Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationNo Pay, No Play LawsOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Threshold (80%).
Vehicle less than six-years-old and if damaged exceeds 80% of the fair market value. Mo. Rev. Stat. § 301.010(51)(a).
Automobile: Pro-Rata. Mo. Code Regs. Ann. Tit. 20, § 100-1.050(2)(c) provides: “Insurers, upon claimant’s request, shall include first-party claimant’s deductible, if any, in subrogation demands. Subrogation recoveries shall be shared on proportionate basis with the first-party claimants, unless the deductible amount has been otherwise recovered. No deduction for expenses can be made from the deductible recovery unless outside attorney is retained to collect this recovery. The deduction may then be for only pro-rata share of the allocated loss adjustment expense.”
Deductible must be included in any collision subrogation demand upon claimant’s request.
Diminution of Value
First Party: If policy language is unambiguous regarding no coverage for diminution, the diminished value is not a covered loss and the insurer’s liability was capped at either the actual cash value of the auto or the cost to repair or replace the damaged auto itself or with parts or property of like kind and quality. Lupo v. Shelter Mut. Ins. Co., 70 S.W.3d 16 (Mo. App. 2002). However, the Missouri Court of Appeals has held that “If the insurer, permitted to undertake repairs, falls short of substantial restoration of function, appearance and value, the insured, upon proper showing, can recover damages in an amount equal to the difference between the reasonable market value of the insured automobile immediately prior to the upset and its reasonable market value when tendered to plaintiff after repairs.” Williams v. Farm Bureau Mut. Ins. Co. of Mo., 299 S.W.2d 587 (Mo. Ct. App. 1957).
Third Party: Although proper measure of damages in an automobile collision case is generally the difference between the market value of automobile before collision and its value after collision, that is not the only measure of damages allowable; also allowable are the cost of repairs and the difference between the market value of the car before the collision and its value after the repairs. Rook v. John F. Oliver Trucking Co., 556 S.W.2d 200 (Mo. App. 1977); Hood v. M. F. A. Mutual Insurance Co., 379 S.W.2d 806 (Mo. App. 1964); Langdon v. Koch, 393 S.W.2d 66 (Mo. App. 1965).
There may be other items of loss, such as cost of preservation and diminution of damage and loss of use, which would be added to the total damage suffered by the owner. and the amount, if any, of the deterioration of the repaired car, being the difference in the reasonable market value of the car immediately before the accident and the reasonable market value of the same after it had been repaired. Gilwee v. Pabst Brewing Co., 193 S.W. 886 (Mo. App. 1917).
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
A liability insurer is not precluded from accepting a reasonable settlement demand from fewer than all insureds in a multiple claimant situation. By accepting the offer, the insurer would avoid being subjected to liability exceeding policy limits due to its rejection of a reasonable offer, and settlement would decrease the total amount of liability in an underlying suit. Millers Mut. Ins. Ass’n of Ill. v. Shell Oil Co., 959 S.W.2d 864 (Mo. App. 1997).
Where there are multiple claims against the insured of a liability insurer and that those claims are of such nature that the insured may be exposed to double liability or multiple recovery for a single liability, interpleader is a recommended option. Gen. Am. Life Ins. Co. v. Wiest, 567 S.W.2d 341 (Mo. App. 1978).
Effective August 28, 2018, the Missouri legislature passed amendments to the state’s interpleader statute, Mo. Rev. Stat. § 507.060. Section 507.060, which address one of the most vexatious problems in claims handling—multiple claimants all claiming from inadequate liability limits—now provides clearer direction for carriers. It provides that an interpleader action may be filed in circumstances “including multiple claims against the same insurance coverage.” The amended statute provides that an interpleader claim may be filed where there are multiple “potential” claims against the insurer or insured. If the carrier files an interpleader action within ninety (90) days from receiving a settlement demand, it is protected from extra-contractual liability in “any other action,” specifically addressing the third-party bad faith problem. Note, however, that the carrier gets protection only if it defends the insured in any bodily injury action even though it has deposited its limits into court in the interpleader.
Funeral Procession Traffic Laws
A funeral procession is defined as two or more vehicles accompanying the body of a dead person from a funeral establishment to the place of final disposition or a place where additional funeral services will be performed. Funeral lead vehicles must have an amber or purple light or lens or alternating flashing headlamps. The law gives the procession the right-of-way, except it must yield to emergency vehicles. Once the lead vehicle lawfully enters an intersection, all other vehicles in the procession may follow without stopping, but must exercise due care. All vehicles in the procession must follow each other as closely as safely possible, and toll-free passage is given to processions on any toll bridges, tunnels, or other roads. Other vehicles are prohibited from driving between, joining, attempting to pass, or crossing the path of a funeral procession. Mo. Rev. Stat. § 194.500-509.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Driver’s contributory negligence cannot be imputed to owner suing third party for damages to vehicle in collision; unless there is joint enterprise. MacArthur v. Gendron, 312 S.W.2d 146 (Mo. App. 1958).
