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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

How to Get Punitive Damages to Punish the Manufacturer of a Defective-Dangerous Product

Posted on by Matt Hamilton

SHOULD MY DEFECTIVE DANGEROUS PRODUCT CASE REQUEST PUNITIVE DAMAGES TO PUNISH THE MANUFACTURER?

Dangerous products cause accidents that harm Americans every day.  Manufacturers fall “in love” with their own designs and fail to see how their product will injure or kill their customers.  Instead, manufacturers blame the victim.  Corporations ignore notices they have sold a dangerous product to an innocent customer.  Too often, when a manufacturer becomes aware that its creation is dangerous, the company attempts to hide the evidence.  Corporations too often do not warn the users of their products of hidden dangers that injure and kill.

The Benefit of Defective Product Lawsuits

Lawsuits often are necessary to receive compensation for injury and death because of defective products.  Punitive damages to punish the manufacturer are often not considered.  This “extreme” accusation is often appropriate but not used.  Defective product claims benefit society by motivating those that design, test, and manufacture to be more diligent in preventing personal injury and wrongful death.  This article teaches when punitive damages are appropriate.

The Benefit of Punitive Damages

Punitive damages were created to benefit society.  They are a means of taking money from a defendant who has harmed or killed by their outrageous conduct or complete indifference to the safety of others.  In this manner, society benefits from safer products.  Innocent victims benefit by warnings that put them on notice of the dangers of deadly products.

Challenges to Winning Punitive Damages

There are many challenges to winning punitive damages claim from an injury accident.  Courts are reluctant to approve punitive damages.  This is because of their unusual and rare use.  This is also because of the difficult legal standard to prove punitive damages.

A second challenge is when corporations hide the evidence of their own wrong-doing.  When evidence is thin, passing the legal test for punitive damages is difficult.  Third, the accusation of punitive damages adds complexity to already complex cases.  Many lawyers are unable to manage this added complexity.  Other lawyers do not bring the claim because of ignorance of punitive damages law.  Still other lawyers do not bring punitive damages claims because they are uncomfortable with litigation of the punitive damages issue because of inexperience.  Fifth, the punitive damages claim can be a distraction from other necessary elements in a case, if the punitive damages claim will not proceed to the jury.  These five barriers to the bringing of punitive damage claims in accident injury cases makes them rare.

The Test to Win Punitive Damages

The test for a punitive damages claim in an injury accident is as follows:

Clear and convincing evidence is needed so that a reasonable jury could conclude that it was highly probably that the defendant’s conduct was recklessly indifferent.

In a defective product case, the following test is often used:

  1. Did the manufacturer or corporation place the defective product into commerce?
  2. Is the product unreasonably dangerous?
  3. Did the manufacturer have actual knowledge of the defective?
  4. Did the defendant consciously disregard the safety of others?

Clear and Convincing; Not Just More Likely Than Not

Ordinarily, a more likely than not or greater than 50% likelihood is standard for civil cases.  Punitive Damages evidence must past a heightened test of being both clear and convincing.  This clear and convincing evidence standard is a difficult one to pass.

The heightened clear and convincing evidence also adds difficulty to other case aspects.  This has been discussed in detail in cases such as Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 164-65 (Mo.App. W.D. 1997).  The courts require evidence that the defendant showed a “complete indifference or conscious disregard of the safety of others.”  See Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 659 (Mo.App. W.D.1997). In Barnett, the court discussed in detail the various standards and the differences between punitive damages, strict product liability lawsuits, and ordinary negligence cases.

What is Complete Indifference?

The “conscious disregard or complete indifference” standard for punitive damages in accident cases includes circumstances where the person doing the wrongful act or failing to do a proper act is “conscious from the knowledge of the surrounding circumstances and existing conditions that their conduct or failure to act will naturally and probably result in injury.”  In short, the wrongdoer does not need a specific intent to injure you or kill.  The death or injury merely needs to be the natural and probable result.

Is Proof of Evil Motive Needed?

Defendants often argue that the conduct must be outrageous and include an evil motive.  This is indeed the standard discussed in cases such as Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 477 (Mo.App. W.D. 2005).  However, the lawyer must keep in mind the phrase that follows all the evil motive discussion.

