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MIssouri

What damages can I recover from a car crash in Missouri?

If you’ve been in a car crash and are thinking about whether you should bring a lawsuit, your first question is probably, how much money can I recover? That question can be tricky. In large part, it depends on the unique facts and circumstances of your case. What we can tell you, however, is the types of damages available and any limits on those damages. Last month we answered this question for Kansas; this month we’ll cover the laws surrounding this issue in Missouri. Economic Damages There are two types of damages the court looks at: economic damages and non-economic damages. Economic damages include: Lost wages; Cost of repair or replacement of your vehicle; Past and future medical expenses; and Other out of pocket expenses. There is currently no cap on the amount of economic damages that you can recover. You will, however, have to be able to prove the amount of those damages in court. Because of this, you’ll want to be sure to keep any receipts you receive. Non-Economic Damages The other type of damages is non-economic damages. Non-economic damages are harder to measure and are not necessarily things you would obtain receipts for or spend money out of your pocket. Examples of non-economic damages include: Pain and suffering; and Emotional distress. Unlike Kansas which sets a cap on the amount of non-economic damages you can recover, there is no cap under Missouri law for general negligence claims. The difficult thing about obtaining non-economic damages is being able to prove how much compensation you are entitled to receive. It may be necessary to hire an expert witness or obtain testimony from family and friends depending on the facts and circumstances of your case. Limits Based on Comparative Fault One other thing to be aware of that could affect your compensation is Missouri’s law relating to comparative fault. The court will look at the percentage each party was at fault and reduce your damages by the amount you were at fault. For example, if you were 10% at fault in the car crash, the court will reduce your award by 10% or, in other words, you only recover 90% of your damages. However, unlike Kansas, even if you were 99% at fault, you may still be able to recover 1% of your damages. Keep in mind, if most of the fault is yours, it may not make sense to file a claim; that is a decision you should make only after consulting with an experienced attorney. An experienced attorney will have the experience to know how juries evaluate situations like yours. Still not sure what you could recover if you bring a lawsuit? We’re here to walk you through the process, answer your questions and fight for the compensation you deserve.

MSB Attorneys Named to Super Lawyers List of Top Attorneys

Morefield Speicher Bachman’s founding members Rick Morefield, Andrew Speicher, and Stan Bachman were named to Super Lawyers’ Annual List of Top Attorneys in Kansas and Missouri for 2016.   Rick earned Super Lawyer distinction in the area of personal injury.  Andrew and Stan were honored as Rising Stars in the areas of personal injury and construction law respectively.  Our law firm is proud to have been recognized again by Super Lawyers and is thankful for this honor. The selection process for the top attorneys begins with peer nominations.   From there, nominated attorneys are evaluated by independent research in 12 key categories followed by panel review.   Only 5% of attorneys in Missouri and Kansas receive the Super Lawyers distinction while only 2.5% receive the Rising Star honor which recognizes attorneys under 40 or in practice less than 10 years. As someone who has known Rick, Andrew, and Stan for many years, I think this honor is well deserved. I see them every day devoting their full attention and experienced counsel to clients’ cases.  Equally as important, I see them as super people who put family and faith at the forefront of everything they do, provide a welcoming and collaborative work environment for their employees, and continually aim to give back to their community through pro bono services and volunteer events. Congratulations Rick, Andrew, and Stan!

Reduce Your Risk of Traumatic Brain Injury in a Bike Accident

When a car and bicycle collide, the injuries to the bike rider can be catastrophic. According to the Insurance Institute for Highway Safety, in a majority of bicyclist deaths the most serious injuries are to the head. Recent studies show that wearing a bike helmet can significantly reduce your risk of suffering a traumatic brain injury in a bike accident. 2014 Bicycle Accident Statistics Kansas Department of Transportation reports 299 bike accidents resulted in injury including 7 fatalities. Missouri Department of Transportation reports 495 bike accidents resulted in injury including 4 fatalities. Nationally, 720 bicyclists were killed in crashes with motor vehicles. Of those, 429 riders were not wearing a helmet compared to only 118 deaths when a bike helmet was worn. A study reported in the American Journal of Surgery reviewed data on 6,267 individuals injured in bicycle accidents. Approximately 25% of the individuals studied were wearing a bike helmet at the time of their accident. 52% of all individuals studied suffered severe traumatic brain injury. The study concluded that wearing a bike helmet can reduce the risk of severe TBI by more than 50%, and reduce the risk of death from head injury by 44%. You can read all the findings of the study here. It makes sense, doesn’t it, that any protection on your head is better than no protection? So why do so many riders choose not to wear a bike helmet? Sadly, an oft cited reason is because bike helmets aren’t cool. You know what else isn’t cool? Having to wear your sunglasses inside, or being unable to shop at grocery stores, because your traumatic brain injury causes a painful sensitivity to light. Is a bike helmet too uncomfortable? Do you know what else is uncomfortable? Chronic pain, memory loss, constant vertigo, or debilitating personality changes, all of which can result from even a minor traumatic brain injury. We encourage everyone to check out www.biausa.org/living-with-brain-injury.htm for a description of more symptoms and complications that people suffering from traumatic brain injury face every day. Then ask yourself whether riding your bike without a helmet is worth the risk. If you need to speak to a lawyer because of injuries suffered in a bicycle collision with a car, truck, or motorcycle, contact one of the brain injury attorneys at Morefield Speicher Bachman, LC for a free one-hour consultation.

