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The Missouri Capitol. Missouri legislators recently amended laws pertaining to "065 agreements." Photo by Paul Sableman.

On June 29th, 2021, Missouri Governor Mike Parson signed into law SS HB 345, which will go into effect on August 28th. The law amends Missouri’s unique statutory law, predominantly viewed as favoring policy holders and plaintiffs’ attorneys seeking garnishments and third-party actions against insurance companies.  

Insurance carriers who believe they have a defense to coverage have faced complex risk analysis in Missouri. While the duty to defend is generally broader than the duty to indemnify, third-party claims against carriers in Missouri have become an increasingly popular weapon.

When faced with a claim, a carrier has a few options: 

  • Accept the defense of the claim without any reservation of rights, which triggers a duty to indemnify;
  • Defend under reservation of rights and file a declaration action to determine coverage; or
  • Outright deny coverage and a defense.

What is an 065 Agreement?

In Missouri, when there is a dispute as to coverage between a defendant and its insurer, R.S.Mo. § 537.065 allows plaintiff and defendant to enter into an agreement that a plaintiff will only collect on a judgment from the defendant’s insurance carrier. These agreements usually arise when there has been a disclaimer of coverage or a rejection of a reservation of rights defense which is treated as a denial of coverage in Missouri.

Prior to HB 345, parties could enter into an 065 settlement agreement to shift liability to one party or insurer. Parties could provide notice only at the eleventh hour before a judgment in the matter was entered, and the insurer would then be bound by the judgment.  Several recent cases—Britt v. Otto, Aguilar v. GEICO, and Geiler v. Liberty (see our recent analysis of this case)—illustrate how the past provisions of 537.065 had been used by plaintiffs to set up insurers for bad faith claims, obtain rulings in alternative dispute resolution settings, and effectively wipe away the insurer’s ability to do anything to protect its own interests unless it agrees to provide full coverage from the outset.

What are the new changes to 537.065?

Timing

In 2017, an amendment was passed and signed into law requiring that before a judgment could be entered in an 065 agreement, an insurer needed to be provided with written notice of the execution of the contract and be given thirty days to intervene as a matter of right in pending litigation involving the claim for damages. The most recent amendments attempt to close the timing loopholes that allowed gamesmanship of notice to carriers with specific timelines for different scenarios of litigation:

If any action seeking a judgment on the claim against the tort-feasor is pending at the time of the execution of any contract entered into under this section, then, within thirty days after such execution, the tort-feasor shall provide his or her insurer or insurers with a copy of the executed contract and a copy of any such action. 

If any action seeking a judgment on the claim against the tort-feasor is pending at the time of the execution of any contract entered into under this section but is thereafter dismissed, then, within thirty days after the refiling of that action or the filing of any subsequent action arising out of the claim for damages against the tort-feasor, the tort-feasor shall provide his or her insurer or insurers with a copy of the executed contract and a copy of the refiled or subsequently filed action seeking a judgment on the claim against the tort-feasor.

If no action seeking a judgment on the claim against the tort-feasor is pending at the time of the execution of any contract entered into under this section, then, within thirty days after the tort-feasor receives notice of any subsequent action, by service of process or otherwise, the tort-feasor shall provide his or her insurer or insurers with a copy of the executed contract and a copy of any action seeking a judgment on the claim against the tort-feasor.

Rights After Intervention

New language in 537.065 also makes clear that if an insurance carrier chooses to intervene in an 065 agreement then, “the intervenor shall have all rights afforded to defendants under the Missouri rules of civil procedure and reasonable and sufficient time to meaningfully assert its position including, but not limited to, the right and time to conduct discovery, the right and time to engage in motion practice, and the right to a trial by jury and sufficient time to prepare for trial.” Further, no order regarding the claim matter shall be binding on the carrier choosing to intervene if the order is entered prior to the intervention.

No Private Arbitration End Run

The law also amends Missouri’s Uniform Arbitration Act to make clear that plaintiffs may not use private arbitration to circumvent proper notice to the carrier and the opportunity to intervene.  Any arbitration occurring without the consent of the insurer is not binding and the choice not to participate shall not be construed to be bad faith.

In Conclusion

The changes to 537.065 go into effect on August 28th, 2021. Even when the changes become effective, insurers must continue to stay on their toes as plaintiffs’ attorneys seek opportunities to stay one step ahead.

While the changes to Missouri law may be more favorable to insurers, it is still absolutely essential that insurers have the right counsel to help them assess their options. RDM’s extensive experience in complex claims coverage allows us to provide detailed assessments accounting for a wide array of possible outcomes. Though the laws may change, insurers should remain vigilant when it comes to their Missouri claims.

