FIRST REGULAR SESSION
HOUSE COMMITTEE SUBSTITUTE FOR
HOUSE BILL NO. 393
93RD GENERAL ASSEMBLY
Reported from the Committee on Judiciary February 10, 2005, with recommendation that the House Committee Substitute for House
Bill No. 393 Do Pass.
STEPHEN S. DAVIS, Chief Clerk
To repeal sections 307.178, 355.176, 408.040, 490.715, 508.010, 508.040, 508.070, 508.120,
510.263, 510.340, 514.060, 516.105, 537.035, 537.067, 537.090, 538.205, 538.210,
538.220, 538.225, 538.230, and 538.300, RSMo, and to enact in lieu thereof twenty-four
new sections relating to claims for damages and the payment thereof.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 307.178, 355.176, 408.040, 490.715, 508.010, 508.040, 508.070,
508.120, 510.263, 510.340, 514.060, 516.105, 537.035, 537.067, 537.090, 538.205, 538.210,
538.220, 538.225, 538.230, and 538.300, RSMo, are repealed and twenty-four new sections
enacted in lieu thereof, to be known as sections 307.178, 355.176, 408.040, 490.715, 508.010,
508.011, 510.263, 510.265, 512.099, 514.060, 516.105, 537.035, 537.067, 537.090, 538.205,
538.210, 538.220, 538.225, 538.229, 538.232, 538.300, 1, 2, and 3, to read as follows:
307.178. 1. As used in this section, the term "passenger car" means every motor vehicle
designed for carrying ten persons or less and used for the transportation of persons; except that,
the term "passenger car" shall not include motorcycles, motorized bicycles, motor tricycles and
trucks with a licensed gross weight of twelve thousand pounds or more.
2. Each driver, except persons employed by the United States Postal Service while
performing duties for that federal agency which require the operator to service postal boxes from
their vehicles, or which require frequent entry into and exit from their vehicles, and front seat
passenger of a passenger car manufactured after January 1, 1968, operated on a street or highway
in this state, and persons less than eighteen years of age operating or riding in a truck, as defined
in section 301.010, RSMo, on a street or highway of this state shall wear a properly adjusted and
fastened safety belt that meets federal National Highway, Transportation and Safety Act
requirements; except that, a child less than four years of age shall be protected as required in
section 210.104, RSMo. No person shall be stopped, inspected, or detained solely to determine
compliance with this subsection. The provisions of this section shall not be applicable to persons
who have a medical reason for failing to have a seat belt fastened about their body, nor shall the
provisions of this section be applicable to persons while operating or riding a motor vehicle
being used in agricultural work-related activities. Noncompliance with this subsection shall not
constitute probable cause for violation of any other provision of law.
3. Each driver of a motor vehicle transporting a child four years of age or more, but less
than sixteen years of age, shall secure the child in a properly adjusted and fastened safety belt.
4. In any action to recover damages arising out of the ownership, common maintenance
or operation of a motor vehicle, failure to wear a safety belt in violation of this section shall not
be considered as evidence of comparative negligence. Failure to wear a safety belt in violation
of this section may be admitted to mitigate damages, but only under the following circumstances:
(1) Parties seeking to introduce evidence of the failure to wear a safety belt in violation
of this section must first introduce expert evidence proving that a failure to wear a safety belt
contributed to the injuries claimed by plaintiff;
(2) If the evidence supports such a finding, the trier of fact may find that the plaintiff's
failure to wear a safety belt in violation of this section contributed to the plaintiff's claimed
injuries, and may reduce the amount of the plaintiff's recovery by an amount not to exceed [one]
fifty percent of the damages awarded after any reductions for comparative negligence.
5. Each driver who violates the provisions of subsection 2 or 3 of this section is guilty
of an infraction for which a fine not to exceed ten dollars may be imposed. All other provisions
of law and court rules to the contrary notwithstanding, no court costs shall be imposed on any
person due to a violation of this section. In no case shall points be assessed against any person,
pursuant to section 302.302, RSMo, for a violation of this section.
6. The department of public safety shall initiate and develop a program of public
information to develop understanding of, and ensure compliance with, the provisions of this
section. The department of public safety shall evaluate the effectiveness of this section and shall
include a report of its findings in the annual evaluation report on its highway safety plan that it
submits to NHTSA and FHWA pursuant to 23 U.S.C. 402.
7. If there are more persons than there are seat belts in the enclosed area of a motor
vehicle, then the driver and passengers are not in violation of this section.
355.176. 1. A corporation's registered agent is the corporation's agent for service
of process, notice, or demand required or permitted by law to be served on the corporation.
2. If a corporation has no registered agent, or the agent cannot with reasonable
diligence be served, the corporation may be served by registered or certified mail, return
receipt requested, addressed to the secretary of the corporation at its principal office
shown in the most recent annual report filed under section 355.856. Service is perfected
under this subsection on the earliest of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the corporation; or
(3) Five days after its deposit in the United States mail, if mailed and correctly
addressed with first-class postage affixed.
3. This section does not prescribe the only means, or necessarily the required
means, of serving a corporation.
