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When Should You Call a Car Accident Attorney?

Wrongful Death / By

After suffering injuries in a car accident caused by somebody else’s negligence, most people are focused on getting the medical treatment they need to recover. This is especially true in instances of catastrophic injuries such as broken bones, traumatic brain injury, and spinal cord injuries. Your first thought probably isn’t “I wonder if I should call an attorney?” Even after the healing has begun, you may still not think about contacting an attorney right away especially if things seem to be rolling along with the at-fault driver’s insurance company. Here are some things to consider when deciding whether to call a car accident attorney sooner rather than later. The at-fault driver’s insurance company is not there to serve you. An insurance claims adjuster’s job is to gather information about any potential personal injury claims, and then to use that information to minimize the value of your claim for damages against the at-fault driver and their insurance company. They’re not bad people. It’s just their job. Knowing what to say, and what not to say, could be the pivotal factor in whether you make a recovery for your damages. The insurance company will likely want to take your statement about how the car accident occurred, the nature and extent of your injuries, etc. Again, they are just doing their job. However, what you say regarding the accident or your injuries could be later misconstrued, and used against you in favor of the insurance company. It is critical to know and understand what documents and information will be necessary to prove the value of your damages claim. Unfortunately, significant pieces of evidence, like photographs of the wrecked vehicles, photographs of the injuries, and a first-hand account of ways the injuries have impacted your day-to-day activities, can be lost or diminished if not gathered immediately after the wreck. Kansas and Missouri both have specific time limits on when and where you must bring a claim for personal injury. This is called the Statute of Limitations. Generally, you must bring a claim (i.e. file your lawsuit) within two (2) years from the date of an auto accident in Kansas, and within five (5) years in Missouri. There are exceptions when the injured party is a minor. An experienced personal injury lawyer will be able to explain the process, and help you determine where and when you would need to file a lawsuit to protect your rights. Many car accident attorneys in and around Kansas City, including Morefield Speicher Bachman, LC, offer a free initial consultation to discuss whether hiring an attorney is right for you. At that price, everyone can afford to buy some peace of mind.

