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McCormack v. Capital Electric Construction Co.12/21/2004
aimant is entitled to prejudgment interest if: (1) the claimant made a demand for payment or offer of settlement, which was left open for sixty days; and (2) the amount of the judgment exceeds the claimant's demand or settlement offer. If these conditions are met, the claimant "shall" be awarded prejudgment interest. Section 408.040.2. The interest begins to accrue sixty days after the offer was made or when the offer was rejected without counter-offer, whichever is earlier. Id.
The plain language of Section 408.040.2 does not allow the trial court discretion to deny prejudgment interest once the statutory conditions are met. See Harrison v. King, 7 S.W.3d 558, 562 (Mo.App. 1999) (statutory use of the word "shall" evidences legislative intent to remove discretion in trial court's disqualification of guardian ad litem ). The fairness of the award is not a relevant consideration. Nor does the statute suggest that the defendant is entitled to notice of the likely amount of a jury's verdict. The defendant is only entitled to written, certified mail notice of the settlement demand or offer.
Our courts have recognized that Section 408.040.2 serves two public policies: (1) it compensates claimants for the true cost of money damages they have incurred due to the delay of litigation; and (2) it promotes settlement and deters unfair benefit from the delay of litigation. Brown v. Donham, 900 S.W.2d 630, 633 (Mo. banc 1995) . In light of these purposes, the settlement demand is the only notice that matters under the statute. The statute does not refer to nor give any weight to intervening events between the demand and the final judgment. Once a settlement demand is made pursuant to Section 408.040.2, " it is immaterial whether plaintiff made any subsequent offers of settlement." Lester v. Sayles, 850 S.W.2d 858, 874 (Mo. banc 1993). Likewise, the statute gives no indication that a voided jury verdict affects the validity of the original settlement demand for purposes of seeking prejudgment interest.
When statutory language is clear, we must give effect to the language as written. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 449 (Mo. banc 1998). A court may not add words or requirements by implication to a statute that is not ambiguous. Id. The statute is clear that the McCormacks are entitled to relief under Section 408.040.2 if their written settlement demand was sent by certified mail and was exceeded by the judgment.
Capital disputes that the McCormacks satisfied the two conditions necessary for a prejudgment interest award. First, it argues the settlement offer was an aggregate demand of $1.5 million for both plaintiffs and, therefore, did not strictly comply with Section 408.040.2. However, as the Supreme Court held in Call v. Heard, 925 S.W.2d 840, 854 (Mo. banc 1996) , there is nothing in the prejudgment interest statue to preclude plaintiffs from combining demands on multiple personal injury claims into a single settlement offer. The McCormacks' written, certified mail settlement offer of $1.5 million met the first requirement for a prejudgment interest award.
Capital also contends the settlement offer was invalid after the first jury trial resulted in a verdict of $256,000. Capital argues the McCormacks would only be entitled to prejudgment interest if they had submitted a second settlement offer after the court ordered a new trial. Again, we find nothing in the statute to support such a requirement. The decision to grant a new trial nullified the first verdict. Century Fire Sprinklers, Inc. v. CNA Transp. Ins. Co., 87 S.W.3d 408, 423 (Mo. App. 2002) (reversal on appeal renders the first judgment null and void); Norris v. Nationwide Mut. Ins. Co., 55 S.W.3d
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