408.040. 1. Interest shall be allowed on all money due upon any judgment or order of
any court from the [day of rendering the same] date judgment is entered by the trial court
until satisfaction be made by payment, accord or sale of property; all such judgments and orders
for money upon contracts bearing more than nine percent interest shall bear the same interest
borne by such contracts, and, except as provided by subsection 3 of this section, all other
judgments and orders for money shall bear nine percent per annum until satisfaction made as
2. In tort actions, if a claimant has made a demand for payment of a claim or an offer of
settlement of a claim, to the party, parties or their representatives, and to such party's liability
insurer if known to the claimant, and the amount of the judgment or order exceeds the demand
for payment or offer of settlement, then prejudgment interest, [at the rate specified in subsection
1 of this section,] shall be awarded, calculated from a date [sixty] ninety days after the demand
or offer was [made] received, as shown by the certified mail return receipt, or from the date
the demand or offer was rejected without counter offer, whichever is earlier. [Any such demand
or offer shall be made in writing and sent by certified mail and shall be left open for sixty days
unless rejected earlier.] In order to qualify as a demand or offer pursuant to this section,
such demand must:
(1) Be in writing and sent by certified mail return receipt requested; and
(2) Be accompanied by an affidavit of the claimant describing the nature of the
claim and theory of liability, the nature of any injuries claimed and a computation of any
category of damages sought by the claimant with supporting documentation; and
(3) For wrongful death, personal injury, and bodily injury claims, be accompanied
by a list of the names and addresses of medical providers who have provided treatment to
the claimant or decedent for such injuries, copies of all reasonably available medical bills,
a list of employers if the claimant is seeking damages for loss of wages or earning, and
written authorizations sufficient to allow the party, its representatives, and liability insurer
if known to the claimant to obtain records from all employers and medical care providers;
(4) Reference this section and be left open for ninety days.
If the claimant fails to file a cause of action in circuit court prior to a date one hundred
twenty days after the demand or offer was received, then the court shall not award
prejudgment interest to the claimant. If the claimant is a minor or incompetent or
deceased, the affidavit may be signed by any person who reasonably appears to be
qualified to act as next friend or conservator or personal representative. If the claim is one
for wrongful death, the affidavit may be signed by any person qualified pursuant to section
537.080, RSMo, to make claim for the death. Nothing contained herein shall limit the right
of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise
provided by law or contract.
3. Notwithstanding the provisions of subsection 1 of this section, in tort actions, a
judgment for prejudgment interest awarded pursuant to subsection 2 of this section should
bear interest at a per annum interest rate equal to the intended Federal Funds Rate, as
established by the Federal Reserve Board, plus three percent. A judgment awarded for
post judgment interest should bear interest at a per annum interest rate equal to the
intended Federal Funds Rate, as established by the Federal Reserve Board, plus five
percent. The judgment shall state the applicable interest rate.
490.715. 1. No evidence of collateral sources shall be admissible other than such
evidence provided for in this section.
2. If prior to trial a defendant or his or her insurer or authorized representative, or any
combination of them, pays all or any part of a plaintiff's special damages, the defendant may
introduce evidence that some other person other than the plaintiff has paid those amounts. The
evidence shall not identify any person having made such payments.
3. If a defendant introduces evidence described in subsection 2 of this section, such
introduction shall constitute a waiver of any right to a credit against a judgment pursuant to
4. This section does not require the exclusion of evidence admissible for another proper
5. (1) Parties may introduce evidence of the value of the medical treatment
rendered to a party that was reasonable, necessary, and a proximate result of the
negligence of any party.
(2) In determining the value of the medical treatment rendered, there shall be a
rebuttable presumption that the dollar amount necessary to satisfy the financial obligation
to the health care provider represents the value of the medical treatment rendered. Upon
motion of any party, the court may determine, outside the hearing of the jury, the value of
the medical treatment rendered based upon additional evidence, including but not limited
(a) The medical bills incurred by a party;
(b) The amount actually paid for medical treatment rendered to a party;
(c) The amount or estimate of the amount of medical bills not paid which such
party is obligated to pay to any entity in the event of a recovery.
Notwithstanding the foregoing, no evidence of collateral sources shall be made known to
the jury in presenting the evidence of the value of the medical treatment rendered.
508.010. [Suits instituted by summons shall, except as otherwise provided by law, be
brought:] 1. As used in this section, "principal place of residence" shall mean the county
which is the main place where an individual resides in the state of Missouri. There shall
be a rebuttable presumption that the county of voter registration at the time of injury is
the principal place of residence. There shall be only one principal place of residence.
2. In all actions in which there is no count alleging a tort, venue shall be determined
(1) When the defendant is a resident of the state, either in the county within which the
defendant resides, or in the county within which the plaintiff resides, and the defendant may be
(2) When there are several defendants, and they reside in different counties, the suit may
be brought in any such county;
(3) When there are several defendants, some residents and others nonresidents of the
state, suit may be brought in any county in this state in which any defendant resides;
(4) When all the defendants are nonresidents of the state, suit may be brought in any
county in this state[;
(5) Any action, local or transitory, in which any county shall be plaintiff, may be
commenced and prosecuted to final judgment in the county in which the defendant or defendants
reside, or in the county suing and where the defendants, or one of them, may be found;
(6) In all tort actions the suit may be brought in the county where the cause of action
accrued regardless of the residence of the parties, and process therein shall be issued by the court
of such county and may be served in any county within the state; provided, however, that in any
action for defamation or for invasion of privacy the cause of action shall be deemed to have
accrued in the county in which the defamation or invasion was first published].
3. The term "tort" shall include claims based upon improper health care, under the
provisions of chapter 538, RSMo.
4. Notwithstanding any other provision of law, in all actions in which there is any
count alleging a tort and in which the plaintiff was first injured in the state of Missouri,
venue shall be in any county where the plaintiff was first injured by the wrongful acts or
negligent conduct alleged in the action.
5. Notwithstanding any other provision of law, in all actions in which there is any
count alleging a tort and in which the plaintiff was first injured outside the state of
Missouri, venue shall be determined as follows:
(1) If the defendant is a corporation, then venue shall be in any county where a
defendant corporation's registered agent is located or, if the plaintiff's principal place of
residence was in the state of Missouri on the date the plaintiff was first injured, then venue
may be in any county containing the plaintiff's principal place of residence on the date the
plaintiff was first injured;
(2) If the defendant is an individual, then venue shall be in any county of the
individual defendant's principal place of residence in the state of Missouri or, if the
plaintiff's principal place of residence was in the state of Missouri on the date the plaintiff
was first injured, then venue may be in any county containing the plaintiff's principal place
of residence on the date the plaintiff was first injured.