Missouri Lien Law 201

Construction Law / By

From the Court of Appeals of Missouri, Eastern District, came a case of “first impression,” on 2 different issues concerning mechanic’s liens in Missouri. The case is Midwest Floor Co. v. Micelli Development Co., 304 S.W.3d 243 (Mo. Ct. App. E.D. 2009), for those who care to find and read the entire case. Various plaintiffs and defendants from the lower court decision were not parties to the case reviewed by the Court of Appeals, which was between Kelpe Contracting, who had filed a mechanic’s lien against property of some home owners (the Preckels) and their builder (Miceli). The holdings were both contractor friendly. And while neither holding may be a surprise to constructors, they are worth reviewing to remind us all that nothing should be taken for granted when it comes to lien laws. The facts of the case are that in May 2006 Kelpe Contracting was hired by Miceli, a developer, to stabilize a steep slope so that a rear entry garage could be constructed on a new home being built for sale by Miceli. The contract was set for $116,650. The work was started by Kelpe, but Kelpe could not locate stable ground and work temporarily halted to assess the situation and design. On September 21, 2006 Kelpe offered a second proposal in the amount of $45,894 related to a retaining wall to accommodate the rear entry garage. One day later, on September 22, 2006, the Preckels purchased the property and filed their deed. When Kelpe was not paid for the work done under either proposal, a lien was filed by Kelpe against the property, which then owned by the Preckels. Kelpe filed and won summary judgment, and the Preckels appealed. The basis of the Preckel’s appeal was two fold. First, they contended the lien was fatally defective because it contained “non-lienable items.” They correctly cited RSMo § 429.101, which states that a mechanic’s lien is only available for a person who “shall do or perform any work or labor upon the land.” Their argument was that Kelpe had subcontracted the work and, therefore, did not themselves perform work or labor upon the land. Amazingly, this was the first time this angle had ever been brought up to the court for interpretation. Thankfully the Court held Kelpe did in fact perform the work by furnishing labor through subcontractors and that to accept the Preckel’s interpretation of the lien law would deny Kelpe security for the labor it had furnished (through subcontractors). The Court held lien claimants may include the work performed by subcontractors in their mechanic’s liens. Whew…that’s great to know considering the hundreds, if not thousands, of liens that have been filed over the years by general contractors for work performed many times, if not most of the time, by subcontractors! Had the Court found otherwise, there would most certainly have been an immediate move in the Missouri legislature to amend the lien laws to correct what would have been the new interpretation of Missouri’s lien laws. There would have been numerous invalid liens in the pipeline, potentially leading to just as many claims of legal malpractice. So it’s easy to see why the holding of this case was just as important to construction lawyers as it was to the constructors. Thank you Court of Appeals! The second holding from the Court concerns the timing of the lien statement. The Preckels argued that there were two contracts for the work performed by Kelpe and, as a result, Kelpe was required to file two separate liens on the property instead of just the one that was filed. The Preckels argued the first work was abandoned before the second work began, so Kelpe should have filed a lien on the first work within 6 months from the last day on phase 1, and then another lien should have been filed on the retaining wall work within 6 months after the last day worked on phase 2. Again the Court of Appeals came through with a logical (and correct in the eyes of constructors everywhere) holding. First know this, if there are been two distinct, unrelated contracts, the Court may well have sided with the home owners; however, ultimately the court held that the work performed by Kelpe under both contracts was “necessary to accomplish one goal.” The Court found the work was never abandoned, just temporarily stopped to formulate plans to overcome unforeseen obstacles. The important thing from the holding is the “necessary to accomplish one goal.” That made the single lien for both contracts appropriate and enforceable in the eyes of the Court. Because both contracts were performed to “accomplish one goal,” the timing of the lien was tied to the last day worked on the second contract, and the lien was timely filed. This is but another example of how mechanic’s lien laws are like an onion…just when you think you know how to read and interpret the statutes, you have to peel back another layer and go deeper into the cases to find how the courts have interpreted those very statutes. Mechanic lien laws vary from state to state…so the very best advice and counsel I can leave you with is to always consult with a well-qualified, experienced construction lawyer that is familiar with the laws in the state where the project is located.

Meet Morefield Speicher Bachman, LC’s Newest Paralegal

News / By

Morefield Speicher Bachman, LC is pleased to welcome paralegal Aimee Burton to the MSB family.  Aimee received her Associate of Arts degree from Coastal Carolina Community College.   She gained valuable paralegal experience while volunteering for a criminal defense attorney in North Carolina before moving back to Overland Park, Kansas.  She joined Morefield Speicher Bachman, LC in September 2015 and has already proven herself to be a valuable addition to the firm.

Law for Non-Lawyers: Can I Recover Damages If I Was Partly At Fault?

