335 S.W.3d 504
Mo. Ct. App.2011Background
- Desiree Wheeler, by and through limited co-conservators, sues City of West Plains and Phenix for personal injuries from a 2006 collision in West Plains, Missouri.
- Phenix, a firefighter for the City, drove a private vehicle with emergency lights en route to a bomb threat and entered an intersection on a red signal.
- Ness, driving the opposing vehicle, allegedly failed to stop for Phenix and struck his vehicle; Wheeler was injured and incurred medical charges.
- Medicare reimbursed providers for a portion of Wheeler’s medical charges under a contract rate; total medical charges amounted to $55,088.34.
- The trial court valued Wheeler’s medical services at the charged amount under a statutory presumption, with the defense challenging the value and raising negligence theories.
- During trial, Wheeler amended the petition to add a negligence per se theory based on city ordinances, and the City moved for a continuance which was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether late amendment to pleadings deprived defendant of defense | Wheeler’s amendment clarified negligence per se based on city ordinances. | amendment was prejudicial and beyond the original scope | Amendment allowed; no abuse of discretion |
| Whether verdict directing instruction based on a city ordinance was improper | Ordinance-based instruction properly directed per se negligence | Conflict between ordinance and state law renders instruction error | No error; instruction proper under applicable law |
| Whether the affirmative converse instruction should have been given | Converse tailored to defense should be included | Instruction not proper form; lacked negligence definition | Instruction properly rejected; form and timing deficient |
| Whether there was prejudice from mentioning insurance at trial | Insurance reference biased jury against Wheeler | Single non-prejudicial mention; not bad faith | No reversible error; no prejudicial impact shown |
| Whether the trial court erred in valuing medical services based on affidavits under §490.525 | Affidavits support reasonable value and rebut presumption | Affidavits insufficient or speculative to rebut presumption | Affidavits provided substantial evidence; presumption rebutted; value found reasonable |
Key Cases Cited
- Downey v. Mitchell, 835 S.W.2d 554 (Mo. App. E.D. 1992) (liberal amendment standard under Rule 55.33(a))
- Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo. banc 2008) (abuse of discretion standard for amendments to pleadings)
- Jaron Corp. v. Pellet, 866 S.W.2d 897 (Mo. App. S.D. 1993) (judicial discretion in granting leave to amend pleadings)
- Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo. App. W.D. 2006) (test for prejudice in amendment of pleadings)
- Ferrellgas, Inc. v. Edward A. Smith, P.C., 190 S.W.3d 615 (Mo. App. W.D. 2006) (prejudice and discovery considerations in amendments)
- Hall v. Wal-Mart Stores East, LP, 316 S.W.3d 428 (Mo. App. S.D. 2010) (affidavits under §490.525 truth-testing presumption on medical damages)
- Deck v. Teasley, 322 S.W.3d 536 (Mo. banc 2010) (presumption on medical bills; Deck clarifies admissibility of unpaid expenses)