Supreme Court of Missouri
en banc

IN RE: REVISIONS TO MAI-CIVIL



MAI 4.01 DAMAGES – PERSONAL AND PROPERTY
(Notes on Use - Revision)

MAI 4.11 DAMAGES – UNINSURED MOTOR VEHICLE – SUIT AGAINST
INSURER ONLY
(Notes On Use - Revision)

MAI 4.18    DAMAGES – PERSONAL INJURY AND LOSS OF CONSORTIUM,
LOSS OF SERVICES OR MEDICAL EXPENSES – SPOUSE OR
CHILD INJURED – NON-COMPARATIVE FAULT ONLY
(Notes on Use - Revision)

MAI 19.01 VERDICT DIRECTING MODIFICATION – MULTIPLE CAUSES
OF DAMAGE
(Notes On Use  - Revision)

MAI 21.03 DAMAGES – ACTIONS AGAINST HEALTH CARE PROVIDERS

NO COMPARATIVE FAULT
(Notes on Use - Revision)

MAI 37.03 COMPARATIVE FAULT –  DAMAGES
(Notes on Use – Revision)

MAI 37.08 COMPARATIVE FAULT –  DAMAGES – PERSONAL INJURY
AND LOSS OF CONSORTIUM, LOSS OF SERVICES OR
MEDICAL EXPENSES – SPOUSE OR CHILD INJURED
(Notes on Use  - Revision)



1.  Revisions of previously approved MAI-CIVIL Notes on Use as listed above, having been prepared by the Committee on Jury Instructions - Civil and reviewed by the Court, are hereby adopted and approved.

2.  The Notes on Use revised as set forth in the specific exhibits attached hereto must be used on and after July 1, 1999, and may be used prior thereto; any such use shall not be presumed to be error.

3.  It is further ordered that this order and the specific exhibits attached hereto shall be published in the South Western Reporter and the Journal of The Missouri Bar.

Day - to - Day

_________________________
DUANE BENTON
Chief Justice


[1986 New]  Comparative Fault – Damages


1.  Insert if more than one defendant.

2.  This may be added if supported by the evidence.

3.  When the evidence discloses a compensable event and a non-compensable event, both of which are claimed to have caused damage, the term “occurrence” may need to be modified.  See Vest v. City National Bank and Trust Company, 470 S.W.2d 518 (Mo.1971).  When the term “occurrence” is modified, substitute some descriptive phrase that specifically describes the compensable event.

The first example in Note 3 of MAI 4.01, “. . .as a direct result of the conduct of defendant as submitted in Instruction Number _____”, is not appropriate in a comparative fault case because the jury is instructed to determine “total damages,” which are obviously the direct result of the conduct of both the defendant and the plaintiff.  The above-quoted example would inappropriately restrict the jury’s assessment of damages to those damages solely caused by defendant’s conduct.

In a simple comparative fault case, the first example in note 3 of MAI 4.01, “. . . as a direct result of the automobile collision”, may be an appropriate modification of the word “occurrence” if plaintiff sustained damage in an automobile collision but also had a non-compensable illness.

In a more complex comparative fault case, it may be more appropriate to delete the entire phrase “. . . as a direct result of the occurrence mentioned in the evidence” and substitute the phrase “which the [fault] a [condition of the product] b [failure] c  of the defendant directly caused or directly contributed to cause.”

a. b. c.   Select the appropriate term.  If there is more than one defendant, or theory, more than one term may be appropriate.
a.  The term “fault” will generally be appropriate.
b.  The term “condition of the product” may be used in those cases involving product liability under MAI 25.04 and MAI 25.05.
c. The term “failure” may be used in those cases involving submission under instructions such as MAI 22.02, MAI 22.03, MAI 22.04, MAI 22.05, MAI 22.07, and similar instructions in which the defendant’s actionable conduct is described as a “failure” as opposed to “negligence.”
Other modifications may also be appropriate.  See MAI 4.01 for further discussion.


