Missouri Senate

Senate Committee Substitute

STATE CONTINGENCY FEE CONTRACTS (34.378)

Under this act, the fee that a private attorney retained by the state is entitled to receive is limited based on the amount that is recovered in the action. Furthermore, the total fee payable to all retained private attorneys in any matter that is the subject of a contingency fee contract shall not exceed $10 million, regardless of the number of actions, proceedings, or attorneys involved in the matter. Contingency fees shall only be payable from moneys that are actually received under a judgment or settlement agreement and shall not be based on any amount attributable to a fine or civil penalty.

This provision is identical to SB 915 (2018) and to provisions in the truly agreed to and finally passed version of HB 1531 (2018) and is substantially similar to HCS/HB 1654 (2018) and HB 598 (2017).

SEAT BELT USE AS EVIDENCE OF COMPARATIVE NEGLIGENCE (307.178)

Under current law in any civil action to recover damages, failure to wear a safety belt is not allowed as evidence of comparative negligence, but may be introduced to mitigate damages. This act provides that failure to wear a safety belt or misuse of a safety belt by any passenger in the car shall be considered as evidence of comparative negligence. If the judge or jury finds that the plaintiff's failure to wear a safety belt or misuse of a safety belt contributed to the plaintiff's claimed injuries, then the judge or jury may reduce the amount of the plaintiff's recovery by any amount.

The act also changes the definition of the term "passenger car" to mean every motor vehicle designed for carrying fifteen persons or less, rather than ten persons or less.

This provision is identical to SB 822 (2018) and SB 321 (2017) and similar to HB 1264 (2018).

MERCHANDISING PRACTICES ACT (407.012, 407.020, 407.025, 407.027)

In civil actions in which a purchaser or leasee is seeking damages for the loss of money or property due to the unfair or deceptive sale methods of a product, the courts shall be guided by the policies of the Federal Trade Commission and federal law prohibiting unfair competition and deceptive acts in commerce. Missouri law governing such actions shall not apply to transactions permitted or regulated by the Federal Trade Commission or a state or federal agency. A person seeking to recover damages in such cases shall demonstrate that he or she acted reasonably and shall establish damages with a reasonable degree of certainty. Damages shall be measured as the person's out-of-pocket loss as set forth in this act. In order to recover such damages, the person shall prove that the unlawful practice caused him or her to enter into the transaction that resulted in the person being damaged. The court may award injunctive relief. No civil action may be brought for unlawful merchandising practices under the Merchandising Practices Act (MPA) to recover damages for personal injury or death.

Actions regarding the advertisement, merchandise, or transaction for a new residence are not subject to suit or criminal prosecution under the MPA when the sale contract contains an express warranty and a disclaimer from liability under the MPA.

In unlawful merchandising practices class action claims, only compensatory damages may be recovered. Further, each class member shall prove that the unlawful practice caused him or her to enter into the transaction that resulted in the class member being damaged. The court may not infer that damages proven to have been suffered by one or more class members were suffered by all class members. If awarded, attorney's fees shall bear a reasonable relationship to the amount of the judgment. An order permitting a class action shall specify certain items as set forth in this act.

Prior to an entry of judgment against a defendant, the court shall require each member of the class claiming to be entitled to monetary relief to submit a statement to the court requesting a specific dollar amount. The amount of the judgment shall not exceed the sum of the money owed to each class member. Further, in such unlawful merchandising practices suits or products liability suits, plaintiffs may not join in one action if their claims are based on separate occurrences. Separate purchases of the same product and separate injuries from the same product are considered separate occurrences under the act.

These provisions shall only apply to causes of action that accrue on or after the effective date of this act and are identical to SCS/SB 832 (2018) and similar to HB 2089 (2018).

ARBITRATION AGREEMENT BETWEEN EMPLOYERS AND AT-WILL EMPLOYEES (435.350, 435.355, 435.440)

This act provides that in an arbitration agreement between an employer and an at-will employee the arbitrator shall make all initial decisions as to arbitrability, which includes deciding whether the parties have agreed to arbitrate, whether the arbitration agreement is enforceable, and whether specific claims are arbitrable. The arbitrator must be selected by mutual agreement of the parties or using a strike and ranking process when the parties cannot agree. The act establishes certain criteria for when the arbitrator shall determine that the arbitration agreement is valid. On motion by a party showing that the arbitration agreement does not expressly delegate the issue of arbitrability to the court, the court shall stay the action and order the parties to proceed to arbitration.

