author: LISA WHITE HARDWICK, Judge.

text:
    Virgil A. McCORMACK and Sandra McCormack, Appellant-Respondents, v. CAPITAL ELECTRIC CONSTRUCTION COMPANY, INC., Respondent-Appellant.
    Nos. WD 62975, WD 62976, WD 63004.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Application for Transfer Denied April 26, 2005.

      Edward D. Robertson, Jr., Jefferson City, MO, Grant L. Davis, Kansas City, MO, for Appellant-Respondent.
    Patrick Lysaught, Kansas City, MO, for Respondent-Appellant.
    Before: SPINDEN, P.J., HOLLIGER and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

This appeal arises from a jury verdict awarding Virgil and Sandra McCormack $30.4 million dollars on negligence and loss of consortium claims against Capital Electric Construction Company, Inc. The McCormacks accepted remittitur of the verdict to $8.9 million and now appeal the trial court’s denial of prejudgment interest. Capital appeals the denial of its motion for new trial. In a cross-appeal, the McCormacks challenge the remittitur.

We reverse the denial of prejudgment interest on Mr. McCormack’s damage award and affirm on the remaining points.

I. Factual and PROCEDURAL HistoRY

Virgil McCormack suffered an electrical shock and was seriously injured on December 13, 1995, while working as a carpenter on a construction project at the Marion Merrell Dow offices in Kansas City. The shock occurred when he came into contact with an uncapped 277-volt live electrical wire as he stood on a metal scaffold taking drywall measurements. Mr. McCormack had few immediate symptoms from the electrical shock, other than fatigue and initial confusion. Two weeks later, he began having seizures and his symptoms eventually progressed to pain in his chest, hips and shoulders, migraines, impaired concentration, numbness, loss of motor control, and problems with his balance and gait.

In September 1998, Mr. McCormack filed a negligence claim against Capital, the electrical subcontractor on the construction project. His wife filed a claim for loss of consortium. At trial, the jury found Mr. McCormack was 92% at fault for the electrical shock incident and awarded him damages of $256,000. The jury found against Mrs. McCormack on her loss of consortium claim.

The McCormacks filed a motion for new trial, asserting the verdict was against the weight of the evidence. The trial court granted the motion, and the new trial was affirmed on appeal. McCormack v. Capital Elec. Constr. Co., 35 S.W.3d 410 (Mo.App.2000).

A second jury trial was held in February 2003. The jury returned a verdict for the McCormacks, assessing 100% fault against Capital. Compensatory damages of $28.8 million were awarded on Mr. McCormack’s negligence claim and $1.6 million for Mrs. McCormack’s loss of consortium. The court’s judgment included an award of prejudgment interest.

Capital filed a motion for new trial or, alternatively, for remittitur and sought to amend the judgment to disallow prejudgment interest. After extensive briefing by the parties, the court determined the total verdict was excessive and ordered a new trial unless the McCormacks agreed to a remittitur of the negligence award to $7.7 million and the loss of consortium award to $1.2 million. The court also amended the judgment to deny prejudgment interest.

The McCormacks agreed to the remitti-tur and appealed the denial of prejudgment interest. Capital filed a separate appeal of the denial of the new trial motion, and the McCormacks cross-appealed the remittitur pursuant to Rule 78.10 After consolidating the appeals, this court transferred the case to the Supreme Court in light of a constitutional challenge to the remittitur statute, as raised by the McCor-macks. The Supreme Court granted Capital’s motion for remand and retransferred the consolidated case to this court for full determination.

II. Issues on Appeal

A. Remittitur

Both parties raise several issues challenging the remittitur of the jury’s $30.4 million compensatory damages verdict to $8.9 million. Capital contends a new trial, rather than remittitur, was required because plaintiffs counsel presented improper evidence and closing arguments that prejudiced the jury to render an excessive verdict. Capital further argues that Rule 78.02 is unconstitutional and should not preclude this court from ordering a new trial. The McCormacks argue the remitti-tur was improper because: (1) the trial court applied the wrong standard of uniformity; (2) the jury’s verdict was not excessive or against the weight of the evidence; and (3) the trial court’s application of the remittitur statute violated their constitutional right to a jury trial.

1. Applicable Law

Section 537.068 allows a court to order remittitur upon a finding that the jury’s verdict is excessive because it “exceeds fair and reasonable compensation for plaintiffs injuries and damages.” One of the purposes of the doctrine of remittitur is to promote judicial economy by avoiding the delay and additional expense of a new trial. Ince v. Money’s Bldg. & Dev., Inc., 135 S.W.3d 475, 479 (Mo.App.2004). Thus, when the amount of damages is the sole error, an appellate court should offer the plaintiff the option of accepting judgment for the proper sum and avoid further litigation. Id.

