Case Summary for October 29, 2009

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Case Summary for October 29, 2009

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Thursday, Oct. 29, 2009

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SC90093
Debra Derousse v. State Farm Mutual Automobile Insurance Company
Jefferson County
Uninsured motor vehicle insurance
Listen to the oral argument:

Derousse was represented during argument by Alan S. Mandel of Schlueter, Mandel & Mandel, L.L.P. in St. Louis, and the insurance company was represented by Gary P. Paul of Brinker & Doyen, L.L.P. of Clayton.

Debra Derousse was driving on a highway when another motor vehicle struck a bluff and ejected a body from the vehicle onto Derousse's hood. The body fell off Derousse's car, and she drove over it. Derousse got out of her car and recognized the person who had landed on her vehicle. When emergency responders arrived on the scene, Derousse did not feel injured and refused medical treatment. She later suffered from nightmares, nausea, anxiety and pain in her head and back. Derousse went to therapy through October 2006. As the motorist from the other vehicle was uninsured, Derousse sought damages pursuant to her policy with State Farm Mutual Automobile Insurance Company for uninsured motorist coverage. The insurance company denied the claim, and Derousse sued. The insurance company moved for summary judgment. The trial court granted State Farm's motion for summary judgment. Derousse appeals.

Derousse argues State Farm was not entitled to summary judgment because there were genuine issues of material fact concerning whether or not her injuries were covered under the insurance policy. She contends the term "bodily injury" in her policy should include mental or emotional injuries with physical manifestations. Derousse asserts the insurance company's policy was ambiguous; therefore, the policy should have been construed in her favor. She further argues the insurance policy does not comply with the Missouri financial responsibility act by limiting its application to physical injuries.

The insurance company responds Derousse's policy clearly and unambiguously only provides coverage for "bodily injury" and "bodily injury" does not include emotional distress or physical manifestations from emotional distress. It contends Derousse did not properly preserve the question of whether her policy covered physical manifestations of emotion distress as "bodily injury" because she did not plead in her petition that she sustained physical manifestations of emotional distress. State Farm further responds the uninsured motorist statute, section 379.203, RSMo, does not mandate coverage for Derousse's claims of emotional distress or physical manifestations thereof in that the statute only mandates coverage for "bodily injury," which clearly and unambiguously does not include the ailments alleged by Derousse.

SC90021
State of Missouri v. Paul Wesley McCurry-Bey
City of St. Louis
Competency to stand trial in sex abuse case
Listen to the oral argument:

McCurry-Bey was represented during argument by Loyce A. Rhodes Hamilton of the public defender's office in St. Louis, and the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

Paul McCurry-Bey was charged with three sexual offenses against his daughter that occurred between August and September 2005. In June 2007, he was convicted of all three counts. At the sentencing hearing, McCurry-Bey sought to delay sentencing and to order an evaluation of his competency to stand trial. The trial court ordered him to be committed to the department of mental health for an evaluation. The department issued a report that McCurry-Bey was incompetent to stand trial and incompetent to be sentenced. The state objected to the report and requested an additional psychiatric examination. The second report also found McCurry-Bey was incompetent to stand trial and to be sentenced. Despite the evaluations, in April 2008, the trial court sentenced McCurry-Bey to 20 years imprisonment. McCurry-Bey appealed.

McCurry-Bey argues the trial court violated his constitutional rights to due process and a fair trial. He contends the evidence shows he is mentally retarded and has mental defects that render him incapable of making intelligent, knowing decisions about his legal proceedings or to provide his attorney with mitigating evidence or things that would refute evidenced presented. McCurry-Bey further argues the trial court should not have allowed, over his objections, the state's expert's testimony that bolstered and vouched for his daughter's testimony.

The state responds the trial court properly found McCurry-Bey was competent to stand trial and be sentenced based on substantial evidence. It argues its expert did not give an opinion on McCurry-Bey's daughter's credibility but only his opinion as to her statements, behavior changes and the similarity to those as seen in other sexually abused children of a similar age. The state further responds the expert never explicitly stated he found the child to be credible and did not express an opinion as to the credibility of her trial testimony.

SC89987
In re: Linda F. Jarman
St. Louis County
Attorney Discipline
Listen to the oral argument:

The disciplinary counsel was represented during argument by Shevon L. Harris of the chief disciplinary counsel in St. Louis, and Jarman, of Ferguson, represented herself.

Linda Jarman is a licensed attorney in St. Louis County. The Office of Chief Disciplinary Counsel seeks to have Jarman's license put on six-months probation based on complaints filed by two of Jarman's clients.

