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 cost of providing medical services. Each value of her medical treatment and that
testified that the amount billed to Ms. she had rebutted the presumption under
“Delmar Teasley drove his ve- Deck for her medical treatment was cus- § 490.715. Deck v. Teasley.
hicle into the back of a line of vehicles tomary, fair and reasonable. They also
stopped at a traffic signal, causing the testified that the face value of the bills Section 490.715, subsection 5, newly
vehicle behind Edith Deck to collide was the value of the medical services enacted in 2005,
with her vehicle. Ms. Deck sustained provided, not the amount reimbursed
injuries in the collision and underwent by Medicare. governs the admissibility of
surgery, physical therapy and” other evidence regarding a specific
medical care.1 “Ms. Deck was billed “[T]he trial court found that the type of damages, the value of
$27,991.30 for her treatment. The presumption in section 490.715 was not medical treatment rendered to a
amount actually paid for her treatment, rebutted and determined that the value party. It provides that evidence
after adjustments, was $9,904.28. Pay- of [Deck’s] medical treatment was lim- of the dollar amount necessary
ments were made by Medicare, supple- ited to the amount actually paid for it, to satisfy the financial obliga-
mental insurance and Ms. Deck.”2 Be- together with any amount she still was tion to health care providers is
fore the trial on her suit against Teasley, obligated to pay.”4 “During trial, Ms. admissible at trial and creates
“Teasley filed a motion to determine Deck made an offer of proof regarding the rebuttable presumption that
the value of [her] medical treatment … the value of her medical expenses, again such amount represents the
pursuant to section 490.715.5.”3 At the attempting to rebut the presumption of value of the medical treatment
hearing on Teasley’s motion, Ms. Deck value under section 490.715.”5 rendered. On the motion of
presented testimony from three individ- “[T]he trial court again ruled that Ms. any party, the court may deter-
uals who previously or currently worked Deck could not present evidence to the mine whether other evidence of
in healthcare positions involving the jury of her medical bills that had not value is admissible at trial and
been paid by her or on her behalf.”6 delineates that the other evi-
“[T]he jury rendered a verdict in favor dence may include, but is not
of Ms. Deck and assessed her dam- limited to: the medical bills
ages in the amount of $42,500.”7 On incurred; the amount actually
appeal, the Supreme Court remanded paid for the medical treatments;
the case for a new trial on the issue of or the amount or estimate of
W. DUDLEY MCCARTER damages only, finding that Ms. Deck the amount not paid that such
behr, mccarter & potter had presented substantial evidence that party is obligated to pay in the
St. louis event of a recovery.8
her total medical bills represented the
312 / Journal of the Missouri Bar
“The rebuttable presumption created that the value of her medical the Supreme Court of Missouri reversed
by section 490.715.5 is that the dol- treatment was $9,904.28, the in People’s Bank v. Frazee.13
lar amount paid to satisfy the financial amount that [she], Medicaid
obligation to the healthcare providers and supplemental insurance Generally, when personal
is the value of the medical treatment actually paid for her treatment jurisdiction is contested by the
rendered.”9 after adjustments. The exclu- filing of a motion to dismiss a
sion of evidence of the addi- Missouri action, the plaintiff
The rebuttable presumption tional $18,087.02 in potential bears the burden of establishing
in section 490.715.5 requires damages the jury should have that the defendant’s contacts
the trial court to determine if been allowed to consider, mate- with the forum state were suffi-
the party seeking to rebut the rially affected the merits of the cient. State ex rel. Ranni Assocs.,
presumption has presented sub- action. See Accomac Realty Co. Inc. v. Hartenbach, 742 S.W.2d
stantial evidence that the value v. City of St. Louis, 152 S.W.2d 134, 137 (Mo. banc 1987).
