Follow up: Missouri Supreme Court finds no equal protection problem in state law that allowed counties to contribute lower retirement fund contributions for full time attorneys hired before August 28 2001 than those hired after that date. Missouri Prosecuting Attorneys and Circuit Attorneys Retirement System, an Agency of the State of Missouri, Respondent, v. Pemiscot County, et al., Appellants.: SC88956 The court of appeals affirmed the trial court's construction of the relevant statutes, but reversed and remanded (sent back) the case because the trial court did not rule on the retirement system's claim that the statutory scheme for prosecutors' retirement compensation in chapter 56 violated the equal protection clauses of the federal and state constitutions. On remand, the trial court reversed its earlier judgment, ruling that the disparity in retirement compensation for prosecutors who became full-time before August 28, 2001, and those who became full-time after that date violated equal protection. Specifically, the trial court declared subsection 3 of section 56.363 to be unconstitutional and ordered it stricken from the rest of the section. The county appeals. REVERSED. Court en banc holds: Because there is a rational basis for the disparity in compensation for prosecutors in third-class counties who became full-time before August 28, 2001, and those who became full-time after that date, there is no equal protection violation, and the trial court erred in holding there was. Because the retirement system makes no claim that the classifications set forth in chapter 56 impact a suspect class or that they impinge on a fundamental right, the statute will withstand constitutional challenge if it bears some rational relationship to a legitimate state purpose. Amendments to section 56.807 show a rational basis for the disparity. In 2001, the monthly contribution for a third-class county with a full-time prosecutor increased from $375 to $1,290.67, but only for those counties that elected to make their prosecutor full-time after the amendment's August 28, 2001, effective date, reflecting the legislature's intent to impose on the counties no greater obligation to the retirement fund than that which existed when the voters approved a prosecutor's full-time status. In addition, a 2003 amendment to section 56.807 reduced the amount of a county's month contribution to $187 for prosecutors who became full-time before August 28, 2001, and to $646 for those who became full-time after that date, allowing county commissions to elect to pay a full-time retirement benefit even for prosecutors who became full-time before August 28, 2001. Whatever changes come in statutory retirement compensation for full-time prosecutors in third-class counties, there still is a rational basis for the disparity, as voters in counties that approved the full-time status before August 28, 2001, did so when the retirement compensation was a fixed amount and without knowledge of subsequent changes in the compensation amounts.

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Missouri Supreme Court halts plan to require retired St Louis poliice officers to pay increased health insurance premiums. St. Louis Police Officers' Association, et al., Appellants, v. Board of Police Commissioners of the City of St. Louis, et al., Respondents.
Case Number: SC88954 Handdown Date: 06/30/2008 Appeal From: Circuit Court of the City of St. Louis, Hon. Julian L. Bush
Prior to 2006, retired police officers who served in the City of St. Louis Police Department received health coverage without having to pay an insurance premium. In 2006, the Board altered the health insurance plan for retired officers. The new health insurance plan included a basic plan available without payment of a premium and a buy-up plan, which has a $251 monthly premium. The basic plan differed from the former plan by raising annual deductibles from $500 to $2,250, increasing co-payments for office and hospital visits, increasing the coinsurance maximum, and decreasing the coinsurance coverage percentage. The buy-up plan offers retirees the same more extensive coverage as provided to active police officers. The difference between the buy-up plan and the plan for active officers is that active police officers do not pay premiums. The Association filed a petition seeking to enjoin the Board from implementing the new health insurance plan. The Association alleged that the new insurance plan was inconsistent with section 84.160.8(3), RSMo Supp. 2006, which provides that the Board "shall provide" health insurance to police retirees. The Association also alleged that implementation of the Board's new free insurance plan would unreasonably, arbitrarily, and capriciously deprive police retirees of a vested property right without due process of law in violation of the United States Constitution and the Missouri Constitution and their civil rights under 42 U.S.C. section 1983. The circuit court issued a preliminary injunction in favor of the Association. At trial, there was expert testimony indicating that the insurance provided to retirees without the payment of a premium offered less coverage at a higher cost than any other group health insurance plan with which the experts were familiar. Following a bench trial, the court entered a judgment denying the Association's request for a permanent injunction. This Court concludes that the new policy does not meet the requirements of section 84.160.8(3). Consequently, the judgment is reversed, and the case is remanded so that the trial court may grant the requested relief.

