Legal Media Matters

Legal News Digest: Health Care Overhaul; Android Apps for Lawyers; Yellow Pages Debate

Geri L. Dreiling — Fri, 30 Mar 2012 10:58:09 +0000

Law, tech and marketing news making the headlines this week

By Geri L. Dreiling, Esq.

Recent noteworthy stories on law, tech and marketing:

It isn’t often that severability, the Anti-Injunction Act and individual mandates receive mainstream media attention but this week’s oral arguments before the U.S. Supreme Court over the Patient Protection and Affordable Health Care Act were far from ordinary. For a recap of the hearings on the health care law -- referred to by some as Obamacare – the SCOTUS Blog has a comprehensive analysis as well as transcripts and audio of the proceedings.
The death of Trayvon Martin, and the fierce debate over whether George Zimmerman, the man who killed him should be charged, has cast a spotlight on Florida’s “Stand Your Ground” law. The prosecutor who will decide whether to move forward, Angela Corey, was profiled by the Tampa Bay Times. Craig Sonner, the lawyer defending Zimmerman, appeared on The Today Show on Thursday. Only a few days earlier, Sonner bolted from an interview with MSNBC’s Lawrence O’Donnell just before it was scheduled to begin.
For a great example of writing about the law for nonlawyers, read “The Copyright Question: How to Protect Yourself on Pinterest.” The article by Gonzolo E. Mon appeared on Mashable. In addition to writing in plain English, the subheads clearly, directly and succinctly provide conclusions and takeaways.
In the article “Are Yellow Pages Toast?” Search Engine Land takes a look at the ad value of the Yellow Pages. The columnist, Chris Silver Smith, also discusses when it makes sense to advertise in the telephone directory.
On March 19, Google deindexed a large portion of BuildMyRank.com, reports Search Engine Land. The move is thought to be part of Google's ongoing battle with paid link networks.
In “5 Top Android Legal Apps for 2012,” Lawyer Tech Review’s guest blogger Leslie Krick highlights productivity apps that help lawyers track time, turn their smartphone into a digital dictation tool and remotely access a desktop.

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Legal News Digest: Generic Drug Suits; Google Scholar; Social Media vs Law

Geri L. Dreiling — Fri, 23 Mar 2012 11:51:06 +0000

This week's law, tech and marketing news

By Geri L. Dreiling, Esq.

Noteworthy stories on law, tech and marketing that you might have missed this week:

In “Generic Drugs Prove Resistant to Damage Suits,” the New York Times explains how last year’s U.S. Supreme Court decision in Pliva v. Mensing has left some plaintiffs using generic drugs unable to pursue lawsuits allowed for those prescribed brand-name drugs.
Convicted financier R. Allen Stanford has asked for a new trial. One of the reasons, according to The Wall Street Journal, is that journalists were allowed to tweet during off-the-record conferences. To learn more, read “Blame the Media: Stanford Cites Tweets, Publicity in New Trial Motion.”
In “Kill All The Lawyers,” social media blogger Todd Defren complains that some lawyers take 3-5 days to approve a tweet and a week to approve a blog comment. Earlier this month, lawyer and entrepreneur Alison Monahan penned a post for TriplePundit titled, “Bridging the Gap Between Lawyers and Social Media Managers.”
In “Google Scholar Improves Legal Research Capabilities,” Lawyer Tech Review highlights how it is easier to find significant citations by relying on “Indications of Importance” icons.
In a guest post for Attorney at Work, Jared Correia explains how Google+ is altering search results and what it means for lawyers in “We Are the World: Google’s Search Plus Your World.”
LexBlog’s Kevin O’Keefe wrote “Legal Blogging: How to Craft the Right Strategy” which appeared on Mashable.
For lawyers who just purchased an iPad, iPhoneJD shares tips and recommendations for new users in “Advice for lawyers new to the iPad.”

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Law Blogs: Advertising or Free Speech?

Geri L. Dreiling — Thu, 13 Oct 2011 13:22:43 +0000

Virginia State Bar’s misconduct charge against a lawyer raises the question

By Geri L. Dreiling, Esq.