6. Any action, local or transitory, in which any county shall be plaintiff, may be
commenced and prosecuted to final judgment in the county in which the defendant or
defendants reside, or in the county suing and where the defendants, or one of them, may
7. In all actions, process therein shall be issued by the court of such county and may
be served in any county within the state.
8. In any action for defamation or for invasion of privacy, the plaintiff shall be
considered first injured in the county in which the defamation or invasion was first
9. In all actions, venue shall be determined as of the date the plaintiff was first
10. All motions to dismiss or to transfer based upon a claim of improper venue shall
be deemed granted if not denied within ninety days of filing of the motion unless such time
period is waived in writing by all parties.
11. In a wrongful death action, the plaintiff shall be considered first injured where
the decedent was first injured by the wrongful acts or negligent conduct alleged in the
action. In any spouse's claim for loss of consortium, the plaintiff claiming consortium shall
be considered first injured where the other spouse was first injured by the wrongful acts
or negligent conduct alleged in the action.
12. The provisions of this section shall apply irrespective of whether the defendant
is a for-profit or a not-for-profit entity.
13. In any civil action, if all parties agree in writing to a change of venue, the court
shall transfer venue to the county within the state unanimously chosen by the parties. If
any parties are added to the cause of action after the date of said transfer who do not
consent to said transfer then the cause of action shall be transferred to such county in
which venue is appropriate under this section, based upon the amended pleadings.
14. A plaintiff is considered first injured where the trauma or exposure occurred
rather than where symptoms are first manifested.
508.011. To the extent that rule 51.03 of the Missouri rules of civil procedure
contradicts any provision of this chapter, the provisions of this chapter shall prevail
regarding any tort claim.
510.263. 1. All actions tried before a jury involving punitive damages, including tort
actions based upon improper health care, shall be conducted in a bifurcated trial before the
same jury if requested by any party.
2. In the first stage of a bifurcated trial, in which the issue of punitive damages is
submissible, the jury shall determine liability for compensatory damages, the amount of
compensatory damages, including nominal damages, and the liability of a defendant for punitive
damages. Evidence of defendant's financial condition shall not be admissible in the first stage
of such trial unless admissible for a proper purpose other than the amount of punitive damages.
3. If during the first stage of a bifurcated trial the jury determines that a defendant is
liable for punitive damages, that jury shall determine, in a second stage of trial, the amount of
punitive damages to be awarded against such defendant. Evidence of such defendant's net worth
shall be admissible during the second stage of such trial.
4. Within the time for filing a motion for new trial, a defendant may file a post-trial
motion requesting the amount awarded by the jury as punitive damages be credited by the court
with amounts previously paid by the defendant for punitive damages arising out of the same
conduct on which the imposition of punitive damages is based. At any hearing, the burden on
all issues relating to such a credit shall be on the defendant and either party may introduce
relevant evidence on such motion. Such a motion shall be determined by the trial court within
the time and according to procedures applicable to motions for new trial. If the trial court
sustains such a motion the trial court shall credit the jury award of punitive damages by the
amount found by the trial court to have been previously paid by the defendant arising out of the
same conduct and enter judgment accordingly. If the defendant fails to establish entitlement to
a credit under the provisions of this section, or the trial court finds from the evidence that the
defendant's conduct out of which the prior punitive damages award arose was not the same
conduct on which the imposition of punitive damages is based in the pending action, or the trial
court finds the defendant unreasonably continued the conduct after acquiring actual knowledge
of the dangerous nature of such conduct, the trial court shall disallow such credit, or, if the trial
court finds that the laws regarding punitive damages in the state in which the prior award of
punitive damages was entered substantially and materially deviate from the law of the state of
Missouri and that the nature of such deviation provides good cause for disallowance of the credit
based on the public policy of Missouri, then the trial court may disallow all or any part of the
credit provided by this section.
5. The credit allowable under this section shall not apply to causes of action for libel,
slander, assault, battery, false imprisonment, criminal conversation, malicious prosecution or
6. The doctrines of remittitur and additur, based on the trial judge's assessment of the
totality of the surrounding circumstances, shall apply to punitive damage awards.
7. As used in this section, "punitive damage award" means an award for punitive
or exemplary damages or an award for aggravating circumstances.
8. Discovery as to a defendant's assets shall be allowed only after a finding by the
trial court that it is more likely than not that the plaintiff will be able to present a
submissible case to the trier of fact on the plaintiff's claim of punitive damages.
510.265. No award of punitive damages against any defendant shall exceed the
(1) Two hundred fifty thousand dollars; or
(2) Three times the net amount of the judgment awarded to the plaintiff against the
Such limitations shall not apply if the state of Missouri is the plaintiff requesting the award
of punitive damages, or the defendant pleads guilty to or is convicted of a felony arising out
of the acts or omissions pled by the plaintiff.
512.099. 1. In all cases in which there is a count alleging a tort, the amount of the
required undertaking or bond or equivalent surety to be furnished during the pendency
of an appeal or any discretionary appellate review of any judgment granting legal,
equitable, or any other form of relief in order to stay the execution thereon during the
entire course of appellate review shall be set in accordance with applicable laws or court
rules; except, that the total appeal bond or equivalent surety that is required of all
appellants collectively shall not exceed twenty-five million dollars, regardless of the value
of the judgment. Nothing in this section or any other provision of law shall be construed
to eliminate the discretion of the court, for good cause shown, to set the undertaking or
bond on appeal in an amount lower than that otherwise established by law.
