value of her medical treatment and that she had rebutted the presumption under Deck v. Teasley.

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1 The Flag In Personal Injury Action, Evidence May Be Presented on the Value of Medical Treatment Received to Rebut Presumption That Medical Expenses Are Limited to the Amount Actually Paid by w. dudley mccarter Delmar Teasley drove his vehicle into the back of a line of vehicles stopped at a traffic signal, causing the vehicle behind Edith Deck to collide with her vehicle. Ms. Deck sustained injuries in the collision and underwent surgery, physical therapy and other medical care. 1 Ms. Deck was billed $27, for her treatment. The amount actually paid for her treatment, after adjustments, was $9, Payments were made by Medicare, supplemental insurance and Ms. Deck. 2 Before the trial on her suit against Teasley, Teasley filed a motion to determine the value of [her] medical treatment pursuant to section At the hearing on Teasley s motion, Ms. Deck presented testimony from three individuals who previously or currently worked in healthcare positions involving the W. DUDLEY MCCARTER Behr, McCarter & Potter St. Louis cost of providing medical services. Each testified that the amount billed to Ms. Deck for her medical treatment was customary, fair and reasonable. They also testified that the face value of the bills was the value of the medical services provided, not the amount reimbursed by Medicare. [T]he trial court found that the presumption in section was not rebutted and determined that the value of [Deck s] medical treatment was limited to the amount actually paid for it, together with any amount she still was obligated to pay. 4 During trial, Ms. Deck made an offer of proof regarding the value of her medical expenses, again attempting to rebut the presumption of value under section [T]he trial court again ruled that Ms. Deck could not present evidence to the jury of her medical bills that had not been paid by her or on her behalf. 6 [T]he jury rendered a verdict in favor of Ms. Deck and assessed her damages in the amount of $42, On appeal, the Supreme Court remanded the case for a new trial on the issue of damages only, finding that Ms. Deck had presented substantial evidence that her total medical bills represented the value of her medical treatment and that she had rebutted the presumption under Deck v. Teasley. Section , subsection 5, newly enacted in 2005, governs the admissibility of evidence regarding a specific type of damages, the value of medical treatment rendered to a party. It provides that evidence of the dollar amount necessary to satisfy the financial obligation to health care providers is admissible at trial and creates the rebuttable presumption that such amount represents the value of the medical treatment rendered. On the motion of any party, the court may determine whether other evidence of value is admissible at trial and delineates that the other evidence may include, but is not limited to: the medical bills incurred; the amount actually paid for the medical treatments; or the amount or estimate of the amount not paid that such party is obligated to pay in the event of a recovery / Journal of the Missouri Bar

2 The rebuttable presumption created by section is that the dollar amount paid to satisfy the financial obligation to the healthcare providers is the value of the medical treatment rendered. 9 The rebuttable presumption in section requires the trial court to determine if the party seeking to rebut the presumption has presented substantial evidence that the value of medical treatment rendered is an amount different from the dollar amount necessary to satisfy the financial obligations to health care providers. If such substantial evidence is proffered, the statutory presumption is rebutted. When the presumption is rebutted, the party s other evidence of value, as well as the amount necessary to satisfy the financial obligations is admitted at trial as if no presumption exists. If the presumption is not rebutted, then the only evidence of the value of medical treatment rendered is the dollar amount necessary to satisfy the financial obligation of the health care providers. 10 Here, Ms. Deck presented substantial, evidence at the pre-trial hearing and the offer of proof that the amount she was billed is the value of the medical treatment rendered to her. 11 In light of such substantial evidence, the trial court misapplied the law in ruling that the statutory presumption in section was not rebutted. 