[1991 New]  Comparative Fault – Damages – Personal Injury
and Loss of Consortium, Loss of Services or Medical Expenses   Spouse or Child Injured


1.  Insert if more than one defendant.

2.  Select appropriate word(s).

3.  This may be added if supported by the evidence.

4.  When the evidence discloses a compensable event and a non-compensable event, both of which are claimed to have caused damage, the term “occurrence” may need to be modified.  See Vest v. City National Bank and Trust Company, 470 S.W.2d 518 (Mo.1971).  When the term “occurrence” is modified, substitute some descriptive phrase that specifically describes the compensable event.

The first example in Note 3 of MAI 4.01, “. . .as a direct result of the conduct of defendant as submitted in Instruction Number _____”, is not appropriate in a comparative fault case because the jury is instructed to determine “total damages,” which are obviously the direct result of the conduct of both the defendant and the plaintiff.  The above-quoted example would inappropriately restrict the jury’s assessment of damages to those damages solely caused by defendant’s conduct.

In a simple comparative fault case, the first example in note 3 of MAI 4.01, “. . . as a direct result of the automobile collision”, may be an appropriate modification of the word “occurrence” if plaintiff sustained damage in an automobile collision but also had a non-compensable illness.

In a more complex comparative fault case, it may be more appropriate to delete the entire phrase “. . . as a direct result of the occurrence mentioned in the evidence” and substitute the phrase “which the [fault] a [condition of the product] b [failure] c  of the defendant directly caused or directly contributed to cause.”

a. b. c.   Select the appropriate term.  If there is more than one defendant, or theory, more than one term may be appropriate.
d.  The term “fault” will generally be appropriate.
e.  The term “condition of the product” may be used in those cases involving product liability under MAI 25.04 and MAI 25.05.
f.  The term “failure” may be used in those cases involving submission under instructions such as MAI 22.02, MAI 22.03, MAI 22.04, MAI 22.05, MAI 22.07, and similar instructions in which the defendant’s actionable conduct is described as a “failure” as opposed to “negligence.”

Other modifications may also be appropriate.  See MAI 4.01 for further discussion.

[1980 Revision]  Damages – Personal and Property


1.  If there is a counterclaim, add the words “on plaintiff’s claim for damages”.

2.  This may be added if supported by the evidence.

3.  When the evidence discloses a compensable event and a non-compensable event, both of which are claimed to have caused damage, the term “occurrence” may need to be modified.  See Vest v. City National Bank and Trust Company, 470 S.W.2d 518 (Mo.1971).  When the term "occurrence” is modified, substitute some descriptive phrase that specifically describes the compensable event or conduct.  As an example, if the plaintiff claims he sustained damages as a direct result of negligent medical care while being treated for a non-compensable fall or illness, the instruction may be modified to read, “...as a direct result of the conduct of defendant as submitted in Instruction Number ____ here insert number of verdict directing instruction.”  As another example, if plaintiff sustained damages in an automobile collision but also had a non-compensable illness, the instruction may be modified to read “...as a direct result of the automobile collision.”

In a case such as Carlson v. K-Mart,  ________ S.W.2d ____     (Mo. banc 1998), where MAI 19.01 is used in the verdict director, delete the entire phrase “as a direct result of the occurrence mentioned in the evidence” from MAI 4.01 and substitute the phrase “which describe the compensable event or conduct directly caused or directly contributed to cause.”

Other modifications may also be appropriate.

This instruction should not be used in a comparative fault case.  See MAI 37.03 for the damage instruction in a comparative fault case, and MAI 21.04 for the damage instruction in a comparative fault case involving health care providers.

See MAI 21.03 for the damage instruction in a case involving health care providers without comparative fault.


4.11 [1980 Revision] Damages – Uninsured Motor Vehicle –
Suit Against Insurer Only


1.  This may be added if supported by the evidence.

2.  In a non-hit-and-run case, in which there is no collision, an appropriate term such as “occurrence” must be substituted for the term “collision.”

In a case such as Carlson v. K-Mart, ______S.W.2d _______(Mo.banc 1998), where MAI 19.01 is used in the verdict director, delete the entire phrase “as a direct result of the collision mentioned in the evidence” from this instruction and substitute the phrase “which describe the compensable event or conduct directly caused or directly contributed to cause.”