From coverage opinions to defense at trial, RDM’s Insurance Law team can lead insurers through complex claims at every step of the way keeping them informed and prepared for the latest changes in state law. Contact RDM today to discuss how new laws may affect you.

Hosts of the Big Slick Celebrity Weekend.

For over a decade, Rasmussen Dickey Moore has sponsored Big Slick, a fun-packed weekend featuring Kansas City native celebrities supporting Children’s Mercy. RDM’s support of Big Slick began with founding member Clay Dickey’s personal experience with Children’s Mercy.

Children's Mercy Hospital in Kansas City, MO.

Children’s Mercy

In 2009, Clay’s nephew Quinton was diagnosed with neuroblastoma at just one year old. Neuroblastoma is a type of cancer that most often affects children under five, and Quinton’s diagnosis was dire. However, after spending a year under the world-renowned care of Children’s Mercy, Quinton has been in remission for over 13 years.

Children’s Mercy was founded in 1897 by two sisters: Alice Berry Graham, a dentist, and Katharine Berry Richardson, a surgeon. Already pioneers as female doctors in the 19th century, the Berry sisters began their work with sick and poor children by renting beds and treating the children in small hospitals, as no hospital would directly admit them to practice medicine. Since then, Children’s Mercy has since grown into a top-tier network of hospitals, specialty clinics, and research institutes based in the Kansas City area.

Hosts of the Big Slick collect funds for Children's Mercy.

Big Slick

Around the same time that Quinton was at Children’s Mercy, the concept for Big Slick was coming together. Actor and comedian Rob Riggle, a native of Overland Park, Kansas, Shawnee Mission South High graduate, and University of Kansas alum, planned to host a poker tournament to raise funds for Children’s Mercy. He reached out to a few of his other celebrity friends from the Kansas City area for help.

Actor Paul Rudd also grew up in the Kansas City area, attending Shawnee Mission West High School and KU. His mother Gloria, a volunteer at Children’s Mercy, encouraged her celebrity son to help with the fundraiser. Saturday Night Live alum Jason Sudeikis, also an Overland Park native and Shawnee Mission West grad, signed on to help as well. The three went on to recruit additional celebrities, family, and friends to help put together the tournament on a shoestring budget. The first Big Slick Celebrity Weekend and poker tournament at Harrah’s Casino in Kansas City in 2010 raised nearly $100,000 for Children’s Mercy.

Big Slick host Rob Riggle with Chiefs quarterback Patrick Mahomes and a Children's Mercy patient.

Over the last decade, Big Slick has grown to include bowling tournaments, celebrity softball games, and wild entertainment from Riggle, Rudd, and Sudeikis. Kansas City, Kansas Native Eric Stonestreet and mid-Missourian David Koechner have also joined as hosts of Big Slick. Additional guests have included Will Ferrell, Selena Gomez, Will Forte, Adam Scott, and a number of Kansas City athletes including Patrick Mahomes and Eric Hosmer. From humble beginnings, Big Slick now raises over $2 million every year.

RDM founding members Kurt Rasmussen, Clay Dickey, and their families bowling with actor Adam Scott during the Big Slick Celebrity Weekend.
RDM founding members Kurt Rasmussen and Clay Dickey, along with their families, friends, and actor Adam Scott at the Big Slick bowling tournament.

RDM Sponsors Big Slick

Since the inception of Big Slick, RDM and founding members Clay Dickey and Kurt Rasmussen have sponsored the event. Clay’s personal experience with Children’s Mercy makes the cause a natural fit, and the fact that it’s a lot of fun certainly doesn’t hurt. RDM is a Gold Sponsor of Big Slick 2021.

RDM's collection of Big Slick memorabilia.

Big Slick strives to keep costs as low as possible to maximize the effectiveness of sponsorships and donations, allowing Children’s Mercy to provide cutting-edge therapies and innovative treatments from expert pediatric specialists. After a previous Big Slick event, a Children’s Mercy doctor reached out to Clay to demonstrate the value of the sponsorship: the dollars donated were directly used to fund a teenager’s life-saving blood transfusions and drug therapy.

Normally, Big Slick plays to packed-in crowds at Kauffman Stadium or the T-Mobile Center in Kansas City, Mo. With the COVID-19 pandemic not fully subsided, the celebrities presented an original online production in 2021—the Big Slick Virtually Talented Show. Sponsors hosted small watch parties, including Clay and Kurt hosting a gathering for family, friends, and coworkers on Saturday, June 12th.

RDM paralegal Sarah Harr and Sydne, her "Little" through Big Brothers Big Sisters Kansas City.

Rasmussen Dickey Moore’s attorneys and staff are dedicated to providing focused service day in and day out to our clients across a broad range of industries. But many of our team members are dedicated to service beyond the office walls, going above and beyond to help make the world a better place.

