BSCR Firm News/Blogs Feed

Sarah Cramer Appointed to Association of Legal Administrators' Board of Directors

29 Nov 2023

Sarah Cramer, the Director of Human Resources at Baker Sterchi, has been appointed to the prestigious Association of Legal Administrators’ (ALA) Board of Directors for the 2024-2025 term.

ALA's Board of Directors, comprised of industry leaders, plays a vital role in steering the association's strategic initiatives. The Board, which includes positions such as President, President-Elect, Immediate Past President, and up to 12 Directors from the membership, collectively guides the Association's vision throughout the year.

As the Director of Human Resources at Baker Sterchi, Cramer manages legal requirements related to employee management, mitigates legal risks, and ensures regulatory compliance in day-to-day operations. Cramer currently serves on ALA’s Chapter Resource Team and has served as both an active member and past president of the Kansas City Chapter of the association.

Cramer, along with other appointed individuals, will officially assume their roles at the 2024 Annual Conference & Expo in Aurora, Colorado.

Home Sweet Home: Kansas Federal Court Finds Homeowner's Policy Coverage Subject to Residency Requirements

27 Nov 2023

ABSTRACT: In a recent ruling, the United States District Court for the District of Kansas held that an insurance provider retains the right to withhold coverage under a homeowner’s policy designated as “residence premises” in instances where the insured did not actually reside on the premises.

In Sina Davani v. Travelers Personal Insurance Company and Geico Insurance Agency, LLC, the United States Court for the District of Kansas granted summary judgment in favor of the defendant-insurer. The court’s decision was grounded in its interpretation of the homeowner’s policy, which extended coverage solely to the designated “residence premises.” Considering the language of the insurance policy, the court found that the plaintiff-insured, who conceded that he had never resided at the insured premises, was obligated to maintain residence for coverage to apply. This, in turn, formed the basis for the court’s decision.

After submitting a claim to his insurance company for property damage caused by a water leak, the insured filed a breach of contract claim against the insurer. He argued that the insurance company breached its obligation under the terms of the insurance policy, which required the insurer to conduct a reasonable investigation and promptly pay the insured’s claim. In response, the insurer pointed to the terms of the insurance policy, stating that coverage was explicitly limited to “residence premises,” defined within the policy as “[t]he one family dwelling or unit where you reside.” The insurer moved for summary judgment under the terms of the insurance policy, asserting that there was no breach of the insurance policy because – as a matter of law – the policy did not cover the insured’s claim.

The district court observed that while the insured acknowledged that he did not presently live at the property, the issue was whether the term “residence premises” was sufficiently clear to exclude coverage for “a vacant property.” Applying the principles of Kansas law governing the interpretation of insurance contracts, the court turned to the policy’s express terms and held that the term “residence premises,” as included and defined in the insurance policy, bore no ambiguity. In so holding, the court drew upon the ordinary meaning of the term “residence” as a “building used as a home,” concluding that this dismissed any potential confusion on the scope of coverage in this case.

Construing the term “residence premises” to mean property where the insured actually lives, the court determined that the insurance policy required not only the insured’s physical presence on the property but also an accompanying intent to remain there for coverage to apply. The court therefore granted summary judgment in favor of the insurer because it was undisputed that the insured never “resided” at the insured premises.

Implications

This decision provides guidance to the insured and insurer alike. For the insured, this decision demonstrates the implications that may arise when a homeowner’s policy lacks language aligning with insured’s intended use of the insured property. For the insurer, this opinion illustrates the importance of drafting policies with clear, well-defined, and unambiguous language that safeguards against future failure-to-pay claims and other risks associated with litigation. Baker Sterchi attorneys will continue to monitor this litigation.

Plaintiff Denied Review of Huffing Death Case Dismissal

21 Nov 2023

ABSTRACT: This post is an update to a prior blog post where we discussed a Kansas federal court dismissing a plaintiff’s product liability claims based on Kansas’s illegality defense. That case was noteworthy because it was the first time any court had applied Kansas’s illegality defense to bar product liability claims.

On June 30, 2023, Judge Crabtree of the District of Kansas dismissed product liability claims against a defendant-manufacturer based on the decedent’s illegal conduct that caused the death. A few weeks after the ruling, the remaining defendants filed identical Motions to Dismiss based on the same argument. A few weeks after that, the plaintiff filed a Motion to Certify the question to the Kansas Supreme Court.

In an October 20, 2023 ruling, the Kansas federal district court granted the remaining defendants’ Motions to Dismiss, and denied the plaintiff’s Motion to Certify, effectively ending the case, pending an appeal.