Excessive verdicts generally arise in two situations: (1) when the jury makes an honest mistake in weighing the evidence as to the nature and extent of the injury and awarding disproportionate damages; and (2) when the jury is biased by trial misconduct to award grossly excessive damages. Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 655 (Mo.App.1997); Ince, 135 S.W.3d at 478. A disproportionate verdict resulting from the jury’s honest mistake can be corrected by remittitur and does not require a retrial. Barnett, 963 S.W.2d at 655. An excessive verdict engendered by misconduct and jury bias is prejudiced and can only be remedied with a new trial. Id.

The assessment of damages is primarily a function for the jury. Messina v. Prather, 42 S.W.3d 753, 760 (Mo.App.2001). The trial court’s reduction of the award by remittitur constitutes a discretionary ruling on the evidence. Fust v. Francois, 913 S.W.2d 38, 49 (Mo.App.1995). An abuse of discretion occurs when a verdict or remitted judgment is so grossly excessive as to shock the conscience of the appellate court. Id.; Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 249 (Mo. banc 2001). The appellate court should exercise its power to interfere with the judgment of the jury and trial court with hesitation and only when the verdict is manifestly unjust. Alcorn, 50 S.W.3d at 249-50.

There is no precise formula for determining whether a verdict is excessive, but courts typically evaluate the reasonableness of compensatory damages based on the following factors: (1) loss of income, both present and future; (2) medical expenses; (3) plaintiffs age; (4) the nature and extent of plaintiffs injuries; (5) economic considerations; (6) awards approved in comparable cases; and (7) the superior opportunity for the jury and the trial court to evaluate plaintiffs injuries and other damage. Messina, 42 S.W.3d at 760-61. Compensatory damages may also be based on intangibles that cannot be easily calculated, such as past and future pain, suffering, effect on lifestyle, and embarrassment. Alcorn, 50 S.W.3d at 250. In considering these factors on appeal, we view the evidence in a light most favorable to the judgment and disregard all unfavorable evidence. Ince, 135 S.W.3d at 479. Each case must be considered on its own facts, with the ultimate test being what amount fairly and reasonably compensates the injured party. Id.

2. TRIAL COURT PROCEEDING

Viewed in a light most favorable to the judgment, the evidence at the second jury trial was as follows. At the time of the electrical shock incident in December 1995, Mr. McCormack was a healthy, 39-year old carpenter who had enjoyed fishing and spending time with his family. He suffered only fatigue and confusion immediately following the shock but, within two weeks, began to experience seizure-like “spells.” The spells worsened to a point where he had at least two grand-mal seizures, causing a loss of control over his bladder and bowels. He developed chronic pain in his chest, hips, and shoulders, as well as migraine headaches, impaired concentration, and confusion. He walked with a cane due to problems with his balance and gait. He complained of facial numbness, loss of motor control, and difficulty thinking of words. With regard to Mr. McCormack’s condition in the months and years after the shock incident, his friends and family described him as mentally and physically “very slow” and “in a fog.”

Mr. McCormack presented testimony from eleven medical providers concerning his seven-year history of treatment for the injuries resulting from the electrical shock. Experts concluded that he suffered “diffuse brain damage” that left him -with a cognitive deficit and substantially decreased his I.Q. Test results confirmed that he had memory loss, impaired concentration and verbal fluency, and psychomotor retardation. The electrical injury produced a permanent chemical change in his brain that caused depression, dementia, and rendered him sexually dysfunctional. He was unable to drive due to prescribed medications necessary to control his seizures.

Mr. McCormack’s physicians and experts testified that he is permanently disabled and unemployable as a result of his mental and physical injuries. They agreed his condition will likely worsen over time because the symptoms of electrical injuries are often delayed and progressive. An economist testified that if Mr. McCormack had not been injured, he would have had lifetime earnings of approximately $1.4 million based on his life expectancy and average yearly income as a carpenter prior to the electrical shock incident.

Capital sought to rebut the compensatory damages claim with a malingerer defense, asserting that Mr. McCormack was exaggerating or faking his injuries for monetary gain. Defense experts attributed many of his symptoms to complications of his diabetes and other conditions unrelated to the electrical shock. They testified Mr. McCormack did not have a seizure disorder and that his grand mal seizures resulted from a toxic dosage of the anti-seizure medication. After comparing his high school aptitude test results with the post-incident I.Q. tests, the experts found no difference in Mr. McCor-mack’s cognitive abilities. Two experts suggested that Mr. McCormack had researched information on electrical shock injuries and then “acquired” them as part of a “learned injury” syndrome. Nearly all of the defense experts expressed disbelief that the plaintiff could possibly have all of his claimed symptoms.