of medical treatment rendered 100, 103 (Mo. 1941). Accord- When the challenge to personal
is an amount different from ingly, the trial court’s exclusion jurisdiction arises in the context
the dollar amount necessary of Ms. Deck’s evidence of the of a motion to register a foreign
to satisfy the financial obliga- value of medical treatment was judgment, however, the strong
tions to health care providers. prejudicial … and she is en- presumption of the validity of a
If such substantial evidence is titled to a new trial on the issue foreign judgment that is regular
proffered, the statutory pre- of damages. on its face makes the general
sumption is rebutted. When rule inapplicable.14
the presumption is rebutted,
the party’s other evidence of Judgment of Foreign Frazee defaulted in the Okla-
value, as well as the amount homa action … [and he]
necessary to satisfy the financial
State is Presumed Valid; contested the Oklahoma
obligations is admitted at trial Burden is on Defendant district court’s personal juris-
as if no presumption exists. If to Prove Lack of Personal diction over him for the first
the presumption is not rebut- Jurisdiction by Foreign time in the Missouri circuit
ted, then the only evidence of court. Because the issue was
the value of medical treatment State not litigated in the foreign
rendered is the dollar amount People’s Bank obtained a judgment state, Mr. Frazee had the right
necessary to satisfy the financial in an Oklahoma court against Missouri to attack the judgment for lack
obligation of the health care resident H. L. Frazee. People’s Bank of personal jurisdiction in the
providers.10 proceeded to enforce the judgment in Missouri circuit court. Miller
the circuit court of Wright County, Mis- v. Dean, 289 S.W.3d 620, 624
Here, Ms. Deck presented substan- souri. The circuit court found that the (Mo. App. 2009). The Okla-
tial , “evidence at the pre-trial hearing Oklahoma court lacked personal juris- homa judgment Mr. Frazee was
and the offer of proof that the amount diction over Frazee and quashed the reg- contesting is regular on its face,
she was billed is the value of the medi- istration of the foreign judgment. The so the judgment was subject
cal treatment rendered to her….”11 “In judgment was entered in Oklahoma on to the strong presumption
light of such substantial evidence, the a guarantee signed by Frazee for a loan that the Oklahoma court had
trial court misapplied the law in ruling to his son and his son’s wife. People’s jurisdiction. As the party as-
that the statutory presumption in sec- Bank had prepared the guarantee and serting invalidity of the foreign
tion 590.715.5 was not rebutted….”12 mailed it to Frazee in Missouri. Frazee judgment, Mr. Frazee bore the
signed the guarantee and mailed it back burden of establishing that
Ms. Deck proffered evidence to People’s Bank. In the suit People’s the Oklahoma court lacked per-
that the value of the medical Bank filed to enforce the guarantee, a sonal jurisdiction.15
treatment rendered to her was summons was mailed to Frazee by certi-
$27,991.30. However, due fied mail, but he refused service. The “Because this jurisdictional challenge
to the trial court’s exclusion Oklahoma court entered a default judg- arises in the context of a motion to
of that evidence, the jury only ment against him. The circuit court register a foreign judgment, this Court
was permitted to hear evidence found that the Oklahoma court lacked must look to the rendering state’s law
personal jurisdiction over Frazee, but – that is, Oklahoma substantive law –
November-December 2010 / 313
to determine whether the Oklahoma and purposely availed himself received an assignment of Mr. Dell’s
court had personal jurisdiction over to the protections of Oklahoma rights….”23 In 2005, Travelers filed suit
Mr. Frazee. See Phillips [ v. Fallen], 6 [and] should not be able to against Williams-Carver for negligent
S.W.3d at 868 [(Mo. banc 1999)].”16 avoid his interstate obligation installation of the freezer, alleging that
“[T]he inquiry is whether the Okla- by asserting lack of personal Williams-Carver concealed the defective
homa court’s exercise of personal jurisdiction.20 gap at the top of the wall of the freezer.
