# mo-authority.md — Shared Missouri Authority File **Scope:** Canonical authority for the TopMVA Missouri MVA skill library. Every skill references this file. Statutes live here once and are updated once. **Verification date:** July 16, 2026 **Statutory source:** Missouri Revisor of Statutes (revisor.mo.gov), current text pulled directly. Aggregators lag — several are currently serving the 2005 version of § 408.040 as though current. **Case source:** CourtListener, verified for existence and reporter citation; RECAP for federal dockets. **Next scheduled review:** October 16, 2026 (quarterly), plus immediate review on any Missouri Supreme Court decision touching §§ 408.040, 490.715, 303.390, 537.065, or 537.610, and on any HHS final rule addressing the HIPAA Patient Rate. **Status legend:** - ✅ **VERIFIED** — current text pulled from primary source; safe to state - 🔶 **NEW** — material finding; not in the original audit - ⚠️ **CORRECTED** — an earlier assertion was wrong; corrected text below - ⛔ **OPEN** — could not verify against a primary source; **do not state without checking** --- ## 1. Prejudgment interest — § 408.040 RSMo ✅ **VERIFIED.** Current version effective **January 15, 2015** (L. 2014 H.B. 1231 merged with S.B. 621 merged with S.B. 672). Only two versions exist: 8/28/2005–1/15/2015 and 1/15/2015–present. **There is no 2019 amendment.** ⚠️ **Cite by subsection.** Prejudgment interest in tort lives at **§ 408.040.3**, not § 408.040 generally. The demand requirements are **§ 408.040.3(1)–(4)**. *Jameson* cites § 408.040.3(4) by subsection; a skill citing the bare section will not match the case law. ### Structure | Subsection | Content | |---|---| | § 408.040.1 | Defines "judgment balance"; postjudgment payment application order | | § 408.040.2 | Nontort actions — 9% per annum | | § 408.040.3 | **Tort actions.** Postjudgment rate = Federal Funds Rate + 5%. Prejudgment interest trigger and demand requirements | | § 408.040.4 | A judgment for prejudgment interest bears FFR + **3%** | ### Trigger (§ 408.040.3) Prejudgment interest is awarded where the claimant made a demand or settlement offer to the party, parties, or their representatives, **and to that party's liability insurer if known to the claimant**, and the judgment exceeds the demand. Interest runs from **90 days after the demand was received** as shown by the certified mail return receipt, **or** from the date the demand was **rejected without counteroffer**, whichever is earlier. 🔶 Read the "without counter offer" clause carefully. Rejection *without* a counteroffer starts the clock early (claimant-favorable). Rejection *with* a counteroffer leaves the 90-day measure in place. Do not collapse the two. ### The four demand requirements — § 408.040.3(1)–(4) 1. **§ 408.040.3(1)** — in writing, sent certified mail return receipt requested 2. **§ 408.040.3(2)** — accompanied by an **affidavit of the claimant** describing the nature of the claim, the nature of any injuries claimed, and a general computation of any category of damages sought, with supporting documentation if reasonably available 3. **§ 408.040.3(3)** — for wrongful death, personal injury, and bodily injury: a list of names and addresses of medical providers; **copies of all reasonably available medical bills**; a list of employers if wage or earnings loss is claimed; and **written authorizations** sufficient to let the party, its representatives, and the liability insurer obtain records from all employers and medical providers 4. **§ 408.040.3(4)** — **reference this section and be left open for ninety days** 🔶 A compliant § 408.040 demand is a **records-production event**, not just a letter. ### Filing condition (§ 408.040.3, flush text) Unless the parties agree in writing to a longer period, if the claimant **fails to file suit in circuit court before a date 120 days after the demand was received**, the court **shall not** award prejudgment interest. ### Capacity If the claimant is a minor, incompetent, or deceased, the affidavit may be signed by any person who reasonably appears qualified to act as next friend, conservator, or personal representative. For wrongful death, by any person qualified under § 537.080. ### Rate ⚠️ **FFR + 5% is the *postjudgment* rate** under § 408.040.3. A judgment **for** prejudgment interest bears **FFR + 3%** under § 408.040.4. ⛔ **The accrual rate is genuinely unsettled.** The statute does not state the rate at which prejudgment interest *accrues* during the pre-judgment period. Do not let a calculator assert one. Flag to the attorney. ### Carve-out 🔶 § 408.040 **does not apply** to medical malpractice actions. See § 538.300. If an MVA develops a malpractice overlay, prejudgment interest is not available on that claim. ### Annotations - *Emery v. Wal-Mart Stores, Inc.*, 976 S.W.2d 439 (Mo. banc 1998) ✅ — acknowledgment or actual notice of a settlement offer is **insufficient**; strict compliance required. Overruled *Larabee v. Washington*, 793 S.W.2d 357 (Mo. App. W.D. 1990) ✅. - *Werremeyer v. KC Auto Salvage Co., Inc.*, 134 S.W.3d 633 (Mo. banc 2004) ✅ — prejudgment interest available on the entire judgment, compensatory **and punitive**. Overruled *Hoskins v. Business Men's Assurance*, 116 S.W.3d 557 (Mo. App. 2003) ✅. **Couples § 408.040 compliance to the § 510.261 punitive analysis.** - *Lober v. Kansas City*, 100 S.W.2d 267 (Mo. 1936) ✅ (339 Mo. 1087) — no common-law prejudgment interest in tort absent statute. --- ## 2. Time-limited demands — § 537.058 RSMo ✅ **VERIFIED.** Effective **August 28, 2017** (L. 2017 SS SCS HCS H.B. 339 & 714). Never amended. ### Definitional scope — § 537.058.1 - **.1(1) "Extracontractual damages"** — damage exceeding the total available limit of liability insurance for all applicable policies - **.1(2) "Time-limited demand"** — an offer to settle a PI/BI/wrongful death claim against a tort-feasor with a liability policy, **for purposes of settling within the insurer's limit of liability**, which **by its terms must be accepted within a specified period of time** - **.1(3) "Tort-feasor"** 🔶 **The scope limits are load-bearing.