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With October come thoughts of changing leaves, cooler, maybe even frosty nights, and the end-of-the-month celebration of all things spooky, scary, and sometimes imply sophomoric. This month’s “Top Ten” is a quick look at some cases ( provided by the World Wide Web) that will give you chills, or possibly just leave you scratching your head.
1. Rice v. Utah Department of Corrections (2001). A Utah prisoner named Robert Rice filed for extraordinary relief, claiming the prison acted in violation of his right to practice his religion by failing to provide a “vampire” diet.
2. Durmon v. Billings (2004). In Louisiana, a customer who visited a haunted corn maze sued the owner and owner’s insurer after she fell and broke her leg when an actor with a chainsaw approached her.
3. Grant v. Grant (2012). A potential criminal and tort case from Pennsylvania where, at a family Halloween bonfire, Janet Grant spotted a skunk and told her son Thomas to fetch a shotgun and shoot it. When he returned, Janet Grant shined a flashlight on the animal while her son shot it. It was only then that they discovered that little Tommie had just shot his eight-year-old cousin in her black-and-white Halloween costume. Fortunately, his cousin survived with only a wound to her shoulder and abdomen.
5. Rabindranath v. Wallace (2010). Peter Wallace, 24, was returning on a train with fellow Hibernian soccer fans in England — many dressed in costume. One man was dressed as a sheep and Wallace thought it was funny to constantly flick his lighter near the cotton balls covering the sheep guy — until he burst into flames. Friends then made the matter worse, trying to douse the flames by throwing alcohol on the flaming man-sheep.
6. Dickson v. Hustonville Haunted House and Greg Walker (2009). Glenda Dickson, 51, fell out of a second-story window left open at the Hustonville Haunted House, owned by Greg Walker. Dickson was in a room called “The Crying Lady in the Bed” when one of the actors came up behind the group and started screaming. Everyone jumped in fright and Dickson jumped back through an open window that was covered with a sheet. She landed on a fire escape and then fell down some stairs, breaking four vertebrae.
8. Kentucky v. Watkins (2008). As a Halloween prank, restaurant manager Joe Watkins of the Chicken Ranch in Paris, Kentucky, thought it was funny to lie in a pool of blood on the floor. After seeing Watkins on the floor, a patron went screaming from the restaurant to report the murder. Watkins said that the prank was for another employee and that he tried to call the woman back on her cellphone. Under Kentucky law, a person can be charged with a false police report, even if he is not the one who filed it. The police charged Watkins for causing the woman to file the report.
Douglas Pierce practices in Coeur d’Alene, Idaho, and is a member of the law firm of James, Vernon & Weeks. He is a member of the WSBA Editorial Advisory Committee. He can be reached at dpierce@jvwlaw.net.

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BEFORE: MCEWEN, P.J., CERCONE, P.J.E., and BECK, J.
This is a consolidated appeal from two separately entered orders of the Court of Common Pleas of Lehigh County that dismissed the appellants' two child custody complaints. We reverse and remand for further proceedings in accordance with this opinion.
The subject of the two separate child custody actions, which form the basis for this consolidated appeal, is G.W., who was born on July 20, 1991. The appellee (defendant in both child custody actions in the trial court), Suzann Webster, is the adoptive mother of G.W's biological mother, N.T. 7/19/96 at 20. In April of 1994, G.W. was living with Ms. Webster, who was taking care of him. Id. at 17-18. Apparently, the biological mother of G.W. was not participating whatsoever in the raising of G.W., and proceedings to terminate her parental rights had already been commenced at that time by Ms. Webster. See footnote 1 Id.
In the immediately preceding months, the appellants (plaintiffs in both child custody actions in the trial court), Mr. and Mrs. Silfies, were in the process of actively searching for a child to adopt. Id. at 16. Consequently, Mr. and Mrs. Silfies had made inquiries of adoption agencies and also had made their search known to a private attorney. Id. Mrs. Silfies was aware that this particular attorney had adopted a child privately, so she told the attorney to contact her if the attorney ever became aware of a child available for adoption. Id.
In early April of 1994, the attorney contacted Mrs. Silfies and informed her that there was a child available for adoption, and if Mrs. Silfies was interested, the attorney would set up a meeting. Id. at 17. The child in question was G.W. as, apparently, Ms. Webster had contacted this same attorney regarding options for the care of G.W. Id. at 69. Mrs. Silfies agreed to the meeting, which took place at Ms. Webster's house on April 7, 1994. Id. at 17, 70. It was at that meeting that the Mr. and Mrs. Silfies first met G.W.
After the first meeting, G.W. began to visit at the Mr. and Mrs. Silfies' house, regularly two to four times a week. Id. at 21. This continued throughout 1994 and began, in October of the year, to include overnight stays. Id. In January of 1995 the Mr. and Mrs. Silfies specially prepared a room for G.W. in their home for the child to stay during visitations. Id. at 23-24. Thereafter, from January of 1995 to August of 1995 visitations and overnight stays took place on a regular basis, and G.W. stayed, on average, five days a week with Mr. and Mrs. Silfies. Id. at 25, 73-74.
7/19/96, at 1. The letter went on to say, "To have the best chance in life [the child] needs to have young parents and especially a father figure, and I know that the Silfies will be good parents for him." Id. After a change of attorneys, Mr. and Mrs. Silfies' new attorney prepared a "Grandparents' Visitation Agreement" and forwarded it to Ms. Webster, but this agreement was never signed by Ms. Webster. Trial Court Opinion filed 2/6/97 at 2.
From August of 1995 until March 25, 1996, the visitations of G.W. with Mr. and Mrs. Silfies became irregular. N.T. 7/19/96 at 36, 39. The length of G.W's stays with Mr. and Mrs. Silfies varied during this time period from as few as three consecutive days to as long as seven consecutive days. There was not, however, the steady five days a week routine, which had existed prior to August of 1995. Id. at 36. Nevertheless, contact between G.W. and Mr. and Mrs. Silfies was maintained until March 25, 1996. That was the last date G.W. ever stayed at Mr. and Mrs. Silfies' home. Id.
Mr. and Mrs. Silfies commenced a custody action on March 28, 1996. See footnote 3 Trial Court Opinion dated 2/6/97 at 2. Ms. Webster filed Preliminary Objections to the Custody Complaint on April 24, 1996 based upon Mr. and Mrs. Silfies' alleged lack of standing. Id. at 39. Meanwhile, on May 20, 1996 the parties mutually agreed that Mr. and Mrs. Silfies could see G.W. once a week with a psychologist serving in the role of a mediator. Id. However, Mr. and Mrs. Silfies only saw G.W. once under this agreement and that was the very same day the agreement was executed, May 20, 1996. Id. at 41-42. Thereafter, Ms. Webster did not allow further visitation because of the pending custody proceeding. Trial Court Opinion dated 2/6/97 at 2.
During this time period, on August 12, 1996, Mr. and Mrs. Silfies filed another complaint against Ms. Webster seeking partial physical custody and/or visitation of G.W. Complaint filed 8/12/96 at 1. See footnote 5 Ms. Webster filed Preliminary Objections to this complaint, as well, on September 5, 1996. On November 4, 1996, after hearing, the trial court signed an order granting this set of preliminary objections and dismissing this complaint also. This order was entered on the docket on November 8, 1996. On December 4, 1996 Mr. and Mrs. Silfies filed another Notice of Appeal to our Court and another Motion to Reconsider with the trial court. We see from the record that the trial court took no action on this motion, either. On February 27, 1997, our Court, sua sponte consolidated both appeals and designated the consolidated appeal No. 4358 PHL 1996, which is the subject of this opinion.
I. DID APPELLANTS PROVIDE ADEQUATE EVIDENCE OF THEIR SINCERE, SUBSTANTIAL, AND SUSTAINED INTEREST IN [G.W.] TO SATISFY THE REQUIREMENTS FOR STANDING UNDER CIRCUMSTANCES WHERE THE CHILD RESIDED WITH APPELLANTS FOR EXTENDED PERIODS, FORMED A BOND WITH APPELLANTS AND VIEWED THEM AS HIS PARENTS, AND WHERE APPELLANTS PARTICIPATED SIGNIFICANTLY IN THE CHILDS EDUCATION, GROWTH AND DEVELOPMENT?
II. DID APPELLANTS ESTABLISH THEIR IN LOCO PARENTIS STATUS WITH [G.W.] SO AS TO ALLOW THEM TO RETAIN THEIR STANDING TO BRING A CUSTODY AND/OR VISITATION ACTION AGAINST THE ADOPTIVE MOTHER EVEN AFTER THE ADOPTIVE MOTHER REVOKED HER CONSENT TO THE ADOPTION OF [G.W.] BY APPELLANTS?
Appellant's Brief at 4. Since both of these issues are interdependent, we shall address them simultaneously.
[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this . . . does not vest in the reviewing court the duty or privilege of making its own determination. Thus an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's findings; and thus represent a[n]. . . abuse of discretion.
Moore v. Moore, 535 Pa. 18, 28, 634 A.2d 163, 168 (1993) (quoting McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845,847 (1992).) See footnote 6 J.A.L. v. E.P.H. 682 A.2d 1314, 1318 (Pa. Super. 1996). Thus, the ultimate test is "whether the trial court's conclusions are unreasonable as shown by the evidence of record." Moore, 535 Pa. at 28, n.4, 634 A.2d at 168, n.4. Based on our review of the record and the applicable law, we are constrained to hold that the trial court's finding of Mr. and Mrs. Silfies' lack of standing to maintain an action for custody or visitation was unreasonable.