The first client filed a complaint against Jarman with the Office of Chief Disciplinary Counsel for Jarman's representation of her in municipal court. In May 2007, the client paid Jarman $75 to represent her for two traffic tickets, a seat-belt ticket and a speeding ticket, in the City of St. Louis municipal division. Jarman spoke with the city counselor about the charges and obtained a recommendation that the seat-belt ticket would be dismissed and the speeding ticket would be reduced to a non-moving violation so that the client would not receive any points on her driver's record upon payment of the court costs and fines. They also agreed to a new court date for the client's payment and acceptance of the recommendation. Soon after, the client attempted, but was unable, to contact Jarman regarding the tickets. Jarman later called the client and informed her of the recommendation and new court date. Jarman advised the client her fines and costs would be $185 and that she should pay them in early August 2007. In July 2007, the municipal division advised the client that a warrant for her arrest had been issued in June due to her failure to appear in court to respond to the traffic violations. The client called Jarman, but Jarman's telephone line had been disconnected with no forwarding number. The client paid court costs, fines and warrant recall fees, and filed a guilty pleas to the traffic violations, resulting in points assessed on her driver's record for the speeding ticket. The disciplinary counsel alleges that Jarman did not report the client's new court date to a court clerk and took no further action to ensure the new court date was entered into the court's database and that even when Jarman learned of the client's guilty pleas, she did not take any action. Jarman alleges she did not know there was a problem until she received the complaint from the disciplinary counsel.

Jarman represented a second client in various domestic proceedings. In April 2007, the client's daughter consulted with Jarman about modifying her parent's dissolution of marriage decree to have her father's child support payments paid directly to her. Jarman alleges the daughter has never been her client, but the disciplinary counsel alleges Jarman did not advise the daughter that a potential conflict of interest existed since Jarman represented her mother. In late April or early May 2007, the daughter paid Jarman $300 to prepare and file the motion to modify the dissolution decree. A presiding judge informed Jarman she must obtain consent from the client to represent her daughter. The client consented to the representation as long as the daughter paid the attorney's fees and court costs for the modification. Jarman then learned the daughter could have represented herself because she was of age to do so. Jarman drafted the motion to modify the child support payments and filed it with the court, paying the filing fee from the money she had been paid by the daughter. Ultimately, the child support was changed to be directly deposited into the daughter's account without the court needing to take action, and Jarman withdrew the motion to modify. In August 2007, Jarman refunded $100 to the daughter, stating she paid $155 for court costs and kept $45 for drafting the motion.

In May 2008, a two-count information was filed against Jarman for professional misconduct. Jarman and the disciplinary counsel agreed to stipulate that Jarman's conduct violated Rules 4-1.1 (competence), 4-1.3 (diligence), 4-1.4 (communication), and 4-1.9(a) (duties to former clients). They agreed to recommend Jarman's license be suspended for six months, but that the suspension be stayed pending a 12-month probation with certain conditions. The day before the November 2008 disciplinary hearing, Jarman was ill and advised the disciplinary counsel she would not be able to attend the next day's hearing. Jarman provided the disciplinary counsel with an executed copy of the joint stipulation of facts, proposed conclusions of law and recommended discipline to be presented, and the disciplinary counsel agreed to explain Jarman's absence. After the hearing the disciplinary counsel saw Jarman in the courthouse. The disciplinary counsel told the hearing panel presiding officer of her encounter with Jarman. In January 2009, the hearing panel recommended a one-year suspension with no probation until reinstatement. It found Jarman's failure to participate in the hearing, after reporting an inability to attend because of illness despite being in the courthouse at the time of the hearing, constituted an additional aggravating factor justifying the longer suspension without probation. The disciplinary counsel and Jarman both ask this Court to accept their original stipulated disposition of a six-month suspension with probation.

The disciplinary counsel argues this Court should suspend Jarman's license for six months, stay the suspension and order Jarman to submit to a one-year probation period subject to the conditions in the probation agreement. It contends the sanction agreed to best serves the purposes of lawyer discipline to protect the public and the profession from recurrence of the misconduct that has marked Jarman's past practice. The disciplinary counsel asserts Jarman is subject to discipline based on her representation of one client for violating Rules 4-1.1 and 4-1.3 when Jarman failed to ensure the new court date for payment and acceptance of the city counselor's recommendation was entered into the municipal division's computer database and when Jarman made no attempt to withdraw the client's guilty pleas and reinstate the city counselor's prior recommendations or take any other mitigating action on the client's behalf. It contends Jarman also violated Rule 4-1.4(a) by failing to ensure that she had a reliable mode of communication to keep clients reasonably informed about the status of matters and in which to enable her clients to contact her. The disciplinary counsel further argues Jarman stipulated that in her representation of the second client, Jarman violated Rule 4-1.2 when she failed to review the relevant statute concerning the procedural requisites for filing a motion to modify and when she failed to advise the client and her daughter that the motion could be filed in the daughter's name. It asserts she also stipulated to violating Rule 1.9(a) in failing to obtain consent from the client, prior to rendering legal advice to the client's daughter and accepting advanced money from the daughter for attorney's fees and court costs.

Jarman responds she did not represent the second client's daughter and she complied with that client's request to have the money deposited into her daughter's account. She argues that she did not have control over the events with the first client, but that she agreed on a disciplinary plan and accepted a six-month suspension with a stay based on compliance with certain conditions. Jarman asks that if discipline is deemed appropriate in the first client's situation, the Court consider the lack of control she had over the input of the information by the municipal division and that the Court consider the only notice she had about the client's guilty plea was when she received a complaint for her representation of that client, three months after the fact.