jurisdiction over Mr. Frazee comports The trial court granted summary judg-
with federal due process. See Gilbert v. Because of the strong pre- ment to Williams-Carver, finding that
SEC. Fin. Corp. of Okla., Inc., 152 P.3d sumption of validity of foreign Travelers’ claims were filed beyond the
165, 173 (Okla. 2006).”17 ‘“In some state judgments, Mr. Frazee had 10-year statute of repose, § 516.097
cases, single or isolated acts by a defen- the burden to establish that the RSMo. and further finding that the
dant in a state, because of their nature judgment was irregular or that concealment exception of the statute
and quality and the circumstances of Oklahoma lacked personal ju- did not apply. The Court of Appeals af-
their commission, provided sufficient risdiction over him. Every per- firmed in Travelers Indemnity Co. v. The
minimum contacts to support jurisdic- sonal jurisdiction case involves
tion for liability arising from those acts.’ a fact-specific inquiry; it does
“The Missouri Supreme Court has
Bryant [v. Smith Interior Design Group, not lend itself to categorical
defined the phrase ‘sole connection with
Inc.], 310 S.W.3d at 233 [(Mo. banc determinations. [Mellon Bank,
the improvement’ in Section 516.097
2010)].” 18 960 F.2d at 1225]. Under the
as ‘a connection to a defective or unsafe
facts and circumstances sur- condition of an improvement or real
Here, Frazee knew he was deal- rounding Mr. Frazee’s execution estate giving rise to liability.’ Magee v.
ing with an Oklahoma bank when he of the guarantee, [he] had the Blue Ridge Prof ’l Bldg. Co., 821 S.W.2d
signed the guarantee. He also knew that required minimum contacts 839, 843 (Mo. banc 1991).”25
People’s Bank would not have provided with Oklahoma. Therefore, the
a loan to Frazee’s son and daughter-in- Oklahoma court's exercise of [I]f a defendant has any
law without Frazee’s guarantee. Frazee personal jurisdiction over Mr. connection that gives rise to
engaged in telephone conversations with Frazee comports with Oklaho- liability with respect to an
People’s Bank and mailed the guaran- ma’s long-arm statute and due improvement other than by de-
tee back to Oklahoma after he signed process.21 sign, planning or construction,
it. “Contrary to Frazee’s assertion that Section 516.097 is not available
a non-resident guarantor must reap a Defective Construction as an affirmative defense.” Lay
pecuniary gain, other courts have found v. P & G Healthcare, Inc., 37
that a personal financial benefit or pe-
Claim Barred By Ten-Year S.W.3d 310, 321 (Mo. App.
cuniary gain by the guarantor is unnec- Statute of Repose 2000). The defendant's sole
essary to exercise personal jurisdiction “In 1987, Mr. Dell Foods hired Den- connection to the defective or
over the non-resident guarantor. E. G. nis Watson Construction … as general unsafe improvement to real
Mellon Bank[, (East) PSFS, Nat’l Ass’n. v. contractor for the construction of an property must be as an archi-
Farino], 960 F.2d at 1225 n. 4 [(3rd Cir. addition to [Mr. Dell’s] production tect, engineer or builder Id.26
1992)].”19 facility. The proposed addition in-
cluded an insulated room to be used as Here, the sole connection of Williams-
There are also sound policy rea- a large walk-in freezer. Watson retained Carver with the improvement was as the
sons for exercising jurisdiction Williams-Carver to plan and construct builder of the refrigeration system.
a refrigeration system for the freezer
over non-resident guarantors.