The Court noted that it had discretion whether to certify the question to the Kansas Supreme Court, based on Kansas and Tenth Circuit law, and “decisions of other states, federal decisions, and the general weight and trend of authority.” As our prior blog post described, the Court in its initial order dismissing the first defendant, did just that. It analyzed decisions from Mississippi, Michigan, Alabama, Pennsylvania, and Florida, and federal court decisions from the Tenth Circuit and the Eastern District of Kentucky and found that these cases represented the general weight and trend of authority. Thus, the Court predicted that the Kansas Supreme Court would follow suit and apply the illegality defense to plaintiff’s product liability claims.

The Court ruled that its prior decision had properly predicted the outcome, rather than certifying the question, based on the federal standards to certify questions to the appropriate state supreme court. The Court further stated that the question here was not “novel and important” enough to certify to the Kansas Supreme Court. It said, “to decipher novelty and importance, . . . this court [should] consider actions by the relevant state institutions, including those of the state supreme court and legislature.” The plaintiff had argued that the question was novel and important because of the alleged “lack of consensus in this Court and lack of guidance from the Kansas state courts.”

The Court disagreed and said that to determine whether a question is novel and important, it must decide “whether state institutions have indicated that the pertinent law is important and unsettled.” The plaintiff was unable to point to a Kansas Supreme Court case or any activity in the Kansas Legislature expressing a strong policy preference on the question at bar. Thus, the Court ruled that the Kansas illegality defense barring product liability claims was not of such novelty and importance to certify the question to the Kansas Supreme Court.

Finally, the Court considered the suspect timing of the plaintiff’s Motion to Certify. The Court found that the plaintiff could have filed the motion in the six-month window between when it was on notice that the first defendant would rely on the illegality defense, and when the plaintiff filed the Motion to Certify. After identifying Tenth Circuit precedent that “disfavors granting plaintiff’s motion directly after the district court’s adverse decision,” the Court ruled that “the plaintiff put the motion into the rarely granted and generally disapproved categories of certification questions,” because the plaintiff filed the Motion to Certify after it had lost the first Motion to Dismiss and after the other defendants moved to dismiss on the same grounds.

The Court was not done. It went on to grant the remaining defendant’s Motion to Dismiss and Motion for Judgment on the Pleadings, respectively. Because the plaintiff’s claims were “identical in composition,” and did not differentiate its allegations as against individual defendants, the illegality defense applied equally to all defendants. Thus, the illegality defense precluded the product liability claims against the remaining defendants, as well.

The plaintiff may still seek certification through an appeal to the Tenth Circuit. We will keep readers updated with further developments in this litigation.

Laura Beasley Appointed Chair of Illinois Fifth District Court Character and Fitness Committee

20 Nov 2023

Baker Sterchi Member Laura Beasley has been appointed by Illinois Supreme Court Justice David K. Overstreet as the Chair of the 5th District Court Character and Fitness Committee. Committee members are in charge of evaluating the moral character and general fitness of applicants to practice law.

Beasley is an experienced trial lawyer with a practice focused on civil defense litigation. She is the past president of the Illinois Defense Counsel and is also a current board member of both the East St. Louis and St. Clair County Bar Associations. She received her law degree from Southern Illinois University at Carbondale and is admitted to practice in Illinois and Missouri.

EEOC Issues Its Year End Litigation Round Up and Strategic Enforcement Plan for the Next 5 Years

17 Nov 2023

ABSTRACT: In its 2023 year end litigation round up and strategic enforcement plan for fiscal years 2024-28, the EEOC highlights its increased enforcement activities over the past year, and new areas of emphasis for future enforcement.

In its Year End Litigation round up for Fiscal Year 2023, the EEOC reports that systemic lawsuits, defined as “pattern or practice, policy and/or class cases where the discrimination has a broad impact on an industry, profession, company or geographic location,” have increased to 25, nearly doubling the number of filings from the previous year. The EEOC also filed 32 non-systemic class suits seeking relief for multiple harmed parties and 86 suits seeking relief for individuals. A full report of all applicable cases is not yet available as of November 2023, but will be posted on the EEOC website. That report should provide more insight into the specific types of cases pursued by the EEOC in this fiscal year.

Companies facing EEOC charges should be aware that the EEOC has significantly heightened its level of activity in all areas in recent years, which increases the likelihood that a seemingly isolated charge of discrimination may expand into something much more onerous. The agency notes in its press release that “the cases filed by the EEOC challenge workplace discrimination under all of the statutes enforced by the Commission and represent a broad array of issues, including barriers in recruitment and hiring, protecting vulnerable workers and persons from underserved communities, qualification standards and inflexible policies that discriminate against individuals with disabilities, the long-term effects of the COVID-19 pandemic, advancing equal pay, (and) combatting unlawful harassment…” The EEOC’s recent emphasis on COVID-19 issues means that employers should keep abreast of case law developments in this area, and prepare to adjust hiring and other employment practices around accommodating potential sufferers of Long COVID.

