from page 1 - Missouri Organization of Defense Lawyers

MODL Quarterly Report
A Publication of the Missouri Organization of Defense Lawyers
Spring, 2015
In this issue ...
MODL President’s Message
President’s Message ............................. 1
MODL Young Lawyers
Activities Update .................................. 2
MODL’s 30th Annual Meeting
John Dean and the
Watergate Break‐In .............................. 3
Legislative Report ................................. 4
Where Are They Now? A Review
of 2014 Cases in Which MODL
Filed an Amicus Brief ............................ 9
Reservation of Rights
in Missouri .......................................... 10
What is Sepulcher? ............................. 12
Understanding and Applying
Missouri Approved Jury
Instructions (MAI): A Primer .............. 14
MODL Contact
Information:
101 East High Street, Suite 200
P.O Box 1072
Jefferson City, MO 65102
Phone: 573‐636‐6100
Web Site: www.MODLLAW.com
John S. Farmer, MODL President
Thompson Coburn LLP s St. Louis, Mo.
The Defense Bar of the Future
Another column, another road trip. As part of my
official MODL duties I recently attended the Defense
Research Institute’s leadership conference in Chicago
with defense bar officers from all fifty states. The
purpose was to share ideas for dealing with
challenges we all have in common — How do we
recruit younger members? How can we get more
people to attend our events? How do we remain
viable and relevant to our member firms and their clients?
DRI’s keynote speakers focused on futurology and innovative thinking. New York
Times "Futurist‐In‐Residence" Michael Rogers shared high‐tech forecasts from
Google and Apple: intelligence software, smart goggles, flying cars, etc.
(incidentally, a futurist, I learned, is prognosticator who predicts future trends and
advises on potential outcomes).
Executive coach and innovation specialist Laura Goodrich urged us to focus on
positive outcomes in order to be effective innovators. She also discussed the
concept of disruptive innovation — when a new player or widget is so revolutionary,
it creates a new market and changes behavior (think Netflix or Amazon). These are
the real “game changers.”
Lawyers are not typically credited with being on the cutting edge of innovation —
we follow longstanding rules and precedents. Ideally, we learn a thing or two from
history along the way.
Executive Director
Our business clients, on the other hand, are more often the inventive types (the
risk‐takers, the visionaries striving to build better mousetraps). Nevertheless, the
defense lawyer and the Futurist have much in common — we help clients assess
risks, evaluate options and predict future scenarios and opportunities. Certainly,
there is a little futurist in all of us.
Randy J. Scherr
Email: rjscherr@swllc.us.com
So what futuristic innovations can MODL offer you and your clients? Here's a
sample (some are new, and some old school):
“President’s Message” >p2
President’s Message (from page 1)
MODL Young Lawyers
Activities Update1
1. High‐Tech Gadgetry: As promised, our web site is
undergoing a complete makeover. Stay tuned for list
serves, on‐line payment capability, a smart phone app,
and an expert database.
2. Skills Training: Our Trial Academy (March 25‐27, 2015
in Columbia, Missouri) is fabulous training for young
trial lawyers. We offer live voir dire, rulings by a sitting
federal judge, and step‐by‐step mock trial experience
with seasoned trial attorneys. A few seats are still
available.
KANSAS CITY:
Unfortunately, the Kansas City MODL Young Lawyers
Committee failed at navigating the Kansas City Royals’
miracle October run in coordinating a Young Lawyers
Happy Hour during the Fall. And by the time that Pablo
Sandoval’s glove had closed on the pop‐fly that shattered
the dreams of every post‐1985 KC Royals fan, the KC Bar
holiday parties were ramping up. Do not fear, we have
plans for a Spring Happy Hour in April or May to get
people excited about the MODL Annual Meeting and are
also working with the CLE Committee to line up an event
in conjunction with the Second KADC/MODL joint CLE at
Sporting KC. Keep your eyes open for invitations and
opportunities at these events in the coming months!
3. Top Shelf Representation in the Legislature: MODL is
the business lawyer’s voice in Jefferson City. Legislative
issues affecting your practice, your business clients,
and the judiciary are MODL’s specialty. Call us if you'd
like to be part of the process.
Finally, when it comes to learning from history, at times we've
been forced as a profession to innovate by necessity. Take for
example our featured speaker at the upcoming MODL Annual
Meeting this June, former White House Counsel John Dean.
Mr. Dean’s involvement as counsel to President Nixon during
the Watergate era and subsequent testimony before
Congress led the ABA to mandate ethics education for law
students and lawyers. And thus, the mandatory ethics credit
was born. Though Mr. Dean surely never set out to be an
ethics credit “game changer,” his experience nevertheless led
to a disruptive innovation of sorts for our profession — an
enduring silver lining.
ST. LOUIS:
The St. Louis MODL Young Lawyers Committee had a
Happy Hour on November 20, 2014 at the Wheelhouse in
Clayton. Despite the uneasy tension in the Clayton area
at that time due to the pending Darren Wilson grand jury
decision, we had a great turnout with approximately 25
lawyers from the St. Louis area in attendance. The event
was sponsored by Midwest Litigation Services and a great
time was had by all. We hope to have another Happy
Hour in March or April.
Mr. Dean's CLE focuses on representing organizations and the
inherent responsibilities faced by business lawyers under the
Model Rules of Professional Conduct — it’s surely among the
most relevant CLE opportunities we've ever offered our
members. I hear the presentation is fantastic (and 3.6 hours
of ethics credit to boot!) … We'll see you there in June.
SPRINGFIELD:
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The Springfield MODL Young Lawyers Committee hosted
a Young Lawyers reception in October at Ebbet's Field. We
had a great turn out and enjoyed the evening. The event
was sponsored by For the Record and Ebbet's Field
provided some good specials. We plan on having another
event as soon as the warmer weather allows us to enjoy
an evening on the patio.
MODL Quarterly Report
The MODL Quarterly Report is a publication of the Missouri
Organization of Defense Lawyers. If you have any comments
or questions, please contact our Publications Committee.
Co‐Editor Jennifer Baumann
jbaumann@thompsoncoburn.com
1
Co‐Editor Justin Chapell
jchapell@bjpc.com
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Contributions by: Jason Scott; Shook, Hardy & Bacon; Kansas City,
MO; Rachel Riso; Baird Lightner Millsap, PC; Springfield, MO; and
Matt Noce; HeplerBroom LLC; St. Louis, MO
MODL's 30th Annual Meeting:
John Dean and the Watergate Break‐In
by Brian Waller s Shelter Insurance s Columbia, Mo.
THE LEGACY OF
WATERGATE
Ethics of Representing an Entity Under the Current Model Rules
Join us June 4‐6, 2015, in Branson, Missouri, for the
Missouri Organization of Defense Lawyer’s signature
event – the 30th Annual Meeting!
Members who want to learn something, earn ethics
credit hours, and meet a lawyer who played a central
role in one of the last century's watershed moments in
American history will enjoy this year’s stellar CLE
program. MODL is proud to offer, "The Watergate CLE
Program," a nationally renowned program featuring
former Nixon White House Counsel John Dean, co‐
presenting with attorney Jim Robenalt. This popular and
acclaimed CLE program includes select clips from White
House tapes and historic video from the Senate hearings
and the Frost/Nixon interviews. The Watergate CLE will
take place on Friday morning and will qualify for 3.6
hours of ethics credits.
We are also excited to again host two panels of
distinguished judges. The Honorable Zel Fischer will
moderate a panel of appellate judges which include the
Honorable Patricia Breckenridge, the Honorable Paul
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Wilson, the Honorable Dwayne Benton, the Honorable
Roy Richter, and the Honorable Sherri Sullivan. The
Honorable Doug Harpool will moderate the trial judge
panel featuring the Honorable Michael Cordonnier, the
Honorable Wes Dalton, the Honorable James Kanatzar,
the Honorable Ellen Levy Siwak, and the Honorable
Gloria Reno.