Missouri Mechanic’s Lien – Subcontractors Protect Your Lien Rights

In Missouri, subcontractors, skilled laborers, and materials suppliers who are not paid for their work, have a right to file a Mechanic’s Lien against commercial real property for work performed or materials delivered to the project, when the work and/or materials was for purposes of improving upon the property.  Sounds simple enough right?  Almost but not quite.  Missouri sets very specific rules and deadlines that must be followed to avoid losing your right to lien against a property.  The best way to ensure your lien rights are protected is to start from the day you accept the project. Documentation and Info to Give Your Attorney For A Missouri Mechanic’s Lien A copy of the fully executed original contract which sets forth the scope of work to be performed and/or the materials to be supplied. The first and last dates work was performed on the project and/or materials were delivered to the job site.  Please be aware that the last date worked refers to the last date worked on the original contract, or under any fully executed extra work or change order that modifies the original contract.  Last date worked DOES NOT include days worked on punch list items.  This information is critical because the statute of limitations for filing a Mechanic’s Lien or Subcontractor’s lien is set based on the last date worked. Copies of invoices, extra work and change orders, delivery receipts, and timecards which support your first and last date worked.  A statement of account will prepared and filed with your Mechanic’s Lien Statement. Important Deadlines for a Missouri Mechanic’s Lien In Missouri, a subcontractor under contract with a general contractor or another subcontractor has (6) six months from the last date worked to file a Mechanic’s or Subcontractor’s Lien. Before the lien may be filed, Missouri construction laws require that a 10-day  notice be given to the owner(s) of the property where the work was performed and/or the materials were delivered.  Keep in mind that a title search will have to be performed to determine all legal owners of the property before proper service of the notice.  This will affect the timing of your notice.  Depending on what Missouri county the job site is in, this information could take up to two or three weeks to retrieve.  Unlike Kansas City where many title documents are readily available through on-line services, the smaller or more rural Missouri counties like Vernon or Henry will likely require a title report be obtained from a separate title company, which may delay things. The best rule for a subcontractor to protect its mechanic’s lien rights, is to document early and well, and contact your construction lawyer in plenty of time to meet the deadlines set by Missouri lien laws. The information above is specific to subcontractors, skilled laborers, and material suppliers on commercial projects, and under contract with a general contractor or other subcontractor.  Although the information may be useful to subcontractors on residential projects, or general contractors, there are other deadlines and notices that will apply based on the type of project. We encourage you to talk with a construction law attorney if you have specific lien questions about a project you are working.  An important note though, if you are working directly for the owner of the property, or a tenant, you must provide your lien notice at the very onset of the project, not at the end.  Again, consult your construction lawyer for specifics.

Motorcycle Accident: Does a Helmet Help My Case?

We hear the question a lot.  “If I am injured in a motorcycle accident without wearing a helmet, can I still recover for my injuries, medical bills, and lost wages?  The answer depends on where the motorcycle accident happened. In Kansas, the law does not require motorcyclists to wear a helmet.  Therefore, no comparative fault can be assessed against the rider if the accident happened in Kansas. Still, it is wise to wear a helmet. Even though a Kansas jury cannot assess fault for failing to wear a helmet, it is not uncommon for members of the jury to carry some prejudice against a rider who chose not to wear a helmet.  This may cause the jury to have a lesser opinion of your claimed injuries and the resulting damages. Missouri law does require motorcyclists to wear a helmet. Therefore, if the motorcycle accident occurs in Missouri and the rider suffers injuries related to head trauma, the defendant can argue that the plaintiff was partially at fault for causing his or her own injuries and damages by not wearing a helmet.  A helmet-less rider that suffers traumatic brain injury, concussion, or other injury to his head as a result of the negligence or inattention of another driver may still be able to recover damages from that driver, including payment for medical expenses, but his/her total recovery could be reduced (sometimes significantly) by the percentage of fault assessed to the motorcyclist as a result of failing to wear their helmet. This is called “comparative fault.”  On the other hand, if the injuries were unrelated to the head, such as a fractured leg or a herniated spinal disc, then it is unlikely that any comparative fault would be assessed for failure to wear a helmet.

