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This week I have had the honor and privilege of listening first hand to veterans, young and old, talk candidly and from the heart about their experiences while serving this great country and while defending the freedoms that we often take for granted.

Some of the stories were echoes of the past, as I remember reading a newspaper article of my Great-Grandmother who had five sons serving in our military at the same time during WWII.  I can only imagine both her pride and her angst, as her sons, one by one, went off to war to fight and die for this country.  Many of the stories from my Dad who served during the Korean conflict and later stories from my uncles, who served during the Vietnam war, were left mostly untold because the many of the events they endured were too painful to discuss.

Yesterday, I witnessed a dear friend discuss one of his first assignments to the Honor Guard during the 1970’s at Arlington Cemetery at the height of the Vietnam war.    At the young age of eighteen, he and his fellow guard members conducted as many as five funerals a day for fallen soldiers whose remains were returning to the United States in mind numbing numbers.  I listened and watched as he trembled and emotionally recalled the protests of that era and disrespect shown by many of our citizens to the soldiers returning from war.  Hopefully, the tides have changed for the better and we, as a nation, can unite behind our veterans and support them, knowing that the battles they fight are often not of their choosing.

Please join me and the entire group of attorneys and staff at Tatlow, Gump, Faiella and Wheelan, LLC, as we salute and honor the courageous veterans of the past and those serving today–those men and women who are willing to put their lives and their family’s lives on the line to protect our country and our way of life. Let their selfless acts serve not only as a shining example of patriotism and bravery, but also of inspiration.  Let their stories inspire us as we overcome difficulties and endure our own personal tragedies.

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Trick or treat? It is almost Halloween, a favorite holiday for many children and adults alike.  Halloween can, however, be scary.  The scare for most parents is not from ghosts, ghouls and goblins, but is instead based on the reality of their children out at night walking along busy roads.  If you plan to participate in Halloween festivities this year, below are five tips to help keep your family safe:

  1. Be Afraid of the Dark

Trick or treating is typically done at dusk or at night. Roads and sidewalks are black or gray and a child in a dark colored costume is very hard for on-coming traffic to see.  Light colors are much more visible.  No matter the color of your child’s costume, you should consider reflective vests, tape, bands or other reflective items added to both the front and back of the costume so that your child will be more visible to on-coming traffic.

2.   Do not get too Wrapped-up in an Intricate Costume

Halloween costumes that are too big, too long, have parts that drag the ground, restrict movement or that are otherwise ill-fitting can cause a child to trip, become entangled or can come in contact with the flame from a near-by jack-o-lantern. Make sure your child’s costume fits well so that he or she can move around safely. You should check labels with purchasing costumes to make sure they are flame retardant. Costumes with large hoods or masks can also make it difficult for a child to see. Instead, try face paint or a hat to get the desired look without reducing your child’s visibility.

3.  Light Your Way

Having a flashlight handy is always a good idea. Not only are flashlights fun (especially when they look like a light saber, magic wand or other costume accessory), but they are also practical.  Uneven walking surfaces, potholes, and other hazards can be seen by simply using a flashlight, which will prevent your child from trips, falls and injuries.

4.  Safety in Numbers

Young children should be accompanied by an adult when trick-or-treating. If you have older children that are able to go without an adult, make sure they go with a friend or group and plan the route and neighborhood(s) for them in advance.  Even if your child does not have a cell phone, sending a cell phone for use in case of emergencies is a good idea.  Be sure to remind older children to stay on sidewalks, crosswalks and other pedestrian areas.  They should be reminded that alleys, yards and unlit areas can be dangerous.

5.  Home Sweet Home

If you plan on handing out holiday treats, be sure to make your sidewalk, steps, porch and entry way safe for children. Jack-o-lanterns are tradition, but consider using glow sticks or lights instead of candles. Candles can be a fire hazard, specifically when placed near decorations, curtains, dry leaves or twigs, or where they could be knocked over. All decorations should be placed outside of walking areas so that they do not create a trip hazard or present any other dangers.