This year’s Annual Meeting will be held at the Hilton
Branson Convention Center Hotel (a 12‐story, AAA, Four
Diamond hotel). Beyond CLE, the Annual Meeting
continues to feature MODL favorites like Thursday night's
President’s Welcome Reception, Friday afternoon's golf
tournament and sporting clays shoot (do not worry,
these are separate events!), and Friday night's Awards
Dinner and Banquet. The Annual Meeting will continue
to have a family friendly focus and will again include fun
activities for children and contacts for babysitting
services.
We hope you will join your MODL colleagues June 4‐6,
2015, for another first class Annual Meeting!
Legislative Report
by Mimi Doherty s Deacy & Deacy LLP
Kansas City, Mo.
The Missouri Legislature is currently in session and
considering a number of bills which are of interest to
members of MODL. Those bills include:
SB 192
This bill would modify Missouri’s product liability law. MO.
REV. STAT. § 537.765. It provides that when the trier of facts
determines in a products liability case that the harm was
caused solely as a result of the plaintiff’s fault then the
defendant shall not be liable for the harm caused solely as
a result of such fault. The definition of the term “fault” is
modified to include the use of the product in a manner
inconsistent with a specification or standard applicable to
the product, use of the product in a manner contrary to an
instruction or warning and use of the product in a manner
determined to be improper by a federal or state agency.
SB 233/HB 697
These bills would modify the expert witness statute
Missouri Revised Statute section 490.065 to make it
identical to the federal court expert witness rules, Federal
Rules of Evidence 702 and 703.
The MODL Board of Directors voted to support these bills
and expects some of its members to testify in favor of their
passage.
The MODL Board of Directors supports passage of this bill.
SB 140
HB 596/SB 227
This bill would modify the statute on joint and several
liability. MO. REV. STAT. § 537.067. Currently in tort actions
when a defendant is found to bear 51% or more of the fault
then the defendant is jointly and severally liable for the
entire compensatory judgment amount. Currently a
defendant is only severally liable for the percentage of
punitive damages for which fault is attributed to that
defendant. This bill if passed would provide that the liability
of each defendant for both compensatory and punitive
damages is several and not joint. Each defendant would be
liable only for the amount of damages in direct proportion
to the defendant’s percentage of fault.
These bills would modify the collateral source statute. MO.
REV. STAT. § 490.715. Currently the statute provides that no
evidence that a collateral source made payments to a
plaintiff is admissible other than allowed by this statute.
The bill if passed would specify that no evidence of
collateral sources pertaining to the cost of medical
treatment shall be admissible except as provided in the
statute.
The bill provides that the parties may introduce evidence
of the cost, rather than the value of the medical treatment
rendered and repeals a provision of the current law which
provides that there is a rebuttal presumption that the value
of the medical treatment provided is represented by the
dollar amount necessary to satisfy the financial obligation
to the healthcare provider. The cost of any medical
treatment shall not exceed the actual dollar amount paid
for such treatment plus any unpaid for projected amounts
to be paid by any source or combination of sources to
satisfy the financial obligation to the healthcare provider.
Evidence presented regarding medical treatment or to be
Additionally this bill provides that 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 lawsuit. Furthermore the fault of a non‐party may be
considered if the plaintiff entered into a settlement with
the non‐party or if the defendant gives notice before trial
that a non‐party was at fault. Findings of fact regarding the
fault of a non‐party shall not subject the non‐party to
liability or be introduced as evidence of liability in any
action.
The MODL Board of Directors supports passage of this bill.
“Legislative Report” >p5
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Legislative Report (from page 4)
offer of settlement of a claim shall not be introduced unless
the demand or offer meets certain criterion. That criterion
includes sending a written demand or offer by certified mail
return receipt requested; including an affidavit of claimant
describing the claim, the injuries, prior injuries and damages
(with supporting documentation); providing a list of names
and addresses of medical providers and copies of available
medical bills, a list of employers if seeking lost wages and
written medical and employment authorizations; the offer
provides a complete release of the insurer’s insureds against
whom the demand or offer is made for a payment of a sum
certain that is at or below the applicable policy limits;
indicates the settlement proceeds shall be subject to any
liens, subrogation claims or rights to reimbursement; and
reference this statute and states the offer/demand shall be
left open for 90 days from day of receipt by insurer. Upon
receipt of such an offer or demand, the insurer may seek
clarification regarding any relevant information and such an
attempt to seek clarification shall not be deemed a
counteroffer.
rendered shall be presented in terms of the actual cost
necessary to satisfy the cost of such treatment and without
reference to any billed charges in excess of such costs.
Additionally the bill proposes to modify current Missouri
Revised Statute sections 490.715.2 and 490.715.3 to
provide that the pretrial payment by or on behalf of
defendant of some or all of plaintiff’s special damages shall
not be admissible or recoverable from that defendant and
that a defendant who makes such payment of specific
damages shall not be able to receive a credit or deduction
of that amount from the final judgment unless such
payments have been included in the plaintiff’s claim for
special damages at trial.
The MODL Board of Directors supports passage of these
bills.
HB 31/HB 719
These bills address several claims handling issues that
frustrate insurers in Missouri by:
a) Abrogating the case law that permits an insured to
reject a defense pursuant to a reservation of rights;
Since this bill was not introduced until after the Board of
Directors meeting, the Board has not formally voted on
whether to support its passage, but it is likely the Board will
vote to support it at its next meeting and that MODL
members may testify in support of it.
b) Abrogating the decision in Columbia Casualty Co. v.
HIAR Holdings, LLC, 411 S.W.3d 258 (Mo. 2013) which
makes the entire judgment (without regard to policy
limits) the measure of damages where a court finds an
insurer has breached its duty to defend;
SB 239/HB 118/HJR 22
These bills would amend Missouri Revised Statute section
1.010 by excluding from the adoption of the English
common law a cause of action for medical malpractice. In
exchange, the bills adopt a statutory cause of action for
medical malpractice causing either bodily injury or death.
MO. REV. STAT. § 538.210. The statutory cause of action
would be subject to the cap on non‐economic damages that
currently only applies to wrongful death claims. The
Missouri Supreme Court in Sanders v. Ahmed, 364 S.W.3d
195 (2012) held that the legislature can adopt damage caps
on statutory causes of action. These bills, if enacted, would
provide limits on exposure for medical malpractice
defendants and their insurance carriers for claims of non‐
economic damages.
c) Authorizing an insurer that is providing a defense to
intervene in an action;
d) Permitting an insurer under certain circumstances to
challenge an uncontested judgment that is the subject
of an equitable garnishment under Missouri Revised
Statute section 379.200;
e) Limiting the addition of other claims to actions
brought under Missouri Revised Statute section
372.200; and
f) Clarifying that an insurer cannot be required to be a
party to an agreement under Missouri Revised Statute
section 537.065 and that such an agreement cannot
require the protected party to take any future action.
The MODL Board of Directors voted to support these bills.
The MODL Board of Directors voted to support this bill.
Likewise the MODL Board of Directors voted to support
HJR 22 which proposes a constitutional amendment limiting
liability for non‐economic damages and authorizes the
General Assembly to modify the limits of liability as
necessary.
Subsequent to the MODL Board of Directors meeting, HB 719
was introduced. It includes a provision abrogating the
decision in Columbia Casualty Co. It also provides that in an
action against an insurer based on any tort or breach of
contract, evidence of a demand for payment of a claim or an
“Legislative Report” >p6
~5~
Legislative Report (from page 5)
SJR 7
SB 246
This proposed constitutional amendment if approved by
the voters in November 2016 would adopt the current
punitive damages statute Missouri Revised Statute section
510.265 and would provide that the rights to the
determination of punitive damages by a jury shall remain
inviolate, except that no award for punitive damages shall
be greater than $500,000 or five times the net amount of
the judgment awarded to the plaintiff against the
defendant. Further such limitations may be reduced by law
and shall not apply if the defendant pleads guilty to or is
convicted of a felony arising out of the acts or omissions
pled by the plaintiff.
This bill provides that a Supreme, Appellate or Circuit Court
judge who is appointed shall be disqualified from hearing
a case when an attorney or party to the case being heard
served on the Appellate or one of the Circuit Judicial
Commissions that nominated the judge.
The MODL Board of Directors opposes the passage of this
bill.
