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Kansas City Auto Accident Representation

Kansas City Auto Accident Injury Lawyer-Attorneys-Legal Representation Wrongful Death/Fatality Vehicle Collisions

The personal injury & wrongful death attorneys in our law office provide professional and compassionate personal injury representation for all Kansas City personal injury and wrongful death cases.  Call our law firm today at 913-764-5010 to speak to an experienced personal injury/wrongful death attorney about your Kansas City personal injury case and learn about your options

If you or someone you know has been injured in an auto accident in Kansas City, Jackson County, Platte County, or elsewhere in the Kansas City metro area, quick action is often necessary to protect your interests and those of your loved ones.  You should immediately look into retaining a Kansas City auto accident attorney who is aggressive, knowledgeable, and ready to fight for your interests. 

At The Law Offices of Jeremiah Johnson, LLC, We understand that the effects of a Kansas City area auto accident can be felt for years or lifetimes and may affect not only those involved, but the loved ones around them as well.  This law office's attorney and staff strive to communicate with and show compassion to all of our personal injury and auto accident clients as we actively represent their interests and recover every dollar they deserve.

Our law office handles Kansas City area auto accident and personal injury cases on a contingency fee basis.  This means that we do not charge our personal injury clients an hourly fee or ask for any money up front.  This arrangement also means we pay almost all litigation expenses, which can easily be tens of thousands of dollars in a Kansas City area auto accident case and hundreds of thousands of dollars in Kansas City area wrongful death cases.  We simply take our fee as a percentage of monies collected after deducting expenses – if we are not successful in collecting, then you will owe nothing and we are out our time and expenses.  This arrangement gives us a very high incentive to maximize the payout for all of our Kansas City area personal injury clients.

Contact one of our personal injury attorneys today by calling (913) 764-5010 or info@kcatty.com to schedule a no-cost, no-obligation appointment to discuss your Kansas City personal injury or auto accident case with one of our lawyers.  After hours and weekend appointments are available by request.  We will also meet you outside of our office if necessary. 

The top 20 Kansas City, Misouri crash locations for 2010and 2009

The Kansas City, Missouri police department's traffic analyst has compiled a list of the highest-crash locations in Kansas City, Mo., in 2010.  You'll note that last year's No. 1 spot - I-435 and I-70, which had 107 crashes, didn't even make the top 20 list this year. Engineering improvements and increased traffic enforcement in the area could be to credit for the change, but more study will be needed.

  2009 top auto accident locations in Kansas City, Missouri:

LOCATION

TOTAL CRASHES

1. I-435 & I-70

107

2. I-435 & Front St.

75

3. I-29 & Barry Road

64

4. 75th St. & 71 Highway

63

5. 5th St. & Broadway

61

6. Gregory & 71 Highway

59

7. 152 Highway & Flintlock

56

8. I-435 & Holmes

56

9. I-435 & 23rd St.

56

10. 55th St. & 71 Highway

55

11. Bannister Rd. & 71 Hwy

53

12. I-435 & Wornall

50

13. 71 Hwy & Red Bridge Rd.

47

14. I-35 & Front Street

47

15. I-435 & 87th St.

46

16. I-470 & Blue Ridge

46

17. 155th St. & 71 Highway

46

18. I-35 & I-70

42

19. I-435 & 71 Highway

40

20. I-435 & Bannister Rd.

39

Do not talk to an insurance company representative or a representative of the at-fault party about the auto accident until you have retained an experienced Kansas City personal injury/auto accident law firm:

It is important to keep in mind that insurance companies are in business and write policies for Kansas City metro residents for one reason – to make money.  Insurance companies are incapable of caring about who has been hurt in an automobile collision or how the passenger's lives have been affected by a Kansas City auto accident.  These insurance companies have hundreds or thousands of people working for them whose main goal is to make their employer money by limiting the money paid out on claims.  These employees themselves often do not care how serious your injuries are or what impact the car accident has had on you and your loved ones – their primary goal is to reduce the amount paid out by their employer as much as possible. 

The negligent party who caused the auto accident that led to your injuries paid their premiums, it should be time for the insurance company to step up, cover their obligations, and pay for all of your injuries.  Unfortunately, this is often not the case in Kansas City auto wrecks. 

