Missouri Senate

Senate Substitute

UNLAWFUL MERCHANDISING PRACTICES FOR NEW RESIDENCES (Section 407.020)

This act provides that an unlawful merchandising practice shall not include any advertisement, merchandise, or transaction in which the merchandise consists of a new residence in a transaction in which the buyer is offered an express warranty in the sale contract by the builder or by a third party warranty paid for by the builder and the sale contract includes a disclaimer. The act defines "residence" as a single-family house, duplex, triplex, quadruplex, or unit in a multiunit residential structure in which the title to each individual unit is transferred to an owner under a condominium or cooperative system and includes common areas and common elements.

This provision is identical to SCS/SB 727 (2020), SB 762 (2020), a provision in SB 793 (2020), and SB 374 (2019), substantially similar to provisions in SCS/SB 62 (2019) and in SCS/SB 276 (2019), and similar to HB 1872 (2020), a provision in SCS/SB 150 (2019), and HB 790 (2019).

PROCEDURE FOR UNLAWFUL MERCHANDISING PRACTICES CLAIMS (Section 407.025)

A person seeking to recover damages for unlawful merchandising practices shall establish that the person acted as a reasonable consumer, that the alleged unlawful act caused the person to enter into the transaction that resulted in damage, and the individual damages with sufficiently definitive and objective evidence to allow the loss to be calculated with a reasonable degree of certainty. A court may dismiss a claim for failure to show a likelihood that the alleged unlawful act would mislead a reasonable consumer.

In addition to current damages available, a court may provide equitable relief as it deems necessary to protect the party from the unlawful acts. No action may be brought under this act to recover damages for personal injury or death. Furthermore, this act provides that any award of attorney's fees shall bear a reasonable relationship to the amount of the judgment. However, when the judgment is a rescission of the sale, the attorney's fees shall be based on the amount of time reasonably expended.

These provisions are similar to SCS/SB 727 (2020), HB 2243 (2020), provisions in SCS/SB 276 (2019), in SCS/HB 186 (2019), and HB 714 (2019).

ARBITRATION AWARDS AND INTERVENTION AGAINST INSURERS (Section 435.415 and 537.035)

This act provides that any arbitration award shall not be enforceable against insurers, as defined in the act, unless the insurer has agreed in writing to the arbitration proceeding or agreement. Unless otherwise required by the insurance contract, an insurer's election to not participate in arbitration shall not constitute bad faith. These provisions shall not apply to any arbitration awards arising out of an arbitration agreement preceding the date of injury or loss.

Currently, any person having an unliquidated claim for damages against a tort-feasor may enter into a contract with the tort-feasor or any insurer to limit judgments to specified assets provided that the insurer has the opportunity to defend the tort-feasor without reservation but refuses to do so. This act provides that person may enter into a contract with the tort-feasor of any insurer if the insurer has refused to withdraw a reservation of rights or declined coverage for such unliquidated claim.

If any action seeking a judgment on a claim against a tort-feasor is pending at the time of execution of the contract, the tort-feasor is required to provide the insurer with a copy of the executed contract and a copy of the action within 30 days of execution of the contract. For actions which were pending at the time of execution but were later dismissed, the tort-feasor shall provide the insurer with a copy of the executed contract and the action within 30 days of any refiling of the action or the filing of any subsequent action seeking a judgment on the claim. If no action is pending at the time of the execution of any contract, the tort-feasor shall provide notice within 30 days after notice of any action. Judgment shall not be entered against any tort-feasor until the insurer has received written notice for at least 30 days. The act specifies that the insurer or insurers have the unconditional right to intervene in any pending civil action involving the claim for damages within 30 days of receiving the notice.

This act provides that insurers intervening in a court proceeding where the defendant has contracted to limit his or her liability to specified assets shall have all the same rights as are afforded to defendants. These provisions shall not alter or reduce an intervening insurer's obligations to any insureds other than the tort-feasor, including any co-insureds.

All terms of any covenant not to execute or of any contract to limit recovery to specified assets shall be in writing and signed by the parties. No unwritten terms shall be enforceable against any party, liability insurer, or any other person.

In actions for bad faith, any agreement between the tort-feasor and the insured shall be admissible in evidence. Furthermore, the exercise of any rights under this act shall not be construed as bad faith.

These provisions are identical to SCS/SB 726 (2020) and are substantially similar to HCS/HB 2049 (2020) and are similar to SCS/SB 49 (2019), HB 120 (2019), and SCS/HB 186 (2019).

AVAILABILITY OF PUNITIVE DAMAGES AGAINST CERTAIN PARTIES (Sections 182.817, 191.656, 213.111, 260.210, 302.170, 417.457, 448.4-117, 537.090, 542.418, and 544.195)

Punitive damages shall not be available against the state, any political subdivision of the state, or any employee or agent thereof in cases involving disclosure of library records, disclosure of HIV reports and records, unlawful discriminatory practices, injuries from the dumping or disposal of solid waste or demolition waste, misappropriation of trade secrets, violations of the Uniform Condominium Act, wrongful death, and unauthorized use of wire communications. Additionally, this act repeals the availability of punitive damages in civil actions resulting from violations and damages that occurred in strip searches.

These provisions are identical to provisions in SB 911 (2020).

PUNITIVE DAMAGES - GENERAL (Sections 510.261, 510.263, and 510.265)

This act provides that 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 deliberate and flagrant disregard for the safety of others, and the plaintiff is awarded more than nominal damages. 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 shall not 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, but shall not be based on harm to nonparties. A pleading seeking a punitive damage award may be filed only after the court determines that the trier of fact could reasonably conclude that the standards for a punitive damage award, as provided in the act, 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 of compensatory damages, including nominal damages, and liability of punitive damages. The amount of a punitive damage award is then determined by the jury in the second stage. Under this act, after the jury has determined liability and amount of compensatory damages, the court then shall determine whether punitive damages may be considered by the jury. After the court's determination, the jury then will determine whether to award punitive damages and the amount of such an award.

Currently, if the 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 also be credited for punitive damages paid in a federal court. Additionally, if the defendant is found not liable for the punitive damage claim, the court shall award attorney's fees and costs to the defendant.

These provisions shall not apply to claims for unlawful housing practices under the Missouri Human Rights Act.

Additionally, this act provides that no punitive damages shall be awarded in any civil action against the state, a political subdivision of the state, or any official or employee thereof.

These provisions are similar to provisions in SS/SB 65 (2019), SCS/HB 186 (2019), HB 489 (2019), SCS/SB 1102 (2018), and HCS/HB 2119 (2018).

PUNITIVE DAMAGES - MEDICAL MALPRACTICE (Sections 538.205 and 538.210)

This act modifies the definition of "punitive damages" as it relates to actions for damages against a health care provider for personal injury or death caused by the rendering of health care services.

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. Evidence of negligence, including indifference or conscious disregard for the safety of others, does not constitute a basis for a punitive damage award. Additionally, no plaintiff shall recover punitive damages from a health care provider who is a public body or an official or employee of a public body.

These provisions are similar to provisions in SS/SB 65 (2019), SCS/HB 186 (2019), HB 489 (2019), SCS/SB 1102 (2018), HCS/HB 2119 (2018), HCS/HB 2434 (2018), and HB 2273 (2018).

KATIE O'BRIEN