Litigation Settlements
Litigation Settlements
Meyerkord*
Peter B. Hoffman**
2
2009 Cumulative Supplement to
Chapter 2
Supplemented:
§§2.5
2.7
2.9
2.11
2.11A (New Section) Focus Groups
2.11B (New Section) Mock Trials
2.13
2.16A (New Section) Negotiation Using Mediation
2.22
______
*Mr. Meyerkord received his A.B., 1971, from Drury College and J.D., 1974, from
Washington University. He is a partner in the St. Louis firm of Meyerkord,
Rineberg, and Graham, L.L.C. Mr. Meyerkord wishes to acknowledge the substantial
assistance of Brian D. Kurth in the preparation of this supplement. Mr. Kurth is an
associate at Meyerkord, Rineberg, and Graham. He received his B.B.A., 1996, from
the University of Wisconsin-Madison and J.D., 2007, from The John Marshall
School of Law.
**Mr. Hoffman received his B.A., 1973, from Washington University and J.D., 1976,
from the University of Missouri-Columbia . He is a partner in the St. Louis office
of Baker Sterchi Cowden & Rice, L.L.C. Mr. Hoffman wishes to acknowledge the
substantial assistance of Laura Bettenhausen in the preparation of this supplement.
Ms. Bettenhausen is an associate at Baker Sterchi. She received her Bachelor of
Music, 2005, and J.D., 2008, from the University of Missouri-Columbia.
2009 2 Supp.–1
§2.5 EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS
C. (§2.5) Liability
E. (§2.7) Damages
No award of punitive damages against any defendant shall exceed the greater
of:
(1) Five hundred thousand dollars; or
(2) Five times the net amount of the judgment awarded to the plaintiff
against the defendant.
Such limits shall not apply if the state of Missouri is the plaintiff requesting
the award of punitive damages, or the defendant pleads guilty to or is
convicted of a felony arising out of the acts or omissions pled by the plaintiff.
2 Supp.–2 2009
EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS §2.11A
When done correctly, focus groups and mock trials can be beneficial
tools in evaluating a case. Both allow counsel to gain valuable
insights on liability as well as damages issues.
2009 2 Supp.–3
§2.11B EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS
Delete the original section and replace it with the following text:
The sooner the adjuster can gather and digest the information, the
sooner the adjuster will be able to respond with a settlement offer.
During the handling of the case and before the case is ready for
settlement negotiations, it is wise to periodically advise the insurance
adjuster of the status of the client’s medical treatment. Counsel
should offer to provide the adjuster with the medical records and
reports gathered up to that point.
2 Supp.–4 2009
EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS §2.13
Statements of witnesses
Income tax records and other pertinent data (in some cases)
2009 2 Supp.–5
§2.13 EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS
provide the insurance company with a more realistic view of how the
evidence will be received by the jury, which, in theory, should result
in more realistic appraisals by the carrier of the case’s settlement
value.
The claimant must also make the demand for payment or the
offer of settlement to the opposing party’s liability insurer, if
known to the claimant.
2 Supp.–6 2009
EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS §2.13
2009 2 Supp.–7
§2.13 EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS
In a 2008 case, Gaydos v. Imhoff, 245 S.W.3d 303 (Mo. App. W.D.
2008), the Western District summarily discussed the demand
requirement under § 408.040.2. In Gaydos, the defendant was found
liable for conversion of funds. Id. at 306. On appeal, the defendant
contended that “the trial court erred in awarding prejudgment
interest because the [plaintiff] failed to make a specific demand for
payment, as required by Section 408.040.2.” Id. at 307. The plaintiff
conceded that it failed to comply with the statutory prerequisites of
§ 408.040.2. Gaydos, 245 S.W.3d at 308. Therefore, the Western
District held that the award of prejudgment interest was improper
and reversed the award. Id.
Unfortunately, the court did not discuss what was required to make a
“specific demand.” While an open-ended prayer for relief is sufficient
under Call, it is advisable to carefully satisfy each prerequisite set
forth in § 408.040.2. A plaintiff who sends a demand letter including
2 Supp.–8 2009
EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS §2.13
In Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 24 (Mo. App. E.D. 2005),
the Eastern District stated that nothing in the plain language of
2
§ 408.040.2 precludes a plaintiff from serving a single, unapportioned
demand on multiple parties. The demand required under § 408.040
must be definite in its terms. To be sufficiently definite under the
statute, the amount due must be capable of ascertainment in terms of
a dollar amount. Boggs, 164 S.W.3d 24. In Boggs, the plaintiff’s
demand letter stated as follows: “Pursuant to section 408.040, RSMo.
(1994), please let this letter serve as a settlement demand in the sum
of $1 million, jointly and severally, to resolve the personal injury
action arising from this tragedy. This offer shall be left open for
60 days unless earlier rejected.” Id.
The court found that the plaintiff’s demand met the statutory
requirements. The plaintiff’s demand was clear; he demanded
$1 million, jointly and severally, to resolve his personal injury action.
The demand was directed to each of the potential defendants. The
liability that resulted was joint and several. Id. While Boggs
construed the 1994 version of § 408.040, the conclusion presumably
applies today. Specifically, the demand must be definite in its terms,
meaning that a dollar amount is ascertainable. Again, while an open-
ended prayer for relief is sufficient under Call, other caselaw
supports the conclusion that a specific settlement demand must be
made to recover prejudgment interest.
2009 2 Supp.–9
§2.16A EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS
2 Supp.–10 2009
EVALUATION AND SETTLEMENT OF PERSONAL INJURY CLAIMS §2.22
C. Negotiating Techniques 2
2. (§2.22) Guidelines
2009 2 Supp.–11