The question of standing is rooted in the notion that for a party to maintain a challenge to an official order or action, he must be aggrieved in that his rights have been invaded or infringed. The law of standing provides that one cannot evoke the jurisdiction of the court to enforce private rights or to maintain a civil action for the enforcement of such rights, unless he or she has, in an individual or representative capacity, some real interest in the cause of action, or a legal right, title or interest in the subject matter or controversy.
Campbell v. Campbell 672 A.2d 835, 837 (Pa. Super. 1996).
In order to be 'aggrieved' a party must have: 1) a substantial interest in the subject matter of the litigation; 2.) the party's interest must be direct and, 3.) the interest must be immediate and not a remote consequence of the action. . . A 'substantial' interest means that there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.
Id. at 1315-1316 (quoting South Whitehall Twp. Police Service v. South Whitehall Twp. 521 Pa. 82, at 86-87 555 A.2d at 793 (1989) (emphasis in original).
The application of the law of standing to child custody cases is done with a high degree of scrupulousness by our courts. J.A.L. v. E.P.H. 682 A.2d at 1319. This is "not only to protect the interest of the court system by assuring that actions are litigated by appropriate parties, but also to prevent intrusion into the protected domain of the family by those who are merely strangers, however well meaning." Id., Jackson v. Garland, 622 A.2d 969, 971 (Pa. Super. 1993). Consequently, our courts take the view that in a dispute involving custody of a minor child, persons other than the child's parents are considered "third parties" Argenio v. Fenton, 703 A.2d 1042, 1044 (Pa. Super. 1997); Van Coutren v. Wells, 633 A.2d 1214, 1216 (Pa. Super. 1993). Third parties will not be found to have standing by our court unless the third party has a "prima facie right to custody." Argenio, 703 A.2d at 1044, J.A.L., 682 A.2d at 1319.
[t]he phrase 'in loco parentis' refers to a person who puts himself[/herself] in the situation of assuming the obligation incident to the parental relationship without going through the formality of a legal adoption. The status of 'in loco parentis' embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.
Argenio, 703 A.2d at 1044, quoting Van Coutren v. Wells, supra, 633 A.2d at 1216.
In reviewing the record before us, we find ample and credible evidence that from the very beginning of their relationship with G.W., Mr. and Mrs. Silfies began to care for G.W with the intent of adopting him as soon as practicable. N.T. 7/19/96 at 17. Ultimately allowing G.W. to be adopted by Mr. and Mrs. Silfies was also the intent of Ms. Webster when she began allowing the visitations and overnight stays of G.W. Id. at 18, 69-70. See footnote 7 Thus Mr. and Mrs. Silfies must be classified as "prospective adopting parents." We have held, previously, that prospective adoptive parents who have stood in loco parentis to a minor child have standing to commence a subsequent legal proceeding involving the child.
The couple filed a report of their intention to adopt, but, shortly thereafter, the teen revoked the entrustment agreement and sought the child's return. The trial court later terminated the teen's parental rights. On appeal to our court, the teen argued that the prospective adoptive parents lacked standing to maintain a termination action because of, inter alia, the revocation of the entrustment agreement and the fact that the adoptive parents were never granted custody. Id.
We rejected those factors as being nondispositive. We found that the adoptive parents had attained in loco parentis status, and hence standing, by virtue of both the entrustment agreement and the filing of the report of the intention to adopt. Id. at 1357-1358. We also rejected the argument that loss of physical custody by the adoptive parent or revocation of consent by the natural parent automatically deprives the prospective adoptive parents of standing. Id. at 1358. Therefore, by applying these principles of standing to the case before us, Ms. Webster's decision to revoke her consent to the adoption and cease G.W.'s visitation did not automatically deprive Mr. and Mrs. Silfies of standing. Mr. and Mrs. Silfies' standing stems from their prior relationship with G.W. as prospective adoptive parents.
The holding of in In Re: Baby Boy S served as the foundation of our Court's decision in Mollander v. Chiodo, 675 A.2d 753 (Pa. Super. 1996), which directly established the principle that prospective adoptive parents have the right to maintain a custody action. In Mollander, a young unwed mother placed her three-month old daughter with a couple. The couple filed a report of intention to adopt a few weeks later and subsequent to that a petition to adopt which had the mother's consent to adopt attached. The mother later changed her mind and petitioned to have her consent to the adoption revoked, which the trial court granted. Id. at 755.
The adoptive parents then filed a custody complaint in which they claimed to stand "in loco parentis" to the minor child. See footnote 8 Id. The trial court awarded custody to the prospective adoptive parents. Id. at 754. On appeal we affirmed the trial court's award of custody, and we again rejected the argument that revocation of the consent to the adoption by the mother negated the adoptive parents standing. Id. at 756. We specifically held that the adoptive parents achieved in loco parentis status and had standing to maintain an action for the custody of the minor child. Id.
the standing of foster parents to pursue custody of former foster children. Id. at 1200-1201. The appellants, though, had sought permission from the Juvenile Court to adopt the minor child during the time of the foster care. Consequently, our Court specifically ruled, relying on our prior holding in Mollander, that the couples' change in status from foster parents to prospective adoptive parents, while they were caring for the minor child, was sufficient to establish their standing to maintain the appeal and seek the return of the child to their custody. Id. at 1201 (emphasis supplied).
While conceding that Mollander was "factually similar," the trial court distinguished Mollander on the basis of the fact that the appellants were never given custody of the child and that Appellee never formally consented to the adoption. See footnote 9 Trial Court Opinion filed 2/6/97 at 6. However, we reiterate, neither the lack of a formal award of custody, nor revocation of prior consent to adoption by a minor child's mother will operate to deprive prospective adoptive parents of standing to utilize our court system in a proceeding involving the minor child. In Re Baby Boy S., supra. This is because the concept of standing has as its root the notion that an injury to a party's legally protected interest enables that party to seek relief from that injury from our courts. Campbell, supra. Prospective adoptive parents have such a legally cognizable and protectable interest.
[P]rospective adoptive parents, unlike foster parents, have an expectation of permanent custody which, though it may be contingent upon the agency's ultimate approval, is nevertheless genuine and reasonable. Because of this expectation of permanency, prospective adoptive parents are encouraged to form emotional bonds with the child from the first day of the placement. By removing the child from the care of the prospective adoptive parents, the agency forecloses the possibility of adoption. In light of the expectation of permanent custody that attends an adoptive placement, an agency's decision to remove a child constitutes a direct and substantial injury to prospective adoptive parents. Because prospective adoptive parents, unlike foster parents, suffer a direct and substantial injury when an agency removes a child from them, we see no reason why in law or policy why we should limit their standing to sue for custody.
Id. 556 A.2d at 423.
Whether the adoption process proceeds through an agency or a private party is irrelevant. See e.g. In re Adoption of J.M.E. 610 A.2d 995 (Pa. Super. 1992), appeal denied 533 Pa. 612, 618 A.2d 402 (1992) (husband and wife caring for child received from relatives of the natural mother held to have standing to maintain termination of parental rights action). The reason is that the same factors, which serve as the foundations of adoptive parents' standing, are present in both instances.
In our case, Mr. and Mrs. Silfies, as prospective adoptive parents, had a reasonable expectation that they would be the future permanent custodians of G.W. This gave them a definite and substantial interest in the future welfare of G.W., which they had the right to seek the court's intervention to protect. As we emphasized in Mitch, supra, deprivation of the prospective adoptive parents' interest by the cessation of the adoption process can cause a direct and substantial serious injury to the prospective adoptive parents. Many prospective adoptive parents, like Mr. and Mrs. Silfies, invest a significant amount of time and effort in developing a caring and nurturing relationship with the adoptive child. The prospective adoptive parents do so because they have a legitimate expectation of the relationship's permanency. When the relationship is severed there is an emotional toll, which can be severe, particularly where, as here, obvious emotional and psychological bonds have been formed between the prospective adoptive parents and the child.
It is very evident from the record in the present case, that once the visitations and overnight stays of G.W. began, Mr. and Mrs. Silfies conducted themselves in a manner towards G.W., consistent with that of natural parents to their child, since they assumed a considerable number of the duties and responsibilities which are incidental to parental status. They completely converted a room for G.W. in their home and specially outfitted it with furniture, stuffed animals and toys. N.T. 7/19/96 at 24-25. While G.W. was staying with them, Mr. and Mrs. Silfies paid for all necessities, including food and clothing. Id. at 62, 87. Mr. and Mrs. Silfies transported G.W. to and from G.W's pre-school/daycare center. Id at 25. They took an active interest in G.W's daily activities at the center and routinely inquired of G.W's teachers as to G.W's academic progress and in-class behavior. Id at 65. Together, Mr. and Mrs. Silfies and G.W. shared in a variety of outings such as fishing, farm shows, carnivals and even G.W's pre-school costume party. Id. at 53 . Apparently Mr. and Mrs. Silfies also navigated G.W. through the very demanding but very necessary process of potty training. Id. at 53. They also administered prescribed medicine to G.W., if G.W. became ill while G.W. was staying with them. Id. at 90. By performing parental duties such as these, it is clear, then, that Mr. and Mrs. Silfies, who fully expected to adopt G.W., were acting in loco parentis toward G.W. As we said in J.A.L., supra, "Where such a relationship is shown, our courts recognize that the child's best interest requires that the third party [who assumed parental duties] be granted standing so as to have the opportunity to litigate fully the issue of whether the relationship should be maintained even over a natural parent's objection." J.A.L., 682 A.2d at 1320.