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Does the St Louis City Circuit Court have too many judges? No because criminal defendants like their chances with City juries. St Louis Today.com. House Judiciary Committee Chairman Bryan Stevenson, R-Webb City, introduced legislation that would have reduced the City Circuit's judges by 25%. The Missouri Supreme Court commissioned the National Center for State Courts to determine the City Circuit judges' workload and found them overstaffed. But they didnt figure the jury trial rate is much higher in the City! the Post notes So thank you jurors for encouraging more defendants to exercise their rights to a jury trial. "Defendants charged with felonies in St. Louis, knowing that city juries often are sympathetic to defendants, are far more likely to demand jury trials than defendants in other circuits, as is their constitutional right. But jury trials take far more time than bench trials (in which judges render decisions on their own) or cases disposed of through plea bargains. It's disappointing that a respected organization such as National Center for State Courts would overlook this basic fact. As the Bar Association of Metropolitan St. Louis pointed out, "The survey assumes that 1 percent of felony criminal cases will be tried. While this may be true statewide, in (St. Louis) more than 2 percent of the felony cases are tried. If this adjustment is made, the survey would allocate an additional 2. 5 judges to the [St. Louis] Circuit."
Often out-state judges receive assignments to handle cases in the City and find it is a waste of time when the work day is so short. Also civil case loads have dropped since 2005 tort legislation cut the number of cases filed in the City of St Louis Circuit court
Bill would add one judge in K.C., cut six in St. Louis

"Stevenson said the studies and other judges have indicated St. Louis has more than it needs and must make better use of its time and staff. He said judges from elsewhere in Missouri have complained to him that they get assigned to handle cases in St. Louis and arrive to find the workday starts late, ends early and includes a long lunch. "They think it's ridiculous that they're getting transferred halfway across the state to fill in and work half a day," he said. "The judges are telling me there's a reason we have the criminal backlog in St. Louis city. They have to change the way they do business." But the St. Louis Circuit Court previously has taken issue with the national group's study, with judges saying the averages used don't translate well in the city court. A key concern is that the city circuit handles far more jury trials, both civil and criminal, than other courts around Missouri, and every case that reaches trial delays others waiting in line. "We don't feel we are overstaffed," Presiding Judge Thomas Grady said last fall after the study was released. "But, on the other hand, we are certainly willing to be as flexible [as], if not more flexible than, some other jurisdictions in the state of Missouri who have judges with considerably less workload than we have." Grady did not return a call seeking comment by press time Tuesday. Stevenson said another reason the St. Louis court can absorb a reduction is civil case filings have dropped notably there since the Legislature passed laws limiting injury lawsuits in 2005, while the number of judge positions in the circuit has held steady. In fiscal 2005, which ended June 30, 2005, the St. Louis circuit had 53,179 cases filed, including 7,095 civil cases, according to state court data. In fiscal 2007, after the law changed limiting where people can file suit and how much they can collect if they win, total filings dropped to 50,500, including a reduction in civil cases to 4,305, a nearly 40 percent drop. He said that while St. Louis might feel it's in the hot seat this year, the legislation is just the start of a broader effort to move judges to where they're most needed, and other counties could be in for change down the line.

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Missouri Supreme Court Justice Stephen Limbaugh resigns July 31 to take federal district court slot. News-Leader.com Supreme Court Judge Stephen Limbaugh plans to resign July 31, after being confirmed last week to a federal judgeship in St. Louis. A spokeswoman for the Missouri Supreme Court says applications to replace Limbaugh on the state court will likely go out in the next several weeks. Nominees for Missouri's appeals courts and some trial courts are selected by special panels who forward three applicants to the governor, who then makes the pick. Critics of that system have said it's unaccountable to the public but were unable to get lawmakers this year to approve a proposed constitutional amendment overhauling it. The 56-year-old Limbaugh is a former Cape Girardeau County prosecuting attorney and circuit judge. He is a cousin of radio host Rush Limbaugh.

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Missouri Senate Bill 711 will cut property taxes on real estate near KCI Airport. KC Business Journal.

Senate Bill 711, which awaits Gov. Matt Blunt's signature, is viewed as vital to KCI Intermodal BusinessCentre. The bill modifies what's known as the state's bonus value tax.

Kansas City officials say the bonus value tax puts them at a disadvantage because Missouri is one of only three states to charge property taxes on property leased from the city.

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Missouri Court of Appeals Eastern District reverses $1 million verdict that was against the City of O'Fallon in dispute with landowner near Highway 40 who had an annexation agreement with O'Fallon for placing sewer lines on his property. When the landowner's son sold the property to National Paper he had to greatly reduce his asking price because the City had not yet put in sewer lines. Later National Paper acquired sewer service through an adjacent sanitary improvement district. Court of Appeals reverses verdict saying the former landowner had no standing to sue.