room.”22 In 2001, a fire was intention- Traveler’s … lawsuit against
"[T]he Due Process Clause may
ally set by a Mr. Dell employee in a Williams-Carver was filed
not readily be wielded as a ter-
room adjacent to the freezer. A concrete more than ten years after the
ritorial shield to avoid interstate
block wall separated the room from the improvements to Mr. Dell’s
obligations that have been
freezer, but there was a gap of between production facility were
voluntarily assumed." Mellon 16 to 24 inches above the concrete wall. completed in 1988. Williams-
Bank, 960 F.2d at 1222. In this The fire spread from the adjacent room Carver properly invoked the
case, Frazee voluntarily assumed to the freezer by going over the top of affirmative defense of the
the obligation of guaranteeing the concrete wall. “As the insurer for ten-year statute of repose in
[the] note…. [He] purposely Mr. Dell, Travelers paid in excess of Section 516.097 by presenting
directed activity into the forum $5,000,000 for the [fire damage] and uncontroverted evidence that
314 / Journal of the Missouri Bar
its sole connection with the im- culty breathing.”32 Within a short time, one that requires “the exercise
provements was to perform or an ambulance unit from the Commu- of reason in the adaptation of
furnish construction services.27 nity Fire Protection District arrived at means to an end and discretion
his home. “The unit was manned by in determining how or whether
The concealment exception in Michael Brandt, a licensed emergency an act should be done or course
§ 516.097 does not apply. “As used in medical technician, and James Loehrer, pursued.” Id. A ministerial
the statute, the term ‘conceals’ means a licensed paramedic.”33 Upon arrival, act is a clerical duty performed
‘an affirmative act, something actu- Brant and Loehrer examined Thomas pursuant to a mandate with no
ally done directly intended to prevent and collected his vital signs. They exercise of judgment involved.
discovery or to thwart investigation.’ diagnosed his problem as acid reflux and State ex rel. Eli Lilly & Co. v.
Magee, 821 S.W.2d at 844….”28 “[D] recommended over-the-counter medica- Gaertner, 619 S.W.2d 761, 765
eposition testimony … established that tion. Believing he was in no immedi- (Mo. App. E.D. 1981). The
the gap between the top of the con- ate medical danger, they left his home doctrine is intended to encour-
crete wall and the roof was open and 15 minutes after arriving. The next age a “vigorous and effective
obvious….”29 morning, Thomas again called 9-1-1, government” where public
still complaining of chest pains and officials can make decisions
To rebut the evidence of difficulty breathing. An ambulance unit free of fear of personal liability.
openness, Travelers alleges the from Community Fire Protection Dis- Southers, 263 S.W.3d at 611;
defective nature of the gap trict, manned by a different two-person Eli Lilly, 619 S.W.2d at 763.
was “latent” and, therefore, its team, arrived at his home. That team
significance should have been began administering emergency medi- When the issue of official
disclosed by Williams-Carver. cal care and transported him to DePaul immunity involves a publicly-
However, latent defects are not Health Center, where he died later that employed medical professional,
the same as concealed defects. day from cardiac arrest. The spouse and there is a second step to the
Fueston v. Burns & McDonnell son of Thomas filed a wrongful death analysis.34
Eng’g Co., 877 S.W.2d 631, 638 suit against Community Fire Protec-
(Mo. App. 1994). “Conceals” tion District, Brandt and Loehrer. The In Richardson [v. City of St.
means more than a failure to trial court granted summary judgment Louis, 293 S.W.3d 133 (Mo.
reveal information allegedly
to Grant and Loehrer, finding that they App. E.D. 2009)], this Court
known. Butler [v. Mitchell-
were entitled to official immunity. The held that whether the actions of
Hugeback, Inc.], 895 S.W.2d
Court of Appeals reversed, however, in emergency medical responders
at 19-20 [(Mo. banc 1995)].
Thomas v. Brant. are protected turns on the cir-
Rather, it carries the “implica-
cumstances of the situation….
tion of intentional conduct
Official immunity is a judicial- When emergency responders
designed to prevent discovery.”
ly-created doctrine designed to are acting in a rapidly-evolving
Id. at 19.30
protect public employees from emergency situation with
liability for allegedly negligent limited information, they are
“There is no evidence that Williams-
Carver acted affirmatively to prevent acts committed during their protected by official immunity.
the discovery of the gap in the wall. performance of official duties. Id.35
Given the open and obvious nature of [Southers v. City of Farming-
the alleged defective condition, there ton, 263 S.W.3d 603, 610 Without commenting on the
is no factual dispute as to whether (Mo. banc 2008).] Generally, vitality of Eli Lilly, [this court]
the concealment exception in Section whether public employees are reaffirms the approach ad-
516.097.4(2) could be applied.”31 protected turns on the type of vanced in Richardson.