Personal Injury / By

In negligence cases, one of the first issues a personal injury lawyer considers is who was at fault.  In non-legal terms, negligence cases are those in which the injured person (the plaintiff) claims that someone else (the defendant) was not careful enough and this lack of care resulted in an injury to the plaintiff. In most Kansas and Missouri negligence cases, the judge or the jury will compare the fault of the plaintiff and the defendant (the party who was sued). Lawyers and judges use the term “comparative fault” to describe this process.  At the end of a case that goes to trial, the judge or the jury will determine what portion of the fault belongs to each party. For example, consider a typical intersection collision. Let’s assume that John Smith was driving north on State Line Road through the intersection with 103rd Street.  Assume that Sally Jones was driving east on 103rd Street where it intersects with State Line Road.  The two drivers collide somewhere in the middle.  If John Smith ran a red light, the wreck is probably 100% his responsibility.  On the other hand, if Sally Jones was driving 95 miles per hour towards State Line Road, and John had a green light, the wreck is probably 100% her responsibility.  But, what if Sally was driving too fast and John was making a left turn, but started his turn after the light had turned red?  In that case, the jury or judge will have to determine what percentage of the fault belongs to John and what percentage belongs to Sally. How the judge or jury divides the fault will have a big impact on how much the defendant has to pay.  Let’s assume that everyone agrees John suffered $100,000.00 in harms and losses from the wreck and that Sally has no losses.  If John is 100% responsible, he recovers nothing. Sally only has to pay for her percentage of fault.  If Sally is 100% responsible, Sally must pay the full $100,000.00.  If Sally is only 60% at fault, she only has to pay $60,000.00 (60% of the $100,000.00 in losses to John). Can John recover money from Sally if John and Sally are equally at fault?  The answer depends on whether the collision happened on the Missouri side or the Kansas side of the state line.  In our example, the accident takes place close to the Missouri and Kansas border. If the collision happened in Missouri, John would still recover 50% or $50,000.00.  Missouri uses a system called pure comparative fault.  Everyone is responsible for their own negligence no matter how significant or insignificant their fault is. In fact, if John was 90% at fault and Sally was only 10% at fault, Sally would have to pay John $10,000.00 (10% of the $100,000.00 in losses to John). If the collision happened in Kansas, the outcome could be very different. Kansas uses a system called modified comparative fault. Under the Kansas system, an injured person can only recover from the other party if the injured person is less than 50% at fault. If John is 50% or more at fault in our example, he loses his lawsuit. Although many of the laws in Missouri and Kansas are very similar, there are many differences that can significantly affect the value of a case. If you have been involved in an accident and talk with an attorney, he or she will need to know where the accident happened and how it happened. If John and Sally were each 50% at fault and the accident happened in Jackson County, Missouri, John’s case would be worth $50,000.00. If the accident happened in Johnson County, Kansas, just to the west of the Missouri-Kansas border, the case would be worth nothing. If you are thinking about hiring an attorney, you need to know whether the attorney is licensed in Kansas, Missouri or both states and you need to be sure the attorney regularly handles cases in the state where your injury occurred.

Do I have Enough Auto Insurance?

