work. Officers argue the recordings are often done by harassing paparazzi-like mobs at scenes where they are attempting to make legitimate investigations and arrests.  People attempting to You-Tube and Facebook arrests can get in the way of legitimate police business.

Nevertheless, based on the U.S. Supreme Courts denial to hear the appeal, free speech has found a win over the need for police to do their job unaffected by surrounding crowds.

On a historical note, it was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means of communicating applied to freedom of expression and freedom of speech.  According to St. Louis trial lawyer Michelle Funkenbusch, in the case at hand, we are seeing a new non-speech definition of speech… i.e. the act of recording communications.

This isn’t the first case on the issue of the “Right to Record”. Just last year, the First Circuit Court of Appeals held that the First Amendment provided and protected the right to record police in their official capacity in Glik v. Cunniffe, et al., No. 10-1764 (1st Cir. Aug. 26, 2011).  The First Circuit held, “A citizen’s right to film government officials … in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

The Seventh Circuit Court of Appeals ruling on the Illinois law is consistent with this First Circuit ruling on recording laws in Massachusetts. This lack of conflict in the Circuits may be why the U.S. Supreme Court rejected hearing the case.

-Published November 27, 2012. Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer

If you know someone who has been arrested or harassed for recording the police, contact trial lawyer Michelle Funkenbusch at 314-338-3500 to have your civil rights case reviewed.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

 

Learn Food Warranty Law Before You take Another Bite: Missouri Personal Injury Lawyer Gives You Some Legal Thoughts to Chew on.

We ALLL have food on the brain the day before Thanksgiving. So Missouri personal injury lawyer, Michelle Funkenbusch sums up Food Hazard/Choking Law for You:

 

Missouri Personal Injury Lawyer on Food/Choking Hazard Law
Missouri Personal Injury Lawyer on Food/Choking Hazard Law

According to Missouri personal injury lawyer, Michelle M. Funkenbusch,  if you are injured  at a restaurant choking on food hazards (like bones/plastic/toothpicks), Missouri courts follow warranty law to determine liability.  The same is true if you purchase a turkey from your local grocery store, cookies from your local scout troop, or candy from a vending machine, or even a beer from your local pub.  Specifically, Missouri follows the common law principle that there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the purchaser. Degouveia v. H.D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336, 339 (1936).  A claim for common law implied warranty of fitness for consumption requires that a Plaintiff show:  (1) the defendant sold a food substance meant for human(or animal) consumption;  (2) the plaintiff (or your animal) ate or drank the food/drink; (3) when the defendant sold the food/drink it was not fit for human(or animal) consumption; and (4) the Plaintiff was damaged as a direct result.  See Missouri Approved Instructions (MAI 25.02).

[RANDOM LEGAL FACT OF THE DAY: The MAI is the book of jury instructions relied on by courts to instruct the jury what must be proved in a particular case. The Missouri Supreme Court committee on jury instructions creates this book and it must be reviewed and used in every civil case that goes to trial.]

Grandma’s Food Almost Killed Me!!

What if you are at your Grandma’s house for Thanksgiving and you choke on a foreign substance that you could/would not have inspected in the food?  Assuming it was not added to the food by your grandmother (which of course will be a defense of the seller and manufacturer), you may have a case for a personal injury lawyer to review.  It doesn’t matter that you didn’t buy the food at a restaurant or store.  If the injured party in a choking case was not the purchaser of goods, but is a natural person who is a member of the family or household of the buyer, or was a guest in the buyer’s home, and it was reasonable to expect that such person would consume  the food/drink, then the seller or manufacturer can be liable under the Uniform Commercial Code. In other words, even though you lack “privity of contract” you may be able to recover and should seek the counsel of a St. Louis personal injury lawyer.    And yes, you could sue Grandma for negligent cooking… but that’s just not nice!

Missouri Personal Injury Case Against the Manufacturer??

