Bicycle Law, Bicycle Law News, Legal Articles, Missouri Legal News, Uncategorized

Top Ten Things to Do When You Are Hit By a Car on Your Bicycle

Top Ten Things to Do After a Bicycle Accident from St. Louis Bicycle Accident Attorney 

Cyclists are injured and killed by hit-and-run drivers every day. Today, a cyclist was killed while trying to cross the street after exiting a well known bike path in Fullerton, California. Police are searching for a black vehicle involved in a hit-and-run accident that left the bicyclist dead.  Police said the man that was hit appeared to have come off a popular biking trail and was crossing the street.  The vehicle fled the scene, and then the victim was hit by a second vehicle, which stopped.  The bicyclist was rushed to a local hospital, where he was pronounced dead shortly after.

Here is a checklist to follow if you are hit while riding your bicycle and are still able to function. If you were not able to function at the time of the accident, or your loved one was killed, it is imperative you or your family contact an experienced bicycle accident attorney immediately. Make sure your family knows who you want them to call in an emergency.  If you are a witness to an accident, please help the victim with the following top ten things to do after a cycling accident:

CHECKLIST FOR BIKE ACCIDENTS

1.  Get out of the road to avoid being hit a second time; however, if possible, take pictures (or have someone else take pictures) before the bike or car are moved.

2.  Get the phone numbers and names of all witnesses.

3.  Make sure to remember what if anything the driver, passengers, and or witnesses admit or tell you about the accident.

4.  Call the police immediately and make a police report.  Do not let the driver talk you out of making a report.

5.  Do not ignore your pain and blow it off. People are often hurt way worse than what they thought at the time of the accident due to adrenaline.  Go to an ER or doctor immediately if you have any pain. If you do not document that you are injured in medical records, you have no case for personal injuries.

6.  Ask to see the driver’s license and insurance information. Do not just let them write it down for you. Get the phone numbers to make a claim. Check the policy dates on the card to verify you have the correct insurance card. 

7.  Seek an estimate of your bike damage for repair and replacement value from a reputable shop like Maplewood Bicycle. http://www.maplewoodbicycle.com/.  Do NOT try to fix it on your own without first getting the estimate.

8. Do not destroy anything that could be evidence such as a cracked helmut, torn clothing, bloody shoes, etc.

9.  Do NOT give a recorded statement to the insurance company. They are NOT on your side and will try to trick you into saying something to use against you in court.  

10.  Call a bicycle accident attorney within 24 hours in order to preserve all evidence, to contact witnesses, to make sure the police have the correct story (in case a supplemental report is needed with your statement), and to let the insurance company for the driver know you are represented and cannot be bullied into a settlement that greatly undervalues your case.

Again, if you or your loved one are hit while cycling, contact Missouri Cycling Advocate and Bicycle Accident Attorney, Michelle M. Funkenbusch at 314-338-3500.   If you would like a FREE hour presentation to your community group, athletic club, or children’s organization, on Missouri bicycle law and safety measures, please contact Michelle.

Bus Accident News, Missouri Legal News

“Phone Blox” Invented by SLU Grad to Help Prevent Bus Accidents

St. Louis Bus Accident Lawyer Discusses Potential New Standard of Care for Bus Companies to Prevent Bus Accidents.

There is a new standard of care developing for bus companies to prevent bus accidents caused by their distracted drivers.  Phone Blox is a product that connects to the ignition or transmission system of a bus.  The driver puts their cell phone in a box that automatically locks when the bus is turned on or put into gear.  As of 2010, there were 7,200 public transit agencies, operating 66,239 buses in the U.S., according to the American Public Transportation Association.  That does not count school buses, taxis, or light rail systems that could also use Phone Blox.

