in personal injury action, evidence may be presented

The Flag
In Personal Injury Action, Evidence
May Be Presented on the Value
of Medical Treatment Received to
Rebut Presumption That Medical
Expenses Are Limited to the
Amount Actually Paid
by w. dudley mccarter
“Delmar Teasley drove his vehicle into the back of a line of vehicles
stopped at a traffic signal, causing the
vehicle behind Edith Deck to collide
with her vehicle. Ms. Deck sustained
injuries in the collision and underwent
surgery, physical therapy and” other
medical care.1 “Ms. Deck was billed
$27,991.30 for her treatment. The
amount actually paid for her treatment,
after adjustments, was $9,904.28. Payments were made by Medicare, supplemental insurance and Ms. Deck.”2 Before the trial on her suit against Teasley,
“Teasley filed a motion to determine
the value of [her] medical treatment …
pursuant to section 490.715.5.”3 At the
hearing on Teasley’s motion, Ms. Deck
presented testimony from three individuals who previously or currently worked
in healthcare positions involving the
W. DUDLEY MCCARTER
Behr, McCarter & Potter
St. Louis
312 / Journal of the Missouri Bar
cost of providing medical services. Each
testified that the amount billed to Ms.
Deck for her medical treatment was customary, fair and reasonable. They also
testified that the face value of the bills
was the value of the medical services
provided, not the amount reimbursed
by Medicare.
“[T]he trial court found that the
presumption in section 490.715 was not
rebutted and determined that the value
of [Deck’s] medical treatment was limited to the amount actually paid for it,
together with any amount she still was
obligated to pay.”4 “During trial, Ms.
Deck made an offer of proof regarding
the value of her medical expenses, again
attempting to rebut the presumption of
value under section 490.715.”5
“[T]he trial court again ruled that Ms.
Deck could not present evidence to the
jury of her medical bills that had not
been paid by her or on her behalf.”6
“[T]he jury rendered a verdict in favor
of Ms. Deck and assessed her damages in the amount of $42,500.”7 On
appeal, the Supreme Court remanded
the case for a new trial on the issue of
damages only, finding that Ms. Deck
had presented substantial evidence that
her total medical bills represented the
value of her medical treatment and that
she had rebutted the presumption under
§ 490.715. Deck v. Teasley.
Section 490.715, subsection 5, newly
enacted in 2005,
governs the admissibility of
evidence regarding a specific
type of damages, the value of
medical treatment rendered to a
party. It provides that evidence
of the dollar amount necessary
to satisfy the financial obligation to health care providers is
admissible at trial and creates
the rebuttable presumption that
such amount represents the
value of the medical treatment
rendered. On the motion of
any party, the court may determine whether other evidence of
value is admissible at trial and
delineates that the other evidence may include, but is not
limited to: the medical bills
incurred; the amount actually
paid for the medical treatments;
or the amount or estimate of
the amount not paid that such
party is obligated to pay in the
event of a recovery.8
“The rebuttable presumption created
by section 490.715.5 is that the dollar amount paid to satisfy the financial
obligation to the healthcare providers
is the value of the medical treatment
rendered.”9
The rebuttable presumption
in section 490.715.5 requires
the trial court to determine if
the party seeking to rebut the
presumption has presented substantial evidence that the value
of medical treatment rendered
is an amount different from
the dollar amount necessary
to satisfy the financial obligations to health care providers.
If such substantial evidence is
proffered, the statutory presumption is rebutted. When
the presumption is rebutted,
the party’s other evidence of
value, as well as the amount
necessary to satisfy the financial
obligations is admitted at trial
as if no presumption exists. If
the presumption is not rebutted, then the only evidence of
the value of medical treatment
rendered is the dollar amount
necessary to satisfy the financial
obligation of the health care
providers.10
Here, Ms. Deck presented substantial , “evidence at the pre-trial hearing
and the offer of proof that the amount
she was billed is the value of the medical treatment rendered to her….”11 “In
light of such substantial evidence, the
trial court misapplied the law in ruling
that the statutory presumption in section 590.715.5 was not rebutted….”12
Ms. Deck proffered evidence
that the value of the medical
treatment rendered to her was
$27,991.30. However, due
to the trial court’s exclusion
of that evidence, the jury only
was permitted to hear evidence
that the value of her medical
treatment was $9,904.28, the
amount that [she], Medicaid
and supplemental insurance
actually paid for her treatment
after adjustments. The exclusion of evidence of the additional $18,087.02 in potential
damages the jury should have
been allowed to consider, materially affected the merits of the
action. See Accomac Realty Co.