A finding of a prima facie right sufficient to establish standing does not affect that parties evidentiary burden: in order to be granted full or partial custody, he or she must still establish that such would be in the best interests of the child under the standards applicable to third parties.
J.A.L., supra, 682 A.2d at 1319.
Accordingly, the orders of the Court of Common Pleas of Lehigh County dated August 5, 1996 and November 4, 1996 respectively are hereby reversed.
This case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
Footnote: 1 There was no mention in the record of the identity of G.W.'s biological father, although, from the testimony given it does not appear that he had any contact at all with G.W. after the child's birth, and his whereabouts are unknown.
Footnote: 2 The termination of G.W.'s biological mother's parental rights was completed in September of 1994, at which time Ms. Webster adopted G.W. At the hearing of July 19, 1996, Ms. Silfies gave uncontroverted testimony that she and her husband were prepared to adopt G.W. at that time. However, according to Ms. Silfies, Ms. Webster stated that a judge had informed her to wait six (6) months before again putting G.W. up for adoption. N.T. 7/19/96 at 22. Ms. Webster did not dispute this testimony.
Footnote: 3 This action was docketed in the trial court at 96-FC-413 and was originally docketed in our Court at No. 3200 PHL 96.
Footnote: 4 The trial court had the authority to reconsider its judgment, but it was not required to act on the motion. The exercise of a trial court's authority to reconsider is purely discretionary. See Pa.R.A.P., Rule 1701 (b)(3)(i), 42 Pa. C.S.A., Moore v. Moore, 535 Pa. 18, 25, 634 A.2d 163, 167 (1993).
Footnote: 5 This action was docketed in the trial court at 96-FC-1060 and was originally docketed in our Court at No. 4358 PHL 96.
Footnote: 6 Moore clarified the quoted language in McMillen to be a definition of an appellate court's standard of review not scope of review, and the precise standard to be abuse of discretion not "gross" abuse of discretion as originally used in McMillen. Moore, 535 Pa. at 28, n.4, 634 A.2d at 168, n.4.
Footnote: 7 Ms. Webster testified at the hearing of 7/19/96 that she no longer consents to the adoption of G.W. N.T. 7/19/96 at 76. However, as discussed, supra, at the time Mr. and Mrs. Silfies had filed their Report of Intention to Adopt with the Court of Common Pleas of Lehigh County, Ms. Webster indicated via her letter to the Silfies' attorney that she was "agreeable to the [pending] adoption." Id. at 33, Plaintiff's Exhibit 3, dated 7/19/96, at 1.
Footnote: 8 Both of appellants' complaints for custody contain an identical averment. Custody Complaint filed 3/28/96 at paragraph 7(d); Complaint for Custody and Visitation filed 8/12/96 at paragraph 20(f).
Footnote: 9 The trial court also accorded much weight to the fact that Ms. Webster still performed certain parental duties such as authorizing medical treatment for G.W., choosing G.W.'s day care center and paying G.W's medical insurance. Trial Court Opinion at 4-5. However, the Silfies were not legally authorized to assume any of these responsibilities as the adoption of G.W. was not yet complete. As discussed infra, the Silfies assumed parental duties and responsibilities to the extent that they were legally permitted. Ms. Webster's performance of her legally required responsibilities to G.W. did not change Mr. and Mrs. Silfies' status as prospective adoptive parents or negate their assumption of certain parental responsibilities, while G.W. was in their care.

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D.C. Law Library - § 7–1721.06. Prohibited sellers.
↪ § 7–1721.06. Prohibited sellers.
(a) Except as provided in subsection (b) of this section, no tobacco product shall be sold to individual customers from mobile vending motor vehicles and trailers that sell retail food products ready for immediate consumption.
(b) Cigarettes may be sold at hotdog stands and construction site food wagons by vendors who are licensed pursuant to § 47-2404.
(c) No single cigar containing reconstituted tobacco products shall be sold to individual customers at convenience stores and gas stations.
(d) Any person who violates subsection (a) of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $500 nor less than $100, imprisoned not more than 30 days, or both, for the first offense. Any person convicted of a subsequent violation of subsection (a) of this section shall be fined not more than $1,000 nor less than $500, imprisoned not more than 90 days, or both.
This section is referenced in § 7-1703.04 and § 7-1721.07.
Applicability of D.C. Law 21-191: § 5 of D.C. Law 21-191 provided that the change made to this section by § 2(f) of D.C. Law 21-191 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.


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Saxbe v. Washington Post Co.
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Baker v. Gold Seal Liquors, Inc.
Moody v. Albemarle Paper Co.
City of Pittsburgh v. Alco Parking Corp.
Cooper Stevedoring Co., Inc. v. Fritz Kopke, Inc.
F.D. Rich Co., Inc. v. Industrial Lumber Co.
Beasley v. Food Fair of North Carolina, Inc.
Calero-Toledo v. Pearson Yacht Leasing Co.
Alexander v. "Americans United," Inc.
Mitchell v. W. T. Grant Co.
NLRB v. Bell Aerospace Co.
Snider v. All State Administrators, Inc.
Passenger Corp. v. Passengers Assn.

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Bradley Wilders represents small and large clients in complex commercial litigation, including patent, copyright, antitrust and fraud cases.
Brad is not afraid to take a case to trial if that is what it takes to secure a fair resolution for his clients. In one recent engagement, Brad was a critical part of the team that achieved a $217.7 million judgment on behalf of Kansas farmers against an international corn seed manufacturer. After the trial, the case settled for all U.S. farmers for $1.51 billion, which is the largest agricultural settlement in U.S. history. The litigation stemmed from allegations that the seed manufacturer introduced genetically modified corn seed into the U.S. corn supply before it was approved for import into China; as a result, China stopped buying corn from U.S. farmers, causing lower corn prices and other economic losses. In approving the settlement, the federal district judge described the work undertaken by Brad and other lawyers on the team as “complex and difficult” and that the work they performed was “consistently excellent, as evidenced at least in part by plaintiffs’ significant victories with respect to dispositive motion practice, class certification, and trial.” Brad a significant role on all three of these issues. His arguments raised critical issues about the biotech industry and its duty to act reasonably when launching new products, resulting in favorable orders that will protect U.S. farmers in the future.
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Brad then served as an associate at an Am Law 100 international firm in Chicago, where he defended one of the world’s largest computer companies against multiple accusations of patent infringement.
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Associated Wholesale Grocers Inc. et al. v. United Egg Producers et al. Brad represented a grocery wholesaler and several Kansas City-area grocery stores in a lawsuit against the largest trade group of egg producers and several egg producers. The lawsuit alleged that egg producers conspired to fix the price of eggs by coordinating supply reductions across the United States in violation of antitrust law. After nearly four years of litigation, Stueve Siegel Hanson successfully resolved this litigation in 2014.
Hank Young v. Kansas City Chiefs Football Club, Inc. From 2011 to 2013, Brad represented Hank Young, a respected and nationally recognized photographer who took photographs of the Kansas City Chiefs for forty years. Mr. Young alleged that the team and others who worked on the renovation of Arrowhead Stadium in Kansas City, Missouri used his photographs without authorization as a central design element of the new stadium. The lawsuit filed by Brad and Stueve Siegel Hanson partner Patrick J. Stueve asserted claims for copyright infringement and fraud.
Joannou v. Lincoln Hockey LLC, et al. Brad represented a Washington D.C. area artist in a lawsuit against the owners of the Washington Capitals, a National Hockey League team, for copyright infringement. The lawsuit alleged that defendants copied and misappropriated the plaintiff's copyrighted logo designs throughout all forms of media and merchandising. This matter has been settled to the mutual satisfaction of the parties.
Seaboard Corp. v. Marsh Inc. Brad represented Seaboard, one of Kansas's largest businesses, against insurance companies Marsh Inc. and AIG. Seaboard sought $66 million in premiums paid and several million dollars in consulting fees from its insurance broker Marsh and insurance giant AIG for illegally conspiring to rig Seaboard's bids. Seaboard's complaint arose out of allegations made by the New York Attorney General and an ongoing federal class action. The case went to the Kansas Supreme Court on an issue of first impression regarding the statute of limitations that was favorably resolved for Brad’s client.
Leiszler v. Align Technology, Inc. Brad represented a putative nationwide class of more than 22,000 dentists and orthodontists against Align Technology, Inc., the makers of Invisalign, for unfair and fraudulent business practices in the State of California. Plaintiffs alleged that Align unfairly and fraudulently suspended or decertified doctors who paid $2,000 to become trained to prescribe Invisalign for failing to prescribe enough yearly cases. The case was settled in favor of the plaintiffs for more than $44 million in injunctive relief, along with nearly $7.8 million cash settlement fund.
Perrin v. Papa John’s. Brad represents thousands of pizza delivery drivers who worked for Papa John’s in minimum-wage cases, where drivers allege they were not fully reimbursed for the costs of using their personal cars to deliver pizzas. They recently succeeded in obtaining class certification. Brad was involved in the briefing of that motion. Discovery is ongoing.
Bezich v. Lincoln National Life Insurance Co., Brad represents Peter Bezich, who purchased a variable-universal-life-insurance policy and alleges that the insurer overcharged him for the cost of that insurance in violation of the policy. Mr. Bezich recently moved for class certification and the parties are waiting for a ruling.
Cox v. General Motors. Brad is one of the attorneys at Stueve Siegel Hanson LLP who represent a GM car owner who purchased a vehicle that is subject to GM’s nationwide recall for faulty ignition switches.
Ryan et al. v. Skyline Medical, Inc. Brad represents a Wisconsin inventor who designed a patented device for removing surgical fluid from the operating table. The lawsuit alleges that the company who sells the product breached its contract with Ryan to pay him royalties and defrauded him into giving up ownership in the patents.