Other modifications may also be appropriate.  For further discussion, see MAI 4.01.

This instruction should be used only where a suit on uninsured motor vehicle coverage names the insurer as the single defendant and the operator of the uninsured motor vehicle is not joined.  This instruction should be used only where form of verdict MAI 36.14 is used.
This instruction requires the jury to define the amount of the plaintiff’s damages but does not determine the amount of the judgment against the insurer.  That amount is determined as a matter of law by the court.

The effect of the adoption of the doctrine of comparative fault upon a contractual right of recovery under uninsured motor vehicle coverage is unclear.  If the law and the insurance policy permit the application of comparative fault in such a case, modify this instruction in accordance with the format of MAI 37.03.


[1991 New]  Damages – Personal Injury and Loss of
                 Consortium, Loss of Services or Medical Expenses –
                 Spouse or Child Injured – Non-Comparative Fault Only


1.  Select appropriate word(s).

2.  This may be added if supported by the evidence.

3.  When the evidence discloses a compensable event and a non-compensable event, both of which are claimed to have caused damage, the term “occurrence” may need to be modified.  See Vest v. City National Bank and Trust Company, 470 S.W.2d 518 (Mo.1971).  When the term "occurrence” is modified, substitute some descriptive phrase that specifically describes the compensable event or conduct.  As an example, if the plaintiff claims she sustained damages as a direct result of negligent medical care while being treated for a non-compensable fall or illness, the instruction may be modified to read, “...as a direct result of the conduct of defendant as submitted in Instruction Number ____ here insert number of verdict directing instruction.”  As another example, if plaintiff sustained damages in an automobile collision but also had a non-compensable illness, the instruction may be modified to read “...as a direct result of the automobile collision.”

In a case such as Carlson v. K-Mart, ______S.W.2d _______(Mo.banc 1998), where MAI 19.01 is used in the verdict director, delete the entire phrase “as a direct result of the occurrence mentioned in the evidence” from this instruction and substitute the phrase “which describe the compensable event or conduct directly caused or directly contributed to cause.”

Other modifications may also be appropriate.


[1986 Revision]  Verdict Directing Modification – Multiple Causes of Damage


1.  There is no longer a prohibition against using the first alternate where plaintiff is at fault in light of adoption of pure comparative fault in Gustafson v. Benda, 661 S.W.2d 11 (Mo. Banc 1983).

2.  Select the appropriate bracketed phrase.

These modifications may be used whether or not another causing damageis a party.

Caution:  Where the verdict directing instruction is modified with one of the alternates in MAI 19.01 or an appropriate modification to submit “multiple causes” of damage in a case such as a death case, a products case, a premises case, or a medical malpractice case, care must be used in drafting a converse instruction by using substantially the same causation language as used in the verdict directing instruction.  See Hiers v. Lemley, 834 S.W.2d 729 (Mo. Banc 1992).

In a case such as Carlson v. K-Mart, ______S.W.2d _______(Mo. banc 1998), where MAI 19.01 is used in the verdict director, delete the entire phrase “as a direct result of the occurrence mentioned in the evidence” from MAI 4.01 and substitute the phrase “which describe the compensable event or conduct directly caused or directly contributed to cause.”

21.03   [1988 New]  Damages – Actions Against Health
          Care Providers – No Comparative Fault

1.  This may be added if supported by the evidence.

2.  When the term “occurrence” must be modified, substitute some descriptive phrase that specifically describes the compensable event or conduct.  The term “occurrence” may be modified in any case where the evidence discloses more than one event or health care provider that is claimed to have caused injury or damage.  See Notes on Use 3 of MAI 4.01. 

In a case such as Carlson v. K-Mart, ______S.W.2d _______(Mo.banc 1998), where MAI 19.01 is used in the verdict director, delete the entire phrase “as a direct result of the occurrence mentioned in the evidence” from this instruction and substitute the phrase “which describe the compensable event or conduct directly caused or directly contributed to cause.”

Other modifications may also be appropriate.

This is the damage instruction to be used in cases against health care providers for personal injury where no issue of plaintiff’s comparative fault is submitted.  See verdict forms MAI 36.20 and MAI 36.21.