Everyone at Tatlow, Gump, Faiella & Wheelan, LLC wishes you and your family a safe and happy Halloween.

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Fall is in the air! The trees are beautiful. Many of us are headed out on the roads to view the spectacular foliage and enjoy the pumpkin picking, fall festivals and the wonderful days of autumn filled unique sights and smells of the season.

In Mid-Missouri, harvest time is also in full swing and more motorists will be encountering farm equipment on rural roads, unfortunately increasing the potential for accidents. Road safety is especially important this time of year.  Vehicle collisions between slower-moving farm equipment and passenger cars and trucks often result serious collisions with tragic consequences.

At Tatlow, Gump, Faiella & Wheelan, we have represented many injured clients and their families who have been injured in farm equipment collisions. Some of those injuries could have been prevented with some prior planning and more awareness of the potential hazards during this busy season.  As a reminder, please keep in mind some of these safety tips:

MOTORISTS:

Farm machinery is often moving slower than it might first appear, often at speeds of 25 miles per hour or less. If you see farm equipment on the road, slow down immediately to avoid collisions.

Farm machinery operators may not be able to see you because of the size of their equipment or the load that they are carrying. Remember, if you can’t see the driver, they probably can’t see you.

Extra-wide farm equipment may take up more than one lane to avoid hitting obstacles such as mailboxes and road signs. Be aware and be prepared to move as far to the right as possible when meeting a large piece of machinery.

Check before you pass. Make sure the machinery is not turning left.  Look for left turn lights or had signals.  If the machinery slows and pulls toward the right side of the road, the operator may be preparing to make a wide left turn.

FARMERS:

Listen for cars. Vehicles may approach rapidly from the rear.  They are often driving much faster than the speed of the farm equipment.

Keep a constant lookout for pedestrians, animals, mailboxes, steep ditch embankments and other roadway obstacles.

Consider using an escort vehicle to follow behind.

Be cognizant of high traffic times, usually mornings and late afternoons. Also be aware of fading daylight hours that make visibility more difficult.

Make sure all warning flashers, lights and slow moving vehicle (SMV) emblems are in proper operating condition and easily visible.

CONCLUSION: Safety must be everyone’s concern.  Please be aware and do your part when sharing the road with farm equipment this season.

If you or someone you love is injured in a farming related accident, please trust the experienced lawyers at Tatlow, Gump, Faiella and Wheelan, LLC, to represent you during this difficult time and help you to receive all the compensation you are entitled to under the law.

 

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In Missouri, a decedent’s estate must be probated within one year of the date of death. This is true whether there is a will or whether there is not.  The probate process involves only assets that were in the decedent’s name alone.

Once a decedent’s estate is open, all heirs are notified of the proceeding and in estates consisting of assets over $40,000.00, notice by publication is run in a newspaper once a week for four weeks.

This gives some notice and some protection to heirs of the decedent to at least take steps to investigate their status as an heir by reviewing the will which has been filed and is public record.  An inventory of estate assets also must be filed which is also public record.  This process provides no notice to non heirs such as friends and charities, that are not named in the will, if there is a will. .

Conversely to this process, with the increased use of survivorship documents, beneficiary deeds and trusts created in the decedent’s lifetime, known as inter vivos trusts, notice is not required. This leaves a potential heir, devisee or legatee completely in the dark if they have not been favored by any of the foregoing mechanisms. Trying to find out if they were not favored so as to continue further investigation and possible litigation, is not an easy task.

Trust contests normally must be commenced within two years after the trustor’s death.  However, a trustee of a trust may trigger a six month statute by sending a copy of the trust agreement to the person or persons together with a notice advising the person of the existence of the trust, the trustee’s name and address, and time allowed (six months) to commence a trust contest. Section 456.6-604.1(2) RSMo.

The statute only relies on mailing and does not require proof that the person received the notice.  It is also unclear as to what amount of diligent effort is necessary to secure an accurate address for the person intended to receive the notice.  Certified or registered mail notice is not required.

This shortened six month statute could be an unwitting trap to one who might otherwise desire to contest a trust upon learning the circumstances of the execution of the trust document.