If you have sustained personal injury  in Missouri as a result of the consumption of a foreign body or substance in a food or beverage sold, you may also, under proper circumstances, maintain an action to recover damages for such injury against the manufacturer of the product, on the ground of breach of an express or implied warranty.  In the absence of an express warranty (something actually written on the product or packaging), the law implies that the manufacturer or packer of foods intended for human consumption warrants that his products are fit for human consumption, and that he has used in the selection and preparation of such products the degree of care ordinarily exercised by persons skilled in the business of preparing and packing food for distribution or sale to the general public.

A  manufacturer, in the proper factual situation, is held as an “absolute insurer against knowable dangers”, and thus has an incentive to keep abreast of scientific knowledge to keep knowable dangers out of their products.  But, in some cases (like in the case of cigarettes), what is knowable can be difficult to prove without a great deal of expense and highly trained personal injury lawyers.  Ross v. Phillip Morris, 328 F.2d 3 (United States Court of Appeals Eighth Circuit 1964).

Other Theories a St. Louis Personal Injury Lawyer May File Suit for in A Food Hazard Case

You may also have the right to sue under other theories of personal injury. For example, you may have a claim under the Uniform Commercial Code for breach of an implied warranty for fitness for a particular purpose or breach of implied warranty of merchantability (fitness for an ordinary purpose) in general.  You may also have a claim for strict liability for a product defect or for failure to warn.   These are complicated claims and require the expertise of an experienced St. Louis personal injury lawyer.

Choking on Bones in the Turkey vs. Glass in the Turkey… why is one a good case and one a bad case?

To have a good case of liability, you usually have to have been injured by something foreign to the food you were eating, but not always.  Liability for injuries caused by a substance in food will often depend on whether the substance in question is considered to be “foreign.”  Under the so-called foreign-natural test that many other states rely on, there is no liability for injury caused by a substance that are considered “natural” to the food sold.  If the object is one that is naturally associated with the type of food in which it is found, it is not considered to be foreign, since the occasional presence of such objects is something to be anticipated by the consumer. Thus, for example, a hardened, crystallized grain of corn has been held not to be foreign to a package of corn flakes, and a bone has been held not to be foreign to a canned food product containing meat of the kind from which the bone came. However, some courts have held that objects which are natural to the type of food involved but which generally are not found in the style of the food as prepared may be deemed to be the equivalent of a foreign substance. Thus, in an action against a packer of canned chicken for injuries sustained from a chicken bone in chicken chow mein served at the plaintiff’s school and made from the defendant’s product, the chicken bone was held to be “something that should not be” in defendant’s product, which defendant had advertised as “boned chicken.” It has also been held in other states that breach of an implied warranty of fitness is shown by proof of a piece of oyster shell in a can of oysters sold by a defendant retailer, even if it appears that shells cannot be entirely eliminated in the canning of oysters.

Several states have rejected the “foreign-natural” test in favor of what is known as the “reasonable expectation” test. This test is based on what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to its preparation.

The “foreign-natural” test apparently continues to be the rule in most jurisdictions.  In states where the “foreign-natural” test is applied, even if an injured plaintiff can establish an otherwise legally sufficient claim of negligence, breach of implied warranty, or strict tort liability, a food processor may be free from liability as a matter of law if the deleterious object or substance in the food is natural to the ingredients of the product.  However, in states where the “reasonable expectation” test is the rule, liability might be incurred on any appropriate theory even for a “natural” defect if it is one not reasonably anticipated by the consumer. There appears to be a recent trend among several states toward acceptance of  the “reasonable expectation” test.

Missouri has yet to directly adopt either test mentioned above and leaves the fitness for consumption a question for the jury.  This grey area of the law is another reason why you should consult with an experienced Missouri personal injury lawyer.  

Michelle M. Funkenbusch has handled cases involving plastic in pudding, foreign substances on buffets, rat parts in frozen spinach, lead poisoning, and more. Contact her if you would like to discuss your potential case for free at 314-338-3500.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

Safety Tips for Halloween from Personal Injury Lawyer Michelle Funkenbusch

Car v. Pedestrian Accidents Safety Checklist for Halloween

Personal Injury Lawyer Warns About Monkeying Around on Halloween Night

According to U.S. Census data, there are about 41 million potential trick-or-treaters between the ages of 5 and 14. Add that statistic to the fact that in 2010, 41 percent of all highway fatalities across the nation on Halloween night (6 p.m. Oct. 31 to 5:59 a.m. Nov. 1) involved a driver or a motorcycle rider with a BAC of .08 or higher, Halloween night requires added attention to safety to all those walking from house to house.

