Forget the Soup: Missouri says “No Noneconomic Damages for You!” to Uninsured Motorists

“If you want to play, you gotta pay.” Stephen King, Duma Key

On October 11^th, 2013 after the Missouri Legislature was able to override a veto by Governor Jay Nixon, Missouri joined several other states in having a “No Pay, No Play” law on the books.[1] §303.390 RSMo 2015. The idea behind this law would seem to be to further punish those who drive in Missouri without having proper insurance. Essentially, the “No Pay, No Play” law prevents those who drive without insurance from recovering anything other than medical bills, lost wages and arguably lost earning capacity if they are injured in an accident. (See, footnote 3). This new law states as follows:

The Rule

Uninsured Motorist waiver of ability to collect non-economic damages, when-inapplicability, when.

303.390.

1. An uninsured motorist shall waive the ability to have a cause of action or otherwise collect for noneconomic loss against a person who is in compliance with the financial responsibility laws of this chapter due to a motor vehicle accident in which the insured driver is alleged to be at fault. For purposes of this section, the term “uninsured motorist” shall include:

• An uninsured driver who is the owner of the vehicle;
• An uninsured driver who is the driver of the vehicle; and

Any uninsured nonpermissive driver. Such waiver shall not apply if it can 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, or who is convicted of involuntary manslaughter under subdivision (2) of subsection 1 of section 565.024, or assault in the second degree under subdivision (4) of subsection 1 of section 565.060.[1]

2. The provisions of this section shall not apply to an uninsured motorist whose immediately previous insurance policy meeting the requirements of section 303.190 was terminated or not renewed for failure to pay the premium, unless notice of termination or non-renewal for failure to pay such premium was provided by such insurer at least six months prior to the time of the accident.

3. In an action against a person who is in compliance with the financial responsibility laws prescribed by this chapter by a person deemed to have waived recovery under subsection 1 of this section:

• Any award in favor of such person shall be reduced by an amount equal to the portion of the award representing compensation for noneconomic losses;

• The trier of fact shall not be informed, directly or indirectly, of such waiver or of its effect on the total amount of such person’s recovery.

4. Nothing in this section shall be construed to preclude recovery against an alleged tortfeasor of benefits provided or economic loss coverage.

5. Passengers in the uninsured motor vehicle are not subject to such recovery limitation. (2015).

The Exceptions

Fortunately for uninsured drivers that are injured in an accident, there do appear to be a few exceptions to the general rule of no recovery for noneconomic loss for uninsured drivers.

First, if the uninsured injured driver can show that the driver who is found to have caused the accident was either:

• under the influence of drugs or alcohol at the time of the accident, or
• was convicted of involuntary manslaughter due to the accident; or
• convicted of assault in the second degree due to the accident, it appears the uninsured driver will be allowed to pursue both economic and noneconomic losses.

Second, if the uninsured driver can show that the last insurance policy that he/she had was valid under the Motor Vehicle Responsibility Law and was cancelled or not renewed merely due to failure to pay the premium on the policy, the uninsured driver can also pursue all damages. There is one catch to this second exception however. If there is evidence that proper notice of termination or non-renewal for failure to pay premiums was provided by the uninsured drivers’ insurance company at least six months prior to the time of the accident, the uninsured driver is still prevented from recovering noneconomic loss.   

The Problems

There are plenty of problems that can be seen in this legislation and several challenges to the law that are likely to happen in the future. At this time, it does not appear that any cases directly affected by this law have been litigated far enough for there to be any case law addressing any potential problems with §303.390. However, Governor Jay Nixon in explaining his veto of this statute in a letter to the Secretary of State of Missouri, provides some guidance regarding his reasoning for vetoing the law. Nixon was concerned with how unclear the language of the law was which he believed would lead to a lot of litigation as to how the law would be applied. (See, Letter to the Missouri Secretary of State from Governor Jay Nixon, July 3^rd, 2013), hereafter referred to as “Letter to the SOS from Governor Nixon”). For example, when enacting §303.390 the Missouri Legislature neglected to define several key legal terms in the law. Nixon noted the law does not define the meaning of “uninsured” despite the term being used repeatedly in the law. (See, Letter to the SOS from Governor Nixon). Also of note, is that the definitions section of RSMo §303 also lacks a definition for the term “noneconomic loss” nor does it state what specific, (presumably economic) damages are allowed to be recovered by the uninsured driver. §303.020 RSMo 2015. [1] Nixon also found the law confusing as to whether the new law completely prevented an injured uninsured driver from suing the person who hit them or if it just prevented said driver from trying to recover noneconomic loss. (See Letter to the SOS from Governor Nixon). Nixon was also worried as to what trial procedure would be required to apply the listed exceptions to §303.390.1. These exceptions would seem to be issues of fact which should be left to a jury to decide, but the law does not state whether the jury should be making these factual determinations or if it should be a legal determination left up to a judge. (See Letter to the SOS from Governor Nixon). Also troubling, are two constitutional issues that seem to be at play in applying this law:

1. First, is the possibility that this law is in violation of the Missouri Constitution regarding the right of a jury determination of damages in common law causes of action like negligence.
2. Second, is that the statute appears to also be in violation of the Equal Protection Clause of the Missouri Constitution, by treating similarly situated persons differently without adequate justification.