HB 576
This bill provides that any person over the age of 70 may
provide written notice to the Board of Jury Commissioners
that he wishes to be disqualified from serving on a petit or
grand jury and that the board of jury commissioners must
honor the request and disqualify the person from jury
service.
The MODL Board of Directors supports the concept of this
bill; but has reservations about including a specific dollar
amount in the Constitution.
HB 270/SB 36
The MODL Board of Directors opposes passage of this bill.
Other bills that may be of interest to MODL members and
which the MODL Board of Directors will monitor include:
These bills if enacted would also add to the Missouri
Human Rights Act, Missouri Revised Statute section
213.010, a provision defining “because” or “because of” as
it relates to an unlawful employment or discrimination
practice to mean “a protected criterion was a motivating
factor in the defendant’s unlawful employment or
discriminatory practice.”
HB 108
This bill would amend Missouri Revised Statute section
516.105 to specifically include causes of action for
malpractice, negligence, error or mistake against “mental
health professionals licensed under chapter 337” as subject
to the two year statute of limitations for such actions
against health care providers.
These bills also provide a framework for summary judgment
motions in employment cases. In summary judgment
pleadings where plaintiff submits direct evidence of
discrimination, the burden would shift to the employer to
provide evidence that the same employment decision
would have occurred regardless of the direct evidence
presented by plaintiff. If the court determines that the
employer would have taken the same action regardless of
the evidence submitted by the plaintiff, then the court shall
rule in favor of the employer.
HB 407
This bill would modify the law applying to the Missouri
Human Rights Act. The bill would add to the definition of
discrimination unfair treatment based on sexual orientation
and gender identity and expands the protection of the act
to include sexual orientation and gender identity.
SB 66/SJR 4
Additionally in summary judgment pleadings, if the plaintiff
does not submit direct evidence of discrimination, the
burden is on plaintiff to establish an allegation of
discrimination. The employer may then produce evidence
of non‐discriminatory reasons for the employment
decision. If the employer does so, then the plaintiff shall
present facts to show the employer’s explanation is
insufficient or illegitimate. If the court determines that the
employer relied upon nondiscriminatory reasons for the
employment decision, the court shall rule in favor of the
employer.
This bill and resolution propose that Article VII, Section 2
of the Missouri Constitution be amended to require that all
impeachments (except the Governor) be tried by the
Senate. The Missouri Supreme Court would try any
impeachment of the Governor.
HB 26/HB 512/HB 564
Two of these bills (HB 26 and HB 512) would establish the
Civil Justice Funding Act. The Act provides a regulatory
The MODL Board of Directors voted to support passage of
these bills.
“Legislative Report” >p7
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Legislative Report (from page 6)
framework for companies that make loans to consumers in
consideration for an assignment by the consumer of a
contingent right in the potential proceeds of a legal claim.
HB 224
This bill would establish a “Legal Settlements Fund” which
would receive any settlement funds collected by a
statewide official (including but not limited to the Attorney
General’s office, the Secretary of State’s office and the
ethics commission) other than funds for restitution to
victims or for contracted attorney fees. The funds deposited
into the “Legal Settlements Fund” would be deposited into
the general revenue fund at least annually by the state
treasurer.
The third bill (HB 564) would prohibit civil justice funding
in Missouri.
HB 128
This bill seeks to modify Missouri Revised Statute section
571.107 and changes the laws regarding tort liability
associated with the concealed carry of firearms. It would
add a provision providing that irrespective of the fact that
a private owner or entity may prohibit the concealed carry
of firearms on its premises that does not grant any type of
immunity; in tort law or in other civil actions, for the act of
prohibiting the concealed carry of firearms. Further
irrespective of the fact that certain persons may consent to
the carrying of firearms in areas where such carrying is
otherwise prohibited by this statute, nothing in this statute
shall be construed as imposing any type of duty, in tort or
other civil actions, on such person to consent to the
carrying of firearms.
HB 335
This bill would establish procedures regarding litigation by
vexatious litigants. A “vexatious litigant” is defined as a pro
se plaintiff who has 1) commenced or maintained at least
five lawsuits (small claims court is excepted) in the prior
seven year period that have been finally determined
adversely to the person or permitted to pend at least two
years without trial or hearing, or 2) repeatedly re‐litigates
or attempts to re‐litigate the validity of prior litigation, or
3) repeatedly files unmeritorious motions, pleadings,
conducts unnecessary discovery, or engages in other tactics
that are frivolous or solely intended to cause unnecessary
delay.
HB 145
This bill proposes to change Missouri Revised Statute
section 434.100 regarding indemnity agreements for
construction contracts. It would broaden the definition of
“construction work” and include a definition of “person”
and “party.” It would also require every party entering into
a contract for construction work to be responsible for any
liability or damages arising from the party’s own
negligence, wrongdoing or recklessness and prohibits the
transfer, delegation, or assigning of responsibility to
another person and would repeal the provision allowing an
exemption if the party has specified limits of insurance to
insure the indemnity obligation. A party’s agreement to
insure for liability, defend against liability, indemnify or hold
harmless another person from that person’s own
negligence, wrongdoing, or recklessness would be void
against public policy and unenforceable.
The defendant would be allowed under certain
circumstances to seek an order requiring a vexatious
plaintiff to furnish security or for an order dismissing the
litigation. The court could also enter a pre‐filing order
prohibiting a vexatious litigant from filing any new litigation
in the courts pro se without obtaining leave of the presiding
judge in the court where the litigation is proposed to be
filed.
HB 337
Currently only construction industry employers are deemed
employers for workers compensation if they have one or
more employees; all other non‐construction industry
employers are deemed employers for workers
compensation purposes only if they have five or more
employees. This bill would require employers in the
following industries to have workers compensation
insurance if they have one or more employees: healthcare
and social assistance activities, manufacturers, retail trade
activities, transportation and warehousing activities,
geophysical surveying and mapping services activities, and
engineering services activities.
HB 167
This bill would modify Missouri Revised Statute sections
516.371, 537.046, 556.037 and 568.060 to eliminate the
current 10‐year statutes of limitations to recover damages
relating to child abuse and sexual abuse offenses
committed against a child and would allow criminal
prosecutions for child abuse to be commenced at any time
(eliminating the current limitations period of 30‐years after
the victim reaches the age of 18).
“Legislative Report” >p8
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Legislative Report (from page 7)
HB 374
SB 14
This bill provides that any person who disseminates false
information relating to a perishable food product implying
that the product is not safe for consumption will be liable
to the food product producer.
This bill would require all state departments and divisions
to post on Missouri’s Accountability Portal copies of
contracts entered into with outside law firms for the
provision of legal services.
HB 375
SB 81
This bill proposes to modify the Recreational Use Act,
Missouri Revised Statute section 537.345, et. seq.
This bill would create a new statute (Missouri Revised
Statute section 478.330) which authorizes an additional
circuit judge in circuits with a population exceeding 100,000
when the annual judicial performance report indicates for
three consecutive years that the circuit needs four or more
full time judges.
It adds trapping, paddle sports, aviation activities for
personal or private use and swimming to the activities
included under the definition of “recreational use” as it
applies to the provisions regarding landowners’ liability for
recreational use of land and specifies that liability is not
limited for a landowner who intentionally injures a
participant, knowingly provides unsafe equipment or
devices or fails to use a degree of care that an ordinary
person would use.
SB 37
This bill would create new statutes (Missouri Revised
Statute sections 511.800, 511.804, 511.808 and 511.812)
which provide that when a settlement offer which meets
the requirements specified in these statutes, is rejected and
the judgment rendered is significantly less favorable to the
rejecting party than what was offered by the settlement
then the offering party shall recover litigation costs from
the rejecting party. Litigation costs include court costs,
reasonable fees of no more than two testifying experts, and
reasonable attorney fees. The offering party may only
recover litigation costs incurred after the date that the
rejecting party rejected the settlement.
The bill also proposes to expand the limited liability for
injuries or death from accidents associated with equine
activities found in Missouri Revised Statute section 537.325
to livestock sponsors, owners, facilities and auction markets
for injuries or death from accidents associated with
livestock activities.
