By Jeffrey R. Schmitt
Authored by Jeffrey R. Schmitt, with assistance from Haley E. Gassel, contributor
Business interruption coverage is like most insurance for small businesses – we pay for it with the hope we never need it. The coverage is intended to protect against revenue lost after a business experiences a covered peril or event which results in a temporary closure. Often this involves a casualty event like a fire or flood, or the inability to operate due to loss of utilities or information systems.
However, businesses across the country have filed claims with their insurers seeking business interruption coverage for COVID-related losses. This is a theory that, fortunately, most businesses have never had to claim in the past. Some claims have found their way to the courts for determination. The issue often boils down to whether there is physical loss or damage to the policyholder’s business location to trigger business interruption coverage. Some policies include coverage for communicable diseases as well.
While most business interruption coverage lawsuits have not concluded, some recent decisions by federal courts in Missouri have been favorable for businesses seeking coverage. This is due in part to ambiguities in the policies and the lack of prior court decisions involving business interruption claims based on a pandemic. In many ways, these are uncharted waters for the litigants and the courts. Continue reading »
08/23/21 3:11 PM
Business Law, COVID-19, Insurance, Restaurants & Entertainment | Comments Off on Does Business Interruption Insurance Cover COVID-19 Losses? |
Permalink
Does Business Interruption Insurance Cover COVID-19 Losses?
By Litigation Practice Group
A change in the statute of limitations on actions for personal injury is working its way through the Missouri Senate. Senate Bill 3 (SB 3), introduced by Senator Dan Hegeman, was approved by the Senate Judiciary Committee and is waiting full consideration of the Senate. SB 3 states that any personal injury actions have a statute of limitation of two years from the time of injury.
The current law in Missouri says that actions for personal injury must be brought within five years of the injury occurring. If passed, the change in the statute of limitations applies only to causes of action for personal injury that accrue on or after August 28, 2021. Continue reading »
07/26/21 7:44 AM
Business Law, Litigation | Comments Off on Is a Two-Year Statute of Limitations on Personal Injury Claims Coming Soon to Missouri? |
Permalink
Is a Two-Year Statute of Limitations on Personal Injury Claims Coming Soon to Missouri?
By Katherine M. Flett
Authored by Katherine M. Flett with assistance from Haley E. Gassel, contributor
The Missouri House is considering a bill that would modify the determination of when evidence of collateral source payments in civil actions is admissible. Sponsored by Representative Alex Riley, Missouri House Bill 577 (HB 577) seeks to amend the Missouri Collateral Source Rule 9 (Section 490.715, RSMo.) and clarifies that the rule applies only to parties named in the plaintiff’s case. Approved by the House Committee and placed back on the formal perfection calendar in May, the bill is waiting to be placed on the House Formal Calendar for floor debate.
Proposed Changes to the Missouri Collateral Source Rule
HB 577 states that “in any action wherein a plaintiff seeks to recover for personal injury, bodily injury, or death, any party may introduce evidence of the actual cost of the medical care or treatment rendered to a plaintiff, or to the person for whose injury or death plaintiff seeks to recover.” It goes on to explain that “actual cost of the medical care or treatment shall be reasonable, necessary, and a proximate result of the negligence or fault of any party.”
The exception to this rule is Subsection 2. Under the bill, any part or all of a plaintiff’s special damages paid for by the defendant, the insurer, and/or authorized representative, (or any combination of these) are not recoverable from the defendant in the plaintiff’s claims for special damages.
Another change to the rule involves which amounts billed can be submitted as evidence. Evidence of any amount billed for medical care or treatment that has been “discounted, written off, or satisfied by payment of an amount less than the amount billed” may be not be admitted. However, the actual cost of medical care or treatment provided and any contracted discounts, price reductions or write offs may be admitted as “evidence relevant to the potential cost of future treatment.”
Potential Effects of Changes to the Missouri Collateral Source Rule Continue reading »
07/22/21 10:35 AM
Litigation | Comments Off on Potential Changes to the Collateral Source Rule in Missouri |
Permalink
Potential Changes to the Collateral Source Rule in Missouri
By Litigation Practice Group
Changes have been made to punitive damages claims in civil actions filed in Missouri on or after August 28, 2020.