Personal Injury / By

If you’re like many people, there are probably three things you think about when it comes to auto insurance: 1) Do I have the state required minimum coverage? 2) Will I be able to recover the cost of my car? 3) How much is it going to cost me per month? Unfortunately, if you carry only the required minimum coverage you may not have enough insurance to cover your medical treatment, lost wages, and other damages that could result if you’re in a car, truck, or motorcycle crash. What most people don’t realize is that you can better protect yourself, your passengers, and other drivers on the road often at a cost of only a few more dollars a month. This leads to the question, “How much insurance do I really need?” To answer that question, we need to look at the purpose of auto insurance. Obviously, auto insurance protects other people from mistakes you make behind the wheel of your vehicle. But, auto insurance also protects you and your family. Auto insurance protects your assets in the event you are sued. If you have enough insurance to cover any damages you cause, the injured party will have no reason to go after your personal assets or garnish your wages or bank accounts. Auto insurance can also protect you in the event that you are injured by someone who either doesn’t have insurance or doesn’t have enough insurance. The following a brief description of some of the different types of auto insurance coverage available: Liability Coverage – Both Kansas and Missouri require drivers to carry $25,000/$50,000 bodily injury liability coverage. That coverage breaks down to $25,000 per person maximum, with a total recovery per accident (in the case of multiple injured parties) of $50,000.00. This helps pays the costs of injury damages suffered by another individual if you cause a car accident. If you have ever had the misfortune of spending time in a hospital, you know that $25,000.00 doesn’t go very far. This is why we generally recommend that people carry more than the minimum limits. Uninsured Motorist Coverage – Both Kansas and Missouri require drivers and vehicle owners to carry $25,000/$50,000 uninsured motorist coverage. As the name implies, this provides you with insurance coverage in the event you suffer injuries in an accident caused by the negligence of an uninsured driver. As mentioned above, $25,000.00 doesn’t go very far when there are serious injuries. We recommend people carry more than the minimum limits here as well. Under-insured Motorist Coverage – Kansas requires drivers and vehicle owners to carry under-insured vehicle coverage at the same level as the Uninsured Motorist Coverage. This coverage is optional in Missouri. This coverage is similar to uninsured motorist coverage, but it kicks in if you are injured by someone who has insurance, but their insurance is not sufficient to cover your losses. We recommend people carry under-insured motorist coverage to protect against other drivers who carry only low liability limits on their personal policy. PIP (Personal Injury Protection) – PIP insurance is required in Kansas, and provides minimal coverage for injuries, lost wages, and other damages you suffer in an automobile collision regardless of who is at fault for the accident. The minimum required for medical costs is $4,500, and $900 per month for 1 year for disability and loss of income. Missouri drivers and vehicle owners have a similar coverage available called Medical Payments Coverage, often referred to as MedPay. Unlike Kansas, this coverage is optional in Missouri. How can having or not having all of these coverage types affect you? Here are a few examples that will help illustrate the importance of adequate insurance coverage. Example #1 – John Doe is riding his motorcycle in Independence, MO when he is rear-ended by a car driven by Jane Smith. John suffers a broken arm, concussion, and a neck injury. As a result of the crash, John incurs economic damages (medical expenses including ambulance transport, emergency room treatment, inpatient hospital care, surgery, and physical therapy, and lost wages) in excess of $75,000.00. Jane Smith is a Missouri resident and carries liability insurance at the state minimum of $25,000.00. This amount does not begin to cover John’s economic damages and also does not provide any recovery for the pain and suffering John has, and will continue to endure. IF John carried under-insured motorist coverage in the amount of $100,000, his insurance would pick up where Jane Doe’s left off, meaning John could potentially recover $25,000 from Jane Doe’s liability policy, and $75,000 from his under-insured policy for a total recovery of $100,000. $100,000 may seem like a lot of money, but in John’s case this wouldn’t cover all of past and future damages. In this example, John probably needed $200,000.00 or more of underinsured motorist coverage to cover all of his losses. Unfortunately, John did not elect the optional under-insured motorist coverage and he either needs to hope that Jane Doe has a large bank account or he needs to count on the assistance of friends, family or the government to recover from his loss. Example #2 – John Doe lives in Overland Park, Kansas and runs a red light in Kansas City, Kansas causing a three car intersection collision that destroys all three cars and sends both of the other drivers to the hospital. If John has minimum limits, he will have two individuals trying to recover his insurance limits and then looking to John, his bank account and his other assets to pay the rest of the damages. If John has $500,000 in insurance coverage, his insurance company may be able to take care of all of the damages without John’s personal assets being exposed to attachment. When purchasing insurance, you should ask yourself the following questions: How much liability coverage do I need to protect others and to protect my assets in case I make a mistake and hurt someone while I am driving? How much uninsured/under-insured motorist coverage do

Why Haven’t I Been Paid And What Can I Do About It?

