Those who practice insurance coverage law in Missouri understand the potential perils associated with an “065” agreement. Missouri passed legislation to help protect the insurers interests and thwart collusive arbitration awards and settlement agreements between plaintiffs and insureds. Missouri legislators introduced SB-HB 345 which amends two statutes—Missouri Revised Statutes 435.415 and 537.065. The bill was signed into law on June 29, 2021 and becomes effective August 28, 2021.
The bill is an effort to close “loopholes” in the current version of the statutes. First, the bill amends Section 435.415 to provide that “[a]ny arbitration award for personal injury, bodily injury, or death or any judgment or decree entered on an arbitration award for personal injury, bodily injury, or death shall not be binding on any insurer…unless the insurer has agreed in writing to the arbitration proceeding.” The bill also specifies that an insurer’s election not to participate in an arbitration proceeding does not constitute and will not be construed as “bad faith” by the insurer. This effectively closes the arbitration loophole left open by the 2017 amendments and prevents insurers from being held liable for an uncontested arbitration award when they never agreed to the proceeding.
The bill amends Section 537.065’s notice requirements to insurers. The amendments maintain the requirement that an insured must give 30 days’ notice of its 065 Agreement, but now provide that a judgment may not be entered against any insured “for at least thirty days after the insurer” has “received written notice” of the agreement. Moreover, the amendments allow the insurer the “unconditional right” to intervene in the civil action involving claims against its insured, but now provides that the insurer has the ability to actually participate in the litigation. “Upon intervention pursuant to this section, the intervenor shall have all rights afforded to defendants under the Missouri rules of civil procedure and reasonable and sufficient time to meaningfully assert its position including, but not limited to, the right and time to conduct discovery, the right and time to engage in motion practice, and the right to a trial by jury and sufficient time to prepare for trial.” The bill further provides: “No stipulations, scheduling orders, or other orders affecting the rights of an intervenor and entered prior to intervention shall be binding upon the intervenor.”
Additionally, while the amended statute preserves any claims an insured has for bad faith against its carrier, any agreement between the insured and claimant (plaintiff), including any 065 agreements under the statute, are deemed admissible as evidence in a later bad faith action against the carrier.
If you would like more information about these statutes or have any questions, please contact attorney Danita Davis at ddavissudac@tresslerllp.com.
About the Author
Danita L. Davis is Co-Chair of Tressler's Insurance Practice Group. She also practices with the Litigation Defense Practice Group. Danita represents insurers in matters regarding first party property residential and commercial disputes, commercial general liability coverage, professional liability coverage, liquor liability coverage and employment practices liability coverage, among others. She advises insurers regarding a broad range of matters involving state and federal law throughout the country. She regularly appears in court on both routine and contested matters, participates in oral argument and conducts all facets of discovery and trial preparation. She has many favorable outcomes through dispositive motion practice in cases involving coverage and liability issues. Danita also has experience in alternative dispute resolution, having represented clients in settlement conferences and at mediations and arbitrations. Additionally, she has experience defending policyholders in suits alleging a wide range of claims, including but not limited to, premises liability, general negligence, vicarious liability, wrongful acts, contractual disputes, business torts, wrongful employment practices and wrongful acts and intentional conduct.