2. If the appellee proves by a preponderance of the evidence that a party bringing
an appeal or seeking a stay, for whom the undertaking has been limited, is purposefully
dissipating or diverting assets outside of the ordinary course of its business for the purpose
of avoiding ultimate payment of the judgment, a limitation granted under subsection 1 of
this section may be rescinded and the court may enter such orders as are necessary to
prevent dissipation or diversion of the assets. An appellant whose bond has been reduced
under subsection 1 of this section shall:
(1) Provide to the court and appellee the most recent statement of assets and
liabilities of the appellant that is filed with any federal, state, or foreign regulatory agency;
(2) Provide to the court and appellee on a quarterly basis any subsequent updated
statement of assets and liabilities that is filed with any federal, state, or foreign regulatory
(3) Agree that it will not dissipate or divert assets outside the ordinary course of its
business for the purpose of avoiding ultimate payment of the judgment.
3. The provisions of this section shall apply to all judgments entered on or after
August 28, 2005.
514.060. In all civil actions, or proceedings of any kind, the party prevailing shall
recover his costs against the other party, except in those cases in which a different provision is
made by law. Costs shall include reasonable fees for travel, expert witnesses, videotaping,
and photocopying. The parties may make post-trial challenges to the reasonableness or
necessity of costs assessed under this section.
516.105. All actions against physicians, hospitals, dentists, registered or licensed
practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical
therapists, and any other entity providing health care services and all employees of any of the
foregoing acting in the course and scope of their employment, for damages for malpractice,
negligence, error or mistake related to health care shall be brought within two years from the date
of occurrence of the act of neglect complained of, except that:
(1) In cases in which the act of neglect complained of is introducing and negligently
permitting any foreign object to remain within the body of a living person, the action shall be
brought within two years from the date of the discovery of such alleged negligence, or from the
date on which the patient in the exercise of ordinary care should have discovered such alleged
negligence, whichever date first occurs; and
(2) In cases in which the act of neglect complained of is the negligent failure to inform
the patient of the results of medical tests, the action for failure to inform shall be brought within
two years from the date of the discovery of such alleged negligent failure to inform, or from the
date on which the patient in the exercise of ordinary care should have discovered such alleged
negligent failure to inform, whichever date first occurs; except that, no such action shall be
brought for any negligent failure to inform about the results of medical tests performed more than
two years before August 28, 1999; and
(3) In cases in which the person bringing the action is a minor less than eighteen years
of age, such minor shall have until his or her twentieth birthday to bring such action.
In no event shall any action for damages for malpractice, error, or mistake be commenced after
the expiration of ten years from the date of the act of neglect complained of or for ten years from
a minor's [twentieth] eighteenth birthday, whichever is later.
537.035. 1. As used in this section, unless the context clearly indicates otherwise, the
following words and terms shall have the meanings indicated:
(1) "Health care professional", a physician or surgeon licensed under the provisions of
chapter 334, RSMo, or a dentist licensed under the provisions of chapter 332, RSMo, or a
podiatrist licensed under the provisions of chapter 330, RSMo, or an optometrist licensed under
the provisions of chapter 336, RSMo, or a pharmacist licensed under the provisions of chapter
338, RSMo, or a chiropractor licensed under the provisions of chapter 331, RSMo, or a
psychologist licensed under the provisions of chapter 337, RSMo, or a nurse licensed under the
provisions of chapter 335, RSMo, or a social worker licensed under the provisions of chapter
337, RSMo, or a professional counselor licensed under the provisions of chapter 337, RSMo, or
a mental health professional as defined in section 632.005, RSMo, while acting within their
scope of practice;
(2) "Peer review committee", a committee of health care professionals with the
responsibility to evaluate, maintain, or monitor the quality and utilization of health care services
or to exercise any combination of such responsibilities.
2. A peer review committee may be constituted as follows:
(1) Comprised of, and appointed by, a state, county or local society of health care
(2) Comprised of, and appointed by, the partners, shareholders, or employed health care
professionals of a partnership or professional corporation of health care professionals, or
employed health care professionals of a university or an entity affiliated with a university
operating under chapter 172, 174, 352, or 355, RSMo;
(3) Appointed by the board of trustees, chief executive officer, or the organized medical
staff of a licensed hospital, or other health facility operating under constitutional or statutory
authority, including long-term care facilities licensed under chapter 198, RSMo, or an
administrative entity of the department of mental health recognized pursuant to the provisions
of subdivision (3) of subsection 1 of section 630.407, RSMo;
(4) Any other organization formed pursuant to state or federal law authorized to exercise
the responsibilities of a peer review committee and acting within the scope of such authorization;
(5) Appointed by the board of directors, chief executive officer or the medical director
of the licensed health maintenance organization.
3. Each member of a peer review committee and each person, hospital governing board,
health maintenance organization board of directors, and chief executive officer of a licensed
hospital or other hospital operating under constitutional or statutory authority, chief executive
officer or medical director of a licensed health maintenance organization who testifies before,
or provides information to, acts upon the recommendation of, or otherwise participates in the
operation of, such a committee shall be immune from civil liability for such acts so long as the
acts are performed in good faith, without malice and are reasonably related to the scope of
inquiry of the peer review committee.
4. Except as otherwise provided in this section, the proceedings, findings, deliberations,
reports, and minutes of peer review committees, or the existence of the same, concerning the
health care provided any patient are privileged and shall not be subject to discovery, subpoena,
or other means of legal compulsion for their release to any person or entity or be admissible into
evidence in any judicial or administrative action for failure to provide appropriate care. Except
as otherwise provided in this section, no person who was in attendance at any peer review
committee proceeding shall be permitted or required to disclose any information acquired in
connection with or in the course of such proceeding, or to disclose any opinion, recommendation,
or evaluation of the committee or board, or any member thereof; provided, however, that
information otherwise discoverable or admissible from original sources is not to be construed
as immune from discovery or use in any proceeding merely because it was presented during
proceedings before a peer review committee nor is a member, employee, or agent of such
committee, or other person appearing before it, to be prevented from testifying as to matters
within his personal knowledge and in accordance with the other provisions of this section, but
such witness cannot be questioned about testimony or other proceedings before any health care
review committee or board or about opinions formed as a result of such committee hearings.