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Recent changes and fluctuations in the law have made the need for not only the existence of experts, but for effective experts, exceedingly important. While the typical opinion on experts is that “they’ve got one, so I’ve got to get one of my own,” the truth is that while a good expert may help, a bad expert will kill your case. This paper will discuss the present state of the law regarding the use of experts and provide some practical assistance in best obtaining and using – or attacking – experts.
There is possibly no bigger misnomer in the practice of law than the idea that any rule exists in the State of Texas for ordering an “independent” medical examination.
The Texas Rules of Civil Procedure provide that when the physical or mental condition of a party has been put into issue, Tex. R. Civ. P. 204.1(c)(1)the court, on the motion of a party, can order a party to submit to an examination by a qualified physician or psychologist. Tex. R. Civ. P. 204.1(a). There is nothing in the rule, or in the law, which provides that such an examination be done by an independent healthcare provider.
A motion made under Tex. R. Civ. P. 204 must be made no later than thirty (30) days before the end of any applicable discovery period. Tex. R. Civ. P. 104.1(a).
(1) The movant must show good cause for obtaining the examination. Tex. R. Civ. P. 204.1(c). Good cause includes three elements: (a) the examination is relevant to the genuine issues; (b) there is a reasonable nexus between the condition in controversy and the examination sought; and (c it is not possible to obtain the information sought through other, less intrusive means. Coates v. Whittington, 758 S.W.2d 749, 752 (Tex.1988). In Coates, the defendant attempted to obtain a psychiatric examination based on the plaintiff’s claim of mental anguish. The Texas Supreme Court, in denying the defendant’s right to examination found that to allow an examination where there were no damages being sought for psychiatric treatment, and there was to be no testimony proffered on the part of the plaintiff regarding her mental condition, found that to allow such an examination would destroy the intent of the procedural rule. Id. As noted in Coates, the court must balance the party’s right of privacy and the movant’s right to a fair trial. Id. at 753.
In order to obtain an examination, the movant must show that “each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.” Schlagenhauf v. Holder, 379 U.S. 104, 118-19, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Tex. R. Civ. P. 204.1(c)(1). A condition is not “in controversy” merely because of a conclusory allegation that a physical or mental attribute was a factor in causing the incident underlying the lawsuit. Spear v. Gayle, 857 S.W.2d 122, 125 (Tex. App. – Houston [1st Dist.] 1993, orig. proceeding).
An example of the difference between an issue in controversy and one not in controversy can be found in Williams v. Sanderson, 904 S.W.2d 212 (Tex. App. – Beaumont 1995, orig. proceeding). In that case, the plaintiff alleged that the defendant failed to keep a proper lookout. That mere allegation was not enough to put the eyesight of the defendant “in controversy” under the rule; however, in his deposition, the defendant contended that he had a piece of metal imbedded in his eye as a result of a prior accident. The court, based on this additional information, did find the quality of eyesight of the defendant in controversy and ordered the examination. Id. at 215.
The physical condition of a plaintiff of a plaintiff is always in controversy in a personal injury suit. Reamon v. O’Neill, 865 S.W.2d 583, 586 (Tex. App. – Houston [14th Dist.] 1993, orig. proceeding).
As held by the Texas Supreme Court in Coates, supra, a mere claim of mental anguish, standing alone, does not place a party’s mental health in controversy. Coates, 758 S.W.2d at 752. The courts have found however that when a party’s mental condition is an element of a claim, the condition is in controversy. Laub v. Millard, 925 S.W.2d 363, 364-65 (Tex. App. – Houston [1st Dist.] 1996, orig. proceeding) (plea of incompetence to toll statute placed mental condition in controversy). As indicated by the court in Coates, the plaintiff’s designation of a mental health expert as a witness at trial is sufficient to place the party’s mental condition in controversy. Coates, 758 S.W.2d at 752; Tex. R. Civ. P. 204.1(c)(2); see also, Exxon Corp. v. Starr, 790 S.W.2d 883, 887 (Tex. App. – Tyler 1990, orig. proceeding).
In addition to finding that a party’s mental condition is in controversy when that party designates a psychologist as a testifying expert, Tex. R. Civ. P. 204 modifies the previous Rule 167a to provide that the mental condition is in controversy when a party discloses a psychologist’s records for possible use at trial. Tex. R. Civ. P. 204.1(c)(2).
In Moore v. Wood, 809 S.W.2d 621 (Tex. App. – Houston [1st Dist.] 1991, orig. proceeding) the defendant attempted to invoke the spirit of Tex. R. Civ. P. 167a (now 204) to obtain the testing and evaluation of the plaintiff by defendant’s vocal rehabilitation specialist. The court found for the plaintiff as the expert is not one contemplated by the rule (for mental or physical examination). Id. at 623.
When the condition of a party is not in controversy from the face of the pleadings, the movant must establish that such controversy exists through evidence in the record of the court. Walsh v. Ferguson, 712 S.W.2d 885, 887 (Tex. App. – Austin 1986, orig. proceeding); Williams, 904 S.W.2d at 214.
“As recognized by the United States Supreme Court in Schlagenhauf, [supra] the rule regarding medical or physical examinations applies to both plaintiffs and defendants. “Discovery is not a one-way proposition.” Schlagenhauf, 379 U.S. at 113, 85 S.Ct. at 240, 13 L.Ed.2d at 161.” Williams, 904 S.W.2d at 216.
6. Who Conducts the Examination?
The only examinations provided for under Tex. R. Civ. P. 204 are for physical or mental examination. Moore, supra, 809 S.W.2d at 624 (Tex. R. Civ. P. 204 is not a proper avenue to compel examination by a vocational rehabilitation specialist). The term “physician” is not defined in the Rule, but the courts have defined a physician as “a practitioner of medicine who is skilled in medicine and surgery.” Coates, 758 S.W.2d at 751. The Rule does define a psychologist: “a person licensed or certified by a state or the District of Columbia as a psychologist.” Tex. R. Civ. P. 204.5.
7. Who Selects the Examiner?
As noted at the beginning of this section, calling a motion under Tex. R. Civ. P. 204 a motion for an independent examination is in fact incorrect. The rule does not provide that the examination must be by an independent healthcare provider, nor does it state that the parties must agree to a specific physician or psychologist. This does not however mean that the movant can pick any healthcare provider they wish. Employers Mut. Cas. Co. v. Street, 707 S.W.2d 277, 279 (Tex. App. – Fort Worth 1986, orig. proceeding). In Street, the court went through a thorough examination of Tex. R. Civ. P. 167a (now 204) in determining how an examiner should be selected. In the court’s review, the court looked at the basis for Tex. R. Civ. P. 167a which is found in Fed. R. Civ. P 35(a). In the court’s analysis, it not only looked at prior Texas case law, but also at both Federal interpretations of Fed. R. Civ. P. 35 as well as other states’ treatment of the Rule. Id. In doing so, the Street court concluded that there should be an attempt to have a meeting of the minds between the parties as to who should conduct the examination, and if the parties cannot agree, then the decision will fall with the court. Id.
At the time of the hearing on the motion for examination, the party to be examined should identify and obtain an order on all of the ‘ground rules’ for the examination. This should include: who will be doing the examining; where and when the examination will occur; the limits to the examination, both in terms of time as well as in terms of areas to be examined, either physically or mentally; who else will be attending the examination; what records (x-rays, MRI’s, medical records, etc.) will be provided to the examiner, and; what recordings (audio/video) will be allowed during the examination.
The order must be in writing, and must specify the time, place, manner, scope and conditions of the examination, including identifying who will be conducting the examination. Tex. R. Civ. P. 204.1(d). It should also set out explicitly all of the ‘ground rules’ identified immediately above.
As noted by the court in Moore v. Johnson, 785 S.W.2d 176 (Tex. App. – Waco 1990, orig. proceeding), a court is not under any duty to allow anyone to attend the examination with the party being examined. Id. at 178. The decision to allow attendance by others is within the sound discretion of the court. Id. If a party can show some particularized need for there to be another person present, the court may allow for such attendance, again, at the court’s discretion. Simmons v. Thompson, 900 S.W.2d 403 (Tex. App. – Texarkana 1995, orig. proceeding). In Simmons, the plaintiff’s attorney provided no reason for his attendance at the examination, save and except an argument under law, which was rejected as good cause by both the trial court and appellate court. Id.
As a practical matter, the party to be examined should always ask the court to include, as part of its order, a provision allowing attendance by another in the examination. Good cause to provide for attendance includes not only the obvious – having someone with you at any examination is always a good idea – but also the added protection which is inherently necessary in a process where your client is being forced to undergo physical or mental examination by a healthcare provider selected by, and paid for by, the very party you have sued.
Under the Workers’ Compensation Act, a party is allowed to have a physician or chiropractor attend an examination performed at the request of the Industrial Accident Board. Moore, 785 S.W.2d at 176.
Tex. R. Civ. P. 204.2(a) provides that, upon request, the party causing the examination to occur must provide to the requesting party a copy of a detailed written report of the examiner; the report to include the examiner’s finding, the results of tests conducted, and the examiner’s diagnoses and conclusions. Subsequent to receipt of the report, the par ty examined must, upon request, provide the party seeking examination with any reports regarding the condition examined.
If a physician or psychologist fails or refuses to provide a report, the court may exclude the testimony if offered at trial. Tex. R. Civ. P. 204.2(a).
