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The Missouri Supreme Court recently issued an opinion on non-economic damages caps.

The Missouri Supreme Court has issued an opinion that could greatly impact the trajectory of tort law in the state. On July 22nd, 2021, the Court upheld Missouri’s non-economic damages cap for medical negligence claims and further held that it does not violate the Missouri Constitution’s right to trial by jury for the legislature to abolish personal injury causes of action existing in common law and replace by statute the same type of claim with new standards.

In 2015, the Missouri Legislature imposed statutory caps on non-economic damages in medical malpractice cases. Prior to the legislation there were no caps, as such claims were common law actions, and juries had full discretion to award damages.

Last week, in Maria del Carmen Ordinola Velasquez vs. University Physician Associates et al., the Missouri Supreme Court weighed in on the constitutionality of those caps after the Western District Court of Appeals referred the case. The Court affirmed a judgment capping non-economic damages in a medical practice case where the trial court found the plaintiff suffered catastrophic injuries.

The Court held that the legislature does indeed have the power to abolish common law causes of action and supersede them with statutory actions. Judge George W. Draper III dissented, expressing concern for the legislature’s ability to overturn common law causes of action. Draper called the statutory changes “an act of form over substance” that “fails to protect the constitutional right to trial by jury.” Nonetheless, the Missouri Legislature now appears to have increased freedom to institute tort reform in other areas of the law. The Court also reiterated that the cap on non-economic damages should be calculated at the time of trial in comparison to the time of injury. Missouri has set an increasing cap through 2050 for injuries considered non-catastrophic and a higher cap for those considered catastrophic.

While caps on medical damages have been in place for several years in Missouri, the broader impact of this ruling is the affirmation of the Missouri General Assembly’s authority to reform negligence law in the state, raising the possibility of further tort reform in the future.

It is important that medical professionals and healthcare providers have the right attorneys on their side to further mitigate risk and potential damages. Even with non-economic damages caps firmly in place, medical malpractice litigation can still be costly and time consuming.

RDM’s Professional Liability and Healthcare Law teams have extensive experience representing professionals and institutions in medical malpractice cases. From developing risk management strategies to crafting a trial defense, Rasmussen Dickey Moore has what it takes to protect you in court. Contact us today to learn how we can help you with medical malpractice litigation.

Missouri recently enacted legislation protecting businesses from COVID-19 liability.

As states across the country ease out of COVID-19 restrictions, many state legislatures are passing laws to protect businesses from COVID-19 liability. Various chambers of commerce and pro-business groups across the country have been proponents of such protections and have pushed their state legislatures to pass laws to protect businesses. So far 30 states have enacted statutes that provide businesses some type of shield against COVID-19 liability suits. 

On July 7th, 2021, Missouri became the next state to protect businesses, healthcare providers, and manufacturers from COVID-19 liability. Missouri Governor Mike Parson signed Senate Bill 51 into law, protecting businesses, premises owners, and healthcare providers from personal injury suits arising from COVID-19 exposure unless plaintiff can show clear and convincing evidence that defendant’s reckless or willful misconduct caused the exposure to the virus.

The Missouri law establishes a rebuttable presumption of risk by a plaintiff in an exposure claim when they enter the premises that has warnings signs posted. The law also shields manufacturers from product liability claims stemming from items used to protect against COVID-19 exposures.

The proponents of this bill hope that this law will provide businesses some type of relief from the pandemic as the potential for COVID-19 related lawsuits looms. The new law will go into effect on August 28th, 2021. As the Missouri Constitution does not allow for legislation to be applied retroactively, the new law will not affect claims filed prior to August 28th.

This law does not completely shield businesses from liability. So, it is extremely important for businesses to have the right counsel to help them comply with federal, state, and local laws in order to be protected.  The attorneys at RDM have broad experience in the fields of premises liability, products liability, and more. We can assist your business in maintaining compliance or defending against claims. Contact RDM today.

Protect yourself from liability.

RDM’s attorneys can help you make sure you’re compliant with state laws and avoid costly COVID-19 lawsuits. And should a claim arise, we’re prepared to defend your business.

Contact RDM

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!