The standard includes actions that show a “reckless indifference to the rights of others.”  This “reckless indifference” language arose from a case where a person fired a pistol into a crowd.  The perpetrator did not have a specific intent to harm any particular person.  The defendant did not intend to injure or kill and lacked an evil motive.  However, it was reckless.  Firing a bullet into a crowd will naturally and probably result in injury; in spite of a lack of specific intent to kill or an evil motive.  This is the genesis of punitive damages and should be used in your case.

How Likely Was Injury?

There is a further ability to get punitive damages.  This is in cases where the defendant either knew or had reason to know there was high probability that their conduct would result in injury.  The Supreme Court of Missouri spoke about this in detail in the case of Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 160 (Mo. banc 2000).  In Lopez, the defendant’s conduct was tantamount to an intentional wrongdoing. This was because the natural and probable consequence of their conduct was injury.

In your case, the circuit court will need to determine whether your evidence (giving full credit to the jury’s right to determine witness credibility, weigh the evidence, and draw inferences from it) is sufficient to permit a reasonable jury to conclude with convincing clarity that it was highly probable that their conduct was outrageous because of reckless indifference. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

What is the Benefit of Claiming Punitive Damages?

I encourage you to go through the full analysis of punitive damages for the evidence in your case.  There are many benefits to bringing punitive damages in the matter.  It increases the likelihood of settlement.  It increases the value of cases.  It increases the willingness of defendant to become reasonable.  It allows added flexibility during trial.  It will increase the chances that you will have reasonable value for your case.

Most importantly, punitive damages are is the only real means of convincing indifferent manufacturers and corporations to stop harming innocent victims and change the way in which they do business.  Punitive damages are a real opportunity for you to benefit society.

reading law bookMatt Hamilton

  • Juris Doctor
  • Trial Attorney

 

More Relevant Articles:

  1. Dudley McCarter, Seller of Product is Not Liable Unless Shown to Have Reason to Know, 71 J. Mo. Bar 76 (2015).

 

 

 

How Lawyers Manage Governmental Immunity in Wrongful Death & Personal Injury Cases

Posted on by Matt Hamilton

How Lawyers Deal with Government Sovereign Immunity for Wrongful Death and Personal Injury

     Example:  An IV catheter mistake leads to wrongful death

Bethany Johnson was a patient at a Kansas City, Missouri hospital.  She was undergoing chemotherapy to treat her cancer.  Her physicians decided to give her the cytotoxic chemotherapy drug Taxol through a peripheral vein.

  • They failed to check for leaks.
  • They failed to check for a back flow.

Ms. Johnson informed the nurses she was experiencing pain and burning in her arm that seemed to be spreading.

  • They continued giving the cytotoxic chemotherapy drug in spite of her report.

Ms. Johnson then reported blisters and ulcers on her arm that seems to be spreading.  She felt sick like she had the flu.

  • Her nurses’ aides and the physicians did not switch to a central vein catheter.
  • Johnson was not treated.

Her extravasation injury led to the amputation of her right arm.  This extended her hospital stay, caused an infection, and ultimately her death.  Ms. Johnson was staying at a hospital owned by the government.

Can her survivors recover for their loss?

The History of Governmental Immunity from Wrongful Death and Injury lawsuits

“Sovereign immunity” has a long historical tradition in our court system.  We adopted our laws from the British common court system.  The British adopted its laws from Rome and the Catholic Church.

Each of these systems lived by the principle that “the king can do no wrong.”  See Guy Seidman, The Origins of Accountability: Everything I Know About Sovereign Immunity, I Learned from King Henry the Third, 49 St. Louis U. Law J. 393 (2004).  In short, the government cannot be sued in court for money unless it consents.

Governments Have Immunity from Wrongful Death Claims In Most Circumstances

Our legislature has enacted statutes following up injury accidents and wrongful death claims against the government.  This is codified in R.S.Mo. § 537.600.

The sovereign immunity statute for wrongful death and injury lawsuits adopts the immunity of government as existed in the common law of courts prior to 1977.

Two Exceptions to Sovereign Immunity

“Sovereign immunity is the rule rather than the exception.”  Benoit v. Mo. Hwy. & Trans. Comm’n, 33 S.W.3d 663,673 (Mo.App. 2000).