Under the revisions, Missouri Revised Statute Section 510.261 now prohibits parties from making a claim for punitive damages in their initial pleading in a civil action. Any claimant who wishes to add a punitive damages claim to a civil action must file a written motion to amend 120 days prior to the pretrial conference, or, if no conference is scheduled, 120 days prior to trial, seeking leave to bring a claim for punitive damages. The claimant seeking leave must provide exhibits, affidavits, and discovery materials establishing a reasonable basis for the recovery of punitive damages. Any party opposing leave may submit admissible evidence to demonstrate that the standards for a punitive damage award have not been met. The court may grant leave to add the punitive damages claim if it determines that a judge or jury could reasonably conclude, based on clear and convincing evidence, that the standards for a punitive damage award have been met. This statute has the effect of preventing meritless claims being made in litigation as well as saving both the time and money of the parties involved.
Substantive Changes and Clarifications
After clearing the hurdle of obtaining leave to bring a punitive damages claim, a claimant must satisfy the statute’s requirements to receive an award of punitive damages. To do so, RSMo 510.261(1) requires the claimant to prove by clear and convincing evidence that the defendant “intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The revised statute does three things:
- Codifies the original common law regarding punitive damages. In Klingman v. Holmes, 54 Mo. 304, 308 (1873), the first Missouri Supreme Court case allowing an award of punitive damages, the Court held that exemplary damages are only appropriate where an evil intent has manifested itself in acts. The court reasoned that under common law there must have been intent, or positive proof of malice, to justify granting punitive damages.
- Clarifies the requisite mental state of the defendant, to intentionally harm without cause or with a deliberate and flagrant disregard for the safety of others. This gives the judge or fact finder a clear standard for determining whether the claimant is entitled to punitive damages.
- Codifies the “clear and convincing” burden of proof standard. The Missouri Supreme Court has previously adopted this standard, but it had yet to be codified.[1],[2] The clear and convincing burden of proof standard falls within the middle ground of the ordinary civil burden of proof standard, preponderance of the evidence, and the criminal law standard, beyond a reasonable doubt.
Nominal Damages Continue reading »
07/21/21 3:17 PM
Business Law, Emerging Business, Health Care, Litigation, Manufacturing and Distribution, Restaurants & Entertainment, Trucking & Transportation | Comments Off on Revisions to Punitive Damages in Missouri |
Permalink
Revisions to Punitive Damages in Missouri
By Katherine M. Flett
Missouri joined the rest of the country in enacting a sales tax on online purchases, commonly known as a “Wayfair tax,” when Governor Parsons signed Senate Bill 153 into law. The governor identified the Wayfair tax as a priority in his 2021 State of the State Address. The Wayfair tax will begin in Missouri on January 1, 2023.
Previously, Missouri businesses who made online sales to Missouri customers were required to charge sales and use tax, while companies without a physical presence in Missouri who made online sales to Missouri customers were not. The new law allows Missouri to impose a sales tax on online purchases made through vendors such as Etsy, eBay, and Wayfair, that are delivered to the state.
The Wayfair tax is intended to even out the playing field for local businesses to compete with online companies. It is also expected to raise up to $41 million for public schools, $5 million for the Missouri Department of Conservation, and $4.5 million for state parks and soil conservation. Continue reading »
07/20/21 3:02 PM
Business Law, Emerging Business, Tax | Comments Off on Missouri Joined the Rest of the Country in Enacting “Wayfair Tax” |
Permalink
Missouri Joined the Rest of the Country in Enacting “Wayfair Tax”
By Brian Weinstock
On June 24, 2021, the Centers for Disease Control (CDC) extended its eviction moratorium order which was set to expire on June 30, 2021. According to CDC Director Dr. Rochelle Walensky, the eviction moratorium will now expire July 31, 2021 and is intended to be the final extension.