v. City of St. Louis, 152 S.W.2d
100, 103 (Mo. 1941). Accordingly, the trial court’s exclusion
of Ms. Deck’s evidence of the
value of medical treatment was
prejudicial … and she is entitled to a new trial on the issue
of damages.
Judgment of Foreign
State is Presumed Valid;
Burden is on Defendant
to Prove Lack of Personal
Jurisdiction by Foreign
State
People’s Bank obtained a judgment
in an Oklahoma court against Missouri
resident H. L. Frazee. People’s Bank
proceeded to enforce the judgment in
the circuit court of Wright County, Missouri. The circuit court found that the
Oklahoma court lacked personal jurisdiction over Frazee and quashed the registration of the foreign judgment. The
judgment was entered in Oklahoma on
a guarantee signed by Frazee for a loan
to his son and his son’s wife. People’s
Bank had prepared the guarantee and
mailed it to Frazee in Missouri. Frazee
signed the guarantee and mailed it back
to People’s Bank. In the suit People’s
Bank filed to enforce the guarantee, a
summons was mailed to Frazee by certified mail, but he refused service. The
Oklahoma court entered a default judgment against him. The circuit court
found that the Oklahoma court lacked
personal jurisdiction over Frazee, but
the Supreme Court of Missouri reversed
in People’s Bank v. Frazee.13
Generally, when personal
jurisdiction is contested by the
filing of a motion to dismiss a
Missouri action, the plaintiff
bears the burden of establishing
that the defendant’s contacts
with the forum state were sufficient. State ex rel. Ranni Assocs.,
Inc. v. Hartenbach, 742 S.W.2d
134, 137 (Mo. banc 1987).
When the challenge to personal
jurisdiction arises in the context
of a motion to register a foreign
judgment, however, the strong
presumption of the validity of a
foreign judgment that is regular
on its face makes the general
rule inapplicable.14
Frazee defaulted in the Oklahoma action … [and he]
contested the Oklahoma
district court’s personal jurisdiction over him for the first
time in the Missouri circuit
court. Because the issue was
not litigated in the foreign
state, Mr. Frazee had the right
to attack the judgment for lack
of personal jurisdiction in the
Missouri circuit court. Miller
v. Dean, 289 S.W.3d 620, 624
(Mo. App. 2009). The Oklahoma judgment Mr. Frazee was
contesting is regular on its face,
so the judgment was subject
to the strong presumption
that the Oklahoma court had
jurisdiction. As the party asserting invalidity of the foreign
judgment, Mr. Frazee bore the
burden of establishing that
the Oklahoma court lacked personal jurisdiction.15
“Because this jurisdictional challenge
arises in the context of a motion to
register a foreign judgment, this Court
must look to the rendering state’s law
– that is, Oklahoma substantive law –
November-December 2010 / 313
to determine whether the Oklahoma
court had personal jurisdiction over
Mr. Frazee. See Phillips [ v. Fallen], 6
S.W.3d at 868 [(Mo. banc 1999)].”16
“[T]he inquiry is whether the Oklahoma court’s exercise of personal
jurisdiction over Mr. Frazee comports
with federal due process. See Gilbert v.
SEC. Fin. Corp. of Okla., Inc., 152 P.3d
165, 173 (Okla. 2006).”17 ‘“In some
cases, single or isolated acts by a defendant in a state, because of their nature
and quality and the circumstances of
their commission, provided sufficient
minimum contacts to support jurisdiction for liability arising from those acts.’