12 Ms. Deck proffered evidence that the value of the medical treatment rendered to her was $27, However, due to the trial court s exclusion of that evidence, the jury only was permitted to hear evidence that the value of her medical treatment was $9,904.28, the amount that [she], Medicaid and supplemental insurance actually paid for her treatment after adjustments. The exclusion of evidence of the additional $18, in potential damages the jury should have been allowed to consider, materially affected the merits of the action. See Accomac Realty Co. v. City of St. Louis, 152 S.W.2d 100, 103 (Mo. 1941). Accordingly, the trial court s exclusion of Ms. Deck s evidence of the value of medical treatment was prejudicial and she is entitled to a new trial on the issue of damages. Judgment of Foreign State is Presumed Valid; Burden is on Defendant to Prove Lack of Personal Jurisdiction by Foreign State People s Bank obtained a judgment in an Oklahoma court against Missouri resident H. L. Frazee. People s Bank proceeded to enforce the judgment in the circuit court of Wright County, Missouri. The circuit court found that the Oklahoma court lacked personal jurisdiction over Frazee and quashed the registration of the foreign judgment. The judgment was entered in Oklahoma on a guarantee signed by Frazee for a loan to his son and his son s wife. People s Bank had prepared the guarantee and mailed it to Frazee in Missouri. Frazee signed the guarantee and mailed it back to People s Bank. In the suit People s Bank filed to enforce the guarantee, a summons was mailed to Frazee by certified mail, but he refused service. The Oklahoma court entered a default judgment against him. The circuit court found that the Oklahoma court lacked personal jurisdiction over Frazee, but the Supreme Court of Missouri reversed in People s Bank v. Frazee. 13 Generally, when personal jurisdiction is contested by the filing of a motion to dismiss a Missouri action, the plaintiff bears the burden of establishing that the defendant s contacts with the forum state were sufficient. State ex rel. Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 137 (Mo. banc 1987). When the challenge to personal jurisdiction arises in the context of a motion to register a foreign judgment, however, the strong presumption of the validity of a foreign judgment that is regular on its face makes the general rule inapplicable. 14 Frazee defaulted in the Oklahoma action [and he] contested the Oklahoma district court s personal jurisdiction over him for the first time in the Missouri circuit court. Because the issue was not litigated in the foreign state, Mr. Frazee had the right to attack the judgment for lack of personal jurisdiction in the Missouri circuit court. Miller v. Dean, 289 S.W.3d 620, 624 (Mo. App. 2009). The Oklahoma judgment Mr. Frazee was contesting is regular on its face, so the judgment was subject to the strong presumption that the Oklahoma court had jurisdiction. As the party asserting invalidity of the foreign judgment, Mr. Frazee bore the burden of establishing that the Oklahoma court lacked personal jurisdiction. 15 Because this jurisdictional challenge arises in the context of a motion to register a foreign judgment, this Court must look to the rendering state s law that is, Oklahoma substantive law November-December 2010 / 313

3 to determine whether the Oklahoma court had personal jurisdiction over Mr. Frazee. See Phillips [ v. Fallen], 6 S.W.3d at 868 [(Mo. banc 1999)]. 16 [T]he inquiry is whether the Oklahoma court s exercise of personal jurisdiction over Mr. Frazee comports with federal due process. See Gilbert v. SEC. Fin. Corp. of Okla., Inc., 152 P.3d 165, 173 (Okla. 2006). 17 In some cases, single or isolated acts by a defendant in a state, because of their nature and quality and the circumstances of their commission, provided sufficient minimum contacts to support jurisdiction for liability arising from those acts. Bryant [v. Smith Interior Design Group, Inc.], 310 S.W.3d at 233 [(Mo. banc 2010)]. 18 Here, Frazee knew he was dealing with an Oklahoma bank when he signed the guarantee. He also knew that People s Bank would not have provided a loan to Frazee s son and daughter-inlaw without Frazee s guarantee. Frazee engaged in telephone conversations with People s Bank and mailed the guarantee back to Oklahoma after he signed it. Contrary to Frazee s assertion that a non-resident guarantor must reap a pecuniary gain, other courts have found that a personal financial benefit or pecuniary gain by the guarantor is unnecessary to exercise personal jurisdiction over the non-resident guarantor. E. G. Mellon Bank[, (East) PSFS, Nat l Ass n. v. Farino], 960 F.2d at 1225 n. 4 [(3rd Cir. 1992)]. 19 There are also sound policy reasons for exercising jurisdiction over non-resident guarantors. "[T]he Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed." Mellon Bank, 960 F.2d at In this case, Frazee voluntarily assumed the obligation of guaranteeing [the] note. [He] purposely directed activity into the forum 314 / Journal of the Missouri Bar and purposely availed himself to the protections of Oklahoma [and] should not be able to avoid his interstate obligation by asserting lack of personal jurisdiction. 