The Missouri Court of Appeals (Western District) recently reversed a defense verdict because the trial court’s verdict directing instruction, taken from the Missouri Approved Instructions (MAI), didn’t accurately state the law applicable to Plaintiff’s claim.
In Gary Miller v. Norfolk Southern Railway Company, Plaintiff Miller sued his railroad employer based on the Federal Employer’s Liability Act (“FELA”). Miller claimed to have sustained cumulative injuries caused by defective locomotive cab seats. Specifically, he claimed that the railroad’s cab seats were “loose and wobbly” and they failed to protect him from excessive shock, jarring and vibration. This negligence caused him to suffer back injuries. The jury was instructed on two theories of recovery for Miller under the FELA: general negligence and negligence per se for violation of the Locomotive Inspection Act (“LIA”, 49 U.S.C. s. 20701 et seq.). The jury found for the railroad on both theories.
On appeal, Miller asserted that the trial court erred by refusing his proffered verdict director relating to his negligence per se theory, and by submitting an instruction that did not properly state the law applicable to his claim. The Court of Appeals agreed.
The Court of Appeals observed that the LIA supplements the FELA by imposing on railroads an absolute duty to provide safe locomotives. The LIA provides that railroads may only use locomotives that “are in proper condition and safe to operate without unnecessary danger of personal injury”. Pursuant to the LIA, the Federal Railroad Administration (“FRA”) promulgated regulations governing standards of care for locomotives, including cab seats. These regulations include 49 C.F.R. s. 229.119(a) which states that cab seats “shall be securely mounted and braced”.
The Court further noted that a railroad can violate the LIA by breaching the broad statutory duty to provide locomotives that are “safe to operate without unnecessary danger of personal injury” (the general statutory duty) or by failing to comply with regulations issued by the FRA (a specific regulatory duty).
Miller requested a verdict directing instruction on his negligence per se theory based on the railroad’s failure to comply with the specific regulatory duty, i.e. 49 C.F.R s. 229.119(a). He intended to forgo a verdict director based on the general statutory duty, i.e. 49 U.S.C. s. 20701. The approved instruction for an FELA claim based on an LIA violation tracks the language of the LIA’s general statutory duty. There is no approved instruction that tracks a specific regulatory duty. The trial court refused Plaintiff’s proffered instruction and instead gave Defendant’s instruction that was based on MAI.
The Court of Appeals concluded that the difference between proceeding under a theory that the railroad violated a specific regulatory duty - as opposed to the general LIA statutory duty - is significant. A violation of the general statutory duty required Plaintiff to prove that the railroad’s cab seats were not “safe to operate without unnecessary danger of personal injury”. This proof is not required when a railroad allegedly violates a specific regulatory duty because regulations promulgated by the FRA pursuant to the LIA have already been supported by a finding that the regulation is necessary to eliminate unnecessary danger of personal injury.
The Court added that the lack of an approved instruction based on the specific regulatory duty didn’t bar Miller from submitting his theory to the jury, nor did this relieve the trial court of its duty to accurately instruct the jury on applicable regulatory standards.
On October 29, 2019, the Supreme Court of Missouri, in State ex rel. Key Insurance Company v. Roldan, held Missouri courts may exercise personal jurisdiction over a foreign corporation when the corporation has made at least one contact with Missouri and Plaintiff’s tortious cause of action arises out of that contact.
Plaintiff Phillip Nash, a resident of Missouri, was involved in a motor vehicle collision with Josiah Wright in Jackson County, Missouri. Defendant Key Insurance Company, a Kansas corporation, insured Nash’s vehicle, through its policy issued to Nash’s daughter, a Kansas resident. Key Insurance denied Nash’s claim for coverage. Wright sued Nash in Jackson County and was later awarded $4.5 million in arbitration. Jackson County Circuit Court confirmed the award as a final judgment. Nash then sued Key Insurance in Jackson County Circuit Court to collect insurance proceeds in a classic § 537.065 agreement. (See our July 2017 blog on amendments to § 537.065, and how these agreements work.) Nash specifically alleged that Key Insurance committed the tort of bad faith refusal to settle. Key Insurance moved to dismiss Nash’s claim for lack of personal jurisdiction. The trial court denied the Motion to Dismiss. Key Insurance thereafter petitioned the Missouri Court of Appeals for a Writ of Prohibition, which was denied. But in January 2019, Key Insurance petitioned the Supreme Court of Missouri, and the Supreme Court surprisingly issued a Preliminary Writ of Prohibition, agreeing to hear defendant’s claim of lack of jurisdiction.
Key Insurance argued that the Circuit Court usurped its jurisdiction on two grounds: (1) Key
Insurance’s alleged conduct did not fall within Missouri’s long-arm statute, and (2) Key Insurance did not have sufficient minimum contacts with Missouri to satisfy the requirements and protections of the Due Process Clause.
