BSCR Firm News/Blogs Feed

Baker Sterchi Obtains Dismissal under Missouri's Innocent Seller Statute

23 Apr 2024

Baker Sterchi lawyers obtained dismissal of their national food distributor client under Missouri’s “innocent seller statute.” Plaintiff alleged personal injuries related to consumption of a chicken meal that contained a chicken bone, which he claimed became lodged in his throat and resulted in multiple surgeries. Plaintiff originally named the restaurant where the meal was ordered as a defendant. The restaurant then sought and was granted leave to file a third-party petition against the purported manufacturer of the chicken. Plaintiff followed suit and filed an Amended Petition asserting a claim against the purported manufacturer and also added claims based on breach of warranty and negligence against our client, the distributor. We preserved the innocent seller defense in our answer by pleading R. S. Mo. §537.762, the “innocent seller statute,” as an affirmative defense on the grounds that liability against the distributor was solely based on its status as a seller in the stream of commerce and should be dismissed.

In 1987, the Missouri legislature enacted the “innocent seller statute”. A final report issued in January 1987 by the Missouri Interim Task Force on Liability Insurance indicates that the legislation was designed as a method by which sellers may be released from products liability suits at an early stage of the litigation. § 537.762 states in pertinent part:

A defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim as provided in this section. This section shall apply to any products liability claim in which another defendant, including the manufacturer, is properly before the court and from whom total recovery may be had for plaintiff’s claim.

Thus, a seller wishing to avail itself of the statute must establish two things. First, the asserted liability must be based solely upon its status as a seller in the stream of commerce. Second, a defendant from whom total recovery may be had must be before the court.

There was a question of fact as to the identity of the manufacturer of the chicken at issue, which had to be resolved before a motion to dismiss could be filed. Through discovery this entity was identified, and the restaurant brought this “new” manufacturer into the case. Once the proper manufacturer was before the court, we moved to dismiss under the innocent seller statute. We satisfied the first prong by establishing that the distributor played no role in the manufacturing, production, testing or individual packaging of the chicken. Its only role was distributing chicken to the restaurant. While plaintiff asserted various product liability claims against the distributor, all were based solely upon its status as a seller. The second prong was satisfied because two defendants were before the court from whom total recovery could be had, the restaurant and the proper manufacturer. We anchored this argument to the declaration page of the restaurant’s commercial general liability policy and the Hold Harmless Agreement between the manufacturer and the distributor. Under this agreement, the manufacturer had contractually agreed to maintain insurance coverage for liability claims, including product liability claims for both the manufacturer and the distributor.

Finding both prongs of the innocent seller statute satisfied, the court entered an order dismissing the distributor from the case.

Defense Victory in Negligent Auto Repair Claim

08 Apr 2024

Our firm was hired to defend a full-service auto repair shop client regarding a negligent repair claim alleged on a pickup truck, which the plaintiff asserted caused engine failure. Our client contended the repairs were made correctly, and the engine failure was caused by other reasons. After a bench trial, the court issued a ruling in our client’s favor.

Summary Judgment Obtained for Road Construction Company Client in Kansas District Court

04 Jan 2024

The Eighteenth Judicial District Court in Sedgwick County, Kansas, has granted our motion for summary judgment on behalf of our road construction company client in a matter involving a motorcycle accident. In this incident, the plaintiff collided with a steel bollard near a baseball stadium, resulting in injuries. The plaintiff alleged that the negligent design of the bollard was responsible for the incident, holding design-build contractors and others liable.

Our summary judgment motion highlighted the absence of specific allegations of negligence and the plaintiff’s failure to provide expert witness testimony supporting their claims against our client. The court agreed, dismissing the case and awarding court costs to our client.

Furthermore, a third-party claim against our client for contractual indemnity, citing negligent construction and/or installation related to the paving, hardscapes and bollards/receivers mentioned in the plaintiff’s claim, was also dismissed.

Baker Sterchi Secures Defense Verdict for Commercial Client in Breach of Contract Action

21 Dec 2023

Following a six-day jury trial in Madison County, Illinois, Baker Sterchi successfully secured a complete defense verdict for a commercial client in a case that included claims of breach of contract and negligence.