Where does the line between lawyer advertising and free speech exist? A recent misconduct charge leveled by the Virginia State Bar against a criminal lawyer who used his blog to highlight his cases is shining a spotlight on the question.

As reported by the Washington Post, Richmond criminal defense attorney Horace Hunter writes the blog, “This week in Richmond criminal defense.” In it, he discusses local and national cases including some of his own. The Virginia State Bar, in what seems to be the first misconduct charge of its kind in the state, claims he ran afoul of the professional rules by not including an advertising disclaimer.

Hunter disagrees, arguing that the blog is news and commentary. The case is set for hearing on Oct. 18 – and it has attracted the interest of social media law and First Amendment experts.

Rodney Smolla, a First Amendment scholar and former dean of Washington and Lee University filed a brief on Hunter’s behalf. He told the Washington Post:

“I don’t think the mere fact that a lawyer has been involved in a case means everything a lawyer says about it is an advertisement for future clients. Lawyers talk about their own cases all the time, in public settings, publications … and members of the public are able to take that speech for what it’s worth.”

In Missouri, the professional rules also require a variety of advertising disclaimers. Informal advisory opinions have required or recommended advertising disclaimers on wide variety of communications including:

Brochures that contain verdict and settlement information. (Opinion Number 970155)
Newsletters that highlight general legislative and case law developments. (Opinion Number 960217, 950250)
Materials provided during an informational seminar that include an attorney's name and address. (Opinion Number 960209)

In late June, the American Bar Association’s Commission on Ethics released an initial draft proposal on lawyers’ use of technology in client development. The report did not recommend any new restrictions but did acknowledge that lawyers could use more guidance on how to use the tools in a way that is consistent with the profession’s values.

In the first comment to Rule 7.2 on advertising, the committee stated:

“To assist the public in obtaining and learning about legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising….The interest in expanding public information about legal services ought to prevail over tradition.”

As the Internet and role of social media has expanded, the media is no longer the primary gatekeeper of information. Companies, activists, politicians and, yes, even lawyers increasingly rely on user-generated content to inform the public, educate consumers and disseminate marketing messages. Whether this means clashes involving free speech rights and lawyer advertising rules will also increase remains to be seen.

For more commentary on the Virginia State Bar charges, see:

“Court avoids deciding whether lawyer’s blog must carry disclaimer,” First Amendment Center
“Washington Post creates needless scare about lawyer blogs being outlawed by state bars,” Real Lawyers Have Blogs
“First Amendment Challenge to Restriction on Lawyer’s Blog Likely to Flounder – And Bring Other Blogs Down with It,” MyShingle.com

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How to Reach Non-English Speakers in Your Community

Geri L. Dreiling — Tue, 20 Sep 2011 12:30:48 +0000

Consider multilingual legal marketing and outreach

By Noble McIntyre, Esq.

In this guest post, Oklahoma City lawyer Noble McIntyre makes a case for reaching out to clients who speak different languages. At Legal Media Matters, we couldn’t agree more. We provide Spanish translation services for law firm websites and publish Lawyer Tech Review, an apps, gadget and software review site for lawyers and abogados in both English and Spanish.

- Geri L. Dreiling, Esq.

When it comes to lawyer marketing, are you ignoring part of your community? If you're not considering the non-English speaking members of your community, you may be missing out on an opportunity help people who may need it most. People who don't speak English are often taken advantage of or discriminated against. They are more likely to have their rights violated, and they may not pursue the issue out of fear, or simply because they think the language barrier would make things too complicated.

Take the time to reach out to—and help—the non-English speakers in your community.

Know Your Community's Demographics

According to Census 2000, approximately 18 percent of Americans speak a language other than English at home. This is a substantial portion of the population and Census 2010 will no doubt show an increase in that number. Some speak English “very well,” while others speak it “less than very well.” Even those who speak it well are sometimes simply more comfortable speaking their native language.