David Hemsath, the Estate of Melvin Hemsath and the Lillian Hemsath Trust, Plaintiffs/Respondents v. City of O'Fallon, Missouri, Defendant/Appellant. ED89776 05/20/2008 Circuit Court of St. Charles County, Hon. Ted House
The City of O'Fallon appeals from the judgment in favor of David Hemsath arising from an alleged breach of a sewer provision contained in a Petition for Voluntary Annexation. On appeal, the city argues the trial court erred in finding Hemsath had standing to sue the city after he sold the annexed property, holding the city breached the sewer provision after the annexation petition was approved, finding damages based solely on Hemsath's speculative valuation testimony, awarding judgment to Hemsath when he failed to state a claim under section 432.070, RSMO, and granting Hemsath's motion in limine to deny the city's filing of an amended answer. REVERSED AND REMANDED. Division Four holds: The trial court erred as a matter of law because (a) the sewer provision touches and concerns the property and therefore runs with the land and (b) the sewer provision is an appurtenant benefit tied to the ownership of the property, which passed to National Paper upon sale of the land. After Hemsath conveyed the property to National Paper, through the Deed, National Paper alone possessed the right to enforce the sewer provision. The record clearly demonstrates that, upon receiving the property from Hemsath, with "all rights and appurtenances to the same belonging," National Paper released the city from any claims arising under the sewer provision. Moreover, the substantial weight of the evidence shows the city did not breach or repudiate the sewer provision. Finding Hemsath lacked standing to assert damages regarding a parcel of land he had already sold to a third party, we reverse and remand the trial court's judgment with directions to enter judgment for the city.

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An employer could enforce a non-compete agreement in a terminated employee's contract when the employee left the company after 12 years even though the employee contended that an attachment to the contract made it good for only the first year of employment. The employer could also seek relief under the Missouri Uniform Trade Secrets Act, sections 417.450 et seq. RSMo 2000 (MUTSA)even if the parties had no trade secret agreement.
Wilson Manufacturing Company, Plaintiff/Appellant/Cross-Respondent v. Edward A. Fusco, Defendant/Respondent/Cross-Appellant. ED89661 & ED89912 05/20/2008
Circuit Court of Audrain County, Hon. Dan Dildine
Wilson Manufacturing Company appeals from a judgment in Edward Fusco's favor on Fusco's, a former employee, claims for injunctive relief for breach of a covenant not to compete contained in an employment agreement and for violation of the Missouri Uniform Trade Secrets Act. The trial court concluded that the employment agreement incorporated a document entitled "Schedule A" for all purposes, that the one-year duration of Schedule A applied to the employment agreement and that the employment agreement was no longer in effect when employee resigned 12 years after executing the employment agreement.
REVERSED AND REMANDED.
The employment agreement incorporated Schedule A only for the limited purpose of clarifying salary and other compensation. The one-year duration of Schedule A was not incorporated into the employment agreement, which was of unlimited duration. The employment agreement did not expire after one year and was in effect when Fusco resigned from employment.
2. An employer can establish a Missouri Uniform Trade Secrets Act, sections 417.450 et seq. RSMo 2000 (MUTSA) claim against an employee for misappropriation of trade secrets irrespective of whether the parties have an agreement prohibiting disclosure.

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Recent study shows IRA account holders delay taking distributions even though they have waited long enough. Free Library.com.
Americans who have money stored in Individual Retirement Accounts tend to hang on to it for use in the later years of their retirement, according to a study released in January 2008. The Investment Company Institute, a Washington, D.C.-based trade association, found that less than one-fifth of households with IRAs made withdrawals from their accounts in tax year 2006, with the typical withdrawal averaging about 6 percent of the balance. Asked about future withdrawals, seven in 10 of those surveyed said "it is unlikely they will take withdrawals prior to age 70 1/2," the study found.Sarah Holden, the ICI's senior director for retirement and investor research, noted that the rules governing IRAs, which are tax-deferred savings accounts, discourage early withdrawals.Savers who withdraw funds before age 59 1/2 are subject to a 10 percent penalty; savers older than 59 1/2 but younger than 70 1/2 may take withdrawals without penalty. But once they reach 70 1/2, the law mandates "required minimum distributions" based on IRS tables."In this survey, among those making withdrawals, the most cited reason was the required minimum distribution," Holden said.She said that other studies have found that people want to hang on to their IRA money as long as possible to preserve the tax advantages."They want to keep it in the market and have it appreciate, with the earnings accruing tax-deferred," Holden said. "They appreciate that feature of the IRA."She said older Americans also see their IRA balances as "money for emergencies."The latest ICI study found that 40 percent of all U.S. households, or 46 million, have money in IRAs with assets totaling $4.6 trillion in mid-2007.Most have traditional IRAs, which can be funded with pretax dollars, but a growing number are investing in Roth IRAs, which don't get the upfront tax break but grow tax-free forever.The study said 37.7 million households have traditional IRAs, 9.2 million have company-sponsored IRAs like SIMPLE IRAs, and 17.3 million have Roth IRAs. Households may own more than one type of IRA.The greatest growth has come from assets rolled over into IRAs from employer-sponsored accounts like 401(k)s, the study said. In tax year 2006, just 14 percent of U.S. households made contributions directly to IRAs, it said.Holden said the lower contribution levels may reflect the complexity of rules governing who is eligible for a tax deduction on IRA contributions. At the same time, employer-sponsored 401(k)s and other retirement accounts have become increasingly popular and allow higher contributions, she added.In 2007, for example, the limit on 401(k) contributions was $15,500; people 50 and over could make an additional $5,000 "catch-up" contribution. The IRA limit was $4,000 with a $1,000 catch-up provision. That rises to $5,000 this year, with a $1,000 catch-up provision.

