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RDM associate attorney discusses the process for filing a motion for summary judgment in Missouri.

As a first-year associate, the responsibility of drafting your first motion for summary judgment is daunting. Law students are introduced to the basics of the summary judgment standard in their 1L Civil Procedure class, and—depending on what route you took through law school—reacquainted with the standard when preparing for the bar exam.

After three years of school and a summer of studying, any law school graduate can likely rattle off the summary judgment standard without missing a beat. But what I’ve come to learn in actual practice is that understanding the dos and don’ts of drafting the motion is a skill that is learned through careful guidance from senior attorneys, a little bit of patience, and some trial and error. There are key aspects to the motion that first year associates should learn to start looking for, such as knowing the right time to file and the facts you will rely on as the basis for the motion.

Where it all begins though, is understanding the required framework for drafting this motion. In Missouri, knowing the applicable law is critical to learning this framework. And in my short time since I began practicing law, I’ve already seen opposing counsels make the fatal mistake of failing to subscribe to it.

Continue reading Drafting a Summary Judgment Motion in Missouri
A person receiving a COVID-19 vaccination. RDM's Brandon Powell discusses employer mandated vaccinations.

In a previous post on the RDM Knowledge Blog, we wrote about the legal authority of both federal and state governments to mandate vaccinations among its citizens. In the article, we surmised that although states would have the authority to require vaccines, the political climate rendered such a position unlikely. This has been largely borne out, as no state has made vaccinations compulsory among non-employees, even more than six months after the widespread availability of multiple vaccines and despite lagging vaccination numbers in many states.

Instead, recent mandatory vaccine headlines have been driven by private employers. Earlier this month, the news network CNN fired three employees for coming to work unvaccinated, while Houston-based Methodist Hospital lost 150 employees after it initiated a policy that required all employees to receive the vaccine. Various other corporations, including Facebook, Ford, and Goldman Sachs, have also instituted mandatory COVID vaccine policies for its employees.

As the actions of these major corporations suggest, mandatory vaccination policies are, generally speaking, valid and enforceable. Nevertheless, enforcement of these policies is not without complication. Employers may have to provide “reasonable accommodation” to persons unwilling or unable to be vaccinated for religious reasons or due to disability or pregnancy. Furthermore, the passage of state bills prohibiting mandatory vaccination programs make matters even more complicated.

Federal Employment Law and COVID Vaccination Mandates

Most employment in the United States is “at will,” meaning that the employee-employer relationship exists at the “will” of the parties, lasting only so long as both parties wish to continue it.  An employee can resign from his or her job for any reason. Likewise, an employer can dismiss an employee for a good reason, a bad reason, or no reason as all, as long as the reason is not prohibited by law. 

Furthermore, employers have a duty, under both federal and state law, to maintain a reasonably safe work environment for their employees (think OSHA).

Based upon these general principles, employers have the duty to create a safe workplace for their employees, which may generally include compulsory vaccinations. The U.S. Equal Employment Opportunity Commission agrees, concluding that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”

However, as with many aspects of federal employment law, there are notable caveats to this general rule of which employers must be aware. While an employer may initiate a generally applicable rule for mandatory COVID-19 vaccines, per the EEOC, they will be subject to “reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.”

Stated plainly, this means that if an employee is unable to comply with the employer’s vaccination policy due to sincerely held religious belief, disability, pregnancy, or another protected issue, an employer must provide the employee a reasonable accommodation unless it can show that doing so would provide an “undue hardship” on the employer. Examples of accommodations that the EEOC recognizes include face masks, having the employee work in a socially distanced workspace away from other employees, modified work shifts, periodic COVID testing, or giving the employee the opportunity to telework.

The full nature and extent of these accommodations have not been litigated in the courts yet, at least not within the context of the COVID pandemic. But employers should, at minimum, engage in the interactive process upon learning of an employee’s desire for accommodation. 

State Laws and COVID Vaccine Requirements

Analysis of these issues under state law generally begin with the same general principles. “At will” employment is recognized in every state other than Montana. As such, employers can terminate employees on any non-prohibited basis, including violation of generally applicable workplace safety policies. See Farris v. Dep’t of Empl. Sec., 2014 IL (4th) 130391 (affirming the termination of an employee for violation of biosecurity safety policy under Illinois law).

However, given the political nature of the COVID pandemic, state legislatures around the county have complicated this issue by introducing, and in some cases enacting, bills prohibiting employers from requiring vaccinations. As of August 17th, 2021, at least five states have laws that limit (or will limit upon the effective date) an employer’s ability to take adverse action against an unvaccinated employee. Those states are Arizona, Montana, New Hampshire, North Dakota, and Ohio. Each bill differs in their details, ranging from Arizona’s requirement that employers must reasonably accommodate religious objections to the vaccine to Montana’s prohibition against requiring employees receive the vaccine as a condition of employment.

