Legislative Update - May 28, 2021
On May 25, 2021, the General Assembly presented all remaining Truly Agreed legislation to Governor Parson for consideration and action. The deadline for gubernatorial action will be June 30, for appropriations bills, and July 14, for regular legislation. Below are summary highlights of Truly Agreed bills relating to torts and civil litigation.
Additional information about this year’s legislative session and Truly Agreed legislation will be published on The Missouri Bar’s Legislative Engagement Center.
N.B.: Missouri lawyers should also recall that in an order dated March 2, 2021, the Supreme Court of Missouri amended the Rules of Civil Procedure, resolving the status and effect of legislative amendments to certain discovery rules enacted in Senate Bill 224 (2019). The amended rules will take effect on September 2, 2021. Amendments to Missouri Discovery Rules
TORT LAW / CIVIL LITIGATION
Bill Text (TAFP – CCS#2/HCS/SS#2/SB 26) – Relating to public safety, with penalty provisions and an effective date for certain sections
Senate Bill 26 contained numerous new or amended statutory sections. Only those which may be relevant to tort law or civil litigation are summarized below:
LOCAL LAW ENFORCEMENT BUDGETS (Section 67.030) – Any taxpayer of a political subdivision could initiate an action for injunctive relief, which the court must grant, if the governing body of such political subdivision decreases the budget for its law enforcement agency, excluding school districts’ officers, by an amount exceeding more than 12% relative to the proposed budgets of other departments of the political subdivision over a five year aggregate amount.
EMERGENCY SERVICES (Section 190.307 & 650.335) – A public agency that operated an emergency system would have sovereign immunity and official immunity from civil damages.
Additionally, if a county had an elected emergency services board, that board would be eligible for loan funds or other financial assistance.
LAW ENFORCEMENT OFFICER DISCIPLINARY ACTIONS (Section 590.502) – Investigations of law enforcement officers, who reasonably believe the investigation could lead to disciplinary action, demotion, dismissal, transfer, or placement that could lead to economic loss, would have to include the following:
• Written notification to the officer of the existence and nature of the alleged violation and who would be conducting the investigation;
• A written statement outlining the complaint;
• Investigation conducted for a reasonable length of time, and questioning the officer only while on duty, unless prevented by reasonable circumstances;
• Information to the officers they were being ordered to answer questions under threat of disciplinary action prior to an interview session, and information that officers’ answers to the questions would not be used against them in a criminal proceeding;
• Secure locations, at the agency that is conducting the investigation or the office of the officer unless the officer consented to another location, for conducting investigations;
• Up to two investigators questioning the officer, who would have to be informed of the name and rank of each investigator;
• Assurance that the officer under investigation would not be threatened, harassed or promised rewards for answering questions, except the officer could be compelled to give protected statements to an investigator under direct control of the agency;
• An attorney or duly authorized representative present during questioning if the officer would so choose, who would have the opportunity to review the complaint prior to the questioning;
• A complete record of the investigation to be kept by the agency, and a copy would have to be provided to the officer upon request;
• The requirement that the agency conducting the investigation would have 90 days to complete such investigation, which could be extended under certain circumstances;
• The requirement that the officer would be informed in writing of the investigative findings and any recommendations for further action, within 5 days of the conclusion of the investigation; and
• The requirement that a complete record of the administrative investigation would be kept by the law enforcement agency, and all records would be confidential and not subject to disclosure under the Sunshine Law, except by lawful subpoena or court order.
Any law enforcement officer suspended without pay would be entitled to a full due process hearing. Any decision following the hearing would have to be writing and would have to include findings of fact.
Officers would have to have the opportunity to provide written responses to any adverse materials in their personnel file.
Officers would have the right to compensation for any economic loss incurred during an investigation if the officer were found to have committed no misconduct.
Employers would have to defend and indemnify officers against civil claims made against them while the officers were acting within their duties as law enforcement officers. If any criminal convictions arose out of the same conduct, the employer would no longer be obligated to defend officers in the civil claim. Officers could not be disciplined or dismissed as a result of the assertion of their constitutional rights in any judicial proceeding, unless the officers admit to wrongdoing.
