During the arbitration proceedings Hilltop claimed that Ms. Burton was to receive a salary increase of $1000 per year in lieu of $1000 per month. As such Hilltop claimed that the $1000 month salary increase should not be considered because it was due to an "accounting error". Obviously the case worked its way through the judicial process to the Iowa Supreme Court. To reach its decision the Iowa Supreme Court interpreted section 85.36 which essentially states that the compensation rate is based upon gross earnings "for employment".
The bottom line is that after much technical discussion the court held that a "mistake" resulting in an overpayment would not be included in determining the proper indemnity rate. The Court held that whether it was a mistake is an issue of fact and sent the case back to the Commissioner for determination. It would seem that if there was an accidental underpayment that the same rules would apply.
The court also discussed the issue of whether a bonus could be included in determining the indemnity rate. Starting its discussion with a determination that an irregular bonus would not be included in the determination the court next considered whether Burton received a regular annual bonus. The Court clarified its decision in Noel by holding in essence this determination is done on a case-by-case factual basis and that great deference would be afforded the Commissioner as a result.
]]>Whether a particular person agrees or disagrees with the decision the Iowa Supreme Court approximately 2 years ago, in an unanimous decision, rendered a controversial decision to protect the constitutional rights of a minority and ruled unconstitutional a ban on same-sex marriage. The decision created a firestorm in Iowa, fueled by an influx of foreign money exceeding $1 million. This foreign money was the basis of a campaign to encourage voters to remove 3 Justices from the Iowa Supreme Court. It was successful notwithstanding the fact that nationally a majority of Americans support same-sex marriage. Since that decision other states have followed suit.
Last night these 3 Justices, former Chief Marsha Ternus, David Baker and Michael Streit received the extremely prestigious "Profile in Courage" Award from Caroline Kennedy On Behalf Of the John F. Kennedy Library Foundation. This award was established in the name and to promote the legacy of President John F. Kennedy. To understand how prestigious this award is one has to look at past recipients. They include President Gerald Ford and former UN General Secretary Kofi Annan. A co-recipient of this year's award was US Ambassador. to Syria Robert Ford for his efforts to encourage and support peaceful protesters to the repressive regime in Syria.
Now, to me, I am not asking any reader to take a position on same-sex marriage. I truly understand both sides of the issue. I believe that both sides are sincere in their beliefs. As Americans we all have the right to choose our beliefs without any fear of persecution. That is the beauty of America. I believe it is a principle reason why we are the greatest country in the world.
What I am concerned about is the freedom of the Judiciary to enforce the rule of law without fear of retribution or political pressure. If judges are required to test the winds of any one vocal group before reaching a decision our freedoms in America will be severely compromised. Politics has no place in the Judiciary. Indeed the ousted Chief Justice was appointed by a Republican Gov., Terry Branstad, and former Justice Streit was a Republican before becoming a judge who was appointed by a Democrat Tom Vilsack. The 4 remaining members of the Court were made up of appointees from both Democratic and Republican governors.
I salute these 3 distinguished Iowans who made a decision that, based upon legal principles and the Iowa Constitution, knew that they had to make regardless of what the personal consequences might be for them. I ask everyone to consider not the decision but the courageous action of these 3 Iowans who upheld the highest traditions of our judiciary in the face of personal sacrifice.
Donald G. Beattie
]]>During a brief hearing in district court here, Judge Paul Huscher approved a settlement to resolve several long-standing civil lawsuits brought by the estate of Milo farmer Tom Lyon against his neighbor, Rodney Heemstra, and Heemstra's wife, Berta.
The settlement terms were not immediately disclosed, but they involve millions of dollars. Iowa courts have previously ordered the Heemstras to pay Lyon's estate about $7 million, including interest.
A final hearing is expected sometime this summer to approve the distribution of proceeds from the sale of about 1,200 acres of Heemstra's farmland. The money will be used to make payments to Lyon's estate and to satisfy liens and mortgages, taxes, legal bills and other expenses.
Heemstra, now 52, killed the unarmed Lyon with a single shot to the head on Jan. 13, 2003, in Warren County using a .22-caliber rifle he had kept in his pickup truck.
The slaying occurred after a series of arguments over Heemstra's purchase of a rural Milo farm that Lyon had used for feeding his cattle. Both men were well-known, established farmers, and the slaying shocked the small community about 11 miles southeast of Indianola.
Until settlement talks began a month ago, Heemstra had determinedly fought every effort by the Lyon family to collect on the judgments.
"We are pleased," said Ron Danks, a Pleasantville lawyer representing the Lyon estate, after Thursday's court session.