HB 467/SB 209
These bills, if passed would extend the equine activity
liability found in Missouri Revised Statute section 537.325
to livestock activities.
This bill would also create a new statute (Missouri Revised
Statute section 514.075) which would provide that when a
court rules on a motion to dismiss for failure to state a claim
the court may award costs and reasonable attorney’s fees
to the prevailing party as the court determines are
equitable and just.
HB 414
This bill would add a new statute (Missouri Revised Statute
section 316.260) that would prohibit an action against an
amusement park owner or operator for damages or injuries
sustained due to a defect or unsafe condition unless written
or verbal notification has been given to the owner or
operator within two business days of the alleged damage
or injury and written notification has been given within 30
days of the damage or injury. The amusement park would
be required to post a sign at the main entrance stating that
notification of injuries and potential claims must be made
within two business days of the injury.
As of the time of the last MODL Board meeting (January 26,
2015) the deadline for introducing new bills had not passed.
The MODL Board will continue to monitor the bills
mentioned above as well as any later filed bills and may
testify in support or opposition to bills that are particularly
relevant to the defense bar or their clients.
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Where Are They Now?
A Review of 2014 Cases in Which MODL Filed an Amicus Brief
n
by Emily Little s Ford, Parshall & Baker s Columbia, Mo.
n
Dutton v. American Family Mutual
Insurance Co., SC94075.
Attorneys Dale Beckerman and Mimi Doherty of Deacy
& Deacy authored an Amicus brief on behalf of MODL
supporting the proposition that the Motor Vehicle
Financial Responsibility Law (MVFRL) does not require
an "owner's policy" to extend automobile liability
insurance for a vehicle that is owned by the insured
but not designated as a covered vehicle in the policy.
In an opinion issued on February 3, 2015, the Missouri
Supreme Court affirmed the judgment in favor of
American Family and held that the MVFRL only
requires coverage of "specifically designated vehicles
and of other vehicles used by the insured but that are
not owned by the insured."
n
Decormier v. Harley‐Davidson Motor Co.
Group, 446 S.W.3d 668 (Mo. banc 2014).
Attorneys Jill Jackson and Michael Robertson of Ford,
Parshall & Baker filed an Amicus brief on behalf of
MODL advocating that an executed Release discharged
the defendants from liability for negligence. The
Supreme Court affirmed the trial court's grant of
summary judgment and held that the plaintiff failed to
demonstrate a genuine dispute regarding whether the
defendants acted in "reckless disregard" for the
plaintiff's safety, and failed to show that the release
was unenforceable. Id. at 669.
n
Nail v. Husch Blackwell Sanders, LLP,
436 S.W.3d 556 (Mo. banc 2014).
Templemire v. W&M Welding, Inc.,
433 S.W.3d 371 (Mo. banc 2014).
Attorneys Gary Willnauer, Peggy Wilson and Michael
Kelly of Morrow, Willnauer, Klosterman, Church filed
an Amicus Brief on behalf of MODL urging the Missouri
Supreme Court to uphold the "exclusive cause"
standard for retaliatory discharge claims pursuant to
Missouri Revised Statute section 287.780. The
Supreme Court decided to overrule prior cases and
held that an employee need only demonstrate that the
filing of a workers' compensation claim was a
"contributing factor" in order to make a submissible
case under section 287.780. Id. at 373 (overruling
Hansome v. Northwestern Cooperage, Co., 679 S.W.2d
273 (Mo. banc 1984) and Crabtree v. Bugby, 967
S.W.2d 66 (Mo. banc 1998)).
Attorney Bryan Nickell of Blanton, Rice, Nickell, Cozean
& Collins filed an Amicus brief on behalf of MODL
encouraging the Missouri Supreme Court to uphold
the law regarding the burden of proof to establish
causation and damages in legal malpractice claims.
The Supreme Court affirmed the trial court's grant of
summary judgment in favor of Husch Blackwell on the
grounds that the plaintiff failed to prove that the firm's
alleged negligence caused his damages. Id. at 558.
If your firm would like to request MODL amicus assistance, please go to www.modllaw.com, click on "Amicus Briefs,"
download the Amicus Committee Request form and email it to the Chair of the Amicus Committee, Elizabeth Raines,
raines@hugheshubbard.com. The submission of Amicus Curiae briefs is governed by Missouri Rule of Civil Procedure
84.05(f).
~9~
Reservation of Rights in Missouri
by Libby Weber and James Howard s Rogers, Ehrhardt, Weber & Howard, LLC s Columbia, Mo.
On September 2, 2014, the Missouri Western District Court
of Appeals handed down its decision in Advantage Buildings
& Exteriors, Inc. v. Mid‐Continent Casualty Company.1 This
case will have a significant impact on the handling of
Reservation of Rights (“ROR”) letters in Missouri, and all
insurance defense counsel and insurers must take note of this
decision. It is essential to understand that in this case even
though the insurer’s coverage position was correct and the
insurer won its declaratory judgment action, the insurer
was still liable for bad faith because of an improper
Reservation of Rights and improper handling of the claim.
Facts of Advantage Buildings Case
Advantage Buildings & Exteriors was the manufacturer and
supplier of exterior wall panels for a State Farm office
building being constructed by general contractor Walton
Construction Company. Alsation Land Company was the
owner of the building. Alsation sued Advantage Buildings,
along with Walton Construction Company, claiming that the
exterior panels were defective and installed incorrectly.
Advantage Buildings was insured by Mid‐Continent Casualty
Company.
Mid‐Continent sent a ROR letter to Advantage Buildings
shortly after the suit was filed. The ROR letter was typical in
that it contained long quotations from the insurance policy
and advised Advantage Buildings that there may not be
coverage for the claim. Mid‐Continent also advised that it
would continue its investigation and let Advantage know of
its decision and other pertinent facts it discovered. A second
ROR letter sent one month later was nearly identical.
Shortly after sending the second ROR letter, Mid‐Continent
determined that its policy only provided coverage for a
limited amount of the claimed damages; namely, the interior
damage to the building. Mid‐Continent also knew that
Advantage faced significant damages (in the millions of
dollars) and that the overwhelming majority of the damages
would not be covered by the policy. However, Mid‐Continent
did not advise Advantage of this determination. A mediation
was held approximately two years into the case, by which
time Mid‐Continent still had not advised Advantage Buildings
that most of the damages would not be covered by the policy
or explained why the policy excluded coverage for most of
those damages. Nor did Mid‐Continent advise Advantage
Buildings that they should attend the mediation so as to
negotiate regarding the uncovered portion of damages. Five
days after the mediation (and only four days prior to trial),
Mid‐Continent finally advised Advantage Buildings of its
coverage determinations and the fact that most of the
damages would not be covered. The Plaintiff made
settlement demands within policy limits and Mid‐Continent
failed to respond to those demands, likely because Mid‐
Continent believed it only covered a very small portion of the
damages. Just before the trial was to begin, Mid‐Continent
filed a declaratory judgment action arguing that its policy did
not cover the damages claimed by Alsation Land Company.
The Plaintiff and Advantage Buildings then entered into a
Missouri Revised Statue section 537.065 agreement, in which
Advantage Buildings agreed to sue Mid‐Continent for bad
faith and to give Alsation Land Company the proceeds of the
suit. Alsation Land Company agreed to accept those damages
as full satisfaction of its claim against Advantage Buildings.
The parties then held a bench trial that resulted in a
judgment of $4,604,000 (with credits to be applied for a
$2,400,000 settlement the plaintiff had entered into with
Walton Construction Company and the third party defendant
who actually installed the panels). Advantage Buildings
brought its bad faith action against Mid‐Continent in the form
of a counterclaim in the declaratory judgment action already
filed by Mid‐Continent.
The Trial Court Outcome
Mid‐Continent won the declaratory judgment portion of the
case on summary judgment, with the Court declaring that its
policy did not provide coverage for the claim filed against
Advantage Buildings by Alsation Land Company. Due to the
existence of a disputed fact, however, the bad faith portion
of the case proceeded to trial.
The jury found in favor of Advantage Buildings on the bad
faith claim and awarded $3,000,000 in compensatory
damages and $2,000,000 in punitive damages.