According to statistics from the U.S. Department of Transportation, in four out of six years between 2006 and 2010, more pedestrians under the age of 21 were killed by cars on Oct. 31 than on Oct. 30 or Nov. 1. Taking steps now and remembering them on Halloween night can prevent a pedestrian vs. car accident.

Here a few tips to reduce car v. pedestrian accidents this Halloween from Saint Louis personal injury lawyer Michelle Funkenbusch:

1.  Carry a flashlight or glowstick and wear glow-in-the-dark necklaces or attach reflective tape to costumes, wagons, and bags.

2.  Loose fitting clothing and oversized shoes can trip a trick-or-treater when crossing the street, so they should practice walking/running in their costume safely. Cut any costumes shorter if necessary.  

3.  Pirate swords and masks are cool, but are dangerous and masks can obscure vision. Thus, leave the swords at home (or make one from a poster board and aluminum foil) and use face paint instead of masks.

4. Remind kids to cross at crosswalks or at a corner with you.   They should also always make eye contact with drivers before stepping into the street and ALWAYS look left, right and left again.

5. For parents and kids, take out the headphones and no texting and walking especially when crossing the road.

6.  Avoid the decorative contact lenses — they could blur your vision at night.

7.  Many car accidents happen when a vehicle is pulling out of a driveway; kids should always look for cars when walking by a driveway.

8.  Stay with a group as you and your children are more visible.

9.  In urban areas, make sure children understand they cannot dart out between cars and that they may not see oncoming traffic.

Halloween trick-or-treaters need to be careful, but so do drivers. Drivers need to know that kids will be out of the streets looking for candy and not looking for cars. Avoid a car accident with a child by increasing your look-out for pedestrians. A few extra seconds could prevent a pedestrian vs. car accident!!!

Prepare now to have a safe and enjoyable Halloween. Be safe and watch out for those who aren’t!

 

CLICKABLE MISSOURI VOTER GUIDE: BE PREPARED FOR ELECTION TUESDAY NOVEMBER 6, 2012

VOTE NEXT TUESDAY, November 6th. 

Voter Guide for Missouri General Election Provided by the Law Offices of Michelle M. Funkenbusch

Finding your polling place and sample ballot:

 Absentee Voting:

  • If you will be absent from your voting district on election day, or meet one of the other qualifications for absentee voting, you can request a ballot and return it by mail or fax, or vote in an early/absentee voting location–but you’ll need to plan ahead.  Details and information about absentee voting are here.

Information about candidates:

How to find your candidate’s names, your US Rep, State Rep, and State Senate District numbers:

BEWARE that many/most district numbers have changed this year in Missouri, thanks to the new census data and re-districting. Your state representative district number is almost certainly changed, and many state senate districts and US representative districts have changes boundaries, too–sometimes by a little and sometimes by a lot. Here is how to find your updated info:

November 2012 Ballot Issues:

MISSOURI CONSTITUTIONAL Amendment 3

 Judges
OFFICIAL BALLOT LANGUAGE
Shall the Missouri Constitution be amended to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to:
  • appoint a majority of the commission that selects these court nominees; and
  • appoint all lawyers to the commission by removing the requirement that the governor’s appointees be nonlawyers?
There are NO estimated costs or savings expected if this proposal is approved by voters.
FAIR BALLOT LANGUAGE
“yes” vote will amend the Missouri Constitution to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to appoint a majority of the commission that selects these court nominees. This measure also allows the governor to appoint all lawyers to the commission by removing the requirement that the governor’s appointees be nonlawyers.
“no” vote will not change the current constitutional provisions for the nonpartisan selection of supreme court and court of appeals judges.