Donald Beattie, whose Des Moines law firm also represents the Lyon family, said Thursday he couldn't discuss the settlement. He also asked Ronda Lyon, the widow of Tom Lyon, not to talk with reporters until all the legal proceedings are concluded.
Heemstra, wearing a blue striped shirt with an open collar, shook hands after the hearing with lawyers representing the Lyon family.
Beattie asked Heemstra during Thursday's hearing, "Mr. Heemstra, do we have an agreement?"
Heemstra stood and said in a firm voice, "That is correct."
Ronda Lyon, wearing a pink blouse and black slacks, sat in the second row of the courtroom with Heemstra several rows behind her.
A settlement had actually been reached in March after Heemstra and lawyers for Lyon's estate huddled at the Warren County Courthouse. But the court had deferred action until Thursday because of questions regarding tax issues involving land transfers.
Heemstra had confessed to authorities after the 2003 slaying, saying the friction between the two men had escalated to the point that Lyon had blocked the road in front of him that morning.
Heemstra claimed Lyon got out of his vehicle to confront him, and his first reaction was to take the rifle out of his truck. He contended Lyon taunted him, daring him to use the rifle. Heemstra later claimed Lyon had lunged at him and his actions were in self-defense.
After killing Lyon, Heemstra chained the farmer's body to his pickup truck and dragged it to a field, where he hid it in a 12-foot-deep cistern under hay bales.
Heemstra was initially found guilty of first-degree murder, which carries a mandatory sentence of life in prison. But the conviction was later overturned by the Iowa Supreme Court, and Heemstra was subsequently convicted of voluntary manslaughter. He was freed in 2008 after spending four years in Iowa's prisons.
But Heemstra's release did not resolve civil lawsuits filed by Lyon's estate, and he was forced to spend many additional days in Iowa courtrooms as a series of lawyers tried to defend him.
In December 2008, after an earlier civil judgment was overturned, Polk County District Judge Michael Huppert ordered Heemstra to pay $5.68 million in damages. He ruled Heemstra had acted to conceal his responsibility for the slaying almost from the moment it happened.
Then in September 2009, Huscher agreed with Lyon's estate that Heemstra and his relatives had used a series of sham transactions in an effort to transfer farmland and other assets to avoid the judgment. The judge called Heemstra "conniving" and "motivated by greed." He ordered an additional $750,000 in punitive damages against Heemstra and his wife, Berta, plus $250,000 in legal fees.
But Heemstra continued to fight, filing motion after motion challenging efforts to sell his farmland. That continued until last month when Heemstra pre-empted a scheduled court hearing by making a settlement offer, which was ultimately accepted.
Prior to the slaying, Rodney and Berta Heemstra had owned about 1,500 acres of land in Warren, Wright, Humboldt, Guthrie and Hancock counties. They also rented about 1,500 acres of farm ground.
The couple listed a net worth of about $4.1 million on a financial statement filed days before Lyon's death. However, the value of Iowa farmland has dramatically increased since then.
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• On April 26, the case is settled, ending nine years of legal battles. The terms of the settlement were not immediately disclosed.
Des Moines Register
]]>The opinion reversed an appellate ruling that said a new trial was warranted because of faulty instructions to the jury from the trial judge.
The Minnesota Supreme Court has ruled that Burlington Northern Sante Fe Corp. is not entitled to a new trial in a 2008 district court case involving the families of four people killed when their car collided with a train in Anoka in September 2003.
In a 25-page ruling filed Wednesday, the court reversed a 2010 Minnesota Court of Appeals decision that said the case should be retried because jurors were instructed to use the wrong legal standard in holding the railroad 90 percent responsible for the crash. The jury awarded the victims' families $21.6 million after a six-week trial.
In its ruling Wednesday, the Supreme Court said, "we conclude that any error in the instructions and verdict form did not affect the fairness and integrity of the proceedings."
John Ambler, BNSF vice president for corporate relations, said in an e-mail Wednesday that "we have deep sympathy for the families of the individuals involved in this tragic event and are sad for their loss. While we are disappointed with the Supreme Court's decision, we respect the judicial process and the finality of the decision."
The Appeals Court ruled in 2010 that Anoka County District Judge Ellen Maas committed reversible error at the jury trial by not telling jurors to use federal law to determine negligence.
In their petition to the Minnesota Supreme Court, the families of the victims argued that the Appeals Court decision should be overturned because BNSF neglected to ask Maas to use the appropriate legal standard when issuing her jury instructions.
BNSF attorneys argued that the jury instructions were proposed by the families' attorneys and that the railroad consistently requested that Maas abide by federal law.