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US Attorney for the Eastern District of Missouri nets $15 million fine from money wiring service Sigue for violations of the Bank Secrecy Act and for failing to properly monitor money-laundering. US Department of Justice.

Assistant Attorney General Alice S. Fisher of the Criminal Division, joined by U.S. Attorney Catherine Hanaway, Eastern District of Missouri, Michele Leonhart, Acting Administrator, U.S. Drug Enforcement Administration (DEA) and Eileen C. Mayer, Chief, Internal Revenue Service (IRS), Criminal Investigation, announced today that Sigue Corporation and Sigue, LLC (“Sigue”), San Fernando, California-based money service businesses, entered into a deferred prosecution agreement on charges of failing to maintain an effective anti-money laundering program and will forfeit $15 million to the U.S. government. A criminal information filed today at the U.S. District Court for the Eastern District of Missouri charges Sigue with one count of failing to maintain an effective anti-money laundering program. Sigue waived indictment, agreed to the filing of the information, and accepted responsibility for its conduct as described in a factual statement accompanying the information. The company will pay $15 million to the United States, representing funds that are subject to forfeiture as a result of the criminal charge, and has agreed to commit an additional $9.7 million to improving its anti-money laundering program. In light of Sigue’s remedial actions to date and its willingness to accept responsibility for its anti-money laundering failures, the government will recommend the dismissal of the charge in 12 months, provided the company fully implements the significant anti-money laundering and Bank Secrecy Act measures required by the agreement, and complies in all other respects with the terms of the agreement. “When companies like Sigue comply with anti-money laundering laws and employ strong oversight, they can play a pivotal role in stemming illicit money laundering activity,” said Assistant Attorney General Alice S. Fisher Criminal Division. “Unfortunately when they are not compliant the opposite is true and criminals benefit. While we are pleased that Sigue has accepted responsibility in this case, their conduct was serious and the penalty is both appropriate and necessary.” “This agreement is the result of years of tremendous work by Assistant U.S. Attorneys and agents in the Eastern District of Missouri and attorneys from the Criminal Division,” said U.S. Attorney Catherine Hanaway. The Financial Crimes Enforcement Network (FinCEN) has also assessed a $12 million civil money penalty against Sigue for violations of the Bank Secrecy Act, which will be satisfied by the $15 million forfeiture. “By failing to fulfill the requirements of anti-money laundering regulations, companies like Sigue facilitate drug traffickers and their harmful activities. The penalties exacted today are a reminder to financial institutions to be diligent in upholding their responsibilities,” said Michele Leonhart, DEA Acting Administrator. “This investigation was a success because of the hard work of individuals from DEA, IRS, DOJ, ATF, FBI, ICE, and extraordinary commitment from many state and local law enforcement agencies and the Government of Mexico.” "All financial institutions, including money transmitting businesses, must adhere to the nation's money laundering laws," said Eileen Mayer, Chief, Internal Revenue Service Criminal Investigation. "Money laundering is not a victimless crime. It impacts our nation’s financial strength and contributes to the untaxed, underground economy. Those who choose to launder proceeds obtained from unlawful activities, including proceeds from the illegal sale of narcotics, face the consequences of criminal prosecution. Money transmitting businesses should heed today's proceedings as a warning that the government is monitoring your activities." The charges filed today arose out of transactions conducted by Sigue and its authorized agents from November 2003 through March 2005. Sigue operates by and through more than 7,000 money remitter agents across the country. During this time, more than $24.7 million in suspicious transactions were conducted through registered agents of Sigue, including transactions conducted by undercover U.S. law enforcement agents using funds represented to be proceeds of drug trafficking. Sigue filed suspicious activity reports (SARS) on the obviously structured transactions, but ultimately failed to identify the broader patterns of money laundering activity and prevent the unlawful activity from continuing. Sigue failed to create systems and procedures to identify suspicious financial transactions being conducted by related senders and beneficiaries, from the same or multiple remitter agent locations on the same day, or over several days, months, and, in some cases, years. Under the Bank Secrecy Act, money service businesses are required to establish and maintain an anti-money laundering compliance program that, at a minimum, provides for: (a) internal polices, procedures and controls designed to guard against money laundering; (b) the coordination and monitoring of daily compliance with the Bank Secrecy Act; (c) an ongoing employee training program; and, (d) independent testing for compliance. The program must be commensurate with the risks posed by the location, size, nature, and volume of the financial services provided by the money service business. Additionally, the program must incorporate policies, procedures, and controls reasonably designed to assure compliance with the BSA and implementing regulations. The case was prosecuted by Trial Attorneys John W. Sellers and Thomas J. Pinder of the Criminal Division’s Asset Forfeiture and Money Laundering Section, which is headed by Chief Richard Weber. This case was investigated by the Drug Enforcement Administration and Internal Revenue Service - Criminal Investigation’s St. Louis Field Office.