Proposition A

Law enforcement
Shall Missouri law be amended to:
  • allow any city not within a county (the City of St. Louis) the option of transferring certain obligations and control of the city’s police force from the board of police commissioners currently appointed by the governor to the city and establishing a municipal police force;
  • establish certain procedures and requirements for governing such a municipal police force including residency, rank, salary, benefits, insurance, and pension; and
  • prohibit retaliation against any employee of such municipal police force who reports conduct believed to be illegal to a superior, government agency, or the press?
State governmental entities estimated savings will eventually be up to $500,000 annually. Local governmental entities estimated annual potential savings of $3.5 million; however, consolidation decisions with an unknown outcome may result in the savings being more or less than estimated.
“yes” vote will amend Missouri law to allow any city not within a county (the City of St. Louis) the option of establishing a municipal police force by transferring certain obligations and control of the city’s police force from the board of police commissioners currently appointed by the governor to the city. This amendment also establishes certain procedures and requirements for governing such a municipal police force including residency, rank, salary, benefits, insurance, and pension.  The amendment further prohibits retaliation against any employee of such municipal police force who reports conduct believed to be illegal to a superior, government agency, or the press.A “no” vote will not change the current Missouri law regarding St. Louis City’s police force.If passed, this measure will have no impact on taxes.

Proposition B

Tobacco
Shall Missouri law be amended to:
  • create the Health and Education Trust Fund with proceeds of a tax of $0.0365 per cigarette and 25% of the manufacturer’s invoice price for roll-your-own tobacco and 15% for other tobacco products;
  • use Fund proceeds to reduce and prevent tobacco use and for elementary, secondary, college, and university public school funding; and
  • increase the amount that certain tobacco product manufacturers must maintain in their escrow accounts, to pay judgments or settlements, before any funds in escrow can be refunded to the tobacco product manufacturer and create bonding requirements for these manufacturers?
Estimated additional revenue to state government is $283 million to $423 million annually with limited estimated implementation costs or savings. The revenue will fund only programs and services allowed by the proposal. The fiscal impact to local governmental entities is unknown. Escrow fund changes may result in an unknown increase in future state revenue.
 
“yes” vote will amend Missouri law to create the Health and Education Trust Fund with proceeds from a tax on cigarettes and other tobacco products.  The amount of the tax is $0.0365 per cigarette and 25% of the manufacturer’s invoice price for roll-your-own tobacco and 15% for other tobacco products.  The Fund proceeds will be used to reduce and prevent tobacco use and for elementary, secondary, college, and university public school funding.  This amendment also increases the amount that certain tobacco product manufacturers must maintain in their escrow accounts, to pay judgments or settlements, before any funds in escrow can be refunded to the tobacco product manufacturer and creates bonding requirements for these manufacturers.
“no” vote will not change the current Missouri law regarding taxes on cigarettes and other tobacco products or the escrow account and bonding requirements for certain tobacco product manufacturers.
If passed, this measure will increase taxes on cigarettes and other tobacco products.

Proposition E

Health care
Shall Missouri Law be amended to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature?No direct costs or savings for state and local governmental entities are expected from this proposal. Indirect costs or savings related to enforcement actions, missed federal funding, avoided implementation costs, and other issues are unknown.
 
“yes” vote will amend Missouri law to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature.
“no” vote will not amend Missouri law to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature.
If passed, this measure will have no impact on taxes.

The officially approved ballot language CITED above for all four November ballot issues is here.

Key Statewide Races:

Governor:

Jay Nixon (I) – platform
Dave Spence – platform

Lieutenant Governor:

Peter Kinder (I) – website
Susan Montee – website

Secretary of State:

Jason Kander – website – wikipedia
Shane Schoeller – website – wikipedia

Treasurer:

Cole McNary – website – wikipedia
Clint Zweifel – website – wikipedia

Attorney General:

Chris Koster (I) – website – wikipedia
Ed Martin – website – wikipedia

All other offices/candidates

Editorial: Fireman’s Retirement Fund Trial Against St. Louis City This Week… Why The World Needs Lawyers

Local Trial Attorney Explains Complex Legal Issues At Stake in Trial Held This Week in Fireman Fund Case

Sometimes, you have to thank God there are geeky lawyers and judges willing to actually read the law.  The Fireman’s Retirement Fund trial against the City of St. Louis is the perfect example of why the world needs lawyers.  The mind-numbing law related to the Fireman’s Retirement Fund is more complicated than the Godfather trilogy. I am still trying to figure out who did what, when, and why (both in the Godfather and in the ordinances, city charters, statutes, and Missouri constitution).