RDM paralegal Sarah Harr found her calling with Big Brothers Big Sisters Kansas City. Sarah matched with her “Little,” Sydne, in 2014. Through friendship and mentorship their relationship has thrived as Sarah has seen Sydne grow through childhood and into her teenage years.

About Big Brothers Big Sisters

The Big Brothers Association was founded in 1904, when a New York City court clerk noticed a troubling trend of young boys appearing in courtrooms. The clerk, Ernest Coulter, recruited volunteers to help keep the boys out of trouble, believing that the presence of a caring adult could bring hope and meaning to the lives of these troubled youth. In just over a decade, the program had expanded to over 90 cities across America.

In the 1970s, Big Sisters International was founded to carry out a similar mission of mentoring girls. Bog Brothers and Big Sisters merged in 1977. The organization now has chapters in all 50 states and 13 other countries.

Big Brothers Big Sisters pair “Bigs,” volunteer mentors, with “Littles” to provide mentorship and friendship in hopes of overcoming barriers to growth and achievement. For over 100 years, the program has resulted in improved grades and graduation rate, higher self-esteem, and brighter futures for Littles.

Sarah and Sydne

Sarah and Sydne's first meeting through the Big Brothers Big Sisters program.

After graduating college and settling into her career as a paralegal at RDM, Sarah was looking for opportunities to serve the community. Having grown up with five younger siblings, Sarah loves children and knew she wanted to pair with a younger kid. Sarah applied to become a Big in 2013, and in January 2014, she had found a match in Sydne.

Sydne was eight years old when she and Sarah matched. After bouncing around the foster care system in California, Sydne finally found a permanent home with her grandmother in Kansas City. Sarah also grew up having a close relationship with her grandmother, so Sydne’s arrangement resonated with her. In January of 2014, the match was made official when Sydne and Sarah went for ice cream.

Big Brothers Big Sisters asks their Bigs to commit to their Littles for a few hours a week for one year. When Sarah took Sydne out to eat at Winstead’s on their one-year anniversary, Sydne told Sarah she was her best friend. Seven years later, they’re still together.

Sydne, Sarah's "Little," over the years.

Sarah has been a trusted friend whom Sydne can confide in as she makes her way through her teenage years. Besides bonding over the complications of adolescence, Sydne and Sarah also have a shared love of pizza, dogs, and cooking. As a sophomore at St. Teresa’s Academy, Sydne is getting good grades and has a bright future ahead of her with Sarah standing alongside her. Sarah is looking forward to taking her for college visits in just a couple of years.

Raising Funds for Big Brothers Big Sisters

Big Brothers Big Sisters Kansas City holds an annual fundraiser in July, Summer Fun for Kids’ Sake. Sarah is raising funds to help find Bigs for nearly 200 unmatched Littles. Your donation helps build relationships like Sarah and Sydne’s and allows Littles to reach their full potential. Support Sarah, Sydne, and Big Brothers Big Sisters Kansas City today!

We celebrate RDM's administrative professionals on Administrative Professionals' Day.

Today is Administrative Professionals’ Day, and we want to take the opportunity to celebrate the outstanding administrative professionals here at Rasmussen Dickey Moore!

For the uninitiated, Administrative Professionals’ Day recognizes and appreciates the individuals who are most responsible for “making the world go round.” Their tireless contributions ensure that deadlines are met, work gets completed timely, and businesses succeed. It is through their dedication and commitment that business goals are realized.

Celebrating administrative professionals began with an official day of recognition in 1952. However, the National Secretaries Association (now the International Association of Administrative Professionals) had been promoting and recognizing this important work since its founding in 1942 in Topeka, Kansas. Since the beginning, the IAAP has been dedicated to helping and promoting its members in ever-changing times to meet the constantly changing demands of business.

Today, administrative professionals can be found in nearly any business environment performing a host of tasks. They are the people to greet visitors at the door and makes the first impression of the company. They coordinate meetings, travel arrangements, and other events to make sure everything flows smoothly.

In the legal profession, our admins file pleadings, proofread discovery, and field client inquiries. They maintain our attorneys’ calendars and schedules to ensure that attorneys are on time to their appointments and hearings. They essentially operate as extensions of the attorneys themselves in all aspects of a law firm.

But the worth of every administrative professional is so much more than their work in the office. They provide valuable insight to the workplace, and their experience with what makes businesses succeed is second to none. They are so much more than employees—they are key partners in a company’s overall success.

RDM’s Administrative Professionals Are Dedicated

At Rasmussen Dickey Moore, we recognize and appreciate the incredible work that our administrative professionals deliver. Amongst our admins, we have:

  • Four who have been with us more than 1 year
  • Eight who have been with us more than 5 years
  • Five who have been with us more than 10 years
  • Two who have been with us more than 15 years
  • And two who have been with us more than 20 years!