Bryant [v. Smith Interior Design Group,
Inc.], 310 S.W.3d at 233 [(Mo. banc
2010)].” 18
Here, Frazee knew he was dealing with an Oklahoma bank when he
signed the guarantee. He also knew that
People’s Bank would not have provided
a loan to Frazee’s son and daughter-inlaw without Frazee’s guarantee. Frazee
engaged in telephone conversations with
People’s Bank and mailed the guarantee back to Oklahoma after he signed
it. “Contrary to Frazee’s assertion that
a non-resident guarantor must reap a
pecuniary gain, other courts have found
that a personal financial benefit or pecuniary gain by the guarantor is unnecessary to exercise personal jurisdiction
over the non-resident guarantor. E. G.
Mellon Bank[, (East) PSFS, Nat’l Ass’n. v.
Farino], 960 F.2d at 1225 n. 4 [(3rd Cir.
1992)].”19
There are also sound policy reasons for exercising jurisdiction
over non-resident guarantors.
"[T]he Due Process Clause may
not readily be wielded as a territorial shield to avoid interstate
obligations that have been
voluntarily assumed." Mellon
Bank, 960 F.2d at 1222. In this
case, Frazee voluntarily assumed
the obligation of guaranteeing
[the] note…. [He] purposely
directed activity into the forum
314 / Journal of the Missouri Bar
and purposely availed himself
to the protections of Oklahoma
[and] should not be able to
avoid his interstate obligation
by asserting lack of personal
jurisdiction.20
Because of the strong presumption of validity of foreign
state judgments, Mr. Frazee had
the burden to establish that the
judgment was irregular or that
Oklahoma lacked personal jurisdiction over him. Every personal jurisdiction case involves
a fact-specific inquiry; it does
not lend itself to categorical
determinations. [Mellon Bank,
960 F.2d at 1225]. Under the
facts and circumstances surrounding Mr. Frazee’s execution
of the guarantee, [he] had the
required minimum contacts
with Oklahoma. Therefore, the
Oklahoma court's exercise of
personal jurisdiction over Mr.
Frazee comports with Oklahoma’s long-arm statute and due
process.21
Defective Construction
Claim Barred By Ten-Year
Statute of Repose
“In 1987, Mr. Dell Foods hired Dennis Watson Construction … as general
contractor for the construction of an
addition to [Mr. Dell’s] production
facility. The proposed addition included an insulated room to be used as
a large walk-in freezer. Watson retained
Williams-Carver to plan and construct
a refrigeration system for the freezer
room.”22 In 2001, a fire was intentionally set by a Mr. Dell employee in a
room adjacent to the freezer. A concrete
block wall separated the room from the
freezer, but there was a gap of between
16 to 24 inches above the concrete wall.
The fire spread from the adjacent room
to the freezer by going over the top of
the concrete wall. “As the insurer for
Mr. Dell, Travelers paid in excess of
$5,000,000 for the [fire damage] and
received an assignment of Mr. Dell’s
rights….”23 In 2005, Travelers filed suit
against Williams-Carver for negligent
installation of the freezer, alleging that
Williams-Carver concealed the defective
gap at the top of the wall of the freezer.
The trial court granted summary judgment to Williams-Carver, finding that
Travelers’ claims were filed beyond the
10-year statute of repose, § 516.097
RSMo. and further finding that the
concealment exception of the statute
did not apply. The Court of Appeals affirmed in Travelers Indemnity Co. v. The
Williams-Carver Co.24
“The Missouri Supreme Court has
defined the phrase ‘sole connection with
the improvement’ in Section 516.097
as ‘a connection to a defective or unsafe
condition of an improvement or real
estate giving rise to liability.’ Magee v.
Blue Ridge Prof ’l Bldg. Co., 821 S.W.2d
839, 843 (Mo. banc 1991).”25
[I]f a defendant has any
connection that gives rise to
liability with respect to an
improvement other than by design, planning or construction,
Section 516.097 is not available
as an affirmative defense.” Lay
v. P & G Healthcare, Inc., 37
S.W.3d 310, 321 (Mo. App.
