Case Summary for May 6, 2009

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Case Summary for May 6, 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. Wednesday, May 6, 2009

_________________________________________________________________

SC89844
Morris Jones and Pamela Brown v. Mid-Century Insurance Company
Scott County
Set-off in calculating underinsured motorist benefits
Listen to the oral argument:

Jones and Brown were represented during argument by Phillip J. Barkett Jr. of Cook, Barkett, Maguire & Ponder, L.C., in Cape Girardeau, Mo., and Mid-Century was represented by William Snckenberg of Sneckenberg, Thompson & Brody, LLP, of Chicago, Ill.

In December 2004, Morris Jones was driving a truck in which Pamela Brown was a passenger when they were struck by another vehicle. The driver of the other vehicle was insured by American Family Insurance with liability limits of $50,000 per person. American Family paid Jones and Brown $50,000 each for the injuries they sustained in the accident. Jones and Brown were insured at the time of the accident by Mid-Century Insurance Company, which provided $100,000 per person for underinsured motorist coverage. In June 2007, Jones and Brown each sought $100,000 from Mid-Century pursuant to the underinsured motorist coverage, alleging they each had more than $150,000 in damages from the accident. Mid-Century paid Jones and Brown $50,000 each pursuant to the underinsured motorist benefits. The company argued the maximum of underinsured motorists benefits was $100,000, so it reduced the amount owed by the $50,000 American Family paid. Jones and Brown sued, arguing they each were entitled to an additional $100,000 based on the language of the policy as it would be understood by a layperson purchasing the coverage. In August 2007, the trial court held that Mid-Century was entitled to set-off the $50,000 American Family had paid, based on provisions of the Mid-Century policy. Jones and Brown appeal.

Jones and Brown argue that Mid-Century was not entitled to a $50,000 set-off credit against the $100,000 underinsured motorist coverage available and that they each were entitled to an additional $100,000. They contend interpreting the insurance policy's language to allow a set-off is contrary to Missouri law. They assert the policy language relating to the underinsured motorist coverage is ambiguous, is reasonably open to different constructions and, therefore, should be construed against Mid-Century and in their favor.

Mid-Century responds that Jones and Brown each were entitled to recover only $50,000 of underinsured motorists benefits. It contends the plain and unambiguous language of the policy stated the maximum amount was $100,000, reduced by the amount paid by the other driver's insurer.

SC89473
State of Missouri v. Jacob R. Pribble
St. Louis County
Constitutional validity of statute prohibiting enticement of a child
Listen to the oral argument:

Pribble was represented during argument by Matthew A. Radefeld of Frank, Juengel & Radefeld Attorney's at Law, P.C., in St. Louis, and the state was represented by James B. Farnsworth of the attorney general's office in Jefferson City.

In June 2006, section 566.151, RSMo, was amended to make enticement of a child or attempted enticement of a child an unclassified felony, punishable by a minimum of five years in prison with no eligibility for parole, probation, conditional release, or suspended imposition or execution of sentence. The amendment was passed as an emergency measure taking effective immediately when it was approved June 5, 2006. In August 2006, a police officer conducting an undercover investigation online entered chat rooms posing as a 14-year-old girl. Jacob Pribble sent an instant message to the officer, and they began exchanging messages online. The 80-minute chat included topics of a sexual nature. Eight days later, Pribble again contacted the officer, posing as the same child, and again discussed topics of a sexual nature. They agreed to meet at a nearby park. When Pribble arrived at the park at the specified meeting time, he was arrested and subsequently was charged with one count of attempted enticement of a child. He moved to dismiss, arguing section 566.151 was unconstitutional. The circuit court overruled his motion. Pribble was found guilty of attempted enticement of a child and was sentenced to six years imprisonment. Pribble appeals.

Pribble argues section 566.151 is unconstitutional. He asserts imposing a mandatory five-year prison sentence without the possibility of parole constitutes cruel and unusual punishment and is grossly disproportionate when compared to the statute's previous penalty provision and sentences given to other defendants for similar crimes. Pribble contends the statute is overbroad because it prohibits conduct he believes a person is entitled to do. He asserts Internet communication is constitutionally protected activity and is different than face-to-face enticement of a child, but the statute prohibits both types of communication. He contends the statute prohibits free speech and that Internet communication, even if sexual in nature, is a protected activity that cannot be regulated without a compelling government interest. Pribble argues the statute also is vague because a person of ordinary intelligence would be confused as to the meaning of the word "convicted" in the penalty provision. Pribble asserts the statute is unconstitutionally retrospective because no valid emergency existed to allow the amendment to take effect prior to August 28, 2006, and, therefore, the amended provision should not have be effective until that date, 90 days after the general assembly adjourned – and after the date on which he was arrested – instead of the emergency effective date of June 5, 2006.

The state responds that the statute's mandatory minimum five-year sentence is not grossly disproportionate to Pribble's offense, when he attempted to entice a 14-year-old girl to meet him for the purpose of engaging in sexual conduct. It asserts that the statute is not overbroad or vague but is in line with the way other statutes are written and that Pribble's arguments have no merit. The state argues Pribble's right to freedom of speech was not prohibited because there is no constitutional right to solicit children for sex and Pribble solicited "the girl" because his purpose in talking to her was to engage in sexual conduct with her, evidenced by his specific arrangements to meet with her, then going to the agreed-upon meeting. The state further responds that the law validly was amended as an emergency measure and that, even if the amendment was ineffective as an emergency measure, the indictment was sufficient because the amendment altered only the penalty provision of section 566.151, not any element of the crime.

SC89795
Moore Automotive Group, Inc. v. Sandy Goffstein and Goffstein, Raskas, Pomerantz, Kraus & Sherman, LLC
St. Louis County
Conversion and embezzlement
Listen to the oral argument:

The company was represented during argument by Jamie L. Boock of Rossiter & Boock, LLC in St. Louis, and the law firm was represented by Michael Fischer of The Stolar Partnership LLP in St. Louis..

Julie Lewis transferred more than $286,700 to Sanford Goffstein and his law firm in October 2005. The next month, Moore Automotive Group sued Lewis for embezzling more than $2 million. In the trial against Lewis, Goffstein testified the money Lewis transferred to the law firm was to be used to repay Moore for the money Lewis embezzled. He later said the money was a legal fee that was earned or was an advance fee to be used for Lewis' legal fees and expenses. In May 2007, Moore sued the law firm for conversion, constructive trust, fraud, money had and received, and civil conspiracy. In February 2008, the circuit court granted the law firm's motion for summary judgment. Moore appeals.

Moore argues it properly alleged its claims for conversion, fraud and civil conspiracy. It contends that there are genuine issues of material fact as to why Lewis transferred the money to the law firm and that these factual issues, if resolved in Moore's favor, support the company's legal claims. Moore asserts the circuit court erred in sustaining the firm's motion for summary judgment on its claims of constructive trust and monies had and received because Moore's failure, in the lawsuit against Lewis, to object to the law firm's answers to the garnishment interrogatories should not bar Moore's equitable claims against the law firm in this lawsuit. It further argues the trial court abused its discretion in limiting discovery to a single deposition of the law firm and staying all other discovery until after ruling on the law firm's motion for summary judgment because the law firm. Moore asserts this discovery limit resulted in a manifest injustice to the company in that the law firm never filed a complete answer to Moore's petition and never responded to its interrogatories. It contends additional discovery will produce evidence that contradicts facts the law firm claims are not in dispute.

The law firm responds that Moore failed to file exceptions or denials in response to its answers to the garnishment interrogatories. It contends that, pursuant to Rule 90, Moore's claims for conversion, fraud and conspiracy and equity claims for constructive trust and money had and received conclusively are barred as a result of Moore's failure to object to the law firm's answers to garnishment interrogatories in the case against Lewis. The law firm argues that those answers established facts negating each of Moore's claims in the present case and that Moore has not and cannot state a valid claim for conversion or fraud. The law firm asserts that, because equity must follow the law, Moore cannot state equitable claims after the matter has been determined fully in the law firm's favor in a legal proceeding in the case against Lewis. The law firm argues the trial court did not abuse its discretion over discovery matters by permitting the deposition of Goffstein and staying additional discovery pending a ruling on the law firm's motion for summary judgment because no additional discovery was needed.

SC89809
Faisal J. Albanna, M.D. v. State Board of Registration for the Healing Arts
Cole County
Discipline of doctor's medical license
Listen to the oral argument:

Albanna was represented during argument by James B. Deutsch of Blitz, Bardgett & Deutsch, L.C., in Jefferson City, and the board was represented by Glenn E. Bradford of Kansas City.

In January 2003, the board of registration for the healing arts found cause to discipline the medical license of Dr. Faisal Albanna, a St. Louis neurosurgeon, due to his treatment of two patients. It held he engaged in unprofessional conduct, conduct that might be harmful to the health of the patients, negligent treatment and incompetent treatment of one of the patients. The board filed a complaint with the administrative hearing commission to discipline Albanna's license. Following a hearing, the commission found cause to discipline Albanna's license for unprofessional conduct. The board placed Albanna's license on probation for five years. Albanna appeals.

Albanna argues the commission misapplied the applicable legal standards and did not present evidence of conduct that was unprofessional or negligent sufficient to discipline him. He contends that repeated negligence requires a gross departure from the appropriate standard of care and that the evidence does not support a finding that his actions were a clear departure from the conduct of neurosurgeons pursuant to the reasonable medical judgment rule. Albanna further argues the commission erred in finding he engaged in conduct that is or might be harmful or dangerous to a patient. He asserts there was no testimony that "but for" Albanna's actions, his patients would not have suffered harm. Albanna contends that he successfully has performed more than 8,500 surgical procedures over a 15-year career and that there is no evidence of record showing incompetency. He asserts the board exceeded the recommendation of discipline of its own counsel and of the commission without evidence, explanation or findings of face. Albanna argues five years of probation is arbitrary and capricious because no other similarly situated licensee has been punished as severely and because such discipline is discriminatory in that, he contends, he has been treated differently and more harshly due to his nationality.

The board responds that Albanna's license is subject to discipline for unprofessional conduct. It argues that it the commission correctly applied the law and that there was substantial and competent evidence to support a finding that Albanna's conduct breached professional standards based on common opinion and fair judgment. The board asserts that the evidence showed Albanna was repeatedly negligent and that repeated negligence, as defined by statute, does not require a heightened finding or a gross departure from the appropriate standard of care. It contends the reasonable medical judgment rule does not apply to this case because expert testimony was presented that supported the commission's findings Albanna was negligent in his treatment of the two patients. The board further responds that its finding that Albanna was incompetent was supported by competent and substantial evidence and is consistent with a finding of general lack of professional ability. It asserts placing Albanna's license on probation is fair and authorized by law. The board contends this discipline is justified by statutory authority, is required to protect the public, is not discriminatory and is the result of a fair and impartial hearing.