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Dying on the Vine – How & When to Renew Your Judgments Before It is Too Late!

Posted on by Matt Hamilton

The Death of Your Claim – How to Preserve or Lose Your Judgment at the Ten Year Mark

It is wrong to presume that once you receive your judgment, it will be good forever; and if one cannot collect through insurance, or garnishment, or a judgment lien now, then one merely has to wait, and eventually your judgment will have to be paid.  This is wrong.  Missouri law, like the laws of many jurisdictions, presumes a judgment is satisfied and paid in full after a period of ten years.  This is irrespective of whether the judgment debtor made payments.  A Motion to Revive Judgment will be needed.

 THE TEN YEAR LIMIT APPLIES TO ANY JUDGMENT – FOR HERE, LET US USE A CAR CRASH

A Lee’s Summit rear-end auto accident happened on May 1, 2009.  John, the negligent driver, was driving his 2007 Ford F-150 pickup truck south on Missouri State Route (Highway) 291 just past Hy-Vee grocery store through the stoplight at Langsdale Road in Lee’s Summit.  He ran that stoplight.  John collided with the rear of the Honda Civic driven by Molly as she was turning left from Langsdale onto 291 Highway.  Molly suffered severe injuries to her back including a compression fracture of her C1 vertebrae and a herniated disc at the L5-S1 level in her lower lumbar spine.  Molly was taken by ambulance and treated at Saint Luke’s East hospital in Lee’s Summit.  Her orthopedic surgeon diagnosed the L5-S1 disc herniation and treated her neck C-1 compression fracture.  Molly went through physical therapy, in Lee’s Summit for her auto collision injuries.

JUDGMENT FAULT DOES NOT MATTER REGARDING THE TEN-YEAR DEADLINE

John received a ticket from Lee’s Summit Municipal Court for careless and imprudent driving.  He did not hire a criminal defense lawyer but rather pled guilty and was convicted of this 4-point offense.  John’s Lee’s Summit ticket conviction acted as an admission of fault for the motor vehicle accident.

LAWSUITS ARE SOMETIMES NEEDED EVEN WHEN ACCIDENT FAULT APPEARS CERTAIN

Molly sought money compensation for her Lee’s Summit accident injuries from John.  Molly hired Lee’s Summit personal injury lawyer Matt Hamilton.  John was assigned a defense lawyer by his auto insurance company.  Fault was denied in spite of the Lee’s Summit Municipal Court conviction.  The insurance defense lawyer also alleged Molly was comparatively at fault for turning left too slow.  The defense lawyer argued her auto accident damages should be reduced by her percentage of fault, even though John was the cause of the car crash.  The insurer refused to pay Molly’s reasonable damages prior to a lawsuit.  Molly was forced to sue John in the Circuit Court of Jackson County at Independence, where Lee’s Summit auto accidents are filed.

THE JUDGMENT

The lawsuit proceeded to judgment. Molly and her personal injury attorney won a $650,000.00 judgment against John, with a finding john was 100% the person who caused the Lee’s Summit collision.

The verdict was handed down October 10, 2009.  It was determined that John had failed to pay his auto accident insurance prior to the car crash and the insurance company had properly ended his coverage.  John was uninsured at the time of the auto collision.  John made three payments to Molly in November 2009, December 2009, and January 2010.  Afterwards, John stopped making any payments on the verdict against him.  Molly attempted to garnish John’s wages and collect against his insurer, to no avail.

TEN YEARS IS FROM THE DATE OF JUDGMENT AND NOT SOME OTHER EVENT

The judgment sat until October 1, 2019.  At that time, Molly made a motion to revive the judgment.  Molly properly preserved her judgment.  Let us presume, however, that she waited until October 20, 2019, ten tears and ten days post Judgment.  Molly argued to the court that more than ten years had elapsed since the judgment.  It has been less than ten years since payments were made by John.  Who is right?  Can Molly revive her judgment and collect against John?  Is John right and the judgment is now dead?

MISSOURI LAW ON REVIVING JUDGMENTS

Section 516.350 of the Revised Statutes of Missouri governs the revival of judgments.  It indicates any judgment against a person (or entity) must be revived within ten years of its creation.  The Court of Appeals in Unified CCR Partners v. Abright No. ED106082, 2018 WL295711 (Mo.App June 12, 2018) recounted the law in this matter.  In order to revive a judgment, a party who receives the judgment may file a motion to “revive the judgment” within ten years of either the date of the judgment itself, or the date of the last revival.  This was also expressed in Dummett v. Koster, 446 SW 3d 732, 734-35 (Mo. App. 2014).  The important part is that the motion to revive must be filed within ten years of the Judgment or within ten years of the date of the last revival itself (if more than twenty years).  The date of the last payment does not matter.