Bob Pottroff, the lead attorney for the families, said Wednesday: "We have four families who hope for closure to a horrible tragedy in their lives. As soon as this legal proceeding is over, it's only the beginning of the closure process for these families."
It was not known whether BNSF will appeal Wednesday's decision.
The case dates to September 2003, when a westbound freight train, traveling 59 miles per hour, collided with Brian Frazier's Chevrolet Cavalier as it crossed the tracks just after 10 p.m. on Ferry Street, just north of Hwy. 10 in Anoka.
Burlington Northern said the driver ignored a warning signal and tried to beat the crossing gate. Attorneys for the families said the crossing gate wasn't working properly.
Killed in the crash were Frazier, 20, of Newport; Bridgette Shannon, 17, of Ramsey; Corey Chase, 20, of Coon Rapids, and Harry Rhoades Jr. 19, of Blaine.
]]>Various Iowa Workers' Compensation decisions have held that offering unreasonable work is not offering suitable work within the restrictions, and accordingly have allowed the injured worker to receive weekly healing benefits when the worker refuses the light duty position. Some decisions have held that an offer to accommodate restrictions and provide work bars the injured worker from receiving weekly healing benefits if the employee refuses. As a matter of practice, if an injured worker refuses light duty work, the insurance carrier will not pay weekly benefits during the period of refusal.
The problems that existed were mostly prevalent in the truck driving area. Through various jurisdictional methods, a large portion of Iowa Trucking Companies mandate to their employees upon acceptance of employment that Iowa Workers' Compensation law controls work injuries. This is normally allowable. However, certain employers use it to get the injured worker to quit. There are several large trucking companies in Iowa that offer light duty work to injured over-the-road drivers. Those offers are designed to punish the injured worker and get them to quit. It is not uncommon for a trucking company to have an injured worker who lives several states away a serious injury and be placed on restrictions. The trucking company will then require the injured worker to come to Iowa to stay for a several week period doing demeaning or worthless work. While the injured worker is in Iowa, and away from their family, the trucking company will provide living quarters in a rundown motel, or worse, a bunkhouse at the company's terminal. The conditions are simply not acceptable to anyone, and a large portion of those injured workers who are placed into this situation quit and are deprived of weekly compensation benefits. Often times the injured worker who quits, also wrongly believes they lose their right to other workers' compensation benefits including medical care.
Finally, the Iowa Supreme Court has fixed the problem. On March 2, 2012 the Court issued a decision in Tim Neal vs. Annett Holdings, Inc. In the case, Neal was an over-the-road driver for Annett Holdings (TMC Transportation). Neal, a Grayville, Illinois resident with a wife and three kids sustained a serious injury. TMC Transport offered to provide Neal with a motel room and light duty work 387 miles from his home and offered to pay for Neal to return to his home every other week. Neal, like any reasonable person refused the light duty offer, as a result TMC refused to pay weekly healing benefits. The Supreme Court ruled that suitable work has to take into account geographic location of the light duty offer, meaning distance from the employees residence. The Supreme Court noted that the Workers' Compensation Commissioner was correct in opining "Being away from the support of your wife and family, especially while recovering from a serious work injury, is not an insignificant matter."
This case should put a stop to these trucking companies attempts to put the injured worker through a time period which no one would tolerate. My guess is that the practice continues, at least until these companies get hit with cases of bad faith and penalty. For now, though, the Supreme Court issued an outstanding decision that will have real benefit to those who need it the most.
]]>The crash occurred shortly after 6 p.m. in the 3700 block of East University Avenue. When officials arrived several occupants of the vehicles were trapped inside. They had to be rescued by firefighters.
A preliminary investigation indicates Levy was traveling east when her vehicle went out of control and clipped a westbound vehicle. The Levy vehicle then collided nearly head-on with another westbound car. Levy and a passenger in her car, Dominque Boyd, 21, of Buffalo, N.Y., were taken to Iowa Methodist Medical Center.
The driver of the other vehicle in the head-on crash has been identified as Wendy Beenken, 33, of Ames. There was no information of her injuries.
The cause of the accident remains under investigation.
Des Moines Register Article Posted 2:14 PM, Mar. 5, 2012
]]>It is time for some truth on lawsuit statistics. Records maintained by the National Center for State Courts show that population-adjusted tort filings declined from 1992 to 2001. The average change in tort filings was a 15% decrease. The Bureau of Justice Statistics, a division of the United States Department of Justice (DOJ), found that the number of civil trials dropped by 47% between 1992 and 2001. The DOJ also found that the median inflation-adjusted award in all tort cases dropped 56.3% between 1992 and 2001 to $28,000.