5. The provisions of subsection 4 of this section limiting discovery and admissibility of
testimony as well as the proceedings, findings, records, and minutes of peer review committees
do not apply in any judicial or administrative action brought by a peer review committee or the
legal entity which formed or within which such committee operates to deny, restrict, or revoke
the hospital staff privileges or license to practice of a physician or other health care providers;
or when a member, employee, or agent of the peer review committee or the legal entity which
formed such committee or within which such committee operates is sued for actions taken by
such committee which operate to deny, restrict or revoke the hospital staff privileges or license
to practice of a physician or other health care provider.
6. Nothing in this section shall limit authority otherwise provided by law of a health care
licensing board of the state of Missouri to obtain information by subpoena or other authorized
process from peer review committees or to require disclosure of otherwise confidential
information relating to matters and investigations within the jurisdiction of such health care
537.067. 1. [In all tort actions for damages, in which fault is not assessed to the plaintiff,
the defendants shall be jointly and severally liable for the amount of the judgment rendered
against such defendants.
2. In all tort actions for damages in which fault is assessed to plaintiff the defendants
shall be jointly and severally liable for the amount of the judgment rendered against such
defendants except as follows:
(1) In all such actions in which the trier of fact assesses a percentage of fault to the
plaintiff, any party, including the plaintiff, may within thirty days of the date the verdict is
rendered move for reallocation of any uncollectible amounts;
(2) If such a motion is filed the court shall determine whether all or part of a party's
equitable share of the obligation is uncollectible from that party, and shall reallocate any
uncollectible amount among the other parties, including a claimant at fault, according to their
respective percentages of fault;
(3) The party whose uncollectible amount is reallocated is nonetheless subject to
contribution and to any continuing liability to the claimant on the judgment;
(4) No amount shall be reallocated to any party whose assessed percentage of fault is less
than the plaintiff's so as to increase that party's liability by more than a factor of two;
(5) If such a motion is filed, the parties may conduct discovery on the issue of
collectibility prior to a hearing on such motion;
(6) Any order of reallocation pursuant to this section shall be entered within one hundred
twenty days after the date of filing such a motion for reallocation. If no such order is entered
within that time, such motion shall be deemed to be overruled;
(7) Proceedings on a motion for reallocation shall not operate to extend the time
otherwise provided for post-trial motion or appeal on other issues.
Any appeal on an order or denial of reallocation shall be taken within the time provided under
applicable rules of civil procedure and shall be consolidated with any other appeal on other
issues in the case.
3. This section shall not be construed to expand or restrict the doctrine of joint and
several liability except for reallocation as provided in subsection 2.] In any action in which
there is any count alleging personal injury, emotional distress, property damage, or
wrongful death, including claims made under chapter 538, RSMo, the liability of each
defendant for damages is several only and is not joint, except as otherwise provided in this
section. Each defendant is liable only for the amount of damages allocated to such
defendant in direct proportion to such defendant's percentage of fault, and a separate
judgment shall be entered against the defendant for such amount. To determine the
amount of judgment to be entered against each defendant, the trier of fact shall multiply
the total amount of damages recoverable by the plaintiff by the percentage of each
defendant's fault, and such amount is the maximum recoverable against the defendant.
2. In assessing percentage of fault, the trier of fact shall consider the fault of all
persons who contributed to the alleged injury, death, or damage to property, regardless
of whether the person was or could have been named as a party to the suit. Negligence or
fault of a nonparty may be considered if the plaintiff entered into a settlement agreement
with the nonparty or if the defending party gives notice before trial, in accordance with
requirements established by court rule, that a nonparty was wholly or partially at fault.
Assessments of percentages of fault for nonparties shall be used only as a vehicle for
accurately determining the fault of the named parties. Assessment of fault against
nonparties does not subject any nonparty to liability in this or any other action, and it shall
not be introduced as evidence of liability in any action, except in the defense of lien claims
filed by a nonparty.
3. The relative degree of fault of the claimant and the relative degrees of fault of all
defendants and nonparties shall be determined and apportioned as a whole at one time by
the trier of fact. If two or more claimants have independent claims, a separate
determination and apportionment of the relative degrees of fault of the respective parties
and any nonparties at fault shall be made with respect to each of the independent claims.
4. The liability of each defendant is several only and is not joint; except that, a
party is responsible for the fault of another person or for payment of the proportionate
share of another person if any of the following applies:
(1) The other person was acting as an employee of the party;
(2) The party's liability for the fault of another person arises out of a duty created
by the federal Employers' Liability Act, 45 U.S.C. Section 51.
5. If a defendant is found jointly and severally liable under subsection 4 of this
section, the defendant has the right to contribution under this chapter. An action for
contribution shall be adjudicated and determined by the same trier of fact that adjudicates
and determines the action for the plaintiff's injury or death. The trier of fact shall
adjudicate and determine an action for contribution after the court enters a judgment for
the plaintiff's injury or death. On motion before the conclusion of the trial, the plaintiff
is entitled to an award against the defendant for actual expenses the plaintiff incurred as
a direct result of the defendant's claim for contribution. The expenses shall include
reasonable attorney fees as determined by the court.
6. For purposes of this section, the following terms mean:
(1) "Fault", an actionable breach of legal duty, act, or omission proximately
causing or contributing to injury or damages sustained by a person seeking recovery,
including negligence in all of its degrees, contributory negligence, assumption of risk, strict
liability, breach of express or implied warranty of a product, products liability and misuse,
or modification or abuse of a product;
(2) "Nonparty", includes parties who have settled prior to judgment.