TEN YEARS IS FROM THE DATE OF THE JUDGMENT ITSELF

With respect to a second revival, there is presumption that the initial motion for the revival of it had been filed within ten years of the original judgment in order to use subsequent payment by the judgment debtor as a revival benchmark date.  The important factor is that the initial motion for the revival must be filed within ten years of the exact judgment date, in this instance October 10, 2009.  Thus, Molly can revive her judgment against John if she files a Motion to Revive before October 10, 2019 and Molly cannot revive her Judgment is she files later than the ten-year mark.  I would not wait to argue about thirty-day periods for Judgments to become final.

MISSOURI SUPREME COURT CIVIL RULES BACK UP THE HARD TEN-YEAR DEADLINE

Missouri Rule of Civil Procedure 74.09 also matters in this analysis.  It does not provide for a payment to be considered in the calculation of a time for the revival of a judgment, even in a Lee’s Summit auto accident case.  It states that “a judgment may be revived by order of the court pursuant to a motion for a revival filed by judgment creditor within ten years after the entry of the judgment or the last prior revival of the judgment.”  Rule 74.09 (a).  A trial court would not be abusing its discretion in denying that motion for revival.

A MOTION ALONE SHOULD BE ENOUGH

The plain language of Rule 74.09 requires that a party seeking a revival of their judgment, for example in a Lee’s Summit auto accident case, only needs to file a motion to revive the judgment and has to do nothing more within ten years of the judgment date itself.  Abbott v. Abbott, Missouri Court of Appeals Western District case number 76525, 2013; reveals that arguments to the contrary have already been rejected by the courts in Wright Industries, Inc. v. New England Propellers Service, Inc., 881 SW 2d 243 (Mo. App. WD 1994).  The court in Young Electric Sign Co. v. Duchell Furniture of Arizona, Inc., 9 SW 3d 685, 687 (Mo. App. 1999) reached a similar conclusion.  There is no due diligence requirement upon the party making a motion to revive its judgment if it done within the ten year period.  If that motion is made in a timely manner, the circuit court is obligated to issue the order to show cause to revive the judgment.  This is merely a ministerial duty of the circuit court. It does not affect the timeliness of the revival, and does not require judgment upon the court itself.

Thus, in our case, Molly must have filed her motion to revive her judgment on or before October 10, 2019.  Otherwise, she no longer has a valid judgment that can be enforced because she failed to do so within a timely manner irrespective of when John made his payments to her resulting from his Lee’s Summit motor vehicle collision.

Are you interested in the legal details, history, and other jurisdictions related to Revival of Judgments?

A good article written by Michael Scott, titled Renewal and Revival of Judgments was written in 2006, and published as part of a collection and creditors’ right course by the Bar Association of Texas.  It is more technical, and detailed than a practical legal practitioner should expect to need.  However, detail battles come up from time to time, and it is helpful to know the most, so as to use that knowledge, when it is needed.  I think the article is a good source, should your need arise.

Author:

Matt Hamilton

  • Juris Doctor
  • Trial Lawyer

Accident Compensation for Reduced Ability to Become Pregnant [Lawyer Tutorial]

Posted on by Matt Hamilton

HOW TO WIN COMPENSATION WHEN AN ACCIDENT REDUCES YOUR ABILITY TO GET PREGNANT

The least visible injuries too often cause the greatest harm.  This is an unfortunate fact.  For example, an accident reducing the happy prospect of a future child is worse than a broken arm, or a cut leg.  Unfortunately, our legal and medical systems do a poor job of dealing with these serious injuries; injuries that reduce fertility.  This article teaches a manner of overcoming and winning compensation for the diminished ability to get pregnant.

Injury accidents cause severe changes in lifestyle and physical ability.

  • Accident injuries can cause a lengthy time period where the body undergoes great stress.
  • Disability reduces the ability to exercise.
  • Treatment can alter diet.
  • Medications alter your physiological condition.

Injury can Harm Fertility:  Any number of these factors can reduce the ability of a female victim to become pregnant.  Weight gain can alter menstrual cycles. Pharmaceutical drugs can negatively affect fertility.  Many injuries have the side effect of diminishing ovulation and other reproductive cycles.  Doctors, lawyers, and insurance adjusters often don’t think of this harm.  However, for a family, planning a child, this can be the single most important aspect going on in their lives.