However, our statute carves out two exceptions where the government can be sued for wrongful death or injury.  These exceptions are as follows:

  1. Injuries caused by the negligence of a public employee while operating an automobile within the scope of their employment.
  2. Injuries caused by the condition of a public property.  This is when the premises is in a dangerous condition at the time of injury.  The dangerous condition must have been created by a reasonably foreseeable risk of harm and be the type of injury that the victim actually suffered.  The employees had to have actual or constructive notice of the condition with sufficient time to protect the victim but failed to do so.

Municipal City Governments Only Get Partial Immunity

State governments get full 100% immunity when they don’t carve out an exception for themselves.  Cities are not so lucky.  Municipalities only get sovereign immunity when they are conducting a “governmental function.”  Richardson v. City of St. Louis, 293 S.W.3d 133,136-37 (Mo.App. 2009).  Cities do not get immunity when they are merely providing a “proprietary function.”  Crouch v. City of Kansas City, 444 S.W.3d 517,521 (Mo.App. WD 2014).  This means a wrongful death or injury victim can sue a city if its negligent act was a proprietary function.

What Is a “Governmental” vs. “Proprietary” Function?

The distinction between a governmental function and a proprietary function for a wrongful death or a personal injury case against a city is the difference between you being able to have your lawsuit and collect money compensation and not having a lawsuit at all.  The courts are highly inconsistent in making the distinction between governmental and proprietary functions.  Jones v. State Hwy. Comm’n, 557 S.W.2d 225,229 (Mo. banc 1977).  Worse, they even produce “uneven and unequal results which defy understanding.”  Id.

Courts look to the nature of what the government is doing at the time it caused the injury to determine whether it is a governmental or a proprietary function. Courts look at what that government person was actually doing that caused the injury and why they were doing it.  St. Joseph’s Light & Power Co. v. Kaw Valley Tunneling Inc., 589 S.W.2d 267 (Mo. banc 1979).  The type of lawsuit does not matter.

When Is It a “Governmental Function?”

A governmental function that will allow the city to claim immunity from a wrongful death lawsuit or a personal injury claim will focus on whether the person doing the act was an agent of the state government.  Bennartz v. City of Columbia, 300 S.W.3d, 259 (Mo.App. W.D. 2009). Look to who they were benefiting.

  • Were they benefiting the general public?
  • Were they benefiting the common good of all?
  • Was the person keeping the peace by enforcing laws and ordinances?
  • Was the person preserving public health?

Kunzie v. City of Olivette, 184 S.W.3d 574 (Mo. banc 2006); Parish v. Novus Equities Co., 231 S.W.3d 242 (Mo. App. 2007).

The city can claim immunity and dismiss your lawsuit if it can convince the court it was acting merely as an agent of the state government for the functions outlined above.  It will claim that no exception is outlined in Mo. Stat. § 537.600 or anywhere else.  The city will move to get a dismissal of your wrongful death or personal injury case.

What is a “Proprietary” Function?

A proprietary function does not have sovereign immunity.  The city can be sued for merely providing a proprietary function that injures or kills.  These functions are those that benefit or profit the municipality itself in its corporate capacity.  In other words, they benefit or provide services or convenience to the city’s individual citizens.

Lawyers:  Do Not Forget This!

A lawyer bringing a wrongful death or a personal injury case against a city municipal government must remember; governmental sovereign immunity is not an affirmative defense.  Do not merely file your petition like normal and wait for an affirmative defense to be pled out under Rule 55.27.  You will have your petition dismissed.

The victim has a requirement that they must plead, not only allegations of the waiver of sovereign immunity, but also the specific facts that give the victim the exception to sovereign immunity.  Richardson v. City of St. Louis, 293 S.W.3d 133,137 (Mo.App. 2009).  It is the victim’s burden to demonstrate that the city government was engaged in a proprietary function at the time that the person was wrongfully killed or injured.  Cover this in advance before you get a motion to dismiss.

Conclusion

One can see from the case of Ms. Johnson that there is a vast difference between claims made for extravasation, wrongful death, personal injury, and other situations based upon the type of hospital or medical care provider that did the error.  City hospitals may have partial immunity.  State hospitals may have complete immunity.  The specific but critical distinction must be prepared for and covered in advance.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

 

6 Silly Things People Do in Court

Posted on by Matt Hamilton

Personal injury trial attorney Matt Hamilton teaches the six silliest mistakes he sees people make in court.

Matt explains each mistake, why the error harms the person’s chances in court, and how each mistake can be avoided, or corrected.

Author:

Matt Hamilton

  • Trial Attorney
  • Juris Doctor