While I have sometimes disagreed with the Honorable Judge Robert H. Dierker, I enjoy reading his opinions. Dierker is a renowned conservative, and sometimes controversial, intellectual St. Louis trial judge.  He was the perfect man to sift through years and years of law on who has authority to do what when it comes to pension plans and city charters.

Dierker was assigned the grave duty of wading through the “tangled skein of cases, statutes and constitutional provisions”, as he called them, that relate to the Fireman’s Retirement System in St. Louis.  Most lay people probably don’t have a strong grasp on the issues involved in this firestorm and neither do most St. Louis lawyers. . . because these issues deal with striking new 2012 city ordinances based on law that dates back fifty to a hundred years. Whenever you have to cite law in your argument from the 1800’s, you know it’s going to be a long night.

As to the main issues, in a nutshell, the City overhauled the pension plan for firemen because it became too taxing on the City budget.   But promises are promises, right?  The plaintiffs, the firemen, filed suit against the City to seek declaratory and injunctive relief to annul the ordinances enacted by the City in 2012.

One ordinance imposed restrictions on the authority of the FRS trustees to litigate changes in the City’s pension plan for firefighters.  Another ordinance purported to repeal the existing pension plan and substitute a new plan with significant reductions in benefits for firefighters not yet retired.

 In his lengthy preliminary opinion: Dierker wrote:

“Pension Crisis Looms Despite Cuts” warns a front page headline in the The Wall Street Journal, September 22-23, 2012, p. 1. Playing out their parts in this national drama, the trustees of the Firemen’s Retirement System of St. Louis (FRS for short), Local 73 of the International Association of Fire Fighters, three active firefighter members of FRS, one retired beneficiary, and the City of St. Louis are  before this Court as a result of the City’s efforts to curb its pension costs, which now consume an annual sum exceeding 50% of the actual payroll of active duty firefighters.”

On page 22 of his opinion, Dierker ruled that at this “preliminary injunction stage, the Court’s conclusion that the law forbids the merger of the FRS into the new plan militates in favor of granting a preliminary injunction to preserve the status quo.”  Dierker issued this preliminary injunction Sept. 28 — three days before the start of the FRS’ fiscal year.

Among other things, the questionable ordinance transfers the assets of the Firemen’s Retirement System, the current plan, to a new plan called the Firefighters’ Retirement Plan… FRS to the FRP… got it?

As described in Dierker’s 34-page order, the ordinance raises firefighters’ contribution rate from 8 percent to 9 percent and reduces the pension benefits. While firefighters currently may retire with full pension benefits after 20 years of service, they would not be entitled to retire with full benefits until they reach 55 years of age and have 20 years of experience.

In essence, this stopped the City’s attempted overhaul from taking effect. In the Memorandum and Order, Dierker concluded the City lacked the authority to merge the assets of the current pension system into a new system, although the city could repeal the current system.

In September, St. Louis Mayor Francis Slay blogged that Dierker affirmed the city’s “fundamental positions” when he concluded that the city can create a pension plan without state approval. While the judge said the city can’t merge the current and new pension systems, he said lawmakers seem to have contemplated having the two systems run parallel for at least some of the FRS members.

“We may have to amend the ordinance to comply with the judge’s order,” Slay said on his blog. “But, it creates a path — a local path — to stop the enormous cost increases in FRS, while being fair to taxpayers and firefighters.”

With the preliminary injunction Order, we have a pretty good idea what the Final Order will say, but nevertheless, the trial began Monday morning in Dierker’s courtroom.  So where does that leave us… I think at the end of Disc One of the Godfather Part II.