During closing arguments, plaintiffs’ counsel requested the jury to award $29.65 million in total damages. Counsel argued Mr. McCormack was entitled to $1.4 million for income loss and $27 million for pain and suffering, while Mrs. McCormack should receive $1.25 million for loss of consortium. After explaining the damages request, plaintiffs’ counsel made the following arguments regarding the malingerer defense:

This number I’m suggesting to you. If they come in here one more time — if they stand up one more time and say he is a malingerer, I think you should double it. Because every time they say that to his family, they are hurting them.
There is one [thing] you can do in this case, which is you can be an independent body who has looked at all this evidence, and you can say loud and clear that what they have done, this defense, this frivolous, hurtful defense is wrong, and that Virgil and Sandy haven’t done anything to bring this into their lives....

Capital did not object to these statements made during closing arguments.

After the jury rendered a verdict awarding Mr. McCormack $28.8 million and Mrs. McCormack $1.6 million, Capital filed a motion for new trial or, alternatively, for remittitur of the damages to no more than $256,000, the amount of the verdict in the first trial. Capital contended, inter alia, that plaintiffs’ counsel’s closing argument improperly invited the jury to punish the defendant, thereby prejudicing the jury to render a “grossly excessive verdict.”

The trial court agreed that the verdict was excessive in light of the evidence indicating that Mr. McCormack had $1.4 million in lost earning capacity as a result of his injuries. There was no evidence presented at trial regarding Mr. McCormack’s past or future medical costs. The court also agreed that plaintiffs’ counsel’s closing argument was, at times, improper but disagreed that the jury was prejudiced by it. The court concluded that Capital’s emphasis on the malingerer defense and the lack of credible testimony from defense experts evoked a strong adverse reaction from the jury. The trial judge gave the following detailed explanation:

... I think this is a very dangerous defense. I think a jury, when you see a working class guy who comes up there, and if you sit there and you challenge his integrity and his family’s integrity by the nature of your defense, you’re playing with fire ... It worked very well in the first case, but I think, to [an] objective mind, it’s a very dangerous defense. And I think clearly it had a major impact on this case.
I think also, again, the lay testimony ... was virtually unimpeached about these seizures, what they saw, it’s just so inconsistent with that [malingerer] defense. I think that was certainly a factor.
I think some of the expert testimony — in complete candor — the Defendant put forth was ... difficult to fathom. And I think reasonable people would just find it not particularly believable and offensive.
I think particularly the testimony of Dr. Hughes and Dr. Rubenstein were just somewhat off the charts. Dr. Hughes writes down that Mr. McCor-mack is a malingerer when he doesn’t even see him ... And Dr. Rubenstein cites a treatise and doesn’t even understand the treatise is written by a bunch of lawyers.
And I think some of these experts, the two that I said in particular ... I think it’s unavoidable to say that this testimony was match on a fire or match on gasoline. It really affected the verdict.
With that being said, I do not believe that the closing argument or the conduct of the Plaintiffs attorneys was outcome determinative of this verdict. Although there are arguments that legitimately cause concern and ... were objectionable and ... should not have been made, I don’t think it affected the outcome of this verdict. ... I don’t think it had an effect on the fact that the jury would likely award a large sum of money based on the evidence that was heard and the testimony and the defense that was used.

The court concluded a new trial was not required because the jury was not prejudiced by the improper argument of plaintiffs counsel. The trial court also found that Capital waived any allegation of jury prejudice by failing to object to the closing argument at trial. The court explained, “the failure to object was done because of trial strategy and that certainly is a major factor in me overruling any new trial motion relative to the issues of the closing argument or the issues that the posture of the case by Plaintiff was to punish and not to compensate.”

The trial court determined that remitti-tur of the excessive verdict was proper because the jury mistakenly evaluated the damages in an emotional response to Capital’s malingerer defense. The plaintiffs were given the option of accepting remitti-tur of Mr. McCormack’s award to $7.7 million and Mrs. McCormack’s award to $1.2 million, or a new trial. The court explained that Mr. McCormack’s reduced award was based on his $1.4 million in lost earnings multiplied by a factor of five and then another half of that added (i.e. $700,000) due to the size of the jury’s verdict. After reviewing comparable re-mittitur cases, the court determined the five-fold multiplier was on the “high end” but had been “frequently approved” as reasonable. The court further explained that Mrs. McCormack’s award was reduced because the jury’s award of $1.6 million exceeded her counsel’s request for $1.25 million during closing argument. The McCormacks accepted the remittitur in lieu of a new trial, reducing the total judgment to $8.9 million.

3. Capital’s Points on Remittitur

In its first two points, Capital contends the trial court erred in denying the motion for new trial because the excessive verdict was engendered by jury bias resulting from the inflammatory misconduct of plaintiffs counsel. Capital argues remitti-tur was improper because plaintiffs counsel: (1) incited the jury, during closing argument, to punish the defendant when punitive damages were not at issue; (2) sought sympathy by crying in front of jurors and asking them to “imagine” stepping into the plaintiffs’ shoes; (3) unfairly argued that the defendant suborned perjury by paying an expert to give a particular opinion.