Kansas City area insurance companies and their representatives have been known to mislead claimants and even provide false information to Kansas City auto accident victims.  We take pride in sorting through the misinformation and ignoring baseless claims by defendants and insurance companies.  This allows us to maximize the payouts for our personal injury clients.  For more information on this topic, please see our page on bad faith litigation.

In one recent case, we persuaded an insurance company to make a policy limits offer on a Missouri homeowner’s insurance policy to compensate our client for the negligent and intentional actions of their insured.  This was an extraordinary result because insurance is not technically available for intentional acts – we used the bad faith “hammer” to convince the insurance company that their potential losses at trial were worse than paying the limits of their policy.

Why choose The Law Offices of Jeremiah Johnson, LLC to represent you in your auto accident case?

There are literally hundreds of Kansas City and Johnson County law firms representing people in auto accident litigation.  This can make choosing the right auto accident attorney a difficult process. 

We are willing to take our Kansas City area personal injury cases to trial:  We have taken dozens of cases to trial in front of judges and juries, and should the circumstances warrant it, we will happily put your case in front of a jury as well. 

A law firm’s willingness to take cases to trial can be key, because many Kansas City area personal injury law firms are afraid or unwilling to take a case to trial which can have serious negative effects on their auto accident clients’ recoveries.  The willingness to put a case in front of a jury means that a trial seasoned personal injury attorney will not only be better prepared for trial, but will also often get his clients larger settlements because he is willing to put the case in front of a jury.

The defense attorneys representing the at-fault party and the insurance companies know which Kansas City area attorneys will take their personal injury cases to trial, and they act accordingly, often making larger settlement offers to those who are represented by the more aggressive personal injury law firms.  It is not much different than a card game – if you know your opponent will fold every time the game gets serious, you are more likely to bluff and take their money.  Make sure you are not represented by a Kansas City auto accident attorney known to “fold,” when a personal injury case gets tough.

When looking for a Kansas City personal injury lawyer, ask them if they will take your case to trial and how long it has been since they took a case to trial.  It may be one of the most important questions you ask!

We maximize recoveries in Kansas City personal injury cases:  When discussing recoveries, it is important that the term “recovery” be defined.  A recovery is any money or tangible asset collected in the course of litigation. 

For instance, the typical sources of recoveries in a Kansas City personal injury case include assets from the negligent or at fault party, insurance payouts from policies of the negligent or at fault party, insurance proceeds from our own client’s policies (often through uninsured and underinsured insurance policy provisions), and other third party sources of income.

We also maximize payouts to our Kansas City personal injury clients by negotiating with medical providers and other lien holders to reduce or eliminate outside claims on our clients recoveries.  In one recent case, we were able to reduce our client’s debt to a local medical provider by 85%which represented a 30% increase in his net settlement.

We communicate with our clients:  Everyone has heard the criticism – “why is it so hard to get my attorney to call me back?”  At The Law Offices of Jeremiah Johnson, LLC, we strive to maintain good communication with our clients and we strive to keep them in the loop regarding all of the important issues in their cases.  We also return most calls within hours and nearly every call within 24 hours.

We regularly meet with clients, send them copies of important court documents, and even more importantly, we answer the phone when our clients call.  Most Kansas City area auto accident lawyers can be difficult to reach, we do our best to be accessible to our personal injury clients - we even give We’ cell phone numbers and personal email addresses out to our personal injury clients so they may contact us on weekends or after hours.

The attorney and staff at this personal injury law office recognize that the personal injury litigation process can be extremely confusing and frustrating.  This is why our staff and personal injury lawyers do their best to see that our Kansas City area clients are as informed and involved in their auto accident case as they wish to be. 

Our clients regularly express their satisfaction with our responsiveness and availability throughout their cases.  We take great pride in this.

Experience: We cannot claim to be the most experienced personal injury attorneys in the Kansas City area - there are simply older attorneys out there – but we can tell you that we have successfully pursued our personal injury clients’ interests for years.  We can also tell you that we are still “hungry,” and that we never treat a personal injury client as “just another file.”  The attorneys in this law office aggressively pursue our personal injury clients’ interests through pre-litigation, pre-trial, and in trial itself.

We have settled numerous auto accident and personal injury cases and recovered millions of dollars for our clients.  These settlements have come before and after a lawsuit was filed. 

In one recent case we were able to get a policy limits settlement for a Kansas City area auto accident victim in an amount that was over 12 times what she had been offered before we began representing her.  This was accomplished by working hard on her case and demonstrating to the defendant’s attorneys that we were planning on taking the case to trial where they would not only be forced to pay out their policy limits, but also incur the costs of litigation as well.