** A demand **above** policy limits is not a "time-limited demand." A demand with **no deadline** is not one either. The statute reaches only within-limits demands carrying a deadline. Do not apply § 537.058 to every demand. ### Form requirements — § 537.058.2 In writing; references this section; sent **certified mail return-receipt requested to the tort-feasor's liability insurer**; containing eight material terms: | | Term | |---|---| | (1) | Time period for acceptance — **not less than 90 days from receipt** | | (2) | Amount of monetary payment requested, or a request for applicable policy limits | | (3) | Date and location of the loss | | (4) | Claim number, if known | | (5) | Description of all known injuries | | (6) | Party or parties to be released | | (7) | Description of claims to be released | | (8) | Offer of **unconditional release** for the insurer's insureds from all present and future liability for that occurrence under § 537.060 | ### Enclosures — § 537.058.3 - **.3(1)** — list of names and addresses of health care providers who treated or evaluated the claimant or decedent from date of injury to date of demand, **and HIPAA-compliant written authorizations** - **.3(2)** — list of names and addresses of all claimant's employers from first injury to date of demand, and written authorizations, **if** wage/earnings/compensation/profit loss is asserted ### Other operative subsections - **.4** — insurer accepts by written acceptance of the .2 material terms, delivered or postmarked within the demand period - **.5** — claimant may require payment within a specified period, but **not less than 10 days after the insurer receives a fully executed unconditional release** under § 537.060 - **.6** — **does not apply** to demands issued within **90 days of a jury trial** on a filed claim - **.7** — a noncompliant time-limited demand "shall not be considered as a reasonable opportunity to settle" and "shall not be admissible in any lawsuit alleging extracontractual damages against the tort-feasor's liability insurer" ⛔ **§ 537.058.7 may be narrower than commonly stated.** Its opening clause is reported to limit it to "any lawsuit filed by a claimant as an assignee of the tort-feasor or by the tort-feasor for the benefit of the claimant" — the § 537.065 assignment posture — which would mean it does not reach a first-party bad-faith suit by the insured. **Re-pull .7's opening clause before relying on either reading.** ### 🔶 The dual-compliance table — the two statutes require different things A demand must satisfy the **union** of both to secure both benefits. | Requirement | § 408.040.3 | § 537.058 | |---|---|---| | Writing | ✅ | ✅ | | Certified mail RRR | ✅ to party/representatives **and** insurer if known | ✅ to **insurer** | | Reference the section | ✅ (.3(4)) | ✅ (.2) | | Open 90 days | ✅ (.3(4)) | ✅ (.2(1)) | | **Claimant affidavit** | ✅ (.3(2)) | ❌ not required | | **Copies of medical bills** | ✅ (.3(3)) | ❌ not required | | Provider list | ✅ (.3(3)) | ✅ (.3(1)) | | HIPAA authorizations | ✅ (.3(3)) | ✅ (.3(1)) | | Employer list + authorizations | ✅ if wage claim | ✅ if wage claim | | Date and location of loss | ❌ | ✅ (.2(3)) | | Claim number | ❌ | ✅ (.2(4)) | | Injury description | ❌ | ✅ (.2(5)) | | Parties/claims to be released | ❌ | ✅ (.2(6)–(7)) | | **§ 537.060 unconditional release offer** | ❌ | ✅ (.2(8)) | | Payment period ≥ 10 days post-release | ❌ | ✅ (.5) | | **File suit within 120 days** | ✅ or forfeit | ❌ | **Scope gates before applying the table:** § 537.058 applies only if the demand is **within policy limits** and **carries a deadline**, and **not** if issued within 90 days of a jury trial (.6). § 408.040 does not apply to medical malpractice (§ 538.300). --- ## 3. Counteroffers terminate the demand — *Jameson v. Still* ✅ **VERIFIED. Cite: *Jameson v. Still*, No. SC99279 (Mo. banc Apr. 26, 2022).** ⚠️ **Do not cite the Court of Appeals opinion.** *Jameson v. Still*, No. ED109161 (Mo. App. E.D. June 22, 2021) was **transferred to the Missouri Supreme Court, which decided the case en banc on April 26, 2022**. On transfer the Court of Appeals opinion is vacated and has no precedential effect. **The absence of an S.W.3d cite for ED109161 is the tell, not a database gap.** ⛔ **S.W.3d parallel cite for SC99279 not confirmed.** Cite by docket number and date until pulled. **Holding.** Neither § 408.040.3(4) ("and be left open for ninety days") nor § 537.058.2(1) ("shall remain open for acceptance … not less than ninety days") makes the offer irrevocable or non-rejectable as a matter of law. Ordinary contract law governs: a counteroffer operates as a rejection of the original offer and as a new offer. The Court **expressly declined** to decide whether the demand satisfied § 408.040 or § 537.058. 🔶 **Valence: this is claimant-favorable.** The insurer counteroffered, then tried to "accept" the original demand 56 days later; the demand was gone. **Teach it as a shield.** Once the adjuster counteroffers, the demand is dead, the insurer cannot resurrect it, and under § 408.040.3 prejudgment interest runs from rejection rather than day 91 — but only if the rejection came **without** a counteroffer. Track which happened. **Internal-consistency argument the Court relied on:** § 408.040.3 itself contemplates rejection by counteroffer ("rejected without counter offer"), which is why the statute cannot be read to make the offer irrevocable. --- ## 4. Medical expense evidence — § 490.715 RSMo ✅ **VERIFIED.