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Boggs v. Lay3/8/2005
in turn.
For his first point on appeal, Lay alleges the trial court erred in entering judgment for prejudgment interest against him because of ineffective service of the plaintiff's prejudgment-interest demand letter. Lay argues the prejudgment-interest statute, section 408.040.2, requires service of the prejudgment-interest demand letter by certified mail, and that, in this case, service was not accomplished in compliance with the statute because the certified letter was not served on him, but rather was signed for by his minor son.
The issue raised in this point, as well as the other points on appeal dealing with prejudgment interest, is whether the trial court erred in applying section 408.040.2 to award prejudgment interest. This issue involved the interpretation of the statute and its application. Interpretation of a statute and whether a statute applies to a given set of facts are questions of law which this Court reviews de novo. McKinney v. State Farm Mut. Ins., 123 S.W.3d 242, 245 (Mo.App. W.D. 2003).
Prejudgment interest in a tort action is authorized under section 408.040.2. The statute allows a plaintiff to recover prejudgment interest if the plaintiff makes a demand for payment of a claim, or an offer of settlement, to the opposing party and any subsequent judgment in the case exceeds the amount specified in the demand or settlement offer. Section 408.040.2; see also, Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 448 (Mo. banc 1998). The statute requires that the demand or settlement offer be made in writing, be sent by certified mail, and be left open for sixty days unless rejected earlier. Section 408.040.2; Emery, 976 S.W.2d at 449. If a prevailing plaintiff demonstrates compliance with the above, the plaintiff is entitled to prejudgment interest calculated from a date sixty days after the offer of settlement was made, or from the date the demand or offer is rejected without counter-offer, whichever is earlier. Id.; see also, Emery, 976 S.W.2d at 449.
Lay complains the plaintiff did not properly and successfully effectuate service of the demand letter, as required by the statute. He argues the statutory requirement of certified mail necessarily must imply that the certified mail service be completed properly and in accordance with the applicable service rules; in this case, that the letter be served upon Lay himself. We disagree. When statutory language is clear, courts must give effect to the language as written. Emery, 976 S.W.2d at 449. "Courts are without authority to read into a statute a legislative intent contrary to the intent made evident by the plain language." Id. "The court should regard the statute as meaning what it says." Id. We may not add words by implication to a statute that is clear and unambiguous. Id. Section 408.040.2 is clear. The statute, by its plain language, merely requires that the demand letter be sent via certified mail. It is undisputed in this case that the plaintiff sent his demand letter via certified mail. Lay's first point is denied.
For his second point on appeal, Lay challenges the sufficiency of the plaintiff's demand letter. ADM raises the same issue in its sixth point on appeal. We address both points together. Lay and ADM (the defendants) contend the plaintiff's demand letter runs afoul of section 408.040 and is insufficient to give rise to the right to prejudgment interest because the plaintiff failed to make a demand that was sufficiently definite and certain in its terms, as required by statute.
The plaintiff sent one demand letter, addressed to defendants ADM and Lay, as well as three other individuals. In pertinent part, the plaintiff's demand letter stated as follows:
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