Finding out about your community's demographics is a simple matter of consulting the U.S. Census Bureau statistics. You can also conduct a little research to find out just how much of your community's population speaks another language. But if you've lived in your community for any length of time, you will have a feel for the other languages that are spoken in your area.

Hire Bilingual Staff

If your city has a good-sized population that speaks a language other than English, it shouldn’t be difficult for you to hire staff members who speak both languages and who also have all the necessary skills to work in a law firm. If you can’t find someone who meets all these requirements, consider hiring a contract translator to assist with cases involving non-English-speaking clients.

It's not just about getting one more client through the door. It's about making your clients feel at ease. Many people seek legal help because they've been injured in some way. Anyone who has been injured or lost a loved one in an accident may already be fearful and traumatized. Having someone available, whether a staff member or a translator, who can speak to them in their own language, goes a long way toward making them feel more comfortable. It increases their level of confidence in your abilities and makes representation easier.

Market Your Services in Other Languages

Consider including legal marketing in languages other than English. Translate Web pages and emphasize the fact that your firm is able to communicate in the language.

If you use advertising methods such as newspaper or magazine ads, or television commercials, consider creating at least one of each in a language other than English. If you're reaching out to a relatively small portion of the population, keep the ad general in focus so you can run it for a longer period of time than you could if it mentioned a current event, like a product recall. This will allow you to reach that demographic while still making a good return on your advertising investment.

Get Involved with Cultural Organizations

Communities with non-English-speaking members often have cultural organizations that cater to the group. It may be a Chamber of Commerce or a simple recreational club where members of the group can meet for entertainment and social events. There may also be churches in your community that cater to the non-English-speaking population.

Make a point of reaching out to these organizations. Get to know their leaders. But remember it's not enough just to make a phone call or pass on a business card. Meet in person and attend functions. If you don't speak the language ask a staff member to accompany you who does. These steps go a long way to show your firm is not only able but is eager to help.

Above all, follow through as this goes a long way towards building trust. Make sure you're offering your non-English-speaking clients the same amount and quality of attention and effort all your other clients receive. You'll not only reap the business benefits of it, you'll know you've helped those who really need it.

Noble McIntyre is the senior partner and owner of McIntyre Law, an Oklahoma personal injury law firm that focuses on helping victims of Oklahoma car crashes.

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Intoxication does not need to be observed for dram shop liability

Geri L. Dreiling — Fri, 16 Sep 2011 13:26:10 +0000

Direct and circumstantial evidence, expert testimony can establish visible intoxication

By Geri L. Dreiling, Esq.

No one at a bar needs to actually observe a patron’s intoxication in order for the bar to be held liable under Missouri’s dram shop law for the deaths of two people killed by a drunken driver, the Missouri Court of Appeals, Western District has ruled.

The dram shop law’s requirement that a bar knowingly serve a visibly intoxicated person may be established through direct and circumstantial evidence as well as expert witness testimony.

The Court concluded that the evidence regarding the level of intoxication “taken together with the drink receipts, the police report, and the expert testimony that such a level of intoxication would produce outward manifestations of intoxication was sufficient" to merit reversal of the summary judgment for the bar.

The closely watched decision in Nokes, et al. v. HMS Host USA, et al., which prompted amicus briefs from both the Missouri Association of Trial Attorneys and the Missouri Restaurant Association, was handed down on Sept. 13.

Randall L. Rhodes, Bradley D. Kuhlman and Chad C. Lucas of Kansas City represented the families of the drunken driving accident victims. Kansas City lawyers Paul L. Wickens and Robert H. Houske represented the bar.

Four Cocktails Before Flight

The patron consumed four Maker’s Mark cocktails with a splash of coke, each one a double containing 3.5 ounces of alcohol, at the Bud Stadium Club in the Kansas City International Airport before boarding a flight to Dallas. A drink receipt showed the four drinks were served between 4:32 and 6:22 pm. No one at the bar recalled seeing the patron. He then had one cocktail on the plane.