These provisions are identical to SB 578 (2018), SB 831 (2018), and the perfected version of SB 45 (2017), and similar to HB 1402 (2018), HB 1512 (2018), HCS/HB 156 (2017), HB 976 (2017), HCS/HB 1718 (2016), SCS/SB 746 (2016), SB 412 (2015), and HB 928 (2015).

JOINDER AND VENUE (507.040, 507.050, 508.010, 508.012)

In a civil action where the plaintiff is injured outside of the state, claims arising out of separate purchases of the same product or separate incidents involving the same product shall not be joined regardless of whether the claims arise out of the same transaction, occurrence, or series of transactions or occurrences with a common question of law.

In addition to current law regarding when plaintiffs and defendants may join in one civil action, this act states that in tort actions two or more plaintiffs may be joined in a single action only if each plaintiff can independently establish proper venue. Likewise, two or more defendants may be joined in a single action only if the plaintiff can establish proper venue and personal jurisdiction for each defendant individually. If in either situation proper venue and personal jurisdiction cannot be established, then the plaintiff or defendant will be deemed misjoined, the claims will be severed from the action, and the claims shall be transferred to a county with proper venue. If there is no county in Missouri in which venue exists, then the claims shall be dismissed without prejudice. The parties may only be joined when at least one claim is properly pending in the court and all of the parties have waived their objection to the misjoinder.

Two or more plaintiffs injured at the same time outside of the state as a result of a single occurrence may be joined in one action in Cole County.

For the purposes of meeting the venue requirement, the principal place of residence for an individual whose employment conduct is at issue in the action shall be the corporation's principal place of residence. The principal place of residence for a corporation is the county where the corporation has its registered agent, or for a domestic or foreign insurance company the county where its registered office is maintained. If a foreign insurance company does not have a registered office in Missouri, then the residence of the foreign insurance company shall be Cole County.

In non-tort claims, when a defendant is a nonresident and personal jurisdiction is established, proper venue is any county in this state. When the action is alleging damages for benefits due under an insurance contract venue shall be in the county where the plaintiff was injured. In a tort claim arising from an insurance contract, the plaintiff is deemed injured in the county where he or she resided at the time of the alleged economic damage.

When transfer of venue is denied in error by a trial court, an appellate court shall reverse the trial court's judgment and a finding of prejudice is not required for reversal.

These provisions are identical to SB 546 (2018) and similar to HB 1578 (2018).

In a tort case that has accrued on or after the effective date of this act, where the plaintiff is injured outside of Missouri, and a venue requirement is not prescribed by law, then venue is in the county containing the seat of state government.

This provision is identical to a provision contained in the SCS/SB 832 (2018).

INTERPLEADER ACTIONS (507.060)

This act provides that if a plaintiff, which includes an insurer, files an action for interpleader and deposits the limits of coverage amount with the court, the plaintiff shall not be liable to any insured or defendant for an amount in excess of the insurer's contractual coverage limits in an interpleader or other action, provided that the plaintiff defends the insured from any further lawsuit. A judgment against an insured person shall not include further recovery from an insurer.

This provision is identical to SB 778 (2018) and similar to provisions in the truly agreed to and finally passed version of HB 1531 (2018).

PUNITIVE DAMAGES (510.259, 510.263)

Punitive damages shall only be awarded if the plaintiff proves by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a conscious disregard for the safety of others. Punitive damages may only be awarded against an employer due to an employee's conduct in certain situations, as provided in the act.

A claim for punitive damages cannot be contained in the initial pleading and may only be filed as a written motion with permission of the court no later than 120 days prior to the final pretrial conference or trial date. The written motion for punitive damages must be supported by evidence. A pleading seeking a punitive damages award may be filed only after the court determines that the trier of fact is likely to conclude that the standards, as provided in the act, for punitive damages have been met.

Currently, in jury trials involving a claim for punitive damages there is a bifurcated trial. In the first stage, the jury determines liability and amount for compensatory damages and the liability for punitive damages, and the amount of punitive damages is determined in the second stage. This act provides that after an award of compensatory damages has been made in the first stage, then the court shall determine whether punitive damages may be considered by the jury. After the court's determination, the jury will determine whether to award punitive damages and the amount.

Currently, if a defendant has previously paid punitive damages in another state for the same conduct, following a hearing the court may credit the jury award of punitive damages by the amount previously paid. This act provides that the defendant may be credited for punitive damages also paid in federal court.

If discovery of a defendant's assets is allowed because the plaintiff is seeking punitive damages, then, if requested by the defendant, the court shall order the records regarding the defendant's assets to be confidential until a judgment regarding liability for the punitive damage award is rendered. Public disclosure of such information is grounds for dismissal of the claim for punitive damages.