In light of Capital’s failure to object to the alleged misconduct during closing argument, the trial court was limited to considering the motion for new trial under the plain error standard of Rule 78.08. Giddens v. Kansas City S. Ry. Co., 937 S.W.2d 300, 306 (Mo.App.1996). The rule allows discretionary review of plain errors affecting substantial rights if the court finds a manifest injustice or miscarriage of justice has resulted. Id. Such review is best accomplished by the trial judge, who is in a far better position than the appeals court to fairly determine the effects of unobjected argument or evidence on the jury’s verdict. Id. The trial court has no duty to grant a new trial unless the effect of the misconduct was so prejudicial that a party did not receive a fair trial. Id.

Here, the trial court made an express finding that the jury’s award of $30.4 million in damages did not result from improper argument by plaintiffs’ counsel. Upon careful consideration of the evidence, the court ruled the excessive verdict was the product of Capital’s malingerer defense and the lack of credible witnesses to support its claim that Mr. McCormack was faking his injuries. The detailed findings support the court’s conclusion that the jury was more likely offended by Capital’s “dangerous defense” than influenced by plaintiffs’ counsel’s improper suggestion to punish the defendant by doubling the $29.65 million in damages requested. The record also reflects the jury disregarded the request for double damages and awarded only $750,000 more than the McCormacks requested in closing arguments.

We must defer to the trial court’s discretion in reviewing the misconduct of plaintiffs’ counsel under the plain error standard. Id. at 307. The court did not abuse its discretion in denying the motion for new trial because Capital failed to show that the misconduct resulted in manifest injustice. Accordingly, Points I and II are denied.

In Point III, Capital contends it was entitled to a new trial because the court erroneously admitted medical evidence regarding Mr. McCormack’s brain scans without a proper foundation. Capital asserts the positive emission tomography (PET) scans were inadmissible, pursuant to Section 490.065, as an unreliable method of diagnosing electric shock injuries. Capital further argues the improperly admitted evidence prejudiced the jury to award excessive damages.

Prior to trial, the court denied Capital’s motion to exclude all evidence relating to the PET scans. When the PET scans were offered into evidence at trial, Capital responded that it had “no objection.” This response constituted a waiver of any claim of error regarding admissibility of the evidence. State v. Yole, 136 S.W.3d 175, 180 (Mo.App.2004).

As opposed to a simple failure to object, which may warrant plain error review, a statement by defense counsel that there is no objection to a particular piece of evidence precludes a finding that the failure to object was negligent or inadvertent and resulted in manifest injustice. Id. “Where a party affirmatively states that he has no objection to the introduction of evidence at trial, plain error review is unavailable.” Id.

By expressly waiving any objection to the PET scan evidence at trial, Capital also waived any error arising from the admission of the evidence. To hold otherwise would place the trial court in a precarious position. Id. As we recognized in Yole, the court should not be faulted for reasonably relying upon counsel’s affirmative representations:

Counsel appropriately resents judicial interference in their appropriate representation of a client during trial. Counsel makes many tactical decisions at trial, and the court is not privy to the mental process in determining the tactical approach employed by counsel. Thus, when counsel affirmatively represents to the court the waiver of any objection to the introduction of evidence, the court can assume that counsel’s decision is reasoned and calculated and that counsel does not want the court to preclude introduction of the evidence....

Id.

The trial court properly refused to grant a new trial based on the PET scan evidence because Capital waived any error by stating it had “no objection.” Point III is denied. In light of our determination that Capital has failed to show any grounds requiring a new trial, we need not address the argument in Point IV, that Rule 78.02 can not preclude a new trial because the rule is unconstitutional.

4. MoCoRMACKs’ Points on Remittitur

The McCormacks contend the trial court erred in granting remittitur because it improperly applied a “standard of uniformity” in comparing the jury’s verdict with judgments in other cases. In a related argument, they contend their constitutional right to a jury trial was violated by the court’s “arbitrary” use of a mathematical formula or multiplier to determine damages on remittitur.

Citing Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291, 309 (Mo. banc 1978), the McCormacks correctly point out that the rule of uniformity has been expressly rejected as the sole basis for a remittitur. However, Graeff also recognizes that uniformity is one of the elements the trial court can properly consider in determining the reasonableness of a verdict. Id. at n. 26. More recently, in Gomez v. Construction Design, Inc., 126 S.W.3d 366, 375-76 (Mo. banc 2004), the Supreme Court confirmed that “a comparison of the compensation awarded in cases of comparable injury” can be made as one of several factors in considering the propriety of remittitur.

