Travelers Commercial Casualty Company v. Vac-It-All Services, Inc., Respondent/Cross-Appellant.
2014 Mo. App. LEXIS 1391
| Mo. Ct. App. | 2014Background
- Travelers issued a workers’ compensation policy (9/8/06–9/9/07) to Vac‑It‑All, with estimated premium based on classifications “debris removal” and “equipment rental and drivers.”
- Policy allowed Travelers to audit during the term and stated final premium would be determined after the policy ended using actual classifications.
- After an audit, Travelers reclassified Vac‑It‑All’s employees to a “roofing” code and billed an increased premium; Vac‑It‑All disputed the classification and refused to pay.
- Travelers sent a letter demanding payment of the purportedly "undisputed" portion and then cancelled the policy for nonpayment before the policy term expired; Travelers sued for unpaid premiums.
- Vac‑It‑All counterclaimed, alleging wrongful cancellation and seeking refund/overpayment damages; a jury found Travelers breached and Vac‑It‑All did not, awarding Vac‑It‑All $8,000.
- Travelers appealed multiple trial rulings; Vac‑It‑All cross‑appealed denial of prejudgment interest. Court affirmed verdicts and remanded to award prejudgment interest from the counterclaim filing date.
Issues
| Issue | Plaintiff's Argument (Travelers) | Defendant's Argument (Vac‑It‑All) | Held |
|---|---|---|---|
| Admissibility of broker Boehme’s opinion where not disclosed as expert | Allowing him to offer classification opinions was improper and prejudicial because he wasn’t disclosed as an expert | Boehme was listed as a witness, Travelers knew his views from discovery and was not unfairly surprised; lay/non‑retained expert testimony discoverable like lay witness | Court: No abuse of discretion in admitting Boehme; Travelers suffered no unfair surprise or prejudice |
| Verdict director wording (alleged roving commission) | The instruction’s second paragraph failed to identify specific contractual duty and was overbroad | Instruction followed MAI 26.02 and terms of the contract were undisputed; first paragraph identified actionable conduct (cancellation) | Court: Instruction proper; Travelers waived objection by using identical language in its own director |
| Closing‑argument remarks (claimed improper, prejudicial) | Counsel misstated regulatory definitions and appealed to sympathy/prejudice, requiring cure or reversal | Remarks were argument within broad latitude; court repeatedly instructed jury to follow evidence and struck/curtailed inappropriate parts | Court: No reversible error; curative instructions were sufficient |
| Prejudgment interest on $8,000 award | No clear ascertainable amount before suit because Vac‑It‑All’s claimed amounts varied; prejudgment interest improper | Amount became ascertainable when Vac‑It‑All filed counterclaim (filing constitutes demand); interest should run from that filing | Court: Vac‑It‑All entitled to prejudgment interest under §408.020; remanded to award interest from counterclaim filing date |
Key Cases Cited
- Feiteira v. Clark Equipment Company, 236 S.W.3d 54 (Mo. App. E.D. 2007) (trial court has broad discretion in resolving discovery violations)
- Beaty v. St. Luke’s Hospital of Kansas City, 298 S.W.3d 554 (Mo. App. W.D. 2009) (non‑retained experts are deposed like lay witnesses)
- Doe Run Resources Corp. v. Certain Underwriters at Lloyd’s London, 400 S.W.3d 463 (Mo. App. E.D. 2013) (statutory prejudgment interest principles; de novo review)
- Watters v. Travel Guard International, 136 S.W.3d 100 (Mo. App. E.D. 2004) (prejudgment interest requires liquidated or readily ascertainable amount; filing suit constitutes demand)
- Peters v. ContiGroup, 292 S.W.3d 380 (Mo. App. W.D. 2009) (scope of permissible closing argument is broad)
- Joiner v. Auto‑Owners Mutual Insurance Co., 891 S.W.2d 479 (Mo. App. W.D. 1994) (trial court’s handling of improper closing argument reviewed for abuse of discretion)