How does our Kansas City area personal injury and auto accident representation work?

At The Law Offices of Jeremiah Johnson, LLC, We understand that the personal injury process can be confusing, frustrating, and complex.  That is why we strive to offer our personal injury clients unrivaled access to our personal injury lawyers and why we always keep our clients in the loop.

Step 1 – Meeting with a potential personal injury client:  The first step in securing our representation for your Kansas City area auto accident case is to call our office and set up a no-cost, no-obligation appointment with one of our personal injury attorneys.

At this meeting one of us will discuss the unique circumstances in your auto accident case.  We will also identify the expected legal issues and damages that we anticipate being applicable in your auto accident case. 

We will also discuss our fee arrangement, the way a contingency fee works, and let you take home a fee agreement to review.  If you wish to have us represent you, then you only need to sign and deliver the fee agreement, no money is due upon signing, rather our fee is taken as a percentage of monies collected by our office for you.

Step 2 - Investigation:  The next step is for us to investigate the car accident that injured you.  The work done during the investigation stage varies greatly depending on the circumstances surrounding your auto accident. 

The investigation involves locating and talking to witnesses to your auto accident, contacting the law enforcement agency or agencies that investigating the Kansas City area auto accident, gathering medical records and bills,  talking to treatment providers, locating experts, referring our clients to specialists, and various other tasks.

The investigation stage really never ends, but it will usually be the focus of our representation for 3-9 months, again depending on the circumstances of your Kansas City auto collision case.

Step 3 - Negotiation:  The third step involves negotiating with the defendant’s attorney or attorneys and/or insurance companies.  This step may also involve negotiations with medical providers or insurance companies who are owed monies and may have a lien on the case proceeds. 

While we take every Kansas City personal injury case with the assumption that the case will go to trial, this step is critical in case development and often results in an agreeable settlement being offered.

The negotiation phase usually overlaps the investigation phase and is useful whether the case is settled or whether it will go to trial.  During this phase, we will learn the defendant’s trial strategy and expose weaknesses in their defense. 

Negotiation can be done one of many ways.  Typically, it involves communication between the attorneys where we present the strengths of your case, expose the weaknesses in the defendant’s case, and ratchet up pressure to exact a fair settlement.

Negotiation can also involve mediation or arbitration.  Mediation is where the parties sit down with a neutral third party, usually a retired judge, and discuss the case.  The mediator will then separate the sides and candidly discuss the case with them in an attempt to negotiate a settlement.

This law office has had considerable success mediating Kansas City area auto accident cases.  Mediation represents a “no-lose” proposition for our clients as it allows a neutral third-party to tell the defendants what we’ve been saying all along.  If they want to see the light and listen, then an agreement may be reached.  If they do not, all that is lost is the fees for the mediator and time spent at the mediation and preparing for the mediation. 

Step 4 – Preparation for trial:  In reality, everything done after a fee agreement is signed is preparation for trial.  At some point, however, the process of preparing a Kansas City area auto accident case for trial begins to take up the majority of our staff members’ time.  This focused time is what we mean when defining this step.

This trial preparation step is usually the most complex and time consuming step in the litigation process.  Preparing for a Kansas City area wrongful death or personal injury jury trial consumes hundreds or thousands of hours of attorney time and will almost always involve a number of issues.

The preparation for a jury trial is different for each case, but will always stretch for many months and includes the attorneys exchanging their witness and exhibit lists, replying to court requests for information, preparing arguments and witnesses, and a untold number of other actions. 

Step 5 – Trial: A personal injury or wrongful death jury trial will usually take 3-10 days and involves having witnesses such as experts, doctors, or eyewitnesses testify at the trial, cross examining the defendant’s witnesses, and making arguments in front of the jury.

We begin by making pre-trial arguments before the Court.  This step involves the attorneys attempting to define the issues and evidence that may be presented.  As such, it can often be the most important step in a case

Next we pick a jury in a process called voir dire.  This is accomplished by bringing potential jurors up before the Court in groups and asking them questions to learn their views and potential biases.  The actual process varies from court to court and from judge to judge.  For instance, in Federal Court, the judges often do most of the jury questioning themselves.  In Jackson County Court and Johnson County District Court, the attorneys can usually have much more involvement in shaping the jury. This process is also extremely important because different jurors can look at the same evidence and reach different or opposite conclusions.  You want the jurors who will see things your way.

