SB 119
Modifies provisions relating to telecommunication practices
Sponsor:
LR Number:
0036H.05C
Committee:
Last Action:
5/5/2021 - Reported Do Pass H Rules - Legislative Oversight
Journal Page:
Title:
HCS SCS SB 119
Calendar Position:
Effective Date:
August 28, 2021
House Handler:

Current Bill Summary

HCS/SCS/SB 119 - This act modifies provisions relating to judicial proceedings.

LIABILITY CLAIMS IN EDUCATIONAL SETTINGS (Section 162.012 & 178.038):

This act allows school boards to purchase insurance contracts to insure against loss, damages, or expenses for a claim arising out of the sickness, bodily injury, or death by accident of any student injured on school premises or during school-sponsored activities; as well as insurance for the benefit of students to insure against losses from loss of, theft of, or damage to personal property of students.

An employer who accepts a student in grades 6-12 for a work-based learning program shall not be subject to civil liability for claims arising from the student's negligent act or omission, provided that such employer shall not have any immunity for gross negligence or willful misconduct.

Theses provisions are identical to SB 555 (2021) and HB 1034 (2021) and to provisions contained in the perfected HCS/HB 922 (2021).

TRUE COVID LIABILITY ACT (Section 192.027):

This act establishes the "True COVID Liability Act". Under this act, the state or any political subdivision thereof shall not, as a response to a contagious disease, quarantine an individual, issue a stay-at-home order for an individual, or isolate an individual if a contagious disease has not been positively identified in the individual. Additionally, the state or political subdivision shall not limit the use of lawful activities in any private property or premises in which extraordinary prevalence of a contagious disease has not been proven. Finally, a business license shall not be revoked based on an individual's or entity's decision regarding recommendations from a government or scientific entity.

This act provides that no individual, owner of premises, or any other entity shall be subject to criminal or civil liability in any action alleging exposure to a contagious disease on the premises under the control of the individual, owner, or entity unless the individual, owner, or entity knowingly and purposefully, and with malice, exposed an individual to a contagious disease and such exposure caused suffering from a clinical disease.

The term "contagious disease" is defined in the act as a global acute infectious respiratory illness that is transmitted by airborn particles or droplets and is not transmitted by direct contact with food, surfaces, or bodily fluids.

This provision contains an emergency clause.

This provision is identical to a provision in HCS/SS/SCS/SB 27 (2021), a provision in HCS/HB 682 (2021), and HCS/HB 1358 (2021).

FOOD AND MERCHANDISE CONTAINERS (Section 196.076):

This act provides that a food or merchandise container shall not be deemed to be made, formed, or filled as to be misleading, misbranded, or unfairly marketed if the container is filled to less than its capacity for reasons as outlined in the act. Such reasons include protection of the contents of the package, reasonable industry standards for enclosing the contents in the package, product settling, the package performing a specific function, where a reusable container is part of the presentation of the food, the inability to increase the level of fill or reduce the size of the package, and other reasons outlined in the act. No action shall be brought alleging a violation of merchandising practices if the container is in compliance with the provisions of this act.

This act is identical to SB 169 (2021), SB 746 (2020), and SCS/SB 498 (2019).

JUVENILE DETENTION (Section 211.072):

This act provides that a juvenile, under the age of 18, who has been certified to stand trial as an adult, if currently placed in a secure juvenile detention, shall remain in juvenile detention, pending finalization of the judgment and completion of appeal, if any, of the judgment dismissing the juvenile petition to allow for prosecution under the general law, unless otherwise ordered by the juvenile court.

Upon any final judgment on appeal of the petition to dismiss prosecution of the juvenile under the general laws, and adult charges being filed, if the juvenile is currently in juvenile detention, the juvenile shall remain in detention unless the juvenile posts bond or the juvenile is transferred to an adult jail.

Additionally, this act provides that if the juvenile officer does not believe detention in a secure juvenile detention facility would be an appropriate placement or would continue to serve as an appropriate placement, the juvenile officer may file a motion in the adult criminal case, requesting that the juvenile be transferred from juvenile detention to jail. The court shall hear evidence relating to the appropriateness of the juvenile remaining in juvenile detention or being transferred to an adult jail. At the hearing, the juvenile, the juvenile's parents and counsel, the prosecuting attorney, and others as provided in the act, shall have the opportunity to present evidence and recommendations.