537.090. In every action brought under section 537.080, the trier of the facts may give
to the party or parties entitled thereto such damages as the trier of the facts may deem fair and
just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by
reason of the death, funeral expenses, and the reasonable value of the services, consortium,
companionship, comfort, instruction, guidance, counsel, training, and support of which those on
whose behalf suit may be brought have been deprived by reason of such death and without
limiting such damages to those which would be sustained prior to attaining the age of majority
by the deceased or by the person suffering any such loss. In addition, the trier of the facts may
award such damages as the deceased may have suffered between the time of injury and the time
of death and for the recovery of which the deceased might have maintained an action had death
not ensued. The mitigating or aggravating circumstances attending the death may be considered
by the trier of the facts, but damages for grief and bereavement by reason of the death shall not
be recoverable. If the deceased was not employed full time and was at least fifty percent
responsible for the care of one or more minors or disabled persons, there shall be a
rebuttable presumption that the value of the care provided, regardless of the number of
persons cared for, is equal to two-thirds of the state average weekly wage, as computed
under section 287.250, RSMo.
538.205. As used in sections 538.205 to 538.230, the following terms shall mean:
(1) "Economic damages", damages arising from pecuniary harm including, without
limitation, medical damages, and those damages arising from lost wages and lost earning
(2) "Equitable share", the share of a person or entity in an obligation that is the same
percentage of the total obligation as the person's or entity's allocated share of the total fault, as
found by the trier of fact;
(3) "Future damages", damages that the trier of fact finds will accrue after the damages
findings are made;
(4) "Health care provider", any physician, hospital, health maintenance organization,
ambulatory surgical center, long-term care facility including those licensed under chapter 198,
RSMo, dentist, registered or licensed practical nurse, optometrist, podiatrist, pharmacist,
chiropractor, professional physical therapist, psychologist, physician-in-training, manufacturer,
wholesaler, or licensed distributor of drugs or devices approved by the Food and Drug
Administration, and any other person or entity that provides health care services under the
authority of a license or certificate;
(5) "Health care services", any services that a health care provider renders to a patient
in the ordinary course of the health care provider's profession or, if the health care provider is an
institution, in the ordinary course of furthering the purposes for which the institution is
organized. Professional services shall include, but are not limited to, transfer to a patient of
goods or services incidental or pursuant to the practice of the health care provider's profession
or in furtherance of the purposes for which an institutional health care provider is organized;
(6) "Medical damages", damages arising from reasonable expenses for necessary drugs,
therapy, and medical, surgical, nursing, x-ray, dental, custodial and other health and
(7) "Noneconomic damages", damages arising from nonpecuniary 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
(8) "Past damages", damages that have accrued when the damages findings are made;
(9) "Physician employee", any person or entity who works for hospitals for a salary or
under contract and who is covered by a policy of insurance or self-insurance by a hospital for acts
performed at the direction or under control of the hospital;
(10) "Punitive damages", damages intended to punish or deter willful, wanton or
malicious misconduct, including exemplary damages and damages for aggravating
(11) "Self-insurance", a formal or informal plan of self-insurance or no insurance of any
538.210. 1. In any action against a health care provider for damages for personal injury
or death arising out of the rendering of or the failure to render health care services, no plaintiff
shall recover more than [three] two hundred fifty thousand dollars [per occurrence] for
noneconomic damages [from any one defendant as defendant is defined in subsection 2 of this
section] irrespective of the number of defendants.
2. ["Defendant" for purposes of sections 538.205 to 538.230 shall be defined as:
(1) A hospital as defined in chapter 197, RSMo, and its employees and physician
employees who are insured under the hospital's professional liability insurance policy or the
hospital's self-insurance maintained for professional liability purposes;
(2) A physician, including his nonphysician employees who are insured under the
physician's professional liability insurance or under the physician's self-insurance maintained for
professional liability purposes;
(3) Any other health care provider having the legal capacity to sue and be sued and who
is not included in subdivisions (1) and (2) of this subsection, including employees of any health
care providers who are insured under the health care provider's professional liability insurance
policy or self-insurance maintained for professional liability purposes.
3.] (1) Such limitation shall also apply to any individual or entity, or their
employees or agents that provide, refer, coordinate, consult upon, or arrange for the
delivery of health care services or pharmaceutical services to the plaintiff; and
(2) Who is a defendant in a lawsuit brought against a health care provider under
this chapter, or who is a defendant in any lawsuit that arises out of the rendering of or the
failure to render health care services.
Such limitation shall apply to all claims for contribution.
3. No individual or entity whose liability is limited by the provisions of this chapter
shall be liable to any plaintiff based on the actions or omissions of any other entity or
person who is not an employee of that hospital or other health care provider.
4. In any action against a health care provider for damages for personal injury or death
arising out of the rendering of or the failure to render health care services, where the trier of fact
is a jury, such jury shall not be instructed by the court with respect to the limitation on an award
of noneconomic damages, nor shall counsel for any party or any person providing testimony
during such proceeding in any way inform the jury or potential jurors of such limitation.
[4. The limitation on awards for noneconomic damages provided for in this section shall
be increased or decreased on an annual basis effective January first of each year in accordance
with the Implicit Price Deflator for Personal Consumption Expenditures as published by the
Bureau of Economic Analysis of the United States Department of Commerce. The current value
of the limitation shall be calculated by the director of the department of insurance, who shall
furnish that value to the secretary of state, who shall publish such value in the Missouri Register
as soon after each January first as practicable, but it shall otherwise be exempt from the
provisions of section 536.021, RSMo.]
5. For purposes of sections 538.205 to 538.230, any spouse claiming damages for
loss of consortium of their spouse shall be considered to be the same plaintiff as their
6. Any provision of law or court rule to the contrary notwithstanding, an award of
punitive damages against a health care provider governed by the provisions of sections 538.205
to 538.230 shall be made only upon a showing by a plaintiff that the health care provider
demonstrated willful, wanton or malicious misconduct with respect to his actions which are
found to have injured or caused or contributed to cause the damages claimed in the petition.