The right to a report, and the penalty for failure to provide the same, apply whether the examination was conducted by order of the court or by agreement of the parties. Tex. R. Civ. P. 204.2(b).
More and more frequently, defendants are attempting to obtain direct access to a plaintiff’s healthcare providers; not just the records, but actual discussions with the physician, and without the presence or consent of the plaintiff.
Tex. R. Civ. Evid. 509(c) provides: “Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed.” See also, Tex. Occ. Code, A7 159.002(a). The evidentiary rules also provide: “Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.” Tex. R. Evid. 509(c)(1-2). These privileges may be claimed by either the physician or the patient. Tex. R. Evid. 509(d); Tex. Occ. Code, A7 159.002(e).
Exceptions to both the rules of evidence and the Occupational Code exist when a party relies on a medical condition as part of the party’s claim or defense. Tex. R. Evid. 509(e)(4); Tex. Occ. Code, A7 159.003(a)(4); see also, R.K., M.D. v. Ramirez, 887 S.W.2d 836, 842 (Tex. 1994). Whether the litigation exception exists is determined on the face of the pleading giving rise to the exception. Id. at 842.
Few courts have directly addressed whether a defendant should have unfettered access to a plaintiff’s treating physician. In Texas, there are two cases, sitting on either side of the access-fence. In Hogue v. Kroger store No. 107, 875 S.W.2d 477 (Tex. App. – Houston [1st Dist.] 1994, writ denied), the court held that defendant’s ex parte meeting with the plaintiff’s treating physician was permissible as the plaintiff had placed his health care in controversy. Id. at 481-82. Subsequent to the state court of appeals’ holding in Houge, a Texas Federal court found to the contrary of the Houston court. In Perkins v. U.S., 877 F.Supp. 330 (E.D. Tex 1995), the court questioned the advisability of allowing the defendant to meet with the plaintiff’s treating physicians, opining that to allow for such a meeting would “extend unwitting carte blanche to defense lawyers, deciding themselves what is relevant and what is not.” Id. at 332-33.
The concerns raised by the Perkins court, and by this author, are that allowing the defendant free and unfettered access to the plaintiff’s healthcare providers would lead to access of information specifically protected by both the Texas Rules of Evidence and the Texas Occupational Code; information which is irrelevant to that cause before the court.
When an attorney first sits down with his client in his initial meeting, he should already have a feeling that he understands or does not understand each element he will later have to prove to a jury. If he understands the concepts which will be necessary to make his case, it probably is not wise to rush out to other sources for help as the same can be done when issues are better formulated and strategies are being prepared for presentation to a jury; however, if the attorney is unsure of his client’s very position due to the technological aspects of his case, it is incumbent on the attorney to seek immediate help – sometimes even before agreeing to handle a case.
There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having specialized understanding of the subject involved in the dispute.
Id. at 957. Furthermore, some aspects of a case may be proven without the need of an expert even if such information is not readily apparent to the jury. For instance, a layperson can testify to the market value of real property as long as he testifies to matters within his knowledge. Wise v. DeToca, 761 S.W.2d 467, 469 (Tex. App. – Houston, [14th Dist.] 1988, no writ); Porras v. Craig, 675 S.W.2d 503, 505 (Tex. 1984). Essentially, before placing an alleged expert before the jury, ask yourself if they are necessary. Credibility will be lost both from the jury and your client (who paid for the expert) if your expert talks down to the jury or, worse, if the court disallows the expert’s testimony.
This leads to the third issue. Will the expert sway the jury and in what way. Suffice it to say, an expert can turn a jury off just as easily as move a jury toward your point of view. More so, an expert can put you into an excellent position or put you in a hole.
Perhaps the mistake made most in hiring an expert is under the mistaken belief that the opposition has and expert so I need an expert. If this is your only reasoning for putting forth the expense of an expert, you are opening up a Pandora’s box that may never be closed.
Your Client – Either your client himself may qualify as an expert, or he may know of someone who will be able to assist in that capacity.
Specifically, regarding medical experts, medical school libraries are excellent sources. All medical school libraries have a digest called the Index Medicus (a medical version of the Index to Legal Periodicals). This reference is published yearly and indexes all medical articles by subject. Authors of these articles may prove to be good expert witnesses as they not only have provided a good base for testimony, but, just as important, they have published there findings for peer review and therefore meet a crucial test under Daubert, Robinson, and their progeny.
Attorney Literature – The Texas and national bar journals as well as other publications directed at attorneys are loaded with advertisements for experts. But remember, testifying experts can be cross-examined as to how they were retained and advertising can compromise credibility.
The Internet – When the “Expert” portion of this paper was originally drafted, the internet was in its infancy and no mention was made of the potential to find an expert through this growing source. Only a few years later and the internet is now possibly the best resource for not only identifying experts, but also for obtaining opinions as to who are the best – and the worst – experts in a particular field, as well as obtaining information as to how to cross-examine a particular expert. Many litigation support groups provide specific on-line databases and repositories for not only information on specific experts, but actual transcripts of past deposition and trial testimony. In addition, many of the thousands of newsgroups contain information on experts and how to handle a specific witness.
Regional Bias – Bringing in an expert from another part of the country needs to be weighed with the inevitable cross-examination as to why counsel had to leave the city/state to hunt up an expert who will testify for him. While the jury may be impressed with credentials, they will also want answers as to why local professionals could not be used. Needless to say, the smaller the specialty or the greater the credentials, the weaker opposing counsel’s arguments against the expert.
Probably the most intangible aspect is how the expert will present to a jury. While an expert may be excellent in his field, and may be able to transmit his expertise to an attorney in a one-on-one situation, this does not translate automatically into a situation where the expert will be effective before a jury. If at all possible, meet with the expert face-to-face prior to the expert being retained, or, in the alternative, contact others who have used the expert in the past.
The attorney should advise all experts who may be testifying witnesses that their notes will very likely be seen by the opposition through discovery. The attorney should emphasize the importance of keeping notes that are clear and not subject to misinterpretation. The expert should expect that the opposition would read all of his notes carefully.
Call it Daubert, call it Robinson, call it Havner, call it Kumho Tire. Whatever your preference is as to which admissibility case you look to, a large part of your decision in choosing an expert must be based on whether that expert’s testimony will ever see the inside of the courtroom.
the non-judicial uses which have been made of the theory or technique.
Id. at 557. The Court noted that these factors are not exclusive and trial courts can consider other relevant factors and any review would be based on an “abuse of discretion” standard. Id. at 558.
Following up on Robinson, the Supreme Court moved from the admissibility argument regarding an expert’s qualifications to an expert’s testimony on causation. Merrill Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). After the court of appeals, applying the Robinson test, upheld a verdict favorable to the plaintiffs and their testifying expert, 907 S.W.2d at 564, the Supreme Court decided the case on a legal sufficiency ground, stating: “if the expert’s scientific evidence is not reliable, it is not evidence.” 953 S.W.2d at 713. The Court noted that there were some instances where the six criteria listed above do not apply if the plaintiffs can demonstrate that the exposure to the substance at issue increases the risk of their particular injury. Id. at 714-15. The Court then proceeded to set limits of reliability as to toxic tort cases and show why, under the limits set by the Court, the plaintiffs’ expert’s testimony was unreliable to show causation. Id. at 715-24. It should be noted that the Havner decision was based on a narrow set of facts in a toxic tort case; however, it did point the Court further in the direction of what was to follow.
In July of 1998, the Supreme Court handed down its decision in Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998). In Gammill, unlike in Havner before it, the issue as to the qualifications of experts was not dictated by the specific facts of the case, allowing for a broader review under the qualification criteria set out in Robinson.
First, the Court examined when the examination under Robinson and its progeny should apply. The Court indicated that a Robinson review is necessary only to determine the validity of a scientifically based opinion. Id. at 721. The court further noted that the test applies to all scientific opinions, not just those based on novel or unconventional sciences. Id. at 721-22. The Court then went into a thorough examination of just is and is not scientific testimony, citing federal cases wherein the courts upheld the engineering testimony of experts based on the experts’ training, education and experience, separate and apart from the test under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Gammill Court did, however, find some decisions from the federal courts which supported the application of the general principals limiting expert testimony while not applying the specific factors as set out in Daubert. 972 S.W.2d at 724-25. The Gammill Court, faced with the choice of leaving scrutiny under Robinson to the scientific community, or following the federal cases using Daubert to challenge all expert testimony went for the latter. Id. at 726. The Court therefore concluded that while the specific reliability factors set out in Robinson may not apply as to non-scientific testimony, the general requirements concerning reliability must still be met. Id. at 727. The Court concluded, noting that while cross-examination should not be supplanted as the appropriate means of attacking shaky but admissible evidence, the trial court must act a “gatekeeper” whose responsibility it is to ensure that “an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 728.
The Texas courts, following the more broad interpretation put forth by Gammill, found support from the U.S. Supreme Court in Kumho Tire v. Carmichael, 119 S.Ct. 1167 (1999) wherein the high court held that the reliability requirements espoused by Fed. R. Evid. 702 (from which Texas derives its evidentiary rule on this issue) apply not only to scientific testimony, but to all testimony. Id. at 1174.
Experts can have a lasting effect on a jury both through their testimony and exhibits and demonstrations generated by them, to the more subtle effects of preparation such as cross-examination as well as the ability to have a proper handle on the case as a whole through the use of both testifying and non-testifying experts.
Remember though what the main purpose behind the expense of an expert is – persuading a jury. To that end, an expert must meet minimum qualification, be able to generate opinions based on established and accepted facts and data, and present that information to a jury in a manner which is both informative as well as persuasive.