act involved; the court must
determine whether the chal- When publicly-employed
Official Immunity is lenged act was discretionary or emergency medical person-
Available to Publicly- ministerial. Davis v. Lambert- nel are treating patients, their
Employed Emergency St. Louis Intern. Airport, 193 negligent acts are protected by
S.W.3d 760, 763 (Mo. banc official immunity only if they
Responders Only in a True 2006). Acts which are discre- are acting in a true emergency
Emergency Situation tionary are protected, while situation. This true emergency
“Anthony Thomas … called 9-1-1 acts which are ministerial are situation is a strict require-
complaining of chest pains and diffi- not. Id. A discretionary act is ment. A true emergency is one
November-December 2010 / 315
involving rapidly-evolving Union Elec. Co., 766 S.W.2d 80, 89 attorney fees, as long as the
circumstances where the (Mo. banc 1989). Attorney fees are party has pleaded the neces-
medical personnel have lim- recoverable in two situations: when a sary elements of the act and
ited information. The court statute specifically authorizes recovery has requested that relief in the
should determine whether and when the contract provides for prayer.
the situation involved a true attorney fees. Essex Contracting, Inc. v.
emergency on a case-by-case Jefferson County, 277 S.W.3d 647, 657 By alleging in the petition all
basis by evaluating the totality (Mo. banc 2009).”41 The Missouri of the elements necessary to
of the circumstances.36 Private Prompt Payment Act, Section bring a claim under the act,
431.180, Contractor met the pleading
Here, the two-person team that re- requirements of the statute,
sponded to the first 9-1-1 call was not provides that “[a]ll persons such that a specific request for
acting in a true emergency situation. who enter into a contract for “reasonable attorney fees” in
“The time and information avail- private design or construc- the prayer may be granted.44
able to [them] was more like that of a tion work…shall make all
doctor treating a patient in a hospital scheduled payments pursuant
than that of an emergency responder A Municipality or Other
to the terms of the contract.”
arriving to find a patient in critical … Section 431.180.1. Any Public Corporation May
condition.”37 “Responders acting in person who fails to make such Bring a Declaratory
non-emergency situations will be held payments may be subject to
to the same standard of care as their
Judgment Action to
an action under the stat-
privately-employed counterparts.”38 ute. Section 431.180.2. In Determine a Boundary
“Official immunity is available to pub- resolving the action, “[t]he Dispute
licly-employed emergency responders court may[,] in addition to The City of Lake St. Louis filed a
only if they are acting in a true emer- any other award of damages, declaratory judgment action against
gency situation. In this case, [the first …[award] reasonable attor- the City of O’Fallon, seeking to invali-
two responders] were not acting in a ney fees [ ] to the prevailing date O’Fallon’s annexation of certain
true emergency situation.”39 party.” Id. Although the disputed property. The suit alleged
issue in this case is one of first that “Lake St. Louis had a legally
Contractor May Recover impression, Vance Brothers, protectable interest in enforcing its or-
Attorney’s Fees Under Inc. v. Obermiller Construction dinances, collecting and administering
Services, Inc., 181 S.W.3d 562 taxes, and protecting the rights of the
Private Prompt Payment Act (Mo. banc 2006), discussed city and its residents in the disputed
“Lucas Stucco & EIFS Design, area, and asked the trial court to enter
the pleading requirements of
LLC (Contractor) and Loren Lan- the act. Vance concluded that judgment declaring that … O’Fallon
dau (Owner) entered into a contract there are two requirements had not legally annexed” the prop-
for the installation of a stucco finish for pleading a violation of the erty that Lake St. Louis claimed to
on Owner’s building.”40 After the act: (1) the parties entered be within its boundaries.45 O’Fallon
project was completed, Owner still into a private construction filed a motion to dismiss, asserting
owed Contractor a balance of $4,900. contract; and (2) one or more “that Lake St. Louis was not entitled
Contractor filed suit for breach of payments were not made to bring a declaratory judgment action
contract, action on account, quantum pursuant to the contract. Id. to determine its boundaries.”46 The
meruit, and unjust enrichment. In at 564.42 trial court granted O’Fallon’s motion,
the prayer to each count of Contrac- but the Supreme Court of Missouri
tor’s petition, Contractor requested Here, “Contractor pleaded these reversed in City of Lake St. Louis v.
