Civil Practice and Procedure

Editor:
John S. Sandberg, Esquire

Choice of law in insurance dispute. The Doe Run Resources Corporation v. Certain Underwriters at Lloyd’s London, et al., No. 98086 (Mo. App. E.D., April 16, 2013)

This lawsuit concerned Doe Run’s request for coverage for environmental remediation costs under seven different excess insurance policies issued by respondent. The key issue in the case was whether New York or Missouri law governed the policies providing coverage from 1952-1961. The trial court ruled in favor of defendant finding that New York law applied and in accordance with that law allocated Doe Run’s losses on a pro rata basis over the entire period during which pollution and mitigation of contaminants had occurred. The jury had found more than $62,000,000 in remediation costs but the final judgment of the court was reduced to $5,145,208.03 in accordance with the pro rata allocation.

Respondent appealed on two grounds and Doe Run raised six points on cross-appeal. In addition to the question on “which” state's law applied, Doe Run raised the procedural issue of its entitlement to pre-judgment interest on its damages.

Held:
Reversed as to which state's law applied. Missouri law applied in that it was the principal location of the insured risk. The court analyzed both sections 188 and 193, the Restatement (Second) Conflict of Laws, in that Section 188 is the law that analyzes the most significant relationships of the parties and Section 193 deals with insurance contacts in particular. Section 193 expressly provides that the “validity of . . . [the] insurance and the rights created thereby are determined by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy . . .”   Given that Missouri was the principal location of the insured risk and that this factor is given greater weight than any other factor was enough to persuade the court that Missouri law applied.

The court ruled that under Missouri law the all sums allocation scheme applied to determine what was owed under the policy.


Additur statute is constitutional. Badaham v. Catering St. Louis, et al. (Mo. banc, April 9, 2013), Fischer, J.

The issues on appeal included whether the additur statute was constitutional and what the proper standard of review was in cases involving an appeal from a grant of a new trial after defendant refused additur.

Held: Affirmed.
The statute is constitutional in that the defendant’s right to a jury trial is not impinged because the defendant has the option of accepting the increased amount thereby voluntarily waiving its right to a jury trial or it could have a new jury trial. Here the defendant refused to accept the additur and accordingly defendant was granted a new jury trial. The court also held that the circuit court properly granted a new trial on the grounds that the verdict was against the weight of the evidence and that the appellate standard of review is that the decision must be affirmed unless there is an abuse of discretion. The appellate court must review the evidence and all reasonable inferences therefrom in the light most favorable to the circuit court’s order.

The court overruled a long string of decisions that used the improper standard.


When is an attorneys fee multiplier appropriate? Berry, et al. v. Volkswagen Group of America, Inc., No. 92770 (Mo. banc, April 9, 2013), Draper, J.

The dispute in this class action settlement was the amount of attorney’s fees. Volkswagen appealed the award of the trial court awarding fees.

Held: Affirmed.
The lodestar amount awarded by the trial court was within its discretion. The trial court applied a multiplier 2.0 to the lodestar amount. The lodestar amount was just over $3,000,000. The proper standard of review is abuse of discretion and the trial court is deemed to be an expert on the reasonableness of attorney’s fees. The multiplier was appropriate because the fee of class counsel was contingent, taking the case precluded class counsel from accepting other employment that was less risky and the time required to prepare the case for trial delayed work in class counsel’s other work.