Specifically, it seems clear that the same argument that was used in Watts ex. rel. Watts v. Lester E. Cox Med. Ctrs. (Mo. 2012), that successfully struck down non-economic damages caps in medical negligence cases would be one good approach to challenging this law on constitutional grounds. Tort reform is an issue within the health care industry that has seen attention at both the state and national level. The Constitutionality of Caps: Upholding Missouri’s Right to Jury Trial and the Non-Economic Damages Debate, Missouri Law Review, Vol. 78, Iss. 2 (2013), Art. 12, 601. One aspect of tort reform involves capping damages in medical malpractice claims. Id. Missouri has capped damages since 1986 through Missouri Revised Statutes chapter 538, “Tort Actions Based upon Improper Health Care.” Id.   In Watts, the Missouri Supreme Court reversed the lower courts judgment and held that §538.210 [1] which the trial court used to cap the plaintiff’s non-economic damages at trial, violated the right to a trial by jury as guaranteed by the Missouri Constitution with regard to damages in a medical negligence case. Watts ex. rel. Watts v. Lester E. Cox Med. Ctrs. (Mo. 2012). In Watts, the Court held that section 538.210 was unconstitutional to the extent that it infringed on the jury’s constitutionally protected purpose of determining the amount of damages sustained by an injured party. Id. Such a limitation was not permitted at common law when Missouri’s Constitution was first adopted in 1820 and therefore it violates the right to trial by a jury as guaranteed by article I, section 22(a) of the Missouri Constitution. Id. It could be argued that the same principle applies to a cause of action for a personal injury due to negligent operation of a motor vehicle, as such a cause of action would have existed at the time the Missouri Constitution came into being, therefore a jury is then required to determine the amount of damages suffered by an injured party bringing such a claim. A statute such as 303.390 would appear to infringe on an uninsured plaintiff’s right to a trial by jury under such an analysis.

An equal protection argument would also be an approach with potential to challenge the statute. A similar issue was recently transferred to the Missouri Supreme Court in a case involving a wrongful death action in which noneconomic damages caps were applied. Dodson v. Ferrara, Cause No.’s ED100952 and ED101143 (Mo. App. 2015). In Dodson, the Plaintiffs are challenging the constitutionality of §538.210 based upon the distinction the law creates between medical negligence and wrongful death plaintiff’s by allowing medical negligence claimants to ask and receive non-economic damages without caps while not allowing plaintiffs in wrongful death cases to claim and receive non-economic damages without applying caps to them. Id. The Court transfer ruling notes the difference that currently exists in Missouri Law regarding the application of non-economic damages caps. Id. The Missouri Supreme Court has previously held in Sanders v. Ahmed, 364 S.W.3d 195 (Mo. Banc 2012), that because Wrongful Death is a statutorily created cause of action, the legislature can define the remedy available, and therefore damage caps do not violate the right to a jury trial. Id.   While in Watts ex. rel. Watts v. Lester E. Cox Med. Ctrs. (Mo. 2012), the Missouri Supreme Court held that because medical negligence was a common law cause of action that existed prior to the Missouri Constitution being drafted and was not a statutorily created cause of action, that there was a right to a trial by jury, which includes a jury’s determination of noneconomic damages. Id. So it would appear that the Plaintiff’s in Dodson cannot use the constitutional right to a trial by jury to protect their claims of non-economic damages from being capped.

However, Plaintiffs in Dodson have also brought before the court a new equal protection argument that wrongful death plaintiffs are similarly situated to other medical malpractice plaintiffs and because of that they must be treated the same under the law. Id. The Equal Protection Clause of Missouri’s Constitution states that “all persons are created equal and are entitled to equal rights and opportunity under the law.” Id., See also, Mo. Const. art. I, §2. The Appeals Court noted in its ruling in sending the matter to the Supreme Court, that the legislature may pass laws that treat different groups differently; however, similarly situated persons cannot be treated differently without adequate justification. Id. So the Court of Appeals forwarded the matter to the Missouri Supreme Court for a decision as to whether wrongful death and common law medical negligence plaintiffs are similarly situated and if so, whether or not the wrongful death claimants are being provided equal protection under the laws of Missouri when non-economic damages caps are applied to them, but not applied to the common law medical negligence cases. Id. This would seem to be similar to the successful argument that recently struck down the Oklahoma No Pay, No Play law. (See Footnote 1).