Following the hearing, the court shall order that the juvenile continue to be held in a secure juvenile detention facility or shall order that the pre-trial certified juvenile be held in an adult jail, but only after the court has made findings that it would be in the best interest of justice to move the pre-trial certified juvenile to an adult jail. The court shall weigh certain factors, as provided in the act, when deciding whether to detain a certified juvenile in an adult jail. In the event the court finds that it is in the best interest of justice to require the certified juvenile to be held in an adult jail, the court shall hold a hearing once every 30 days to determine whether the placement of the certified juvenile in an adult jail is still in the best interest of justice.

This act provides that a juvenile cannot be held in an adult jail for more than 180 days unless the court finds, for good cause, that an extension is necessary or the juvenile waives the 180-day maximum period.

Effective December 21, 2021, all previously certified, pre-trial juveniles, under the age of 18, who had been certified prior to August 28, 2021 shall be transferred from adult jail to a secure juvenile detention facility, unless a hearing is held and the court finds that it would be in the best interest of justice to keep the juvenile in the adult jail. All certified juveniles who are held in adult jails shall continue to be subject to the protections of the Prison Rape Elimination Act (PREA) and shall be physically separated from adult inmates.

If the certified juvenile remains in juvenile detention, the juvenile officer may file a motion to reconsider placement and a hearing shall be held as provided in the act. The court may amend its earlier order in light of the evidence and arguments presented at the hearing if the court finds that it would not be in the best interest of justice for the juvenile to remain in a juvenile detention facility.

The issue of setting or posting bond shall be held in the pre-trial certified juvenile's adult criminal case.

Finally, this act provides that upon attaining the age of 18 or upon conviction on the adult charges, the juvenile shall be transferred from juvenile detention to the appropriate adult facility. Any responsibility for transportation of the certified juvenile who remains in a secure juvenile detention facility shall be handled in the same manner as in all other adult criminal cases where the defendant is in custody.

These provisions are identical to SCS/SB 440 (2021) and to provisions in SCS/HCS/HB 59 (2021).

INTERLOCUTORY APPEALS INVOLVING CHILD PLACEMENT (Section 211.261):

Under this act, an interlocutory appeal shall be allowed to a parent, guardian ad litem, or juvenile officer from any order changing or modifying the placement of a child.

This provision is identical to a provision contained in HCS/HB 673 (2021).

RELEASE OF LIABILITY FOR EMPLOYEES (Section 287.120):

Under current law, an employee shall not be released from liability under workers' compensation laws for injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury. This act provides that an employee shall not be released from liability under workers' compensation for injury or death if the employee engaged in a willful act with the intent to cause bodily injury or death.

This provision is identical to a provision in HCS/HB 922 (2021), HCS/SB 303 (2021), and HB 1119 (2021).

CALL SPOOFING (Sections 407.1095-407.1115):

This act adds call spoofing, as defined in the act, as a method of telephone solicitation prohibited under provisions of law relating to the telemarketing no-call list.

This act also establishes the "Caller ID Anti-Spoofing Act", which creates the offense of caller identification spoofing. A person commits such offense if he or she enters or causes to be entered, false information into a caller ID service with the intent to deceive, defraud, or mislead the recipient of the call, or the person places a call knowing that false information was entered into a caller ID service with the intent to deceive, defraud, or mislead the recipient of the call. The offense is a Class E felony.

Call recipients may bring action as members of a class, and the Attorney General may initiate legal proceedings or intervene in legal proceedings on behalf of call recipients.

This act is similar to HCS/HB 242 (2021), HCS/HB 2116 (2020), SB 664 (2020), HB 2175 (2020), and SCS/SB 144 (2019).

ARBITRATION AWARDS (SECTION 435.415):

This act provides that no arbitration award shall be binding, admissible in evidence, or provide the basis for any judgment or decree against any liability insurer unless the insurer has agreed in writing to the arbitration proceeding. Additionally, any arbitration award shall not be subject to garnishment, enforcement, or collection from any liability insurer unless the insurer has agreed in writing to the written arbitration agreement. Unless otherwise required by the insurance contract, a liability insurer's election to not participate in arbitration shall not constitute or be construed as bad faith. These provisions shall not apply to any arbitration required by statute or arbitration agreements preceding the date of injury or loss.

This provision is identical to a provision contained in SB 179 (2021), and in the perfected HCS/HB 922 (2021).