After landing in Dallas, he got behind the wheel of a car. He was involved in an automobile collision that killed two passengers in the vehicle he hit and injured the driver of the other vehicle. The responding police officer noticed the patron’s speech was slurred, his eyes were red, bloodshot and watered and he smelled of alcohol. The patron failed a field sobriety test and a blood test taken about four hours after he left the Stadium Club showed a BAC level of .169 percent.

The families of the decedents sued the owner of the Stadium Club and several other defendants asserting liability pursuant to Missouri’s dram shop law.

The plaintiffs presented the deposition testimony of a toxicologist who opined that the patron’s BAC was between .175 and .18 percent when he ordered his fourth drink. He also stated that the patron would have begun showing uncoordinated actions, significant physical dysfunction, facial appearance changes, changes in demeanor and a loss of inhibitions before ordering his second drink.

A toxicologist retained by the patron’s employer admitted that there would have been significant physical dysfunction after the four drinks and that anyone paying attention would have seen the patron was drunk.

The toxicologist retained by the bar also admitted that most social drinkers are visibly intoxicated when their BAC reaches .15 percent.

Because no one working in the bar remembered the patron, the bar sought summary judgment on the grounds that there was no evidence that it knowingly served a visibly intoxicated person. The trial court granted the motion for summary judgment and the plaintiffs appealed.

Missouri's Dram Shop Law

Writing for the Court, Special Judge Zel M. Fischer noted that Missouri’s dram shop statute, Section 537.053(2), has three elements.

“The claim must be brought (1) ‘by or on behalf of any person who has suffered personal injury or death . . .’ against a (2) ‘person licensed to sell intoxicating liquor by the drink for consumption on the premises . . .’ and demonstrated by clear and convincing evidence that the person (3) ‘knowingly served intoxicating liquor to a visibly intoxicated person . . .’”

The issue in the case before the Court involved the third element. The bar argued that because no one at the bar observed the patron intoxicated, the evidence was insufficient to establish that the patron was a visibly intoxicated person.

The Court disagreed, stating that establishing visible intoxication did not require observation. Instead, the definition of visible intoxication was defined as inebriated to the extent that physical function and coordination were significantly impaired.

While a person’s BAC was relevant it didn’t establish a prima facie case. However, the families also presented the testimony of the officer who responded to the accident, the drink receipts and the expert testimony of toxicologists. That evidence, the Court concluded, was sufficient to create a genuine issue of material fact as to whether the bar knowingly served alcohol to a visibly intoxicated person.

The trial court’s judgment was affirmed in part, reversed in part and remanded.

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Missouri Worker with Mesothelioma Can Sue Employer

Geri L. Dreiling — Wed, 14 Sep 2011 17:48:40 +0000

Workers compensation is not the exclusive remedy for occupational disease, appellate court rules

By Geri L. Dreiling, Esq.

In a substantial departure from prior case law, the Missouri Court of Appeals, Western District has ruled that an employee with mesothelioma can pursue a personal injury lawsuit against his employer for the alleged workplace exposure to asbestos.

In the 7-2 ruling, the majority rejected the argument that workers compensation is the exclusive remedy for an occupational disease claim.

In the majority opinion, Judge Alok Ahuja wrote:

“[W]e conclude that because § 287.120 only denies [the worker] a common-law remedy for ‘personal injury or death of the employee by accident,’ [the employer’s] concession that this case does not involve an ―accident,‖ as that term is statutorily defined, defeats its reliance on § 287.120."

The decision in State ex rel. KCP&L Greater Missouri Operations Company v. Cook was handed down on Sept. 13.

Kenneth B. McClain II of Independence represented the worker. Kansas City-based lawyer J. Stan Sexton represented the employer.

Mesothelioma and Asbestos Exposure

The plaintiff was employed by KCP&L for 34 years. During that period he was exposed to asbestos. After he retired, the worker was diagnosed with mesothelioma. He filed a lawsuit against KCP&L, 16 manufacturers of products that contain asbestos and various John Doe companies that had a connection to asbestos products the plaintiff was exposed to over the years.