2000). The defendant's sole
connection to the defective or
unsafe improvement to real
property must be as an architect, engineer or builder Id.26
Here, the sole connection of WilliamsCarver with the improvement was as the
builder of the refrigeration system.
Traveler’s … lawsuit against
Williams-Carver was filed
more than ten years after the
improvements to Mr. Dell’s
production facility were
completed in 1988. WilliamsCarver properly invoked the
affirmative defense of the
ten-year statute of repose in
Section 516.097 by presenting
uncontroverted evidence that
its sole connection with the improvements was to perform or
furnish construction services.27
The concealment exception in
§ 516.097 does not apply. “As used in
the statute, the term ‘conceals’ means
‘an affirmative act, something actually done directly intended to prevent
discovery or to thwart investigation.’
Magee, 821 S.W.2d at 844….”28 “[D]
eposition testimony … established that
the gap between the top of the concrete wall and the roof was open and
obvious….”29
To rebut the evidence of
openness, Travelers alleges the
defective nature of the gap
was “latent” and, therefore, its
significance should have been
disclosed by Williams-Carver.
However, latent defects are not
the same as concealed defects.
Fueston v. Burns & McDonnell
Eng’g Co., 877 S.W.2d 631, 638
(Mo. App. 1994). “Conceals”
means more than a failure to
reveal information allegedly
known. Butler [v. MitchellHugeback, Inc.], 895 S.W.2d
at 19-20 [(Mo. banc 1995)].
Rather, it carries the “implication of intentional conduct
designed to prevent discovery.”
Id. at 19.30
“There is no evidence that WilliamsCarver acted affirmatively to prevent
the discovery of the gap in the wall.
Given the open and obvious nature of
the alleged defective condition, there
is no factual dispute as to whether
the concealment exception in Section
516.097.4(2) could be applied.”31
Official Immunity is
Available to PubliclyEmployed Emergency
Responders Only in a True
Emergency Situation
“Anthony Thomas … called 9-1-1
complaining of chest pains and diffi-
culty breathing.”32 Within a short time,
an ambulance unit from the Community Fire Protection District arrived at
his home. “The unit was manned by
Michael Brandt, a licensed emergency
medical technician, and James Loehrer,
a licensed paramedic.”33 Upon arrival,
Brant and Loehrer examined Thomas
and collected his vital signs. They
diagnosed his problem as acid reflux and
recommended over-the-counter medication. Believing he was in no immediate medical danger, they left his home
15 minutes after arriving. The next
morning, Thomas again called 9-1-1,
still complaining of chest pains and
difficulty breathing. An ambulance unit
from Community Fire Protection District, manned by a different two-person
team, arrived at his home. That team
began administering emergency medical care and transported him to DePaul
Health Center, where he died later that
day from cardiac arrest. The spouse and
son of Thomas filed a wrongful death
suit against Community Fire Protection District, Brandt and Loehrer. The
trial court granted summary judgment
to Grant and Loehrer, finding that they
were entitled to official immunity. The
Court of Appeals reversed, however, in
Thomas v. Brant.
Official immunity is a judicially-created doctrine designed to
protect public employees from
liability for allegedly negligent
acts committed during their
performance of official duties.
[Southers v. City of Farmington, 263 S.W.3d 603, 610
(Mo. banc 2008).] Generally,
whether public employees are
protected turns on the type of
act involved; the court must
determine whether the challenged act was discretionary or
ministerial. Davis v. LambertSt. Louis Intern. Airport, 193
S.W.3d 760, 763 (Mo. banc
2006). Acts which are discretionary are protected, while
acts which are ministerial are
not. Id. A discretionary act is
one that requires “the exercise
of reason in the adaptation of
means to an end and discretion
in determining how or whether
an act should be done or course
pursued.” Id. A ministerial
act is a clerical duty performed
pursuant to a mandate with no
exercise of judgment involved.