The expert has become viewed as a necessary part of trial, but as with all good tools, experts must be properly used to gain full effect. Should the need arise, an expert should be made an integral part in the building of a case, from a client’s first meeting until closing arguments.
I would like to take this opportunity to thank the people who assisted me in putting this paper together: Lorin M. Subar of the Law Firm of Lorin M. Subar in Dallas, and Gordon M. Carver, III, of the Law Firm of Dunn, Kacal, Adams, Pappas & Law, P.C. in Houston.

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du Plessis SH. & Pieterse V. A notation for sets, sequences, series: Study of the possible benefits for understanding and use. Proceedings of the 10th International Conference on Informatics in Schools: Situation, Evolution and Perspectives (ISSEP),Helsinki, Finland. November 13-15, 2017.
Pieterse V. Solms F. & Omeleze S. Preparing software engineering students for industry. Innovate; No. 12 (2017). pp. 89 - 90.
Solms F. & Pieterse V. Towards a generic DSL for automated marking systems. Proceedings of the 45th annual conference of the Southern African Computer Lecturers' Association (SACLA 2016), volume 642 of CCIS, Springer, 2016.
Pieterse V. & van Eekelen M. Which are harder? Soft skills or hard skills? Proceedings of the 45th annual conference of the Southern African Computer Lecturers' Association (SACLA 2016), volume 642 of CCIS, Springer, 2016.
Pieterse V. & Flater D. The ghost in the machine: don't let it haunt your software performance measurements. NIST TN 1830, National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899, 2014. URL http://dx.doi.org/10.6028/NIST.TN.1830.
Pieterse V. & van Rooyen IJ, Student discussion forums: What is in it for them? Proceedings of the Computer Science Education Research Conference (CSERC '11), Heerlen, The Netherlands (7 - 8 April 2011).
Rautenbach HR., Pieterse V. & Kourie DG. Stencil Shadow Volume Algorithms: An Analysis and Enhancement. Proceedings of 9th African Conference on Research in Computer Science (CARI'08) 27 - 30 October, 2008 - Rabat, MAROC. pp 177-184.
Pieterse V. Taxonomy Construction of Transitive Closure Algorithms. presented at a meeting of the Software Engineering and Technology Group (SET) of the Department of Mathematics and Computer Science at the Eindhoven University of Technology on 15 Oct 2008.
Alberts R. & Pieterse V. Improving diffusion of Information Technology in communities in a developing world context. Proceedings of Advances in Information Systems Research, Education, and Practice (ISREP) co-located with the World Computer Congress in Milan, IT, 7-11 September 2008. Also published in Advances in Information Systems Research, Education and Practice Volume 274/2008 pp 101-112. ISSN 1571-5736 (Print) 1861-2288 (Online). Springer Boston.
Pieterse V. & du Toit CM. Team trails, trials and tribulations - Rigorously reckoning with requirements. South African Journal of Higher Education volume 22(3) pp 629-643.
Pieterse V. & Kourie DG. Reflections on Coding Standards in Tertiary Computer Science Education. FESTSCHRIFT at Occasion of the 60th Birthday of Derrick Kourie at Windy Brow, South Africa, on 28 June 2008.
Goosen L., & Pieterse V. Student Perceptions of Learning Object-Oriented Programming.
Goosen L., & Pieterse V. Roller Coaster Riding: Highs and Lows of understanding OO.
Pieterse V. & Marshall L. Factors to consider when forming software engineering teams in a final year module.
Pieterse V. & Sonnekus IP. Rising to Challenges of combining qualitative and quantitative Research. Presented at the 6th World Congress on Action Learning, Action Research and Process Management in conjunction with the 10th Congress on Participatory Action Research. 21 - 24 September 2003 in Pretoria, South Africa at the University of Pretoria.
Pieterse V. Die Masjiensiklus Informedia, Journal of the National Film Library. 40 (1) 38-39 (April 1993).

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After suffering a significant injury, most people understandably concentrate on the relatively straightforward elements of damages and liability. In doing so, however, injured parties and their attorneys may overlook the most important options for a significant recovery. Most accidents involve some form of insurance. Insurers, in turn, may offer products that are designed to compensate victims, yet these same companies later have a strong economic incentive to deny or limit claims made by injured parties in order to maximize their profits. Consequently, many people who concentrate solely on liability or damages as a result of an accident do not recover all of the funds to which they are entitled when they simply accept the insurer's coverage determination. Alternatively, those with knowledge of Missouri law as it applies to insurers occasionally capitalize on these opportunities by contesting coverage issues and, thereby, maximize their recovery. This article addresses the most common coverage issues for parties dealing with insurance companies.
Insurance companies will often respond to an alleged claim by providing a copy of the "insurance policy" which is really simply the declaration page (rather than all the policy terms and conditions) and then will state the insurer's position as to whether any money is available. Injured parties and their representatives are well advised to not simply accept the insurer's own conclusion as to what is covered, but to demand a complete copy of the insurance policy and review all of its terms in light of Missouri law. In doing so, insured parties may find they are entitled to significantly more money and protections than the insurer has initially stated. Insurance policies are drafted with relatively short sections regarding what is covered and then pages and pages of endorsements and restrictions that purport to reduce or eliminate that coverage. Insurance policies are also drafted solely by the insurer with little or no opportunity for the insured to bargain about the terms of the policy itself. For these reasons, Missouri law actually provides many important protections to consumers (if they know where to find them). Under Missouri law, insurance policies are interpreted from the perspective of a reasonable insured. Terms used in the policy, unless specifically defined, are to be given a normal, every-day definition that is understandable to the party purchasing the insurance. If policies are written ambiguously, then the ambiguity is to be interpreted in favor of the insured and against the insurer; for example, when one provision of a policy purports to provide coverage and another purports to eliminate that coverage, then courts will often find in favor of the insured and rule that coverage exists. In short, if insureds can make a reasonable argument that there is coverage, courts will often find in their favor. These general rules of construction should be considered and applied to any insurance policy.
Motor vehicle policies sold in the State of Missouri are required to include uninsured motorist coverage, sometime called "UM" coverage. Most policies provide $25,000.00 in coverage for each insured vehicle, and these limits can (and should) be increased. It is extremely important to note that uninsured motorist coverage applies to the individual insured and is not restricted simply for the automobile to which the coverage was issued. Consequently, if you are injured by an uninsured driver, then in most cases you should be able to recover against your uninsured motorist policy regardless of the vehicle in which you were driving (or even whether you were outside a vehicle). The term "uninsured motorist" applies not only to an individual who has no insurance, but also applies to a hit-and-run motorist who cannot be identified. Also, a motorist who has insurance coverage that falls below the $25,000.00 required under Missouri law, such as insurance issued from another state that might have lower required limits, is an uninsured motorist. So, it is important to recognize that "uninsured motorist" is a broader term than one would initially realize. The most important advantage to insureds, however, is the ability to recover uninsured motorist payments from multiple policies or from one policy covering multiple vehicles. If an insured has one policy covering multiple vehicles, there will be uninsured coverage of at least $25,000.00 issued with respect to each car on that one policy. Alternatively, if an insured has different insurance policies for different vehicles, then, again, each policy should provide for at least $25,000.00 of uninsured coverage for each vehicle listed on them. Many insureds believe that they can recover against only the policy that was issued with respect to the vehicle they were driving at the time of the accident, but this is not the case. Under Missouri law, insureds are able to recover against each uninsured motorist coverage, whether contained in one policy or different policies. So, if an insured is injured by an uninsured motorist while driving one car, she can usually recover from the (at least) $25,000 of uninsured motorist coverage from that car and every other insured vehicle she has. This is referred to as "stacking" and can greatly increase the pool of resources against which an insured may recover-up to the value of their injuries, of course. Stacking uninsured motorist policies, in this way, is one of the most important protections provided by Missouri law.
While uninsured motorist coverage and underinsured motorist coverage sound similar, they are deceptively different under Missouri Law. In general, uninsured motorist coverage applies when the responsible party has no insurance while underinsured motorist coverage (sometimes called "UIM" coverage) theoretically applies when the responsible party's insurance is insufficient. Moreover, while Missouri law mandates uninsured motorist policies be stacked, it does not require that one's underinsured motorist coverage be treated in the same way. In fact, underinsured motorist coverage is not even required to be issued by Missouri insurance companies. If a Missouri resident does not purchase this additional coverage, then they are not entitled to collect from their own insurer if hit by a driver who has, for example, a minimum of $25,000.00 of coverage even if the resident has $100,000.00 or more in damages. Consequently, Missouri consumers should always purchase underinsured motorist policies. The law with respect to underinsured motorist policies is replete with opportunities for insurance companies to deny coverage that the insured would reasonably expect. For example, consider a situation in which you are injured by a driver who has $100,000.00 in liability limits, you have underinsured coverage of $100,000.00, but you suffer over $500,000.00 in damages. Since you have $500,000 in damages and the other driver has only $100,000 in coverage, you would normally expect to be able to recover (at least) $100,000 from your underinsured motorist coverage. Insurers, however, can define their underinsured motorist coverage so that the other driver in this case would not be considered to be an "underinsured motorist" because the driver has insurance limits ($100,000.00) that equaled the limits of your own underinsured coverage ($100,000.00). By defining what an "underinsured driver" is in this way, many Missouri consumers do not have the sort of protection they believed was afforded by their policy. Everyone should review his insurance policy very carefully to avoid this result. If an insured does have underinsured motorist coverage on multiple vehicles in one policy or through multiple policies, then the question arises as to whether one can recover from more than one underinsured policy; in other words, whether one can stack the underinsured motorist coverage just like one can stack uninsured coverage. Missouri law does not mandate underinsured motorist policies to be stacked. Therefore, insurance companies try to draft their policies to prohibit stacking. Yet, unless insurers draft their policies so clearly that they unambiguously prevent stacking, an insured may prove that the anti-staking provisions are ambiguous and, then, can stack all of the underinsured policies There are many examples of insurers who have attempted to prohibit stacking, but have failed through drafting ambiguous policy provisions. For instance, in Long v. Shelter Mut. Ins. Co., 351 S.W.3d 692 (Mo. Ct. App. W.D. 2011) and Chamness v Am. Family Mut. Ins. Co., 226 S.W.3d 199 (Mo. Ct. App. E.D. 2007), the courts found that the insured would be allowed to stack multiple insurance policies, because the anti-stacking provisions, when read in context with the other policy provisions, created an ambiguity that was construed in favor of coverage for the insureds. A word of caution at this point should be given. In cases involving insurance policies, each case will turn upon the specific language contained within the policy. Often courts will distinguish cases based upon one word or phrase that appears in one policy but not another. Therefore it is imperative that each case be analyzed to determine whether or not the language in the insurance policy in your case is similar to or distinguishable from the language in other underinsured motorist cases. For example, in 2012, Riley & Stingley recovered full underinsured motorist coverage because, after an insurer denied any liability, the policy language was different than the cases on which it relied.
