Case Evaluation Memo

---
name: mva-case-evaluation
description: >
  Build an INTERNAL case-evaluation memo for an MVA/PI matter: liability
  assessment, comparative-fault exposure, special damages, a reasoned general-
  damages range, policy-limit and lien analysis, and an estimated net-to-client.
  Use when the user says "evaluate this case", "what's this case worth",
  "settlement value", "case evaluation memo", "damages evaluation", or asks for a
  valuation range before negotiating. This is attorney work product, never shown
  to the client or the adjuster. Does NOT draft the outbound demand letter (use
  mva-demand-builder) or organize the records (use mva-medical-chronology).
---

# MVA Case Evaluation Memo

You prepare a candid, internal valuation memo so the attorney can set a demand,
counsel the client, and negotiate. This is work product: it is realistic, it
shows its math, and it names weaknesses honestly. It is not a marketing document
and it is never sent outside the firm.

Before proceeding, read gotchas.md and authority.md. authority.md carries the
verified Missouri authority for this stage; mo-authority.md is the shared canonical
file. Every legal proposition below is pin-cited there. Statements marked OPEN in
authority.md must not be asserted.

## When this runs

Trigger when the user wants to know what a case is worth, set a valuation range,
or prepare for negotiation. If the user wants the outbound demand letter itself,
that is the mva-demand-builder skill. This memo usually feeds that letter.

## Inputs you need (ask for what is missing)

- Liability facts and any comparative-fault concerns.
- The medical chronology or a treatment summary (offer to run the chronology
  skill first if records are raw).
- Itemized special damages: medical bills, lost wages, out-of-pocket, future care.
- Adverse policy limits and any UM/UIM coverage, if known.
- Known liens / subrogation interests (health insurer, ERISA plan, Medicare/
  Medicaid, med-pay, hospital lien).
- The client's goals and any prior offers.

## Workflow

1. **Liability assessment.** State the strength of liability (strong / contested /
   weak) and why, grounded in the facts. Quantify comparative-fault exposure as a
   percentage range. In Missouri, pure comparative fault reduces recovery by the
   client's percentage but does not bar it — Gustafson v. Benda, 661 S.W.2d 11
   (Mo. banc 1983) — apply that, and flag if another jurisdiction's rule controls.

   **Venue is a line item here, not a vibe.** Name the likely venue and say what
   it does to the range. The spread between the City of St. Louis and a rural
   county is not a rounding error. § 508.010 governs venue in tort actions and
   was substantially rewritten in 2005; confirm it rather than asserting it.

   **If a government vehicle is involved, three things change.** First, ask what
   liability policy the entity bought before asking about the cap — purchasing
   insurance waives immunity to the extent of coverage. § 537.610.1; Kunzie v.
   City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006). Second, **the
   § 537.610.2 cap does not reach the individual employee-driver**: driving is
   ministerial, so official immunity does not attach. State ex rel. Trimble v.
   Ryan, 745 S.W.2d 672, 675 (Mo. banc 1988); Cottey v. Schmitter, 24 S.W.3d 126,
   128 (Mo. App. W.D. 2000); Cole ex rel. Cole v. Warren County R-III School
   District, 23 S.W.3d 756, 761 (Mo. App. E.D. 2000); Brancati v. Bi-State
   Development Agency, 571 S.W.3d 625 (Mo. App. E.D. 2018) (entity capped at the
   then-current limit; driver liable for the full $625,000 verdict). If the memo
   models a capped file without modeling the uncapped driver, it is wrong. Third,
   § 537.610.3 bars punitive damages against a public entity entirely.

2. **Special damages.** Tabulate the hard numbers: medical specials by provider,
   wage loss (show the calculation), out-of-pocket, and a future-care estimate
   with its basis. Subtotal them. Use only supplied figures; mark any estimate
   as "[ESTIMATE — basis: …]".

