Civil Practice and Procedure

John S. Sandberg, Esquire

Implied right of action under § 260.247 RSMo.  American Eagle Waste Industries, LLC, et al. v. St. Louis County, Missouri, No. 92072 (Mo. banc, July 31, 2012), Per Curiam.

In this action waste collection services in certain portions of St. Louis County’s unincorporated areas sued the county for the damages they suffered as a result of the county’s failure to comply with a statute setting out requirements on how all waste haulers could be replaced. Amongst a number of issues the Court considered whether § 260.247, RSMo, which provided for how the county was to handle replacing waste collection services, included an implied right of action. While haulers did not expressly claim an implied right of action under § 260.247, RSMo, haulers did allege that both the county violated the section and that said violation resulted in damages to haulers. After a jury verdict in favor of the haulers, the county appealed.

Held: Affirmed.  There is an implied right of action under § 260.247 because the statute requires that a waste hauler be given sufficient notice to make necessary business adjustments before having its services terminated in a given area. Subsection 3 of the statute provides that the previous haulers receive their contracted price for two years after a political subdivision decision to provide services. Given the intention of the legislature to protect haulers’ contracts, there is an implied private right of action for violating that right. Furthermore, the implied private remedy advances the goal of the statute and there is no other enforcement mechanism provided by the statute.  

Payment of future medical damages. Watts, et al. v. Lester E. Cox Medical Centers, et al., No. 91867 (Mo. banc, July 31, 2012), Teitelman, C. J.

In this much discussed decision, the Supreme Court also determined the appropriate procedure that should be followed by a court when the court needs to determine how future medical damages are to be paid. In the trial court, the plaintiff was awarded future medical damages. The Court ruled the trial court can determine both the amount of the future damages to be paid periodically and the interest rate that is to be paid concerning those future damages. The Supreme Court remanded the case for a determination of the future damages by the trial court.

Using MAI 31.24 is error when disability is dispute. Hervey v. Missouri Department of Corrections, No. 92145 (Mo. banc, August 14, 2012), Breckenridge, J.

In this claim of disability discrimination by the Department of Corrections, the department disputed whether Mrs. Hervey was disabled. Mrs. Hervey used Instruction MAI 31.24 which was the appropriate department verdict director for a disability claim. However, the department claimed that MAI 31.24 was in error in that it did not require that the jury find that the plaintiff was disabled. The trial court overruled the department’s objections and a jury verdict was entered in favor of Mrs. Hervey.

Held:  Reversed and remanded.
MAI 31.24 is insufficient when there is a disputed question of the class basis for which the plaintiff is claiming discrimination.  Whether a claimant may claim sex or race discrimination may be self-evident, but that is not true with claims of disability.

Secondly, the court for the first time considered the meaning of the punitive damages judgment that provides that the plaintiff can receive five times the net amount on the judgment. Here, the court determined that the net amount on the judgment includes the attorney’s fees to which the plaintiff was statutorily entitled.