Tort Law

Editor:
R. Max Humphreys, Esquire

Evidence of Plaintiff’s THC (Tetrahydrocanniabinol) blood level was erroneously admitted without some foundation testimony as to the effect of marijuana use on a person’s behavior and what level of THC indicates intoxication from marijuana. Secrist v. Treadstone, et al., No. 73250 (Mo. App. W.D., November 1, 2011), Witt, J.

Plantiff was working in a building owned by Defendants when he sought to use an elevator and in the process fell down the elevator shaft suffering serious injuries. The jury assessed 80% of the fault to Plaintiff. Testimony was introduced during the trial of the level of  THC in Plaintiff's blood without any expert testimony as to what level of THC indicated intoxication. The court also noted that marijuana, which produces THC can have the effect of positive tests for THC several days after its use, so there is not necessarily a relationship between the presence of THC and the time it was ingested. The court of appeals reversed and remanded based upon the error.


Evidence that defendant had prevailed in prior trials  was not relevant or admissible.  Moon v. Hy-Vee, Inc., No. 73695 (Mo. App. W.D., November 8, 2011), Newton, J.

This is a slip and fall case. Plaintiff was injured in a Hy-Vee and claims that Hy-Vee was negligent in maintaining their property in a defective or dangerous condition. The Defendant Hy-Vee presented two expert witnesses, a surgeon and a floor safety expert at trial. Plaintiff in cross-examining these two experts asked questions about their prior testimony in favor of Hy-Vee in other trials specifying the cases by name and venue and eliciting testimony that in each of the cases, that expert had testified along with the other expert and Hy-Vee had been represented by the same law firm. The court then allowed Hy- Vee’s attorney to ask the experts what the outcome of each of those prior trials were and they were either Defendant’s verdicts or verdicts for less than what the Plaintiff requested.

After a Defendant’s verdict, Plaintiff appealed raising as error the admission of the testimony by these experts of the results of the trials they had previously testified in for Hy-Vee. The court of appeals found the evidence totally irrelevant regarding the outcome of those trials. The court noted that evidence of experts’ prior testimony on behalf of a party was certainly relevant on the witness’s credibility or possible bias but the outcome of those cases had no bearing on any issue.

Held:
  Reversed and remanded for a new trial.


Editors:
Edward J. Hershewe, Esquire
Alison R. Hershewe, Esquire

(1) Law of the case” doctrine applies where the issue of whether the tortfeasor was uninsured was decided on a previous appeal. (2) Missouri law requires stacking of uninsured benefits. (3) Uninsured award not set of by the amount paid by torfeasor’s out of state insurance company. Adams v. King, et al., No. 30898 (Mo. App. S.D., November 9, 2011), Rahmeyer, J.

Pursuant to the “law of the case” doctrine, the court of appeals will not consider the same issue twice on the appellate level. Without contractual policy language to support, there is no “statutory minimum” cap on uninsured motorist benefits in Missouri. Ambiguous policy language must be construed against the insurer and in favor of the insured.

This is the third appeal from an uninsured motorist dispute between the victims and their insurance carrier. Reversing the trial court in the first appeal, the court found the tortfeasor was operating uninsured. In the second appeal, the court reiterated the tortfeasor was uninsured but remanded due to other pending claims.

In this most recent appeal, the insurance carrier (Appellant) first asked the court to revisit the uninsured tortfeasor determination made in the first appeal. Citing the “law of the case” doctrine, which states “a previous holding in a case constitutes the law of the case and precludes relitigation,” the court refused to reconsider the issue.

In its second point, Appellant argued the trial court erred in stacking the victims’ three insurance policies for a total of $200,000.00. Relying on Ragsdale v. Armstrong, 906 S.W.2d 783 (Mo. banc 1996), Appellant argued there is a cap on stacking at the statutory minimum of $25,000.00. Reviewing de novo and finding no error, the court made it clear Ragsdale does not stand for that proposition, and further stated appellants cited no policy language to support such a cap. The law, the court continued, is clear that Missouri requires stacking of uninsured benefits, and parties are free to contract above and beyond statutory minimums.

Lastly, relying on policy language providing for a reduction in benefits of any amount previously paid for the “same damages,” Appellant argued that the uninsured award should be set-off by the amount paid the tortfeasor’s out-of-state insurance company. The court denied this last point, finding the language ambiguous, requiring resolution in favor of insured.