~ 10 ~
“Reservation of Rights” >p11
Reservation of Rights (from page 10)
The Appellate Court Decision
On appeal, the Western District affirmed the finding that
Mid‐Continent was liable for compensatory damages.
However, due to an error in the jury instructions, the court
remanded the case for re‐trial on the issue of the amount of
the compensatory damages, as well as liability for, and
amount, of punitive damages. The issue of liability for
compensatory damages for bad faith was not remanded,
which means the Western District’s decision on the bad faith
issues remains in place.
Problems with the Reservation of Rights
Letter
In affirming the decision that Mid‐Continent is liable for
compensatory damages for bad faith, the Court stressed that
Mid‐Continent’s ROR letter did not properly reserve its rights.
Because Mid‐Continent did not properly reserve its rights, it
was estopped from denying coverage even though the
declaratory judgment action had been resolved in its favor.
Furthermore, because Mid‐Continent did not properly
reserve its rights, the full amount of its insurance policy limit
was in play, and its refusal to settle within that policy limit
amounted to bad faith.
According to the Court, Mid‐Continent’s ROR letter was not
timely, clear, unambiguous, and did not fully inform the
insured of Mid‐Continent’s position. It also did not explain
how specific policy provisions were relevant and how they
applied. Mid‐Continent also failed to send a follow up when
new coverage determinations were made and its
investigation was complete.
The ROR letter sent by Mid‐Continent was very typical for the
industry. The letter quoted specific policy language, gave a
summary of the facts of the case, and advised the insured
that there may not be coverage. Most ROR letters are very
similar to this as most insurers have been following the
previously understood wisdom, that as long as all applicable
policy provisions appear in the ROR, the insurer preserves its
defenses. Advantage Buildings dictates that this process is
no longer sufficient.
the mediation, the failure to split the coverage/defense files
until just before trial, failure to respond to settlement
demands, and intentional disregard of the financial interests
of its insured.
Future Handling of Reservation of Rights
While the Advantage Buildings decision certainly calls into
question long‐held ROR practices, the decision does little to
explain what adjustments are necessary to avoid a similar
outcome in the future. Without clarification from the Court,
there is a wide spectrum of available actions on how to
handle ROR letters going forward.
On one side of this spectrum is simply to do nothing, and
make no changes to ROR handling. This reaction is based on
a view that the extreme facts of the Advantage Buildings case
alone, and not the ROR letters, were the basis for the bad
faith decision. At the far other end is the view that the Court’s
decision specifically targeted the ROR letters, their contents
(or lack thereof), and the insured’s understanding of the
coverage decision. This view necessitates a complete
overhaul and expansion of the ROR process to include more
detailed ROR letters, continued monitoring of the suit by
coverage counsel, ROR supplements and follow‐ups with the
insured throughout discovery, before mediation, and before
trial, all in an effort to ensure the insured has been
thoroughly advised of coverage defenses and understands
how they apply, how they affect the defense of the case, and
the insured’s own potential liability.
Ultimately, until these issues are clarified by the Court, the
exact method required to avoid bad faith will remain
unknown. Coverage counsel and in‐house attorneys will be
called upon to use their experience and knowledge to
determine the wisest course of action in handling ROR’s, in
spite of this uncertain environment.
Other Problems with the Handling of the
Claim
The Western District mentioned several other actions of Mid‐
Continent that it appeared to find troubling. These included
the failure to notify Advantage Buildings that it should attend
~ 11 ~
In an effort to aid these dicussions, MODL’s new
website will include a Defense Topic section where
comments can be left relating to important defense
issues. Once launched, ROR letters will be a listed
topic. MODL members are encouraged to leave their
comments on the ROR process and how any
adjustments are received by the Courts going forward.
What is Sepulcher?
by Chris Rackers
Schreimann, Rackers, Francka & Blunt, L.L.C
Jefferson City, Mo.
Most of the cases I am working on arise out of a motor
vehicle accident or an injury that allegedly occurred on
someone’s property. However, every five years or so, I am
involved in a case alleging a breach of the right of sepulcher.
The first thing I do is try to remember is how to pronounce it
— a feat I still have not accomplished.1 Then I have to hit the
books again, as I do not deal with it frequently enough to
remember exactly what the cause of action is or all of its
elements. Apparently sepulcher does not show up often in
appellate decisions either — a search of Missouri State Court
cases shows only 17 reported appellate decisions that even
mention the word “sepulcher.”
Missouri courts have long recognized a common law right of
sepulcher, which they have defined as “the right of the next
of kin to perform a ceremonious and decent burial of the
nearest relative and an action for the breach of that right.”2
The deprivation of the right of sepulcher typically involves a
physical intrusion, mishandling, or manipulation of the
deceased’s body or interference with the deceased’s
visitation, funeral, or burial.3
Sepulcher is not a property damage claim, as Missouri courts
have abandoned the "early fiction that the cause of action
[for interference with the right of sepulcher] rested on the
infringement of a quasi‐property right of the nearest kin to
the body."4 Instead, it is a tort claim.5 The damages are the
emotional distress and anguish to the next of kin for the
negligent handling or mistreatment of the body.6
Since the cause of action arises out of tort law, the first
question is who has a duty to allow the next of kin to control
the final disposition of the remains. Clearly those who
undertake that duty (funeral directors, cemeteries, etc.) owe
that duty to the next of kin. In McGathey and Augustine v.
Davis, 281 S.W.3d 312 (Mo. Ct. App. W.D. 2009), the Western
District addressed whether an individual who was not
contracted to handle the final arrangements has a duty under
the common law right of sepulcher. Defendant Matthew
Davis was using drugs with Amber McGathey when he found
Ms. McGathey dead.7 Several hours after finding her dead,
he wrapped her body in a mattress cover, secured it with duct
tape and speaker wire, and placed the body in his vehicle.8
Three days later he contacted his attorney about the issue,
and his attorney contacted the police.9 Ms. McGathey’s
father was not allowed to view her body because of
decomposition.10 Her funeral services were closed casket.11
Ms. McGathey’s mother wanted her daughter to be buried
in a nightgown and wearing a family ring, which was not
possible due to the condition of the body.12 The deceased’s
parents sued Mr. Davis for interference with the right of
sepulcher.13 A jury returned a verdict for Plaintiffs, awarding
them each $250,000.14 On appeal, Mr. Davis argued that he
had no duty of care toward Ms. McGathey’s body or her
parents.15 The Court of Appeals disagreed.16 Citing Maloney
v. Boatmen’s Bank, 232 S.W. 133, 139 (Mo. 1921), the Court
of Appeals explained Mr. Davis’ duty:
“Sepulcher” >p13
1
2
3
4
5
6
Pronunciation of sepulcher: [sep‐uh l‐ker].
Galvin v. McGilley Mem’l Chapels, 746 S.W.2d 588, 591 (Mo. Ct. App.
W.D. 1987).
Riley v. St. Louis County of Missouri, 153 F.3d 627, 630 (8th Cir. 1998).
Lanigan v. Snowden, 938 S.W.2d 330, 332 (Mo. Ct. App. W.D. 1997).
See McGathey v. Davis, 281 S.W.3d 312, 317 (Mo. Ct. App. W.D. 2009).
Id.; Jackson v. Christian Hosp. Ne.‐Nw., 823 S.W.2d 137, 138 (Mo. Ct.
App. E.D. 1992) ("The dominant determinant of the cause of action is
the mental anguish occasioned by the sight or knowledge of the
trespass on the body.").
7
8
9
10
11
12
13
14
15
16
~ 12 ~
Id. at 315.
Id.
Id. at 316.
Id.
Id.
Id.
Id.
Id.
Id. at 317.
Id. at 317‐18.
Sepulcher (from page 12)
There is a duty imposed by the universal feelings of
mankind to be discharged by someone towards the
dead; a duty, and we may also say a right, to protect
from violation; and a duty on the part of others to
abstain from violation …. and it would be discreditable
to any system of law not to provide a remedy in such
a case.17
on the basis of the child's age and such child's legal or
natural guardian, if any, shall be entitled to serve in the
place of the child unless such child's legal or natural
guardian was subject to an action in dissolution from
the deceased. In such event the person or persons
who may serve as next‐of‐kin shall serve in the order
provided in subdivisions (5) to (9) of this subsection;
The Court of Appeals made clear that everyone has a duty to
avoid violating the right of sepulcher.
