Dear Sir:

In my article on the case of State ex rel. Linthicum v. Calvin,¹ which appeared in the March-April edition of the Journal, I suggested that it was no doubt too early to assess the long-term effect of the decision. What I had in mind when I wrote the article in the Fall of 2004 was that there could be further refinement of the Linthicum doctrine in the upcoming years. I did not anticipate at that time that the state legislature would act as soon as it has to codify and expand Linthicum - as well as make a number of major changes to the state's venue provisions. I would just call your readers' attention to the fact that several of the observations I made in my article have now been rendered obsolete by the passage of House Bill 393, which was signed into law on March 28, 2005, and which becomes effective August 28, 2005.

To begin with, the bill eliminates the former § 508.040, RSMo, which had set forth special provisions for venue as to corporations. Presumably, this will end the distinction which had been made between cases under § 508.010 where a corporation was sued along with individuals (and where its residence was held to be the location of its registered office) and cases under § 508.040, where a corporation was sued by itself or with other corporations (and where the corporation's residence was deemed to be the location of an office or agent "for the transaction of their usual and customary business."). Under the new law, a corporation's residence for venue purposes will be the location of its registered agent.²

The amended § 508.010 now makes separate venue provisions for all cases in which there is a "count alleging a tort." Section 508.010.5, HB 393. The recently enacted legislation makes a further distinction based on whether or not the plaintiff was first injured in the state of Missouri. If the plaintiff was first injured in Missouri, then in all tort actions "venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action." Section 508.010.4, HB 393.

If the plaintiff was first injured outside the state of Missouri and the defendant is a corporation, "then venue shall be in any county where a defendant corporation's registered agent is located or, if the plaintiff's principal place of residence was in the state of Missouri on the date the plaintiff was first injured, then venue may be in the county of the plaintiff's principal place of residence on the date the plaintiff was first injured . . . ." Section 508.010.5(1). If the plaintiff is first injured outside the state of Missouri and the defendant is an individual, "then venue shall be in any county of the individual defendant's principal place of residence in the state of Missouri or, if the plaintiff's principal place of residence was in the state of Missouri on the date the plaintiff was first injured, then venue may be in the county containing the plaintiff's principal residence on the date the plaintiff was first injured." Section 508.010.5(2). The statute does not expressly address cases involving both corporate and individual defendants. Nor does it expressly address the situation where a corporate defendant does not have a registered office in Missouri.

The new law also amends § 538.300. Subsection 3 of that section provides: "At any time prior to the commencement of a trial, if a plaintiff or defendant including a third-party plaintiff or defendant, is either added or removed from a petition filed in any court in the state of Missouri which would have, if originally added or removed to the initial petition, altered the determination of venue under section 508.010, RSMo, then the judge shall upon application of any party transfer the case to a proper forum under section 476.410, RSMo" (emphasis added). This provision appears to codify the decision in the Linthicum case with one significant exception.

The reference to third-party plaintiffs and defendants (see language in bold, above) dramatically expands the reach of Linthicum. It was well established under pre-Linthicum case law that the addition of a third-party defendant had no effect on the venue of the action. See, e.g. State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438 (Mo.banc 1975), overruling State ex rel. Carney v. Higgins, 352 S.W.2d 35 (Mo. 1961). The Linthicum court made no change to that aspect of venue law, but cited Garrison Wagner with approval. See Linthicum, 57 S.W.3d at 858, n. 3. It would appear that the new law greatly increases the uncertainty as to where a lawsuit involving a plaintiff injured out of state may eventually wind up, given the fact that it greatly increases the number of parties whose location could have an effect on the venue of the action.

I have not made an exhaustive study of the new legislation, but I just wanted to call the foregoing changes in the law to the attention of those who may have read my recent article.

Steve Schoenbeck

Footnotes

¹ 57 S.W.3d 855 (Mo. banc 2001).

² See § 508.010.5(1), HB 393.