** Current version effective **August 28, 2017** (L. 2017 S.B. 31). Two versions: 8/28/2005–8/28/2017 and 8/28/2017–present. ### Structure - **.1** — no evidence of collateral sources, or of .2 payments, is admissible other than as provided in this section - **.2** — special damages satisfied by payment from the defendant or the defendant's insurer are not recoverable from that defendant - **.3** — defendant who made such payment gets a credit against judgment per § 490.710 - **.4** — **"This section does not require the exclusion of evidence admissible for another proper purpose."** - **.5(1)** — "Except as provided in subsection 2 of this section, parties **may** introduce evidence of the actual cost of the medical care or treatment rendered." Actual cost must be reasonable, necessary, and a proximate result of the negligence or fault of any party. - **.5(2)** — **"actual cost"** means "a sum of money not to exceed the dollar amounts paid by or on behalf of a plaintiff or a patient whose care is at issue plus any remaining dollar amount necessary to satisfy the financial obligation for medical care or treatment by a health care provider after adjustment for any contractual discounts, price reduction, or **write-off** by any person or entity." *(singular "write-off" — quote it correctly)* ### 🔶 The 2017 amendment deleted the rebuttable presumption The **2005** version, at § 490.715.5(2), created "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," and let the court consider additional evidence including bills incurred, amounts actually paid, and unpaid amounts the party is obligated to pay. **The current version contains no presumption at all.** It is a bare permission. This is why *Deck* is a construction case about a statute that no longer exists in that form, and why *Brancati* came out as it did. ### *Deck v. Teasley* ✅ **VERIFIED.** *Deck v. Teasley*, 322 S.W.3d 536 (Mo. banc 2010). Construed the **former** § 490.715.5 — say so every time it is cited. ⚠️ **PIN CITE CONFLICT.** *Brancati* cites **Deck, 322 S.W.3d at 539** for the holding that the trial court erred in limiting past medical expenses to the amount actually paid, and that the plaintiff could present the amount **charged** as additional evidence of value to rebut the presumption. **Use 539.** ⛔ Confirm 538 before citing it for anything. See also *Berra v. Danter*, 299 S.W.3d 690 (Mo. App. E.D. 2009) ✅. ### *Brancati v. Bi-State Development Agency* ✅ **VERIFIED.** *Brancati v. Bi-State Dev. Agency*, **571 S.W.3d 625** (Mo. App. E.D. Dec. 18, 2018) (No. ED 106359) (Hoff, J.), **transfer to Missouri Supreme Court denied Apr. 30, 2019**. ⚠️ **571 S.W.3d 625 is AMBIGUOUS in CourtListener** — also matches *Hurd v. State* (2019-04-16). Confirm the starting page; never cite by reporter alone. ⚠️ **The "amendment rendered inert" framing is the defense bar's spin and it is wrong.** The court's reasoning is structural: § 490.715.1 bars collateral-source evidence; §§ .2–.3 address defendant-side payments and "have no application to the collateral source rule"; § .4 expressly preserves evidence admissible for another proper purpose; § .5 is an **exception** to the collateral-source bar, letting in actual-cost evidence the rule would otherwise exclude. The legislature's use of **"may"** shows actual cost is not the only permissible evidence. "Nowhere does the statute state that the 'actual cost' of medical bills is the 'only' evidence of medical bills that may be introduced." **Correct teaching:** the 2017 amendment **added** a defense tool (actual-cost evidence now survives a collateral-source objection). It did **not subtract** the plaintiff's tool (amount charged), because § 490.715 never barred charges — the collateral source rule bars evidence of collateral *payments*, not of *charges*. **One-directional, not inert.** **Posture:** trial court held the amended statute did not apply (bills predated 8/28/17). Eastern District affirmed on the alternative ground that the amount charged "could be admitted under either the former or the amended version," expressly reaching the amended statute's meaning to avoid the retroactivity question. **Eastern District only; the Supreme Court has not spoken.** **Numbers:** charged $77,515.48; paid or owed $40,842.95; verdict $625,000. ### Collateral source rule *Roberts v. BJC Health System*, 391 S.W.3d 433, 439 (Mo. banc 2013) ✅ — the rule prevents an alleged tortfeasor from introducing evidence that the plaintiff's damages are covered by insurance or another source; a wrongdoer should not enjoy reduced liability because the injured person was protected by insurance or payment from another source. ### Operational rule **Carry billed / adjusted / paid / outstanding per provider, with separate subtotals, through the chronology and into the demand's damages table.** Never collapse to one column. --- ## 5. No pay, no play — § 303.390 RSMo ✅ **VERIFIED.** Effective **October 11, 2013** (H.B. 339 (2013), enacted over Governor Nixon's veto). ⚠️ The Revisor flags this section with an asterisk (\*303.390) — check the Revisor note. ### § 303.390.1 — the waiver An uninsured motorist waives 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 chapter 303**, arising from an MVA in which the insured driver is alleged to be at fault. "Uninsured motorist" includes: (1) an uninsured driver who is the **owner** of the vehicle; (2) an uninsured **permissive driver** of the vehicle; and ⛔ **(3) — third category truncated in every source pulled. Retrieve § 303.390.1(3) before the screener ships.** One practitioner source suggests a passenger in the uninsured vehicle is not subject to the limitation; unconfirmed. ### § 303.390.1 — the exceptions (flush text) The waiver does **not** apply if it can be proven 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 - **is convicted** of involuntary manslaughter under § 565.024.1(2); or - **is convicted** of assault in the second degree under § 565.060.1(4) ⛔ **STALE CROSS-REFERENCE.