an award of attorney’s fees. After a two act requirements.”43 City of O’Fallon.
bench trial, the trial court awarded
Contractor $4,900, plus attorney’s fees Contractor requested rea- “[W]hile O’Fallon is correct that
of $10,567. The Supreme Court of sonable attorney fees in the individuals are not permitted to bring
Missouri affirmed in Lucas Stucco & prayer. The act does not declaratory judgment actions seeking
EIFS Design, LLC v. Landau. require specific reference to to determine boundaries or to oust a
“The general rule in Missouri is the statute in the petition municipal or other public corporation
that attorney’s fees are not awarded as a requirement to seek the from disputed territory, municipali-
to every successful litigant. Harris v. relief it affords. Instead, a ties, school districts and other public
court may award any relief corporations are permitted to bring
a statute provides, including
316 / Journal of the Missouri Bar
such actions.”47 ‘“A declaratory judg- to act. While this is appro- 12 Id.
ment provides guidance to the parties, priate where an individual 13 No. SC 90536 (Mo. banc 2010).
declaring their rights and obligations litigant is involved, to avoid 15 Id.
and otherwise governing their rela- the multiplicity of suits that 16 Id.
tionship.…” Shipley v. Cates, 200 otherwise would ensue and 17 Id.
S.W.3d 529, 534 (Mo. banc 2006) to ensure that spurious claims 18 Id.
….”48 are not asserted in an effort
to adversely affect the public 21 Id.
While the attorney general body, such reasoning does 22 Travelers Indemnity Co. v. The Williams-
and prosecutor may … bring not apply to the municipality Carver Co., No. WD 71181 (Mo. App. W.D.
a suit in quo warranto [when or other public corporation 2010).
two governmental entities itself, as it has a direct and 24 Id.
assert claims over a disputed vital interest in determining 25 Id.
area], whether they choose to its own boundaries.49 26 Id.
do so is within those officials’ 27 Id.
discretion. The governmental While a quo warranto action may be 28 Id.
entity, therefore, as the party brought by the attorney general or 30 Id.
directly affected, should have prosecuting or circuit attorney at the 31 Id.
the right instead to bring a relation of the public corporation to 32 Thomas v. Brandt, No. ED 94414 (Mo.
declaratory judgment action determine a boundary dispute, a de- App. E.D. 2010).
in its own name to vindicate claratory judgment action may also be 34 Id.
its directly affected interest in brought directly by the municipality 35 Id.
the … territory. or other public corporation itself. 36 Id.
To require a directly af- 38 Id.
Endnotes 39 Id.
fected municipality or other 1 Deck v. Teasley, SC90628 (Mo. banc, Oct. 40 Lucas Stucco & EIFS Design, LLC v. Lan-
similar public corporation 26, 2010). dau, No. SC90771 (Mo. banc 2010).
to rely on a third party – the 2 Id. 41 Id.
attorney general or a county 3 Id. 42 Id.
4 Id. 43 Id.
prosecutor – to bring suit 5 Id. 44 Id.
over its very boundaries 6 Id. 45 City of Lake St. Louis v. City of O’Fallon,
would risk leaving it with- 7 Id. No. SC 90790 (Mo. banc 2010).
out a remedy if the attor- 8 Id. 46 Id.
9 Id. 47 Id.
ney general and prosecutor 10 Id. 48 Id.
exercise their discretion not 11 Id. 49 Id.
November-December 2010 / 317