20 Because of the strong presumption of validity of foreign state judgments, Mr. Frazee had the burden to establish that the judgment was irregular or that Oklahoma lacked personal jurisdiction over him. Every personal jurisdiction case involves a fact-specific inquiry; it does not lend itself to categorical determinations. [Mellon Bank, 960 F.2d at 1225]. Under the facts and circumstances surrounding Mr. Frazee s execution of the guarantee, [he] had the required minimum contacts with Oklahoma. Therefore, the Oklahoma court's exercise of personal jurisdiction over Mr. Frazee comports with Oklahoma s long-arm statute and due process. 21 Defective Construction Claim Barred By Ten-Year Statute of Repose In 1987, Mr. Dell Foods hired Dennis Watson Construction as general contractor for the construction of an addition to [Mr. Dell s] production facility. The proposed addition included an insulated room to be used as a large walk-in freezer. Watson retained Williams-Carver to plan and construct a refrigeration system for the freezer room. 22 In 2001, a fire was intentionally set by a Mr. Dell employee in a room adjacent to the freezer. A concrete block wall separated the room from the freezer, but there was a gap of between 16 to 24 inches above the concrete wall. The fire spread from the adjacent room to the freezer by going over the top of the concrete wall. As the insurer for Mr. Dell, Travelers paid in excess of $5,000,000 for the [fire damage] and received an assignment of Mr. Dell s rights. 23 In 2005, Travelers filed suit against Williams-Carver for negligent installation of the freezer, alleging that Williams-Carver concealed the defective gap at the top of the wall of the freezer. The trial court granted summary judgment to Williams-Carver, finding that Travelers claims were filed beyond the 10-year statute of repose, RSMo. and further finding that the concealment exception of the statute did not apply. The Court of Appeals affirmed in Travelers Indemnity Co. v. The Williams-Carver Co. 24 The Missouri Supreme Court has defined the phrase sole connection with the improvement in Section as a connection to a defective or unsafe condition of an improvement or real estate giving rise to liability. Magee v. Blue Ridge Prof l Bldg. Co., 821 S.W.2d 839, 843 (Mo. banc 1991). 25 [I]f a defendant has any connection that gives rise to liability with respect to an improvement other than by design, planning or construction, Section is not available as an affirmative defense. Lay v. P & G Healthcare, Inc., 37 S.W.3d 310, 321 (Mo. App. 2000). The defendant's sole connection to the defective or unsafe improvement to real property must be as an architect, engineer or builder Id. 26 Here, the sole connection of Williams- Carver with the improvement was as the builder of the refrigeration system. Traveler s lawsuit against Williams-Carver was filed more than ten years after the improvements to Mr. Dell s production facility were completed in Williams- Carver properly invoked the affirmative defense of the ten-year statute of repose in Section by presenting uncontroverted evidence that

4 its sole connection with the improvements was to perform or furnish construction services. 27 The concealment exception in does not apply. As used in the statute, the term conceals means an affirmative act, something actually done directly intended to prevent discovery or to thwart investigation. Magee, 821 S.W.2d at [D] eposition testimony established that the gap between the top of the concrete wall and the roof was open and obvious. 29 To rebut the evidence of openness, Travelers alleges the defective nature of the gap was latent and, therefore, its significance should have been disclosed by Williams-Carver. However, latent defects are not the same as concealed defects. Fueston v. Burns & McDonnell Eng g Co., 877 S.W.2d 631, 638 (Mo. App. 1994). Conceals means more than a failure to reveal information allegedly known. Butler [v. Mitchell- Hugeback, Inc.], 895 S.W.2d at [(Mo. banc 1995)]. Rather, it carries the implication of intentional conduct designed to prevent discovery. Id. at There is no evidence that Williams- Carver acted affirmatively to prevent the discovery of the gap in the wall. Given the open and obvious nature of the alleged defective condition, there is no factual dispute as to whether the concealment exception in Section (2) could be applied. 31 Official Immunity is Available to Publicly- Employed Emergency Responders Only in a True Emergency Situation Anthony Thomas called complaining of chest pains and difficulty breathing. 32 Within a short time, an ambulance unit from the Community Fire Protection District arrived at his home. The unit was manned by Michael Brandt, a licensed emergency medical technician, and James Loehrer, a licensed paramedic. 