** The Revisor flags § 565.060 with a **double asterisk**. Missouri's criminal code was recomprehensively revised effective January 1, 2017 and assault in the second degree moved. Whether § 303.390's reference to § 565.060.1(4) still points anywhere is a live question. **Do not assert the assault exception is operative.** ### § 303.390.2 — the lapse safe harbor ✅ **VERIFIED verbatim:** > "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 > nonrenewed for failure to pay the premium, **unless** notice of termination or nonrenewal for > failure to pay such premium was provided by such insurer **at least six months prior to the time > of the accident**." ⚠️ **The direction is counterintuitive and easy to invert. Read it twice.** | Facts | Result | |---|---| | Policy lapsed for nonpayment; insurer's notice **≥ 6 months** before the crash | Waiver **APPLIES** — claimant loses non-economic damages | | Policy lapsed for nonpayment; insurer's notice **< 6 months** before the crash, or no notice | Waiver **DOES NOT APPLY** — claimant protected | | Uninsured for any other reason | Waiver applies (subject to .1 exceptions) | **The six months runs on the insurer's notice, not on the lapse.** ### § 303.390.3 — 🔶 the mechanism, and it changes trial strategy ✅ **VERIFIED verbatim.** In an action by a person deemed to have waived: - **.3(1)** — any award in favor of that person **shall be reduced** by an amount equal to the portion of the award representing compensation for noneconomic losses - **.3(2)** — **"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."** This is **not an affirmative defense tried to the jury**. It is a **post-verdict reduction with the jury kept ignorant**. That mechanism is precisely what makes it look like a damages cap for *Watts* purposes, which is the constitutional argument. ### Constitutionality — no Missouri appellate court has reached the merits - *Watts ex rel. Watts v. Lester E. Cox Medical Centers*, **376 S.W.3d 633, 637** (Mo. banc 2012) ✅ — the two-prong framework the challenges run on. - *Jiles v. Schuster Co.*, **357 F. Supp. 3d 908, 914–16 (2018)** ✅ — held § 303.390 "clearly and undoubtedly" violates the right to jury trial; reasoned the statute "clearly contemplates presenting evidence to the fact finder" before reducing the award, which is a cap in substance. - ⛔ **DISTRICT CONFLICT — resolve before citing.** Secondary sources say **W.D. Mo. (Bough, J.)**. CourtListener tags 357 F. Supp. 3d 908 as **E.D. Missouri**, filed 2018-11-14. One is wrong. - ⚠️ Some sources misattribute *Jiles* as "(Mo. App. W.D. 2018)." It is a **federal district court**. Do not propagate. - *Hassell v. Howard*, No. 20-05042-CV-S-BP (W.D. Mo. 2020) (Phillips, J.) — upheld the statute; distinguished *Watts* on the ground that it is not a damages cap. ⛔ No F. Supp. cite located. - ⚠️ **There is no Southern District of Missouri.** Missouri has only Eastern and Western Districts. The "S" in the case number is the **Southern Division of the Western District**. - *Bridegan v. Turntine* (Mo. 2023) — ⛔ reported to be a case in which the Missouri Supreme Court declined to reach constitutionality. **Citation and holding unverified. Do not cite.** - ⛔ Sources checked run through 2024. **Confirm nothing issued in 2025–2026 before publishing.** **Teach it as live, not settled either way.** ### Intake rule **Ask on every intake: was the client insured at the moment of impact?** Ten seconds. It is the difference between a case and a specials-only case. --- ## 6. Sovereign immunity and government defendants ### § 537.600.1(1) — the waiver ✅ **VERIFIED** (via *Brancati*, 571 S.W.3d 625, quoting the statute): immunity is waived for "[i]njuries directly resulting from negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment." § 537.600 also waives for dangerous condition of public property. *Southers v. City of Farmington*, 263 S.W.3d 603, 610 (Mo. banc 2008) ✅ — sovereign immunity is a tort protection for governmental entities; codified at §§ 537.600–537.650. **Third waiver route: insurance.** § 537.610.1; *Kunzie v. City of Olivette*, 184 S.W.3d 570, 574 (Mo. banc 2006) ✅ — § 537.610.1 waives immunity "only to the maximum amount of and only for the purposes covered by such policy of insurance" or self-insurance plan. **The first question in a government MVA is not the cap. It is what policy the entity bought.** ### § 537.610.2 — the cap ✅ **VERIFIED.** Liability of the state and its public entities on claims within §§ 537.600–537.650 shall not exceed **two million dollars for all claims arising out of a single accident or occurrence** and shall not exceed **three hundred thousand dollars for any one person**, except workers' compensation claims under chapter 287. - **§ 537.610.3** 🔶 — **no punitive or exemplary damages** on any claim against a public entity within §§ 537.600–537.650. Interacts directly with § 510.261. - **§ 537.610.4** — apportionment where multiple claimants exceed $2M; each share capped at the per-person limit. - **§ 537.610.5** — limits adjusted **annually, effective January 1**, per the **Implicit Price Deflator for Personal Consumption Expenditures** (Bureau of Economic Analysis). Published by the Missouri Department of Commerce and Insurance in the ***Missouri Register***. Confirmed independently by MoDOT's Engineering Policy Guide § 107.13. ⛔ **The current 2026 per-person figure is NOT verified.** Known anchor: at the *Brancati* amended judgment in December 2017 the per-person limit was **$414,418** (stipulated). Secondary sources report ~$532,148 / $3,547,658 for 2026 — **unconfirmed**. **Pull the Missouri Register notice and date-stamp it. Do not hardcode. Do not extrapolate.