Joint ownership of automobile is not sufficient basis for imputing negligence of driver-spouse to passenger-spouse. Trip for family purpose doesn’t allow for this either. Stover v. Patrick, 459 S.W.2d 393 (Mo. 1970).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
Missouri recognizes the Family Purpose Doctrine. Mebas v. Werkmeister, 221 Mo. App. 173, 299 S.W. 601 (1927).
Sponsor Liability for Minor’s Driving: No sponsorship liability statute. However, under Mo. Rev. Stat. § 302.250, a parent will be held liable when they knowingly allow a minor under 16 years of age to use their motor vehicle.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No driver under the age of 21 may send, receive, or read a text message in a hand-held manner while operating a motor vehicle. Mo. Rev. Stat. § 304.820(1).
No applicable laws on cell phone use.
Other Prohibitions: No Applicable Laws.
Comments: Local communities may pass their own laws regarding cell phone use.
Loss Of Use
Loss of Use: Yes. The calculation of loss of use damages is the cost of hiring/renting a replacement vehicle during the time reasonably required for repairs, but the plaintiff has the burden of proof of the damages’ reasonableness. Stallman v. Hill, 510 S.W.2d 796 (Mo. App. 1974). There is no direct case law addressing whether a vehicle must actually be rented in order to use that value as a measure of loss of use; however, it appears that testimony as to loss of use value is accepted in other areas, such as reasons why a replacement vehicle is not available to rent. Conley v. Kansas City Rys. Co., 259 S.W. 153, 155 (Mo. App. 1921). Therefore, it is appropriate to pursue evidence of a rental vehicle value as a measure of loss of use even when the vehicle itself is not rented. There is no recovery for loss of use when a vehicle has been substantially destroyed or is not substantially repairable. German v. Centaur Lime Co., 295 SW 475 (Mo. App. 1927). Loss of use for destroyed vehicle is allowed in addition to replacement value. Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
Lost Profits: Yes. sometimes. Lost profits cannot be recovered unless it can be shown that no replacement vehicle was available. Conley v. Kansas City Rys. Co., supra. Where a property owner is the victim of a tort that destroys his property, the law seeks to restore him for his “full actual loss” by awarding him the “monetary equivalent” of the destroyed property so as to place him in “as good a position as he would have enjoyed in the absence of the destruction.” Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009). For an award of lost profits damages, a party must produce evidence that provides an adequate basis for estimating the lost profits with reasonable certainty. Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50 (Mo. banc 2005). Availability of lost profits, as damages for loss of use of property destroyed by a tortfeasor, is limited by the principle that the property owner has a responsibility to act within a reasonable time period to reduce its damages; the time period in which the property owner acts can be considered reasonable so long as the property owner exercises reasonable diligence or if the delay was occasioned by the tortfeasor. Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
Comments: If personal property used in business is entirely destroyed by the negligence of the owner, the recovery of the full value of the destroyed property excludes recovery for loss of use. Orr v. Williams, 379 S.W.2d 181 (Mo. App. 1964).
Med Pay/PIP Subrogation
Med Pay: No subrogation because personal injury cause of action not assignable. Forsthove v. Hardware Dealers Mut. Fire Ins. Co., 416 S.W.2d 208 (Mo. App. 1966).
PIP: Same as Med Pay.
Made Whole: Doctrine applies. Hayde v. Womach, 707 S.W.2d 839 (Mo. App. 1986).
Statute of Limitations: The five (5) year personal injury statute of limitations runs from the date of the insured’s accident. Mo. Rev. Stat. § 516.120 (2002).
No Pay, No Play Laws
Rule: Uninsured motorists injured in an accident waive their ability to pursue a cause of action against the tortfeasor unless it can be proven that the tortfeasor was under the influence at the time of the accident.
Authority: Mo. Rev. Stat. § 303.390
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N/A
Common Law Rule: In the absence of special circumstances or of special relationship affecting foreseeability, one who leaves a vehicle unlocked with the keys in the ignition does not owe a duty to third parties arising from accidents involving negligent thieves. Dix v. Motor Mkt., Inc., 540 S.W.2d 927 (Mo. Ct. App. 1976).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: Unless stated in the policy language, an insurer is not required to reimburse for sales tax. The insured must file a request with the state to have their sales tax refunded. https://insurance.mo.gov/Contribute%20Documents/autoclaimbrochure_002.pdf
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Pedestrian and Crosswalk Laws
Mo. Rev. Stat. § 300.375: Vehicle must yield to pedestrians close to or in vehicle’s half of crosswalk. Pedestrians must not leave crosswalk in front of vehicle if vehicle does not have time to stop.
Mo. Rev. Stat. § 300.410: Every driver must exercise the highest degree of care to avoid colliding with any pedestrian and must give warning by sounding the horn when necessary.
Mo. Rev. Stat. § 300.395: Pedestrians must use crosswalk when there are traffic control signals, in a business district, or where an ordinance dictates it. No crossing diagonally.
Mo. Rev. Stat. § 300.390: Pedestrians must yield to vehicles when crossing outside crosswalk.
Mo. Rev. Stat. § 300.385: Pedestrians must not cross diagonally.
