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Smith v. Shaw4/12/2005
words and phrases are taken in their ordinary and usual sense. Sec. 1.090; id. There is no need for the rules of statutory construction where the words of a statute are plain and offer only one meaning such that no ambiguity exists. Id.
Motorist seeks to frame the prejudgment interest issue in this case according to the definition of the word "action" or the phrase "in tort actions." The issue before this Court, however, is not the meaning of these words because the words themselves are not ambiguous. Instead, the application of these words to the statute as a whole is in question. Motorist asks this Court to determine how the phrase "in tort actions" modifies the other language in section 408.040.2.
Motorist argues that the phrase is not merely intended to limit prejudgment interest awards under this section to tort cases, but is also intended to modify the specific requirements for obtaining prejudgment interest under this section. An award of prejudgment interest under section 408.040.2 requires (1) the claimant made a demand for payment or an offer of settlement, and this demand or offer was left open for sixty days; and (2) the amount of the later judgment exceeded the claimant's demand or offer. Sec. 408.040.2; Anderson v. Shelter Mut. Ins. Co. , 127 S.W.3d 698, 702 (Mo. App. 2004). Motorist argues that "in tort actions" modifies these requirements such that they are triggered only if the demand or offer is made "during a tort action" or " after a tort action is filed." Motorist claims that Passenger's offer was not made "in a tort action" because his offer letter was sent before Passenger filed an action against Motorist.
This Court has explicitly stated otherwise. In Lester v. Sayles , this Court rejected the defendants' argument that section 408.040 failed to "clearly express whether the statute may be triggered by a demand made before the filing of the lawsuit or only by demand made after the filing." 850 S.W.2d 858, 873 (Mo. banc 1993). This Court wrote: "In our view, there is no ambiguity. The statute, by its plain language, requires no more than plaintiff make a 'demand for payment of a claim or an offer of settlement.' By placing no limitation on when the plaintiff may make this offer, the legislature has answered the question." Id.
Motorist alleges that this statement from Lester was obiter dictum and fails to specifically address the phrase "in tort actions" as used in section 408.040.2. He instead cites the dissenting opinion in Harrison v. Purdy Brothers Trucking Co., Inc., 312 F.3d 346 (8 th Cir. 2002), as authority for his position that the statute contemplates suit first being filed before the offer under section 408.040.2 is made. This Court's reasoning in Lester , however, is applicable to this case. The transmittal of a certified letter offering to settle a tort claim before the filing of a lawsuit for the alleged tortious conduct referenced in the letter is sufficient to activate the provisions of section 408.040.2, provided that the necessary requirements of the statute are satisfied. The phrase "in tort actions" is intended to limit the application of section 408.040.2 to tort actions, as opposed to other causes of action. The phrase is a pronouncement that prejudgment interest is available in tort cases only and is not intended to qualify when the offer or demand must be made.
B. Was the offer to settle left open for 60 days as required by section 408.040.2?
Motorist contends that Passenger is further not entitled to an award for prejudgment interest because his settlement offer was not left open for 60 days as required under section 408.040.2. Passenger's letter to Motorist's insurer stated that " n accordance wit
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