** ### 🔶 THE HIGHEST-VALUE FINDING: the cap does not reach the public employee **Sue the driver individually and the cap does not follow.** Directly dispositive in a St. Louis city-bus, school-bus, or municipal-vehicle MVA. - *State ex rel. Trimble v. Ryan*, **745 S.W.2d 672, 675** (Mo. banc 1988) ✅ — arose from negligent operation of a Bi-State bus. Bi-State got immunity under § 537.600 and a reduction under § 537.610, **but the driver did not**. The driver "is not protected by 'official immunity,' which precludes tort claims arising from discretionary acts," because he "was not a public official performing a discretionary act, but rather was engaged in the ministerial matter of navigating a left turn." - *Cottey v. Schmitter*, **24 S.W.3d 126, 128** (Mo. App. W.D. 2000) ✅ — MHTC's cap did not limit the snowplow operator's liability. - *Cole ex rel. Cole v. Warren County R-III School District*, **23 S.W.3d 756, 761** (Mo. App. E.D. 2000) ✅ — school district's sovereign immunity not transferable to its bus driver. - ⚠️ **23 S.W.3d 756 is AMBIGUOUS** — also matches *State v. Holmes*, same date (2000-06-06). **Always cite with the full case name, never by reporter alone.** - *Brancati*, 571 S.W.3d 625 ✅ — Eastern District declined an express invitation to overrule *Cole*. Bi-State capped at $414,418; **driver Allen liable for the full $625,000, uncapped**. **Operational rule:** in any MVA with a government-vehicle defendant, **name the individual employee-driver**. Driving is ministerial, so official immunity does not attach, and the § 537.610.2 cap runs only to the entity. ### Notice statutes - **§ 82.210** ✅ **VERIFIED** — 90-day written notice to the mayor, cities of 100,000+. **Scope is narrow.** Reaches injuries "growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare." It is a **road-defect notice, not a general claims notice**. - *Jones v. City of Kansas City*, 15 S.W.3d 736 (Mo. banc 2000) ✅ — a yield sign is not a thoroughfare. - *Williams v. City of Kansas City*, 782 S.W.2d 64 (Mo. banc 1990) ✅ — the other side of the line. - **It bites pothole and construction-zone cases, not the city-employee rear-ender.** Both St. Louis City and Kansas City clear the population threshold. - **§ 79.480** ⛔ — fourth-class cities. Not verified. 🔶 **The SOL calculator must branch on government defendant.** Notice deadlines run far shorter than any limitations period. --- ## 7. Limitations ### § 516.120(4) — five years ✅ VERIFIED verbatim > "An action for taking, detaining or injuring any goods or chattels, including actions for the > recovery of specific personal property, or for any other injury to the person or rights of > another, not arising on contract and not herein otherwise enumerated." ### § 537.100 — wrongful death, three years ✅ VERIFIED Three years, running **from accrual, generally the date of death** — **not the date of the crash**. Where the client survives the collision and dies months later, these are different dates. **Compute from death.** ### § 516.170 — tolling ✅ VERIFIED verbatim > "**Except as provided in section 516.105**, if any person entitled to bring an action **in > sections 516.100 to 516.370 specified**, at the time the cause of action accrued be either within > the age of twenty-one years, or mentally incapacitated, such person shall be at liberty to bring > such actions within the respective times in sections 516.100 to 516.370 limited after such > disability is removed." 🔶 **Two answers fall out of the text:** 1. **Wrongful death is § 537.100 — outside the §§ 516.100–516.370 range. § 516.170 does not toll it by its own terms.** 2. **Medical malpractice is expressly carved out.** Revisor annotation: *"(1996) Actions brought pursuant to this section are not tolled under 516.170."* ⚠️ **"Five years from turning 21" is a derived figure, not statutory text.** The statute grants "the respective times… after such disability is removed." Five years is the § 516.120(4) period. A different underlying claim yields a different number. **Do not hardcode the derivation.** ### § 516.105 — health care and mental health providers, two years ✅ VERIFIED A.L. 2018 S.B. 871. Two years from **date of occurrence**, except: - **.1(1)** foreign object — two years from discovery, or when the patient in the exercise of ordinary care should have discovered, whichever first occurs - **.1(2)** negligent failure to inform of test results — same discovery structure - **.1(3)** minor under 18 — until the **twentieth birthday** Outer bound: **ten years from the act**, or **two years from a minor's eighteenth birthday**, whichever is later. **§ 516.105.2** — 180-day service window after expiration. 🔶 **THE MVA TRAP.** The covered list expressly names **chiropractors** and **professional physical therapists**. Chiropractic is the most common MVA treatment modality in Missouri. **A claim arising out of that treatment is a two-year claim sitting inside a file that feels like a five-year file.** Related: *Goodman v. St. Louis Children's Hospital*, 687 S.W.2d 889 (Mo. banc 1985) ⛔; *McLeran v. St. Luke's Hospital of Kansas City*, 687 S.W.2d 892 (Mo. banc 1985) ⛔. Not run. ### § 516.140 — two years ✅ VERIFIED verbatim > "Within two years: an action for libel, slander, injurious falsehood, assault, battery, false > imprisonment, criminal conversation, malicious prosecution or actions brought under section > 290.140." 🔶 **There is no general intentional-tort catch-all.** Road-rage **battery** is two years. **IIED is not on the list**, which argues for the five-year § 516.120(4) residual. Teach the distinction, not "2 years for intentional torts." Last amended A.L. 2014. ### Why this matters **A skill that only says "5 years" will confidently blow a 2-year deadline in exactly the fact patterns where the intake looked routine.