In Missouri, the aptly named “No Pay/No Play” statute, RSMo. § 303.390, provides that a driver with no automobile insurance waives their ability to claim non-economic damages (i.e. pain and suffering) against another driver unless it can be proven that the insured driver was under the influence at the time of the accident (1). The uninsured motorist can still obtain other damages like property damage, medical bills, and lost wages. But, if the uninsured motorist failed to pay for auto insurance, they do not get to play around with noneconomic damages in court.
The statute reads, in relevant part:
An uninsured motorist shall waive the ability to have a cause of action or otherwise collect for non-economic loss against a person who is in compliance with the financial responsibility laws of this chapter due to a motor vehicle accident in which the insured driver is alleged to be at fault. For purposes of this section, the term “uninsured motorist” shall include (1) an uninsured driver who is the owner of the vehicle; (2) an uninsured permissive driver of the vehicle; and (3) any uninsured nonpermissive driver.
§ 303.390’s bar on non-economic damages can be overcome if the moving party can show that the accident was caused, in whole or in part, by a tort-feasor who operated a motor vehicle under the influence of drugs or alcohol, or who is convicted of involuntary manslaughter under [the criminal statute], or assault in the second degree under [the criminal statute].
The current debate over § 303.390, however, centers on its constitutionality. A legitimately enacted statute “carries with it a strong presumption of constitutionality” so the Court should “resolve doubts in favor of …[its] validity.” Hammerschmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. banc 1994). Nevertheless, the General Assembly retains the authority to abrogate the common law in its statutes. State v. Bouse, 150 S.W.3d 326, 333 (Mo. banc 1997).
Determining Whether a Statute is Constitutional
The Missouri legislature has the authority to “place reasonable limitations on common law causes of action.” Fust v. Attorney General, 947 S.W.2d 424, 430-31 (Mo. banc 1997). In fact, the legislature may go so far as to “abolish common law causes of action.” Ordinola v. University Physician Associates, et. al., 2021 WL 3119063, at *3 (Mo. banc July 22, 2021)(See also Holder v. Elms Hotel Co., 92 S.W.2d 620, 624 (Mo. 1936)(finding that “the Constitution does not forbid the creation of new rights or the abolition of old ones recognized by the common law.”) A Missouri statute must be upheld unless it “clearly and undoubtedly violates a constitutional provision.” Hammerschmidt at 102. These considerations are balanced by Article I, Section 22(a) of the Missouri Constitution, which prohibits the legislature from abridging the “right of trial by jury.”
When determining the constitutionality of a statute, courts use a two-part test. First, a right must be “the same type of case that was recognized at common law when the constitution was adopted in 1820.” Watts ex rel. Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 638 (Mo. banc 2012). Part two of the test requires the right of trial by jury be inviolate in light of the challenged law. Id. at 640.
Caps versus Bars: A Key Distinction
Part one of the constitutionality test is not the spotlight issue. Rather, part two of the test receives the attention of Missouri courts. For example, a cap on non-economic damages in a medical malpractice action infringes on a person’s right to trial by jury and is thus unconstitutional. Watts at 638.
In Watts, the court rests its opinion on the principle that “the jury’s role in a civil case is to determine the facts,” and the “amount of non-economic damages is a fact that must be determined by the jury.” Watts at 640. The statute at issue, RSMo § 538.210, was a statutory cap on medical malpractice non-economic damages – not an outright bar on them. The court’s responsibility to take jury-determined damages and reduce it to a specific figure interferes with a right of trial by jury and is thus unconstitutional. Id.
The court in Hassell distinguished the facts from Watts and determined that § 303.390.1 was a valid exercise of legislative power to “place a reasonable limitation on common law causes of action.” Hassell v. Howard, No. 20-05042-CV-S-BP (W.D.M.O. Aug. 12, 2021); Fust at 430. The key distinction relies on § 303.390.1 being an outright bar on damages and not a cap.
First, § 303.390.1 only applies under certain factual circumstances and is not “wholly independent of the facts of the case.” The act of applying the law to the facts and determining the legal consequences of those facts are “fundamentally matters for the Court” and not the jury. Hassell at 5. Second, § 303.390.1 does not interfere with the jury’s determination of the amount of damages and instead bars a plaintiff’s recovery under certain factual circumstances. In effect, § 303.390.1 abolishes a common law action for non-economic damages if the plaintiff is uninsured and the defendant is insured. Ordinola at *3. This, under the Hassel court, is a reasonable limitation of a common law right of action. Hassel at 6; Fust at 430-31. Such an action is well within the power of the legislature. Holder at 624. Note that the Hassell court admitted that the constitutionality of damage caps or bars is a complex legal issue on which reasonable minds could differ. Hassell at 6.
Hassell’s “reasonable minds can differ” dicta is demonstrated in Jiles v. Schuster Co., 357 F.Supp3d 908, (Mo. App. W.D. 2018), a case which interpreted § 303.390 as a damage cap which “clearly and undoubtedly” violated Missouri’s constitution. Jiles relies on the language in Watts, finding that § 303.390 “clearly contemplates presenting evidence to the fact finder” before “reduc[ing] any award for non-economic damages,” which constitutes a violation of the requirement that the right to jury trial remains inviolate. Jiles at 914-15. In other terms, the Jiles court found that § 303.390 is a damage cap that expressly limits a jury’s determination of noneconomic damages. Id. at 915.
Similarly, in Howard v. Mulkins, No. 1716-CV08520 (Oct. 17, 2018), the Circuit Court of Jackson County, Missouri, struck the defendant’s affirmative defense that § 303.390 barred the plaintiff from recovering non-economic damages. The court found that the Watts analysis applied to § 303.390 and held that, despite its “waiver” language, the statute “clearly contemplates presenting evidence to the fact finder and then reducing any award for non-economic damages.” See Howard. But, almost like a slingshot taking us back the other direction, we can find evidence supporting § 303.390’s constitutionality in Mays v. Williams, where the court declined to strike the defendant’s § 303.390 affirmative defense. Jiles at 915. Similarly, the court in Miller v. McClellan found that § 303.390 is a waiver, not a cap, and is constitutional. Id.
When insurance companies deny coverage to uninsured motorists, Plaintiff’s attorneys have been keen to claim that § 303.390 is unconstitutional. We should expect Plaintiff’s attorneys to continue to argue the Watts case applies to the No Pay/No Play statute insofar as they are both related to caps on non-economic damages. However, the No Pay/No Play statute has never been decided as “unconstitutional” by a court of appeal in Missouri. Whilst Plaintiff’s attorneys will cite trial court decisions holding the statute unconstitutional, there are likewise trial court rulings holding that the statute is constitutional (3). With the ruling in Hassel, Defense attorneys have some leverage.
It appears that the enforcement of the statute will depend entirely upon the reading given by the trial judge to which the case is assigned. Insurers should be able to rely on this statute; however, when performing a claims analysis, and should consider the landscape.
Article by Tayler Bertelsman