We have reviewed the trial court’s detailed explanation of the grounds for granting remittitur, as reflected in forty-three pages of the transcript from the post-trial proceedings. It is clear the court evaluated the jury’s verdict based on the nature and extent of Mr. McCor-mack’s injuries, his diminished earning capacity, and the impact of his injuries upon his wife. The court made specific findings that Mr. McCormack “suffered a brain injury from this electrical event and that it has caused severe and residual and continuing problems that will affect him probably the rest of his life.” The court acknowledged there was no evidence of medical expenses, and that Mr. McCor-mack’s economic loss was approximately $1.4 million, based on the testimony of an expert witness. With regard to Mrs. McCormack’s loss of consortium, the court found:

I think that Mrs. McCormack suffered real damages, and I think there was compelling evidence that she suffered real damages.
I think that, just knowing the relationship she had with her husband and the role she plays with her husband the change in her husband’s life, it clearly has impacted her; and I just think the record is replete with that....
I think that a substantial consortium award is appropriate. In an abundance of caution, she was given an amount of money[,] more than even requested [,] by the jury, so I do believe a small remittitur in that award is also appropriate. But I do think she suffered real damages, and I think it’s appropriate that she receive a significant judgment.

After determining that the evidence supported an award of substantial damages to both plaintiffs, the trial court further considered the reasonableness of the jury’s $30.4 million verdict by comparing it with the judgments in Alcorn, Turbomeca, and other cases involving remittitur. The court noted that remittitur generally had been approved in appellate cases where the remitted award was reasonably related to the actual damages. While Alcorn affirmed a remitted award that was eleven and a half times the actual damages, other cases suggested that a factor of five times the actual damages was reasonable for a reduced award. The court concluded the multiplier of five was most appropriate in Mr. McCormack’s case because his injuries were different and not comparable to those at issue in Alcorn.

We find no error in the trial court’s consideration of other remittitur cases. The court did not apply a “standard of uniformity” or mathematical formula as the sole basis for the reduced award. The court properly considered the nature and extent of the injuries, the actual economic loss, the amount actually requested for Mrs. McCormack, and the extent to which the remitted award was within the range of similar cases. Gomez, 126 S.W.3d at 375. There was no violation of the constitutional right to a jury trial because the court reasonably determined the jury’s verdict was excessive and did not arbitrarily calculate the remittitur. Moreover, the McCormacks knowingly waived this fundamental right by accepting the remitted award in lieu of a new trial.

The McCormacks also contend the trial court erred in granting remittitur because the jury’s verdict was supported by evidence of Mr. McCormack’s injuries. Thus, they argue the $30.4 million award was not excessive or against the weight of the evidence. Their argument on appeal includes a recitation of all the evidence indicating the severity of Mr. McCor-mack’s brain damage and the permanency of his resulting disability. As compared to our review of the record, the trial court was in the best position to observe this evidence and evaluate credibility. Under our standard of review, “[t]he trial court’s superior vantage point warrants a great latitude of discretion in determining whether and to what extent the verdict was supported by the evidence.” Id. at 376. We must defer to the trial court’s exercise of discretion unless the remitted judgment is manifestly unjust. Id. at 375.

None of the evidence persuades us that remittitur of the $30.4 million verdict was manifestly unjust. There is no dispute that Mr. McCormack’s actual economic loss was in the range of $1.4 million to $1.7 million. The remitted negligence award of $7.7 million included the actual loss and a five-fold multiplier for pain, suffering, and other intangible losses. By contrast, the jury’s award was at least seventeen times Mr. McCormack’s economic loss and clearly exceeded the range of awards deemed reasonable in similar cases. The remitti-tur also fully compensated Mrs. McCor-mack based on her request for loss of consortium. The McCormacks’ challenges to the remitted judgment are denied, as we find no abuse of the trial court’s discretion.

B. PREjuDGMENT INTEREST

The McCormacks contend the trial court erroneously applied Section 408.040.2 in denying their request for prejudgment interest. The statute provides:

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 ... 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.

§ 408.040.2.

In this tort action, the McCormacks assert they met the requirements of the prejudgment interest statute by making a $1.5 million settlement offer to Capital on December 19,1997. The offer was in writing, sent by certified mail. On December 24, 1997, Capital’s president rejected the offer, stating: “I have no intention of making any offer of settlement or to correspond with you further.” After the second jury trial and entry of the remittitur judgment, the McCormacks sought prejudgment interest dating from December 24, 1997, because the $8.9 million judgment clearly exceeded the $1.5 million settlement offer rejected by Capital.

The trial court denied the McCormacks’ claim for prejudgment interest because the first jury trial had resulted in a $256,000 verdict that did not exceed the settlement offer. The court concluded it would be “unfair” to apply Section 408.040.2 because the low verdict in the first trial did not put the defendant “on notice” that a subsequent trial could result in a verdict in excess of the settlement offer.