Inventor, SLU grad Ginny Foster delivered prototype boxes of her bus accident safety invention in July 2010 to the Metropolitan Transit Authority of Nashville, Tenn. Later that year, the Nashville MTA won the 2010 American Public Transportation Association GOLD Safety Award for their innovative solution to thwart distracted driving, a problem every public transportation system in the nation is dealing with.  Bus drivers, like every driver in Missouri, are required to use the highest degree of care in operating the bus.  In addition, bus companies are required to use reasonable care in developing safety programs to prevent bus accidents.  As the use of Phone Blox and similar systems become more widespread, there will be a greater degree of responsibility for public transit companies to keep up with the safety innovations or be subject separately to a suit for negligence when bus accidents occur.  This could allow for punitive damages for willfully  ignoring safety features that can save lives.

In addition, it is very possible this same technology is justified for use in tractor-trailers, which are 30,000 ton weapons on the road.  Distracted driving is one of the number one causes of accidents in the United States.  Any safety system that will limit use of cell phones while operating tractor-trailers should be standard in the trucking industry.

If you have been injured in a bus accident, you need a trial lawyer that is going to be “in the know” about how to prove cases of negligence against bus companies, not just the drivers.  The Law Offices of Michelle M. Funkenbusch strives to research daily the law and safety developments that could affect her client’s bus accident cases.

SOURCE:  St. Louis Business Journal by Amir Kurtovic, Reporter

Bicycle Law News, Missouri Legal News, Uncategorized

Missouri cyclist killed in accident during charity ride

A 48-year-old bicyclist from Independence died Saturday after he was struck by a vehicle while riding along a rural route of a charity ride east of Buckner.

Michael D. Forbes was riding west shortly after 8 a.m. on U.S. 24 near County Road H when a westbound car struck his rear wheel, according to the Missouri Highway Patrol.

Forbes was riding the route of the Freedom From Cancer Ride, a charity event that started at 7 a.m. in Independence and extended to Lexington and back. Forbes wanted to start earlier than the official race time, so he was actually headed back to Independence as hundreds of other riders were still riding east, said Chris Pace, the event’s coordinator.

Forbes was alone, so other riders didn’t see the accident, Pace said.

Troopers still investigating the bicycle/car accident cited inattention by the 32-year-old driver as a cause. The driver told troopers he had glanced down at his dashboard. When he looked back up, it was too late to avoid hitting the cyclist, said Sgt. Collin Stosberg.

Troopers are going to subpoena cellphone records from the driver as a routine part of the investigation, Stosberg said.

Evidence showed Forbes was on the roadway, according to the Highway Patrol.

The victim and his wife, who was volunteering at the event, are well known and liked in the cycling community, Pace said.

“It’s tragic all the way around,” Pace said. “He was a good guy. He’d do anything for anybody.”

Cyclists know their hobby can be dangerous, Pace said, especially with multiplying distractions inside vehicles.

“All I can say is try to ride in a group,” Pace said. “Try to make yourself a bigger target.”

SOURCE: BY CHRISTINE VENDEL, To reach Christine Vendel, call 816-234-4438 or send email to cvendel@kcstar.com.  Posted on Sat, Jun. 30, 2012 09:47 PM

Read more here: http://www.kansascity.com/2012/06/30/3684614/independence-cyclist-killed-in.html#storylink=cpy
If you are in need of a personal injury lawyer specializing in cycling accidents,  Contact Michelle M. Funkenbusch, Missouri’s Advocate for the Cyclists.
Bicycle Law News, Missouri Legal News, Uncategorized

Transportation-related bills from the 2012 legislative session passed and awaiting the governor’s signature

[UPDATE 8 JULY 2012: Bills signed or approved by Governor Nixon are indicated.]

A number of transportation related bills passed the Missouri General Assembly this year and are now awaiting the governor’s signature.

The Missouri Bicycle and Pedestrian Federation recently gave a summary of the bicycle and pedestrian related bills and issues that came up during this year’s legislative session.  Now an even larger list–all of the significant transportation-related bills, whether or not they include bicycle or pedestrian provisions.Missouri Capitol and bicyclists

Almost all of the bills are ‘omnibus’ bills containing somewhere between a few and many different provisions.  To see the full list of provisions, click through to the bill’s page. The list below points out only those provisions of special interest for bicycling, walking, or trails:

  • SB 470 – Optional 3rd license plate for use when bike rack or other obstruction obscures the rear license plate (Ryan’s law)
  • SB 568 – Cities are allowed to levy a transportation tax under 74.700 to 74.755 RSMO.  The tax can be used for mass transit, roads, streets, bridges, airports, and planning. SB 568 adds “sidewalks, trails, and community-owned parking” to the list of allowed items for the tax.
  • SB 607 – Allows billboards to be moved or removed under special rules when a stretch of highway undergoes construction.
  • SB 611 – temporary permit tags; yellow light duration; move over law
  • SB 665 – conveys certain real estate to MoDOT
  • SB 719 – motorcycle training course exemption; use of state park roads by commercial entities (ie, bike rental, canoe rental)
  • HB 1402 – Optional 3rd license plate for use when bike rack or other obstruction obscures the rear license plate (Ryan’s law); “moderate” billboard legislation requiring MoDOT to create regulations government digital signs; includes many other provisions
  • HB 1504 – authorizing additional funding for Great Rivers Greenway District for trails, greenways, parks, and improvement of the Arch district in St. Louis City, St. Louis County, and St. Charles County; authorizing creation of a Trails and Greenway District in Jackson County and creation of a sales tax to fund trails and greenways.  This is state enabling legislation–all taxes must be approved by voters in the respective counties before they become effective.
  • HB 1807 [signed by governor 6 July 2012] – Designates the bike/ped path on the Heart of America Bridge in Kansas City as the “Bob Watts Memorial Bicycle & Pedestrian Bridge”.  Bob was a pioneering bicycle and pedestrian advocate in Missouri and former MoBikeFed Chair.
  • HB 2004 and HB 2005 [signed by governor 22 June 2012 with one minor line-item veto in HB 2004] – Appropriating funding for MoDOT.
  • SCR 26 – Establishes the Joint Interim Committee on Transportation Needs to study the transportation infrastructure needs of Missouri

You’ll note that some provisions, such as Ryan’s Law, are included as part of two or more bills.  This is a common legislative tactic–each bill the language is included in raises the odds of that language passing at least once–and helps the provision survive a veto if one or more of the large omnibus transportation bills is vetoed.  So if a certain provision passes twice or more, it can only help and doesn’t hurt anything.

As an advocate for the protection of cyclists and pedestrians, I strongly urge you to support bicycling, walking, and trails in Missouri and work towards Complete Streets policies in Missouri that will help every community become safer and more inviting for walking and bicycling.  Bicycling, walking, and trails are important for our health, for the livability of our communities, and for the economic vitality of our state as it competes on a national and international level.  The governor has until July 14th to sign most of these bills.  

SOURCE: Missouri Bicycle and Pedestrian Federation, Article Submitted by Brent Hugh on Thu, 06/07/2012 – 2:27pm

Bicycle Law News, Missouri Legal News

Local Bicycle Lawyer Attends Spin Class CLE

The Missouri Association of Trial Attorneys offered a spinning class with Continued Legal Education.  The Missouri Bar Association requires lawyers to take 15 hours of continuing legal education courses each year.  St. Louis lawyer Michelle M. Funkenbusch, 38, said she didn’t need the credits. She signed up because she’s training for an Ironman-distance triathlon and thought it would be fun. It turned out to be even more beneficial than she imagined.

“Your brain is woken up for an hour, the blood is rushing through your veins then you have all these attorneys come together and help each other with cases,” she said. “We’ll say, ‘Here’s an idea about my case, and it’s not refined or finished but what do you think?’ And they throw out ideas. I’m one of the youngest and to be in this room with these guys.”   Lawyers earn 9 credit hours for “Spinning your strategy,” which consisted of an hour of spin/cycling class and an hour of round table discussion of pending cases.

For full article:

SOURCE  http://www.stltoday.com/lifestyles/health-med-fit/fitness/lawyers-combine-spinning-legal-education-in-class-at-jcc/article_e413b3ef-5782-5c60-81b5-d2582cfca4ff.html 

Bicycle Law, Bicycle Law News, Legal Articles, Missouri Legal News, Uncategorized

Summary of U.S. Report on Commuting by Bike and on Foot by Missouri Bicycle Accident Lawyer

The Status of Bicycling and Walking in the U.S.