5.
(b) If the deceased is a minor, a surviving parent who
has custody of the minor; or
In 2003, Missouri codified the long‐standing common law
right of sepulcher by enacting Missouri Revised Statute
section 194.119, which states, in pertinent part: “The next of
kin of the deceased shall be entitled to control the final
disposition of the remains of any deceased human being
consistent with all applicable laws, including all applicable
health codes.”18 The statute defines “right of sepulcher” as
“the right to choose and control the burial, cremation, or
other final disposition of a dead human body.”19
(c) If the deceased is a minor and the deceased's
parents have joint custody, the parent whose
residence is the minor child's residence for purposes
of mailing and education;
Chapter 194 also makes clear who has the right to assert a
claim of sepulcher. The statute requires that the person be
at least eighteen years old, mentally competent, and willing
to assume responsibility for the costs of disposition.20 The
statute then provides that the following persons are “next‐
of‐kin” in the priority listed in all cases relating to the custody,
control, and disposition of deceased human remains,
including the common law right of sepulcher:
1.
At attorney in fact designated in a durable power of
attorney wherein the deceased specifically granted the
right of sepulcher over his or her body to such attorney
in fact;
2.
For a decedent who was on active duty in the United
States military at the time of death, the person
designated by such decedent in the written instrument
known as the United States Department of Defense
Form 93, Record of Emergency Data, in accordance
with P.L. 109‐163, Section 564, 10 U.S.C. Section 1482;
3.
The surviving spouse;
4.
Any surviving child of the deceased. If a surviving child
is less than eighteen years of age and has a legal or
natural guardian, such child shall not be disqualified
(a) Any surviving parent of the deceased; or
6.
Any surviving sibling of the deceased;
7.
The next nearest surviving relative of the deceased by
consanguinity or affinity;
8.
Any person or friend who assumes financial
responsibility for the disposition of the deceased's
remains if no next‐of‐kin assumes such responsibility;
9.
The county coroner or medical examiner; provided
however that such assumption of responsibility shall
not make the coroner, medical examiner, the county,
or the state financially responsible for the cost of
disposition.21
Thus, like a claim for wrongful death, Missouri has defined
the class of people who may allege damages for violation of
the right of sepulcher, and the highest priority class member
is in the class entitled to assert the claim (e.g., if there is no
attorney in fact under section 194.119.2(1) and no designee
under section 194.119.2(2) but there is a surviving spouse,
the surviving spouse may assert a claim for violation of the
right of sepulcher).
The Missouri General Assembly provided protection for a
funeral director or establishment (it did not define
“establishment” but presumably this is a funeral home).
When “there is more than one person in a class who are
equal in priority, and a funeral director has no knowledge of
any objection by other members of such class, the funeral
“Sepulcher” >p14
17
18
19
McGathey, 281 S.W.3d at 317.
MO. REV. STAT. § 194.119.3 (2014).
Id. at § 194.119.1
20
21
~ 13 ~
Id. at § 194.119.2.
Id. at § 194.119.2 (1) ‐ (9).
Sepulcher (from page 13)
director or establishment shall be entitled to rely on and act
according to the instructions of the first such person in the
class to make arrangement” as long as that “person assumes
responsibility for the costs of disposition and no other person
in such class provides written notice of his or her objection.”22
Common defendants are funeral homes, cemeteries, and
other people or entities in the funeral and burial business.
Section 194.119.4 gives a funeral director or establishment
a comparative fault defense, providing that they may “rely
on and act according to the lawful instructions of any person
claiming to be the next‐of‐kin of the deceased,” and “the
relative fault … of such funeral director or establishment may
be reduced if such actions are taken in reliance upon a
person’s claim to be the deceased person’s next‐of‐kin.”
While the word “sepulcher” and the cause of action itself are
unusual, it is essentially a claim for emotional distress.
Anyone who comes into contact with a deceased person may
owe the next‐of‐ kin a duty under the next‐of‐kin’s right of
sepulcher. And, like wrongful death cases, there is a priority
of claimants. Finally, some defendants may be able to assert
familiar defenses, such as comparative fault.
e
22
e
e
Id. at § 194.119.7.
Understanding and Applying
Missouri Approved Jury Instructions
(MAI): A Primer
by Mary L. Reitz s Greensfelder, Hemker and Gale, PC s St. Louis, Mo.1
INTRODUCTION
The use of the Missouri Approved Jury Instructions (“the
MAI”)2 can be a daunting task for those not familiar with it
or more comfortable with federal jury instructions where
there tends to be more flexibility. Many trial attorneys dislike
preparing jury instructions in Missouri state court. There are
a variety of reasons for this, which this article will not
address.
Drafting instructions is not something that falls only to
plaintiffs’ counsel. Defense counsel must be familiar with
what instructions are required, how to object, if appropriate,
to the instructions plaintiff submits, and be adept at drafting
appropriate converse and affirmative defense instructions.
To do these things, defense counsel must be familiar with the
MAI.
The purpose of this article is to provide a primer on the use
of the MAI by giving a general outline of the types of
instructions generally given in a civil case. It is intentionally
broad and non‐specific rather than directed to instructing a
jury in a specific case so the reader may, hopefully, use the
article as a guideline of the types of instructions to consider
when preparing for a particular case.
“MAI Primer” >p15
1
Mary L. Reitz is an officer at Greensfelder, Hemker and
Gale, P.C. in the litigation department. Her practice is
concentrated in the areas of medical negligence, products
liability defense and representing professionals before the
Board of Registration for the Healing Arts. She is also the
author of the Missouri Jury Instruction Handbook and the
Missouri Trial Objections, published by ThomsonWest.
2
~ 14 ~
All references to “the MAI” or “MAI #__” are to Missouri
Approved Jury Instructions, Seventh Edition and its
current pocket part.
MAI Primer (from page 14)
THE RULES AND THE MAI TEXT
Certain items should be considered required reading before
preparing instructions pursuant to the MAI or participating
in a state jury instruction conference. Counsel should read
Missouri Rules of Civil Procedure 70.01, 70.02, and 70.03,
which govern instructions. Additionally, the sections “How to
Use This Book” and the “Why and How to Instruct a Jury” at
the front of the MAI text, should be reviewed. If a case
involves multiple claims or parties, it is helpful to review MAI
2.00, the general comment on submissions in multi‐party and
multi‐claim litigation. These items provide significant
information and help the practitioner become familiar with
the law and purpose of instructing the jury.
There are a few key features of Rule 70.02 that are necessary
to any discussion relating to the preparation of instructions.
First, the use of MAIs is mandatory. If there is no instruction
applicable to your case, then you must either modify an
existing MAI or draft a not‐in‐MAI instruction. In the author’s
experience, it is easier to draft a modified MAI than a not‐in‐
MAI. Rule 70.02 requires that where an MAI must be
modified or the use of a not‐in‐MAI is required, then “such
modifications or such instructions shall be simple, brief,
impartial, free from argument, and shall not submit to the
jury or require findings of detailed evidentiary facts.” Mo. R.
Civ. Pro. 70.02(b). Rule 70.02 also states that “[t]he giving of
an instruction in violation of the provisions of this Rule 70.02
shall constitute error, its prejudicial effect to be judicially
determined, provided that objection has been timely made
pursuant to Rule 70.03.” Mo. R. Civ. Pro. 70.02 (c). Rule 70.03
governs making objections to instructions. Objections must
be specific “stating distinctly the matter objected to and the
grounds of the objection . . .” and must be made prior to the
jury retiring to deliberate. Mo. R. Civ. Pro. 70.03.