Mediation and Alternative Dispute Resolution

This is the third article in our “Law for Non-Lawyers” series. If you are involved in a lawsuit, you should ask your lawyers about mediation or alternative dispute resolution. Alternative dispute resolution (“ADR”) refers to any method of resolving a claim that is an alternative to trial. ADR includes mediation, arbitration, summary jury trial and conciliation. Mediation is the most common ADR method. Mediation is used in cases involving construction issues, business disputes, personal injury, auto accident, wrongful death, and virtually any other type of issue. Although judges sometimes order parties to mediate, settlement during mediation is voluntary. In mediation, the parties decide whether to resolve their case out of court and, if so, how to resolve the case.  This is one of the great advantages of mediation over trial. Mediation is a formal settlement discussion that is guided and managed by a mediator.  Mediators are sometimes referred to as “neutrals” because they don’t work for either party. The mediator is typically chosen by agreement of the parties and their attorneys. Most mediators are retired judges or experienced trial lawyers. Before the mediation, each lawyer typically sends a summary of his or her client’s legal position to the mediator and sometimes talks with the mediator about the case. At this stage, the attorneys are helping the mediator understand the facts and law that control the case. In some cases, the parties decide to exchange the mediation case summaries with each other. The mediation usually begins with a joint session with the mediator. The mediator will explain the process to the parties and have them sign a confidentiality agreement. Statements made by the parties in mediation cannot be used against them if the case goes to trial. Likewise, the mediator cannot be compelled to testify at trial about anything he or she learned in the mediation process. At many mediations, the lawyers will then make opening statements explaining their client’s side of the dispute. The purpose of the opening statement is to let the other side know enough about the case to be willing to settle. In cases where the parties’ emotions are expected to run high, the mediator may encourage the attorneys to skip the opening statement to avoid increasing the tension and reducing the willingness of the parties to settle. The next stage includes caucus sessions. The mediator will put each of the parties in a separate room with their lawyer.  The mediator will then meet with each side privately. What happens during the caucus sessions will depend in part on the mediator’s mediation style. Some mediators use a facilitative style and others use an evaluative style. In facilitative mediation, the mediator asks questions of the parties, tries to discern what their ultimate interests are and tries to help the parties find and analyze options for resolving their disputes. In the facilitative model, the mediator does not push the parties to reach a resolution, but is more of a guide. The mediator will take settlement proposals back and forth between the parties. In evaluative mediation, the mediator asks questions of the parties, analyzes the law, and tries to help the parties see the weaknesses in their positions. The evaluative mediator encourages settlement by helping the parties objectively understand the weaknesses of their case. The mediator helps each party determine its “Best Alternative To a Negotiated Agreement” or “BATNA” for short. The BATNA is the best you can do if the other party refuses to negotiate or tells you to jump in a lake. Knowing the BATNA can help a party weigh the risk of walking away from the mediation against benefit of the amount offered or demanded by the other party. In the greater Kansas City area, the evaluative model is more common in most business and personal injury mediations. Although less common, the facilitative model is useful when the parties need to resolve more issues than just the payment of money. For example, in a slander case it may be particularly important to the victim to have the other party publicly apologize or publicly retract their slanderous statement. The victim may be willing to accept less money if his or her reputation can be restored. Most good mediators have the ability to use either model of mediation depending on what is most appropriate for the case. If you will be mediating your case, tell your lawyer about anything other than money that could affect your interest in settlement. Your lawyer needs that information to select the most appropriate mediator for your case and to effectively represent you in the process. At Morefield Speicher Bachman, LC, our lawyers have extensive experience representing clients in mediation. Richard Morefield is a trained mediator with experience mediating a variety of business and other issues. He welcomes the opportunity to serve as a mediator in both business and personal injury cases. He is on the approved mediator panel for the United States District Court for the Western District of Missouri. If you have questions about mediation or need a trained mediator, don’t hesitate to contact our firm.

After a car accident, should I give a statement to the other driver’s insurer?

When you are injured in a car, truck, or motorcycle accident caused by someone else’s negligence you will likely be asked by the at-fault driver’s insurance company to make a statement about the wreck and your injuries. If you have hired an attorney to represent you, you should make your attorney aware that you have been asked to give a statement. If you do not have an attorney, the decision to give a recorded statement to any insurance representative should be made with careful consideration.  You are not required to give your recorded statement, and there are many factors to consider, such as:  who is taking the statement, what information is the person trying to discover, and what benefit will you receive from allowing your statement to be recorded. If you make the decision to give your recorded statement, it may be wise to schedule a specific appointment time so that you can avoid distractions, and be completely focused on what questions are being asked.  Then, before this appointment, it is often a good idea to write out everything you remember about what happened in the accident.  It is important to take plenty of time to make your best recollection, and then convey that recollection as clearly, briefly, and accurately as possible. If you are asked about injuries you suffered as a result of the accident, describe your symptoms in detail. Do not list your diagnoses. You are not your doctor and you likely have not reviewed all of your medical records. If you respond by trying to remember the different diagnoses your doctor may have discussed with you, you may end up leaving something out or misstating the injury or treatment. To give the most complete answer, state your physical symptoms. For example, instead of saying “I have a back strain” you might say “I have sharp stabbing pains, and a burning sensation, in my back and neck every day.” or “I have difficulty turning my head without pain.” If you decide to give a recorded statement, and you are unsure about any question you are asked, don’t hesitate to ask the insurance adjuster to rephrase their question so that you clearly understand what they are asking. Also, if you become uncomfortable with any questions, politely notify them that you are going to respectfully decline to answer that question. Finally, if you decide to give a recorded statement, be sure to first get their agreement on the recording to send you a full and complete copy of your statement after it’s completed.

When Should You Call a Car Accident Attorney?

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

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.

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

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.