Government officials working to promote bicycling and walking need data to evaluate their efforts. In order to improve something, there must be a means to measure it. The Alliance for Biking & Walking’s Benchmarking Project is an ongoing effort to collect and analyze data on bicycling and walking in all 50 states and the 51 largest cities. They have now prepared the third biennial Benchmarking Report which is 248 pages long. The first report was published in 2007, the second in 2010, and the next report is scheduled for January 2014.

WHERE ARE THE MOST NON-VEHICLE COMMUTERS?

According to the report, the top ten cities where the most people commute by bike or on foot are: 1. Alaska 2. Vermont 3. New York 4. Montana 5. Oregon 6. Hawaii 7. Massachusetts 8. South Dakota 9. Wyoming 10. Maine.  The number one position, Alaska,  indicates it is the state with the highest share of commuters who commute by bicycle or foot.  The cities who ranked highest in commuting by bike and on foot are: 1. Boston  2. Washington, DC 3. San Francisco 4. Seattle 5. New York 6. Portland, OR  7. Minneapolis 8. Philadelphia 9. Honolulu 10. New Orleans.

Missouri ranked 40th out of the 50 states in the levels of commuting by bike or on foot. 

This information comes from the 2007-2009 ACS Notes: This ranking is based on the combined bike and walk to work share from the 2007-2009 ACS. View graphs illustrating this data on pages 34 and 35 of the Benchmark Report.

WHICH IS THE SAFEST STATE FOR A COMMUTER BY BIKE OR ON FOOT?

This is difficult to determine, but one statistic to consider is the number of fatalities per population commuting by walking or biking to work.  The arguably safest state based on fatality statistics is Vermont. The top safest states rank as follows: 1. Vermont 2. Nebraska 3. Alaska 4. Wyoming 5. South Dakota 6. North Dakota 7. Iowa 8. Maine 9. Massachusetts 10. Minnesota. See FARS 2007-2009 ACS 2007-2009.  Note that this ranking is based on the fatality rate which is calculated by dividing the number of annual pedestrian and bicycle fatalities (averaged between 2007-2009) by population (weighted, or multiplied, by share of the population walking and bicycling to work). View these data on pages 56-62 of this report.

Illinois ranked in the top half  of lowest fatalities/population commuting by bike/foot at 23rd,

but Missouri was in the 34th position.

The top twelve cities who ranked the safest based on the fatality statistics  are as follows: 1. Boston 2. Minneapolis 3. Omaha 4. Seattle 5. Portland, OR 6. Washington, DC 7. New York 8, San Francisco 9. Philadelphia 10. Honolulu 11. Colorado Springs 12. Chicago. Kansas City, MO ranked 45th and St. Louis did not make the list because this report focuses on the 50 states and the 51 largest U.S. cities. Most bicycling and walking is in urban areas, and because of short trip distances, the most potential for increasing bicycling and walking is in cities.

Summary of Additional Facts From the Report

Bicycling and Walking Levels:

  • 12% of all trips are by bicycle (1.0%) or foot (10.5%).
  • From 2000 to 2009, the number of commuters who bicycle to work increased by 57%.
  • In 2009, 40% of trips in the United States were shorter than 2 miles, yet Americans use their cars for 87% of trips 1 to 2 miles. Twenty-seven percent of trips are shorter than 1 mile, yet 62% of trips up to 1 mile long are by car. Residents of the largest U.S. cities are 1.7 times more likely to walk or bicycle to work than the national average.

Bicycle and Pedestrian Safety:

  • 14% of all traffic fatalities in the U.S. are bicyclists (1.8%) or pedestrians (11.7%).
  • In the 51 largest U.S. cities, 12.7% of trips are by foot and 1.1% are by bicycle, yet 26.9% of traffic fatalities are pedestrians and 3.1% are bicyclists
  • Seniors are the most vulnerable bicyclists and pedestrians. Adults over 65 make up 10% of walking trips, yet comprise 19% of pedestrian fatalities and make up 6% of bicycling trips, yet account for and 10% of bicyclist fatalities.

