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?
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.
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.
Missouri Capitol photo Paul Sableman.