Their success is our success. So with the utmost gratitude from RDM, we thank each and every administrative professional for all that you do on this Administrative Professionals’ Day. Thank you!

A Georgia courthouse. The Georgia CVS LLC vs. Carmichael case will be heard in the Georgia Court of Appeals.

On April 14, a three-member panel of the Georgia Court of Appeals heard arguments in a case that could have nationwide implications for businesses operating in neighborhoods with high crime rates. In Georgia CVS Pharmacy, LLC v. Carmichael, the nation’s largest pharmacy chain seeks to reverse a $45 million jury verdict awarded to James Carmichael after he was shot several times in a store parking lot.

CVS Pharmacy, LLC v. Carmichael: The Case At Hand

A few days before Christmas in 2012, Carmichael had traveled from Alabama to Atlanta to purchase an iPad from a prospective seller. The agreed-upon location was a CVS parking lot. Carmichael invited the prospective seller into his car. When the sale fell through and the seller exited, another person entered Carmichael’s car and pulled a gun, demanding his money. Carmichael was able to grab his own gun and fire two shots before it jammed. The other man returned fire, striking Carmichael in the arm and stomach before fleeing. He was never apprehended. Carmichael believes the seller was an accomplice of the shooter and the transaction was a robbery set-up. The incident was not visible to anyone outside the vehicle.

Could CVS Have Foreseen This Incident?

A key issue at trial was foreseeability. In premises liability cases, a plaintiff seeking to establish foreseeability of a criminal attack generally needs to establish that the incident is substantially similar to prior criminal activities occurring on or near the premise, so that a reasonable company would take precautions to protect its customers from that type of activity. Carmichael presented evidence that there had been two robberies inside the CVS store, with one occurring three weeks before the shooting. The only prior crime in the CVS parking lot was a purse snatching. Carmichael also presented evidence that CVS workers feared for their safety in the dark parking lot because of loiterers. After a nearly week-long trial, the jury returned a verdict of $45 million in damages, allocating only 5% of fault to Carmichael and 95% of responsibility to CVS. The jury did not apportion any fault to the shooter or his alleged accomplice despite them being on the verdict form.

On appeal, CVS argues that the foreseeability evidence was insufficient as a matter of law, citing cases holding that (1) an in-store robbery of a grocery store employee was not substantially similar to an assault of its customer in the parking lot and (2) evidence of crimes in a bar’s parking lot did not show that a dangerous condition existed inside the bar. According to CVS, the prior criminal incidents occurred at a substantially different location and under different circumstances. Therefore, the pharmacy chain asserts, the trial court erred in not granting it summary judgment.

CVS’s Appeal: Was Carmichael an Invitee?

CVS’s appeal contains three additional arguments why reversal is warranted, including that the trial court’s refusal to give a “prior relationship” charge where there was evidence that the prospective seller and shooter had a prior relationship and had acted in concert. At trial Carmichael’s own security expert conceded it appeared the failed electronics sale was a planned set-up to rob Carmichael. In addition, it argues that the jury apportioned zero percent of fault to the shooter for Carmichael’s severe injuries constitutes a fundamental error, making the entire verdict void and unenforceable. Finally, CVS argues that at the time of the shooting, Carmichael was at most a licensee who was owed a lesser duty, which was not breached. In response, Carmichael argues that CVS waived this argument by conceding at trial that he was an invitee, because he intended to shop inside the store after the electronics transaction. But even if he was just a licensee, he maintains that the store still owed him a duty of ordinary care, which included providing adequate security to prevent assaults in its parking lot.

Beyond the Verdict: Effects on Underserved Communities

A decision by the appellate court is expected later this year. Should it affirm the jury’s verdict, the implications for businesses operating in high-crime areas could be severe, putting businesses that are vital to urban communities in an impossible position.

Businesses operating in these areas will undoubtedly have to determine whether they can afford enhanced security measures or risk facing an eight-figure verdict. In addition, insurance companies that insure them will certainly conduct their own reviews to determine whether to increase policy premiums and perhaps whether to cancel coverage altogether, lest they be hit with an excessive eight-figure verdict.

These external costs could likely result in businesses shutting down or simply relocating to safer areas, an unfortunate outcome that would only cause more hardship to underserved urban areas already plagued by food deserts and general disinvestment. Although these economic policy reasons do not constitute legal arguments being considered by the three-member panel, unintended economic consequences will most likely result if CVS is forced to pay $45 million for injuries caused by a shooting inside a car that just happened to have been parked in its lot.

The case caption is Georgia CVS Pharmacy, LLC v. James Carmichael, No. A21A0677 (Ga. App. 2021). Read more about the verdict or view an archive of oral arguments.