No one would want to take a child away from someone and replace it with disability, pain, and medical treatment.  Unfortunately, this is too often the case.  To make matters worse, compensation is difficult to win through lawsuits if the courts do not allow physician testimony of the reduced ability to become pregnant.

There is a way to overcome the legal barriers.

First, a great accident lawyer will educate the court that the reduced ability to become pregnant is present in the “pleadings.”  This means that in his original petition for damages or complaint, the injury accident lawyer actually writes as an item of damages the reduced pregnancy disability.  This will allow an initial relevance finding by the court.

For example, the following courts have made similar rulings.

There are many Continuing Legal Education programs that teach how to create continuity of your pleadings from the beginning of the case until trial.  It is easy for the accident injury lawyer to get lulled into complacency and fail to do this.  True, each case is unique and has novel evidence.  However, most cases overlap with their concepts of fault, injury, and evidentiary concerns.  Most cases do not require lawyers to build the habit of a consistent case theme.  However, this should ALWAYS be on the list of things to do.

Remaining consistent in pleadings is especially important when the accident lawyer anticipates bringing an unusual claim, like fertility loss (reduced chance of pregnancy) as an item of damages.  This should be an ongoing theme among the pleadings, so your judge may more easily remember the case and be motivated to learn its merits.  A Trial Brief is not enough.  Start with your Petition for Damages, then include the concepts in injury interrogatories, requests for the production of documents, requests for admissions, motions in limine, and so on.  Ask questions about the fertility-loss theme in depositions, even when the witness does not directly have information on fertility-loss.  Remember, your case is about what your case spends time being about!

Second, the lawyer needs to gain an expert opinion from a treating physician (or recognized medical expert) as to the reduction of pregnancy possibility.  The relatively unknown, but instructive case of McKersie v. Barnes Hospital, 912 S.W. 2d 562 (Mo. App. 1995) is educational on this topic.  In McKersie, the Missouri Court of Appeals considered a victim who had an accident.  The accident reduced the victim’s ability to get pregnant.  Ms. McKersie was treated in an emergency room by an intern.  That intern was negligent and failed to diagnosis her appendicitis.  As a result, Ms. McKersie’s appendix ruptured.  This required her right ovary and her Fallopian tube to be removed.  Her appendix was also removed.

Her treating physician gave testimony that her lack of a right ovary and Fallopian tube reduced her statistical chance of reproducing and having a child.  The problem was that Ms. McKersie was still capable of having a child.  Indeed, her physician indicated that it was still “more likely than not” that she was capable of conceiving, in spite of her accident disability.  Nothing indicated an “extra problem” as to conceiving a child.

Still, Ms. McKersie sought money for compensation for the damage of reducing her ability to conceive.  The court agreed.  Her treating physician’s opinion was sufficient to support an item of future damages to Ms. McKersie.  Even though she was still more likely than not capable of having more children, Dr. Swartz’s testimony that her ability was diminished due to the loss of her ovary and Fallopian tube could be presented to the jury as an item of damages she suffered from this accident malpractice.

What You Should Do:  So too, in your case, the reduced statistical likelihood of conceiving can and should be an item of damages you claim.  It is harm you have suffered.  The mental stress will be certain; irrespective of whether you become pregnant.  The life stress will be certain; irrespective of whether you become pregnant.  So too, your reduced chance of pregnancy should be compensated.

reading law bookAuthor:  Matt Hamilton

of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

 

What are Litigation Costs for Accident Injury Cases [Explained]

Posted on by Matt Hamilton

EXPLAINED: LITIGATION COSTS IN ACCIDENT INJURY CASES

Accident Victims hire injury lawyers on a contingency fee, typically.  As part of the attorney-client contract, something called “litigation costs” is mentioned.  The client pays for this amount at the conclusion of their case, and should see the litigation costs itemized on their final paper breakdown.

This article explains:

  1. What litigation costs are,
  2. Why litigation costs are required,
  3. What common costs amount to, and
  4. Why litigation costs are necessity.

Rules 77.01 and 77.05 of the Supreme Court of Missouri dictate who pays for attorney’s fees.  Typically, it is the party that loses at trial.  These rules have been codified in Mo. Rev. Stat. § 514.070 and 514.260 of the Revised Statutes of Missouri.

Courts have also interpreted the litigation cost rule.  For example, the Western District of Missouri in the case Baker v. Whitaker, 887 S.W.2d 664 (Mo.App. W.D. 1994) ruled that expenses should be deducted before the lawyer’s share is allocated.

What does this mean to you?  This means when you are signing the litigation contingency fee agreement, it should contain a sentence indicating that you, (the client) will pay the litigation costs.