State ex rel. Eli Lilly & Co. v.
Gaertner, 619 S.W.2d 761, 765
(Mo. App. E.D. 1981). The
doctrine is intended to encourage a “vigorous and effective
government” where public
officials can make decisions
free of fear of personal liability.
Southers, 263 S.W.3d at 611;
Eli Lilly, 619 S.W.2d at 763.
When the issue of official
immunity involves a publiclyemployed medical professional,
there is a second step to the
analysis.34
In Richardson [v. City of St.
Louis, 293 S.W.3d 133 (Mo.
App. E.D. 2009)], this Court
held that whether the actions of
emergency medical responders
are protected turns on the circumstances of the situation….
When emergency responders
are acting in a rapidly-evolving
emergency situation with
limited information, they are
protected by official immunity.
Id.35
Without commenting on the
vitality of Eli Lilly, [this court]
reaffirms the approach advanced in Richardson.
When publicly-employed
emergency medical personnel are treating patients, their
negligent acts are protected by
official immunity only if they
are acting in a true emergency
situation. This true emergency
situation is a strict requirement. A true emergency is one
November-December 2010 / 315
involving rapidly-evolving
circumstances where the
medical personnel have limited information. The court
should determine whether
the situation involved a true
emergency on a case-by-case
basis by evaluating the totality
of the circumstances.36
Here, the two-person team that responded to the first 9-1-1 call was not
acting in a true emergency situation.
“The time and information available to [them] was more like that of a
doctor treating a patient in a hospital
than that of an emergency responder
arriving to find a patient in critical …
condition.”37 “Responders acting in
non-emergency situations will be held
to the same standard of care as their
privately-employed counterparts.”38
“Official immunity is available to publicly-employed emergency responders
only if they are acting in a true emergency situation. In this case, [the first
two responders] were not acting in a
true emergency situation.”39
Contractor May Recover
Attorney’s Fees Under
Private Prompt Payment Act
“Lucas Stucco & EIFS Design,
LLC (Contractor) and Loren Landau (Owner) entered into a contract
for the installation of a stucco finish
on Owner’s building.”40 After the
project was completed, Owner still
owed Contractor a balance of $4,900.
Contractor filed suit for breach of
contract, action on account, quantum
meruit, and unjust enrichment. In
the prayer to each count of Contractor’s petition, Contractor requested
an award of attorney’s fees. After a
bench trial, the trial court awarded
Contractor $4,900, plus attorney’s fees
of $10,567. The Supreme Court of
Missouri affirmed in Lucas Stucco &
EIFS Design, LLC v. Landau.
“The general rule in Missouri is
that attorney’s fees are not awarded
to every successful litigant. Harris v.
316 / Journal of the Missouri Bar
Union Elec. Co., 766 S.W.2d 80, 89
(Mo. banc 1989). Attorney fees are
recoverable in two situations: when a
statute specifically authorizes recovery
and when the contract provides for
attorney fees. Essex Contracting, Inc. v.
Jefferson County, 277 S.W.3d 647, 657
(Mo. banc 2009).”41 The Missouri
Private Prompt Payment Act, Section
431.180,
provides that “[a]ll persons
who enter into a contract for
private design or construction work…shall make all
scheduled payments pursuant
to the terms of the contract.”
Section 431.180.1. Any
person who fails to make such
payments may be subject to
an action under the statute. Section 431.180.2. In
resolving the action, “[t]he
court may[,] in addition to
any other award of damages,
…[award] reasonable attorney fees [ ] to the prevailing
party.” Id. Although the
issue in this case is one of first
impression, Vance Brothers,
Inc. v. Obermiller Construction
Services, Inc., 181 S.W.3d 562
(Mo. banc 2006), discussed
the pleading requirements of
the act. Vance concluded that
there are two requirements
for pleading a violation of the
act: (1) the parties entered
into a private construction
contract; and (2) one or more
payments were not made
pursuant to the contract. Id.
at 564.42
Here, “Contractor pleaded these
two act requirements.”43
Contractor requested reasonable attorney fees in the
prayer. The act does not
require specific reference to
the statute in the petition
as a requirement to seek the
relief it affords. Instead, a
court may award any relief
a statute provides, including
attorney fees, as long as the
party has pleaded the necessary elements of the act and
has requested that relief in the
prayer.