Eventually every defendant except the employer was dismissed or settled with the plaintiff. The employer filed a motion for summary judgment based on its affirmative defense that the employee’s exclusive remedy for his occupational disease was workers compensation.

Cass County Circuit Court Judge Jacqueline A. Cook denied the motion for summary judgment. The employer filed a petition for writ of prohibition with the Missouri Court of Appeals, Western District. The Court granted a preliminary writ.

Majority Opinion

The central issue was whether Section 287.120.1 and 2 barred the employee from proceeding against his employer in court. That statute states:

“The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee…at common law or otherwise, on account of such accidental injury or death….”

The employer conceded that asbestos exposure over the course of employment did not fit into the definition of an injury caused by an “accident.” However, the employer argued that numerous court decisions, including the 1957 Missouri Supreme Court case Staples v. A.P. Green Fire Brick Co., settled the question of whether occupational disease claims were subject to the exclusivity provisions.

But the majority noted that in 2005, the legislature materially amended the Workers Compensation Act, changed it from liberal to strict construction, amended the definition of “accident” and explicitly “rejected and abrogated” prior case law construing “accident” and “occupational disease.”

As a result, the prior case law did not control the outcome in the present case. The present version of the statute as well as the Missouri Supreme Court’s 2009 decision in Missouri Alliance for Retired Americans v. Department of Labor & Industrial Relations, meant that the statute must be strictly construed.

The majority ruled that the worker could proceed with his civil lawsuit against the employer for alleged workplace exposure to asbestos which he claimed caused his mesothelioma. The preliminary writ was quashed.

Dissenting Opinions

Two dissenting opinions were written. Judge James Edward Walsh asserted that the majority’s decision was contrary to the legislature’s intent. He also noted that historically the judiciary has interpreted “accident” to include an occupation disease and it was reasonable to assume the legislature was aware of that interpretation and found no reason to change the interpretation that in 2005.

Judge James M. Smart emphasized that the writ should be made absolute and the case referred to the Division of Workers’ Compensation because it has exclusive authority to address the claim.

For more information, please visit the Missouri Judiciary's website. You can also review the prior case law using Google Scholar.

Supervisor’s Sex Harassment of Women Workers Costs Missouri Employer

Geri L. Dreiling — Thu, 08 Sep 2011 17:22:08 +0000

Award of actual damages, punitive damages, attorney’s fees and costs upheld

By Geri L. Dreiling, Esq.

An employer’s reckless response to the sexual harassment complaints of two women who claimed their supervisor’s conduct created a hostile work environment merited a Jasper County jury’s award of actual damages, punitive damages, attorney’s fees and costs, the Missouri Court of Appeals, Southern District has ruled.

The decision in Leeper, et al. v Scorpio Supply IV LLC d/b/a NAPA Auto Parts of Joplin, et al., written by Jeffrey W. Bates, the presiding judge of the Missouri Court of Appeals, Southern District, was handed down on Sept. 2.

Overland Park, Kan.-based lawyer Jessica M. Bernard represented the employer. Tammy L. Horn, an attorney in Overland Park, Kansas, represented the employees.

Workplace Harassment

The employer owned and operated auto parts stores in Joplin, Monett, Nevada and Butler, Missouri. The owner hired a sales manager who was the sole supervisor of all four stores which employed eight to ten workers.

One female employee worked at the auto parts store located in Monett. Over the course of about ten or eleven months, the 28-year-old worker was subjected to repeated and unwanted sexual comments from her supervisor. He groped her and touched her in offensive ways.

The other female employee, a 20-year-old college student, worked at the auto parts store in Joplin. Over an extended period of time, the supervisor would invite the worker to his hotel room, followed her around the store, pretended to unzip his pants, made offensive sexual gestures, groped her and tried to kiss her at least 20 times.

The two women eventually met and discovered they were both targets of the supervisor’s unwanted behavior. They complained to store managers who were afraid to document the behavior because the supervisor was a close friend of the owner-employer.

