W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

Brent and Tonya Werremeyer bought a car from K. C. Auto Salvage. The Werremeyers noticed that the vehicle identification number was scratched out. The salesman for K. C. Auto told them that the former owner scratched out the number to prevent repossession, but that the car had not been rebuilt or wrecked. The Werremeyers purchased the car, but later discovered that it had been "chop shopped" from two different cars - a car stolen in California and a wrecked car from Nebraska. The Werremeyers offered to settle with K. C. Auto for $20,000, but the company refused. The Werremeyers sued K. C. Auto for fraud and the jury awarded them $9,000 in actual damages and $20,000 in punitive damages. The trial court denied prejudgment interest on the punitive damages, but the Supreme Court reversed in Werremeyer v. K. C. Auto Salvage Co., No. SC 85551 (Mo. banc 2004).

First, the Court discussed the recovery of punitive damages. Punitive damages require a showing, by clear and convincing proof, of a culpable mental state on the part of the defendant, either by a wanton, willful or outrageous act, or reckless disregard for an act's consequences. Courts review punitive damage awards using three guideposts: (1)the reprehensibility of the defendant's misconduct; (2) the disparity between the harm and the punitive award; and (3) the difference between the punitive award and penalties authorized or imposed in comparable cases. The reprehensibility guidepost considers if "the harm was the result of intentional malice, trickery, or deceit, or mere accident." Here, the jury could reasonably conclude that K. C. Auto acted willfully or with reckless disregard; the punitive award was supported by evidence of intentional malice, trickery or deceit.

Next, regarding prejudgment interest on punitive damages, the Court held that the rule is clear: Interest shall be allowed on all money due upon any judgment or order of any court. Section 408.040.1, RSMo. The adjective "all" means the entire judgment - whether compensatory or punitive. The plain language of § 408.040 allows prejudgment interest on all the amount of the judgment, including punitive damages. A tort claimant is entitled to prejudgment interest if a proper offer of settlement is denied, and the judgment exceeds the offer. Here, the total judgment - $9,000 in compensatory damages, plus $20,000 in punitive damages - exceeds the settlement offer of the Werremeyers, which was $20,000. Awarding prejudgment interest on punitive damages furthers the purpose of § 408.040. Prejudgment interest under

§ 408.040 compensates claimants for the true cost of money damages they incurred due to the delay of litigation, promotes settlement and deters unfair benefit from the delay of litigation. The Werremeyers are entitled to prejudgment interest on their entire judgment against K. C. Auto.

In Medical Negligence Case, Plaintiff's Treating Physician Did Not Become Retained Expert, Even Though He Was Paid By Defendant

In 1998, James Kehr was given a routine physical examination by his primary care physician, Stephen Knapp, D. O. Dr. Knapp ordered a PSA (prostate-specific antigen) test, which indicated Kehr's PSA was slightly elevated. Dr. Knapp's office advised Mr. Kehr to have the test repeated in two months. By 1999, as a result of insurance changes, Mr. Kehr went to a new physician for his physical exam. The PSA test in that examination indicated Kehr's PSA was high and that physician referred Kehr to a urologist, Dr. Alan Stein. Dr. Stein performed a biopsy, which revealed prostate cancer. Dr. Stein referred Kehr to Dr. James Piephoff, a radiation oncologist, who treated Mr. Kehr with six weeks of external radiation. Kehr filed a medical negligence action against Dr. Knapp, alleging that Knapp was negligent in failing to inform Kehr that his PSA test was abnormally elevated and in failing to recommend that Kehr undergo further testing or follow-up treatment. In his answer to interrogatories, Knapp identified Dr. Piephoff as a non-retained expert who may be called to testify regarding his treatment of Kehr, including causation and prognosis. Three days before trial, Kehr's motion to strike Dr. Piephoff as a witness or, alternatively, for a continuance to allow Dr. Piephoff's deposition to be taken, was denied.

At trial, Stein testified that, when he examined Kehr, he concluded that Kehr's cancer was at Stage D and that he had a 10% chance of survival. He further testified that Dr. Knapp was negligent in failing to follow up with Kehr after he discovered an elevated PSA in 1998. At trial, Dr. Piephoff testified that Kehr's cancer was at Stage C, rather than Stage D, that Kehr had a 70% chance of survival, and that, after completion of radiation therapy, Kehr's PSA dropped to undetectable levels. The jury returned a verdict for Dr. Knapp and the Court of Appeals affirmed in Kehr v. Knapp, No. E.D. 83203 (Mo. App. E.D. 2004).

Expert witnesses whose identity must be disclosed under Rule 56.01(b)(4) are individuals engaged by a party in anticipation of litigation in order to testify about scientific or technical matters. A retained expert typically has no knowledge about the case or the facts in controversy prior to being retained and instead gathers facts about the controversy through documents, materials and other information provided to him. A treating physician, however, has knowledge of the facts of the case and is not retained solely for the purpose of litigation. The treating physician is first and foremost a fact witness, as opposed to an expert witness. Here, Dr. Piephoff testified only about his treatment of Mr. Kehr; he was not asked to give an opinion regarding the negligence of Dr. Knapp. Even though he had read depositions taken in the case, his opinions regarding Mr. Kehr's stage of cancer, and Mr. Kehr's prognosis, were based solely on facts learned during his care and treatment of Mr. Kehr.