Construction Law / By

If there is one thing every construction company wants to know it’s this…when am I going to be paid? Many states have enacted what are commonly known as “prompt payment” laws, and Kansas and Missouri have them. In fact, Kansas and Missouri each have two prompt payment laws, one set for public projects (i.e. funded by tax payer dollars) and another set for private projects. Both sets are for commercial construction only; there are no prompt payment laws for non-commercial construction at the present time. In the following article I provide for you the major points to be taken from the Kansas and Missouri Prompt Payment Acts. But before you get too excited about your rights under the Acts you must know Commandment #1: “Thou Shall Know Thy Contract.” What I mean by this is simple. All of the Kansas and Missouri Prompt Payment Acts do not, let me repeat, DO NOT alter the payment terms agreed to between the parties in the contract. All four statutes, say the payment terms “shall be pursuant to the terms of the contract” or something to that effect. So if you have a legally enforceable “pay when” or “pay if” paid clause, then you will have to abide by that term in the contract. Nothing in the Prompt Payment statutes provide any relief from such a clause. “Pay when” and “pay if” clauses are prevalent in almost all commercial construction subcontracts and are not the subject of this newsletter (note to self for future article subject matter). Just remember as you negotiate your contracts that, even though these clauses are not favorably looked upon by the Courts, they are enforceable if properly written. So now you know why Commandment #1 is “Thou Shall Know Thy contract,” because, “The Courts Shall Enforce Thy Contract!” So, what do the Kansas and Missouri prompt payment acts cover? The following are bullet points of the laws: Kansas Fairness in Private Construction Contract Act (KSA §§16-1801 et seq.): Terms of the Act cannot be waived by contract Covers all types of commercial construction Does not cover single family or multi-family residential housing of 4 units or less Payment must be made per contract terms Contract terms cannot waive right to resolve disputes through litigation (but may instead require arbitration) Contract terms cannot waive right to file lien (but may require lien release in consideration for payment) “Pay when” or “Pay if” clauses not allowed as defense of Mechanic Lien claim or Payment Bond claim Owners must pay contractor within 30 days of receipt of proper, undisputed request for payment Owner shall pay 18% per annum interest on the late, undisputed amount Contractor must pay subcontractor within 7 days of receipt of payment from Owner on undisputed amounts Contractor must pay subcontractor 18% interest per annum on late, undisputed amounts Subcontractor must likewise pay sub-subcontractors within 7 days of receipt, subject to 18% interest per annum on late payments of undisputed amounts Retainage shall not exceed 10% Payment of retainage also must be made pursuant to the terms of the contract or within 7 days after receipt, subject to 18% per annum interest If any undisputed payment is not made within 7 business days, contractor or subcontractor, regardless of tier, may suspend performance of the work upon seven additional day’s written notice If work is rightfully suspended as described above, party affected by the suspension is entitled to a time extension and increase in contract sum for reasonable costs of demobilization, delay and remobilization Venue for litigation or arbitration hearings shall be in the county where the project is located In any litigation or arbitration to enforce the payment laws, the court or arbitrator “shall” award costs and reasonable attorney fees to the prevailing party Kansas Fairness in Public Construction Contract Act (KSA §§16-1901 et seq.): Same as Private Construction Act EXCEPT it basically only covers buildings (i.e. not roads, highways or bridges) Owner must pay within 30 days unless there are “extenuating circumstances”, and even then within 45 days (note: “extenuating circumstances is not defined) “substantial completion” is defined (not so in the private act), and Owners must release retainage within 30 days of substantial completion, subject to the 18% per annum interest Early completing subcontractors “may” be paid retainage prior to substantial completion, but it is not mandatory Missouri Private Construction Contracts Prompt Payment: (RSMo § 431.180): Payments must be made in accordance with contract terms In an action to collect payment the Court or Arbitrator may require the award interest at a rate up to 1.5% per month (note…the Court has the discretion whether or not to award this enhanced interest rate) In an action to collect payment the Court or Arbitrator may award reasonable attorney fees to the prevailing party (again note the Court has the discretion whether to award attorney fees) Missouri Public Works Contracts Prompt Payment (RSMo § 34.057): All contracts issued by public body must include the language requiring “prompt payment” Payment must be made to contractor at least monthly by public owner (unless a lump sum contract stipulates a lump sum payment) Payment is to be made to the contractor by the public owner within 30 days of approval Architect/Engineer is the responsible party to approve pay applications each month Retainage is to be no more than five percent unless the architect or engineer determine a higher amount (not to exceed 10%) is required to ensure performance Early release of retainage is allowed but not mandatory Payment of retainage shall be made by public owner to contractor within 30 days of substantial completion subject to completion of all project close out requirements If there is any punchlist work remaining, the public owner shall hold back a sum of 200% of the value of the remaining work to be completed Owner shall pay 1.5% interest per month interest on late payments Contractor retainage held on subcontractors cannot exceed 10% Upon receipt of payment that is applicable to the work performed by