Unfortunately, because tort reform is pushed by big business, millions, if not billions, of dollars is spent on advertisements (both subtle and in-your-face) as well as back-room lobbying and secret political get togthers a la the famous Koch Brothers gatherings bringing together all branches of government. On the other side, are a group of diverse individuals who, until they are serious injured, do not care about the issue. Since these individuals usually do not have a dog in the fight until they are injured by a negligent company, they do not put money to find the frivioulous arguments made by the tort reform movement. Thus, the argument becomes one sided. Big Business versus nobody. And that, from my perspective, is a major reason why the tort reform movement finds success. The law is like insurance. You probably feel that it is worthless until you actually need it. And the great irony that I have found is that many of my clients, whose lives now depend on access to real justice, were believers in the tort reform movement. Until, that is, they were hurt.
Access to justice is not just a philosophical issue. It is a moral issue. It is an American issue. I submit that if free access to the courts for the purposes of righting a wrong is curtailed, then we strongly dilute the American brand and we move one step closer to socialism or worse down the ladder.
]]>The process of deciding cases from the human perspective is littered with all sorts of psycho-emotional impulses, prejudices, fear, loathing, compassion, hate, love and every other outside influence imaginable. But, from a plaintiff's perspective, the end question becomes: can the human deciding my case relate to me in a postive way? Can all of the emotions and preconceived notions stand to benefit me? Often, the question boils down to one line of logic from the perspective of a juror: Is this the type of person I could have a coffee with? If the answer is yes, then you are well ahead of the game. Once you clear that hurdle, you then face all of the same convulated processes in determining how much money the juror will award for the circumstance you find yourself in. I will address this issue of damages in a separate blog forthcoming in a few days, including the effect of the Tort Reform Movement on our national psyche. In the meantime, I welcome your responses.
Thank you for taking this ride with me.
Best Regards,
Brett
]]>Three people were hospitalized after the car they were in was hit by a train just west of Durant at 8:17 a.m. today.
According to Trooper Byron Nudd of the Iowa State Patrol, a pickup truck driven by 51-year-old Kevin Wright of Wilton was leaving Durant Iron and Metal at 2226 Highway 927 West and traveling north on County Road F58 when the truck was hit on the passenger side by a westbound train.
A crash report stated that the truck did not stop at the rail crossing. Trooper Nudd said there is a stop sign at the crossing but no lights, gate or bells.
The crash report identified the two passengers in the 1994 Chevrolet Silverado as Kyle Wright, 18, of Wilton and Micca Wooster, 18, of Stockton. The report states that all three occupants of the car were wearing seatbelts.
According to the crash report, all three were taken to Genesis Medical Center East Campus in Davenport for treatment. Genesis spokesman Craig Cooper said Monday afternoon that Mr. Wooster was transferred to the University of Iowa hospitals in Iowa City.
Kevin Wright was in good condition and Kyle Wright was in serious condition, Mr. Cooper said.
By Bill Mayeroff, bmayeroff@qconline.com
http://qconline.com/archives/qco/display.php?id=578500
]]>The Beattie Law Firm called 2 experts Tim Dunn, a chemical engineer, and Robert Stubbs, an odor chemist to testify to the process that occurred. These experts also testified regarding the fact that soil adsorption form of odor fade wells well known within the propane gas industry and had been for years. In fact the experts testified to well-established and well accepted studies that had been conducted by industry experts including chemists from Philips Petroleum documenting soil adsorption-odor fade.
Notwithstanding this testimony in reliance upon well-established industry studies the gas retailer a subsidiary of Growmark called 3 defense experts who attempted unsuccessfully, to convince the jury that soil absorption - odor fade
did not occur in this case based upon their testing. They testified that because of this Donna Firgard should have been able to detect the odorant in the basement and thus blamed her. As part of its assault on Mrs. Firgard the Growmark retailer called the Iowa State Fire Marshal to testify to alleged admissions Mrs. Firgard purportedly made which were admissions amounting to detecting the odorant. The jury rejected this.
The odor fade form of soil adsorption is well known within the propane industry and this case establishes that reliance upon independent industry studies is more readily accepted by a jury than purported studies conducted by experts retained by the gas company.
]]>The Growmark retailer defended on the basis that it had provided adequate warnings which included providing literature in safety information in the form of brochures and information in sales invoices and delivery tickets totaling in excess of 50 times. It further stated that included in the warnings or information regarding propane gas detectors. Significantly the Growmark retailer contended that it relied upon industry custom in using PERC brochures and followed the industry custom regarding the distribution of said alleged safety warnings including gas detectors. The brochures were mailed annually.