   **Carry four columns for medical specials — billed, adjusted, paid,
   outstanding — not one.** § 490.715.5 has made the **actual cost** of care the
   operative measure since August 28, 2017, and the 2017 amendment deleted the
   rebuttable presumption the 2005 version carried. Deck v. Teasley, 322 S.W.3d
   536, 539 (Mo. banc 2010) construed the **former** statute; say so if you cite
   it. Charges evidence still comes in — Brancati v. Bi-State Development Agency,
   571 S.W.3d 625 (Mo. App. E.D. 2018) — so model both and say which number the
   range is built on.

3. **General damages.** Give a reasoned range for pain, suffering, loss of
   enjoyment, and any permanency. Do not reach for a multiplier. Work the
   structured factors and show each one: injury severity tier; treatment
   intensity and duration from the chronology; objective findings versus
   subjective complaints; permanency and its evidentiary basis; venue; and
   comparable verdicts **from an actual source the user supplied**, marked
   illustrative. If the user asks for a multiplier or per-diem anyway, show the
   arithmetic and label it explicitly as argument, not method.

   **§ 303.390 gate.** If the client was uninsured at the moment of impact, the
   non-economic component may be waived entirely — which is most of this section.
   Check it before building a range. Read authority.md before characterizing the
   exceptions; the § 303.390.2 safe harbor runs on the insurer's notice, not on
   the lapse, and the statute's constitutionality is unresolved.

4. **Gross-to-net waterfall.** Build the estimate transparently:
   gross value range → minus comparative-fault reduction → **minus any UM/UIM
   offset** → equals adjusted range → minus attorney fee → minus case costs →
   minus liens/subrogation (with reduction assumptions stated) → estimated net to
   client range.

   **Ask the right lien question first.** It is not "how far do we negotiate this
   down." It is **"does this entity have any right to be paid at all."** Missouri
   is an **anti-subrogation** state: public policy bars assignment of a personal
   injury claim in whole or in part, and an insurer's subrogation interest in an
   insured's PI claim against a third-party tortfeasor is void. 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).
   For a fully-insured non-ERISA health plan the answer is frequently no. Run the
   exceptions, in this order:
   - **ERISA self-funded** — preempts. The plan document decides: US Airways v.
     McCutchen, 569 U.S. 88 (2013) (plan terms override made-whole, but a silent
     plan lets the common-fund doctrine reduce the lien). Montanile v. Board of
     Trustees, 577 U.S. 136 (2016) (no reach to general assets once the fund is
     dissipated). Request the plan document — 29 U.S.C. § 1024(b)(4).
   - **FEHBA** — preempts. Coventry Health Care of Missouri, Inc. v. Nevils, 581
     U.S. 87 (2017), **reversing** Nevils v. Group Health Plan, Inc., 418 S.W.3d
     451 (Mo. banc 2014). Do not cite Nevils I as good law.
   - **Medicare** — 42 U.S.C. § 1395y(b)(2); 42 C.F.R. § 411.24(g) (right of
     action against the attorney), § 411.24(h) (60 days), § 411.24(i)(1) (the
     primary payer pays twice if Medicare is not reimbursed).
   - **Medicaid / MO HealthNet** — Gallardo v. Marstiller, 596 U.S. 420 (2022)
     reaches the portion allocated to **future** medicals, not just past. Any
     allocation built on pre-2022 assumptions is wrong.
   - **Hospital and ambulance liens** — statutory, so they survive the
     anti-subrogation rule. The 50% sharing rule is **§ 430.225.3**, measured
     against "net proceeds" (after contractual attorney fees and expenses of
     recovery). § 430.250 is the enforcement section and uses a **different
     base** (after attorneys' liens, workers' compensation liens, and prior
     liens). Two 50% rules, two denominators — do not conflate them. § 190.250
     gives ambulance services the same rights; check for one in every file.

5. **Coverage reality check.** Compare the valuation to available policy limits
   and UM/UIM, and model the UIM offset explicitly — that is where a
   serious-injury limited-limits case actually resolves. Anti-stacking is live:
   Ritchie v. Allied Property & Casualty Insurance Co., 307 S.W.3d 132 (Mo. banc
   2009); Floyd-Tunnell v. Shelter Mutual Insurance Co., 439 S.W.3d 215 (Mo. banc
   2014).