** --- ## 8. Liens and subrogation ### 🔶 The frame: Missouri is an ANTI-SUBROGATION state, not a made-whole state The rule is not that a health insurer's subrogation is subject to made-whole. **The rule is that it is generally void.** Missouri public policy bars assignment of a personal injury claim in whole or in part, and an insurer's attempt to take a subrogation interest in an insured's PI claim against a third-party tortfeasor is void as against public policy. - *Hays v. Missouri Highways & Transportation Commission*, **62 S.W.3d 538, 540** (Mo. App. W.D. 2001) ✅ - *Buatte v. Gencare Health Systems, Inc.*, 939 S.W.2d 440 (Mo. App. 1996) ✅ - *Benton House, LLC v. Cook & Younts Insurance, Inc.*, 249 S.W.3d 878 (Mo. App. 2008) ✅ **Structure: default and exceptions.** | | Rule | |---|---| | **Default** | No subrogation of a Missouri PI recovery. | | **Exception 1 — ERISA self-funded** | Preemption. *US Airways, Inc. v. McCutchen*, 569 U.S. 88 (2013) ✅ — plan terms override equitable defenses like made-whole, **but a silent plan lets the common-fund doctrine reduce the lien**. *Montanile v. Bd. of Trustees*, 577 U.S. 136 (2016) ✅ — a plan seeking equitable relief under § 502(a)(3) **cannot reach general assets once the fund is dissipated**. *Great-West v. Knudson*, 534 U.S. 204 (2002) ✅. | | **Exception 2 — FEHBA** | *Nevils v. Group Health Plan, Inc.*, 418 S.W.3d 451 (Mo. banc 2014) ✅ held FEHBA did **not** preempt. **The U.S. Supreme Court REVERSED**: *Coventry Health Care of Missouri, Inc. v. Nevils*, 581 U.S. 87 (2017) ✅. **FEHBA preempts.** Anyone citing *Nevils I* as good law is two steps behind. | | **Exception 3 — Medicare** | Statutory. See below. | | **Exception 4 — Medicaid / MO HealthNet** | Statutory. *Ahlborn*, 547 U.S. 268 (2006) ✅; *Wos v. E.M.A.*, 568 U.S. 627 (2013) ✅; and **now *Gallardo v. Marstiller*, 596 U.S. 420 (2022) ✅**, which reaches the portion allocated to **future** medical expenses, not just past. **Any allocation drafted on pre-2022 assumptions is wrong.** | | **Exception 5 — hospital & ambulance liens** | Statutory liens, not subrogation — which is why they survive the anti-subrogation rule. | **Consequence:** the first lien question in a Missouri MVA is **not** "how far do we negotiate this down." It is **"does this entity have any right to be paid at all,"** and for a fully-insured non-ERISA health plan the answer is frequently **no**. ### Medicare — federal, verified verbatim - **42 U.S.C. § 1395y(b)(2)(A)–(B)** ✅ — MSP bar and conditional-payment authority. Reaches payments made or reasonably expected under "an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance." - **42 C.F.R. § 411.24(g)** ✅ — "CMS has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, **attorney**, State agency or private insurer that has received a primary payment." - **42 C.F.R. § 411.24(h)** ✅ — reimburse Medicare **within 60 days**. - **42 C.F.R. § 411.24(i)(1)** ✅ — if Medicare is not reimbursed, the primary payer **must pay Medicare again**, even having already paid the beneficiary. **This is the lever that makes adjusters care.** - **42 U.S.C. § 1395y(b)(8)** ✅ — Section 111 reporting. ### ERISA plan documents — the leverage tool - **29 U.S.C. § 1024(b)(4)** ✅ — the **duty**: "The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description… the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated." - **29 U.S.C. § 1132(c)(1)(B)** (ERISA § 502(c)(1)(B)) ✅ — the **penalty**, a different section: an administrator who fails to comply "within 30 days after such request **may in the court's discretion** be personally liable… in the amount of **up to $100 a day**." **Discretionary. Personal to the administrator. Runs from 30 days after the request.** Cite as leverage, not entitlement. - **29 C.F.R. § 2575.502c-1** ✅ exists ("Adjusted civil penalty under section 502(c)(1)") and raises the figure. ⛔ Current amount not pulled; adjusts by annual DOL notice. **Why it matters:** *McCutchen* turns on the plan text. **Request the plan document at intake.** ### Missouri hospital and ambulance liens — two different 50% rules ⚠️ **The 50% sharing rule is § 430.225.3, NOT § 430.250.** This is the single most misstated mechanic in the chapter. **§ 430.225.3** ✅ — the sharing rule: > "If the liens… exceed fifty percent of the amount due the patient, every health care > practitioner, hospital, clinic or other institution giving notice of its lien… shall share in up > to fifty percent of the **net proceeds** due the patient, in the proportion that each claim bears > to the total amount of all other liens…" > "**Net proceeds**… means the amount remaining after the payment of **contractual attorney fees, > if any, and other expenses of recovery**." **§ 430.250** ✅ — enforcement, on a **different base**: a payor that pays over a noticed lien remains liable to the hospital for one year, measured against "fifty percent of the moneys due to such patient… after paying the amount of **attorneys' liens, federal and Missouri workers' compensation liens, and any prior liens**." **Two 50% formulations, two denominators, one statutory scheme.** That is why practitioners get it wrong. - **§ 430.230** ⛔ creates the lien; **§ 430.240** ⛔ sets the notice that triggers § 430.250 liability. Not pulled. - **§ 190.250** ✅ 🔶 — **ambulance services** get the same rights under §§ 430.230–.250. A lien in nearly every MVA file. - **§ 537.675** ⛔ — Tort Victims' Compensation Fund lien. Not pulled. --- ## 9. Medical records — HIPAA, the Patient Rate, and *Ciox* ### 45 C.F.R. § 164.524(c)(4) ✅ VERIFIED The fee may include **only**: labor for copying; supplies for paper or portable media; postage when mailing was requested; and preparing an agreed summary or explanation. **Search and retrieval time is not on the list.