33 Upon arrival, Brant and Loehrer examined Thomas and collected his vital signs. They diagnosed his problem as acid reflux and recommended over-the-counter medication. Believing he was in no immediate medical danger, they left his home 15 minutes after arriving. The next morning, Thomas again called 9-1-1, still complaining of chest pains and difficulty breathing. An ambulance unit from Community Fire Protection District, manned by a different two-person team, arrived at his home. That team began administering emergency medical care and transported him to DePaul Health Center, where he died later that day from cardiac arrest. The spouse and son of Thomas filed a wrongful death suit against Community Fire Protection District, Brandt and Loehrer. The trial court granted summary judgment to Grant and Loehrer, finding that they were entitled to official immunity. The Court of Appeals reversed, however, in Thomas v. Brant. Official immunity is a judicially-created doctrine designed to protect public employees from liability for allegedly negligent acts committed during their performance of official duties. [Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008).] Generally, whether public employees are protected turns on the type of act involved; the court must determine whether the challenged act was discretionary or ministerial. Davis v. Lambert- St. Louis Intern. Airport, 193 S.W.3d 760, 763 (Mo. banc 2006). Acts which are discretionary are protected, while acts which are ministerial are not. Id. A discretionary act is one that requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued. Id. A ministerial act is a clerical duty performed pursuant to a mandate with no exercise of judgment involved. State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 765 (Mo. App. E.D. 1981). The doctrine is intended to encourage a vigorous and effective government where public officials can make decisions free of fear of personal liability. Southers, 263 S.W.3d at 611; Eli Lilly, 619 S.W.2d at 763. When the issue of official immunity involves a publiclyemployed medical professional, there is a second step to the analysis. 34 In Richardson [v. City of St. Louis, 293 S.W.3d 133 (Mo. App. E.D. 2009)], this Court held that whether the actions of emergency medical responders are protected turns on the circumstances of the situation. When emergency responders are acting in a rapidly-evolving emergency situation with limited information, they are protected by official immunity. Id. 35 Without commenting on the vitality of Eli Lilly, [this court] reaffirms the approach advanced in Richardson. When publicly-employed emergency medical personnel are treating patients, their negligent acts are protected by official immunity only if they are acting in a true emergency situation. This true emergency situation is a strict requirement. A true emergency is one November-December 2010 / 315

5 involving rapidly-evolving circumstances where the medical personnel have limited information. The court should determine whether the situation involved a true emergency on a case-by-case basis by evaluating the totality of the circumstances. 36 Here, the two-person team that responded to the first call was not acting in a true emergency situation. The time and information available to [them] was more like that of a doctor treating a patient in a hospital than that of an emergency responder arriving to find a patient in critical condition. 37 Responders acting in non-emergency situations will be held to the same standard of care as their privately-employed counterparts. 38 Official immunity is available to publicly-employed emergency responders only if they are acting in a true emergency situation. In this case, [the first two responders] were not acting in a true emergency situation. 39 Contractor May Recover Attorney s Fees Under Private Prompt Payment Act Lucas Stucco & EIFS Design, LLC (Contractor) and Loren Landau (Owner) entered into a contract for the installation of a stucco finish on Owner s building. 40 After the project was completed, Owner still owed Contractor a balance of $4,900. Contractor filed suit for breach of contract, action on account, quantum meruit, and unjust enrichment. In the prayer to each count of Contractor s petition, Contractor requested an award of attorney s fees. After a bench trial, the trial court awarded Contractor $4,900, plus attorney s fees of $10,567. The Supreme Court of Missouri affirmed in Lucas Stucco & EIFS Design, LLC v. Landau. The general rule in Missouri is that attorney s fees are not awarded to every successful litigant. Harris v. 316 / Journal of the Missouri Bar Union Elec. Co., 766 S.W.2d 80, 89 (Mo. banc 1989). Attorney fees are recoverable in two situations: when a statute specifically authorizes recovery and when the contract provides for attorney fees. Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647, 657 (Mo. banc 2009). 