Funding for Bicycling and Walking:

 • States spend just 1.6% of their federal transportation dollars on bicycling and walking. This amounts to just $2.17 per capita.

Missouri was ranked 17th out of the 50 states in funding bicycling and walking.

This ranking is based on the per capita spending of federal funds by states and cities on bicycling and walking using a 5-year average (2006-2010). Data is based on funds obligated to projects in this period and are not necessarily the amount spent in these years. The number one position, again Alaska, indicates the state with the highest amount of per capita federal funding to bicycling and walking.  View these data on pages 86-87 of this report.

Here are some additional facts about financial benefits from the extensive report:

Public Health Benefits:

• Bicycling and walking levels fell 66% between 1960 and 2009, while obesity levels increased by 156%.

• Between 1966 and 2009, the number of children who bicycled or walked to school fell 75%, while the percentage of obese children rose 276%.

• In general, states with the highest levels of bicycling and walking have the lowest levels of obesity, hypertension (high blood pressure), and diabetes and have the greatest percentage of adults who meet the recommended 30-plus minutes per day of physical activity.

Economic Benefits:

 • Bicycling and walking projects create 11-14 jobs per $1 million spent, compared to just 7 jobs created per $1 million spent on highway projects.

 • Cost benefit analyses show that up to $11.80 in benefits can be gained for every $1 invested in bicycling and walking.

Download the complete report at: www.PeoplePoweredMovement.org/Benchmarking

Michelle M. Funkenbusch is a cycling advocate and Missouri trial attorney specializing in representing cyclists who have been injured in accidents. Please contact her if you wish for her to speak with your group about the benefits of cycling or if you have been injured in an accident. 314-799-6602. mmf@SaintLouisLegal.com

Bicycle Law, Bicycle Law News, Legal Articles, Missouri Legal News

“Going the Distance”: Pennsylvania Passes “Four Foot” Bicycle Passing Law.

Missouri Cycling Advocate on the New “Four Foot” Passing Law in Pennsylvania.

There is no IQ test required to drive a car or ride a bike… but seeing accident after accident in St. Louis and the surrounding area in Missouri, I am glad to see the continued nationwide movement to pass “safe passing bills”.  Every cyclist knows how it feels to have a car, truck or bus pass too close for comfort.   I know many who have been hit by cars and survived to tell their tale, but not all.  How many cyclists have experienced the “red pickup truck” cursing at them as they are passed on a lonely country road wide enough for all to be happy. Or how about the typical teenage girl in the Dodge Neon, texting her girlfriends, who turns straight into a cyclist.  Motorists often misjudge the space needed due to inattentiveness, lack of the expectation of a cyclist, and lack of experience driving by cyclists. To make roads safer for bicyclists and other vulnerable road users, many states have passed “safe passing bills”  to provide bicyclists the protection of law from passing motor vehicles.

On Tuesday, January 24, 2012, the Pennsylvania Senate voted to pass HB170, a bill that would require motorists allow a minimum of four feet when passing a cyclists on the roadway.  If you review the bill, note that it refers to bikes as pedalcycles… not to be confused with motorcycles.  The bill passed the Senate in a 45-5 vote and is now awaiting signature by their governor so it may become law.  Once signed into law the Pennsylvania bill will require that:

  • Bicycles in Pennsylvania must be operated in the right hand lane, or as close as practicable to the right-hand curb or edge of roadway.
  • This does not apply to a bicycle using any portion of the road due to unsafe surface conditions.
  • Motorists must overtake a bicycle with no less than four feet between the vehicle and the bicycle and at a “prudent reduced speed”.
  • No turn by a motorist may interfere with a bicycle proceeding straight.

Here is the link if you would like to read the bill:

http://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=HTM&sessYr=2011&sessInd=0&billBody=H&billTyp=B&billNbr=0170&pn=0114

The “four foot” law is significant in that most states that have passed safe passing laws have limited it to three feet.  Three foot laws have come under scrutiny for still being too narrow.  Some driver’s education handbooks instruct to give 6 feet of room when passing a cyclist.