The owner-employer did not have a sexual harassment policy. When the conduct was finally reported to him, he contacted an outside firm to conduct an investigation but concluded the cost was too high. Although he did not have any training on how to conduct a sexual harassment investigation, the owner-employer decided to do it himself.

After a brief investigation that included statements by the owner that suggested the workers were at fault, and, despite one store manager’s statement that he had seen and heard the harassing activity, the owner-employer concluded the claims could not be substantiated.

The women filed a multi-count lawsuit in Missouri state court against the company, the supervisor and the owner. The petition included claims under the Missouri Human Rights Act that alleged the sexual harassment produced a hostile work environment.

A Jasper County jury found in favor of the women’s claims and awarded actual and punitive damages, attorney’s fees and costs. The jury concluded that the employer was vicariously liable for his supervisor’s conduct and therefore he was jointly and severally liable.

An Employer’s Vicarious Liability

Pursuant to the Missouri Human Rights Act, an employer may liable for a supervisor’s sexual harassment. Missouri regulation 13 C.S.R. 60-3.040(17)(D) provides:

An employer is subject to vicarious liability to a victimized employee with respect to sexual harassment by a supervisor with immediate (or successively higher) authority over an employee or other supervisor who the employee reasonably believes has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command.

The Court concluded that there was “ample evidence presented that they were sexually harassed by their supervisor” that the owner met the definition of an employer as defined by state statute.

Punitive Damages for Employer’s Reckless Disregard

The employer challenged the jury’s punitive damages award. He argued the women failed to present evidence of the employer’s malice or reckless indifference which is required in order to merit an award of punitive damages

After reviewing the record on appeal, Judge Bates stated, “that there was sufficient evidence from which a reasonable juror could conclude that [the employer] acted with reckless disregard for Plaintiffs’ rights” and therefore the trial court did not err in submitting the issue of the employer’s liability to the jury.

The Missouri Court of Appeals Southern District affirmed the trial court’s judgment.

Worker Falls from Scaffold, Work Comp Claim Increased

Geri L. Dreiling — Wed, 07 Sep 2011 18:02:23 +0000

Missouri Scaffolding Act violation increases work comp award by 15 percent

By Geri L. Dreiling, Esq.

A Missouri worker who fell from a scaffold was entitled to a 15 percent increase of his work comp award because his employer failed to follow the Scaffolding Act, the Missouri Court of Appeals, Eastern District has ruled.

The 15 percent penalty applied to temporary total disability benefits, medical benefits and permanent partial disability benefits. However, it did not apply to a Second Injury Fund award.

The decision in Hornbeck v. Spectra Painting Inc., et al., written by Missouri Court of Appeals Judge Roy L. Richter, was handed down on Sept. 6.

St. Louis-based lawyer Charles W. Bobinette represented the worker. St. Louis-based lawyer Michael P. McDonald Jr. represented the employer.

Workplace Accident

In 2006, a painter and drywall taper was assigned to paint a restaurant roof. He attempted to reach the roof by climbing a ladder that had been placed on top of a small scaffold. As he was climbing, the ladder and scaffold collapsed. The painter fell approximately ten feet and was injured on the job.

The administrative law judge awarded temporary total disability benefits, medical payment benefits, permanent partial disability benefits and made an award pursuant to Missouri’s Second Injury Fund. However, the ALJ concluded that the employer did not violate Missouri’s Scaffolding Act and therefore the worker was not entitled to a penalty that would have increased the work comp award by 15 percent.

The worker filed an application for review with Missouri’s Labor and Industrial Relations Commission. While the LIRC affirmed and modified many of ALJ’s findings, it reversed the ALJ on the application of the 15 percent penalty. The LIRC applied the 15 percent penalty to the work comp award.

Missouri Scaffolding Act

Missouri’s work comp law allows for an award to be increased by 15 percent if an injury was caused by an employer’s failure to follow a statute. (Section 287.120.4 RSMo.) The Labor and Industrial Relations Commission concluded that the employer violated Missouri’s Scaffolding act which states that scaffolds “shall be well and safely supported...and so secured as to insure the safety of persons working thereon...against the falling therein.”