These provisions are substantially similar to HCS/HB 2119 (2018).

TIME LIMITATIONS FOR FILING CERTAIN CLAIMS (516.099)

This act provides that a person who is injured by a defective or unsafe condition of a product or due to negligence in the design, manufacture, sale, or distribution of a product has ten years after the sale or lease of the product to bring a claim for damages.

The ten year time limitation shall not apply to actions relating to real property, to actions where a person has knowingly concealed any defective or unsafe condition, actions for indemnity or contribution by a defendant, when a product has a warranty, and to actions regarding negligent service or maintenance of a product.

This provision is identical to SB 596 (2018) and is substantially similar to HCS/HB 1611 (2018), SB 220 (2017), HB 594 (2017), and SB 1091 (2016).

SERVICE AFTER THE EXPIRATION OF STATUTE OF LIMITATIONS (516.105, 537.100)

This act provides that in a claim against a health care provider for damages for malpractice or negligence when the defendant is served after the statute of limitations has expired, if such service is not made within one hundred eighty days of filing the petition, then the court shall dismiss the action.

Likewise, in an action for wrongful death when a defendant is served after the statute of limitations has expired and such service is not made within one hundred eighty days of the petition being filed, then the court shall dismiss the action.

These provisions are identical to SB 809 (2018) and to SCS/SB 524 (2017) and substantially similar to provisions in the truly agreed to and finally passed version of HB 2562 (2018), the truly agreed to and finally passed version of SB 871 (2018), and HCS/HB 1793 (2018).

JOINT AND SEVERAL LIABILITY (537.067)

Currently, in all tort actions when a defendant is found to bear fifty-one percent or more of the fault then the defendant is jointly and severally liable for the judgement amount. This act states that the liability of each defendant for compensatory or punitive damages shall not be joint. Each defendant is liable only for the amount of damages in direct proportion to the defendant's percentage of fault.

The trier of fact shall consider the fault of all persons who contributed to the plaintiff's injury regardless of whether the person is a party to the suit.

Fault of a nonparty may be considered if the plaintiff entered into a settlement with the nonparty or if the defendant gives notice before trial that a nonparty was at fault. Findings of fact regarding the fault of a nonparty shall not subject the nonparty to liability or be introduced as evidence of liability in any action.

This act is identical to SB 678 (2018), SB 383 (2017), SB 736 (2016), HB 2287 (2016), SB 140 (2015), SB 830 (2014), and identical to provisions contained in SCS/SB 589 (2014).

PRODUCTS LIABILITY (537.761, 537.762, 537.763)

In any products liability action in which a plaintiff alleges a design defect, the burden is on the plaintiff to prove that there was a safer alternative design and that the defect was a proximate and producing cause of the injury, damage, or death for which the plaintiff is seeking recovery.

This provision is identical to a provision contained in SS #2/SCS/SB 832 (2018) and substantially similar to a provision in HB 2089 (2018).

Currently, a products liability order of dismissal for a defendant whose liability is based solely on his or her status as a seller shall not divest a court of venue or jurisdiction that was proper at the beginning of the action. Further, the defendant seller dismissed in the action shall remain a party to such action for venue and jurisdiction purposes. This act repeals these provisions.

This provision is identical to a provision contained in SS #2/SCS/SB 832 (2018), HB 2089 (2018), SS#4/SB 546 (2018), and HB 1578 (2018).

These provisions regarding products liability claims shall only apply to causes of action that accrue on or after the effective date of the act.

ASBESTOS CLAIMS (537.880, 537.882, 537.884, 537.886, 537.888, 537.890)

This act establishes procedures for a claimant in a civil action for damages due to asbestos exposure that is filed after the effective date of the act or pending as of the effective date of the act to disclose claims filed with an asbestos trust.

An asbestos trust is defined in the act as a government or court approved trust, qualified settlement fund, or claims facility created as a result of an administrative action, legal action, or law that is intended to provide compensation to people who have experienced health effects due to asbestos exposure.

Within thirty days of filing a civil action for damages due to health effects that resulted from the exposure to asbestos, a claimant shall provide the court and other parties to the case certain documents. Such documents shall include a sworn statement stating that the claimant has investigated all asbestos trusts, that the claimant has completed and filed all available asbestos trust claims, and the status and disposition of each asbestos trust claim. The claimant shall also provide all parties with all trust claim materials, as defined in the act, which shall include materials from all law firms connected to the claimant in relation to exposure to asbestos. Finally, the claimant shall produce all available trust claims filed by any individual, other than the claimant, if the claimant's asbestos trust claim is based on exposure to asbestos through that other individual. The claimant must continually update the required information and documents given to the court and other parties until the final resolution of the asbestos action. The claimant has thirty days to supplement or amend the documents after filing additional asbestos trust claims, supplementing an existing asbestos trust claim, or receiving additional trust claim materials.