After the jury is picked, the attorneys will make opening statements.  These statements foreshadow what the lawyers plan on presenting at trial.  The opening statement is crucial in a Kansas City personal injury case as it can establish a theme and bring the jurors up to speed regarding the important issues in your case. 

After opening statements, we present evidence first, in what is called the “plaintiff’s case-in-chief.”  This is done by presenting witnesses and asking them questions in what is called a “direct examination.”  The order of witnesses and the questions asked are crucial in properly developing a case, establishing the defendant(s)’ liability, and demonstrating your injuries/damages.   After each witness has been examined, the defense attorneys will have a chance to cross-examine them. 

Once the Plaintiff’s case-in-chief has concluded, the defendants will get to put on their case-in-chief.  Their case will develop much as the plaintiff’s, with the defendants putting on witnesses.  We then get to cross examine the witnesses and expose the weaknesses in their testimony.

After the defendant’s case-in-chief has concluded, closing arguments are made.  These arguments tie everything together and give us our last chance to tell the jury about the case.  While a Kansas City personal injury case is seldom won or lost in closing arguments, they can have a tremendous effect on the damages awarded.

Step 6 – Finalizing a judgment or settlement:  If a settlement is reached or a jury returns a verdict for the plaintiff, the case can be finalized.  This process can be quick and simple or complex, depending on the case.

One important part of this step involves us negotiating with any creditor claiming that our client oWe them money.  This usually involves a “lien” where a medical treatment provider such as hospital is owed money for treatment.  The law allows them to file a “lien” on the proceeds of the case which means that their lien will be deducted from the settlement or judgment proceeds. 

We negotiate with these providers with the same seriousness and effort that we negotiate with defendants.   While we cannot guarantee the reduction of a lien, we have had success reducing liens by 1/3, 1/2, or even 85%!  These reductions represent more money in our client’s pockets and we are happy to take these negotiations so seriously.

Contact us today to learn more about our auto accident representation:

To speak to a Kansas City personal injury attorney, call us today at (913)764-5010 or email us at info@kcatty.com.  Most calls are returned on the same day with all inquiries being returned within 24 hours.

 

Additional information about Missouri Automobile Liability Law

Automobile torts are one of the most common sources of tort claims. Uninsured motorist (UM) and underinsured motorist (UIM) claims make up a substantial section of automobile torts. Because the issues involved in those types of claims are immense and unique to those claims, they are addressed in a separate section UM/UIM of this website and will only briefly be mentioned here.

Statute of Limitations. Since the vast majority of automobile liability claims are based in negligence they are governed by the five year statute of limitations. RSMo § 516.120. The statute begins to run and the action is deemed to have accrued when the resulting damage is sustained and capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained. RSMo § 516.100.

Elements of Cause of Action. For automobile liability cases sounding in negligence, there are four elements:

a) The existence of a duty on the part of defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury.

b) Breach of that duty by defendant.

c) That the breach of duty by the defendant was an actual and proximate cause of plaintiff's injury

d) Damage to the plaintiff's person or property

Missouri Motor Vehicle Financial Responsibility Law Missouri Revised Statute Chapter 303 is known as the Motor Vehicle Financial Responsibility Law (MVFRL). The MVFRL requires the owner of a vehicle to provide minimum liability insurance on his vehicle and requires that insurance policies sold in Missouri be written to provide the minimum liability coverage. The new law, in contrast to the old, requires the owner of a motor vehicle to maintain "financial responsibility" without regard to driving history. The MVFRL precludes the owner of a motor vehicle from operating the vehicle unless the owner maintains financial responsibility as required by law. RSMo § 303.025. The statute further requires that the owner maintain a liability insurance policy which covers him while operating non-owned vehicles. The owner of a motor vehicle is strictly liable for compliance with the MVFRL which mandates suspension of the owner's driver's license and vehicle registration for noncompliance with the statute.

A liability policy may not be cancelled or annulled after injury or damage. RSMo § 303.190.6(1). In other words, the liability coverage becomes absolute at the time the injury and damage occurs. Once the injury occurs, no statement made by the insured, or on his behalf, or any violation on behalf of the insured for the policy shall defeat or void liability coverage. The satisfaction of a judgment by the insured for injury or damages shall not be a condition precedent to the insured's duty to make payment on account of injury or damage. RSMo § 303.190.6(2).