When determining whether a treating physician should be characterized as either a retained or non-retained expert, the proper focus is on the scope of the proposed testimony. If a treating physician's testimony is limited to a discussion of plaintiff's care and treatment and opinions regarding causation and prognosis that are developed based upon information obtained during such care and treatment, compensation alone does not transform the treating physician into a retained expert. Here, Dr. Piephoff's review of deposition transcripts did not alter his status as a non-retained expert. Since Dr. Knapp's identity and the scope of his testimony was disclosed in interrogatory answers seeking identification of non-retained experts, Kehr could not blame unfair surprise by Dr.Piephoff's testimony.

Ambiguous Travel Insurance Policy Construed in Favor of the Insured

Doris Watters purchased round trip airfare as part of a group tour package for a vacation to Ireland. She also purchased a trip insurance policy from Travel Guard International. The policy stated that in the event a trip was canceled or interrupted for reasons covered by the policy, Travel Guard would pay the "unused prepaid payments." Mrs. Watters was scheduled to fly from St. Louis to Newark, NJ, where she would then catch a connecting flight to Ireland. Due to weather conditions, her scheduled flight from St. Louis to Newark was delayed for eight hours. When she arrived in Newark, she learned that she missed her connecting flight and that there would not be another flight to Ireland for several days. She then canceled her Ireland vacation and returned to St.Louis. She submitted a claim to Travel Guard for more than $2,200, but was only refunded $1,757. Travel Guard stated that balance of $346 was not part of her "unused prepaid payments," since that was the cost of her flight from St. Louis to Newark, which she took. Mrs. Watters filed suit against Travel Guard and was awarded judgment of $346, without interest. The court ruled in favor of Travel Guard on Mrs. Watters' vexatious refusal claim. In Watters v. Travel Guard International, Nos. E.D. 83066 and E.D. 83081 (Mo. App. E.D. 2004), the Court of Appeals affirmed the judgment for $346 and also affirmed the judgment for Travel Guard on the vexatious refusal claim, but awarded Mrs. Watters interest.

When interpreting an insurance policy, the court must determine whether the language was ambiguous or unambiguous. Where an insurance policy is unambiguous, it will be enforced as written, absent a statute or public policy requiring coverage. If the language is ambiguous, it will be construed against the insurer. Whether a policy is ambiguous is a question of law. Language is ambiguous if, when viewed in the meaning that would ordinarily be understood by the lay people who bought the policy, it is reasonably open to different constructions. A provision in an insurance policy is not read in isolation, but rather in the context of the policy as a whole. The word "unused" as used in the travel policy created uncertainty and is reasonably open to several different constructions. Because of the differing constructions, the policy was ambiguous and the language must be construed in favor of the insured. Thus, Mrs. Watters' round trip airfare from St. Louis to Newark is covered by the policy.

Under § 408.020, RSMo, prejudgment interest applies to insurance policies and may be awarded on liquidated claims. In order to be liquidated so as to allow interest, a claim must be fixed and determined or readily determinable, but it is sufficient if the amount due is ascertainable by computation or by a recognized standard. Here, the damages on Mrs. Watters' breach of contract claim are readily determinable and ascertainable by computation, and, therefore, liquidated. Travel Guard refused to reimburse Mrs. Watters $346, the price of the round trip airline ticket between St.Louis and Newark. The damages were readily determinable and ascertainable by simple computation. Missouri courts have allowed prejudgment interest for insurance claims where the parties did not agree to the amount due under the policy. An award of less damages than requested does not preclude an award of prejudgment interest on damages that are ascertainable. An award of prejudgment interest in a case in which § 408.020 is applicable is not a matter of court discretion; it is compelled.

Landowner is Not Liable to an Adult Trespasser

Charles and Dale Glenn rented a 420- acre farm. To curtail repeated trespassing on their fields, they placed a wire cable between two trees that stood on each side of a passageway that was used to go through the wooded area into an open field area. Eric Humphrey, who was trespassing on the farm, was injured when he rode his four wheeler through the passageway and was "clotheslined" by the wire cable. He testified that he saw no signs warning him of the cable and that he never saw the cable before he struck it. He filed suit against the Glenns for premises liability. The jury awarded him $100,000, and assessed him 50% of the fault. The Court of Appeals reversed, however, in Humphrey v. Glenn, No. 25744 (Mo. App. S.D. 2004).