Additionally, a majority of states have bills pending which could impact an employer’s right in this regard, though eventual passage of these bills depends on their individual circumstances. In Illinois, the COVID-19 Workplace Vaccination Program Limitation Act would prohibit an employer from creating a mandatory vaccination program, though this bill has been stuck in committee since May of 2021, and is ultimately unlikely to pass.

In Missouri, on the other hand, multiple bills have already been introduced in the legislature (see House Bill 566 and Senate Resolution 203), and given that Missouri Governor Mike Parson has already signed a law to prohibit vaccine passports—preventing governmental entities from requiring citizens to be vaccinated—it is likely that employment bills could receive more traction in this state.

Can You Require a COVID Vaccination as an Employer?

Before enacting any workplace policies on vaccination, employers should check the status of statewide bills to determine whether the vaccination requirements would be permissible or enforceable in the state. Rasmussen Dickey Moore’s Employment and Labor Law Team advises employers on complying with federal, state, and local laws. As the legislative landscape rapidly changes through the pandemic, trust RDM to help you keep your employees safe and keep your business safe from legal action. Contact RDM today to discuss your needs.

The Missouri Supreme Court recently issued an opinion on non-economic damages caps.

The Missouri Supreme Court has issued an opinion that could greatly impact the trajectory of tort law in the state. On July 22nd, 2021, the Court upheld Missouri’s non-economic damages cap for medical negligence claims and further held that it does not violate the Missouri Constitution’s right to trial by jury for the legislature to abolish personal injury causes of action existing in common law and replace by statute the same type of claim with new standards.

In 2015, the Missouri Legislature imposed statutory caps on non-economic damages in medical malpractice cases. Prior to the legislation there were no caps, as such claims were common law actions, and juries had full discretion to award damages.

Last week, in Maria del Carmen Ordinola Velasquez vs. University Physician Associates et al., the Missouri Supreme Court weighed in on the constitutionality of those caps after the Western District Court of Appeals referred the case. The Court affirmed a judgment capping non-economic damages in a medical practice case where the trial court found the plaintiff suffered catastrophic injuries.

The Court held that the legislature does indeed have the power to abolish common law causes of action and supersede them with statutory actions. Judge George W. Draper III dissented, expressing concern for the legislature’s ability to overturn common law causes of action. Draper called the statutory changes “an act of form over substance” that “fails to protect the constitutional right to trial by jury.” Nonetheless, the Missouri Legislature now appears to have increased freedom to institute tort reform in other areas of the law. The Court also reiterated that the cap on non-economic damages should be calculated at the time of trial in comparison to the time of injury. Missouri has set an increasing cap through 2050 for injuries considered non-catastrophic and a higher cap for those considered catastrophic.

While caps on medical damages have been in place for several years in Missouri, the broader impact of this ruling is the affirmation of the Missouri General Assembly’s authority to reform negligence law in the state, raising the possibility of further tort reform in the future.

It is important that medical professionals and healthcare providers have the right attorneys on their side to further mitigate risk and potential damages. Even with non-economic damages caps firmly in place, medical malpractice litigation can still be costly and time consuming.

RDM’s Professional Liability and Healthcare Law teams have extensive experience representing professionals and institutions in medical malpractice cases. From developing risk management strategies to crafting a trial defense, Rasmussen Dickey Moore has what it takes to protect you in court. Contact us today to learn how we can help you with medical malpractice litigation.

Missouri recently enacted legislation protecting businesses from COVID-19 liability.

As states across the country ease out of COVID-19 restrictions, many state legislatures are passing laws to protect businesses from COVID-19 liability. Various chambers of commerce and pro-business groups across the country have been proponents of such protections and have pushed their state legislatures to pass laws to protect businesses. So far 30 states have enacted statutes that provide businesses some type of shield against COVID-19 liability suits. 

On July 7th, 2021, Missouri became the next state to protect businesses, healthcare providers, and manufacturers from COVID-19 liability. Missouri Governor Mike Parson signed Senate Bill 51 into law, protecting businesses, premises owners, and healthcare providers from personal injury suits arising from COVID-19 exposure unless plaintiff can show clear and convincing evidence that defendant’s reckless or willful misconduct caused the exposure to the virus.

The Missouri law establishes a rebuttable presumption of risk by a plaintiff in an exposure claim when they enter the premises that has warnings signs posted. The law also shields manufacturers from product liability claims stemming from items used to protect against COVID-19 exposures.

The proponents of this bill hope that this law will provide businesses some type of relief from the pandemic as the potential for COVID-19 related lawsuits looms. The new law will go into effect on August 28th, 2021. As the Missouri Constitution does not allow for legislation to be applied retroactively, the new law will not affect claims filed prior to August 28th.

This law does not completely shield businesses from liability. So, it is extremely important for businesses to have the right counsel to help them comply with federal, state, and local laws in order to be protected.  The attorneys at RDM have broad experience in the fields of premises liability, products liability, and more. We can assist your business in maintaining compliance or defending against claims. Contact RDM today.

Protect yourself from liability.