** That is the entire gap between the Patient Rate and what a Missouri provider charges under § 191.227. **45 C.F.R. § 164.508** ⛔ — authorization core elements. Not pulled. ### *Ciox Health, LLC v. Azar* ✅ VERIFIED — full opinion recovered **Cite: *Ciox Health, LLC v. Azar*, No. 18-cv-00040 (APM) (D.D.C. Jan. 23, 2020) (Mehta, J.), Mem. Op., ECF No. 51.** Issued under seal Jan. 23; unsealed without redaction Jan. 27 per Minute Order, ECF No. 50. 55 pages. Recovered from RECAP (docket 6257043); free on PACER. ⛔ **The reporter cite 435 F. Supp. 3d 30 is NOT confirmed** by a primary source. The citation lookup missed because **the docket is captioned *CIOX HEALTH, LLC v. HARGAN*** — Eric Hargan was acting HHS Secretary at filing. **Cite by docket until the reporter cite is confirmed.** **Holding, from the conclusion:** > "the court (1) declares unlawful and vacates the 2013 Omnibus Rule insofar as it expands the > HITECH Act's third-party directive beyond requests for a copy of 'an [EHR] with respect to [PHI] > of an individual… in an electronic format,' 42 U.S.C. § 17935(e); and (2) declares unlawful and > vacates the 2016 Guidance insofar as it, without going through notice and comment, extends the > Patient Rate to reach third-party directives." 🔶 **Four points commonly missed:** 1. **The 2013 Omnibus Rule vacatur is the bigger holding.** The third-party directive is now confined to **EHRs in electronic format**. Everything else requires a § 164.508 authorization. The court: § 17935(e) "applies by its terms only to [PHI] in EHRs" (HHS's own concession, 78 Fed. Reg. at 5,631), and HHS could not use general HIPAA § 264(c) rulemaking authority to expand a congressionally imposed restriction. *"Disagreeing with Congress's expressly codified policy choices isn't a luxury administrative agencies enjoy."* 2. **The labor-cost exclusion SURVIVED** as an **interpretive** rule — notice and comment not required. Search-and-retrieval labor is still not recoverable under the Patient Rate. 3. ⚠️ **The vacatur was PROCEDURAL, not substantive.** The court found the Patient Rate expansion was a legislative rule adopted without notice and comment, then **expressly declined the merits** to avoid foreclosing HHS from revisiting scope. **HHS can redo this.** A skill stating the post-*Ciox* rule as settled will be wrong the day a final rule issues. **Review trigger.** 4. **The three calculation methods claim was dismissed** as not final agency action. The **$6.50 flat fee is one option among three and expressly NOT a cap.** ⚠️ **The framing is NOT "attorney-directed vs. client-directed."** It is: | Request type | Patient Rate? | |---|---| | **Personal-use request** — patient asks for her own records | **Applies** | | **Third-party directive** — patient directs records to the firm | **After *Ciox*, no longer capped.** And the directive right now reaches only EHRs in electronic format. | | **Third party's own request** with a HIPAA authorization | **Never was capped.** 2016 Guidance at 17. | **Also from the opinion:** HHS's published Fact Sheet states it "lacks the authority to enforce the 'reasonable, cost-based fee' limitation in 45 C.F.R. § 164.524(c)(4) against business associates." But **45 C.F.R. § 160.402(c)(1)** ✅ makes the covered entity liable for its business associate's acts as agent, which is why fee discipline propagates anyway. ### Missouri - **§ 191.227** ⛔ — provider-records statute: written request, fee structure, **annual CPI adjustment**. Not pulled. Adjusts annually — review trigger. - **Ch. 610 (Sunshine Law); § 43.512** ⛔ — crash reports. Not pulled. - **§ 490.680** ⛔ — business records affidavit. Not pulled. Request it alongside the records; one sentence, saves a deposition. --- ## 10. Comparative fault ✅ **VERIFIED for existence.** *Gustafson v. Benda*, **661 S.W.2d 11** (Mo. banc **December 20, 1983**), cited by 268 opinions. **It is 1983** — several prior working documents date it to 1982. ⛔ **Pin cite unverified.** 661 S.W.2d at 15–16 is asserted for the adoption of pure comparative fault via the Uniform Comparative Fault Act. **Confirm against the opinion before publishing.** § 537.765 ⛔ not pulled. **Pure comparative fault reduces but does not bar recovery.** --- ## 11. Damages ### § 510.261 — punitive damages ✅ VERIFIED SB 591, effective **August 28, 2020**; **applies only to actions filed on or after that date**. - **§ 510.261.1** — clear and convincing evidence that the defendant "intentionally harmed the plaintiff without just cause **or acted with a deliberate and flagrant disregard for the safety of others**." Replaces the complete-indifference / conscious-disregard formulation from *Rodriguez v. Suzuki Motor Corp.*, 936 S.W.2d 104 (Mo. banc 1996) ✅; see also *Schroeder v. Lester E. Cox Medical Center, Inc.*, 833 S.W.2d 411 (Mo. App. 1992) ✅. - ⚠️ **§ 510.261.5** — leave required on written motion filed **no later than 120 days prior to the FINAL PRETRIAL CONFERENCE**, or 120 days prior to trial only if no conference is scheduled. **Not "120 days before trial."** - Interacts with **§ 537.610.3** — no punitives against a public entity at all. - Interacts with **§ 408.040** via *Werremeyer* — prejudgment interest reaches the punitive award. ⛔ **Whether § 510.261.1 raises the bar in a DWI case is unlitigated.** Present as unsettled. ### Other - **§ 538.210** ⛔ — caps non-economic damages in **medical malpractice** but **not** in ordinary negligence; *Watts* struck the common-law-claim cap. **Do not import a cap that does not exist in MVA.