Missouri Limits Non-Economic Damages Awards For Uninsured Motorists

On September 11, 2013, the Missouri General Assembly voted to override Governor Jay Nixon's veto of legislation that will limit awards of non-economic damages in lawsuits filed by uninsured motorists. House Bill 339 will now go into effect in Missouri on October 11, 2013.

Under the new law, a driver who has failed to obtain insurance as required by previously enacted legislation waives the right to collect non-economic damages from a motorist who is in compliance with state insurance requirements. The uninsured motorist will still be able to collect damages for actual medical costs, property damages, cost of repair, and other such losses, but will not obtain an award for pain and suffering.

HB 339 is an example of the "no pay, no play" laws that have been enacted in as many as 10 other states. Supporters of these laws argue that there purpose is to increase the number of insured drivers by providing another disincentive to driving without insurance. Opponents argue that these measures unreasonably curtail an injured plaintiff's right to damages, even when the insured driver is 100% at fault.

The new law includes several exceptions and raises other threshold issues. For instance, a passenger of the uninsured motorist is not limited by this statute, whether or not the passenger is insured. Further, an uninsured driver may still be awarded non-economic damages if the accident was caused, in whole or in part, by the insured driver's operation of the vehicle under the influence of drugs or alcohol or if the insured driver is convicted of involuntary manslaughter or second degree assault. Also, the statute only applies to drivers who have been uninsured for over six months, so that a driver will not be penalized for merely being late to pay a premium.

Some of the mechanics of how the new law will operate in an actual lawsuit also remain unclear. The statute mandates that a jury is not to be informed of the uninsured driver's waiver or of the effect that the waiver will have on the amount of a plaintiff's recovery. Rather, the total amount awarded by a jury will be reduced by the amount of the verdict that represents compensation for non-economic losses. Presumably, therefore, an uninsured plaintiff will still be allowed to present evidence of non-economic damages and the jury will be required to itemize the verdict.

The legislation does not address whether the judge or jury will decide some of the threshold questions of fact that are determinative of whether the statute applies in a particular case. Disputes are sure to arise over whether a plaintiff was actually uninsured as described by the statute at the time of the collision, whether the defendant driver was in compliance with the financial responsibility laws, and the like. No direction is given as to how it will be "proven that the accident was caused, in whole or in part, by a tort-feasor who operated a motor vehicle under the influence of drugs or alcohol". There is no requirement that the driver be convicted of, or even charged with, driving under the influence. There is no requirement that influence of drugs or alcohol caused or contributed to the collision. There is no definition of the phrase "under the influence". More questions are raised than are answered.

Until Missouri courts have had the opportunity to deal with some of the issues raised by the legislation, defense attorneys would be well advised to include reference to this statute in their Answers to plaintiffs' Petitions, along with other standard affirmative defenses. While most standard discovery requests include information about insurance coverage, defense attorneys will want to include specific references to the issues raised by this statute in interrogatories and request for production of documents. The statute does not cut off an uninsured driver's access to the courts, but only limits the types of damages that can be awarded. Accordingly, it is unlikely that HB 339 will reduce the number of lawsuits, but by increasing the issues for discovery, for pre-trial disputes, and for trial, it is likely to increase defense costs.

LP Leritz & Plunkert, PC

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