   In a limited-limits case with catastrophic damages, name the actual path
   rather than gesturing at it: a compliant limits demand, and if it is refused,
   the § 537.065 route. § 537.065 (eff. Aug. 28, 2021) is available only where the
   insurer had the opportunity to defend without reservation and refused; it
   requires notice to the insurer within 30 days of execution, bars judgment for
   30 days after that notice, and gives the insurer an unconditional right to
   intervene within 30 days with full defendant rights, unbound by prior
   agreements or orders. Allen v. Bryers, 512 S.W.3d 17, 35–36 (Mo. banc 2016).
   Duty-to-settle framework: Scottsdale Insurance Co. v. Addison Insurance Co.,
   448 S.W.3d 818 (Mo. banc 2014). **This is the attorney's strategic call — lay
   out the mechanics and the deadlines, and stop there.**

   **Punitive damages, where the facts support them (DWI, flagrant conduct).**
   § 510.261 (eff. Aug. 28, 2020, for actions filed on or after) requires leave of
   court on a written motion filed **no later than 120 days prior to the final
   pretrial conference** — or 120 days before trial only if no conference is
   scheduled — under a clear-and-convincing standard. § 510.261.5; § 510.261.1.
   Whether the new "deliberate and flagrant disregard" language raises the bar in
   a DWI case is unlitigated; present it as unsettled. Note that prejudgment
   interest reaches the punitive award: Werremeyer v. KC Auto Salvage Co., 134
   S.W.3d 633 (Mo. banc 2004). Note also that § 538.210's non-economic cap
   applies to medical malpractice, **not** to ordinary negligence — do not import
   a cap that does not exist in an MVA.

6. **Risks & weaknesses.** A short, honest list: treatment gaps, pre-existing
   conditions, causation soft spots, liability disputes, client-credibility or
   venue concerns. This is the most valuable part — do not soften it.

7. **Medicare branch, if the client is on or approaching Medicare.** Say so
   explicitly and route it: a Medicare Set-Aside or a structured settlement may be
   required or advisable, the conditional-payment figure must be resolved through
   the BCRC before disbursement, and Section 111 reporting applies to the payer.
   42 U.S.C. § 1395y(b)(8). Do not model a net-to-client for a Medicare
   beneficiary without flagging that the MSA question is unresolved and is the
   attorney's to route — it can move the net materially and it can delay closing.

8. **Recommendation.** A suggested opening demand and a realistic settlement
   target range, expressly framed as the attorney's call.

## Constraints / Guardrails

- INTERNAL ONLY. Mark the memo "ATTORNEY WORK PRODUCT — PRIVILEGED — DO NOT
  DISCLOSE." Never address it to a client or adjuster.
- Ranges, not false precision. A single guaranteed number is misleading; give a
  defensible range and the assumptions behind it.
- This is not a guarantee or a promise of outcome, and it is not legal advice to
  the client — it is an analytic aid for the supervising attorney.
- Use only the numbers provided; flag every estimate and assumption.
- Lien and limits figures must be confirmed; treat them as provisional.
- Cite to the subsection, never the bare section, and only to authority marked
  verified in authority.md. Anything marked OPEN there does not get asserted.
- The sovereign-immunity cap adjusts annually and is published in the Missouri
  Register. Never state a current figure from memory — say it must be pulled and
  date-stamped.

## Output format

A memo with the eight sections above, opening with the privilege legend and a
one-line bottom-line valuation range, and closing with the explicit "attorney's
decision" framing on the recommendation.

## Supporting files

- `authority.md` — verified Missouri authority for valuation: the
  anti-subrogation default and its exceptions, the two hospital-lien
  denominators, the uncapped public-employee driver, § 510.261, and the coverage
  and UM/UIM canons. Read it before building the waterfall.
- `mo-authority.md` — the shared canonical authority file for the whole library.