Our review of the trial court’s refusal to award prejudgment interest involves the interpretation of Section 408.040.2. Whether a statute applies to a given set of facts is a question of law. McKinney v. State Farm, Mutual Ins., 123 S.W.3d 242, 245 (Mo.App.2003). Matters of statutory construction and application are reviewed de novo, without deference to the trial court’s judgment. Id.

The primary rule in statutory construction is to ascertain the legislative intent from the words used, considering the words in their plain and ordinary meaning. Hurst v. Jenkins, 908 S.W.2d 783, 786 (Mo.App.1995). In that regard, Section 408.040.2 provides that a prevailing tort claimant 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. § 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 McCor-macks 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 statute 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 366, 370 (Mo.App.2001) (once a motion for new trial is rendered, the case is left for trial de novo as though there had been no trial). The case reverted to its pretrial status and, just as the parties were not required to submit new pleadings, the McCormacks were not required to submit a new demand letter. Despite successive trials, the December 1997 settlement offer remained valid for purposes of determining prejudgment interest.

Capital further suggests that the second requirement for prejudgment interest was not met because Mrs. McCor-mack’s remitted award of $1.2 million did not exceed the settlement demand of $1.5 million. Although an aggregate settlement demand on multiple claims is valid to meet the first requirement of Section 408.040.2, the failure to apportion the settlement between claims can adversely affect proof of the second element.

In Lester v. Sayles, a jury awarded $19,817 million on a negligence claim brought on behalf of a four-year old child injured in a truck accident. 850 S.W.2d at 862. The child’s mother was awarded $1,674 million on her claims for medical expenses and loss of consortium. Id. The trial court awarded prejudgment interest because the judgment exceeded the plaintiffs’ aggregate settlement demand of $950,000. Id.

On appeal, the award on the mother’s claims was affirmed, but the child’s negligence judgment was reversed and remanded for new trial. Id. at 874. The appeals court also affirmed the mother’s entitlement to prejudgment interest because her award exceeded the $950,000 settlement demand. Id. In its remand instructions, the court noted that the child would also be entitled to prejudgment interest if her verdict, on retrial, exceeded $950,000. Id. Due to the plaintiffs’ failure to apportion their settlement demand between their separate claims, the court declined to speculate whether the child would be entitled to any prejudgment interest if she was awarded a judgment under $950,000. Id.

The Supreme Court’s decision in Lester suggests that claimants who fail to distinguish and allocate their claims in a settlement demand, do so at their own peril in satisfying the conditions for prejudgment interest. The claimants’ failure to apportion the demand between their separate claims makes it impossible for the trial court to determine how much was demanded for a particular claim. Id. In such cases, the trial court can reasonably determine that any claimant who does not receive an award in excess of the settlement demand has not satisfied the second element required for prejudgment interest.

Mr. McCormack is entitled to prejudgment interest because his award of $7.7 million exceeded the properly tendered settlement demand of $1.5 million under Section 408.040.2. By our calculations, interest is due on the award at the statutory rate of nine percent per annum for the period of December 24, 1997 through judgment entry on June 12, 2003, for a total interest amount of $3,789,655. § 408.020. Mrs. McCormack is not entitled to prejudgment interest because her award of $1.2 million did not exceed the settlement demand.

Finally, Capital argues that even if the trial court erred in denying prejudgment interest on grounds of unfairness, the denial should be affirmed because Section 408.040.2 violates constitutional standards of due process and equal protection. Specifically, Capital contends the statute “lacks any procedural safeguards and operates against tort defendants who must answer a demand when the potential damages are uncertain.”

As a preliminary matter, we must determine our jurisdictional authority to consider this constitutional challenge. By virtue of Article V, § 3 of the Missouri Constitution, the Supreme Court has exclusive jurisdiction in all cases involving the constitutional validity of a state statute. However, the mere assertion that a statute is unconstitutional does not deprive the court of appeals of jurisdiction. Wright v. Mo. Dep’t. of Soc. Servs., 25 S.W.3d 525, 528 (Mo.App.2000). The constitutional issue must be real and substantial, not merely colorable. Id.

In determining whether a constitutional claim is real and substantial, we make a preliminary inquiry as to whether it presents a contested matter of right that involves fair doubt and reasonable room for disagreement. Id If the initial inquiry discloses the claim is so legally or factually insubstantial as to be plainly without merit, the claim may be deemed merely colorable. Id We conclude, for reasons set forth herein, that Capital’s constitutional challenge is merely colorable and does not invoke the Supreme Court’s exclusive jurisdiction.