** Not pulled. - **§ 375.420** ⛔ vexatious refusal (first-party). Not pulled. --- ## 12. Coverage, bad faith, and § 537.065 ### § 537.065 — limited-recovery agreements ✅ VERIFIED SS HB 345, signed June 29, 2021, effective **August 28, 2021**. - **.1** — available only where the insurer "has the opportunity to defend the tort-feasor without reservation but refuses to do so." - **.2** — notice to the insurer, with a copy of the executed contract and notice of the action, **within thirty days after execution**; a dismissal-and-refile restarts the obligation; if no action is pending at execution, notice runs from when the tort-feasor learns of one. - **.3** — **no judgment for at least thirty days** after the insurer receives that notice. - **.4** — **unconditional right to intervene within thirty days**; on intervening the insurer gets full defendant rights — discovery, motion practice, jury trial, sufficient time to prepare — and **is not bound by prior agreements of the parties or prior orders of the court**. - **.5** — applies to any covenant not to execute "regardless of whether it is referred to as a contract under this section." **The label does not matter.** - **.6** — dismissal/refiling mechanics. - **§ 435.415.2** ✅ — arbitration awards in PI cases are **not binding on an insurer** absent its written agreement, and declining to participate **is not bad faith**. Closed the private-arbitration workaround. *Allen v. Bryers*, **512 S.W.3d 17, 35–36** (Mo. banc 2016) ✅ — the leading § 537.065 case. ⛔ **A 2026 Western District decision (reported as *Lyda*)** reportedly holds a trial court's approach deprived an intervening insurer of the 2021 rights. If real, it is the current word on how much an intervenor can litigate. **Post-cutoff; unverified. Run it.** ### Duty to settle - *Scottsdale Insurance Co. v. Addison Insurance Co.*, 448 S.W.3d 818 (Mo. banc 2014) ✅ — the Missouri framework. (Full caption adds Wells Trucking and United Fire; short form is standard.) - *Zumwalt v. Utilities Insurance Co.*, 228 S.W.2d 750 (Mo. 1950) ✅ (360 Mo. 362) — the older bad-faith failure-to-settle standard. ### UM/UIM and policy construction - *Ritchie v. Allied Property & Casualty Insurance Co.*, 307 S.W.3d 132 (Mo. banc 2009) ✅ — anti-stacking. - *Floyd-Tunnell v. Shelter Mutual Insurance Co.*, 439 S.W.3d 215 (Mo. banc 2014) ✅. - *Gulf Insurance Co. v. Noble Broadcast*, 936 S.W.2d 810, 814 (Mo. banc 1997) ✅ — contra proferentem. - *Columbia Mutual Insurance Co. v. Epstein*, 239 S.W.3d 667 (Mo. App. 2007) ✅ — the **insurer** bears the burden to prove an exclusion. - *Standard Artificial Limb, Inc. v. Allianz Insurance Co.*, 895 S.W.2d 205, 209 (Mo. App. 1995) ✅ — reasonable expectations. **Intake rule:** capture the number of vehicles and policies in the household so the stacking question can be run later. --- ## 13. Venue, procedure, and instructions - **§ 508.010** ⛔ — venue in tort actions; substantially rewritten in 2005. Not pulled. **Venue belongs in a valuation memo as a line item.** The spread between the City of St. Louis and a rural county is not a rounding error. - **§ 537.095** ⛔ — minor / wrongful-death court approval. Not pulled. - **§§ 304.012, 304.017, 304.351** ⛔ — rules of the road. Not pulled. - ⛔ **Missouri negligence per se elements — no case identified.** A citation alone is not liability, and a guilty plea and a payment of a fine have different evidentiary consequences ⛔. - *Ford Motor Co. v. Montana Eighth Judicial District Court*, 592 U.S. 351 (2021) ✅ — for the manufacturer-defendant crashworthiness case. ### MAI 🔶 From *Brancati*: **MAI 17.05** (Failure to Keep a Careful Lookout) and **MAI 17.04** (Failure to Act After Danger of Collision Apparent) are real and in active use, with MAI 17.04's Notes on Use expressly permitting comparative-fault submission. *Brancati* also demonstrates the **roving commission** doctrine defeating a non-MAI comparative-fault instruction — *Klotz v. St. Anthony's Medical Center*, 311 S.W.3d 752, 766 (Mo. banc 2010) ✅ and *Scanwell Freight Express STL, Inc. v. Chan*, 162 S.W.3d 477, 482 (Mo. banc 2005) ✅ (both verified for existence; pin cites ⛔). **Self-check worth adding to any demand: "which MAI would this go to the jury on?"** A demand that tracks the verdict director is a more credible demand. --- ## Verification protocol 1. **Statutory text comes from the Revisor** (revisor.mo.gov), not an aggregator. Justia, FindLaw, and LawServer lag; several currently serve the **2005** version of § 408.040 as though current. 2. **Every case verified through CourtListener** for existence and reporter citation before it enters a skill. Watch for **ambiguous reporter pages** (23 S.W.3d 756 → *Cole* / *Holmes*; 571 S.W.3d 625 → *Brancati* / *Hurd*) and for canonical names that differ from the short form. 3. **Check appellate history before citing.** A missing reporter cite on a Court of Appeals opinion is evidence of **transfer**, not a database gap. *Jameson* is the worked example. 4. **Pin cite to the subsection**, never the bare section. § 408.040.3(4). § 430.225.3. § 510.261.5. § 303.390.2. 5. **Date-stamp this file.** § 191.227 fees, § 537.610 caps, and the ERISA § 502(c) penalty adjust annually; § 408.040's rate floats with the Federal Funds Rate. 6. **Mark contingent holdings as contingent.** *Ciox* vacated on notice-and-comment grounds and the court declined the merits — HHS can redo it. § 303.390's constitutionality has no appellate merits ruling. § 510.261's effect on the DWI punitive standard is unlitigated. 7. **Where a proposition cannot be verified, it is marked ⛔ and does not ship.** The library's promise is that the skills refuse to invent facts. **That promise binds this file first.** 8. **The attorney signs. Not the model.** --- ## Provenance Built by merging two independent verification passes over the same source material. Each caught errors the other missed, with almost no overlap: one found the § 303.390.2 inversion and the *Brancati* framing; the other found the *Jameson* transfer and the stale open list. Eleven corrections in total. The lesson both passes converged on, and the one that caught the *Jameson* error: **pull the text, and treat a plausible explanation for missing evidence as a reason to look harder rather than a reason to stop.**