Each instruction is set forth, followed by “Notes on Use”, a
“Committee Comment”, and Research References and
annotations, if they exist. The “Notes on Use” contain
important information about such things as when that
particular instruction is appropriate, what other instructions
must accompany a particular MAI, and occasionally, even the
order in which that instruction should be given within the
others being submitted. The “Committee Comment” may
provide information on the origin of the instruction, how a
revision to it may impact the need for other instructions, and
relevant case or statutory data. The “Research references”
and annotations provide guidance to relevant cases on topics
specifically related to a specific instruction. Reading these
sections helps prevent the practitioner from using the
instruction in an inappropriate circumstance or failing to
submit another required instruction. Reviewing the sections
in the “Table of Instructions” at the front of the MAI text,
helps the reader find other helpful instructions he or she may
not have thought to use.
THE INSTRUCTIONS
Before the Trial Begins
Instructions are the building block of a case. Verdict directors
provide information on what must be plead and proven to
obtain a judgment. This is valuable to the plaintiff and the
defendant. The damages instructions provide the language
the jury will hear when asked to award an amount to the
plaintiff. The instructions lay out the burden of proof and how
many jurors are required to agree on a verdict, something
that is not consistent in every state or even between state
and federal courts in the same state. Instructions are both
the building blocks for a case and a road map to discovery if
referenced throughout the case.
The basic anatomy of the MAI text is very simple and is
covered in the “How to Use this Book” section of the MAI.
~ 15 ~
In 2013, the Missouri Supreme Court approved MAI 2.00
(A), a Recommended Explanatory Instruction for Before
Jury Selection. This instruction is not mandatory, but the
author believes the practitioner should always consider
requesting the court give it. As technology becomes more
and more advanced, it becomes increasingly difficult to
keep outside influences from tainting your jury. This
instruction reminds members of the venire panel that
they should not use their electronic devises to send
information about the trial or research the parties,
attorneys, or other information about the case.
In 2013, the Missouri Supreme Court also approved MAI
2.00(B), a general comment on recommended
admonitions at recess or adjournment. (It was revised in
April 2014 and the new version became applicable on
January 1, 2015.) Each trial judge has his or her own
admonition at breaks and the end of the day. While this
is just a general comment and does not create a
mandatory instruction the judge must give, its presence
in the book creates a tool for counsel to discuss with the
judge the content of the admonition to be given in their
case.
“MAI Primer” >p16
MAI Primer (from page 15)
At The Beginning of Trial
MAI 2.01, INSTRUCTION FOR ALL CASES: This is the
introductory instruction read at the beginning of all civil
trials. While it is not read to the jury again at the close of
all of the evidence, it goes to the jury with the remainder
of the instructions when they retire to deliberate. It is
therefore important that it be included in the package of
instructions in the same format as read to the jury.
Paragraphs 12 on “Notetaking” and 13 on “Juror
Questions” are optional and the parties should discuss
with the court at the pretrial conference whether those
paragraphs will be included. The judge will often have
their own copy of this instruction ready to use, but to the
parties should have one ready for the court at the
beginning of the trial. This practice ensures that the
current version of MAI 2.01 is being used, and that it is
prepared and ready to include with the final package of
instructions.
At The Close of The Evidence
Instructions at the close of the case must submit the
claims and issues the jury is being asked to decide. If there
are multiple parties or multiple claims, consideration
must be given to packaging the instructions. Packaging is
done at the discretion of the court and is designed for
complex cases. Cases may be complex for a variety of
reasons. The most common reasons a case is complex is
that there are multiple defendants who have different
claims against them. A case is especially complex if the
plaintiffs seek different damages from each defendant or
some of the claims require intent (such as fraudulent
misrepresentation) and others do not (such as
negligence). While most trial attorneys prefer to think
only about winning their case when they are in the midst
of preparing jury instructions, it is wise to look ahead to
whether instructing the jury in a particular way will cause
or encourage reversible error. MAI 2.00 provides an
informative section on “Packaging”.
GENERAL INSTRUCTIONS FOR ALL CASES
MAI 2.01, INSTRUCTION FOR ALL CASES: As mentioned
above MAI 2.01 is included in the package sent to the jury,
but is not reread at the close of the evidence with the
other instructions.
MAI 2.03, ORDER OF INSTRUCTIONS: This is always the
first instruction read to the jury at the close of the
~ 16 ~
evidence and before closing arguments. It always follows
MAI 2.01 in the instruction package. MAI 2.01 and MAI
2.03 are the only two instructions that must be given in a
particular order according to the “Notes on Use.” Many
other instructions are typically given in a particular order,
but the trial judge has discretion as to the order in which
the other instructions are numbered and read.
MAI 2.02, FACTS NOT ASSUMED: This instruction must be
given in every case. If there are multiple claims being
packaged, it must be given with the general instructions
before the first MAI 2.05, commonly known as the
packaging instruction.
MAI 2.04, RETURN OF VERDICT: Again, this instruction
must be given in every case, and like MAI 2.02 it should
be included with the general instructions before the first
MAI 2.05 if the instructions are packaged by claim.
MAI 3.01, GENERAL BURDEN OF PROOF: This is the most
commonly used burden of proof instruction and should
be used unless a burden of proof instruction specific to
your case is available in the MAI. This instruction includes
the optional language for when punitive damages are to
be submitted to the jury. Unless there are multiple claims
being submitted with differing burden of proof
instructions, the MAI 3.01 should be included with the
general instructions in front of the MAI 2.05 packaging
instruction.
MAI 4.01, DAMAGES, PERSONAL AND PROPERTY: This is
the most commonly used damages instruction in civil tort
cases. The instruction contains optional language for
future damages. It also addresses submission of the
affirmative defense of Mitigation of Damages. Unless
there are multiple claims being submitted with differing
damages instructions, the MAI 4.01 should be included
with the general instructions in front of the MAI 2.05
packaging instruction. Other damage instructions are
available throughout the MAI for specific types of case.
The appropriate damages instruction for the particular
case to be tried should be selected when preparing the
instruction packet.
MAI 2.05, MULTI‐CLAIM SUBMISSIONS‐DESIGNATION OF
APPLICABLE INSTRUCTIONS, if needed: Not all multi‐
claim submissions must be packaged. For example if the
damages are identical for each claim, packaging would not
be needed. Multiple verdict directors, one for each claim,
could be given in one package with a modified verdict
form.
“MAI Primer” >p17
MAI Primer (from page 16)
CASE SPECIFIC INSTRUCTIONS
VERDICT DIRECTORS: There are numerous approved
verdict directors and the practitioner should be familiar
with those applicable to the case from the time the
petition is drafted or the answer is prepared. The verdict
directors deserve a great deal of attention throughout the
case and especially when determining the wording of the
specific instructions given at trial. Verdict directors have
the most opportunity for original drafting and create the
greatest risk for error. The categories of verdict directors
that can be found in the MAI address a variety of topics.
When looking for the verdict directors suitable to your
case, a review of the Table of Instructions is invaluable as
it may provide ideas for claims or affirmative defenses
that would not necessarily come to mind otherwise. It is
important to review the pocket part of the MAI for
instructions approved since the most recent edition was
published. Also review the Supreme Court Website for
new instructions that may have been approved since the
current pocket part was last published.
There are a number of instructions available to modify
other instructions when appropriate. One of the most
commonly used is MAI 19.01, the modification for a
verdict director when there are multiple causes of
damage that combined to cause injury. If there is a case
in which a plaintiff wants to make this modification and
provides legal support for it, MAI 4.01 should also be
modified per the “Notes on Use”, Number 3, citing
Carlson v. K‐Mart, 979 S.W. 2d 145 (Mo. banc, 1998).
Another example of an instruction available to modify
verdict directors is MAI 18.01, which provides the
directions for preparing a verdict director when agency is
in issue.
DEFINITIONS: Many terms used in instructions, especially
verdict directors, require definition. As a general rule, if
an MAI includes a term that must be defined, the “Notes
on Use” will indicate that requirement and direct the
practitioner to the appropriate definition. Most
definitions are found between MAI 11.01 and MAI 16.01.
An example of terms requiring definition are “negligence”
and “negligent”. Any time the words “negligence” or
“negligent” are used in an instruction, the term must be
defined. However, the exact definition of “negligence” to
be used depends on whose conduct is at issue. See MAI
11.01, et. seq. for the various definitions of “negligence”.