Sigue Deferred Prosecution Agreement (PDF)

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On re-transfer from the Missouri Supreme Court, the Missouri Court of Appeals Eastern District reverses St Louis County Circuit Court's order that reinstated an insurance agent's license and allowed his agency's license to be renewed. Although the disciplined insurance agent and agency "won" in the circuit court, they were still the aggrieved party at the administrative level, and therefore needed to act as the appellant when the case reached the appellate courts. Judge Romines dissented.

Versatile Management Group and Demitrius Glass, Respondents v. W. Dale Finke, Director of Insurance, State of Missouri, Appellant. ED88144-01 05/06/2008
Circuit Court of St. Louis County, Hon. Gloria C. Reno

The Director of Insurance appeals the circuit court's judgment reversing its decision to discipline Demitrius Glass and Versatile Management Group, Glass's company. After two clients complained that Glass and his company mishandled their insurance-premium payments, the director refused to renew Glass's insurance producer license, which authorized Glass to sell accident and health, life and variable contracts. The director also denied Glass's application to have property and casualty added as an authorized line of insurance on his license. Glass appealed to the Administrative Hearing Commission. The commission denied Glass's applications and found cause to discipline his licenses and Versatile Management Group for failing to timely remit insurance-premium payments. The director revoked Glass's license and Versatile Management Group's business-entity producer license. The circuit court, upon review, reversed the director's decision and ordered the director to reinstate Glass's insurance producer's license, issue Glass a property and casualty insurance producer license and to reinstate Versatile Management Group's business-entity license. The director appealed to this court. This court dismissed the director's appeal for failure to comply with the briefing requirements of Rule 84.04. The director sought transfer to the Supreme Court of Missouri. By its order of August 21, 2007, the Supreme Court retransferred the cause to this court for reconsideration in light of State ex rel. Riverside Pipeline Co. v. Public Service Commission, 165 S.W.3d 152, 155 (Mo. banc 2005). First, this court must decide who has the duty to file the appellant's brief and bears the burden of proof in certain administrative cases. Secondly, this court must decide whether there is substantial and competent evidence to support the administrative decision. REVERSED AND REMANDED. Division Three holds: When an appeal is taken from a circuit court judgment reversing an administrative decision, the party aggrieved by the agency's decision has the duty to file the appellant's brief and the burden of persuasion before this court. There is substantial and competent evidence here to support the administrative decision. We hold that there is substantial and competent evidence to support the director's decision refusing to renew Glass's insurance producer license, denying Glass's request for a property and casualty insurance producer license, and ultimately disciplining Glass's insurance producer license as well as Versatile Management Group's business-entity insurance producer license. Dissenting opinion by Judge Romines: The director had an obligation to point out the error of law made by the circuit court, and the burden of persuasion before this court. There is nothing in Rule 84.05(e) that says otherwise. Thousands of cases per day are appealed to the circuit courts of this state pursuant to section 536.100, RSMo. (2000)--Rule 84.05(e) and judicial rule make this a meaningless way-stop if a circuit court judgment is ignored.

