Missouri's New Uninsured Motorist Law Precludes Uninsured Driver's Right to Non-Economic Damages

ABSTRACT: It is now incumbent upon defense counsel to conduct discovery regarding plaintiff's insurance coverage, and plead the new statute as a defense where appropriate. The new law, however, may face challenges from plaintiffs' counsel on state constitutional grounds.

On September 22, 2013, the Missouri General Assembly took up and overrode Govern Jay Nixon’s veto of House Bill No. 339. According to the new law – Section 303.390 of the Missouri Revised Statutes – an uninsured motorist forfeits his right to recover non-economic damages against an insured driver where the insured driver is alleged to be at fault. In other words, Section 303.390 states that if an uninsured driver is negligently hit by an insured driver, the uninsured driver, even with zero percent fault for the accident, cannot obtain an award for non-economic damages, which include: pain and suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of consortium, and loss of capacity to enjoy life.

Section 303.390 does not apply, however, where the insured tortfeasor is under the influence of drugs or alcohol or is subsequently convicted of involuntary manslaughter or assault in the second degree as a result of the accident. Additionally, the limitation for non-economic damage award does not apply to passengers in an uninsured driver’s vehicle and does not limit the recovery of benefits provided for economic losses.  Even with these limitations, this new law significantly changes the landscape of automotive negligence cases in Missouri, as it eliminates an entire category of damages available to an uninsured plaintiff.  

Governor Jay Nixon had previously vetoed House Bill No. 339 on July 3, 2013.  In a letter drafted to the Missouri Secretary of State, Governor Nixon stated that he vetoed the bill because it lacked adequate definition of key terms – particularly the term “uninsured” was left without any definition. The Governor’s critique was echoed by The Missouri Bar Association, which noted that the bill was inconsistent when referring certain key terms like “insured drivers”, sometimes calling them “persons in compliance with the financial responsibility laws”.  Governor Nixon also said the bill lacked clarity as to whether it would bar an uninsured motorist from a cause of action in its entirety or simply recovery from a category of damages.

The Governor also stated that it was unclear how the exceptions to the waiver would apply under Section 303.390.1. He argued that the waiver of non-economic damages does not apply if it is proven the insured motorist was under the influence of drugs or alcohol or was convicted of involuntary manslaughter or assault in the second degree as a result of the accident. However, the foregoing are questions of fact which normally are posed to the juries, yet under Section 303.390.3(2), the trier of fact is prohibited from being informed of such waivers. Thus, in the Governor’s view, the Bill lacked significant clarity as to whether the application of the waiver provision is a factual determination for the jury or a legal determination for the judge.

However, the Missouri General Assembly disagreed with the Governor, and sided with proponents of the newly enacted statute who viewed it as necessary because approximately 22 percent of Missouri drivers are uninsured, and the law will incentivize the purchase of the legally required insurance.

From a litigation standpoint, Section 303.390 is likely to become the subject of state constitutional challenge, based on the July 2012 Missouri Supreme Court in Watts v. Lester E. Cox Medical Centers. There, the Court ruled that a non-economic statutory damages cap on medical negligence actions was unconstitutional, holding in a 4-3 ruling that such a statute infringed on the jury’s constitutionally-defined purpose of determining the amount of damages sustained by an injured party.  However, unless and until the newly enacted statute is overturned, defense counsel must be aware of the law’s ramifications. As with any statute that bars or limits recovery, it is now incumbent on defense counsel in any automotive negligence case to include Section 303.390 as an affirmative defense. Furthermore, defense counsel will need to draft and serve specific discovery relating to plaintiff’s automobile insurance coverage to determine if they meet the requirements set forth in Section 303.390.

The full impact of Missouri’s new uninsured motorist law has yet to be seen. However, it is safe to assume that this law could severely limit a plaintiff’s recovery in automotive litigation in Missouri. As such, all Missouri drivers need to be certain their automobile insurance is valid before getting behind the wheel and all Missouri attorneys need to be aware of this law prior to instituting or defending an automotive case in Missouri.