In many policies, the insurer will attempt to limit the amount it pays the insured by purporting to set-off that amount by any other amounts received by the insured. For example, if a victim of an automobile accident received $25,000 from the other driver's insurance company but was able to assert a claim under the victim's own underinsurance coverage, the insurer may claim that any money paid will be reduced by the $25,000 received from the other driver's. Unfortunately, this too often results in the insured receiving no money from its own insurance company because the limits of its own insurance are equal or less than the amount of money received from another insurance company. Yet, just as ambiguity in an insurance policy will allow the insured to stack coverages, an ambiguity in the set-off provisions may also allow for full recovery. For instance, in Jones v. Mid-Century Ins. Co., 287 S.W.3d 687 (Mo. banc 2009) and Ritchie v. Allied Property & Cas. Ins. Co., 307 S.W.3d 132 (Mo. banc 2009), the Missouri Supreme Court found that the set-off language in the insurance policies to be ambiguous. In those cases, the Court noted that under the insurance company's interpretation of the policy language, they would never be required to pay the full amount of their obligations, which conflicts with the policy's coverage provisions. As with stacking underinsured motorist coverage, each insurance policy may contain slightly different language, which may lead to a different result. Carefully analyze each policy and the applicable case law to determine the effect of the policy language.
Another area of insurance law that creates opportunities for successful litigation is with respect to insurance limits. An insurer can, of course, issue a policy with a total amount of coverage (say, for example, $300,000.00), but then limit the amount that would actually be payable in some specific circumstances (for example, only $100,000.00 for each person injured in an accident). These and other types of limits allow insurers, in some cases, to pay out less in insurance benefits than what an insured might expect from reviewing the insurance declaration page. Generally, insurance limits are enforceable. If an insurance company has an unambiguous provision that reduces or limits the amount the insurer would pay beyond the total coverage, the reduction or limitation is enforceable. Yet, there are situations in which an insurance company has asserted that a policy provision reduced its liability even though courts subsequently agreed with the insured or injured parties that more money was due. One of the most common sources of disputes with respect to the applicability of insurance limits arises in addressing "loss of consortium" claims. Generally, a loss of consortium claim is a claim that a spouse or child may have when that person's spouse or parent suffers bodily injuries. When, for example, a husband is injured in an automobile accident, his wife also suffers damages due to loss of services, companionship, increased work, etc. These claims are compensable under Missouri law. Even though these claims are compensable, many husbands or wives are denied payment for their loss of consortium claims due to their spouse's injury because insurance companies claim that they only have to pay one "per person" limit because only one spouse suffered a bodily injury. So, if the husband directly involved in the accident suffered serious bodily harm, and even if the other driver was insured with a policy that provided $100,000.00 per person and $300,000.00 per accident coverage, the insurance coverage would pay only $100,000.00 for the husband's injuries and no additional money for the wife. Missouri courts have held that these limitation provisions are enforceable if properly drafted. Injured parties must know, however, that many of these provisions are not properly drafted and may allow a couple to recover twice the amount offered by the insurance company. If an insurer drafted a limitation provision so that each per-person limit applied for each person "damaged" rather than "suffering bodily injury" then courts have held that each spouse is allowed to recover up to that limit amount. Similarly, if the policy's definition of "bodily injury" would include loss of consortium damages, then additional recovery is again available.While this is only the most common ambiguity that allows injured parties to avoid limitation provisions, many others may exist. For example, Riley & Stingley is litigating such a case at the time of this article based on the definition of "damages" in the insurance policy.
Excess insurance and umbrella insurance is insurance a party obtains to cover claims that would exceed the value of a primary policy. Excess insurance policies generally increase the amount of coverage but not the scope of coverage. An umbrella policy typically insures against certain risks that the primary policy does not cover; it provides primary coverage for certain covered losses and in this way it is a "gap filler" policy. These types of insurance policies might provide coverage provisions that differ from the primary policy, being either narrower or broader that the primary policy, or they may cover exactly the same claims, but only to the extent the claim exceeds the limits of the primary insurance, thus being a "follow-the-first" type of policy. Similar to primary liability insurers, excess and umbrella insurers typically require the insured to provide timely notice of a loss. Excess insurers often do not have the same obligations to defend parties as the primary insurer, until the limits of the underlying coverage are exhausted. Umbrella insurers, on the other hand, have a duty to provide a defense where the policy provides primary coverage. One issue that has arisen several times in Missouri cases is whether an excess insurer must pay for claims that exceed the value of the primary insurer's limits if the injured parties settle with the primary insurer. An older Missouri case held that claimants could settle with the primary insurer so long as the excess insurer was credited with the full amount of the primary insurance. Insurers have repeatedly argued that their policies require "exhaustion" of the primary insurance, however, and consequently the excess insurer is liable only if the claimants actually receive the full value of primary insurance (which, of course, renders settlement with the primary insurer virtually impossible). In the recent case of Schmitz v. Great American, 337 S.W.3d 700 (Mo. banc 2011), however, Riley & Stingley was able to persuade the Missouri Supreme Court that Great American's excess insurance policy was written so that it did not even require exhaustion of the primary policy, and thus our client was able to both settle with the primary insurer and recover against the excess insurer. This article only touches upon the very basics of excess and umbrella insurance. The issues in cases where excess or umbrella insurers are involved are numerous and should be carefully studied in each situation to determine the liability of each insurer.
While many consumers rely on insurance companies to recover compensation for accidents they have suffered, many other parties, especially businesses, rely on insurance companies to defend or indemnify them when faced with a claim. In these cases, it is vitally important not only that one force the insurance company to recognize its duty to indemnify or pay an insured claim, but also to recognize and perform its duty to defend the insured. In many cases, the claims brought against an insured party may ultimately prove to be valid, and, hence, will not require payment, but the insurer is still obligated to provide a defense to the claim. Insured parties must recognize that the duty to defend is broader than the duty to indemnify. Consequently, even if an injured party brings an invalid or fabricated claim, the insured has still paid premiums for the benefit of the insurer paying for defense against the claim. The duty to defend is based on the allegations in the lawsuit, rather than what might ultimately be proven. Moreover, Missouri law actually mandates that if a lawsuit includes any insured claims, then the insurer has a duty to defend, even if the suit also includes claims that are not insured. Therefore, if an insurance company refuses to defend, an insured party may feel vulnerable when, in fact, Missouri law provides many opportunities to hold the insurance company responsible.
One of the most common tactics for an insurance company to pursue is to begin a defense but "reserve its rights" to later disclaim coverage. This approach is extremely problematic for insured parties in that it allows an insurance company to defend a claim, but then ultimately deny any liability to pay the claimant if the defense fails. Allowing an insurer to provide a defense under a "reservation of rights," therefore, is generally unwise. Fortunately, Missouri law provides an effective deterrent to insurers attempting to provide a defense under a "reservation of rights." Under Missouri law, an insured party is not obligated to accept the defense under a reservation of rights. Instead, the insured party can expressly reject the reservation of rights in which case the insurer must drop its reservation of rights and provide a complete defense or risk breaching its contract by refusing to defend. By forcing an insurance company to make such a decision, the insured party can greatly increase its protection by verifying the insurance company will stand behind its coverage obligations. If, in response to an insured's demand for defense without a reservation of rights, the insurer refuses to drop its reservation and defend, then it will be deemed to have breached its contract if its coverage determination is incorrect. If the insurer just refuses to defend without reservation, the insured may immediately sue the insurer for breaching its contract; more significantly, perhaps, an insurer's breach of contract frees the insured party to reach a settlement or otherwise dispose of its case in its best interest thereby allowing the claimant to go directly after the insurance company. In some cases, the insured party may even have a claim for additional damages against the insurance company, as discussed below. In all these cases, however, it is imperative to make the right interpretation of the insurance policy (i.e., be sure that the policy actual does provide coverage) and to have proceeded correctly in dealing with the insurer to protect one's self and to maximize the chance of a recovery of damages. Sometimes insurance companies will assert a reservation of rights and then, even after an insured defendant demands that the reservation be dropped, the insurer continues to defend without ever expressly dropping its reservation. It appears insurers hope the insured will simply acquiesce and continue to accept a defense without forcing the insurer to make a final determination. In 2013, Riley & Stingley is currently negotiating with an insurer that has followed this approach; while the insured enjoys a "free" defense of the claims against him, one should build the case that coverage exists and be aware of this tactic. In all cases it is as important for an insured defendant as it is for an insured claimant to read and interpret their policy for themselves with proper and informed representation.