As mentioned, if an MAI includes a term that must
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be defined, the “Notes on Use” will indicate that
requirement and direct the practitioner to the
appropriate definition. See MAI 17.01, “Notes on Use” 2,
and MAI 33.03, “Notes on Use” 1 for examples.
CONVERSES: A defendant is entitled to one converse for
each verdict directing instruction submitted against it.
Defendants should use true converses and not affirmative
converses, because the appellate courts tend to dislike
affirmative defenses. A true converse simply allows the
defendant to remind the jury a part of plaintiff’s burden
is not met. A true converse begins with the language
“Your verdict must be for the defendant, unless you
believe” and then parrots that portion of the plaintiff’s
verdict upon which the defendant contends plaintiff did
not meet its burden. Alternatively, affirmative converses
place a burden on the defendant to provide evidence to
support a hypothesized ultimate issue, which, if true,
defeats plaintiff’s claim. See Hiers v. Lemley, 834 S.W.2d
729 (Mo. banc 1992) and MAI 33.05(1) “Notes on Use”
and “Committee Comment.” An affirmative converse
instruction is not an affirmative defense and is only
appropriate where the verdict director assumes as true
or omits a disputed ultimate issue. It is important to
remember that the defendant has the burden of
producing the evidence to support the affirmative
converse and bears the burden of persuasion on it. See
MAI 33.01, the General Comment on Converse
instructions for a more complete discussion of the use of
converse instructions in Missouri. See MAI 33.02, et. seq.
for other examples of conversing instructions. If plaintiff’s
verdict director is modified by MAI 19.01, the defendant’s
converse instruction must be modified by the same
language. See Hiers v. Lemley, 834 S.W. 2d 729, (Mo. banc,
1992).
AFFIRMATIVE DEFENSES: Whether an affirmative defense
instruction is given in a particular case depends on the
facts, the law, and to some degree, the defense strategy.
MAI 32.01 is the “General Comment” on affirmative
defense instructions. When an affirmative defense
instruction is given, it is important to distinguish between
complete affirmative defenses and those that essentially
submit comparative fault. This distinction impacts
whether the verdict director must be modified. If there is
a complete affirmative defense, then it is appropriate for
the verdict director to be modified with the “unless you
believe plaintiff is not entitled to recover by reason of
Instruction Number ____ (here insert number of the
“MAI Primer” >p18
MAI Primer (from page 17)
affirmative defense instruction)” seen in brackets at the
end of most verdict directors. However, if the affirmative
defense actually asserts comparative fault, then the
plaintiff’s verdict director should be modified to begin, “In
your verdict you must assess a percentage of fault to the
defendant [whether or not plaintiff was partly at fault] if
you believe:” See MAI 37.01.
VERDICT FORMS: Most verdict forms can be found at MAI
36.01, et. seq. Some specific verdict forms applicable to
only very specific actions, such as will contests and
uninsured motorist claims, have been moved into the
particular sections of the MAI. See MAI 15.10, MAI 12.07
and MAI 12.08. Additionally, the forms of verdict for
Comparative Fault claims are MAI 37.07 and MAI 37.09.
If a case involving multiple claims or multiple parties is
not packaged, the verdict form will generally need to be
modified to include multiple lines for finding for or against
plaintiff on each claim in one verdict form. See MAI
Illustration 35.05, Verdict A, for an example of such a
modification. If the claims or actions against separate
defendants are packaged, multiple verdict forms will be
needed.
MAI 10.06:
MAI 10.07:
MAI 10.08:
MAI 35.19:
Withdrawal Instructions
MAI 34.02:
MAI 34.06:
Punitive damages instructions
MAI 10.00:
MAI 10.01:
MAI 10.02:
MAI 10.03:
MAI 10.04:
MAI 10.05:
General Comment on Exemplary Damages
Outrageous Conduct ‐ Intentional torts
Negligence constituting conscious
disregard for others
Exemplary Damages, Multiple Defendants
Strict Liability, either product defect or
failure to warn submitted
Strict Liability, both product defect and
failure to warn submitted
Issues and evidence
Limiting Instruction
Explanatory Instruction
MAI 2.07:
Explanatory – Insurance Benefits
Instructions for Apportionment Between Defendants
MAI 2.05: Packaging
MAI 4.12, MAI 4.13, or MAI 4.14 modified: Damages
MAI 36.15 modified
See also Illustration MAI 35.05 and Illustration MAI 35.02
Comparative Fault Instructions
MAI 37.01:
MAI 37.03:
MAI 37.05:
MAI 37.08:
OTHER INSTRUCTIONS OF WHICH TO BE
AWARE
The MAI contains many instructions and verdict forms as well
as introductory material that is not addressed in this article.
Some of the instructions not mentioned may never be used
by a particular attorney due to the limitations of their
practice areas. However, there are a number of other
instructions, which may not be generally used or globally
applicable, that may be helpful to be aware of in any litigation
practice. Below is a list of these instructions, without specific
discussion, which would be helpful to review to increase a
general knowledge of the instructions available in the MAI:
Negligence and Strict Liability submitted
Modification of MAI 10.02 for submission
of specific acts and knowledge
Penalty and Attorneys Fees, Vexatious
refusal to pay by insurance company
Illustration, Punitive Damages, Bifurcated
Trial Under Section 510.263
Verdict directing Modification
Damages
Converse
Verdict form
Inconsistent or Erroneous Verdict
MAI 2.06:
Inconsistent or Erroneous Verdict
INSTRUCTION CONFERENCES
Counsel must be well‐prepared for the instruction
conference. If the judge has not required plaintiff to provide
draft instructions before trial, it is advisable to ask the Court
near the beginning of trial when the plaintiff is to provide
their instructions.
Objections to instructions are covered by Missouri Rule of
Civil Procedure 70.03. Objections must be specific and made
on the record before the jury retires to deliberate to be
preserved for appeal. The objections must also be reasserted
in the Motion for New trial. See MO. R. CIV. PRO. 78.07.
Counsel must object not only to the instructions given, but
to the failure to give a particular instruction. The objection
“MAI Primer” >p19
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MAI Primer (from page 18)
must be clear, specific and identify the exact instruction to
which it is made. For this reason, it is advisable to read as
many cases involving objections to instructions as possible
so that the key language the courts have used in finding
instructions objectionable can be included in your argument
on the record.
Judges will usually have a minimum of two instruction
conferences. The first is informal. Objections to the
submitted instructions are discussed off the record to see if
any of the issues can be resolved. At this conference,
general matters regarding the introductory instructions,
typographical errors, and packaging are addressed. The final
conference will be on the record after the court has been
through the instructions with the parties, numbered them,
and essentially ruled upon which instructions will be given.
It is important to remember that any objections to the
instructions made before the court reporter is present are
not on the record and not preserved for appeal. Additionally,
any instruction that is not submitted or rejected at this last
conference is also not preserved for appeal. For example, if
the plaintiff’s counsel voluntarily modifies the verdict director
to resolve objections, but does not submit the unmodified
version so the court rejects it, no error relating to the original
instruction is preserved. Counsel should cautiously identify
before the final conference the instructions to which he or
she will challenge and specifically note the objections to be
made so that nothing the attorney intends to say on the
record is overlooked. Failure to make an objection on the
record is fatal to an appeal based on the instructions.
CONCLUSION
Preparing instructions is not easy, but spending time to
become familiar with the MAI should hopefully reduce the
anxiety it sometimes causes. MAIs are complicated, but that
is only because the law is complicated. The MAI is
voluminous, but still cannot address every situation.
However, the MAI is user friendly. Gaining knowledge of what
the MAI contains and the rules require should reduce the risk
of creating error when drafting and objecting to instructions.
Preparing instructions will never be easy. A necessary part of
dealing with instructions is the instruction conference.
Knowing the procedure for the conference and how to
preserve the specific objections needed to successfully
appeal on the basis of instructional error is key. Hopefully,
however, the guidelines in this article will make addressing
instructions less daunting.
e
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Save the Date!
Missouri Organization
of Defense Lawyers
30th Annual Meeting
June 4‐6, 2015
Hilton Branson
Convention Center
Branson, MO
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