Digital Assets: Valuable Dead or Alive

Wrongful Death / By

Like many soon-to-be or just-turned “40-somethings”, my wife is a child of the ’80s. With that comes a love for all things Bon Jovi. I, myself, was more of a Sugar Hill Gang, Run DMC, Beastie Boys kind of kid. Yet I can’t deny catching myself belting a karaoke version of “Wanted: Dead or Alive” whenever it begins to play at a Royals game (or Chiefs game, or the mall, or the grocery store, or the drive-thru……. Well, you get the picture). So, in homage to my wife and all those like her, here are a few thoughts to consider about “Digital Assets: Valuable Dead or Alive.” This post was inspired by an excellent article I read in the May-June 2015 edition of the Journal of the Missouri Bar, entitled “Counseling Clients for #DigitalDeath” by Jennifer A. Davis. In her article, Jennifer discussed “digital assets” in the context of ever-expanding forms of electronic media, and defined digital assets to include e-mail accounts, social networking accounts, photo and video sharing accounts, online sales accounts, websites, blogs, online financial/banking/investment accounts, credit cards, auto bill-pay agreements, and much more. Her article resonated with me when I started thinking about all the clients we represent in wrongful death claims after the passing of a loved one caused by someone else’s negligence or other wrongful conduct. Families dealing with the recent wrongful death of a spouse or child face many difficulties before even considering how to deal with digital assets, which makes it all the more important for each of us to intentionally take the time to organize our digital assets, including access to those assets (URL, username, password, etc.), in a way that would allow a trusted confidant to access and manage those digital assets if we were to become suddenly unavailable. Here are three of Jennifer’s thoughts that I intend to start sharing with my own family and friends, and every client whom we represent in a claim for the wrongful death of their loved one: 1. Digital assets have sentimental value. Today, photos, videos, letters (e-mails) and even recipes are stored online — replacing the albums, journals, and recipe boxes of the past. Blogs, websites, and social network pages may likely have very personal value to family members. If family members are unable to access these sentimental items, a deceased’s family history, and possibly heirlooms traditionally passed down from generation to generation, could be lost. 2. Digital assets may have financial value. Recent studies have shown that most people value their digital assets at approximately $55,000. There may be intellectual property rights of value. The domain name itself may be valuable, and may be an asset which could be sold for a windfall. Likewise, blogs (although probably not this one) have been sold for significant value. Additionally, a Web page or social media account may produce a revenue stream. There may also be value in items not traditionally thought of as valuable, such as a virtual sword for an online game sold for $16,000, or the parcels of virtual real estate sold in 2010 for $635,000. 3. Digital assets may be valued by measuring the money saved by accessing and controlling financial accounts online. Many people now receive and pay bills electronically, with no written record in existence of the location of the account, the bills due, or how to access either one. The failure to pay these bills online, or the account fees incurred from failing to manage the financial account, can all lead to serious consequences. In addition to thinking through the impact digital assets have on people dealing with the wrongful death of a loved one, I also found my thoughts drifting to the larger ways digital assets impact and contribute to, and sometimes dictate and control, all our daily lives. I also see the impact digital assets, primarily social networking, have in the personal injury and business litigation cases we handle. Right or wrong, the first thing I do at the beginning of any new case is google both my client and the opposing party. I am continuously amazed at what I find, from people claiming severe shoulder injuries posting pictures of pitching at softball games, to businessmen/companies pleading poverty while writing blogs about the new deal they just closed that will secure their company’s financial stability for the next decade. I also see the impact of digital assets in my own personal life. My pastor recently cited statistics showing that, not only in-spite-of but often because-of the explosion of electronic media and social networking, we are living in one of the most isolated and individualistic societies in history. People are more and more eschewing personal human interaction for the “convenience” of clicking a button or tapping a keyboard. Instead of shopping at stores and interacting with the cashier, we add items to our Amazon Prime “shopping bag” and then wait at home for them to magically appear on our doorstep in 3-5 business days. Instead of going to the bank to make a deposit or withdrawal and saying hello to one of the other moms from the little league team who manages that branch, we set up auto-deposit or just drive through an ATM. We sit alone on the couch and tweet about “life,” or post cute videos and pics from other people’s lives and adventures, instead of scheduling a cookout with friends and leaving the phone in the bedroom, or taking our own adventure “to where no cell tower has gone before.” I’m not a culture basher. I not only use, but thoroughly enjoy, digital assets such as social media and the convenience of online shopping and banking. But I also like to look a person in the eye and share a meal, or take a road trip and really hear about how they are doing and who/where they want to be in the future. We were created to live in a community, and are always better together than living as an island. My hope