41 The Missouri Private Prompt Payment Act, Section , provides that [a]ll persons who enter into a contract for private design or construction work shall make all scheduled payments pursuant to the terms of the contract. Section Any person who fails to make such payments may be subject to an action under the statute. Section In resolving the action, [t]he court may[,] in addition to any other award of damages, [award] reasonable attorney fees [ ] to the prevailing party. Id. Although the issue in this case is one of first impression, Vance Brothers, Inc. v. Obermiller Construction Services, Inc., 181 S.W.3d 562 (Mo. banc 2006), discussed the pleading requirements of the act. Vance concluded that there are two requirements for pleading a violation of the act: (1) the parties entered into a private construction contract; and (2) one or more payments were not made pursuant to the contract. Id. at Here, Contractor pleaded these two act requirements. 43 Contractor requested reasonable attorney fees in the prayer. The act does not require specific reference to the statute in the petition as a requirement to seek the relief it affords. Instead, a court may award any relief a statute provides, including attorney fees, as long as the party has pleaded the necessary elements of the act and has requested that relief in the prayer. By alleging in the petition all of the elements necessary to bring a claim under the act, Contractor met the pleading requirements of the statute, such that a specific request for reasonable attorney fees in the prayer may be granted. 44 A Municipality or Other Public Corporation May Bring a Declaratory Judgment Action to Determine a Boundary Dispute The City of Lake St. Louis filed a declaratory judgment action against the City of O Fallon, seeking to invalidate O Fallon s annexation of certain disputed property. The suit alleged that Lake St. Louis had a legally protectable interest in enforcing its ordinances, collecting and administering taxes, and protecting the rights of the city and its residents in the disputed area, and asked the trial court to enter judgment declaring that O Fallon had not legally annexed the property that Lake St. Louis claimed to be within its boundaries. 45 O Fallon filed a motion to dismiss, asserting that Lake St. Louis was not entitled to bring a declaratory judgment action to determine its boundaries. 46 The trial court granted O Fallon s motion, but the Supreme Court of Missouri reversed in City of Lake St. Louis v. City of O Fallon. [W]hile O Fallon is correct that individuals are not permitted to bring declaratory judgment actions seeking to determine boundaries or to oust a municipal or other public corporation from disputed territory, municipalities, school districts and other public corporations are permitted to bring

6 such actions. 47 A declaratory judgment provides guidance to the parties, declaring their rights and obligations and otherwise governing their relationship. Shipley v. Cates, 200 S.W.3d 529, 534 (Mo. banc 2006). 48 While the attorney general and prosecutor may bring a suit in quo warranto [when two governmental entities assert claims over a disputed area], whether they choose to do so is within those officials discretion. The governmental entity, therefore, as the party directly affected, should have the right instead to bring a declaratory judgment action in its own name to vindicate its directly affected interest in the territory. To require a directly affected municipality or other similar public corporation to rely on a third party the attorney general or a county prosecutor to bring suit over its very boundaries would risk leaving it without a remedy if the attorney general and prosecutor exercise their discretion not to act. While this is appropriate where an individual litigant is involved, to avoid the multiplicity of suits that otherwise would ensue and to ensure that spurious claims are not asserted in an effort to adversely affect the public body, such reasoning does not apply to the municipality or other public corporation itself, as it has a direct and vital interest in determining its own boundaries. 49 While a quo warranto action may be brought by the attorney general or prosecuting or circuit attorney at the relation of the public corporation to determine a boundary dispute, a declaratory judgment action may also be brought directly by the municipality or other public corporation itself. Endnotes 1 Deck v. Teasley, SC90628 (Mo. banc, Oct. 26, 2010). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 Id. 9 Id. 10 Id. 11 Id. 12 Id. 13 No. SC (Mo. banc 2010). 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Travelers Indemnity Co. v. The Williams- Carver Co., No. WD (Mo. App. W.D. 2010). 23 Id. 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. 32 Thomas v. Brandt, No. ED (Mo. App. E.D. 2010). 33 Id. 34 Id. 35 Id. 36 Id. 37 Id. 38 Id. 39 Id. 40 Lucas Stucco & EIFS Design, LLC v. Landau, No. SC90771 (Mo. banc 2010). 41 Id. 42 Id. 43 Id. 44 Id. 45 City of Lake St. Louis v. City of O Fallon, No. SC (Mo. banc 2010). 46 Id. 47 Id. 48 Id. 49 Id. November-December 2010 / 317