Summary: Pedestrians crossing at any other place than a crosswalk “shall yield the right-of-way to drivers” and it is not unlawful to do so. Venable v. S.O.R., Inc., 713 S.W.2d 37 (Mo. App. 1986). A pedestrian who waits for green light to cross intersection has the right to rely on drivers obeying the law and, in the event the driver turns toward pedestrian, pedestrian could legally rely on taxicab driver’s yielding the right-of-way to pedestrian, who was already walking in the crosswalk, and pedestrian had right to assume that driver would not turn and hit him. Farr v. Manzella, 362 S.W.2d 752 (Mo. App. 1962).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Amount of damaged limited to ACV or actual cost to repair, whichever is less. Independent appraisal company, renter’s insurance company or repair facility that will actually do the repair work must do the estimate. Mo. Stat. § 407.735(3). A vehicle rental company may recover for loss of use. However, any charge for loss of use must not exceed the reasonable estimate of the actual income lost. Mo. Stat. § 407.735(3).
Recovery From Third-Party: Owner can recover both costs of replacing a specialized commercial spray foam rig and lost profits for loss of use of rig between accident and time company could build a replacement, since loss of profits associated with the time period company was without use of rig was distinct from cost of replacement. Owner could not afford to buy a new rig immediately after accident and a rental suited to company’s business was not available on rental market. The goal of awarding damages is to compensate a party for a legally recognized loss, and a party should be fully compensated for its loss, but not recover a windfall. Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. 2009).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: A car rental company’s policy is secondary to the coverage provided by the renter’s policy. Escape clauses in rental agreements are enforceable, and the renter’s insurance is primary. Irvin v. Rhodes, 929 S.W.2d (Mo. 1996). Every liability policy must extend coverage to vehicles loaned as demonstration vehicles or while the insured’s vehicle is out of use due to repair. Mo. Stat. § 379.201. A car rental company’s liability carrier is primary if the renter’s policy excludes from vehicles owned by a car business. Geisner v. Budget Rent-A-Car, 967 S.W.2d 95 (Mo. 1998).
Slower Traffic Keep Right
Statute: Mo. Rev. Stat. § 304.015 1, 5(3),5(6), 7-9 and Mo. Rev. Stat. § 304.016 1.
Summary: Drivers must drive in the right lane except when passing another vehicle; when making a lawful left turn; when the right lane is closed to traffic while under construction; or upon a one-way roadway. All vehicles in motion upon a highway having two or more lanes of traffic proceeding in the same direction shall be driven in the right-hand lane except when overtaking and passing another vehicle or when preparing to make a proper left turn or when otherwise directed by traffic markings, signs, or signals. Trucks weighing more than 48,000 lbs. used to transport property; motor vehicles designed or used for carrying freight, merchandise, or more than eight passengers, but not including vanpools or shuttle buses; may not use left-hand lane on interstate highways, freeways, or expressways within urbanized areas of the state having three or more lanes. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle. Vehicles proceeding slower than the normal speed of traffic must drive in the right lane.
Sudden Medical Emergencies While Driving
Act of God Defense. Although the Sudden Emergency Doctrine is not a defense, Missouri does recognize an Act of God Defense. If driver’s negligence was caused by an Act of God they are not liable if the driver exercised due care prior to the accident. Rohde v. St. Louis Pub. Serv. Co., 249 S.W.2d 417 (Mo. 1952); Arthur v. Royse, 574 S.W.2d 22 (Mo. App. 1978).
Missouri does recognize a “sudden cardiac event” affirmative defense, which contains three elements. The defendant must prove that: (1) the defendant suffered such an event which rendered him incapable of controlling his vehicle, (2) the defendant did not know and by using the highest degree of care could not have known that he would have a cardiac event, and (3) the cardiac event directly caused the collision. Arthur v. Royse, 574 S.W.2d 22, 23 (Mo. App. 1978).
An Act of God defense is usually used more commonly in flood damage cases. Kennedy v. Union Elec. Co. of Mo., 216 S.W.2d 756 (Mo. 1948); Robinson v. Missouri State Highway & Transp. Comm’n, 24 S.W.3d 67 (Mo. App. 2000).
Suspension of Drivers’ Licenses
Administrative Suspension: If uninsured driver fails to produce the requested information, it will result in suspension of registration of the owner’s motor vehicle and, where applicable, suspension of operator’s driver’s license. Mo. Rev. Stat. § 303.026(8). Suspension becomes effective thirty (30) days after the notice is deemed received and will last until the person pays a fee and proves that he had insurance. Mo. Rev. Stat. § 303.041.
Judgment: If a judgment debtor fails to satisfy a final judgment within sixty (60) days, the Clerk of the Court will forward to the Director a certified copy of the judgment. Mo. Rev. Stat. § 303.100. License will no longer be suspended upon proof of satisfaction of judgment. Mo. Rev. Stat. § 303.110.
Contact Information: State of Missouri, Department of Revenue, Division of Motor Vehicle and Drivers Licensing, Harry S. Truman State Office Bldg., 301 West High Street, Jefferson City, MO 65101, (573) 526-2407, http://dor.mo.gov/motorv/.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Mo. Rev. Stat. § 407.295.
Summary: The insured must be informed by a written estimate that non-OEM parts are going to be used and that the non-OEM parts are warranted by their manufacturer. The statute defines the size and locations of these notifications. All non-OEM parts must be marked with either the name or logo of their manufacturer and they must be visible if at all practicable.