Officers could bring an action for enforcement of these provisions in the circuit court for the county in which the law enforcement agency or governmental body had its principal place of business. Upon a finding by a preponderance of the evidence that such agency or body had purposely violated this act, the court would void any action taken in violation of this section. Suit for enforcement would have to be brought within one year from which the violation was ascertainable.
A law enforcement agency that had substantially similar or greater procedures would be deemed in compliance with this act.
Bill Text (TAFP – SS#2/SCS/SBs 51 & 42)
COVID-19 EXPOSURE ACTION (Section 537.1005) – No individual or entity engaged in businesses, services, activities, or accommodations would be liable in any COVID-19 exposure action unless the plaintiff could prove, by clear and convincing evidence, that:
(1) The individual or entity engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19; and
(2) The actual exposure caused personal injury to the plaintiff.
Additionally, no religious organization would be liable in any COVID-19 exposure action, unless the plaintiff could prove intentional misconduct.
There would be a rebuttable presumption of an assumption of risk by a plaintiff in an exposure claim when the individual or entity has posted and maintained signs in a clearly visible location at the entrance of the premises or has provided written notice containing the specified warning notice. No religious organization would be required to post or maintain a sign or provide written notice containing the warning notice.
Any adoption or change to a policy, practice, or procedure by an individual to address or mitigate the spread of COVID-19 after the exposure would not be considered evidence of liability or culpability. Additionally, nothing would require an individual or entity to establish a written or published policy addressing the spread of COVID-19, including any policy requiring or mandating vaccination or requiring proof of vaccination.
No individual or entity would be held liable for the acts or omissions of a third party unless the individual or entity had an obligation under general common law principles or the third party was an agent of the individual or entity.
A COVID-19 exposure action could not be commenced in any Missouri court later than two years after the date of the actual, alleged, feared, or potential exposure to COVID-19.
COVID-19 MEDICAL LIABILITY ACTION (Section 537.1010) – A health care provider would not be liable in a COVID-19 medical liability action unless the plaintiff could prove recklessness or willful misconduct by the health care provider and that the personal injury was caused by such recklessness or willful misconduct. An elective procedure that was delayed for good cause would not be considered recklessness or willful misconduct.
A COVID-19 medical liability action could not be commenced in any Missouri court later than one year after the date of the discovery of the alleged harm, damage, breach, or tort unless tolled for proof of fraud, intentional concealment, or the presence of a foreign body which had no therapeutic or diagnostic purpose or effect.
COVID-19 PRODUCTS LIABILITY ACTION (Section 537.1015) – An individual or entity who designed, manufactured, imported, distributed, labeled, packaged, leased, sold, or donated a covered product would not be liable in a COVID-19 products liability action if the individual or entity:
(1) Did not make the covered product in the ordinary course of business;
(2) Did make the covered product in the ordinary course of business and the emergency required the product to be made in a modified manufacturing process that is outside the ordinary course of business; or
(3) Did make the covered product in the ordinary course of business and use of the covered product was different from its recommended purpose and used in response to the COVID-19 emergency.
For a plaintiff to prevail in a COVID-19 products liability action, the plaintiff would have to prove, by clear and convincing evidence, recklessness or willful misconduct by the individual or entity and that such recklessness or misconduct caused the personal injury.
This section would not apply to any fraud in connection with the advertisement of a covered product. This section would apply to any claim for damages that has a causal relationship with the administration to or use by an individual of a covered product. Additionally, this section would apply only to covered products administered or used for the treatment of or protection against COVID-19 and would apply to any such covered product regardless of whether the product was obtained by donation, commercial sale, or any other means of distribution by federal, state, or local officials or by the private sector.
A COVID-19 products liability action could not be commenced later than two years after the date of the alleged harm, damage, breach, or tort unless tolled for proof of fraud or intentional concealment.