The McCormacks notified Capital of their intent to seek prejudgment interest in the settlement offer of December 19, 1997. The letter from their counsel states: “This offer is made pursuant to Section 408.040 Revised Statutes of Missouri and will remain open for sixty (60) days from the date received unless rejected earlier.” Capital rejected the offer on December 24, 1997, and declined to make a counter offer. On September 30, 1998, the McCormacks filed a First Amended Petition that specifically prayed for prejudgment interest and referenced Section 408.040. Capital filed a responsive pleading that did not mention prejudgment interest, nor challenge the constitutionality of Section 408.040.

Capital concedes it did not assert a constitutional challenge to prejudgment interest until after the second trial, when it filed a Motion to Amend the Judgment. “An attack on the constitutionality of a statute is of such dignity and importance that the record touching such issues should be fully developed and not raised as an afterthought in a post-trial motion or on appeal.” Land Clearance for Redevelopment Auth. v. Ks. Univ. Endowment Ass’n, 805 S.W.2d 173, 176 (Mo. banc 1991). “Constitutional issues are waived unless raised at the earliest opportunity, consistent with orderly procedure.” Hollis v. Blevins, 926 S.W.2d 683, 683 (Mo. banc 1996).

Capital had ample notice that the McCormacks intended to seek prejudgment interest, and yet it failed to raise any constitutional challenge to the statute at an earlier stage that would have allowed the trial court a full opportunity to identify and rule on the issue prior to the entry of judgment. Given the waiver, the trial court properly declined to consider the issue in ruling on the motion to amend judgment. By waiting until the post-trial motion, Capital also failed to preserve the constitutional challenge for consideration on appeal. Land Clearance, 805 S.W.2d at 176.

III. CONCLUSION

The trial court’s denial of prejudgment interest on Mr. McCormack’s award of $7.7 million is reversed. Pursuant to Rule 84.14, judgment is entered for prejudgment interest in the amount of $3,789,665. In all other respects, the judgment is affirmed.

All concur.

      .All rule citations are to the Missouri Rules of Civil Procedure (2004) unless otherwise noted.
      Rule 78.10 provides: "Consenting to a re-mittitur as a condition to the denial of a new trial does not preclude the consenting party from asserting on appeal that the amount of the verdict was proper or that the amount of remittitur is excessive. A party consenting to a remittitur may not initiate the appeal on that ground but may raise the same on the other party’s appeal.”

      . Rule 78.02 provides: "Only one new trial shall be allowed on the ground that the verdict is against the weight of the evidence.”

      . All statutory citations are to the Revised Statutes of Missouri 2000, unless otherwise noted.

      . Mr. McCormack had received a workers’ compensation award to cover most, if not all, of his past and future medical expenses. Evidence was presented regarding past medical treatment and likely future medical treatment, but no dollar figure was presented to the jury for those costs.

      . The plaintiff in Alcorn, 50 S.W.3d 226, suffered immediate substantial injuries in a train accident. She had more than twenty broken bones, significant blood loss, and a traumatic head injury. Id. at 234. During several weeks of hospitalization, she went into cardiac arrest and lapsed into a coma. Id. Her permanent injuries included diminished vision, chronic pain, cognitive deficit, and the inability to care for herself. Id.


source: Caselaw Access Project

author: PATRICIA L. COHEN, Presiding Judge.

license: Public Domain

text:
    Ricky J. DAUGHERTY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84707.
    Missouri Court of Appeals, Eastern District. Division Two.
    Jan. 4, 2005.
    Motion for Rehearing and Transfer to Supreme Court Denied March 3, 2005.
    Application for Transfer Denied April 26, 2005.

      Ricky J. Daugherty, Jefferson City, pro se.
    Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Ricky Jerome Daugherty (“Movant”) appeals from the circuit court’s denial of his motion requesting inquiry into alleged abandonment and extrinsic fraud by his post-conviction counsel. We affirm.

Background

In 1989, a jury found Movant guilty of four counts of sodomy in violation of Section 566.060, R.S.Mo 1986. The trial court sentenced Movant to four consecutive terms of five years of imprisonment in the Missouri Department of Corrections. Following his conviction, Movant retained private counsel to represent him in his direct appeal and Rule 29.15 post-conviction proceedings.

After filing his direct appeal, Movant, through his retained attorney, timely filed a Rule 29.15 motion, alleging, among other things, ineffective assistance of Movant’s trial counsel, improper contact between prosecution witnesses and members of the jury, perjury on behalf of prosecution witnesses, denial of due process, and denial of an opportunity to correct errors in Mov-ant’s pre-sentence investigation report. In February 1990, the motion court held an evidentiary hearing on the motion. Mov-ant appeared at the hearing, along with his retained attorney. The State’s attorney also appeared. The evidence at the hearing included testimony from Movant, his trial counsel, and his trial counsel’s law student assistant. In March 1990, the motion court entered its findings of fact and conclusions of law denying Movant’s motion.

This Court affirmed Movant’s conviction in State v. Daugherty, 823 S.W.2d 33 (Mo.App. E.D.1991). Movant did not appeal the denial of his Rule 29.15 motion.