By alleging in the petition all
of the elements necessary to
bring a claim under the act,
Contractor met the pleading
requirements of the statute,
such that a specific request for
“reasonable attorney fees” in
the prayer may be granted.44
A Municipality or Other
Public Corporation May
Bring a Declaratory
Judgment Action to
Determine a Boundary
Dispute
The City of Lake St. Louis filed a
declaratory judgment action against
the City of O’Fallon, seeking to invalidate O’Fallon’s annexation of certain
disputed property. The suit alleged
that “Lake St. Louis had a legally
protectable interest in enforcing its ordinances, collecting and administering
taxes, and protecting the rights of the
city and its residents in the disputed
area, and asked the trial court to enter
judgment declaring that … O’Fallon
had not legally annexed” the property that Lake St. Louis claimed to
be within its boundaries.45 O’Fallon
filed a motion to dismiss, asserting
“that Lake St. Louis was not entitled
to bring a declaratory judgment action
to determine its boundaries.”46 The
trial court granted O’Fallon’s motion,
but the Supreme Court of Missouri
reversed in City of Lake St. Louis v.
City of O’Fallon.
“[W]hile O’Fallon is correct that
individuals are not permitted to bring
declaratory judgment actions seeking
to determine boundaries or to oust a
municipal or other public corporation
from disputed territory, municipalities, school districts and other public
corporations are permitted to bring
such actions.”47 ‘“A declaratory judgment provides guidance to the parties,
declaring their rights and obligations
and otherwise governing their relationship.…” Shipley v. Cates, 200
S.W.3d 529, 534 (Mo. banc 2006)
….”48
While the attorney general
and prosecutor may … bring
a suit in quo warranto [when
two governmental entities
assert claims over a disputed
area], whether they choose to
do so is within those officials’
discretion. The governmental
entity, therefore, as the party
directly affected, should have
the right instead to bring a
declaratory judgment action
in its own name to vindicate
its directly affected interest in
the … territory.
To require a directly affected municipality or other
similar public corporation
to rely on a third party – the
attorney general or a county
prosecutor – to bring suit
over its very boundaries
would risk leaving it without a remedy if the attorney general and prosecutor
exercise their discretion not
to act. While this is appropriate where an individual
litigant is involved, to avoid
the multiplicity of suits that
otherwise would ensue and
to ensure that spurious claims
are not asserted in an effort
to adversely affect the public
body, such reasoning does
not apply to the municipality
or other public corporation
itself, as it has a direct and
vital interest in determining
its own boundaries.49
While a quo warranto action may be
brought by the attorney general or
prosecuting or circuit attorney at the
relation of the public corporation to
determine a boundary dispute, a declaratory judgment action may also be
brought directly by the municipality
or other public corporation itself.
Endnotes
1 Deck v. Teasley, SC90628 (Mo. banc, Oct.
26, 2010).
2 Id.
3 Id.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id.
12 Id.
13 No. SC 90536 (Mo. banc 2010).
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Travelers Indemnity Co. v. The WilliamsCarver Co., No. WD 71181 (Mo. App. W.D.
2010).
23 Id.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
32 Thomas v. Brandt, No. ED 94414 (Mo.
App. E.D. 2010).
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 Id.
39 Id.
40 Lucas Stucco & EIFS Design, LLC v. Landau, No. SC90771 (Mo. banc 2010).
41 Id.
42 Id.
43 Id.
44 Id.
45 City of Lake St. Louis v. City of O’Fallon,
No. SC 90790 (Mo. banc 2010).
46 Id.
47 Id.
48 Id.
49 Id.
November-December 2010 / 317