If you need assistance with your estate litigation claim, contact one of the attorneys our firm for a free consultation at 800-264-3455 or visit our website at www.tgflaw.com.

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Sidney Eckman Wheelan, a partner in the litigation firm of Tatlow, Gump, Faiella & Wheelan, LLC , returns to Missouri after attending the American Association of Justice Trial Advocacy College in Denver Colorado. AAJ’s colleges are in-person programs that combine interactive seminars, demonstrations and small group workshops where participants advance their skills in trial advocacy by learning techniques from experienced trial lawyers, consultants, and communications experts.    The Trial Advocacy Colleges sponsored by AAJ are designed to provide hands on training in critical advocacy skills.

Our firm is committed to providing effective,  skilled legal services to our clients and continuing to focus on trial advocacy and new developments in litigation. If you or a loved one are  in need of legal services, please contact one of our experienced attorneys at Tatlow, Gump, Faiella & Wheelan, LLC. for a confidential evaluation of your legal situation.

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In a unanimous decision on Tuesday, September 9, 2014, the Missouri Supreme Court decided that the mandatory reduction of a punitive damage award pursuant to Missouri Statute 510.265 violates a plaintiff’s right to a trial by jury as guaranteed by the Missouri Constitution.

The case is Lillian Lewellen v. Chad Franklin and Chad Franklin National Auto Sales North, SC92871. The case involves a 2012 jury verdict against a defunct Kansas City area car dealership.  The jury awarded Lewellen $25,000 in actual damages on claims of fraudulent misrepresentation against Franklin, plus punitive damages of $1 million.  However, in post-trial motions, the trial court reduced the punitive award to $500,000 pursuant to a 2005 state statute which limited punitive damages to five times the amount of the plaintiff’s actual damages or $500,000.

The Supreme Court reasoned that because the Missouri Constitution guarantees an “inviolate” right to a jury trial, the legislature cannot restrict the amount juries can award for a cause of action that was available under the common law when the constitution was first written in 1820.

This case follows a 2012 Supreme Court decision that disallowed a similar cap on noneconomic damages in medical malpractice cases. Even though the court has cautioned that differences between punitive damages and compensatory damages usually shouldn’t exceed a single digit ratio, the court justified the large award because of the defendant’s “intentional and flagrant trickery and deceit”.  According to the evidence, the Defendants had repetitively used intentionally deceptive business practices targeting financially vulnerable individuals and that weighed in favor of a higher punitive damage award and that the 40:1 ratio was not excessive.

The law firm of Tatlow, Gump, Faiella & Wheelan, LLC, has been diligently and successfully representing individuals and families for many years, ensuring that our clients receive the full compensation they are entitled to under the law. If you or a loved one has been seriously injured by the negligence of another, please contact our firm and talk to one of our experienced attorneys about your situation.

 

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In the recent decision Ivy v. Smith, S.C 93872, the Supreme Court of the State of Missouri recognized the right to challenge beneficiary designations on bank accounts and motor vehicle titles by proving that the creator of the accounts lacked the common law capacity to  enter into a contract.

Beneficiary designations, otherwise known as payable on death designations, on bank accounts and transfer on death designations on motor vehicle titles were created pursuant to Chapter 461 of the Revised Statutes of Missouri.  Section 461.054 states “a beneficiary designation or a revocation of a beneficiary designation that is procured by fraud, duress or undue influence is void.”  Historically, the only way to attack a beneficiary designation was to prove fraud, duress or undue influence.

In the Ivy case, however, the state Supreme Court ruled that the legislature did not intend to abrogate the common law requirement of contractual capacity for creating beneficiary designations.  In the Ivy case, the prevailing party was able to show that the person creating the beneficiary designations did not have the common law capacity to enter into a contract. Practically, this is a higher standard of proof than proving fraud, duress or undue influence.

Undue influence is sometimes difficult to prove as undue influence occurs in subtle and furtive ways over a period of time.  There may be fact situations where medical testimony would be available to indicate the person creating the account lacked the capacity to contract, rather than trying to prove undue influence.