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Missouri Tort Claims Act: Mo. Stat. §§ 537.600 – 537.650 (1978). Tort immunity not waived. Modified form of sovereign immunity. Public “entity” includes local government and its employees. Mo. Stat. § 537.602(2). Three immunities: (1) Sovereign immunity; (2) Official Immunity; and (3) Public Duty Doctrine.
Notice Deadlines: Claims against public entity must be brought to the Commissioner of Administration, for approval, within two (2) years after such claim accrues. Mo. Stat. § 33.120.
Claims/Actions Allowed: The immunity of public entity is waived in these instances: (1) injuries resulting from State employee’s negligent act or omission while operating a motor vehicle within the scope of employment; (2) injuries caused by the dangerous condition of a State-owned property and Mo. Stat. § 537.600. (these are absolute waivers); and (3) Contract claims. Kunzie v. City of Olivette, 184 S.W.3d 570 (Mo. 2006).
Comments/Exceptions: Immunity is waived up to the extent of the coverage provided in the policy or self-insurance plan. Mo. Stat. §§ 537.610 (political subdivisions) and 71.185 (municipalities). No immunity for proprietary functions (for benefit or profit of municipality). Immunity only for governmental functions (for common good). Construction and maintenance of sewers is a proprietary function.
Damage Caps: Claims shall not exceed $2,000,000 for claims arising out of a single occurrence and shall not exceed $300,000 for any one person in a single accident or occurrence. Public entity will not pay punitive damages. Mo. Stat. § 537.610. Political subdivision may purchase liability insurance.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Missouri Tort Claims Act. Mo. Rev. Stat. §§ 537.600 – 537.650 (1978).
Notice Deadlines: Claims against the State shall be brought to the Commissioner of Administration, for approval, within two years after such claim accrues. Mo. Rev. Stat. § 33.120.
Claims/Actions Allowed: The immunity of the State is waived in these instances:
(1) injuries resulting from State employee’s negligent act or omission while operating a motor vehicle within the scope of employment; and
(2) injuries caused by the dangerous condition of a State-owned property.
Mo. Rev. Stat. § 537.600.
Comments/Exceptions: The Commissioner of Administration and the governing body of each political subdivision of the State may purchase liability insurance for tort claims, made against the State or the political subdivision. Immunity is waived up to the extent of the coverage provided in the policy. Mo. Rev. Stat. § 537.610.
Damage Caps: Claims shall not exceed $2,000,000 for claims arising out of a single occurrence and shall not exceed $300,000 for any one person in a single accident or occurrence. The State will not pay punitive damages. Mo. Rev. Stat. § 537.610.
General Tort Laws/Statutes
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Mo. Rev. Stat. § 434.100.
Not applicable to contracts entered into between state/governmental agencies, and only applicable to contracts entered into after August 28, 1999.
Modified Joint and Several Liability. Joint and several liability only where defendants are 51% or more at fault – otherwise several liability. Mo. Rev. Stat. § 537.067; Burg v. Dampier, 346 S.W.3d 343 (Mo. Ct. App. W. Dist. Div. 2 2011).
Joint tortfeasors have a right to contribution. Contribution may be sought in the underlying action or in a separate action. Mo. Rev. Stat. §§ 537.060 and 537.067; Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. 1982). There is a five year statute of limitations from the date of the settlement or payment of judgment. Mo. Rev. Stat. § 516.120 (2002); Greenstreet v. Rupert, 795 S.W.2d 539 (Mo. App. 1990).
Contributory Negligence/Comparative Fault
Pure Comparative Fault: Damaged parties can recover even if 99% at fault. If plaintiff is negligent, that will reduce the liability of the defendant. Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983).
Dog Bite Laws
Dog owner will be held liable for damages to victim, livestock, and property while victim was on public property, or lawfully on private property. However, victim’s damages may be reduced by the percentage that they were at fault. Mo. Rev. Stat. § 273.036.
Economic Loss Doctrine
Majority Rule. In a Missouri product liability case, the product must be “defective and unreasonably dangerous”, and the damages recoverable are limited to personal injury or to property other than the property sold, unless the product was rendered useless by some “violent occurrence”. Clevenger and Wright, Co. v. A.O. Smith Harvestore Products, Inc., 625 S.W.2d 906 (Mo. App. 1981) (action by owner of grain silo for damages caused by tornado). If a warranty remedy is not available, the buyer is limited to recovery under a contract theory, which may be subject to defenses based on disclaimer of warranties. Crowder v. Vandendeale, 564 S.W.2d 879 (Mo. 1978) (homeowner sued contractor for failure to build home in workmanlike manner). A subsequent Court of Appeals decision, however, held that a secondary purchaser of goods may recover damages for injury to the goods sold on a negligence theory, even absent a violent occurrence. Groppel Co. v. United States Gypsum, 616 S.W.2d 49 (Mo. App. 1981). The Groppel opinion derived the duty of care for this type of negligence cause of action directly from the implied warranty of merchantability provision in Missouri’s version of §§2-314 through 318 of the U.C.C. The 8th Circuit later resolved the conflict by holding that Clevenger correctly stated the law in Missouri denying recovery for damage to the product only under a negligence theory. R.W. Murray, Co. v. Shatterproof Glass Corp., 697 F.2d 818 (8th Cir. 1983). A fraud claim to recover economic losses is precluded by the ELD where plaintiffs’ claims for damages are not above and beyond any mere disappointed commercial expectations or desire to enjoy the benefit of the dealer agreements. Self v. Equilon Enterprises, Inc., 2005 WL 3763533 (E.D. Mo. 2005). The ELD applies to sales of goods, not services.