The MVFRL provides that a "motor vehicle liability policy" must provide protection from liability in specified amounts for "bodily injury or death" and "injury or destruction of property of others. Additionally, Missouri requires insurance policies to provide liability coverage for the insured when he or she is driving their own motor vehicle or that of another person. RSMo § 303.025.

The purpose of the MVFRL is to protect the public from injury or damage by the operation of motor vehicles upon the public highways, and to that extent, it is remedial in nature. Its purpose is to ensure that persons injured on Missouri highways may collect at least minimal damage awards against negligent motor vehicle operators. Therefore, the courts will construe motor vehicle financial responsibility laws liberally.

Furthermore, an insurance contract which violates public policy as expressed in the MVFRL is unenforceable and will be construed to provide the minimum coverage required by the MVFRL. The minimum coverage required by the MVFRL becomes a part of the insurance contracts to which it applies, as fully as if such provisions were written into the policies.

Definitions under the MVFRL:

A motor vehicle: Defined as a self-propelled vehicle, designed for use on the highway. RSMo § 303.020 (5). (Missouri Courts have held that a boat is not a motor vehicle and therefore the MVFRL does not apply to watercraft.)

An operator: Defined as a person who is in actual physical control of the vehicle. RSMo § 303.020(8). A defendant seated in the right front seat of an automobile parked with the engine running qualifies.

An owner: Defined as a person who holds legal title to a motor vehicle. RSMo § 303.020(9).

A motor vehicle policy: is defined as an owner's or operator's policy of liability insurance. RSMo § 303.190.

Exceptions to MVFRL:

Intentional Acts: Missouri courts have approved the intentional acts exclusion in regards to mandatory insurance coverage.

Named Excluded Drivers: Missouri courts have not definitively answered whether they will allow insurers to specifically exclude certain members of households which are insured from total coverage, through a signed, named excluded driver provision. They have allowed and enforced named driver exclusions for any amounts above and beyond the statutory minimum coverage, but there is not a recent decision regarding a total exclusion from coverage. Another aspect to consider, in these cases, is whether the excluded driver was a permissive user of the vehicle. If not, there is another defense available, against extending coverage.

Family members/ relatives: These are termed "household exclusion clauses" and generally attempt to prevent the payment of any liability insurance payments to family members or others living in the insured's household. This exclusion has generally been found to be contrary to public policy of the state of Missouri to the extent of minimum statutory required coverage. Thus, payment of the statutory minimum must be paid to any injured party regardless of their relation to the insured. However, a household exclusion clause is enforceable for any amount above and beyond the statutory minimum coverage amount. Under Missouri law, a driver who is not related to the insured and does not live in the insured's household is not covered under a policy defining the insured person as "you or a relative."

Employees of the insured: Missouri has upheld the employee exclusion to prevent coverage to an employee killed while operating a vehicle in the course of employment, indicating that such an exclusion did not violate the MVFRL.

Bodily Injury Liability: Most automobile liability insurance policies define "bodily injury" to include bodily harm, sickness or disease, including death resulting from a motor vehicle accident. However, Missouri has held that recovery for negligent infliction for emotional distress can occur without physical impact to the person or between the vehicles when the defendant should have realized that his or her conduct involved an unreasonable risk of causing distress (forseeability) and the emotional distress for mental injury is medically diagnosable and of sufficient severity to be medically significant.

Insurability of Punitive Damages: Punitive damages are not considered compensatory, but are imposed to punish the wrongdoer for engaging in malicious or reckless behavior and to deter him from engaging in the same type of conduct again. There are two prerequisites to an award for punitive damages.

The plaintiff must recover actual or compensatory damages and the plaintiff must make a showing of malicious behavior on behalf of the defendant.

"Use" of a motor vehicle: Liability coverage applies such that liability is imposed upon the insured arising out of the "use" of the owed automobile or any non-owed automobile. The courts have recognized the term "use" in an omnibus clause imports more than the act of driving in or riding in an automobile. Many decisions have recognized "use" as going beyond the narrow meaning of the direct mechanical operation performed by the driver and as encompassing the broader concept of employing or putting the vehicle into one's service by an act which assumes at anytime-with the consent of the owner or his agent-the supervisory control or guidance of its movements.