Additionally, the EEOC’s multi-year Strategic Enforcement Plan for Fiscal Years 2024-2028 sheds some light on how EEOC challenges might look moving forward. The Plan contains six new or significantly broadened areas of strategic emphasis points.

Targeting discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals.
Expanding the agency’s vulnerable and underserved worker priority to include those with arrest records, LGBTQ+ workers, temporary and older workers, individuals in low wage jobs and individuals with limited English-speaking capabilities.
Additional emphasis on protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the new Pregnant Workers Fairness Act (PWFA) and other EEO laws; employment discrimination associated with the long-term effects of COVID-19 symptoms; and technology-related employment discrimination.
Highlighting the continued underrepresentation of women and workers of color in certain industries and sectors, such as construction and manufacturing, finance, tech and other science, technology, engineering, and mathematics fields.
Recognizing employers’ increasing use of technology, including artificial intelligence and machine learning, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions.
Addressing overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements when they restrict workers’ ability to obtain remedies for civil rights violations. The first is expanding the vulnerable and underserved worker priority including those with arrest records, LGBTQ+ workers, temporary and older workers, individuals in low wage jobs and individuals with limited English-speaking capabilities.

By remaining compliant and staying abreast of the EEOC’s strategies moving forward, employers can minimize their exposure to the broadening and expansion of EEOC enforcement actions. Employers should be sure to pay close attention to any practices that may indicate an exposure to systemic lawsuits, as the EEOC’s doubling of these types of lawsuit claims in the past fiscal year may indicate a key point of EEOC policy moving forward. BSCR will continue to monitor EEOC activity in these areas and advise employers on how best to avoid running afoul of these heightened EEOC initiatives.

* Andrew Snively, Law Clerk, assisted in the research and drafting of this post. Snively is a 3L student at Pepperdine Caruso School of Law.

Mike McMullen's Passion for Photography Featured in MO/KS Super Lawyers Magazine

16 Nov 2023

Baker Sterchi Member Mike McMullen is featured in the 2023 Missouri and Kansas Super Lawyers magazine for his black-and-white photography. The article, titled "The Whole World Just Goes Slow Motion," delves into McMullen's journey as a photographer, revealing how he transformed his passion into a business in the early 2000s, establishing a gallery and attending art fairs across the country.

In the article, McMullen notes that the appeal of black-and-white photography lies in its ability "to evoke a response, an emotional connection." Additionally, he draws a parallel between photography and litigation, stating, “Some of the discipline that’s required to do serious photography is very similar to litigation, in that you have to be very patient and very persistent.”

The Super Lawyers magazine recognizes lawyers who have achieved a notable level of peer recognition and professional accomplishment. It also highlights selected attorneys through feature articles. McMullen is not only featured in the magazine but is also acknowledged in the category of Personal Injury-Products: Defense. With more than 30 years of experience, McMullen defends product cases, representing clients in manufacturing, propane, marine, insurance and transportation industries, handling catastrophic accident cases across the United States.

Although McMullen closed his gallery in the 2010s, he remains an active photographer. Additionally, his work continues to grace various locations around Kansas City, including the Leopold Gallery, Jackson County Courthouse and the Kansas City Metropolitan Bar Association office. Click here to view the magazine’s feature article about McMullen.

Paul Venker Elected Trustee of The Supreme Court of Missouri Historical Society

15 Nov 2023

Baker Sterchi attorney Paul Venker has been elected as a trustee of The Supreme Court of Missouri Historical Society.

Established in 1983 as a Missouri non-profit corporation, the Society's founders included descendants of former judges William H. Leedy, William A.R. Dalton, William E. Tipton and Virginia Henwood Gottlieb. Initially, the Society was dedicated to publishing a history of the Supreme Court of Missouri, actively seeking the location and acquisition of memorabilia associated with individuals connected to the court and restoring portraits of former judges. The Society’s current objectives include the restoration and maintenance of the interior furnishings of the Supreme Court Building, the upkeep of educational facilities within the building for the public and the acquisition of items to enhance the building.

Active in the St. Louis legal community, Venker currently serves as President of the Freedom Suits Memorial Foundation, which played a pivotal role in orchestrating the construction of the Freedom Suits Memorial on the eastern plaza of the Civil Courts Building. Additionally, he has previously served as President of the St. Louis Bar Foundation and continues a member of its Board of Directors.