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Missouri Court of Appeals dismisses mandamus petitioner's action to compel the Missouri Human Rights Commission to pay the petitioner her attoreny fees and costs arising from employment discrimination case the Commission declined to pursue.
Gloria Painter, et al., Relator, Paul Davis, Appellant, v. Missouri Commission on Human Rights, et al., Respondents. Case Number: WD68556 05/06/2008 Circuit Court of Cole County, Hon. Richard G. Callahan
Paul Davis appeals the circuit court's order and judgment dismissing his claim for attorneys fees and litigation costs. Davis contends he was entitled to attorneys fees because the original mandamus proceeding he filed in the circuit court against the Missouri Human Rights Commission, challenging the commission's "administrative closure" of his complaint of discrimination, was an "agency proceeding or civil action arising therefrom" within the meaning of the governing statutes. AFFIRMED. Division holds: Section 536.085, RSMo, defines an "agency proceeding" to be "an adversary proceeding in a contested case pursuant to this chapter in which the state is represented by counsel . . .." "Contested case" is in turn defined in section 536.010(4), RSMo, as a proceeding "before an agency" in which rights "are required by law to be determined after hearing." The underlying administrative investigation and closure of Davis's discrimination complaint was not a "contested case," because no formal hearing was required in the course of the commission's investigation of Davis's complaint or its decision to close the file. Therefore, litigation arising from the agency's actions could not constitute an "agency proceeding or civil action arising therefrom" as required to entitle Davis to a fee award.

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Eighth Circuit Court of Appeals Bankruptcy Panel denies collection agency's claim to bankrupt pre-need burial plan provider's nearly $167k in unclaimed plan distribution funds.
076071P.pdf 05/08/2008 Omega Consulting v. R. Deryl Edwards, Sr. U.S. Court of Appeals Case No: 07-6071 U.S. Bankruptcy Court for the Western District of Missouri
[PUBLISHED] [Schermer, Author, with Chief Judge Kressel and
Mahoney, Bankruptcy Judges]
"Bankruptcy Appellate Panel - payment of unclaimed funds. Bankruptcy court did not err in denying request by Omega, as assignee, for payment of unclaimed funds from the debtor's Chapter 11 estate under sections 347(b) and 1143 of Bankruptcy Code, because Omega did not establish a right to funds or a chain of title linking Omega to debtor. Omega failed to serve notice on United States Attorney as required and failed to meet its burden by failing to present the confirmed plan. Furthermore, the plan prevented the Omega from recovering the unclaimed funds and Omega failed to prove it was an assignee of debtor."

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Missouri court of appeals western district reverses summary judgment and allows homeowners to sue Shelter Insurance Company for a greater replacement cost to rebuild their home. Douglas Dibben and Deborah Dibben, Appellants, v. Shelter Insurance Company, Respondent: WD68269
"Douglas and Deborah Dibben appeal the circuit court's summary judgment for Shelter Insurance Company in the Dibbens' lawsuit for breach of contract. The Dibbens sued Shelter for breaching its homeowners' insurance policy issued during 2000. The Dibbens argued that when fire destroyed their house during June 2001, Shelter wrongfully insisted on paying only $164,100, the amount of insurance set out on the policy's declaration page, instead of paying $205,000, the claimed amount of the house's replacement cost. The Dibbens sued for $40,900, the difference between the house's claimed replacement cost and the amount that Shelter paid. Shelter moved for partial summary judgment, which the circuit court granted.

REVERSED.

Division holds: The insurance contract did not define "amount of insurance" or "limit of liability." The failure to define these terms renders section 2 and section 4 of the policy inherently inconsistent. Construing the insurance contract against Shelter, we hold that, under section 2, the Dibbens were entitled to full replacement cost and section 4 (i) limited Shelter's obligation to the amount calculated in section 2 and not to the limits on the declaration page. The circuit court, therefore, erred in entering summary judgment for Shelter. We reverse the circuit court's judgment and remand for it to enter judgment for the Dibbens.

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Missouri court of appeals southern district affirms judgment for Newton County hospital in collection suit, and rejects challenge to medical records law. Lester E. Cox Medical Centers Springfield MO, Plaintiff-Respondent, v. Steve G. Richards and Toni Richards, Defendants-Appellants.: 28522 Section 490.525 allows an affidavit to be received into evidence as proof of the necessity of services rendered and the reasonableness of the charges made for such services if the affidavit is made "by the person or that person's designee who provided the service" and the affidavit includes an itemized statement of the services and charges. When opposing counsel has specifically stated the identity of the statute under which he is offering an exhibit that would otherwise be considered hearsay and simultaneously hands a copy of it to the judge, we hold that an objection of "[i]t's hearsy[,] I don't think it complies with the statute" is much like an objection of "lack of foundation;" it is too general to warrant the trial court's sustaining it and preserves nothing for reviewNemmers, 880 S.W.2d at 919. The objection was not sufficiently definite so as to draw the trial court's attention to the portion of the cited statute that was alleged to have not been satisfied. This is particularly true in this case where the trial court held open its ruling on the admission of the exhibit and gave Appellants' counsel the opportunity to submit his objections and rationale in support of them via a post-trial submission and he simply chose not to do so.