In practice, this means attorney’s fees are deducted first.  Then, the litigation costs are paid for.  Then, the remaining amount is paid to the client (you).  This is the presumption.  However, contingency fees can be negotiated and worded into other arrangements.

WHAT ARE INCLUDED IN LITIGATION COSTS?

There are several categories of costs that are included as litigation expenses.  Rules 57.10 & 57.03 (g) are examples of civil procedure rules that govern these costs.  They include:

  1. Expert Fees
  2. Deposition and Court Reporter Costs
  3. Filing fees from the Court
  4. Witness fees (requiring witnesses to show)
  5. Copying Costs (making duplicate documents)
  6. Exhibits
  7. Miscellaneous expenses

While some litigation costs are inexpensive (filing fees) others can be extremely expensive (experts).

LITIGATION COSTS ARE ON THE RISE

 

WHAT ARE COMMON LITIGATION COST AMOUNTS?

Small cases should expect hundreds of dollars before litigation in litigation expenses.  After litigation begins, it becomes thousands of dollars.  If multiple experts are required and trials included, litigation costs can exceed $100,000 for a case.

I encourage you to ask your accident attorney how they break down litigation costs, what you will pay for, what the attorney will pay for, and the amounts the lawyer expects.  Any competent attorney should be able to discuss litigation costs in detail with you.  Do not expect much leeway regarding changing who will pay for litigation costs, what they will be and the amount.  This is often outside of the control of the attorney.

Author:  Matt Hamilton

  • Trial Lawyer
  • Juris Doctor

Kansas City Bicycle Accidents Expected to Rise

Posted on by Matt Hamilton

THE ENDURING PROBLEMS OF CARS HITTING BICYCLISTS

You are speeding down a curving hill on your bicycle.  You sense the wind against your body.  The sweat on your back and the exhilaration of the exercise rewards your effort.  You are not encased in a glass and steel protective shield, like a motorist.  You are exposed.  You are in the environment; experiencing its virtues, its sites, smells, and feel.  Bicycling is different than riding in a vehicle.  That’s the problem.

Bicycle Accidents, Easier and Worse

Bicycles are smaller than vehicles.  They often blend into the environment and are missed by otherwise well-meaning drivers.  Bicycles are not protected by collision barriers like in vehicles.  Bicycle accidents injuries are worse, even deadly.

A common accident occurs when a bicycle is traveling through an intersection.  The cyclist is going directly ahead.  The bicyclist is then struck by a car driver making a left turn without yielding to the bicyclist.  The vehicle owner has a dented car and scraped paint.  The bicyclist is in an emergency room, then to the orthopedic surgeon, or worse.

The law protects bicyclists from such mishaps.  However, the public has been hesitant to learn and pay attention to the dangers.  This problem is likely to worsen.

Bike Trails; a Fun Addition that Increases Bicycle Accident Rates

Kansas City bicycle accident lawyers expect an increase in car-bicycle accidents.  Across the country, cities like Lee’s Summit are adding bicycle trails and lanes to encourage exercise and economic development.  More bicycles on the road will mean more bicycle accident victims.

Missouri is also increasing recreational bike trails.  For example, Missouri just added a statewide Missouri bike trail known as the “Katie Trail.”  The Katy trail crisscrosses towns, rural areas, and major interstates.  Car drivers unaccustomed to yielding to a bicyclist may not be paying attention.  The bicyclist may be distracted because of the long trail.  Even extreme efforts to lessen accidents are never full proof and bicycle accident injuries occur.

Bias Against Bicycle Victims

Police departments in investigating bicycle accidents often do not even cite the striking vehicle with a traffic ticket.  The infrequency of bicycle accidents leads to a lack of education for all law enforcement officers.  Nearly everyone drives.  Not everyone bicycles.  It is easy to understand the bias.

Society views also color bicycle-car accident claims.  We often view people riding bicycles from the prospective of children.  It’s common for people to ride a bicycle throughout their childhood.  We all remember some of the dangerous and reckless behavior that caused us skinned elbows, knees, and the occasional bump on the head.  It’s easy for people to translate that experience to the present, and blame law abiding, traffic obeying adults on properly equipped bicycles.  It is convenient to blame a car bicycle accident on a child, presuming the child’s inexperience caused the collision.

It’s important for us all to remember these mental preferences when we hear about a car striking a bicyclist.  It’s important for us to enact, implement, and keep in mind the increased prevalence of bicyclist on the road.  None of us want to put an innocent person in the hospital, or the grave.

Author:

Meeting with clientMatt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney