Case Summary for October 29, 2008

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Case Summary for October 29, 2008

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, October 29, 2008

__________________________________________________________________________________________

SC89239
Amy Difatta-Wheaton v. Dolphin Capital Corporation, State of Missouri, Division of Employment Security
Randolph County
Whether termination of employment was voluntary
Listen to the oral argument:

DiFatta-Wheaton was represented during argument by Susan Ford Robertson of Ford, Parshall & Baker in Columbia, and the state was represented by Matthew W. Murphy of Jefferson City.

Amy Difatta-Wheaton began working for Dolphin Capital Corporation in November 2005. She was given medical leave in May 2006. She was to return to work on Monday, May 29, but on Sunday, May 28, she had health problems and was unable to return to work the next day. She alleged that she left a message on the officer manager's answering machine Monday morning, notifying her of the medical emergency and that her doctor faxed a similar written message to her employer. On June 5, 2006, the employer determined that Difatta-Wheaton had resigned voluntarily because of unexcused absences from May 29 to June 5. She filed an initial claim for unemployment benefits in June 2008, but the deputy with the Division of Employment Security determined that Difatta-Wheaton voluntarily quit her job without good cause. Difatta-Wheaton appealed, but the Labor and Industrial Relations Commission affirmed the division's decision. Difatta-Wheaton appeals.

Difatta-Wheaton argues that she did not voluntarily leave her work but rather was fired after she was unable to attend work due to a medical emergency.

The division responds that the commission did not err in finding Difatta-Wheaton was disqualified from receiving unemployment benefits pursuant to section 288.050.1, RSMo. It argues she voluntarily left work without good cause attributable to her work or employer when she withdrew from employment due to a personal illness unrelated to her work.

SC89318
Kenneth Sundermeyer, Individually and as a Personal Representative for Elva Elizabeth Sundermeyer, Deceased v. SSM Regional Health Services d/b/a Villa Marie Skilled Nursing Facility
Cole County
Wrongful death claim
Listen to the oral argument:

The Sundermeyers were represented during argument by Anthony L. DeWitt of Bartimus, Frickleton, Robertson & Gorny, P.C., inJefferson City, and Villa Marie was represented by Jeffery T. McPhearson of Armstrong Teasdale, LLP, in St. Louis.

Elizabeth Sundermeyer was admitted to Villa Marie Skilled Nursing Facility in June 2001. Her children subsequently alleged she was being abused and neglected at the nursing home and moved her to another facility in July 2007. Sundermeyer died 25 days later. Sundermeyer's children sued Villa Marie for their mother's wrongful death. They alleged the nursing home's abuse was so severe that it caused Sundermeyer to lose the will to live. The nursing home moved for summary judgment on the issue of causation. It alleged the Sundermeyers' only causation expert, Dr. Thomas Magner, testified that the cause of death was speculative. In June 2006, the circuit court granted the nursing home summary judgment. The Sundermeyers appeal.

The Sundermeyers argue the trial court erred in granting summary judgment because the cause of death was a material fact in dispute and Manger testified to a reasonable degree of medical certainty that the cause of Sundermeyer's death was abuse and neglect she suffered at Villa Marie. They contend the trial court's finding that the opinion was not to a reasonable degree of medical certainty is refuted by the record. They assert the trial court did not apply the law regarding expert opinions properly in finding that speculation rendered the opinion incompetent because the medical records and literature provided a sufficient foundation for Manger's opinion.

The nursing home responds the Sundermeyers failed to produce evidence to support their theory that their mother died because the nursing home caused her to lose the will to live. The nursing home contends that Manger's testimony does not prove causation and that no other evidence supports the Sundermeyers' claim.

SC89152
St. John's Mercy Health System v. Division of Employment Security, et al.
St. Louis County
Constitutional validity of unemployment benefit law
Listen to the oral argument:

St. John's was represented during argument by Julie A. Bregande of Clayton, and the union was represented by Janine M. Martin of Hammond, Shinners, Turcotte, Larrew & Young, P.C., in St. Louis.

St. John's Mercy Health System had a collective bargaining agreement with a union representing its registered nurses in October 2001. One of the terms directed St. John's to fire any nurse who did not join and pay initiation fees and dues to the union. The union asked St. John's to fire the nurses who refused to join the union, but St. John's refused. After arbitration in May 2003, St. John's paid the union an amount equal to the unpaid initiation fees and dues for the nurses who did not join the union. St. John's was to pay again pursuant to an arbitration award in April 2004, but St. John's claimed the arbitration award violated public policy and it refused to fire the nurses. The union pursued relief in federal court and before the National Labor Relations Board, where unfair labor practice allegations were brought by the union and by St. John's. Eventually the union called a strike against St. John's in December 2004, ending in January 2005. The nurses who went on strike sought unemployment compensation benefits for the period of the strike. A deputy for the Division of Employment Security determined that no benefits should be paid pursuant to section 288.040, RSMo, because the unemployment was caused by participation in the strike. The union appealed the deputy's decision, and the Labor and Industrial Relations Commission determined that the nurses should have received unemployment benefits, holding that if an employer is guilty of an unfair labor practice claim, then striking employees may receive unemployment benefits. St. John's appeals.

St. John's argues that section 288.040 requires a deputy's determination that the nurses were eligible for the benefits, but a deputy never made that determination. It contends section 288.040 is unconstitutional because it allows unemployment compensation benefits to the striking nurses, despite the lack of evidence that a prior National Labor Relations Board unfair labor practice finding had any causal connection to the nurses' decision to strike. It argues section 288.040 facially violates the equal protection provisions of the United States and Missouri constitutions because it lacks any rational basis and the exemption serves no legitimate governmental interest.

The union responds that the commission's decision was based on a constitutional construction of section 288.040. It contends the statute disqualifies striking employees from receiving unemployment benefits only if the employees are unemployed through no fault of their own, but the statute purposely provides an exception for striking employees whose employer has been found guilty of an unfair labor practice act committed before or during the strike. The union argues section 288.040 is constitutional on its face given the reasonable and logical meaning of the statute. It asserts the legislature purposefully carved an exception for striking individuals whose employers were found guilty of an unfair labor practice claim.

SC89291
Dale Lawrence v. Beverly Manor
Jackson County
Arbitration agreement and wrongful death claim
Listen to the oral argument:

Beverly Manor was represented during argument by Jon W. Jordan of Sandberg, Phoenix & Von Gontard of St. Louis, and Lawrence was represented by Tim Dollar of Kansas City.

Dale Lawrence's mother was admitted to Beverly Manor, a long-term care facility, in March 2003. To be admitted, her attorney–in-fact, her daughter Phyllis Skoglund, signed an agreement providing for arbitration of any claims that Mother had against Beverly Manor. Mother died five days after she was admitted, after her head hit the floor when she was lifted from a chair and dropped. In December 2004, Lawrence sued Beverly Manor for the wrongful death of his mother, arguing its negligence led to her death. Beverly Manor sought to compel arbitration of the claims. In January 2007, the circuit court overruled the motion. Beverly Manor appeals.

Beverly Manor argues its arbitration agreement with Mother is binding on Lawrence even though he was not a party to the agreement. It contends Skoglund signed the valid, enforceable arbitration agreement pursuant to her durable power of attorney, which meant Skoglund had authority to consent to the agreement and to act on Mother's behalf. Beverly Manor asserts the arbitration agreement applies to Lawrence's wrongful death claim because his mother agreed to arbitrate all claims arising out of any healthcare provided by Beverly Manor and because his wrongful death claim is derivative of the claim his mother could have brought. It further argues this Court acknowledged wrongful death claims are derivative in State ex rel. Burns v. Whittington, 219 S.W.3d 224 (Mo. banc 2007), and, therefore, are covered by Mother's arbitration agreement. It contends Burns should be applied retroactively.

Lawrence responds the arbitration agreement is not binding on his wrongful death claim because the it only covers claims arising out of any healthcare provided by Beverly Manor to Mother during her lifetime. He contends his wrongful death claim is not derivative of the claim Mother could have brought. He asserts that, although Skoglund held durable power of attorney, she was not the one who brought the wrongful death claim. Lawrence argues Burns should not be applied retroactively as it was not the law at the time this action arose.

The Missouri Association of Trial Attorneys argues, as a friend of the Court, that the alternative dispute resolution provision between Mother and Beverly Manor is not binding on wrongful death claims. It contends that only the parties to a contract are bound by the terms of the agreement to arbitrate and that the contract's terms cannot be forced onto a non-party.

The Missouri Chamber of Commerce and Industry argues, as a friend of the Court, that wrongful death actions are derivative and, therefore, the rights of a claimant are limited to those the decedent would have had. Accordingly, it contends Lawrence is bound by his mother's arbitration agreement.