Courts Bulletin - 4-Aug
The latest court decisions are summarized each month in the Courts Bulletin. This publication keeps Missouri Bar members current with rulings in selected areas of the law. Selected federal court opinion summaries, new or amended rules of court and other matters of interest to practitioners are also included from time to time. A panel of volunteer lawyers, all authorities in their respective subject areas, prepare the case summaries.

In this Issue

Criminal Law Inmate had 180 days in which to file his Rule 24.035 motion although he was sentenced before the rule changed. [Hayes v. State], No. 63338. (Mo. App. W.D., July 27, 2004), Howard, J. Full Summary and Other Cases

Environmental & Energy Law Does the Missouri Clean Water Commission have subject matter jurisdiction to hear an appeal of Department of Natural Resources' ("DNR") decision to issue a modification of a Missouri State Operating Permit ("MSOP"). [Missouri Coalition for the Environment, et al. v. Thomas A. Herrmann, et al.], No. 85696 (Mo. banc, July 1, 2004), per curiam. Full Summary and Other Cases

Family Law Contributions to uniform transfer to minors accounts are not child support. [In Re: Marriage of Kenney], No. 25671 (Mo. App. S.D., June 28, 2004), Garrison, J. Full Summary and Other Cases

Health & Hospital Law This case involves a question of law regarding state enforcement of an unsatisfied federal monetary penalty against a nursing home where the penalty was incurred by a previous operator of the nursing home. The Missouri Court of Appeals held that such enforcement is permissible. [Cedar Hill Manor, L.L.C., et al. v. Department of Social Services, Division of Medical Services], No. 62782 (Mo. App. W.D., July 13, 2004), Lowenstein, J. Full Summary and Other Cases

Insurance Law Missouri law not required to be applied in Missouri insurance receivership. [Viacom, Inc., as successor in interest to Westinghouse Electric Corporation, Appellant v. Transit Casualty Company in receivership, Respondent], No. 85986 (Mo. banc, July 1, 2004), per curiam. Full Summary and Other Cases

Juvenile Law (1) Under 491.075, out-of-court statements by a child under twelve relating to an offense under Chapter 566 are admissible in evidence in criminal and juvenile proceedings as substantive evidence to prove the truth of the matter asserted, but only if the time, content and circumstances of the statement provide sufficient indicia of reliability when applying a totality of the circumstances test. (2) Review of the trial court's decision to admit out-of-court statements under 491.075 is by the abuse of discretion standard. (3) Out-of-court hearsay statements of the child are admissible despite the fact that the child made no allegations during several interviews for several months where the child, after reading a book on sexual touching and after viewing a video on inappropriate sexual contact, made allegations against the juvenile. (4) It is expected that a child's account of sexual abuse will have some variations, contradictions and lapses in memory, and in this case, the child described different details at different times, made at least one statement suggesting knowledge of sexual subject matter well beyond her years, and the child was interviewed in a neutral setting by an experienced interviewer. [In Interest of N.J.K.], No. 63012 (Mo. App. W.D., July 27, 2004), per curiam. Full Summary and Other Cases

Labor Law - Federal Eighth Circuit holds employer's prompt remedial response to employee's sexual harassment allegation shielded employer from liability under modified [Ellerth-Faragher] affirmative defense. [McCurdy v. Arkansas State Police], 2004 WL 1636429, No. 03-3058 (8th Cir. July 23, 2004). Full Summary and Other Cases

Medical Malpractice Multiple plaintiffs in wrongful death medical malpractice action only constitute one plaintiff for application of caps on non-economic damages. [Cook v. Newman], No. 62634 (Mo. App. W.D., July 27, 2004), Ulrich, J. Full Summary and Other Cases

Property Law True value of money is to be decided with exchange based on highest and best use of next most likely buyer for tax assessment purposes. [Donna Snider, Assessor for Pemiscot County, Missouri v. Casino Aztar/Aztar Missouri Gaming Corp.], No. 26179 (Mo. App. S.D., 6/28/04), Prewitt, J. Full Summary and Other Cases

Public Service Commission In a case where the Public Service Commission had determined that adjustments should be made to the calculation of credits in an experimental alternative regulation plan (EARP), the Missouri Court of Appeals for the Western District found that the commission "did not exceed its authority; that it properly interpreted and performed its role; and that it resolved legitimate disagreements among the parties as dictated by the terms of the Stipulation and Agreement." [Union Elec. Co. v. PSC], 136 S.W.3d 146 (Mo. App. W.D. 2004), Howard, P.J. Full Summary and Other Cases

Taxation (Missouri Taxation Law & Practice Deskbook Update) City matching contributions to an Internal Revenue Code section 457 plan are not "compensation" for purposes of determining City's contribution to Missouri's Local Government Employee's Retirement System ("LAGERS"). [Bauer v. City of Grandview], No. 63037 (Mo. App. W.D., July 20, 2004), Howard, J. Full Summary and Other Cases

Tort Law Even if premises remain under employer's control, a contractor working thereon using a dangerous instrumentality in a common work area owes a duty of care to avoid injuring employees. [Cupp v. National Railroad Passenger Corporation], Nos. 82635 & 82646 (Mo. App. E.D., July 6, 2004), Crane, J. Full Summary and Other Cases

Workers´ Compensation Can a tractor pulling a trailer owned by an alleged statutory employer be considered its premises under 287.040.1 RSMo? [Mary Joyce Wilson v C.C. Southern], No. 62805 (Mo. App. W.D., May 18, 2004), Spinden, J. Full Summary and Other Cases