A defendant to the asbestos action may request a stay of the proceedings if the defendant receives information that the claimant could claim compensation from additional asbestos trusts. The claimant can then either file the asbestos trust claims and produce the related trust claims materials or file a response with the court stating why there is insufficient evidence for the claimant to file the asbestos trust claims. If the court finds that there is a sufficient basis for the claimant to file the additional asbestos trust claim, the court shall stay the asbestos action until the claimant files the claim and produces the related trust claim materials. An asbestos action shall not be set for trial until at least forty-five days after the claimant has produced the required documents.

A defendant may seek discovery against an asbestos trust and the claimant cannot claim privilege or confidentiality in order to prohibit discovery of such materials. The claimant must consent to release the information and materials requested by the defendant.

Trust claim materials that are sufficient to entitle a claim for consideration for payment under the applicable trust governance documents may be sufficient to support a jury finding that the claimant was exposed to products for which the trust was established and that such exposure was a substantial contributing factor in causing the claimant's injury.

Any trust claim materials or trust governance documents may be introduced at trial to prove issues relevant to the adjudication of the asbestos claim including alternative causation of the injury or that a entity is a joint-tortfeasor, unless otherwise excluded by the rules of evidence. The jury shall not be informed of the amount of consideration paid by a trust to a claimant to settle a claim.

Thirty days prior to trial, the court shall enter into the record every asbestos trust claim made by the claimant. If the claimant has asbestos trust claims that have not been resolved at the time of trial, there is a rebuttable presumption that the claimant will receive compensation specified in the applicable trust governance documents. If allowed by law, the defendant may be entitled to a setoff or credit in the amount the claimant has been awarded or presumed to be awarded from an asbestos trust.

If a claimant fails to disclose the documents required by this act, the court may impose sanctions including vacating a judgment. The court may also dismiss an asbestos action with prejudice for willful failure to submit and update the required documents.

Within a year following a judgment rendered in an asbestos action, if a claimant files an additional asbestos trust claim with an asbestos trust that was in existence at the time of judgment the defendant may file for relief with the trial court. The trial court may reopen the case and adjust the judgment awarded by the amount of any subsequent asbestos trust payments obtained by the claimant.

These provisions are identical to HCS/HB 1645 (2018) and similar to SB 347 (2017) and HB 333 (2017).

SILICA CLAIMS (537.900)

This act establishes the "Silica Claims Priorities Act."

Under the act, a person is prohibited from bringing a claim alleging injury caused by the inhalation of silica unless the person can make a prima facie showing of physical impairment, resulting from a medical condition for which silica exposure is a substantial factor.

A prima facie showing shall include the following: 1) evidence verifying the physician has taken occupational, exposure, medical, and smoking history from the exposed person; 2) evidence verifying that the exposed person has silicosis; 3) evidence verifying there has been a sufficient latency period; 4) a determination that the exposed person had a permanent respiratory impairment rating of at least Class 2; and 5) evidence verifying that the exposed person's impairment was not more probably caused by something other than silica exposure.

These provisions are identical to SB 1079 (2018) and substantially similar to HB 2635 (2018).

MEDICAL MALPRACTICE (538.205, 538.210)

The act modifies the definition of "punitive damages" as it is used in sections of law relating to actions for damages against a health care provider for personal injury or death caused by the rendering of health care services. Furthermore, in such actions for personal injury a plaintiff can not recover more than $300,000 in noneconomic damages, rather than $400,000, and actions in which death resulted $500,000, rather than $700,000. The act repeals the provision stating that a plaintiff can recover no more than $700,000 for noneconomic damages for a catastrophic personal injury. The act also repeals the 1.7% annual cap increase and the provision allowing the trial court to not apply the damage limitations due to the severity of the injuries.

In order to be awarded punitive damages, the jury must find by clear and convincing evidence that the health care provider intentionally caused damage or demonstrated malicious misconduct. Indifference or conscious disregard for the safety of others does not constitute a basis for a punitive damage award.

These provisions are similar to provisions in HCS/HB 2119 (2018) and HCS/HB 2434 (2018).

JESSI JAMES