Kansas Construction Projects: Liquidated Damages or Unenforceable Penalty?

Construction Law / By

In a case handed down by the KS Supreme Court a few years ago, the Court effectively ruled that, in Kansas, liquidated damages will be strictly enforced without regard to whether or not they are later found to be excessive in relationship to what the damages for delay actually were.  See, Carrothers Const. Co., L.L.C. v. City of South Hutchinson, 288 Kan. 743 (2009). In Carrothers, the issue for the Court boiled down to whether it was legally correct to look back “retrospectively” at the liquidated damage amount in a construction contract, after the fact and upon conclusion of a project, to determine if the damages were in effect “penalties” rather than damages. Generally, penalties are not allowed in contract law and are unenforceable. In the past there had been differing results in the lower Kansas Appellate Courts where some had allowed a “look back” to determine if the liquidated damages, in hindsight, had a reasonable relationship with the actual damages incurred due to the delays. Other Appellate Courts had not allowed the “look back.” In the Carrothers Construction case the Kansas Supreme Court put these differing lower court holdings to rest stating that no longer would Kansas courts allow a “retrospective analysis” to determine whether the liquidated damages were a penalty, overruling any prior holdings to the contrary by the lower courts. For all future analysis of liquidated damages, only a “prospective analysis” of whether the liquidated damages are reasonable at the beginning of a contract will be allowed. In the Carrothers Construction case, the parties agreed the project was completed late. The issue was whether the liquidated damages were fair. Carrothers argued the City had not been damaged due to the late completion because the City was able to continue to operate in its existing facilities while the new facility was being completed. In other words, Carrothers argued the City really suffered no damages and to assess liquidated damages would, in effect, be a penalty. The Court left no doubt that in Kansas, between consenting, legally sophisticated, otherwise equal parties, liquidated damages will be strictly enforced. No longer would Kansas courts look back, at the conclusions of a construction project, to make a determination whether the damages as actually applied were a penalty. Provided the liquidated damages are a reasonable estimate of what the damages might possibly be, as determined when the parties agree to the liquidated damages in the contract, they will be enforced, period. But a word of parting caution…this is Kansas law only and other states differ. On top of that, the location of a construction project is not necessarily the state law that may apply. Many contracts contain a choice of law clause, which may dictate what state law applies to that specific contract. As usual the best advice is to seek the advice and counsel of a good construction lawyer to review the terms of the contract before the contract is signed, and certainly when faced with being assessed any type of damages, including liquidated damages for delay.