Throughout his career, Venker’s practice has been focused on trials and appeals. He has successfully taken dozens of trials to verdict in a variety of cases ranging from employment discrimination and medical malpractice to product liability and other serious personal injury and general liability matters. He has been an active appellate lawyer since clerking at the Missouri Supreme Court.

Baker Sterchi Hosts ALFA 2023 Construction Regional Seminar

15 Nov 2023

On November 14, Baker Sterchi had the honor of hosting an ALFA International Construction Practice Group Regional Seminar.

Baker Sterchi Managing Member, Scott Kreamer, and a guest speaker delved into the utilization of animation and courtroom technology in construction cases. Member John Watt, accompanied by a guest speaker, explored the role of artificial intelligence as a valuable tool for attorneys. Additionally, Baker Sterchi attorneys Phil Sumner and Nick Ruble provided insights into insurance certificates, endorsements, and potential pitfalls related to Certificates of Insurance. The seminar was followed by a social event at Boulevard Brewing Company.

Baker Sterchi is the Kansas City, Missouri, and Overland Park, Kansas member firm of ALFA International, a premier global legal network comprising 140 independent law firms in the United States and internationally. ALFA provides educational programming in various practice areas for attorneys and clients associated with its member firms.

Illinois Supreme Court Determines Termination on Death Clause Voids Long-Term Care Arbitration Agreement

15 Nov 2023

ABSTRACT: Illinois Supreme Court resolves appellate court dispute by ruling a resident’s death can terminate entire arbitration clause due to the termination-on-death clause -- even actions that survive through the Illinois Survival Act.

Long Term Facilities in Illinois should review their arbitration agreements if they want personal injury claims to be resolved through arbitration. The Illinois Supreme Court has determined that an overly broad termination-on-death clause can prevent all claims, including those that survive a decedent’s death, from being decided in arbitration. Clanton v. Oakbrook Healthcare Centre, Ltd., 2023 IL 129067.

Case Facts

In Clanton, plaintiff, Nancy Clanton, as the independent administrator of the Estate of the Decedent, Laurel Jansen, brought a claim of negligence-wrongful death against multiple defendants associated with care provided in a long-term care facility. Defendants filed a motion to compel arbitration, which would have stayed the civil suit and sent the entire case to arbitration. The trial court denied defendants’ motion to compel arbitration, and the Illinois Supreme Court affirmed this decision.

It was undisputed that Jansen, acting through her power of attorney, signed a contract with the long-term care facility. That contract forced arbitration to resolve any civil claim arising out of the services provided by the facility. The contract also included a termination clause, which noted the contract is terminated, “[i]mmediately upon the resident’s death.”

According to plaintiff’s complaint, Jansen suffered falls while a resident at Oak Brook, which led to her death. Plaintiff alleged four counts of negligence against the facility, (1) a violation of the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2018), (2) a common-law negligence claim, (3) a wrongful death claim, and (4) a res ipsa loquitur claim. All these claims, aside from the wrongful death claim, were brought through the Survival Act (755 ILCS 5/27-6 (West 2018)), while the wrongful death claim was brought through the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2018)). The Survival Act allows a representative of the decedent to maintain any statutory or common law actions that accrued before decedent’s death. Wrongful death actions do not accrue until the death of an individual.

Oak Brook, along with the other defendants, filed a motion to compel arbitration of all claims brought through the Survival Act and to stay the wrongful death claim. In response, plaintiff argued defendants, including Oak Brook, waived their right to arbitrate by litigating for nearly a year, that the arbitration clause was procedurally and substantively unconscionable, and that the POA lacked the authority to execute an arbitration clause on decedent’s behalf. The trial court concluded that the defendants did not waive their right to arbitrate, nor was the contract procedurally unconscionable, as the POA could sign the arbitration agreement. However, the trial court concluded that the contract was substantively unconscionable because it waived plaintiff’s entitlement to punitive or treble damages. The trial court declined to sever the limitation on damages from the rest of the contract and determined that the entire dispute resolution provision was unconscionable.

Defendants appealed this decision, arguing that the trial court erred in its decision, and alternatively argued it erred in not severing that portion it found unconscionable. In response, plaintiff reasserted its arguments from the trial court but added the argument that the arbitration clause terminated upon decedent’s death.

Appellate Review

The First District agreed that the defendants did not waive their right to arbitrate but also ruled it was not precluded from reviewing the new issue raised by the parties – Whether the arbitration clause terminated upon decedent’s death. Taking the plain language of the contract, the Appellate Court determined the contract, therefore the arbitration provision, terminated upon decedent’s death.