No Three or Four Foot Law in Missouri: Must Pass at “Safe Distance”

Insurance Company lobbyists have continued their success in Missouri in blocking a three or four foot passing laws.  They fear a rise in claims if a clear-cut law is passed.  Currently, Missouri has no specific number of feet that you must overtake a bicycle, but there is a specific  vehicle-overtaking-bicycle law.  Overtaking  law, “304.678.  Distance to be maintained  when overtaking a bicycle.”, (here)  states “The operator of a motor vehicle overtaking a bicycle proceeding in the  same direction on the roadway, as defined in section 300.010, RSMo, shall leave a safe distance, when passing the bicycle, and shall maintain clearance  until safely past the overtaken bicycle.” (italics added)  Penalty: “Any person who violates the  provisions of this section is guilty of an infraction unless an accident is  involved in which case it shall be a class C misdemeanor.”

If you have any questions about Missouri bicycle accident law, contact Michelle M. Funkenbusch, St. Louis Trial Lawyer and Cycling Advocate, 314-799-6602.  Michelle provides free bicycle law education seminars to the community, high schools, scout troops, and adult social organizations. If you would like Michelle to speak to your group, please do not hesitate to contact her.

Finding Private Safe Roads in Missouri For Cycling is a Challenge

 

Farm Accident Law, Legal Articles, Uncategorized

City Trial Lawyer “Goes Country” and Explains Why Farm Accident Cases Are Sometimes Filed in Civil Court and Sometimes In the Division of Worker’s Compensation:

Farm Accidents: Worker’s Compensation or Civil Lawsuit?

I may be a St. Louis City trial lawyer, but I have two pairs of Justin Roper boots, a pair of Rockies jeans, a four star beaver-fur cowboy hat and yes…. farm accident cases.  I fully admit that twenty years ago, I didn’t know what a combine was, but having farmers in my extended family forced me into the world of cow patties and four wheelers.   I have since been exposed to cases involving falls in grain bins, machinery mishaps, legs being torn off by augers, bodies being sliced by cables that break and fly through the air, etc.  Farm work is dangerous and no place for my city lawyer stiletto heels.  But, farms are a place for a big city trial lawyer’s experience and I’ll share a little of that experience with you today concerning where a suit/claim is filed when a farm accident occurs.

There are more than 2 million farms in the United States.  Farms vary greatly in their size from small, family-run farms to large production facilities with million dollar sales.  No matter the kind of accident on a farm, the first question is whether we file a civil suit in a court of law or file a workers compensation claim. And the answer is…. it depends.  Even though you may have been injured on the job, not all farm accidents are covered by Missouri Worker’s Compensation laws.  In ’78, Missouri amended its worker’s compensation laws related to farming.  These laws created an exemption for employers of farm labor from carrying workers’ compensation insurance, meaning your injury case would be filed in a civil court (the kind of court where car accident cases are normally filed).  However, farm employers of non-farm labor are required to carry worker’s compensation insurance if they have five or more employees. If laborers work more than 5-1/2 consecutive work days per year, then each counts as an employee.

Needless to say, it is not easy to determine where to file a claim/lawsuit and it most likely requires the expertise of a Missouri farm accident trial lawyer.  For example, the average employee may not know that last year the Court of Appeal in Missouri in State ex. rel. KCP&L Greater Missouri Operations Co. v. Cook, — S.W.3d —-, 2011 WL 4031146 (Mo.App. W.D. 2011), held that occupational disease claims (like carpal tunnel syndrome, cubital tunnel syndrome, & mesothelioma), are not subject to workers’ compensation’s exclusive remedy. Under the Cook decision, an employee with a work-related occupational disease may now choose between bringing a workers’ compensation claim with the Division of Worker’s Compensation or file a lawsuit for damages.

Pros & Cons of Farm Accidents Being Covered By Missouri Workers’ Compensation:

The Pros of Your Farm Accident Case Being Handled Under the Worker’s Compensation System:

In addition to being a simpler and more flexible system as far as evidence goes, worker’s compensation gives employees way more assurance they will get some compensation for their injuries than if the case was filed in a civil court.  In fact, unlike a civil case, you can potentially get temporary weekly disability benefits, medical paid for by the employer, and reimbursement for expenses… all before a formal administrative hearing (trial) on the case.