Property Damage/Personal Injury. Liability imposed on parents when child purposefully marks or defaces property, or purposefully causes personal injury to another. Vernon’s Ann. Mo. Stat. § 537.045.
Minor’s Driving. Parent will be held liable when they knowingly allow a minor under 16 years of age to use their motor vehicle. Vernon’s Ann. Mo. Stat. § 302.250.
The limit of liability is $2,000.00. Child must be under 18-years-old.
Adverse Inference: A party who intentionally destroys or significantly alters evidence is subject to an adverse evidentiary inference under the spoliation of evidence doctrine. Baldridge v. Director of Revenue, 82 S.W.3d 212, 222 (Mo. App. 2002). ”[T]he destruction of written evidence without satisfactory explanation gives rise to an inference unfavorable to the spoliator.” Garrett v. Terminal R. Ass’n of St. Louis, 259 S.W.2d 807, 812 (Mo. 1953). “Similarly, where one party has obtained possession of physical evidence which [the party] fails to produce or account for at the trial, an inference is warranted against that party.” State ex rel. St. Louis County Transit Co. v. Walsh, 327 S.W.2d 713, 717 (Mo. App. 1959). “[W]here one conceals or suppresses evidence such action warrants an unfavorable inference.” Id. at 717-18.
When an adverse inference is urged, it is necessary that there be evidence showing intentional destruction of the item, and also such destruction must occur under circumstances which give rise to an inference of fraud and a desire to suppress the truth. In such cases, it may be shown by the proponent that the alleged spoliator had a duty, or should have recognized a duty, to preserve the evidence. Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 77-78 (Mo. App. 1995). “Since the doctrine of spoliation is a harsh rule of evidence, prior to applying it in any given case, it should be the burden of the party seeking its benefit to make a prima facie showing the opponent destroyed the missing [evidence] under circumstances manifesting fraud, deceit or bad faith.” Baldridge, supra. Simple negligence is not sufficient to apply the Adverse Inference Rule. Brissette v. Milner Chevrolet Co., 479 S.W.2d 176, 182 (Mo. App. 1972).
Statute of Limitations
Personal Property5 YearsMo. Rev. Stat. § 516.120(4)
Personal Injury/Death5 YearsMo. Rev. Stat. § 516.120(4)
Personal Injury/Wrongful Death3 YearsMo. Rev. Stat. § 537.100
Personal Injury/Medical Malpractice2 YearsMo. Rev. Stat. § 516.105
Breach of Contract/Written6 YearsMo. Rev. Stat. § 516.120
Breach of Contract/Oral3 YearsMo. Rev. Stat. § 516.120
Breach of Contract/Sale of Goods4 YearsMo. Rev. Stat. § 400.2-725
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property10 YearsMo. Rev. Stat. § 516.097*
Breach of Warranty5 YearsMo. Rev. Stat. § 516.120
Workers’ Comp Third Party Case5 YearsMo. Rev. Stat. § 287.150
Strict Product Liability5 YearsMo. Rev. Stat. § 516.120
Statute of Limitations Exceptions
*10 Years for actions for improvement to real property. This applies only to persons who perform or furnish, in whole or in part, the design, planning or construction, including architectural, engineering or construction services, of improvement. Mo. Rev. Stat. § 516.097.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 5 Years. Mo. Rev. Stat. § 516.120(4). Medical Malpractice – 2 Years. Mo. Rev. Stat. § 516.105. Wrongful Death – 3 Years. Mo. Rev. Stat. § 537.100.
Subrogation of Medical and Disability Benefits are not allowed. Travelers Indemnity Co. v. Chumbly, 394 S.W.2d 418 (Mo. App. 1965); see also Milburn v. Zurich Am. Ins. Co., 2020 WL 4673785 (E.D. Mo. Aug. 12, 2020). Made Whole and Common Fund Doctrines are not applicable.
Admissibility of Expert Testimony
Admissibility Standards: Other
Case/Statutory Law: Mo. Rev. Stat. § 490.065; Hawthorne v. Lester E. Cox Medical Centers, 165 S.W.3d 587 (Mo. App. 2005).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: Potentially, if it amounts to “the intentional disregard of the financial interests of the plaintiff in the hope of escaping full responsibility imposed upon it by its policy.” Bar Plan Mut. Ins. Co. v. Chesterfield Mgmt. Assocs., 407 S.W.3d 621, 631 (Mo. Ct. App. 2013) (quoting Zumwalt v. Utilities Ins. Co., 360 Mo. 362, 228 S.W.2d 750 (Mo. 1950).