PUNITIVE DAMAGES IN COVID-19 RELATED ACTIONS (Sections 537.1020) – Punitive damages could be awarded in any COVID-19 related action, but they could not exceed an amount in excess of nine times the amount of compensatory damages.
APPLICATION OF THIS ACT (Section 537.1035) – The provisions of this act expire four years after its effective date (August 28, 2021, if signed by the governor).
This act creates a new cause of action and replaces any such common law cause of action. Furthermore, this act preempts and supersedes any state law related to the recovery for personal injuries covered under a COVID-19 related action unless the provisions of state law impose stricter limits on damages or liabilities for personal injury. The provisions of this act shall not expand any liability or limit any defense otherwise available.
This act shall not be construed to:
(1) Affect the applicability of the Workers' Compensation Law and chapters of law relating to discriminatory practices, employee-employer relations, and landlord-tenant relations for residential property;
(2) Impair, limit, or affect the authority of the state or local government to bring any criminal, civil, or administrative enforcement actions against any individual or entity nor shall it affect causes of action for intentional discrimination;
(3) Require or mandate a vaccination or affect the applicability of any provision of law creating a cause of action for a vaccine-related personal injury;
(4) Prohibit an individual or entity engaged in businesses, services, activities, or accommodations from instituting a cause of action regarding an order issued by the state or local government that requires an individual or entity to temporarily or permanently cease the operation of such business;
(5) Affect the applicability of any provision of law providing a cause of action for breach of a contract insuring against business interruption or for failure or refusal to pay a contract insuring against business interruption;
(6) Affect the applicability of any provision of law providing a cause of action alleging price gouging, non-educational related canceled events, or payment of membership fees; and
(7) Affect the applicability of any provision of law providing a cause of action for breach of a contract against an educational institution for the refund of tuition or costs.
Bill Text (TAFP – SS/HB 345)
ARBITRATION AWARDS FOR PERSONAL INJURY, BODILY INJURY, OR DEATH (Section 435.415) – Any arbitration award for personal injury, bodily injury, or death or any judgment or decree entered on such arbitration award would not be enforceable against insurers, unless the insurer had agreed in writing to the arbitration proceeding or agreement. Unless otherwise required by contract, an insurer's election not to participate in arbitration would not constitute bad faith. The section would not apply to any arbitration awards for personal injury, bodily injury, or death or any judgment or decree entered on an arbitration award for such, arising out of an arbitration agreement preceding the date of injury or loss.
CONTRACTS TO LIMIT RECOVERY TO SPECIFIED ASSETS OR INSURANCE CONTRACT (Section 537.065) – A person having an unliquidated claim for damages against a tort-feasor could enter into a contract with the tort-feasor if the person's insurer had refused to withdraw a reservation of rights or declined coverage for such unliquidated claim. The legislation specifies what would happen 1) if there is any action seeking a judgment on a claim against a tort-feasor at the time of the execution of any contract between the two parties, 2) if there is a pending action at the time of the execution of a contract but the action is subsequently dismissed, and 3) if there is no action seeking judgment on a claim at the time of the execution of any contract between the two parties.
Any insurer receiving notice under this section would have the unconditional right to intervene in any pending civil action involving the claim for damages within 30 days after receipt of the notice, and insurers intervening in a court proceeding where the defendant had contracted to limit his or her liability to specified assets would have all the same rights as afforded to defendants. Nothing in the act alters or reduces an intervening insurer's obligations to any insureds other than the tort-feasor, including any co-insureds. All terms of a covenant not to execute or any terms of any contract to limit recovery to specified assets would have to be in writing and signed by the parties to the covenant or contract. Unwritten terms of any covenant or contract under this section would not be enforceable against any party to the covenant or contract or any other person or entity. In any action asserting bad faith by the insurer, any agreement between the tort-feasor and the insured would be admissible in evidence. The exercise of any rights under this section would not be construed to be bad faith.