Just a few days later, the U.S. Supreme Court denied a request by a group of landlords to allow a federal judge’s decision to block the eviction moratorium to go into effect nationwide while litigation disputes continued to vacate a stay order from Federal Judge Dabney Friedrich that declared the CDC moratorium unlawful (see “Federal Judge Dabney Friedrich Vacates CDC Nationwide Eviction Moratorium”). Washington-based U.S. District Court Judge Dabney Friedrich ruled in favor of the landlords in May 2021 but put her ruling on hold pending the government’s appeal in the case. The landlords appealed to the Supreme Court after a lower appellate court rejected their request to unfreeze Judge Friedrich’s ruling. The landlord groups, led by the Alabama Association of Realtors, sued to challenge the moratorium, arguing that the CDC exceeded its authority under a federal law called the Public Health Service Act. They wrote in court papers: “Congress never gave the CDC the staggering amount of power it now claims.” The groups said an eviction ban is no longer needed for public health reasons in light of declining COVID-19 cases and deaths. They also cited the CDC’s May 13, 2021 announcement that vaccinated people no longer need to wear masks or practice social distancing indoors. Continue reading »
07/6/21 9:13 AM
Business Law, COVID-19, Emerging Business, Litigation, Manufacturing and Distribution, Real Estate | Comments Off on Eviction/Foreclosure Moratorium Changes and the Consumer Financial Protection Bureau’s Final Rule on Foreclosure |
Permalink
Eviction/Foreclosure Moratorium Changes and the Consumer Financial Protection Bureau’s Final Rule on Foreclosure
By Michael J. McKitrick
Many post-pandemic signals indicate that Merger and Acquisition (M&A) activity has increased and is expected to continue to increase. Listings for sales of existing businesses surged in 2021, according to Rob Schmitt, a business broker at the St. Louis Group. Reasons for this increase include: (1) post-pandemic stability; (2) low interest rates; (3) low capital gain rates; (4) access to government benefits like the PPP program; (4), retiring baby boomers; (5) robust stock values; and (6) the presence of capital on the sidelines waiting to be put to use.
Conditions are favorable for willing sellers and buyers in the M&A arena. Some businesses, including retail and hospitality, have not yet recovered from the pandemic. While some may not consider these to be good subjects for M&A activity, their valuations are low and may present attractive opportunities. There are also sellers who have experienced both the 2008-2009 financial crisis and COVID-19 and have decided that they will not wait any longer to exit. On the other hand, many companies look to expand operations in this favorable environment.
The process typically begins by contacting a M&A specialist, investment banker, business broker or similar advisor to determine how to position your business for sale, or, if you are a buyer, what acquisition candidates exist. After the initial match, Continue reading »
06/23/21 2:57 PM
Banking and Finance, Business Law, COVID-19, Emerging Business, Manufacturing and Distribution, Real Estate | Comments Off on Mergers and Acquisition Activity: A Post Pandemic Surge? |
Permalink
Mergers and Acquisition Activity: A Post Pandemic Surge?
By Employment Law Practice Group
The American Rescue Plan of 2021 (ARP) is now providing a tax credit for paid sick or family leave related to COVID-19 and the COVID-19 vaccinations. Employers can claim tax credits for the wages paid to employees for paid leave due to issues arising from COVID-19, including leave taken to receive or recover from COVID-19 vaccinations, from April 1-September 30, 2021.
To be eligible, your business must have fewer than 500 employees. Tax-exempt organizations qualify as well as governmental employers, other than the federal government and any agency or instrumentality of the federal government that is not an organization described in section 501(c)(1) of the Internal Revenue Code. Additionally, self-employed individuals are entitled to similar tax credits.
Under ARP, employers may claim tax credits to cover the following: Continue reading »
06/16/21 8:59 AM
Business Law, COVID-19, Emerging Business, Manufacturing and Distribution, Restaurants & Entertainment | Comments Off on COVID-19 Paid Sick and Family Leave Tax Credits Now Available |
Permalink
COVID-19 Paid Sick and Family Leave Tax Credits Now Available