One-Party Consent: An individual has the right to record or disclose the contents of an oral or electronic communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Mo. Ann. Stat. § 542.402(2)(3).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 5 years for personal injury. Mo. Rev. Stat. § 516.120(4) (2002). Wrongful death is 3 years. Mo. Rev. Stat. § 537.100 (2000). Discovery Rule applies.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Pure Comparative. Mo. Rev. Stat. § 537.765.1 (2000).
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: Yes. Moore v. Ford Motor Co., 332 S.W.3d 749, 762-63 (Mo. 2011); Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. 1992).
Innocent Seller Statute: Yes. Mo. Rev. Stat. § 537.762.1 and .2 (2000).
Joint and Several Liability: Yes. Mo. Rev. Stat. § 537.067.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Government Contractor Defense; Presumption; Alcohol/Drugs; Sophisticated User.
Restatement 2nd or 3rd?: Both.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Caselaw: Where an insurance policy is ambiguous as to definitions such as “like kind and quality” or “comparable kind and quality,” the meaning of the language should be interpreted to require matching. Alessi v. Mid-Century Ins. Co., Inc., 464 S.W.3d 529, 530 (Mo. Ct. App. 2015).
Comments: Given that a customer with a replacement cost policy pays a higher premium and, therefore, should expect a higher level of protection, enforcing matching makes sense logically. Alessi v. Mid-Century Ins. Co., Inc., 464 S.W.3d 529, 530 (Mo. Ct. App. 2015).
Condominium/Co-Op Waiver of Subrogation Laws
Associations shall maintain property insurance and general liability insurance on the common elements. Policies covering condo properties must waive subrogation against unit owners and members of their household. Mo. Rev. Stat. § 448.3-113.4(2).
Damage to Property Without Market Value
Service Value: “…the proper measure of damages was not determined by reference to the fair market value of the church before and after the fire. The appropriate measure of damages, one that would put LMBC in the same position it was in before the fire, was cost of replacement.” Leonard Missionary Baptist Church v. Sears Roebuck and Co., 42 S.W.3d 833 (Mo. Ct. App. 2001).
Intrinsic Value: “Since it is agreed that the plaintiff’s sales records have no general market value, the plaintiff’s damages must be measured in terms of the value of the records to him.” Oster v. Kribs Ford, Inc., 660 S.W.2d 348 (Mo. Ct. App. 1974).
Sentimental Value: “If the converted property has no market value, then an alternate measure of damages is the value of the property to the owner, excluding any fanciful or sentimental value that the property may have.” Oliver v. Oliver, 508 S.W.2d 209 (Mo. Ct. App. 1974).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: An insurer was not allowed to take a 15% deduction for depreciation or overhead, but that was based on the conflict with the fire damage statutes and would not apply to other types of damage. It is not conclusive, therefore, whether an insurer could reduce a claim for GCOP. McMillin v. American Family Ins. Co., 950 S.W.2d 242 (Mo. App. 1997).
A tenant may be considered to be “co-insured” under the insurance policy obtained by the lessor where it was clear that the parties intended to look only to insurance, rather than at each other, to pay damages caused by negligence. This intent must be determined from the four corners of the lease. Jos. A. Bank Clothiers, Inc. v. Brodsky, 950 S.W.2d 297, 303 (Mo. App. 1997). The Brodsky Court found such intent from a surrender clause of the lease. That clause provided that the lessee would surrender possession of the leased premises to lessor in good condition, “loss by fire, casualty, providence and deterioration excepted.” Where a lease requires the landlord to carry insurance and provides there is to be no subrogation right between the parties, it may be determined that the parties intended to look only to insurance, rather than each other, for any loss or damage to the premises. Rock Springs Realty, Inc. v. Waid, 392 S.W.2d 270, 274 (Mo. 1965). An insurer cannot subrogate against its own insured, since, by definition, subrogation arises only with respect to the insured’s rights against third persons to whom the insurer owes no duty. Therefore, no right of subrogation arises against a person who holds the status of an additional insured, or against a tenant who is determined from the intent of the parties to be an implied “co-insured.” Brodsky, supra. Where a party is required by contract to carry insurance for the benefit of another, that party will be treated as a co-insured. Id.
In Missouri, the ASR is referred to as the “No Subrogation Rule.” An insurer has no right of subrogation against its own insured or co-insured for a claim arising from the very risk for which the insured was covered. Benton House, LLC v. Cook & Younts Ins., Inc., 249 S.W.3d 878 (Mo. Ct. App. 2008) (preempted by FEHBA on other grounds). The ASR prevents subrogation against an insured when the subrogor and target are covered by the same policy. Factory Ins. Ass’n v. Donco Corp., 496 S.W.2d 331 (Mo. Ct. App. 1972). If a party is covered by the third-party liability portion of a policy, but not the property damage portion of the policy, an insurer can still subrogate for the damages portion of the policy. Behlmann Pontiac GMC Truck, Inc. v. Harbin, 6 S.W.3d 891 (Mo. 1999). In Harbin, the customer of an auto dealership test drove their insured vehicle which suffered property damage due to the customer/driver. After paying the dealership its claim, the dealer’s insurer commenced a subrogation action against the driver to recover for property damage claim. The driver defended on the grounds that he was an insured under the policy and, therefore, the ASR applied. The trial court granted the driver’s motion for summary judgment and dismissed the subrogation action. The Missouri Supreme Court reversed, finding that the driver was not an “insured” for property damage to the vehicle and, thus, the rule prohibiting subrogation against an insured did not apply. The court reasoned that the driver was an insured only for the purpose of providing coverage for property damage to the property of others and personal injury claims. Property damage to the insured’s dealer’s vehicle was outside of such coverage and, therefore, subrogation was allowed.