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Car rental firms sue Orbitz reservation website for removing their automobiles from web listings. St Louis Business Journal. Alamo Rent A Car and National Car Rental, which are owned by the Taylor Family of St. Louis, have filed a lawsuit against Orbitz Worldwide Inc. claiming breach of contract, intentional interference with prospective business relationships, consumer deception, deceptive trade practices and unfair competition in moves the rental car companies say is costing them millions of dollars.

Alamo and National said in a lawsuit filed Friday in the Circuit Court of Cook County, Illinois, that Orbitz is willfully violating their online listing agreement and is misleading consumers by removing both Alamo and National from Oribiz's main rental car matrix.

The lawsuit said that Orbitz demanded a $1.5 million payment not required by their joint listing agreement, which runs through Dec. 31, 2008. When the owners of Alamo and Nation refused to make the additional payment, Orbitz retaliated and deliberately violated its contract by removing the rental car companies from its main rental car matrix, according to the lawsuit.

"This isn't just about Orbitz deliberately violating its contracts with Alamo and National - it's also about violating the trust of consumers," Greg Stubblefield, president of Alamo Rent A Car and National Car Rental, said in a statement. "We hope this lawsuit sends a powerful message that our company and our industry won't tolerate this kind of conduct."

A spokesman for Chicago-based Orbitz (NYSE: OWW) said the lawsuit lacks merit and Vanguard is just upset with the way that Orbitz sorts its rental car search results. In August 2007, Enterprise Rent-A-Car acquired Tulsa, Okla.-based Vanguard Car Rental Group Inc., which operates the National Car Rental and Alamo Rent A Car brands.

"Vanguard wants those results to be sorted in a way that is not required, and which would take away reservations from other valued suppliers," said Brian Hoyt, Vice President of Corporate Communication and Government Affairs for Orbitz. "The bottom line is that Vanguard is trying to use a lawsuit to get a sorting result from Orbitz that Vanguard and Orbitz did not agree to. In short, Vanguard is trying to use its lawsuit to get something for nothing."

In the lawsuit, Alamo and National asked the court for a temporary restraining order, a preliminary injunction and a permanent injunction, specific performance damages, punitive damages, and attorneys' fees.

Alamo estimates that the alleged breach of contract by Orbitz could cost the company more than $27 million in revenue through the remainder of 2008 especially as people begin booking summer vacations.

Hoyt added that Orbitz will vigorously defend itself against Vanguard's "baseless" attempts.

The Taylor Family of St. Louis owns and operates Alamo Rent A Car, National Car Rental and Enterprise Rent-A-Car.

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The federal Office of the Comptroller of the Currency may have Wachovia on the hook for up to $144million for consumer protection violations. St Louis Business Journal.

Wachovia Corp. has agreed to pay as much as $144 million in a settlement with federal regulators over allegations that elderly customers were harmed by its relationship with several telemarketers.

According to the Office of the Comptroller of the Currency, the case involved the use of "remotely created checks," which do not require a customer's signature. Instead, the signature block of the check included text such as "authorized by your depositor, no signature required."

According to regulators, some telemarketers with accounts at Wachovia called consumers and offered them items such as medical-discount plans or vouchers for discount travel and groceries. They then used a remotely created check to withdraw funds from customers' accounts.

The Office of the Comptroller says a large percentage of consumers said the checks were never authorized or that they never received the products or services offered by the telemarketers.

The settlement follows an 18-month investigation.

"This situation was unacceptable and we regret it happened. We will work diligently to provide restitution to consumers affected by the situation and to educate consumers," Wachovia says in a written statement. "Wachovia is pleased to have resolved this matter with the OCC."

Wachovia says it doesn't believe the settlement will have an adverse effect on its financial condition.

Wachovia has not admitted any wrongdoing. The bank will pay up to $125 million in claims, $8.9 million toward consumer-education programs for the elderly and a $10 million fine.

Charlotte, N.C.-based Wachovia (NYSE: WB) acquired St. Louis-based A.G. Edwards Inc., a financial services holding company, in a $6.9 billion deal that closed Oct. 1. It creates a combined securities firm, to be based in St. Louis, with $1.1 trillion in client assets, nearly 15,000 brokers and 1,500 retail brokerage offices.