Historically, the rule in Missouri has been that possessors of land ordinarily owe no duty to trespassers for conditions on their land that cause injuries to the uninvited. The "no liability to trespasser rule" is not based on the idea that trespassers are bad people who deserve bad things to happen to them; rather, the rule comes from the recognition that possessors of property are entitled to assume that members of the public will not interfere with those parts of the property as to which there is no implied invitation. The traditional no duty rule is still the law in Missouri when, as here, a trespasser is injured by conditions of the land. The Supreme Court of Missouri has declined to depart from the traditional rule of no liability when a trespasser's injuries are caused by a land condition, as opposed to a possessor's "activities."

The Supreme Court has clearly adopted the rule that a possessor's liability to a gratuitous licensee is predicated upon proof of the possessor's actual knowledge of the existence of a dangerous condition and actual realization of the risk to which such licensees are exposed. It has rejected the notion expressed by the Restatement (Second) of Torts, § 342, that such licensee could prevail by proving that a possessor should have known of the danger and should have realized the risk. It has been the long-standing rule of the Supreme Court of Missouri that possessors of land do not owe a duty to adult trespassers to maintain their land in any particular condition for the benefit of such trespassers. Under the current status of Missouri law, Humphrey cannot recover based on the evidence presented.

Trial Court Abused its Discretion in Granting a New Trial When No Trial Error Occurred

Janet Dick took her son to Children's Mercy Hospital in Kansas City. While walking in the hospital parking garage, Mrs. Dick broke her foot when she stepped on an unmarked concrete base at the bottom of a column. The base was an area of uneven, raised concrete. As a result of this injury, she developed reflex sympathetic dystrophy and became disabled. She filed a premises liability suit against the hospital. At trial, the hospital contended that it had no knowledge as to the dangers of the uneven base at the bottom of the column. It introduced evidence that no one had complained about the column base and that inspectors for the City of Kansas City had issued a certificate of occupancy for the garage, thereby finding it in compliance with Kansas City building codes. The jury returned a verdict for the hospital, but the trial court granted Mrs. Dick's motion for a new trial. The Court of Appeals reversed, however, and reinstated the jury's verdict in Dick v. Children's Mercy Hospital, No. WD 61616 (Mo. App. W.D. 2004).

The paramount issue is whether the trial court erred in granting a new trial. A new trial can be granted as a remedy for prejudicial errors that occurred during trial, or where the verdict was against the weight of the evidence. The grant of a new trial based on Rule 78.02, that the verdict was against the weight of the evidence, will be reversed only if there has been a manifest abuse of discretion, since the trial court is in a better position to weigh evidence than the appellate courts. Here, the trial court's order did not clearly state that the verdict was against the weight of the evidence. If the trial court does not specify discretionary reasons for the new trial, the appellate court cannot presume the court ordered a new trial for discretionary reasons. When the trial court grants a new trial for specific reasons, its ruling is deemed a rejection of all the other grounds asserted by the movant. Here, the trial court did not specify discretionary grounds in granting the new trial; there was no creation of any presumption of a discretionary reason for the grant of the new trial and there is no reason to believe that the grant was for anything but trial error. Moreover, since there were no trial court errors, the trial court abused its discretion in ordering a new trial.

Unemployment Compensation Denied Where Employee Did Not Have Good Cause to Quit

Shelton Partee was a machine operator for Winco Manufacturing. After he improperly cut pieces of metal, his supervisor brought him before the human resources administrator for the purpose of issuing a reprimand. During the meeting with the human resources administrator, Partee stated that the supervisor had repeatedly cussed him out, degraded him and humiliated him by calling him a son of a bitch and other profane names. The supervisor denied using profanity, but admitted criticizing him for not paying attention. Partee requested a transfer to another department, but the human resources administrator stated that she could not transfer him without first performing an investigation. She asked Partee to provide additional details of the verbal abuse. He declined and immediately submitted his resignation. Partee submitted a claim for unemployment compensation, which was granted by the Labor & Industrial Relations Commission. The Court of Appeals reversed, however, in Winco Manufacturing, Inc. v. Partee, No. E.D. 83605 (Mo. App. E.D. 2004).

A claimant is not eligible for unemployment benefits if he voluntarily quits his job without good cause attributable to the work or the employer. A claimant bears the burden of proving that his voluntary termination resulted from good cause attributable to his work or employer. Good cause has no fixed or precise meaning; it is judged by the facts of each case. Good cause is determined by the objective standard of what a reasonable person would do in the same or similar circumstances. It is a standard of reason applied to the average person, not to the supersensitive.

An employee should not have to endure verbal abuse as a condition of employment. No employee should have to endure a supervisor cursing at him; such working conditions would be objectionable to the average person. An employee is not required to continue to be subjected to profane language. A claimant's voluntary termination of employment, however, must also be in good faith. To establish good faith, the claimant must prove an effort was made to resolve the dispute before resorting to the drastic remedy of quitting his job. Here, the claimant was asked to provide additional details of the verbal abuse, but declined to do so. Thus, the claimant failed to prove that he acted in good faith and, therefore, failed to prove that he quit his job for good cause attributable to his work or his employer.