One of the most potent protections under Missouri law is provided in Section 537.065, RSMo. This statutory provision allows a party being sued (the defendant) to reach an agreement with the claimant (or plaintiff) by which the plaintiff agrees that if a judgment is obtained against the defendant, then the claimant will attempt to collect that judgment only against any specified assets, like insurance. This statute has been interpreted by the courts to allow the defendant, who is insured by an insurance company that refuses to defend, to enter into what is called a "537.065 Agreement" and then simply take no other action while the plaintiff proceeds to a trial or other hearing to obtain a judgment against them; if a judgment is, then, obtained, the plaintiff proceeds directly against the insurance company and the defendant does not have to pay for its defense and is at no risk of having to pay the judgment. This statute allows the plaintiff to take the risk of whether insurance exists, while protecting the defendant. Moreover, as discussed below, the insured party may even have the opportunity to collect additional damages against the insurance company if it is determined that the insurer denied its defense obligations in bad faith. If the insurer was correct and no insurance exists for the plaintiff's claims, then the plaintiff simply cannot recover from the insurer (and the defendant is still protected). 537.065 agreements are under constant attack by insurance companies and are quite complicated processes. Nevertheless, the presence of Section 537.065 provides significant protections for insured parties and significant opportunities for injured parties if an insurance company does not defend a case as it is required to do. As such, the 537.065 agreement is a tool that should be the toolbox of any litigator pursuing insured claims.
As mentioned above, if the insurance company refuses to defend its insured without reservation or otherwise conducts its investigation or coverage decision in bad faith, the insured may be able to recover damages from the insurance company in excess of the policy limits. These "extra-contractual damages" may be recovered for a liability insurer's refusal to defend its insured against a claim by a third party (i.e., breach of a duty to defend); the bad faith failure of a liability insurer to settle a claim with a third-party within policy limits thereby resulting in a judgment against the insured in excess of the policy limits (i.e., bad faith refusal to settle); or a wrongful denial by an insurer of a first-party claim (i.e., vexatious refusal to pay a claim). The first and second situations above involve third-party claims while the third situation involves a first-party claim. A third-party claim is a liability claim made by an injured party against the insured to compensate the injured party for a loss due to the insured's liability. A first-party claim is a claim made by the insured to its own insurance company to recover proceeds of the insurance policy for a covered loss. In each situation, the insured is the individual to whom the action accrues. The insurer's duty to defend is addressed above; thus, this section will address bad faith refusal to settle and vexatious refusal to pay.
In a situation where in insurance company refuses to defend its insured, the insurance company may be liable for breach of contract and all damages proximately caused by the breach. Those damages could include damages incurred by an insured when an insurer refused, in bad faith, to settle a claim with a third party within policy limits when it was under a contractual obligation to do so. Courts have determined that when insurers expose their insured to a judgment in excess of the policy limits in this manner, then the insurer will be liable for all those damages to which the insured was exposed. Bad faith on the insurer's part may be shown by direct or circumstantial evidence and courts have found that certain factors are evidence of bad faith: failure to fully investigate a third party's claim, failure to recognize the severity of the claimant's injuries, failing to recognize that a verdict against the insured might exceed policy limits, failure to keep the insured informed of settlement offers, ignoring settlement advice or rejecting advice by the company's own agents or counsel, failing to affirmatively seek a settlement or resolution of the claim; limiting an investigation to the question of coverage; standing on a denial of coverage without considering the interest of the insured; and failing to give good faith consideration to a settlement despite a coverage dispute. For example, in Shobe v. Kelly, 729 S.W.3d 203 (Mo. Ct. App. W.D. 2009), the insurance company erroneously denied coverage to its insured and was found to have acted in bad faith in refusing to settle the insured's claim because the insurer not only interpreted its policy incorrectly but also limited its investigation to the question of whether or not the policy covered the third party's claim and failed to consider the insured's interest. Since the resolution of each case turns upon the facts specific to that case, insureds should carefully contemplate whether or not they might be able to assert a bad faith refusal to settle case. While it will not be available in every case, it is an issue to be aware of in dealing with insurance companies.
In Missouri, a bad faith refusal to settle claim belongs to the insured, not the third-party claimant. Nevertheless, an insured's bad faith refusal to settle claim against the insurer is assignable.  However, this contention has received some criticism in the state courts. These courts are joined by other commentators who suggest that since the law on assignability of a bad faith refusal to settle claim is unsettled, the insured and the third-party claimant could agree that the insured will pursue a bad faith refusal to settle claim against the insurance company, and then either have the insured assign the judgment to the third-party claimant or pay the proceeds to the claimant pursuant to an agreement. This option then allows both parties to skirt the assignability problems that might arise. In the federal court system, a bad faith refusal to settle claim is not assignable.
Similar to bad faith refusal to settle is the statutory cause of action for vexatious refusal to pay. Four Missouri statutes provide for recovery of damages and attorney's fees if an insurer unreasonably refuses to pay or unreasonably delays paying a loss. Sections 357.335, 375.296, 375.420, and 378.330, RSMo. The two statutes in Chapter 375 will be the focus of this analysis. Section 375.420 contains language covering a broad range of insurance types, including fire, life, health, accident and even a catch-all for "other insurance." However, automobile liability policies are explicitly excluded from the provisions of the statute. The standard for determining whether or not an insurance company acted unreasonably when it failed to pay a claim is whether a reasonable and prudent person would find the conduct of the insurer reasonable or unreasonable up to the time it was asked to pay and refused to do so. Thus an insurance company who presents a legitimate issue regarding coverage under the insurance policy or their duty to pay will not be liable for their refusal to pay unless the insured can present evidence that the insurance company acted unreasonably. Moreover, an insured cannot recover from the insurance company more than that to which he or she is entitled. As with bad faith refusal to settle, each case's resolution will be dependent upon the specific facts of the situation, including the wording of the insurance policy. Thus it is important to understand the insurance policy's language regarding coverage and when the insurer's duty to pay a loss arises.
Insurance is not only a factor in recovery compensation for injuries, it is also a normal cost of doing business. Whether you are brining or defending a claim, you must take responsibility for yourself to verify you are receiving the benefits from an insurance company to which you are entitled. Due to the complexity of insurance policies and the number of legal doctrines that affect their interpretation, you should always have effective legal representation when negotiation with an insurance company.
 Riley & Stingley's case of Schmitz v. Great American Assurance Co., which began with every insurer denying any obligation to pay a penny, ended with one insurer paying $700,000.00, another insurer paying $750,000.00 and a third insurer paying more than $3,000,000.00. 337 S.W.3d 700 (Mo. banc 2011). PAST PERFORMANCE IS NO GUARANTEE OF FUTURE RESULTS.
 Ritchie v. Allied Property & Cas. Ins. Co., 307 S.W.3d 132 (Mo. banc 2009).
 Section 379.203, RSMo.; Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976).
 Section 379.203.5, RSMo.; Kramer v. Ins. Co. of N. America, 54 S.W.3d 613 (Mo. Ct. App. W.D. 2001).
 Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538, 542 (Mo. banc 1976).
 Rodriguez v. General Acc. Ins. Co. of America, 808 S.W.2d 379 (Mo. banc 1991).
 Rodriguez v. General Acc. Ins. Co. of America, 808 S.W.2d 379, 382 (Mo. banc 1991).
 See also Niswonger v. Farm Bureau Town & Country Ins. Co. of Missouri, 992 S.W.2d 308 (Mo. Ct. App. E.D. 1999); Am. Family Mut. Ins. Co. v. Ragsdale, 213 S.W.3d 51 (Mo. Ct. App. W.D. 2006); Ritchie v. Allied Property & Cas. Ins. Co., 307 S.W.3d 132 (Mo. banc 2009).
 Ward v. Am. Family Ins. Co., 783 S.W.2d 921 (Mo. Ct. App. E.D. 1989).
 Cano v. Travelers Ins. Co., 656 S.W.2d 266 (Mo. banc 1983).
 Anderson v. St. Paul Mercury Ins. Co., 792 S.W.2d 440 (Mo. Ct. App. W.D. 1990).
 Handleman v. U.S. Fidelity & Guar. Co., 18 S.W.2d 532 (Mo. App. St. Louis 1929).
 Truck Ins. Exchange v. Prairie Framing, LLC, 162 S.W.3d 64, 88 (Mo. Ct. App. W.D. 2005).
 In the most recent Missouri Supreme Court Case regarding 537.065 agreements, the Missouri Supreme Court approved the process by which Riley & Stingley obtained, for its client, a judgment after entering into a 537.065 agreement, and allowed recovery of the judgment obtained.
 Johnson v. Allstate Ins. Co., 262 S.W.3d 655 (Mo. Ct. App. W.D. 2008).
 Ganaway v. Shelter Mut. Ins. Co, 795 S.W.2d 554, 565 (Mo. Ct. App. S.D. 1990).
 Johnson v. Allstate Ins. Co., 262 S.W.2d 655, 669 (Mo. Ct. App. W.D. 2008) (Smart, J. concurring).
 Quick v. Nat'l Auto Credit, 65 F.3d 741 (8th Cir. 1995).
 Boatmans's First Nat. Bank of Kansas City v. Hawkeye-Security Ins. Co., 861 S.W.2d 600, 603 (Mo. Ct. App. W.D. 1993).

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