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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.

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GM has issued four recalls for fatal ignition switch flaws including:
2009-2014 Buick Enclave, Chevrolet Traverse, and GMC Acadia
2004-2008 Chevrolet Malibu
2015 Cadillac Escalade, Chevrolet Silverado, and GMC Sierra
GM received a fine noted as the “single highest penalty amount ever paid as a result of a NHTSA investigation of violations stemming from a recall.” GM has agreed to extensive oversight of their operations and will change how it reviews safety issues in the future.

If you or someone you know has been injured as a result of vehicle product failures, contact Tatlow, Gump, Faiella & Wheelan, LLC for a free consultation.

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Sidney Eckman Wheelan, TGFW Attorney, is a featured presenter for the Missouri Bar Webinar “Ethics, Mediation and Hot Topics”, the third of a three part series on Handling an Automobile Accident Case. The webinar will take place on Wednesday, April 30, 2014 from 12:00 – 2:00 CST and will include a question and answer session with the presenters.

Ms. Wheelan has considerable experience in this area of the law. It would be a beneficial webinar for any attorney who is new to practicing in the area of personal injury and auto accident cases or for those more experienced practitioners who wish to improve their skills in this area.

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The Missouri Department of Transportation offers several tools to help keep drivers informed of road conditions in the state. As warmer weather approaches, the amount of road construction will greatly increase throughout the state. Before you take off, especially on roads you don’t frequently travel, check out MODOT’s interactive live Traveler Information Map for real-time information about road conditions.

You can find the map on MODOT’s website here: http://traveler.modot.org/map/

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We all know that your credit score is a very important number when it comes to buying a car, getting a credit card, or buying a new home. But did you know that auto insurance companies are using your credit score to help determine your risk of causing an accident? Interestingly enough, your credit score plays a major role in determining the cost of your automobile insurance premiums; in some bad cases, doubling the cost of your insurance for particularly bad credit. Read this article by CBS news for more information.