A huge benefit in worker’s compensation is that you do not have to prove your employer was negligent, like you do in civil court.  In fact, you can even be entirely at fault and recover under worker’s compensation!  While you can be penalized for violating a safety statute or using drugs or alcohol on the job, you are generally way better off  in workers compensation if the accident was your own fault.  You also avoid unpredictable juries and strict judges who throw out evidence that does not conform to the strict rules of civil suits.

As a worker’s compensation lawyer, I can generally tell you a range of what various injuries are worth in the workers’ compensation arena, assuming we know your average weekly wage and your permanent disabilities related to your injury.  This predictability is the benefit of the Missouri Worker’s Compensation system. But, keep in mind, employers are benefiting from worker’s compensation coverage too.  They are limiting their liability for farm accidents to the coverage under the workers compensation insurance policies. Once again, farm accident law is tricky and you should consult with a Missouri farm accident trial lawyer, like myself to analyze your claim.

The Cons of Your Farm Accident Case Being Under the Worker’s Compensation System:

The biggest disadvantage to the farm employee (who often sustains major injuries) is that you have no chance of the million dollar verdicts you see in farm accident cases filed in civil court.  The value of your case if it is a major injury is often less in worker’s compensation hearings.  You get no compensation for pain and suffering.  No compensation for the suffering of your spouse when he/she had to be your caregiver.  No jury of your peers to feel sorry for you.  Worker’s compensation is often an almost emotionless system of numbers and charts.  The Administrative Law Judges at the Division of Worker’s Compensation have generally seen every type of injury many times and usually place an injury in a specific disability range (which predicts the dollar value) to be consistent in their rulings and opinions. No run-away verdict is possible.

There is also a shorter statute of limitations in workers’ compensation (2 or 3 years depending on the facts) than in civil personal injury suits (5 years).Worker’s

In the workers’ compensation system, workplace exposure to a hazard must be the “prevailing factor” of the injury in farm accident cases and farm occupational disease cases… not just the proximate cause like in civil court.  You can thank Missouri tort reform in 2005 for that higher standard.  And no, I won’t be sending a Christmas card to Blunt anytime soon. With a pro-employer legislature in Missouri right now, it would not be surprising to see additional amendments that make worker’s compensation cases more difficult to prove.

Farming  is consistently one of the most hazardous industries.

Each day, about 500 farm employees experience injuries.

In an average year, 110 American farm workers are crushed to death by tractor rollovers. 

I represent those men and women injured in all forms of farm accidents.

If you, or someone you love, has suffered serious injuries, or you have lost a loved one to wrongful death, I can help.  Call me today to learn about your rights and options in your potential farm accident case. 

Michelle M. Funkenbusch 314-799-6602.

Debt Collection, Legal Articles

A Win for the Little Man: Missouri Debt Collection Cases are Harder to Prove for Companies Who Sell Debts

St. Louis Trial Attorney Explains New Evidentiary Case Law:

The Missouri Supreme Court Made It More Difficult to Prove Standing To Collect Debts.

Those defendants who owe debts that have been sold to other companies won a BIG verdict in their favor this week. In a ruling on January 17, 2012, the Missouri Supreme Court mandated strict proof of “standing to sue” by the debt-buying companies.  The Missouri Supreme Court unanimously said that the debt collection company failed to prove it had “standing” to collect a credit card debt from the debtor. Companies cannot just walk in court with a lawyer and say you owe a debt and get a verdict.  They must have evidentiary proof of “standing”.  Standing, sometimes referred to as standing to sue, is the name of the doctrine that focuses on whether a prospective plaintiff can prove they have some personal or corporate legal interest in the outcome of a lawsuit, not just a general public interest.