7. For purposes of sections 538.205 to 538.230, all individuals and entities asserting
a claim for a wrongful death under section 537.080, RSMo, shall be considered to be one
538.220. 1. In any action against a health care provider for damages for personal injury
or death arising out of the rendering of or the failure to render health care services, past damages
shall be payable in a lump sum.
2. At the request of any party to such action made prior to the entry of judgment, the
court shall include in the judgment a requirement that future damages be paid in whole or in part
in periodic or installment payments if the total award of damages in the action exceeds one
hundred thousand dollars. Any judgment ordering such periodic or installment payments shall
specify a future medical periodic payment schedule, which shall include the recipient, the
amount of each payment, the interval between payments, and the number of payments. The
duration of the future medical payment schedule shall be for a period of time equal to the
life expectancy of the person to whom such services were rendered, as determined by the
court, based solely on the evidence of such life expectancy presented by the plaintiff at trial.
The amount of each of the future medical periodic payments shall be determined by
dividing the total amount of future medical damages by the number of future medical
periodic payments. The court shall apply interest on such future periodic payments at a
per annum interest rate no greater than the coupon issue yield equivalent, as determined
by the Federal Reserve Board, of the average accepted auction price for the last auction of
fifty-two week United States Treasury bills settled immediately prior to the date of the
judgment. The judgment shall state the applicable interest rate. The parties shall be
afforded the opportunity to agree on the manner of payment of future damages, including the rate
of interest, if any, to be applied, subject to court approval. However, in the event the parties
cannot agree, the unresolved issues shall be submitted to the court for resolution, either with or
without a post-trial evidentiary hearing which may be called at the request of any party or the
court. If a defendant makes the request for payment pursuant to this section, such request shall
be binding only as to such defendant and shall not apply to or bind any other defendant.
3. As a condition to authorizing periodic payments of future damages, the court may
require a judgment debtor who is not adequately insured to post security or purchase an annuity
adequate to assure full payment of such damages awarded by the judgment. Upon termination
of periodic payments of future damages, the court shall order the return of this security or so
much as remains to the judgment debtor.
4. If a plaintiff and his attorney have agreed that attorney's fees shall be paid from the
award, as part of a contingent fee arrangement, it shall be presumed that the fee will be paid at
the time the judgment becomes final. If the attorney elects to receive part or all of such fees in
periodic or installment payments from future damages, the method of payment and all incidents
thereto shall be a matter between such attorney and the plaintiff and not subject to the terms of
the payment of future damages, whether agreed to by the parties or determined by the court.
5. Upon the death of a judgment creditor, the right to receive payments of future
damages, other than future medical damages, being paid by installments or periodic payments
will pass in accordance with the Missouri probate code unless otherwise transferred or alienated
prior to death. Payment of future medical damages will continue to the estate of the judgment
creditor only for as long as necessary to enable the estate to satisfy medical expenses of the
judgment creditor that were due and owing at the time of death, which resulted directly from the
injury for which damages were awarded, and do not exceed the dollar amount of the total
payments for such future medical damages outstanding at the time of death.
6. Nothing in this section shall prevent the parties from contracting and agreeing
to settle and resolve the claim for future damages. If such an agreement is reached by the
parties, the future periodic payment schedule will become moot.
538.225. 1. In any action against a health care provider for damages for personal injury
or death on account of the rendering of or failure to render health care services, the plaintiff or
[his] the plaintiff's attorney shall file an affidavit with the court stating that he or she has
obtained the written opinion of a legally qualified health care provider which states that the
defendant health care provider failed to use such care as a reasonably prudent and careful health
care provider would have under similar circumstances and that such failure to use such
reasonable care directly caused or directly contributed to cause the damages claimed in the
2. As used in this section, the term "legally qualified health care provider" shall
mean a health care provider licensed in this state or any other state in the same profession
as the defendant and either actively practicing or within five years of retirement from
actively practicing substantially the same specialty as the defendant.
3. The affidavit shall state the name, address, and qualifications of such health care
providers to offer such opinion.
[3.] 4. A separate affidavit shall be filed for each defendant named in the petition.
[4.] 5. Such affidavit shall be filed no later than ninety days after the filing of the petition
unless the court, for good cause shown, orders that such time be extended for a period of time
not to exceed an additional ninety days.
[5.] 6. If the plaintiff or his attorney fails to file such affidavit the court [may] shall, upon
motion of any party, dismiss the action against such moving party without prejudice.
7. At least one hundred twenty days after the filing of the petition, any defendant
may file a motion to have the court examine in camera the aforesaid opinion and if the
court determines that the opinion fails to meet the requirements of this section, then the
court shall conduct a hearing within thirty days to determine whether there is probable
cause to believe that one or more qualified and competent health care providers will testify
that the plaintiff was injured due to medical negligence by a defendant. If the court finds
that there is no such probable cause, the court shall dismiss the petition and hold the
plaintiff responsible for the payment of the defendant's reasonable attorney fees and costs.
538.229. 1. The portion of statements, writings, or benevolent gestures expressing
sympathy or a general sense of benevolence relating to the pain, suffering, or death of a
person and made to that person or to the family of that person shall be inadmissible as
evidence of an admission of liability in a civil action. A statement of fault, however, which
is part of, or in addition to, any of the provisions of this subsection shall not be
inadmissible under this section.
2. For the purposes of this section, the following terms mean:
(1) "Benevolent gestures", actions which convey a sense of compassion or
commiseration emanating from humane impulses;
(2) "Family", the spouse, parent, grandparent, stepmother, stepfather, child,
grandchild, brother, sister, half brother, half sister, adopted children of a parent, or
spouse's parents of an injured party.
538.232. In any action against a health care provider for damages for personal
injury or death arising out of the rendering of or the failure to render health care services,
for purposes of determining venue under section 508.010, RSMo, the plaintiff shall be
considered injured by the health care provider in the county where the plaintiff first
received treatment by a defendant for the medical condition at issue in the case.