The Court agreed that the Missouri Scaffolding Act clearly applied to the work comp claim.

However, the employer argued it was the worker’s burden to produce evidence that the Scaffolding Act had been violated rather than requiring the employer to produce exculpatory evidence to avoid the penalty.

Richter cited a 1919 Missouri Supreme Court decision that applied a nearly identical predecessor to the current Scaffolding Act. In that case, Propulonris v. Goebel Constr. Co., the Court ruled that a fall from scaffold is prima facie evidence of the employer’s negligence and that the statute had been violated. The burden was on the employer to produce exculpatory evidence to avoid the penalty.

Applying Propulonris, the Court concluded in the present case that the Scaffolding Act had been violated and the employer failed to produce exculpatory evidence which would allow it to avoid the 15 percent penalty.

The Penalty and the Missouri Second Injury Fund

The question then before the Court was how to calculate the 15 percent penalty.

The worker argued for the broadest application, applying the penalty to the total amount of the work comp award including medical payments, all previous compensation paid by the employer and the Second Injury Fund award.

The employer urged a narrow construction which would use only the permanent partial disability awarded by the administrative law judge less a $7,000 stipulated indemnity payment already made.

The Court first examined the three types of compensation paid in work comp claim -- temporary total disability benefits, medical benefits and permanent partial disability benefits -- and addressed the question of whether the 15 percent penalty applied to each.

The temporary total disability payments were meant to compensate the worker as he healed from the injury and were subject to the 15 percent penalty.

The medical benefits paid by the employer are considered compensation and therefore were eligible for the 15 percent increase.

The permanent partial disability benefits were also compensation. Further, the Court rejected the argument that an indemnity credit should shield a portion of the PPD award from the 15 percent penalty. Therefore, the entire award was subject to the 15 percent penalty.

Finally, the Court addressed the question of whether the 15 percent penalty should apply to an award made pursuant to Missouri’s Second Injury Fund. Concluding that adding the penalty would contravene the intent of the Fund and the intent of penalty provision, the Court ruled that it could not be applied to the Second Injury Fund.

The Labor and Industrial Relations Commission’s decision was affirmed in part, reversed in part and remanded.

Lawsuit Claiming “Kickbacks” Breached Fiduciary Duty Transferred to Missouri Supreme Court

Geri L. Dreiling — Tue, 06 Sep 2011 19:58:46 +0000

Missouri Court of Appeals discusses duty of loyalty in insurance procurement cases

By Geri L. Dreiling, Esq.

A suit filed by St. Louis-based Emerson Electric against Marsh & McLennan Companies alleging the insurance brokerage made recommendations based on “kickbacks” and retained the interest earned on invested premium payments has been transferred Missouri Supreme Court.

Emerson claimed Marsh & McLennan breached its fiduciary duty by failing to disclose contingent commissions, that the contingent commissions caused an inflated premium and by investing insurance premiums.

The trial court disagreed.

In entering a judgment for Marsh & McLennan on the pleadings, St. Louis Circuit Judge Robert H. Dierker Jr. concluded that the parties lacked a fiduciary relationship beyond the broker’s responsibility to procure insurance in accordance with the client’s wishes.

On Sept. 6, in Emerson Electric Co. v. Marsh & McLennan Companies, the Missouri Court of Appeals, Eastern District affirmed in part, reversed in part and remanded the case.

St. Louis lawyers Mark G. Arnold, Dorothy White-Coleman and Susie McFarlind represented Emerson Electric. Kevin F. Hormuth and David P. Niemeier represented Marsh & McLennan.

Missouri Law on Duty of Loyalty

Writing for the Missouri Court of Appeals, Judge Gary M. Gaertner Jr., noted that Missouri courts have limited the scope of fiduciary duty in procurement contract cases so that the duty of care, skill and diligence ends when the insurance is procured.

However, a limited duty isn’t synonymous with exclusive duty.