Uninsured and Underinsured Motorist Coverage: The Missouri Legislature requires that insurance carriers provide uninsured motorist (UM) coverage in every policy of motor vehicle insurance issued in the state. RSMo § 379.203. Missouri has no statute that defines or requires the issuance of underinsured motorist (UIM) coverage. Underinsured motorist coverage is contractual. Absent contrary public policy, the parties to contract are free to condition their undertaking as they choose, even to the forfeiture of benefits.

Automobile Insurance and Stacking:"Stacking" refers to an insured's ability to obtain multiple insurance coverage benefits for an injury either from more than one policy, as where the insured has two or more separate vehicles under separate policies, or from multiple coverages provided for within a single policy, as when an insured has one policy which covers more than one vehicle. Liability insurance cannot be stacked.

Guest Passengers: Many states have statutes referred to as "automobile guest statutes" which provide that operators of automobiles shall only be liable for injuries to guests that occur as a result of gross of willful negligence. However, Missouri does not have an automobile guest statute and therefore, the operator will be held to an ordinary negligence standard. However, Missouri law does allow for comparative fault of a passenger who remains in a vehicle with a known intoxicated driver.

Defenses:

Comparative Fault. "Pure comparative fault" applies in ordinary negligence cases. Pure comparative fault allows the plaintiff's recovery for damages to be reduced by the percentage of fault assigned to him by the jury. However, the plaintiff will recover damages even if his negligence is greater than the defendant's fault.

Last Clear Chance, Sudden Emergency and Humanitarian Doctrines. These are no longer a complete defense to a negligence claim but can be considered when comparing the plaintiff's fault.

Unavoidable Accident. Missouri courts allow a defendant to prove he was not negligent because the accident was unavoidable, however, no unavoidable accident instruction shall be given to the jury.

Seat Belt Defense. In any action to recover damages arising out of the use or ownership of a motor vehicle, the failure to wear a safety belt shall not be considered evidence of comparative fault. RSMo § 307.178.4. Failure to wear a safety belt can be admitted to mitigate damages, but may only be admitted to reduce the plaintiff's recovery by an amount equal to or less than one percent after any reductions for comparative negligence. Expert testimony must be offered to show that a failure to wear the belt contributed to the injuries.

Mechanical Defects of a Vehicle. The owner of an automobile has the duty to see to it that an automobile was not so defective that its operation would endanger property and persons. If he or she breaches that duty, he or she is negligent.

Sudden Physical Illness. A momemtary or permanent loss of consciousness while driving is a complete defense to an action based on negligence if the loss of consciousness is not foreseeable.

Intoxication. Violation of a statute forbidding any person to operate a motor vehicle while in an intoxicated state constitutes negligence. If a plaintiff, as a passenger, knowingly rides with an intoxicated river and is later injured by the driver's operation of that vehicle, the plaintiff can be charged with comparative fault for negligently remaining in the vehicle after discovering the driver was intoxicated.

Negligent Entrustment: The theory of negligent entrustment is recognized under Missouri Law. An owner of an automobile may be liable for negligent entrustment if he, knowingly or having the means of knowledge, turns his car over to a driver who is incompetent by reasons of age, inexperience, habitual recklessness, or otherwise. The essential elements of a negligent entrustment action are: 1. That the entrustee is incompetent by reason of age, inexperience, habitual recklessness or otherwise. 2. That the entrustor knew or had reason to know of the entrusteee's incompetence. 3. That there was entrustment of the chattel and 4. That the negligence of the entrustor concurred with the conduct of the entrustee as a proximate cause of the harm to plaintiff.

Permissive Users: Automobile liability insurance policies shall insure any person with express or implied permission to operate the vehicle. RSMo § 303.190(2). Whenever a policy uses the term "named insured" only by the party to the contract named in the declarations is meant. When the term "insured" is used, the intent is to include others besides the person on the declarations page. Under most policies a driver who is not a "named insured" can become an "insured" under the policy if he has permission to operate the vehicle and does not exceed the scope of his permission. Missouri courts have required the minimum coverage under the MVFRL, to be extended when a permissive user is operating a vehicle involved in an accident.

It is not necessary that the named insured personally grant permission, but the permission bust emanate from the named insured or someone having authority to bind the named insured. Permission can be either express or implied. Implied permission may be demonstrated by common practice or by the owner's course of conduct demonstrating acquiescence of the use of his vehicle.