RDM’s attorneys can help you make sure you’re compliant with state laws and avoid costly COVID-19 lawsuits. And should a claim arise, we’re prepared to defend your business.

Contact RDM

The Missouri Capitol. Missouri legislators recently amended laws pertaining to "065 agreements." Photo by Paul Sableman.

On June 29th, 2021, Missouri Governor Mike Parson signed into law SS HB 345, which will go into effect on August 28th. The law amends Missouri’s unique statutory law, predominantly viewed as favoring policy holders and plaintiffs’ attorneys seeking garnishments and third-party actions against insurance companies.  

Insurance carriers who believe they have a defense to coverage have faced complex risk analysis in Missouri. While the duty to defend is generally broader than the duty to indemnify, third-party claims against carriers in Missouri have become an increasingly popular weapon.

When faced with a claim, a carrier has a few options: 

  • Accept the defense of the claim without any reservation of rights, which triggers a duty to indemnify;
  • Defend under reservation of rights and file a declaration action to determine coverage; or
  • Outright deny coverage and a defense.

What is an 065 Agreement?

In Missouri, when there is a dispute as to coverage between a defendant and its insurer, R.S.Mo. § 537.065 allows plaintiff and defendant to enter into an agreement that a plaintiff will only collect on a judgment from the defendant’s insurance carrier. These agreements usually arise when there has been a disclaimer of coverage or a rejection of a reservation of rights defense which is treated as a denial of coverage in Missouri.

Prior to HB 345, parties could enter into an 065 settlement agreement to shift liability to one party or insurer. Parties could provide notice only at the eleventh hour before a judgment in the matter was entered, and the insurer would then be bound by the judgment.  Several recent cases—Britt v. Otto, Aguilar v. GEICO, and Geiler v. Liberty (see our recent analysis of this case)—illustrate how the past provisions of 537.065 had been used by plaintiffs to set up insurers for bad faith claims, obtain rulings in alternative dispute resolution settings, and effectively wipe away the insurer’s ability to do anything to protect its own interests unless it agrees to provide full coverage from the outset.

What are the new changes to 537.065?

Timing

In 2017, an amendment was passed and signed into law requiring that before a judgment could be entered in an 065 agreement, an insurer needed to be provided with written notice of the execution of the contract and be given thirty days to intervene as a matter of right in pending litigation involving the claim for damages. The most recent amendments attempt to close the timing loopholes that allowed gamesmanship of notice to carriers with specific timelines for different scenarios of litigation:

If any action seeking a judgment on the claim against the tort-feasor is pending at the time of the execution of any contract entered into under this section, then, within thirty days after such execution, the tort-feasor shall provide his or her insurer or insurers with a copy of the executed contract and a copy of any such action. 

If any action seeking a judgment on the claim against the tort-feasor is pending at the time of the execution of any contract entered into under this section but is thereafter dismissed, then, within thirty days after the refiling of that action or the filing of any subsequent action arising out of the claim for damages against the tort-feasor, the tort-feasor shall provide his or her insurer or insurers with a copy of the executed contract and a copy of the refiled or subsequently filed action seeking a judgment on the claim against the tort-feasor.

If no action seeking a judgment on the claim against the tort-feasor is pending at the time of the execution of any contract entered into under this section, then, within thirty days after the tort-feasor receives notice of any subsequent action, by service of process or otherwise, the tort-feasor shall provide his or her insurer or insurers with a copy of the executed contract and a copy of any action seeking a judgment on the claim against the tort-feasor.

Rights After Intervention

New language in 537.065 also makes clear that if an insurance carrier chooses to intervene in an 065 agreement then, “the intervenor shall have all rights afforded to defendants under the Missouri rules of civil procedure and reasonable and sufficient time to meaningfully assert its position including, but not limited to, the right and time to conduct discovery, the right and time to engage in motion practice, and the right to a trial by jury and sufficient time to prepare for trial.” Further, no order regarding the claim matter shall be binding on the carrier choosing to intervene if the order is entered prior to the intervention.

No Private Arbitration End Run

The law also amends Missouri’s Uniform Arbitration Act to make clear that plaintiffs may not use private arbitration to circumvent proper notice to the carrier and the opportunity to intervene.  Any arbitration occurring without the consent of the insurer is not binding and the choice not to participate shall not be construed to be bad faith.

In Conclusion

The changes to 537.065 go into effect on August 28th, 2021. Even when the changes become effective, insurers must continue to stay on their toes as plaintiffs’ attorneys seek opportunities to stay one step ahead.

While the changes to Missouri law may be more favorable to insurers, it is still absolutely essential that insurers have the right counsel to help them assess their options. RDM’s extensive experience in complex claims coverage allows us to provide detailed assessments accounting for a wide array of possible outcomes. Though the laws may change, insurers should remain vigilant when it comes to their Missouri claims.

From coverage opinions to defense at trial, RDM’s Insurance Law team can lead insurers through complex claims at every step of the way keeping them informed and prepared for the latest changes in state law. Contact RDM today to discuss how new laws may affect you.