Defendants relied on the Fourth District opinion in Mason v. St. Vincent’s Home, Inc., 2022 IL App (4^th) 210458, 459 Ill. Dec. 893. In Mason, the arbitration clause was similar, and the court concluded the arbitration clause was valid because the Survival Act Claims accrued before the decedent’s death, so the arbitration provision was still valid when the cause of action accrued.

The First District rejected the Mason analysis, citing the plain language of the contract, which stated it terminated upon the resident’s death. There was no exception which stated the Survival Act claims survived the resident’s death.

The Illinois Supreme Court decided to take this issue up for appellate review, as the Fourth and First District Opinions were in conflict. At the Illinois Supreme Court, the plaintiff argued the Mason court was incorrect because it added an exception not contained in the termination-on-death clause. Further, the plaintiff argued that if defendants had intended the arbitration clause to survive the resident’s death, the burden was on them to explicitly state that exception in the resident’s contract.

Defendants argued the arbitration agreement provision was not terminated on death, as the contract specifically provided that “all civil claims arising in any way out of this Agreement,” made it clear the arbitration agreement survived decedent’s death. Defendants argued their obligation to provide personal services to decedent was terminated upon death, but the dispute resolution provision remained. This interpretation was necessary to “harmonize” the entire contract so that the arbitration clause was not in conflict with or neutralized by the termination-on-death clause.

The Illinois Supreme Court found the contract was unambiguous, as the plain language of the contract compelled arbitration, but only up until the resident’s death. Upon death, the entire contract ceased to exist. The Illinois Supreme Court determined Defendants could have drafted the contract differently, by allowing specific portions to remain in effect after the resident’s death, including the arbitration clause.

Conclusion

All long-term care facilities should review their arbitration agreements. Termination on death clauses should be narrowly tailored to exclude arbitration clauses or any claim that would survive through the Illinois Survival Act. If a resident’s contract includes such a clause, and no exception exists, then a resident’s death could void the entire contract, including the arbitration agreement based on Clanton.

Missouri & Kansas Super Lawyers Recognizes Thirty-Three Baker Sterchi Attorneys

14 Nov 2023

Thirty-three Baker Sterchi Cowden & Rice attorneys are recognized in the 2023 Missouri & Kansas Super Lawyers and Rising Stars publication. The Super Lawyers publication recognizes lawyers who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Super Lawyers recognizes no more than five percent of attorneys in each state. Rising Stars are top up-and-coming attorneys in a state who are 40 years old or younger, or who have been practicing for ten years or less, with only two and a half percent of attorneys recognized in each state.

The recognized attorneys include:

Kansas City, MO

Kevin D. Brooks – Insurance Coverage
John W. Cowden – Aviation and Aerospace
William (Clay) Crawford – Insurance Coverage
Scott D. Hofer – Civil Litigation: Defense
James R. Jarrow – Civil Litigation: Defense
James S. Kreamer – Construction Litigation
Jacqueline M. Longfellow – Employment Litigation: Defense
James P. Maloney – Insurance Coverage
Michael C. McMullen – Products Liability: Defense
Hal D. Meltzer – Civil Litigation: Defense
Thomas E. Rice – Civil Litigation: Defense
Kyle N. Roehler – Personal Injury General: Defense
James T. Seigfreid – Products Liability: Defense
Thomas N. Sterchi – Products Liability: Defense
Kara T. Stubbs – Products Liability: Defense
Megan R. Stumph-Turner – Real Estate
Philip V. Sumner – Personal Injury General: Defense
Paul L. Wickens – Civil Litigation: Defense
Jonathan E. Benevides – Civil Litigation: Defense (Rising Stars)
Torey Darin – Insurance Coverage (Rising Stars)
Kehl Friesen – Civil Litigation: Defense (Rising Stars)
Megan Sterchi Lammert – Personal Injury General: Defense (Rising Stars)
Lauren McCluskey – Civil Litigation: Defense (Rising Stars)
Elizabeth (Betsy) Miller – Products Liability: Defense (Rising Stars)
Gregorio V. Silva – Personal Injury General: Defense (Rising Stars)

St. Louis, MO

Joshua Davis – Transportation
John F. Mahon – Personal Injury Medical Malpractice: Defense
Terrence J. O’Toole – Personal Injury Medical Malpractice: Defense
Joseph R. Swift – Transportation
Paul N. Venker – Personal Injury Medical Malpractice: Defense
Richard I. Woolf – Civil Litigation: Defense
Rebecca Guntli – Insurance Coverage (Rising Stars)
Laura Thompson – Insurance Coverage (Rising Stars)