FAMILIAL RELATIONSHIPS (Section 456.1-114):

For the purposes of interpreting a term of familial relationship in a trust, a child conceived or born during a marriage is presumed to be a child of the married persons unless a judicial proceeding is commenced before the death of the presumed parent and it is determined that the presumed parent is not the parent of the child.

Additionally, this act provides that a child who is not conceived or born in a marriage is presumed to not be a child of a person who did not give birth to such child unless a judicial proceeding determines such parentage or the person openly recognized the child as his or her child and such person has not refused to voluntarily support the child. A trustee shall not be liable to any person for exercising discretion in regards to the sufficiency of recognition and support of a child unless the trustee acted in bad faith or with a reckless indifference to the purposes of the trust or the interests of the beneficiaries. The rights afforded to the child shall not be retroactive, but shall apply from the time the relationship is established.

Under this act, a child adopted prior to 18 years of age is a child of the adopting parent and not of the natural parents, except that adoption by a spouse of a natural parent shall have no effect on the relationship between the child and the natural parent. Additionally, the terms of a trust shall prevail over this provision of the act.

This provision is identical to a provision in SB 338 (2021) and to a provision in the perfected HB 1008 (2021).

TRUST DECANTING (Section 456.4-419):

Under this act, a trustee, other than a settlor, who has discretionary power to make a distribution, may exercise such power by distributing all or part of the income or principal to a trustee of a second trust. The power may be exercised by distributing property from the first trust to one or more second trusts or by modifying the first trust instrument to become one or more second trusts.

This act provides requirements regarding permissible distributees of second trusts, including that at least one permissible distributee of the first trust shall be a permissible distributee of the second trust immediately after the distribution and that only a beneficiary of the first trust may be a beneficiary of the second trust. In addition, this act modifies the use of powers of appointment in the second trust. The second trust instrument may retain, modify, or omit a power of appointment granted by the first trust and the second trust instrument may create a general or nongeneral power of appointment if the powerholder is a beneficiary of the second trust. Furthermore, this act provides that a special-needs fiduciary may exercise the authority to make a distribution to a second trust if the second trust is a special-needs trust that has a beneficiary with a disability and if the fiduciary determines that the exercise of authority will further the purposes of the trust.

The act repeals the current provisions regarding a second trust's beneficiaries, the limitations on a trustee's authority to make distributions from the first trust in certain circumstances, trust contributions treated as gifts, and the exercise of the discretionary power to reduce the income interest of any income beneficiary in certain trusts. The act provides that if the exercise of the distribution authority is limited by an ascertainable standard, under which the trustee exercising such authority is a permissible distributee of the first trust, then the discretionary power shall be subject to at least the same standard as the first trust and the trust instrument for the second trust shall not modify powers of appointment nor grant a power of appointment to a trustee who did not exist in the first trust.

A second trust shall not include or omit terms that would prevent the first trust property from qualifying as a marital deduction, as a charitable deduction, for exclusion from the gift tax, as a qualified subchapter-S trust, or for a zero inclusion ratio for purposes of the generation skipping transfer tax under the Internal Revenue Code. Additionally, if the first trust property includes shares of a S-corporation's stock and the first trust is a permitted shareholder, then the trustee of the first trust may exercise the authority with respect to the S-corporation stock if the second trust is a permitted shareholder.

Currently, a notification must be made at least sixty days prior to making a discretionary distribution to the permissible distributees of the second trust or if none then to the qualified beneficiaries of the second trust. This act requires that the notification be made to the permissible distributees of the first trust and to the permissible distributees of the second trust.

The second trust may have a duration that is the same as the first trust. However, the property of the second trust that is attributable to the first trust is subject to the rules governing maximum perpetuity, accumulation, or suspension of the power of alienation which apply to the property of the first trust. The creation of a general power of appointment in the second trust instrument shall not be precluded by this provision.

In the event that part of the second trust instrument does not comply with this act, the exercise of the discretionary power is effective and the provisions of the second trust instrument that are not permitted in or are required to be in the trust instrument are deemed void or included to the extent necessary to comply.

This provision is identical to a provision in SB 338 (2021) and to a provision in the perfected HB 1008 (2021).

COLLATERAL SOURCE RULE (Section 490.715):

This act modifies the rule for determining the admissibility of evidence of collateral source payments in civil cases. No party shall introduce evidence of the amount billed for medical treatment if the amount billed has been discounted, written-off, or satisfied by payment of an amount less than the amount billed for such medical care or treatment.