Missouri courts will deny coverage for a permissive user who deviates from the express permission so long as the deviation from permission is greater than a "minor deviation." This is known as the "minor deviation rule" and must be determined by the facts and circumstances of each particular case. Under the minor deviation rule, where a deviation from intended use is only a minor one and not a gross, substantial, or major violation, the deviation will be considered immaterial, and coverage will be afforded under the omnibus clause.

Rules of the Road:

--Speed. Violation of posted speed limits may be the basis for liability, but compliance with speed limits does not always limit liability. The circumstances of the case may make a particular speed excessive, despite the fact that is may have been within a posted speed limit. The then existing conditions, such as physical conditions (weather, road, traffic, etc.) as well as the posted speed limit, are relevant to determine whether speed is excessive. There is longstanding precedent under which the mechanical condition of a vehicle may be considered among those circumstances and conditions.

--Lookout. Drivers are required to keep a lookout. This duty extends both ahead and laterally. Every motorist operating a vehicle must exercise the highest duty of care to maintain a careful lookout ahead and laterally upon entering an intersection. Additionally, in some cases, drivers are assigned a duty to maintain a careful lookout behind them but those specific situations have not been defined. However, drivers are required to look and also to see what looking would have revealed.

A motorist who is following another vehicle must use the highest degree of care to keep a proper lookout for other vehicles and traffic, to avoid following the vehicle ahead too closely, and to have his or her vehicle under such control as to be able to stop or take other appropriate measures to avoid running into the vehicle ahead if it should suddenly slow or stop. However, the law does not require the impossible not hold one guilty of contributory negligence because of his or her inability to see through impenetrable objects such as another vehicle, a hill or building, or bend his or her vision around them.

Generally, it is impossible for a party to produce direct evidence that the other party was not looking. Thus, proof can be made circumstantially. In order to warrant or justify the submission of the failure to keep a proper lookout, it must be shown by one party that the other could have seen the danger of collision in time to have taken evasive action. There must be substantial evidence also that the party had the means and ability to avoid a collision not only by mechanical appliances but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles to take effective action in avoidance.

--Right of Way. There are no absolute and unqualified rights of way. The right to enter an intersection depends on many circumstances and is governed by the facts of each case.

Duty to Defend: An insurance company has a duty to defend an insured when the insured is exposed to potential liability to pay based on the facts known at the outset of the case, no matter how unlikely it is that the insured will be found liable and whether or not the insured is ultimately found liable. To extricate itself from a duty to defend the insured, the insurance company must prove that there is no possibility of coverage. The duty to defend is broader than the duty to provide coverage. If coverage defenses exist an insurer may issue a reservation of rights. However, an insurer's decision to defend only under a reservation of rights is a risky one. In part this stems from the fact that insurers cannot force insureds to accept a reservation of rights defense.

 

537.080. Action for wrongful death--who may sue--limitation

1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:

(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;

(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;

(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.

2. Only one action may be brought under this section against any one defendant for the death of any one person.

537.090. Damages to be determined by jury--factors to be considered

In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss.

In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable.

537.010. Action for damages to property to survive regardless of death of either party

Actions for wrongs done to property or interests therein may be brought against the wrongdoer by the person whose property or interest therein is injured. If the person whose property or interest therein is injured is dead, the action survives and may be brought against the wrongdoer by the person appointed as fiduciary for the estate of the deceased person. If the wrongdoer is dead, the action also survives and may be brought and maintained in the manner set forth in section 537.021. Such actions shall be brought and maintained in the same manner and with like effect in all respects as actions founded upon contracts.

537.020. Action for personal injury or death to survive regardless of death of either party

1. Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred. Causes of action for death shall not abate by reason of the death of any party to any such cause of action, but shall survive to the personal representative of such party bringing such cause of action and against the person, receiver or corporation liable for such death and his or its legal representatives.

2. The right of action for death or the right of action for personal injury that does not result in the death shall be sufficient to authorize and to require the appointment of a personal representative by the probate division of the circuit court upon the written application therefor by one or more of the beneficiaries of the deceased. The existence of the right of action for death or personal injury that does not result in death shall be sufficient to authorize and to require the appointment of a personal representative for the person liable for such death or injury by the court having probate jurisdiction upon his death upon the written application of any person interested in such right of action for death or injury.

537.030. Section 537.010 not to extend to what action

Sections 537.010 and 537.020 shall not extend to actions for slander, libel, assault and battery or false imprisonment.

 

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