538.300. The provisions of sections 260.552, RSMo, [490.715, RSMo, 509.050, RSMo,
510.263, RSMo, 537.067,] sections 537.068[,] and 537.117, [537.675,] and 537.760 to 537.765,
RSMo, and subsection 2 of section 408.040, RSMo, shall not apply to actions under sections
538.205 to 538.230.
Section 1. If any provision of this act is found by a court of competent jurisdiction
to be invalid or unconstitutional it is the stated intent of the legislature that the legislature
would have approved the remaining portions of the act, and the remaining portions of the
act shall remain in full force and effect.
Section 2. The provisions of this act, except for section 512.099, RSMo, shall apply
to all causes of action filed after August 28, 2005.
Section 3. At any time prior to the commencement of a trial, if a plaintiff or
defendant, including a third-party plaintiff or defendant, is either added or removed from
a complaint filed in any court in the state of Missouri which would have, if originally added
or removed to the initial petition, altered the determination of venue under section 508.010,
RSMo, then the judge shall transfer the case to a proper forum under section 476.410,
[355.176. 1. A corporation's registered agent is the corporation's agent
for service of process, notice, or demand required or permitted by law to be
served on the corporation.
2. If a corporation has no registered agent, or the agent cannot with
reasonable diligence be served, the corporation may be served by registered or
certified mail, return receipt requested, addressed to the secretary of the
corporation at its principal office shown in the most recent annual report filed
pursuant to section 355.856. Service is perfected under this subsection on the
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the
(3) Five days after its deposit in the United States mail, if mailed and
correctly addressed with first class postage affixed.
3. This section does not prescribe the only means, or necessarily the
required means, of serving a corporation.]
[508.040. Suits against corporations shall be commenced either in the
county where the cause of action accrued, or in case the corporation defendant is
a railroad company owning, controlling or operating a railroad running into or
through two or more counties in this state, then in either of such counties, or in
any county where such corporations shall have or usually keep an office or agent
for the transaction of their usual and customary business.]
[508.070. 1. Suit may be brought against any motor carrier which is
subject to regulation pursuant to chapter 390, RSMo, in any county where the
cause of action may arise, in any town or county where the motor carrier operates,
or judicial circuit where the cause of action accrued, or where the defendant
maintains an office or agent, and service may be had upon the motor carrier
whether an individual person, firm, company, association, or corporation, by
serving process upon the director, division of motor carrier and railroad safety.
2. When a summons and petition are served upon the director, division
of motor carrier and railroad safety, naming any motor carrier, either a resident
or nonresident of this state, as a defendant in any action, the director shall
immediately mail the summons and petition by registered United States mail to
the motor carrier at the business address of the motor carrier as it appears upon
the records of the commission. The director shall request from the postmaster a
return receipt from the motor carrier to whom the registered letter enclosing copy
of summons and petition is mailed. The director shall inform the clerk of the
court out of which the summons was issued that the summons and petition were
mailed to the motor carrier, as herein described, and the director shall forward to
the clerk the return receipt showing delivery of the registered letter.
3. Each motor carrier not a resident of this state and not maintaining an
office or agent in this state shall, in writing, designate the director as its
authorized agent upon whom legal service may be had in all actions arising in
this state from any operation of the motor vehicle pursuant to authority of any
certificate or permit, and service shall be had upon the nonresident motor carrier
as herein provided.
4. There shall be kept in the office of the director, division of motor
carrier and railroad safety a permanent record showing all process served, the
name of the plaintiff and defendant, the court from which the summons issued,
the name and title of the officer serving the same, the day and the hour of service,
the day and date on which petition and summons were forwarded to the defendant
or defendants by registered letter, the date on which return receipt is received by
the director, and the date on which the return receipt was forwarded to the clerk
of the court out of which the summons was issued.]
[508.120. No defendant shall be allowed a change of venue and no
application by a defendant to disqualify a judge shall be granted unless the
application therefor is made before the filing of his answer to the merits, except
when the cause for the change of venue or disqualification arises, or information
or knowledge of the existence thereof first comes to him, after the filing of his
answer in which case the application shall state the time when the cause arose or
when applicant acquired information and knowledge thereof, and the application
must be made within five days thereafter.]
[510.340. A motion for a new trial shall be filed not later than ten days
after the entry of the judgment. The judgment shall be entered as of the day of
the verdict. If a timely motion is filed the judgment is not final until disposition
of the motion.]
[538.230. 1. In any action against a health care provider for damages for
personal injury or death on account of the rendering of or failure to render health
care services where fault is apportioned among the parties and persons released
pursuant to subsection 3 of this section, the court, unless otherwise agreed by all
the parties, shall instruct the jury to apportion fault among such persons and
parties, or the court, if there is no jury, shall make findings, indicating the
percentage of total fault of all the parties to each claim that is allocated to each
party and person who has been released from liability under subsection 3 of this
2. The court shall determine the award of damages to each plaintiff in
accordance with the findings, subject to any reduction under subsection 3 of this
section and enter judgment against each party liable on the basis of the rules of
joint and several liability. However, notwithstanding the provisions of this
subsection, any defendant against whom an award of damages is made shall be
jointly liable only with those defendants whose apportioned percentage of fault
is equal to or less than such defendant.
3. Any release, covenant not to sue, or similar agreement entered into by
a claimant and a person or entity against which a claim is asserted arising out of
the alleged transaction which is the basis for plaintiff's cause of action, whether
actually made a party to the action or not, discharges that person or entity from
all liability for contribution or indemnity but it does not discharge other persons
or entities liable upon such claim unless it so provides. However, the claim of
the releasing person against other persons or entities is reduced by the amount of
the released persons' or entities' equitable share of the total obligation imposed
by the court pursuant to a full apportionment of fault under this section as though
there had been no release.]