A Missouri court has the authority to order that a criminal defendant pay restitution to a “victim” or “any dependent of the victim.” Missouri case law also states that a court will have the ability to award restitution to an insurer who has reimbursed a direct victim. State v. Gladden, 294 S.W.3d 73 (Mo. Ct. App. 2009).
Made Whole Doctrine
No Missouri state court has directly addressed the respective rights, as between an insurer and its insured, as to a third-party recovery, in the context of a conventional subrogation dispute. There is virtually no Missouri law on the Made Whole Doctrine. In addition, Missouri courts expressly distinguish between contractual subrogation and equitable subrogation and have held that equitable principles (such as the Made Whole Doctrine) simply do not apply to contractual subrogation rights. Aetna Cas. & Sur. Co. v. Lindell Trust Co., 348 S.W.2d 558 (Mo. App. 1961); Messner v. Am. Union Ins. Co., 119 S.W.3d 642 (Mo. App. 2003). However, in St. Louis Federal Savings & Loan Ass’n v. Fidelity and Deposit Company of Maryland, 654 F.Supp. 314 (E.D. 1987), the court specifically rejected the Made Whole Doctrine in the context of a surety bond, although it did not refer to the doctrine by name. That court stated:
The Association has cited no authority, however, indicating that under Missouri law the insured’s release of the tortfeasor does not impair the insurer’s right of subrogation unless the insured has been fully reimbursed for his loss. This Court does not believe that Missouri law would support such a result, and the Association’s argument on this point must thus be rejected.
Some have cited the 2002 Missouri Supreme Court decision in Keisker v. Farmer, 90 S.W.3d 71 (Mo. 2002) for the proposition that an insured may keep any subrogation recovery which does not unjustly enrich the insured, and that the insurer cannot recover subrogation proceeds for the amount of its payment where the insured had uninsured damages. Neither is true. The court in Keisker merely found that the insurer could not obtain subrogation proceeds over and above the amount of its insurance payment for its insured’s lost business income by asserting unjust enrichment.
Missouri case law also seemingly contradicts the “Made Whole” Doctrine by holding that an insured can assign an entire cause of action to an insurer even if the insured has recovered less than the full amount of the loss. Steele v. Goosen, 329 S.W.2d 703 (Mo. 1959); Ewing v. Pugh, 420 S.W.2d 14 (Mo. App. 1967); Gen. Exch. Ins. Corp. v. Young, 212 S.W.2d 396 (Mo. 1948); Hoorman v. White, 349 S.W.2d 379 (Mo. App. 1961).
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: The common law CSR prevents a tortfeasor from introducing evidence of and/or reducing his liability to plaintiff by amount of collateral sources received by plaintiff. It is not a single rule, but a combination of rules used to determine if evidence of collateral sources should be admitted. Smith v. Shaw, 159 S.W.3d 830, 832 (Mo. 2005); Iseminger v. Holden, 544 S.W.2d 550 (Mo. 1976). The Missouri CSR is partially modified by statute. Any pre-trial partial payment by defendant or his insurer to plaintiff in advance of litigation (e.g., payment of medical bills) predicated on possible tort liability is not admissible as an admission against interest as to liability of defendant. However, such payments constitute a credit after a verdict. Defendant can’t get the advance payment back if no liability found. No evidence of collateral sources is allowed in presenting evidence of the value of the medical treatment rendered. Mo. Rev. Stat. § 490.710. The CSR is codified and partially modified by Mo. Rev. Stat. § 490.715, which allows defendant to introduce evidence of payments to plaintiff by defendant without identifying the source. By introducing such evidence, defendant waives right to a credit against judgment under § 490.710. Mo. Stat. § 490.715(2); Deck v. Teasley, 322 S.W.3d 536 (Mo. 2010).
Recovery Of Medical Expenses Rule:
Private Insurance: Prior to 2005, Missouri followed the common law CSR that a tortfeasor is not entitled to have damages reduced by proving that plaintiff has received benefits from collateral sources. Porter v. Toys ‘R’ Us – Del., Inc., 152 S.W.3d 310 (Mo. App. 2004). In 2005, § 490.715 enacted. Defendant now allowed to introduce into evidence “the actual cost of medical care”, provided it is reasonable, necessary, and a proximate result of the defendant’s negligence. The “actual cost of medical care” means an amount that does not exceed the amount paid by or on behalf of plaintiff by insurer, plus any remaining balance necessary to satisfy plaintiff’s financial obligation for medical care, after adjustment for contractual discounts, price reductions, or write-offs. Mo. Rev. Stat. § 490.715. Section 490.715 used to provide for a rebuttable presumption that the dollar amount necessary to satisfy the financial obligation of plaintiff to health care provider was the reasonable value of the medical treatment. Jury would hear evidence of both amount billed and amount paid. However, on August 28, 2017, that portion of the statute was repealed and there is no longer a presumption. There is now an “actual cost” standard. Medical bill evidence allowed is now only the amount actually paid or owed, and not the originally billed amount, or any write-offs, discounts, or adjustments to the bill as a result of contracts with insurers or government programs. Some plaintiffs may now intentionally omit claims for medical expenses.