Further arguments could be made on appeal regarding some of the issues as to the law being confusing and ambiguous as discussed in the letter from Governor Nixon. This may result in court rulings that provide some clarity from the Courts as to how the law is to be applied; however, it would not appear that it would be a good approach should an attorney want to ask the court to actually strike the law down.[1]   This might be a useful approach in arguing a broader interpretation of noneconomic loss, i.e. as including lost earning capacity for example, should a constitutional challenge to the law not be successful.

Practical Application

At this point, it can be assumed that the law is mostly impacting attorneys and litigants in the pre-trial stage of a case. Insurance companies are using this law in negotiating any settlements with injured parties prior to attorney’s becoming involved in a case and they are targeting lower income claimants by immediately requiring proof of insurance from inner city residents. Plaintiff’s counsel must now be aware if their potential clients:

• had insurance at the time of the accident and if not,
• why it was cancelled or not renewed, and
• whether or not proper notice of the cancellation or nonrenewal was sent by the insurance company.

Should their potential clients not appear to have had insurance at the time of the accident, Plaintiff’s counsel will also need to obtain police reports so that they can further investigate whether or not the driver that their uninsured client wishes to sue for the accident was found to be under the influence of drugs or alcohol, and/or if any criminal charges have been brought against the driver that caused the accident. This will all determine what damages can be pursued on behalf of their client should suit be filed. At trial, Plaintiff’s counsel will have to properly object to the law being applied to preserve the matter for appeal. It would appear that there are several constitutional arguments that might be successful with regard to having this law struck down by the courts. Arguments as to the laws ambiguity might also be good to include as outlined above depending upon the damages claimed in the case at issue.

Defense counsel will be conducting the same investigations after suit is filed through the discovery process. Interrogatories will contain questions regarding the status of the Plaintiffs’ insurance at the time of the accident. Section 303.390 should also probably be listed by defense counsel among the Defendant’s Affirmative Defenses in his Response to the Plaintiff’s case. The statute will also come into play when jury instructions are being drafted regarding the determination of damages by the jury. Once the right case is found to challenge this law, it is certain that it will be challenged and it should be struck down. Until that happens, whether or not you have insurance when you get in an accident will matter. As the law in Missouri stands today injured uninsured drivers will be prevented in many cases from recovering all the damages that they have suffered as a result of being in an automobile accident that was not their fault.

[1] Alaska, California, Indiana, Iowa, Kansas, Louisiana, Michigan, New Jersey, North Dakota, and Oregon currently have “No Pay, No Play” laws on the books. The Oklahoma Supreme Court recently struck their “No Pay, No Play” law down as being in violation of an equal protection clause in the Oklahoma Constitution because the law “impacted less than an entire class of similarly situated claimants”. Montgomery v. Potter, 2014 OK 118 (Okla., 2014).

[2] Section 565.024.2 RSMo 2015 states that 1. A person commits the crime of voluntary manslaughter in the first degree if he or she: (2) While in an intoxicated condition operates a motor vehicle or vessel in this state and, when so operating, acts with criminal negligence to cause the death of any person;. Section 565.060.4 RSMo 2015 states that 1. A person commits the crime of assault in the second degree if he: (4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself; ;….(Note: the language of each of these Sections will change on January 1, 2017).

[3] One can assume that should they have thought about it, the legislature would have included something similar to the following language and definitions to make the law more clear as to what kind of damages a noninsured driver would be allowed to claim under the law. Section 538.205.2 RSMo 2015 defines “economic damages” as damages arising from pecuniary harm including, without limitation, medical damages, and those damages arising from lost wages and lost earning capacity. Section 538.205.8 RSMo 2015 defines “noneconomic damages” as damages arising from non-pecuniary harm including, without limitation, pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life, and loss of consortium, but shall not include punitive damages. As it stands, the vague term “noneconomic loss” has no specific definition

[4] The law at issue, §538.210(1) RSMo (2005), capped noneconomic damages in tort actions against healthcare providers at $350,000.00.

[5] The interpretation of a statute is a question of law, thus appellate review is de novo. Cook, et. al. v. Newman, M.D, 142 S.W.3d 880 (Mo. App. 2004). Only when a statute’s language is ambiguous or uncertain, or if its plain meaning would lead to an illogical result will extrinsic matters, such as the statues history, surrounding circumstances and objectives to be accomplished through the statute, be considered. Id. In construing an ambiguous statute, the ultimate guide is the intent of the legislature. Id. Furthermore, a presumption exists that the legislature acts with the knowledge of statutes involving similar or related subject matters. Id.