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Missouri House approves statute of repose bill

Scott Lauck//March 16, 2020

Missouri House approves statute of repose bill

Scott Lauck//March 16, 2020

The Missouri House gave first-round approval on March 11 to a bill that would limit suits involving products older than 15 years — but with enough exceptions that one critic called the measure “virtually useless.”

The bill, which needs another vote before it moves to the Senate, would set a statute of repose in products-liability cases, generally requiring that suits involving those products be filed within 15 years of when the item was placed into the stream of commerce.

RELATED: Missouri Lawyers Media 2020 Tort Tracker

Proponents say the bill is intended to give more certainty to retailers and manufacturers about how long they might face a lawsuit. But Rep. Curtis Trent, a Republican lawyer from Springfield who sponsored the bill, noted during debate that the bill contains “numerous exceptions to that hard cutoff.”

For instance, the 15-year limit doesn’t apply to actions involving real property, in cases where the defendant knowingly concealed defective or unsafe conditions, instances involving government recalls or diseases with long latency periods, and in cases where the item’s warranty or “useful life” exceeds 15 years, among others.

“These exceptions have been calibrated to try to address any injustices or inequities that you might have from a hard cutoff,” Trent said.

That approach disappointed some supporters but won over others.

“I hate” some of the changes, said Rep. Bruce DeGroot, R-Ellisville, an attorney and staunch proponent of tort reform, though he nonetheless supported the bill. He said the exceptions would drag out litigation and described the bill as a compromise where “both sides walk away not happy.”

Rep. Rudy Veit, R-Wardsville, an attorney who often breaks with his fellow Republicans in opposing tort changes, said he supported the bill, saying it “does a balancing act between the expectations of the consumer and the expectations of the manufacturers.”

Rep. Mark Ellebracht, D-Liberty and an attorney, opposed the bill. He said trying to determine if a particular case fell within an exception would lead to parties “litigating over whether they can litigate.”

“With this laundry list of exceptions, not only is the bill virtually useless — which is kind of funny now — but it’s also going to incite so much more litigation,” he said.

The vote on the statute of repose bill came a week after the House approved a bill that would make it easier for insurers to take part in cases they have declined to fully defend.

The House on March 5 voted 90-57 in favor of the measure, which builds on a law passed in 2017 that revised how agreements are reached under section 537.065 of the Revised Statutes of Missouri.

That statute operates when a defendant’s insurer has declined to provide coverage or offers to defend the case without promising to pay any resulting award. Under a so-called ’065 agreement, the defendant lets the plaintiff obtain a judgment against it at a bench trial. The plaintiff must then seek to collect the money from the defendant’s insurer in a separate action, the success of which depends on whether the policy provides coverage or not.

Previously, the insurer was barred from participating at the trial because the defendant effectively had fired it, leaving no one to contest the case or the plaintiff’s measure of the damages. Lawmakers passed a bill in 2017 that requires the parties to alert insurance companies that they are entering into an ’065 agreement. The insurer then has 30 days to seek to intervene before the judgment can be rendered.

Rep. Mary Elizabeth Coleman, R-Arnold, said some attorneys have made an “end run-around” of the 2017 law by taking the case to arbitration, then seeking court confirmation of the resulting award when the insurer can no longer intervene. This year’s bill would require the insurer’s written agreement before any arbitration award could be reduced to a judgment or collected from the insurer.

The statute of repose bill is HB 1596. The insurance bill is HB 2049.

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