The actual cost of medical care or treatment rendered to a plaintiff, or a patient whose care is at the issue of a plaintiff's case, and discounts pursuant to any contract, price reduction, or write off shall be admissible as set forth in the act.

This provision is similar to HB 147 (2021) and HCS/HB 577 (2021).

STATUTES OF LIMITATIONS (Section 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 15 years after the sale or lease of the product to bring a claim for damages.

The 15-year time limitation shall not apply to actions relating to real property, actions where a person has knowingly concealed any defective or unsafe condition or negligence of the product, actions for indemnity or contribution by a defendant, actions involving a product which has a warranty longer than 15 years, actions regarding negligent service or maintenance of a product, actions involving a product that is subject to a government mandated product recall related to consumer safety, actions where the product causes certain latent diseases, and actions against manufacturers of mechanical devices where the harm occurred during a product's useful safe life. However, the exception to the time limitation regarding products causing certain latent diseases does not apply to certain actions against a seller claiming a product is unreasonably dangerous due to a defective condition, unless the seller is also the manufacturer.

This act applies to civil actions and new causes of action asserted on or after August 28, 2021. Any cause of action that has accrued on or before that date may be brought no later than August 28, 2022.

This provision is identical to a provision contained in the perfected HCS/HB 922 (2021) and substantially similar to SB 7 (2021) and HB 474 (2021).

PERSONAL INJURY (Section 516.120):

Currently, actions for personal injury must be brought within five years from the time the injury occurred. This act states that actions for personal injury must be brought within two years from the time the injury occurred and actions against an insurer related to uninsured motorist coverage or underinsured motorist coverage, including any action to enforce such coverage.

This provision is identical to a provision contained in the perfected HCS/HB 922 (2021) and similar to SB 3 (2021).

COVENANTS NOT TO EXECUTE, CONTRACTS TO LIMIT RECOVERY, AND INTERVENTION FOR INSURERS (Section 537.065):

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 such person may enter into a contract with the tort-feasor or any insurer if the insurer has refused to withdraw a reservation of rights or declined coverage for such unliquidated claim.

Under current law, the insurer shall be provided with written notice of the execution of the contract and shall have 30 days to intervene before a judgment may be entered against a tort-feasor who has entered into such a contract. This act provides that for actions seeking a judgment on a claim against a tort-feasor 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. Furthermore, the act specifies that the insurers have the unconditional right to intervene in any pending civil action involving the claim for damages within 30 days of receiving notice.

This act provides that insurers intervening in a court proceeding where the tort-feasor has contracted to limit his or her liability to specified assets shall have all the same rights and defenses as are afforded to defendants. Additionally, the intervenor shall have reasonable and sufficient time to meaningfully assert its position. No stipulations, scheduling orders, or other orders affects the rights of intervenors and that were entered prior to intervention shall be binding upon the intervenor. 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, insurer, or any other person.

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

These provisions are identical to SS/HB 345 (2021) and similar to SB 179 (2021) and to provisions contained in the perfected HCS/HB 922 (2021).

LIABILITY FOR PRIVATE CAMPGROUNDS (SECTION 537.328):

This act prohibits a private campground owner or employee or officer of a private campground owner from being liable for acts related to camping at a private campground if the injury or damage occurred as a result of an inherent risk of camping, as described within the act. This act does not apply to actions arising under Missouri Workers' Compensation Law. Additionally, this act does not prevent or limit liability of an owner, employee, or officer who intentionally causes injury, death, or damage, who acts with a willful or wanton disregard for the safety of the person or property damaged, who fails to use the degree of care that an ordinarily careful and prudent person would use under the circumstances, or who fails to conspicuously post warning signs of known dangerous conditions on the property. Warning signs are required to appear in black letters of at least one inch in height on a white background. Warning signs and written contracts entered into by an owner, employee, or officer shall contain a warning notice, as specified in the act.

This provision is identical to SB 50 (2021), HB 72 (2021), a provision in the perfected HCS/HB 922 (2021), and a provision in HB 1070 (2021).