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Wal-Mart drops its $400k plus subrogation judgment against a former employee that the Eighth Circuit Court of Appeals had affirmed but the Court of Public Opinion had vetoed. Worker Comp Insider. Deb Shank suffered serous injuries in a motor vehicle accident. Her medical bills approached $500k but her settlement with the trucking company involved in the accident was just over $700k. The attorneys took their shares and the trial court set up a special needs trust for the wife, but provided nothing for Wal-Mart whose self-insured employee benefits plan paid the bulk of Shank's medical bills. Wal-Mart won summary judgment against Shanks trust assets. Eighth Circuit Court of Appeals affirmed. Wal-Mart sought appropriate equitable relief in the form of its constructive trust litigation against specific assets that should have been paid to the health plan. See Sereboff v. Mid Atlantic Medical Servs., Inc., 126 S.Ct. 1869 (2006){district courts have equitable jurisdiction to hear actions by ERISA plans to collect subrogation claims from participants under 29 U.S.C. § 1132(a)(3) (ERISA § 502(a)(3)) While state insurance law might have allowed the injured employee to subordinate Wal-Mart's claim because her settlement was inadequate, federal ERISA law prevails. In the end however, Wal-Mart walked away from the judgment. When Hillary or Obama Care goes on line, hang on to your hat with their subrogation provisions. You will miss good old Wal-Mart.

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Employee of the Squaw Creek Truck Stop that the Iowa Tribe of Kansas and Nebraska owns sued the tribal government for wrongful termination. The trial court dismissed because the Tribe had not waived its sovereign immunity. Missouri Court of Appeals affirms, although the tribal corporation charter included a "sue and be sued" clause, that did not make the Tribe waive its immunity. Larry Ogden, Appellant v. Iowa Tribe of Kansas and Nebraska, Respondent. WD67912 04/29/2008 Circuit Court of Holt County, Hon. Roger Martin Prokes
"US Supreme Court precedent has established that recognized native American tribes enjoy sovereign immunity from suit unless Congress has abrogated it through legislation, or unless the tribe waives its immunity. In either case, the intent to defeat or waive immunity must be "unequivocally expressed." In the absence of an express waiver, tribal immunity is enjoyed whether the tribe engages in governmental or commercial activities, and applies whether the action takes place on or off tribal lands. The Iowa Tribe's corporate entity has a "sue and be sued" clause in its corporate charter. Such a clause may waive the tribal corporation's immunity, but it does not waive the immunity of the tribe. Ogden's petition clearly indicates that his suit is against the tribal governmental entity, and not against the corporation.

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Missouri Court of Appeals Western District shoots down Secretary State Carnahan's blatant attempt to torpedo initiative petition to add banning embryonic cloning to the 2006 Missouri Anti-Cloning Constitutional Amendment. Cures Without Cloning, Lori Buffa, M.D. and Chelsea Zimmerman, Appellant-Respondents, v. Robert E. Pund and Susan Baier, Respondent-Appellants; Robin Carnahan, Secretary of State, Respondent-Appellant; and Susan Montee, State Auditor, Defendant; Kansas City Area Life Sciences Institute Association and Kansas City Area Life Sciences Institute, Amicus Curiae; Robert P. George, D. Phil, J.D. and Maureen L. Condic, Ph.D, Amicus Curiae.: WD69376 Consolidated with WD69390 and WD69391Advocates seeking to ban embryonic cloning in addition to human cloning sought to add language to the Stem Cell Research and Cures Act., Mo. Const. Art. III, Section 38(d). Pro-choice Secretary of State Carnahan had other ideas, so she called the initiative an effort to "repeal" the ban on human cloning. Missouri Court of Appeals Western District reverses the Secretary of State, finding her initiative summary misleading and unfair. "Upon review of the Plaintiffs' initiative proposal, we find no language to suggest that it would repeal the ban on human cloning. The introductory language of the initiative states that it will amend the current Act by "adding" one new section "to be known as Section 38(e)." Next, subsection 1 of the amendment states that the prohibitions in 38(e) are "in addition to" those of 38(d). Finally, the definition language in subsection 2 ("which shall include the one-cell stage onward") indicates an intention to broaden the definition of cloning to an earlier stage of cell formation than currently prohibited. The collective language leaves little doubt that one of the purposes of the amendment is to expand the definition of cloning in order to increase the number of cases to which the ban on human cloning would apply.

In light of this purpose, Missouri voters are likely to be confused by a ballot title stating that the amendment would "repeal the ban on human cloning." It is incumbent upon the Secretary in the initiative process to promote an informed understanding of the probable effect of the proposed amendment. Buchanan v. Kirkpatrick, 615 S.W.2d 6, 11 (Mo.banc 1981). The Secretary's introductory language does not fairly summarize any goal or effect of the initiative proposal and is inadequate to give clear notice of its purpose. Because this language is insufficient and unfair, a corrected summary statement is warranted. Section 116.190.3. The matter can be easily clarified by substituting the word "change" for "repeal" so the summary would read, "Shall the Missouri Constitution be amended to change the current ban on human cloning…"

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