In prosecuting the case the Beattie Law Firm presented called as adverse witnesses New Century executives. New Century is a Growmark subsidiary. The New Century employees admitted, reluctantly, that there needs to be oral communication between the gas professional and the customer to ensure the customer fully and completely understands the dangers of using propane in a home. The employees further admitted that it is essential that a gas detector be used by customers even though New Century refuse to supply or require propane gas detectors.
The Beattie Law Firm utilized several experts including a chemical engineer, Tim Dunn, an odor chemist, Robert Stubbs, a human factors expert, Dr. Tom Schnell, and a gas detector expert, David Buddingh. These experts testified to the dangers of an odor only warning system and the critical need to ensure that every customer has a gas detector in their home especially if propane appliances are installed in basements. The Beattie Law Firm introduced evidence that the costs of a propane gas detector was a small fraction of a penny and less than the cost of the unreliable odorant.
It is believed by the Beattie Law Firm this case is very significant regarding the inadequacies of the propane gas industry concerning propane safety warnings and gas detectors. It is absolutely essential that every propane customer who uses propane in their home needs to have a gas detector.
]]>But Donna Firgard will see only a portion of the money.
Firgard, 68, and her husband, Richard, took propane provider New Century FS, a subsidiary of Growmark, to court in connection with the blast, which leveled her home and left her with second- and third-degree burns. The couple claimed the company didn't do enough to warn them about the limits of odor-causing chemicals injected into the gas as a warning and didn't adequately warn them about the importance of leak detectors.
The trial started Nov. 29, and on Monday afternoon, jurors reached their verdict. They awarded Donna Firgard $1.655 million in damages --- $126,587 for past medical expenses, $108,000 for future medical expenses, $530,000 for past pain and suffering, $225,000 for future pain and suffering, $375,000 for loss of function and $290,931 for property damage.
Richard Firgard was awarded $60,000 for loss of consortium.
The decision found New Century FS was 40 percent at fault. Thirty percent of the blame went to the Firgards, and the remaining 30 percent to J.C. Plumbing, which nicked and then repaired the underground gas line in 2002.
The breakdown means New Century pays 40 percent of the damages --- $686,000. J.C. Plumbing wasn't a defendant in the lawsuit because the company already settled out of court.
The Firgards' insurance carriers will receive a portion of the verdict, which will leave the couple with about $500,000 before attorney fees.
Attorney Brett Beattie --- who, along with his father Donald Beattie, represented the Firgards --- said the case shows the importance of leak detectors.
"This trial was a referendum on gas detectors --- telling Iowa propane companies that derelict safety choices will not be tolerated," Brett Beattie said. He said top company officials admitted it was unsafe to use propane in a basement without the detectors, yet the company made a decision to not take steps to get them in homes.
"If Growmark had provided every customer a gas detector, it would have saved itself hundreds of thousand of dollars in Donna Firgard's blood, skin, face, self-image and intolerable pain, as well as legal fees and costs," Beattie said.
During trial, attorneys for New Century said the company provided a number of warnings about gas detectors. Information was included in mailings and on account statements and delivery tickets.
By JEFF REINITZ, jeff.reinitz@wcfcourier.com wcfcourier.com
]]>Donna Firgard and her husband, Richard, claim New Century FS didn't adequately warn them about the need for leak detectors and the shortcomings of the odor injected into the gas that is designed to act as a warning.
Donna Firgard received second- and third-degree burns when she went to light the pilot on her water heater in May 2008. A leak in the line between her home and the outdoor propane tank had filled the basement with gas, and the blast leveled her house.
Two weeks of testimony ended Thursday, and attorneys for both sides summed up their cases today.
Brett Beattie, who is representing the Firgards, said the odor-causing chemical was filtered out when the gas traveled through the soil and into the house.
Defense attorney David Dahlmeier said the odor was likely still present when Donna Firgard entered the basement with a lighter. He referred to an interview she had with an official with the Iowa Fire Marshal Division while in the hospital. During the interview, she said one of the last thoughts before the blast was that she shouldn't be doing this.
He also said New Century gave a number of warnings about the importance of gas detectors.
The jury is to divide fault in the case between New Century, the Firgards and a plumbing company that severed and then repaired the gas line in 2002 while placing water or sewer pipes. The leak was located in the fixed section, and Dahlmeier said it was caused by an over-tightened nut, a claim Beattie disputed.
The Firgards are seeking damages to cover medical treatment and property damage, past and future pain and suffering and loss of function.
By JEFF REINITZ, jeff.reinitz@wcfcourier.com wcfcourier.com