Gaertner writes:

While Missouri courts have discussed in detail their reasoning for finding these limitations on the fiduciary duty of care, skill, and diligence in procuring insurance, there is scant discussion of whether this duty is the exclusive fiduciary duty insurance brokers owe their clients.

The Court examined whether a duty of loyalty, which has been defined as exercising the highest degree of honesty and loyalty, exists alongside the limited fiduciary duty of care. Gaertner notes that Missouri has adopted the Restatement (Second) of Agency which describes a duty of loyalty.

Further, the insurance broker-client relationship is an agency relationship. Missouri courts have found a duty of loyalty in other agency relationships. Travel agents and real estate brokers have been found to owe a duty of loyalty.

Gaertner writes:

Therefore, because of our Supreme Court’s use of fiduciary and agency language regarding insurance brokers, our state’s general agency principles which maintain that a duty of loyalty is intrinsic in any fiduciary relationship, the lack of conflict with our stated policies regarding insurance sales, and our view of similar agency relationships in Missouri; we conclude that a duty of loyalty is inherent in an insurance broker’s present fiduciary duties as agent for the insured.

Contingent Commissions

Citing Section 375.116 RSMo., which specifically allows insurance brokers to receive contingent commission, the Court rejected Emerson’s first argument and denied the first point.

With respect to Emerson’s argument that the contingent commissions caused it to pay inflated premiums, Gaertner writes:

Because this case resolved at the pleadings stage, we have no factual record from which to discern whether Emerson could have paid a lower price if Marsh did not have arrangements with the insurance companies to receive contingent commissions. We also are unable to review the brokerage agreement between Marsh and Emerson, or the placement service agreements between Marsh and the insurance companies, as they were not part of the record.

Because the record was not insufficient and all reasonable inferences must be given to Emerson, the Court granted the second point.

Premium Interest

In denying the final point, Gaertner relied upon Missouri statutory provisions also cited by the lower court. Section 375.051.1 and 375.051.2 RSMo., when read together, “make it clear that insurance producers, including agents or brokers...can collect premiums on behalf of either the insurance company or the insured.”

Moreover, because the insurance company had no fiduciary duty beyond procuring the insurance and forwarding the premiums to the insurance companies, there was no breach.

Missouri Supreme Court Transfer

The Missouri Court of Appeals concluded that the question of whether “the fiduciary relationship between an insurance broker and a client includes a duty of loyalty” is an important one for the state of Missouri and transferred the matter to the Missouri Supreme Court.

With respect to the trial court’s ruling, the Missouri Court of Appeals affirmed it in part, reversed it in part and remanded the case.

Law Firm Website SEO: An Infographic

Geri L. Dreiling — Wed, 08 Jun 2011 19:49:25 +0000

Keyword research, fresh content, inbound links and why your site could be blocked by search engines

By Geri L. Dreiling, Esq.

“How do I get my law firm’s website to show up on the first page of Google results?”

This is the question I am asked most often by clients who hire Legal Media Matters to create a law firm website or write content for their firm. Lawyers understand the importance of ranking high in search engine results, but the process of reaching that goal remains a mystery to many.

Traditional advertising and publicity methods were fairly straightforward: If a lawyer wanted to generate more phone calls, the law firm bought a bigger ad or even a cover ad in the telephone directory. Search engine optimization, though, is much more complex. There are many factors at work, and achieving a good ranking takes effort.

In previous posts, Legal Media Matters has highlighted the importance of conducting keyword research and having a website map or diagram, the premium placed by search engines on fresh content, the optimal length of a piece of content and how legal public relations can help build trustworthy links to your site.

This week, The Search Engine Land’s Danny Sullivan published an excellent infographic explaining search engine optimization visually. The SEO “periodic table” is notable for several reasons. First, it lists the numerous factors that play a part in SEO. Second, it ranks those factors in terms of importance. Third, it highlights on-the-page and off-the-page strategies. Finally, it does an excellent job of showing pitfalls that can not only hurt your website but even result in its being blocked by search engines.