If a loved one has passed away and you have concerns about beneficiary designations, contact Tatlow, Gump, Faiella and Wheelan, LLC for a consultation.

 

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It’s almost time for school to start.  The summer has flown by quickly and now everyone is gearing up for back-to-school.  That also means that sports seasons will soon be in full-swing.  Athletics are great ways for kids and adults to stay in shape, learn valuable team-building skills and have fun, but, no matter your age, safety should always come first.

According the American Academy of Orthopaedic Surgeons, there are two (2) basic categories for athletic injuries, 1 – Acute Injuries and 2 – Overuse Injuries.   Acute injuries are caused by a sudden trauma and are, most commonly, injuries that people are familiar with such as bruises, sprains, strains, tears, fractures and the like.  Overuse injuries are often overlooked, as they are caused by continuous repetitive motion and occur gradually over time.  Overuse injuries affect muscles, ligaments, tendons, bones and growth plates.  Common examples of overuse injuries occur in baseball pitchers, from the overhanded pitching style; gymnasts and cheerleaders, from continuously landing and putting pressure on knees, ankles, wrists and elbow joints; and swimmers, from the constant shoulder rotations.

Contact sports, such as football, hockey and wrestling, have inherent dangers that put young athletes at special risk for severe injuries.  There are also sports that create risk of fall such as cheerleading, gymnastics, and pole vaulting.  In all of these sports there is substantial risk of head, neck or back trauma.  Concussions, for example, are brain injuries caused from a blow to the head or body and are common in most sports.  Concussions can range from mild to severe and can cause memory loss, loss of motor skills, loss of concentration and other neurological issues.  Any injury to the head, neck or back should be taken seriously, as there is a chance that the trauma could extend to the spinal cord or brain and be more severe than it appears.

There are measures that coaches, athletes and parents of athletes can take to minimize the risk of severe injury including:

  • Regular, sport-specific, conditioning that begins prior to the athletic season that helps increase flexibility and build muscle strength;
  • Teaching proper technique for the exercise, position, sport or individual athlete before the season begins and reinforcing the importance of technique throughout play;
  • Use of proper equipment during training and play including shoes, helmets, mouthpieces, pads, protective eyewear and other safety gear;
  • Taking time off from play (at least once a week) to allow the athlete’s body and muscles to recover and frequent breaks during practices or sporting events; and
  • Emphasizing the importance of following the rules of the game and practicing good sportsmanship.

If an athlete is injured, it is important that he or she obtain prompt medical attention and be given plenty of time to heal properly before returning to the sport.  Even if the appropriate amount of time is given for healing, the athlete may not be able to return to the sport or may not be able to return at the same level of play as prior to the injury.

The likelihood of injury is decreased if all of the above listed guidelines are followed, but, of course, these guidelines cannot guarantee safety.  Equipment fails, technique is overlooked, and falls and collisions are bound to happen.  If you or someone you know is severely injured while participating in an athletic activity, or due to equipment failure while participating in an athletic activity, contact Tatlow, Gump, Faiella & Wheelan, LLC for a free consultation.

Sources:

American Academy of Orthopaedic Surgeons (AAOS) website: http://orthoinfo.aaos.org/topic.cfm?topic=A00056

Medical News Today (MNT) website article Young Athletes: Injuries and Prevention http://www.medicalnewstoday.com/articles/248796.php

 

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photo__1665474_rexgump.jpgAttorney Rex Gump, a member of Tatlow, Gump, Faiella, & Wheelan, LLC, recently spoke to a group of seniors concerning the pitfalls of payable on death designations and the problems created when people undertake their own estate planning without the assistance of professionals.

Poorly executed estate plans can result in protracted litigation, particularly if the elderly person was wrongfully induced to execute changes of beneficiaries on real estate and bank accounts late in life while suffering various disabilities.

Payable on death designations at banks and beneficiary deeds on real estate are particularly susceptible to wrongdoers who seek to plunder the elderly’s assets.