In Missouri, RSMo. § 303.390, otherwise known as the “No Pay/ No Play” statute, holds that drivers without automobile insurance waive the ability to pursue non-economic damages (i.e. pain and suffering) against another, insured driver in any litigation arising from any accidents that occurred between the two parties. The only exception to this statute is that an uninsured driver may claim non-economic damages when it is found that the insured driver was under the influence of drugs or alcohol at the time of the accident. RSMo. § 303.390 does not prevent an uninsured driver from pursuing economic damages, such as property loss, medical expenses, and lost wages. This statute does not bar passengers in uninsured vehicles from being awarded non-economic damages.
As discussed in previous articles, the plaintiff’s attorneys have argued that RSMo. § 303.390 is unconstitutional in barring uninsured defendants from pursuing non-economic damages, which had been allowed at common law. However, no appellate courts have taken up the issue regarding the statute’s constitutionality. The Supreme Court of Missouri has heard a case where RSMo. § 303.390 was at issue, Bridegan v. Turntine (1). However, the Court declined to comment on the constitutionality of the statute on the grounds that the Plaintiff had waived her right to argue that the statute was unconstitutional at a prior case management conference.
As a result of the lack of appellate decisions discussing RSMo. § 303.390, many Plaintiff’s attorneys utilize Watts v. Lester E. Cox Medical Center (2), which held that the statutory cap on damages in medical malpractices cases was a violation of a Plaintiff’s right to a trial by jury and therefore unconstitutional, to argue that RSMo. § 303.390 also imposes an unconstitutional statutory cap on damages on uninsured drivers. In Watts, the court specifically found that the ability to claim non-economic damages was included in the “heretofore enjoyed” right of trial by jury at common law and that the statutory cap changed the common law right to have a jury determine damages. The court determined that such a cap is unconstitutional. The same argument has met mixed results when applied to RSMo. § 303.390, with some trial courts finding the statute to be unconstitutional, while other trial courts have found the statute to be constitutional.
One recent example of a case where RSMo. § 303.390 was at issue and found unconstitutional in a St. Louis County trial court, was LaTonya Alexander v. Derrick Barth (4). This case also shows an alternative line of reasoning that a court might use to find the statute to be unconstitutional, other than by relying on Watts. In an order signed by Judge Stanley Wallach, on the Plaintiff’s Motion for Partial Judgement on the Pleadings regarding Defendant’s Affirmative Defense as Unconstitutional, the court was unconvinced by the arguments presented by the Plaintiff arguing that the waiver in this case was unconstitutional on the basis that she did not affirmatively waive the right to non-economic damages. However, the court still found the statute to be unconstitutional based on the mechanics of how it operated. The court primarily took issue with section 3 of the statute, which allowed for the jury to be presented with evidence regarding non-economic damages and allowed them to make an award of non-economic damages, but that the court must then subtract the non-economic damages from the total award. Further, at no point is the jury to be informed, either directly or indirectly, of any part of this process. The exact language used in Section 3 of the statute is:
“In an action against a person who is in compliance with the financial responsibility laws prescribed by this chapter by a person deemed to have waived recovery under subsection 1 of this section:(1) Any award in favor of such person shall be reduced by an amount equal to the portion of the award representing compensation for noneconomic losses; (2) The trier of fact shall not be informed, directly or indirectly, of such waiver or of its effect on the total amount of such person’s recovery.”
The court here held that by having the award made by the jury be changed, without informing the jury in any way, RSMo. § 303.390 violates a plaintiff’s right to a trial by jury and to have the damages in the case be set by the jury. This case, and others like it, are just some of the examples of trial court decisions that may be used by Plaintiff’s attorneys as authority to argue that RSMo. § 303.390 is unconstitutional. There are also many cases where trial courts have held that RSMo. § 303.390 is constitutional (3).
Until an intermediate appellate court or the Missouri Supreme Court takes up the issue of whether RSMo. § 303.390 is constitutional, the only available authority on the subject will continue to be trial court decisions. Insurers should be able to rely on this statute; however, when performing a claims analysis, they should also potentially consider the judicial landscape, and whether their attorneys have successfully used RSMo. § 303.390 in the past.
(1) 2023 Mo. LEXIS 184
(2) 376 S.W. 3d 633 (Mo. 2012).
(3) See Miller v. McClellan (St. Louis County Case No. 17SL-CC02989 – opinion issued by Judge Ott); Mays v. Williams (Jackson County Case No. 1516-CV14915 – opinion issued by Judge Harrell); Crider v. Lowe’s Home Centers, Inc., et al. (Franklin County Case No. 13AB-CC000241 – opinion issued by Judge Wood); Kelly v. Parr (Benton County Case No. 16BE-CC00042 – opinion issued by Judge Pilley).
(4) St. Louis County Case No: 20SL-CC03785