PRODUCT LIABILITY (Section 537.771):

This act specifies that, in any civil action for personal injury, death, or property damage caused by a product, the plaintiff shall prove that the defendant manufactured, sold, or leased the actual product that caused the injury. Manufacturers, sellers, or lessors of products not identified as having been used, ingested, or encountered by an alleged injured party will not be held liable for any alleged injury. A person or business entity that designs but does not manufacture a product shall not be subject to liability for personal injury, death, or property damage caused by the manufacturer's product, even if use of the design is foreseeable.

This provision is identical to HCS/HB 782 (2021) and to a provision contained in the perfected HCS/HB 922 (2021).

ASBESTOS TRUST (Section 537.880):

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

This act applies to all asbestos actions filed on or after the effective date and to pending asbestos actions in which a trial has not commenced as of such date.

DOCUMENT DISCLOSURE REQUIREMENTS (Section 537.882):

Within 45 days of filing a civil action for damages due to health effects that resulted from the exposure to asbestos, or within 45 days of the effective date of this act for currently pending asbestos actions, a claimant shall provide the court and other parties the following documents:

(1) A sworn statement stating that an investigation has been conducted and the claimant has filed all available asbestos trust claims, and providing the status and disposition of each asbestos trust claim;

(2) All trust claim materials, as defined in the act, which shall include materials that relate to other conditions and materials from all law firms connected to the claimant in relation to exposure to asbestos; and

(3) All available trust claims filed by any individual, other than the claimant, if the claimant's asbestos action is based on exposure through that individual and the materials are available to the claimant or the claimant's counsel.

The claimant must continually supplement or amend the required information and documents given to the court and other parties as stipulated in the act.

PROCESS FOR FAILURE TO FILE ALL TRUST CLAIMS (Section 537.884):

No less than 60 days before trial in an asbestos action, if the defendant believes the claimant has not filed all the available asbestos trust claims, the defendant may file a motion with the court requesting the court to require the claimant to file additional trust claims. If a defendant has previously filed a motion, the court shall not grant any subsequent motion if the defendant knew that the claimant met the criteria for payment for the additional asbestos trust claim identified in the subsequent motion at the time the earlier motion was filed.

Within 10 days after receiving the defendant's motion, 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. The court shall make a determination within 10 days of the claimant's response. If the court finds that there is a sufficient basis for the claimant to file the additional asbestos trust claim, the court shall order the claimant to file the asbestos trust claim and produce all related materials within 10 days. If the claimant fails to comply with the court's order, the action may not proceed to trial until at least 30 days after compliance.

DISCOVERY AND ADMISSIBILITY OF TRUST CLAIM MATERIALS AND TRUST GOVERNANCE DOCUMENTS (Sections 537.886 and 537.888):

Trust claim materials and trust governance documents are admissible in evidence and are presumed to be relevant and authentic. No claims of privilege apply to trust claim materials and trust governance documents. Additionally, 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 shall provide consent to release the trust information and materials requested by the defendant.

Trust claim materials that are sufficient to entitle a claim for payment under the applicable trust governance documents may support a jury finding that the claimant was exposed to products for which the trust was established to provide compensation 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 an 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.

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 received from an asbestos trust. Any setoff or credit for an asbestos trust claim that has been resolved shall be the amount of actual payment received by the claimant after application of any payment percentages.

FILING OF ADDITIONAL ASBESTOS TRUST CLAIMS (Section 537.890):

After obtaining a judgment in an asbestos action, if a claimant files any additional asbestos trust claim with or submits any additional asbestos trust claim to an asbestos trust that was in existence at the time the claimant obtained the judgment, the trial court, upon the filing by the defendant or judgment debtor of an appropriate motion seeking sanctions or other relief, has jurisdiction to reopen the judgment in the asbestos action and adjust the judgment by the amount of any subsequent asbestos trust payments obtained by the claimant and order any other relief that the court considers just and proper.

These provisions are identical to provisions contained in the perfected HCS/HB 922 (2021) and provision contained in SB 200 (2021).

BROADBAND INTERNET GRANT PROGRAM (Section 620.2450 & 620.2456):

This act provides that funds allocated by the Broadband Internet Grant Program shall be distributed according to law unless the law is out of compliance with any regulations placed on the receipt of such funds and would prohibit the expenditure of such funds.

Additionally, this act provides that the Department of Economic Development shall not award any grant funding when funds have already been awarded by the Connect America Fund and the Rural Digital Opportunity Funds.

These provisions are identical to provisions contained in SS#2/SCS/HCS/HB 271 (2021).

JAMIE ANDREWS

Amendments

No Amendments Found.