Motorcycle Safety: Stay Shiny Side Up

Personal Injury / By

I don’t know about you, but I’m itching for all this Kansas City rain to stop so I can start riding regularly again. The wind in my face. The open road. The sense of freedom and release. For those of us who ride motorcycles, there is little else that compares to the experience. Unfortunately, there are also many risks associated with cruising the open roads on our favorite 2-wheeler, that don’t exist within the confines of the standard automobile. If you have never suffered an injury while riding, here are some tips to keep you safe and shiny-side up. If you have recently been in a motorcycle accident, jump down and read about some specific information you need to be aware of when pursuing a recovery for your injuries and damages. Tips to stay safe and shiny-side up Always wear a helmet. The statistics overwhelmingly show that wearing a helmet not only can save your life, but can protect you from suffering other serious and crippling consequences like a traumatic brain injury. If you don’t like the feeling of “missing out on the wind and elements,” then buy a half-helmet or even a shorty. But whatever you choose, please just choose to protect your dome with a properly fitted and DOT-approved helmet. Keep close tabs on your tires’ air pressure. Motorcycles tires, unlike car tires, are specifically designed and engineered to flex and roll, especially on the edges and up into the side walls. This is what allows the bike to “lean” into turns while still maintaining the proper center of gravity to stay upright. While car tires can operate more or less OK when slightly over or under inflated because they maintain constant and full contact with the road surface, over or under inflated tires on your bike can cause the bike to either not flex enough to allow a bike to lean and turn sharply, or flex too much and thus lose all traction. So, check your air pressure at least weekly and keep it at the manufacturer recommended levels. Keep your gas tank full and your chain or belt properly lubed and maintained. A broken chain or belt can lead to catastrophic consequences. As for an empty gas tank, well, let’s just say we’ve all been the “I felt so cool riding and now feel like a loser walking” person at least once in our life. Let’s try to never go there again. Drive as though you’re invisible to others because, to most cars and trucks on the road, you are. If you always assume the worst can happen, you’ll be ready to have the best ride. Enough said. Issues you’ll face in an insurance claim or lawsuit for injuries from a motorcycle accident If you’ve been involved in a motorcycle accident, you’ve likely already faced one of our greatest fears as riders:  an unpleasant encounter with a car or truck. The National Highway Traffic Safety Administration reports that motorcyclists are far more likely to be killed or injured in a traffic accident than passenger car occupants. If you wonder why, see safety tip number 4 above. Unfortunately, in a large majority of cases the injured rider will have insult added to their injuries when they are blamed, at least in part if not in full, for the accident and for causing their own injuries, even when they weren’t at fault at all. As wrong as this may be, many people still cling to old stereotypes about motorcyclists living and riding recklessly. In addition, many defense attorneys representing the at-fault auto driver know about the bias against bikers, and will do all they can to exploit the stereotypes in front of jurors to try and sway the jurors to not be as sympathetic or generous to a motorcyclist as they would be to any other victim of an auto accident. Similarly, and equally deplorable, is the tendency of a jury to not value the loss of quality of life for a biker as high as they would for an auto driver. These are just a few of many reasons why obtaining a fair settlement or jury verdict for motorcycle accident victims can be more difficult, and why it is all the more important to hire a high quality personal injury attorney that has experience with motorcycles, not only as a rider but in representing riders in personal injury insurance claims and lawsuits. An experienced motorcycle injury attorney knows how to fight fire with facts. It’s imperative to gather as much documentation and information as possible, including photographs and diagrams of the accident scene, credible witness statements, thorough medical records, testimony from the victim’s friends and family members, and evidence of fact-based claims for non-medical damages such as lost wages, out of pocket expenses, and other economic damages for care, support and maintenance. The defendant’s attorney will challenge and try to downplay these facts, while subtly introducing lifestyle issues in order to minimize your compensation. But your attorney can overcome these draconian efforts if they are familiar with these tactics and understand how to effectively counter them throughout settlement discussions and even on to trial.

Choice of Attorney

The choice of an attorney is an important decision and should not be based on advertisements alone (like this website). We believe it’s critical that you meet the legal team that will be representing you before deciding which attorney to hire. Look around our site. If you like what you see, please call (913) 839 2808 to schedule your consultation. 

Contact Info

11814 W. 135th St.
Overland Park, KS 66221

Call: (913) 839 2808
Fax: (913) 839 2807
Email: info@msblawkc.com

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