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Smith v. Shaw4/12/2005
did not attempt to use the collateral source rule to present mitigating evidence during trial relating to the $25,000 UIM benefits. Instead, he raised the collateral source rule in his post-judgment motion for credit against verdict, wherein he argued that the verdict should be reduced to reflect both the bodily injury benefits and the UIM benefits Passenger received from Farmers.
Motorist does not cite any authority for using the collateral source rule to obtain a post-judgment credit against a verdict. As such, the trial court did not err in refusing to credit the verdict for the $25,000 UIM benefits based on Motorist's arguments that they were not from a collateral source.
II. Should prejudgment interest have been awarded?
Motorist's second point asserts that the trial court erred as a matter of law in overruling his motion to amend the judgment because Passenger was not entitled to an award of prejudgment interest under section 408.040.2, RSMo 2000.
Motorist's argument presents issues regarding the interpretation of section 408.040.2 and its application to this case. Interpretation of a statute is a question of law. Ochoa v. Ochoa , 71 S.W.3d 593, 595 (Mo. banc 2002). As such, this point warrants de novo review. See Delta, 908 S.W.2d at 355.
Section 408.040.2 states:
In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest, at the rate specified in subsection 1 of this section, shall be calculated from a date sixty days after the demand or offer was made, or from the date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier. Nothing contained herein shall limit the right of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise provided by law or contract.
On July 14, 2000, Passenger's attorney sent a letter by certified mail to Geico Casualty Company, Motorist's insurer, offering to settle Passenger's personal injury claim against Motorist for $25,000 or the per person liability limit of his liability policy, whichever was greater. Geico maintains that it received the letter no earlier than July 21, 2000, or seven days after the offer was mailed. The letter stated that in accordance with section 408.040 the offer to settle would remain open for 60 days from the date of the letter. No settlement was reached or concluded within 60 days of July 14, 2000, or any time thereafter. Eight months after the letter was sent, Passenger filed suit against Motorist. Passenger's petition pled specific facts related to his claim for prejudgment interest under section 408.040, and Motorist's answer did not deny these specific facts, but merely stated: "[Motorist] admits that [Passenger] sent a certified letter to [Motorist's] insurance company on or about 7/14/00."
A. Was the offer to settle made in a tort action as required by section 408.040.2?
Motorist first argues that Passenger is not entitled to an award of prejudgment interest because his offer was not made "in a tort action" as required by section 408.040.2. This Court's primary role in construing statutes is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent. Abrams v. Ohio Pac. Exp. , 819 S.W.2d 338, 340 (Mo. banc 1991). In determining legislative intent, statutory
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