Medicare/Medicaid: Plaintiff not entitled to Medicaid write-offs when total amount billed will never be sought from plaintiff. Mann v. Varney Construction, 23 S.W.3d 231 (Mo. App. 2000).
Related law/Comments: Missouri’s discovery rules are extremely broad. Missouri courts have consistently held that the party claiming damages has the burden of proving the existence and amount of damages with reasonable certainty. Missouri Supreme Court Rule 56.01. Further, the party claiming damages must provide facts supporting a basis for a rational estimate of damages without resorting to speculation. The Manors at Village Green Condominium, 341 S.W. 162 (Mo. App. 2011).
Employee Leasing Laws
When work is performed under a contract involving leasing or borrowing of an employee, and an injury occurs on or about the premises of the alleged statutory employer and the alleged statutory employee was doing work in the usual course of business of the alleged statutory employer, the worker is considered a statutory employee of the special employer and cannot be sued under the Exclusive Remedy Rule. Wilson v. Altruk Freight Sys., Inc., 820 S.W.2d 717 (Mo. App. 1991). Employee leasing companies are not specifically dealt with in the Workers’ Compensation Act or in case law.
Hospital Lien Laws
Statute: Mo. Rev. Stat. §§ 430.225 – 250. Liens of Hospitals and Health Practitioners.
Perfecting Lien: To perfect a lien in Missouri, a hospital must:
(1) Provide written notice containing name and address of injured person, date of accident, name and location of hospital and name of person or persons, firm or firms, corporation or corporations alleged to be liable to injured party for injuries received shall be sent by certified mail with return receipt requested to person or persons, firm or firms, corporation or corporations, if known, alleged to be liable to injured party, if known, for injuries sustained prior to payment of any moneys to such injured person, his attorneys or legal representative, as compensation for such injuries. § 430.240.
(2) Such hospital shall send by certified mail with return receipt requested a copy of such notice to any insurance carrier, if known, which has insured such person, firm or corporation against such liability. § 430.240.
Comments: Missouri mandates that hospitals pay a proportionate share of recovery expenses if the lien is over 50% of the total net proceeds. The net proceeds are calculated after attorneys’ fees are taken out of the recovery amount. § 430.225(3). Hospital liens do not extend to rights an injured person may have under first-party insurance coverage which they, their family, or their employers may have procured for the injured person’s benefit. This includes UM benefits. Such first-party insurance coverage cannot fairly be construed to fall within § 430.235’s reference to “claims … which such injured person may have … against the person or persons causing such injury.” Truman Medical Center, Inc. v. Progressive Casualty Ins. Co., 597 S.W.3d 362 (Mo. App. 2020).
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP.
Statutory Employer Law: The employee of a subcontractor cannot maintain a common law action against a general, principal, or original contractor, because they become “statutory employers.” The reasoning behind the law is that because such contractors are secondarily liable for compensation under § 287.040 of the Missouri statutes, they are, therefore, protected. Mo. Rev. Stat. § 287.040(1) (1993); Bailey v. Morrison-Knudsen Co., 411 S.W.2d 178 (Mo. 1967); Bunner v. Patti, 121 S.W.2d 153 (Mo. 1938) (en banc).
Comments: Statutory employer immunity applies regardless of actual payment of benefits. Shaw v. Mega Indus., Corp., 406 S.W.3d 466 (Mo. App. 2013).
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: No.
Rule Summary: There is no authority or precedent regarding the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 287.150 describes a workers’ compensation carrier’s subrogation interest as follows:
When a third person is liable for the death of an employee and compensation is paid or payable under this chapter, and recovery is had by a dependent under this chapter either by judgment or settlement for the wrongful death of the employee, the employer shall have a subrogation lien on any recovery. Mo. Rev. Stat. § 287.150.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: Mo. Rev. Stat. § 287.150
Waiver Allowed? Nothing in the Missouri Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation, except in construction contracts.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided. However, the trend in decisions illustrate that while prospective waivers are not allowed, settlement agreements where the insurer surrenders its subrogation rights may be allowed.
Other Applicable Law: In construction contracts, any provision that purports to waive subrogation rights in anticipation of future injury or death is against public policy and is void, pursuant to the Missouri’s Workers’ Compensation Act.
Statute of Limitations: 5 Years. Mo. Rev. Stat. § 287.150.
Can Carrier Sue Third Party Directly: Yes.
Right to Intervene: Yes, but not required.
Recovery from UM/UIM Benefits: UM – No | UIM – Employee: No and Employer: Undecided
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: Ruediger Formula.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Pro-Rata.
Future Credit: Yes.
Auto No-Fault: N
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute includes every person in the service of an employer. It is silent on “illegal aliens” and their legal status. Mo. Ann. Stat. § 287.020-1.
Case Law: Undecided