The Missouri Supreme Court held that Missouri’s long-arm statute gives Missouri courts personal jurisdiction over a foreign corporation that commits a tortious act within Missouri. The Court found that Nash made a prima facie showing as to his tort claim against Key Insurance. In so finding, Key Insurance’s alleged conduct – its alleged bad faith refusal to settle - did fall within Missouri’s long-arm statute. The Court reasoned that because Nash’s cause of action arose out of a contract to insure property at risk in Missouri, Nash’s claim was proper under Missouri’s long-arm statute. Additionally, Nash resided in Jackson County, Missouri, and the $4.5 million judgment against Nash was confirmed by the Jackson County Circuit Court.
The Supreme Court also held that one contact with Missouri – the contact being the tortious act itself – is sufficient to satisfy constitutional due process protections. The Court reasoned that because Nash’s claim arose out of Key Insurance’s tortious contact with Missouri, Key Insurance’s contact was sufficient alone to satisfy constitutional due process.
The Supreme Court of Missouri therefore concluded that Key Insurance was not entitled to a Writ of Prohibition, and that the trial court had personal jurisdiction over the Kansas insurer. The Supreme Court quashed its preliminary writ of prohibition, allowing Nash to proceed to trial, and pursue damages against Key Insurance for bad faith refusal to settle.
Insurers and insureds alike take notice of these cases and the protections and pitfalls afforded under RSMo. § 537.065. Even with the recent statutory changes and additional requirements of a valid § 537.065 agreement, insurers should be wary and cautious in coverage determinations and any cases where § 537.065 could be properly exercised by the insured defendant.
In Eoff v. McDonald, the Supreme Court of Missouri upheld a St. Louis County circuit judge’s refusal to allow plaintiffs’ counsel additional time during jury selection to ask the “insurance question”, after counsel forgot to do so earlier when it was his turn to question potential jurors. The decision hinged on the determination that the right to ask the question is not absolute and must follow a procedure designed to balance the plaintiff’s right to ask the question to ensure a fair and impartial jury with potential prejudice to the defense by unduly highlighting the insurance issue.
It is common practice for Missouri plaintiff counsel, consistent with the holding in Ivy v. Hawk, 878 S.W.2d 442 (Mo. banc 1994) (reversing and ordering new trial where trial court failed to allow plaintiffs’ counsel to ask prospective jurors the preliminary insurance question), to question potential jurors whether they have a financial interest in the defendant’s malpractice insurer. Ivy is one in a long line of Missouri cases holding a trial court must permit this even though evidence of a defendant’s liability insurance is inadmissible under the collateral source rule. The Ivy opinion explains the proper procedure: (1) obtain the court’s approval outside the jury panel’s presence; (2) ask only one "insurance question;" and, (3) do not ask it first or last in a series of questions so as to avoid unduly highlighting it. The form of the question is at the trial court's discretion – it generally encompasses whether any members of the panel or their families work for or have a financial interest in the named insurance company.
The Eoff plaintiffs sued a physician and her employer for the alleged wrongful death of their daughter during delivery at birth. During discovery, the physician disclosed the identity of her medical malpractice insurer, a small insurance company located nearly 300 miles from St. Louis County. At trial, Plaintiffs’ counsel submitted to the court in writing his proposed insurance question for jury selection. Defense counsel did not object, and counsel proceeded with lengthy jury selection, covering 173 pages of trial transcript. Plaintiffs’ counsel concluded his questioning without asking the insurance question, apparently forgetting to do so. After realizing his mistake, Plaintiffs’ counsel sought the court’s permission for additional time to ask the question after defense counsel’s final question. Plaintiffs’ counsel indicated he would ask the question as the second of three additional questions. The trial judge denied the request because she believed the risk of prejudice to the defense by unduly highlighting the insurance issue outweighed any prejudice to plaintiffs, especially considering the insurance company was small and located across the state.
After a six-day jury trial resulting in a defense verdict, the trial judge denied the plaintiffs’ motion for new trial. The plaintiffs appealed, and the Missouri Court of Appeals, Eastern District, reversed and remanded for a new trial based on the trial judge’s refusal to allow Plaintiffs’ counsel to ask the insurance question. The Supreme Court of Missouri accepted the case for review.
The Supreme Court of Missouri disagreed with the Court of Appeals, and affirmed the trial court’s decision and jury verdict. The Supreme Court held that Ivy neither affords plaintiff counsel the unqualified right to ask the insurance question nor divests a trial court’s discretion to control the timing and sequence of jury selection. The Eoffs’ counsel failed to follow the procedure set forth in Ivy, and therefore waived the right to ask the insurance question. Under Ivy, a new trial is warranted only if a trial court denies the right to ask a proper insurance question. Here, it was not incumbent on the trial court to permit the Eoffs’ counsel a second chance.
The Eoff opinion breathes new life into a mainstay of the jury selection process for many Missouri medical negligence jury trials. The holding confirms the right to ask the insurance question. But it also emphasizes both the importance of following proper procedure, and the trial court’s discretion in conducting jury selection and balancing the right to ask the question with the risk of potential prejudice. Eoff serves as a stark warning to trial counsel to remember to ask the insurance question, and to do so at the appropriate time.
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