Plaintiffs alleged a sunroom installation company negligently installed a residential sunroom causing water damage that necessitated the house be stripped to its stud and ultimately resulting in hundreds of thousands of dollars in damages. The defense countered that the Plaintiffs refused to work with our client after attempts to repair the damage, as the Plaintiffs insisted on a “guarantee” that there would never be mold in the house, despite two negative mold tests in the first year after the incident.

At trial, Plaintiff sought damages in excess of $600,000. The case resulted in a complete defense verdict.

Baker Sterchi Obtains Dismissal for International Restaurant Chain Company

31 Oct 2023

Baker Sterchi recently obtained dismissal of all claims against its client, an international restaurant chain company, in a negligence action. The case arose out of a slip and fall incident that plaintiff alleged caused him to require ankle surgery, treatment for soft tissue injuries to his shoulder, and related permanent limitations. Specifically, plaintiff alleged that he slipped and fell on ice-covered concrete steps as he walked to his car in the restaurant parking lot. The restaurant filed a motion to dismiss the claim on procedural grounds, arguing plaintiff failed to carry his burden to meet Missouri’s fact-pleading standard because – among other deficiencies – the petition did not include sufficient factual allegations to establish the defendant owed a duty to plaintiff. The Circuit Court of Taney County, Missouri, held oral arguments on the motion during which plaintiff asked the court to consider information outside the pleadings, including communications between plaintiff’s counsel and the restaurant’s alleged insurance adjuster. Following oral arguments, the court requested that the defendant convert its motion to dismiss to a motion for summary judgment to allow the court to consider information outside the pleadings. After the converted motion for summary judgment and supporting brief were filed, plaintiff voluntarily dismissed the restaurant and simultaneously asked the court to allow the case to survive without a named defendant until a proper defendant could be named. The court dismissed the case with prejudice sua sponte.

Summary Judgment Victory for Multinational Technology Company in Product Liability Case

24 Oct 2023

Baker Sterchi Cowden & Rice in collaboration with our client’s lead counsel with Gordon Rees Scully Mansukhani, LLP, obtained a defense judgment in a case filed by a car transport company which sought $1.8 million in damages.

The case was originally filed in Delaware in 2019 but subsequently dismissed and refiled in the District Court for Johnson County, Kansas. Plaintiff claimed that they were relying upon a navigation device designed by the client during a route to transport vehicles, when they struck a low bridge, damaging the subject tractor-trailer and its contents.

Baker Sterchi and Gordon Rees filed a summary judgment motion, asserting that at the close of discovery, plaintiff had failed to establish that the product at issue was defective where the only evidence proffered for a claimed “defect” was an expert’s testimony that, at a later date, the GPS device did not signal a warning of the low bridge or that data was unavailable. Counsel also argued that plaintiff failed to establish a prima facie claim for its express warranty claim due to a driver’s non-delegable duty to exercise caution, and that plaintiff could not establish that the subject GPS was purchased for something other than its ordinary purpose, rendering the breach of implied warranty claim invalid.

Baker Sterchi and Gordon Rees also filed and argued a motion to strike several late witnesses and untimely-disclosed categories of damages, which threatened to quintuple plaintiff’s original damage claim. Ultimately, the Court ruled in favor of the defense as to both motions. This result is a meaningful win for technology companies that have GPS navigation device product offerings, as drivers must exercise reasonable caution whether or not they claim to rely upon the device.

Baker Sterchi Obtains Dismissal for Missouri Hospital

12 Sep 2023

Baker Sterchi recently secured dismissal of all claims against a Missouri hospital client. The lawsuit arose from an admission to the hospital in December 2017; however, the plaintiff filed the lawsuit more than two years later. The plaintiff alleged his numerous claims against the hospital were not related to healthcare, but instead arose out of fraud and other ordinary negligence subject to the five-year statute of limitations.

The hospital moved to dismiss the petition, arguing that because the plaintiff’s claims were rooted in the provision of health care, they were subject to the two-year statute of limitations. The hospital further argued the plaintiff could not circumvent Missouri’s two-year statute of limitations for medical malpractice claims by mischaracterizing his medical malpractice claim as a different cause of action.

Following oral argument on the motion, the trial court agreed with our client’s position, ruling all of plaintiff’s claims of injury - regardless of how they were characterized - were “rooted in the provision of health care and medical negligence covered by the two-year statute of limitations and, therefore, time barred.”