The Court held, in this simple collection lawsuit, that a debt buyer’s representative is NOT competent to lay foundation for transactional documents created by the original creditor.   So think this through…. the original creditor, who now has no interest in the debt or lawsuit, would have to produce a custodian of records(likely in another state) in order for the trial court to receive the debt assignment documents into evidence.  This makes collection and winning at trial MUCH more difficult for debt buying companies who have no control over the original creditors.  Why would the original creditor be interested in sending a representative across the country to prove the buiness records are legitimate, unless of course debt buying companies contractually require them to cooperate in collection actions.

This is a huge win for all of you that owe debts and are defendants in cases filed by mortgage companies and credit card companies who have sold your debt over and over.  Each time there was an assignment of the debt, there must be a custodian of records from that company to testify as to the business records related to the assignment.  That makes a LOT of work for the Plaintiff for collecting on small debts. The cost of proof (flying in witnesses) could easily be more than the debts.  The fallout of this Court decision may mean that those savvy debtors who hire trial attorneys will win at trial, as the lawyer will know how to object to evidence or the lack of evidence of standing.

The rule of law to take away from this case is that in cases that involve a party attempting to recover on an account owed to some other party, proof of an assigment of the account, and each subsequent assignment, is essential to a recovery.

This case has been closely watched by the debt-buying industry, which purchases debts that frequently are sold over and over and may have spotty records.  Lobbyist groups for creditors wrote numerous briefs to support the debt buying company’s case on appeal.  Despite the corporate push to keep it easy to prove debts, the Missouri Supreme Court required strict proof from these debt buying companies.  Remind me to send the Supreme Court a Christmas card.

For more information, the case is CACH LLC v. Jon J. Askew, SC91780.  If you would like to hear the oral arguments or see some of the supporting documents and briefs… click here… http://www.courts.mo.gov/SUP/index.nsf/fe8feff4659e0b7b8625699f0079eddf/05b1ab4a57ec67848625792f00750254?OpenDocument   

From my experience as a general practitioner, people like to do their own research on debt collection law, as they are reluctant to tell anyone the predicament they are in.  As a service to the public, the staff of the Federal Trade Commission (FTC) has prepared the following complete text of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p.  http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf .  You might find it helpful if debt colletors are after you.  If you believe you are a victim of wrongful collection practices and want your right to a trial, contact St. Louis trial attorney Michelle M. Funkenbusch at 314-799-6602.

DWI, Legal Articles, Uncategorized

Personal Portable Breathalyzer Tests To Help Avoid Tickets For DUI

As we continue through this holiday season in St. Louis, consider buying your favorite partier a portable breathalyzer for $30.00 to $100.00. While they may not be as accurate as police testing for DUI, they are valuable in helping someone realize they need to call a cab. I regularly represent people with DUI’s who believe they were not drunk… until we read the police report and see their BAC levels.

How do breathalyzers show your alcohol level during DUI testing? Alcohol (ethanol) shows up in your breath because it gets absorbed from the mouth, throat, stomach and intestines into your bloodstream.  Ethanol­ is not digested upon absorption, nor chemically changed in the bloodstream. As the blood travels through your lungs, some of the ethanol moves across the membranes of the lung’s air sacs (which are called alveoli) into the air.  The concentration of the alcohol in the alveolar air is related to the concentration of the alcohol in the blood. For you science and math people… the ratio of breath alcohol to blood alcohol is 2,100:1. This means that 2,100 milliliters (ml) of alveolar air will contain the same amount of alcohol as 1 ml of blood.

As the alcohol in your alveolar air is exhaled, police can detect it by a breath alcohol testing device. The American Medical Association touts that a person can become impaired when the blood alcohol level hits as little as 0.05. 0.08 is the legal limit in Missouri.  If a person’s BAC measures 0.08, it means that there are 0.08 grams of alcohol per 100 ml of blood.

While we are often able to resolve a first DUI in the St. Louis area with a Suspended Imposition of Sentence (which results in no conviction if you complete a long probationary period and other requirements), you will still have to face a potential administrative suspension through the Department of Revenue.

If you have questions about DUI tickets in the Greater St. Louis area, please do not hesitate to contact me at 314-799-6602.  Be safe everyone!

 

© 2011 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.