Revisions to Punitive Damages in Missouri

Changes have been made to punitive damages claims in civil actions filed in Missouri on or after August 28, 2020.

Under the revisions, Missouri Revised Statute Section 510.261 now prohibits parties from making a claim for punitive damages in their initial pleading in a civil action. Any claimant who wishes to add a punitive damages claim to a civil action must file a written motion to amend 120 days prior to the pretrial conference, or, if no conference is scheduled, 120 days prior to trial, seeking leave to bring a claim for punitive damages. The claimant seeking leave must provide exhibits, affidavits, and discovery materials establishing a reasonable basis for the recovery of punitive damages. Any party opposing leave may submit admissible evidence to demonstrate that the standards for a punitive damage award have not been met. The court may grant leave to add the punitive damages claim if it determines that a judge or jury could reasonably conclude, based on clear and convincing evidence, that the standards for a punitive damage award have been met. This statute has the effect of preventing meritless claims being made in litigation as well as saving both the time and money of the parties involved.

Substantive Changes and Clarifications

After clearing the hurdle of obtaining leave to bring a punitive damages claim, a claimant must satisfy the statute’s requirements to receive an award of punitive damages. To do so, RSMo  510.261(1) requires the claimant to prove by clear and convincing evidence that the defendant “intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The revised statute does three things:

1. Codifies the original common law regarding punitive damages. In Klingman v. Holmes, 54 Mo. 304, 308 (1873), the first Missouri Supreme Court case allowing an award of punitive damages, the Court held that exemplary damages are only appropriate where an evil intent has manifested itself in acts. The court reasoned that under common law there must have been intent, or positive proof of malice, to justify granting punitive damages.
2. Clarifies the requisite mental state of the defendant, to intentionally harm without cause or with a deliberate and flagrant disregard for the safety of others. This gives the judge or fact finder a clear standard for determining whether the claimant is entitled to punitive damages.
3. Codifies the “clear and convincing” burden of proof standard. The Missouri Supreme Court has previously adopted this standard, but it had yet to be codified.[1]^,[2] The clear and convincing burden of proof standard falls within the middle ground of the ordinary civil burden of proof standard, preponderance of the evidence, and the criminal law standard, beyond a reasonable doubt.

Nominal Damages

Previously under Missouri case law, a claimant was required to obtain an award of actual or nominal damages before punitive damages could be recovered.[3] However, in most cases the Missouri revised statute now prohibits the recovery of punitive damages when only nominal damages are awarded. Under RSMo 510.261(2), “punitive damages may only be recovered if the trier of fact awards more than nominal damages or if the claim or claims for which nominal damages are solely awarded invoke privacy rights, property rights, or rights protected by the Constitution of the United States or the Constitution of the State of Missouri.”

Harm to Non-Parties

In RSMo 510.261(6), “the amount of punitive damages awarded shall not be based, in whole or in part, on harm to nonparties.” Thus, although the statute does not, per se, change the existing law, it clarifies the purpose of awarding punitive damages. This provision may lessen the impact of tactics that attorneys have employed in recent years which have resulted in excessively large punitive damages awards. For a general discussion of the reptilian approach, see “The Reptilian Response to Missouri’s New Collateral Source Rule.”

Recovery from Employers

Under RSMo 510.261(3), punitive damages may be awarded against an employer or other principal because of an act by an agent under at least one of the following conditions:

• The principal or a managerial agent of the principal authorized the doing and manner of the act,
• employee was unfit and the principal or their managerial agent was reckless in employing or retaining the employee,
• the employee was employed in a managerial capacity and acting within the scope of employment, or
• The principal or a managerial agent of the principal ratified or approved the act.

Essentially, an employer may be liable for punitive damages if the employer is complicit in the employee’s wrongdoing. In effect, this subsection limits the availability of punitive damages awards for respondeat superior liability.

What This Means

The Missouri legislature explicitly made all punitive damages claims in the state subject to this statute. Subsection 7 states:

“No judgment that includes a punitive damage award shall be entered in any civil action in any court of this state, or in any court in which claims are asserted based on the constitution, statutes, or common law of this state, unless the requirements and procedures for a punitive damage award contained in this section and sections 510.263 and 537.675 are met.”

As a result, federal courts or other state courts applying Missouri law must follow the procedures and requirements of this statute.

This statute shows that the Missouri is continuing its efforts to reform tort law. The Missouri legislature, in passing this statute, demonstrated its intent to significantly limit what it sees as excessive punitive damages awards. The practical effects of the procedural and substantive changes required by the statute will likely include discovery taking place earlier in litigation, difficulty in meeting a high standard of proof and the rooting out of meritless claims, etc.

Overall, future awards of punitive damages in Missouri may be more consistent and predictable because of the adoption of RSMo 510.261.

For more information on claims for punitive damages, read “Changes to the Missouri Merchandising Practices Act and Claims for Punitive Damages.”

^[1] Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. 1996)

^[2] Bellerive Country Club v. McVey, 284 S.W.2d 492 (1955)

^[3] Ellison v. Fry, 437 S.W.3d 762, 777 (Mo. 2014)

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