Baker Sterchi Secures Favorable Result in Property Damage Dispute

03 Aug 2023

Baker Sterchi recently achieved a favorable result for our engineering design professional client in a million-dollar-plus property damage dispute pending in Greene County, Missouri. The case involved an insurance company plaintiff seeking to hold our client accountable for damages resulting from a brick façade detachment incident at a luxury apartment complex. This incident caused extensive damage to the apartments when bricks fell through the roof and ceiling. The fallen bricks also destroyed several RTUs (roof top units).

On behalf of our client, we filed a summary judgment motion which aimed to dismiss all counts against them, asserting the absence of any controverted material fact, which meant no duty was owed by our client to the plaintiff. Specifically, we argued that the plaintiff had not factually pled the existence of a recognized duty, and based on the admitted facts, the plaintiff could not establish a legally recognized duty owed by our client. The summary judgment motion was filed before any significant discovery had occurred, saving the client costs.

On July 27, 2023, rather than respond to the summary judgment motion, the plaintiff voluntarily dismissed the case.

Baker Sterchi Obtains Defense Judgment for Excess Insurer on COVID Business Interruption Claim

26 Jul 2023

Baker Sterchi recently secured judgment in favor of a client in a COVID business interruption insurance coverage dispute in the Circuit Court of Jackson County, Missouri. The client was an excess insurer in a group of insurers who provided property insurance through a quota share program to the plaintiffs. The plaintiffs in the case owned 284 business properties located throughout the United States. The plaintiffs claimed losses exceeding $150,000,000 due to the COVID pandemic and related governmental shut down orders. They sought coverage for these losses under the business interruption and other provisions of the insurance program.

The court granted the insurers’ motion for judgment on the pleadings, ruling in favor of Baker Sterchi’s client on all of plaintiffs’ claims. Specifically, the court found that the plaintiffs did not meet the threshold for direct physical loss of or damage to property required by the business interruption coverage provision because plaintiffs failed to identify any specific tangible, physical alteration to any property caused by COVID. Moreover, the court found that the civil or military authority coverage in the insurance policies also required physical damage to some property that the plaintiffs could not allege. The court also found there was no impending physical loss or damage to insured property as required for protection and preservation of property coverage.

The plaintiffs' attempt to claim loss of attraction coverage against Baker Sterchi's client was also unsuccessful, as the court found the attachment point of its excess insurance was above the sublimit of the loss of attraction coverage. Finally, because there was no coverage under the insurance policy, Baker Sterchi’s client was granted judgment on plaintiffs’ statutory claim for vexatious refusal to pay.

The case is Bluegreen Vacations Holding Corp., et al. v. Scottsdale Ins. Co., et al., No. 2116-CV07753 (Mo. 16^th Cir. Ct. June 30, 2023).

Baker Sterchi Obtains Summary Judgment in Insurance-Related Commercial Dispute

13 Jul 2023

Baker Sterchi recently obtained full summary judgment in favor of their clients in a complex commercial dispute arising out of an agreement to provide workers’ compensation insurance.

In this case, plaintiffs alleged they entered an Administrative Service Organization Agreement that obligated Baker Sterchi’s clients to defend a workers’ compensation claim and pay workers’ compensation benefits due to any employee who suffered serious injuries after falling from a ladder. Baker Sterchi moved for summary judgment on the plaintiffs’ declaratory judgment claims. The court granted summary judgment on the basis that the agreement was not ambiguous and did not obligate the defendants to provide workers’ compensation insurance.

In a comprehensive 46-page opinion, Judge Daniel Crabtree in the United States District Court for the District of Kansas found that the agreement at issue was unambiguous and did not apply to the employer of the injured employee. Likewise, the court found that the undisputed facts did not allow reformation of the agreement on the basis of fraud or mutual mistake. The court also found in favor of defendants on plaintiffs’ claims under Kansas insurance regulations. Finally, the court found that there was no case or controversy among certain of the parties. In total, the court entered judgment in favor of defendants on each of the nine declarations sought by the plaintiffs.

The case is Eucalyptus Real Estate, LLC v. Innovative Work Comp. Sols., LLC, No. 21-4091-DDC-GEB, __ F.Supp.3d ___, 2023 WL 3750563 (D. Kan. June 1, 2023).