Bill Text (TAFP – SS/HCS/HB 369)
HISTORIC CEMETERIES (Section 253.387, RSMo) – The Department of Natural Resources (“DNR”) would be authorized to acquire the Antioch Cemetery in Clinton, Missouri, where freed African-American slaves and their descendants are interred, to be designated as a state historic site and maintained by the Division of State Parks. Burials could continue until all plots had been purchased, with DNR allowed to charge no more than $100 per burial to be credited to the newly created "Antioch Cemetery Fund".
FERAL HOGS (Sections 270.170, 270.180, 270.260, 270.270, and 270.400) – The phrase "or sheep" would be removed from provisions of law relating to certain animals running at large. The definition for "feral hog" would be repealed and replaced with a definition for "feral swine". Any person who recklessly or knowingly released any swine to live in a wild or feral state could be sentenced to pay a fine up to $2,000. Provisions of law relating to the release of feral swine would not be construed to criminalize the release of domestic swine into a facility under a Department of Conservation permit, or to hinder the ability to transport domestic swine to market or slaughter. Provisions of law relating to the possession or transportation of feral swine would not apply to the possession of the offspring of domestic swine that were unintentionally sired by feral swine and were reported to the state veterinarian. Any person who took or killed a feral swine on public or private land without the landowner’s consent or with the use of an artificial light or thermal imagery would be guilty of a Class A misdemeanor. The Department of Agriculture Director’s rulemaking authority for health standards for certain wild swine would be repealed as would provisions of law creating the Animal Health Fund.
PRIVATE CAMPGROUND LIABILITY PROTECTION (Section 537.328) – An owner, employee, or officer of a private campground would be prohibited from being liable for acts related to camping at a private campground if the injury or damage occurred as a result of an inherent risk of camping. This bill would not apply to actions arising under Missouri Workers' Compensation Law, nor would it prevent or limit liability of an owner, employee, or officer who 1) intentionally caused injury, death, or damage, 2) acted with a willful or wanton disregard for the safety of the person or property damaged, 3) failed to use the degree of care that an ordinarily careful and prudent person would use under the circumstances, or 4) failed to conspicuously post warning signs of known dangerous conditions on the property. Warning signs would be required to appear in black letters of at least one inch in height on a white background. Warning signs and written contracts entered into by an owner, employee, or officer would have to contain a warning notice.
LANDOWNER LIABILITY (Sections 316.250, 537.346, 537.347, and 537.348) – A landowner would not be liable for injuries a trespasser received while on the landowner's residential area, if such area were adjacent to a park or trail and that was how the trespasser entered the owner's property. The bill would extend the limited liability a landowner currently enjoys, when inviting or permitting a person to enter his or her land for recreational use in compliance with a state-administered recreational access program, to landowners who invite or permit a person to enter his or her land for recreational use in compliance with a state-administered wildlife management program. Landowner liability law, stating that nothing in its provisions creates or limits liability that otherwise would be incurred by owners of land for injuries occurring on or in any land within the corporate boundaries of any city, municipality, town, or village in this state, would be repealed.
ACCESS TO PRIVATE PROPERTY (Section 542.525) – The bill would prohibit any employee of a state agency or political subdivision of the state from placing a surveillance camera or game camera on private property without 1) the consent of the landowner or landowner's designee, 2) a search warrant, or 3) permission from the highest-ranking law enforcement chief or officer of the agency. If placed with the permission of the highest-ranking officer, the camera would be required to face a location that is open to public access or use and be within 100 feet of the intended surveillance location.
PRESCRIBED BURNING ACT (Section 573.354) – The "Prescribed Burning Act" would be created. It would specify that any landowner or agent of a landowner would not be liable for damage, injury, or loss caused by a prescribed burn, or the resulting smoke of a prescribed burn, unless the landowner were proven to be negligent. Additionally, certified burn managers would not be liable if burns were conducted in accordance with written prescribed burn plans, unless the burn managers were found to be negligent. The provisions of the bill would not apply to damage, injury, or loss to property, lands, rights-of-way, or easements of certain utilities and railroad companies.