In 2002, Movant filed the underlying “Motion Requesting Sua Sponte Inquiry into Abandonment and Fraud Committed upon this Court by Attorney Harold Wayne Fraser Concerning Motion to Vacate, Set Aside or Correct Judgment or Sentence.” In the motion, Movant requests the motion court to reopen his post-conviction case because his retained attorney allegedly (1) defrauded the court, by, inter alia, substituting an incomplete copy of Movant’s Rule 29.15 motion for the version Movant actually signed, and (2) abandoned Movant during post-conviction proceedings.

The motion court dismissed Movant’s motion based on lack of jurisdiction, and Movant appealed. We reversed and remanded, holding that the motion court had jurisdiction to consider Movant’s motion, but expressing no opinion as to the merits of the motion. See Daugherty v. State, 116 S.W.3d 616 (Mo.App. E.D.2003).

On remand, the motion court appointed counsel for Movant. In response, Movant filed a “Motion Requesting Appointment of Change of Counsel Due to Conflict of Interest by Attorney Steve Harris or in the Alternative to Proceed Pro Se without Counsel.” Thereafter, Movant filed an amended motion, alleging “bad dealings with the entire [public defender’s] office in Columbia” and requesting the “Columbia Office of the Public Defender” to pay for an attorney outside of that office to represent him. After reviewing the file and determining that “Movant is capable of representing himself, fully understands the issues presented by his motion, and has adequately briefed the issues raised therein,” the motion court permitted Movant’s appointed attorney to withdraw and granted Movant’s request to proceed pro se.

The motion court denied Movant’s request to reopen his Rule 29.15 proceedings, finding that Movant was not abandoned by his post-conviction counsel. The motion court further denied Movant’s request for relief from judgment, under Rule 74.06, because Movant’s allegations failed to support a finding that the judgment denying his post-conviction relief was obtained by fraud. This appeal followed.

Standard of Review

On review of the motion court’s denial of post-conviction relief, the motion court’s findings of fact and conclusions of law are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). Our review is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. Rule 29.15; State v. Driver, 912 S.W.2d 52, 54 (Mo. banc 1995). Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Wilson, 813 S.W.2d at 835.

A motion to set aside a judgment under Rule 74.06 is governed by the sound discretion of the trial court. Gering v. Walcott, 975 S.W.2d 496, 498 (Mo.App. W.D.1998). We should affirm an order denying a motion to set aside a judgment “unless there is no substantial evidence to support it, it is against the weight of evidence, or it erroneously declares or applies the law.” State v. Goodrich, 12 S.W.3d 770, 772 (Mo.App. W.D.2000). Furthermore, the judgment of the tidal court which correctly denies a Rule 74.06 motion, even though for an incorrect reason, should be affirmed. Orrock v. Crouse Realtors, Inc., 813 S.W.2d 929, 932 (Mo.App. E.D.1991).

Discussion

A. Abandonment

Points I, III, and V all relate to Movant’s claims that his retained post-conviction counsel abandoned him in connection with the litigation of his Rule 29.15 claim of ineffective assistance of trial counsel. The Western District has held that “a claim of abandonment of counsel only arises when the original motion was filed pro se and post-conviction counsel is appointed to review it as required by Rules 29.15(e) and 24.035(e).” State v. Gilpin, 954 S.W.2d 570, 579 (Mo.App. W.D.1997). We agree. Accordingly, we conclude that because Movant did not file his original Rule 29.15 motion pro se and is not challenging the activities of an appointed post-conviction counsel, Movant does not have a claim of abandonment under Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), or Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991).

B. Rule 74.06 (Relief from Judgment or Order)

In Points II and IV, Movant claims that the motion court erred in denying his claims for relief under Rule 74.06 because his post-conviction counsel engaged in extrinsic fraud by: (1) substituting an incomplete version of his Rule 29.15 motion for the one he signed and notarized and (2) failing to subpoena three witnesses to testify at the Rule 29.15 evidentiary hearing.

We disagree with Movant that the motion court improperly denied his extrinsic fraud claims. Rule 74.06 “does not provide a cause of action for ineffective assistance of counsel or any other method of attacking a criminal judgment.” Vicory v. State, 117 S.W.3d 158, 160 (Mo.App. S.D.2003). Movant’s allegations that his attorney filed an incomplete Rule 29.15 motion and failed to subpoena certain witnesses for the evidentiary hearing constitute allegations of ineffective assistance of counsel. See Vicory, 117 S.W.3d at 160 (claim that motion counsel erred by omitting an issue from the movant’s rule 29.15 motion constituted a claim of ineffective assistance of counsel); see also Butts v. State, 85 S.W.3d 132 (Mo.App. S.D.2002) (claim that post-conviction counsel failed to call witnesses at a post-conviction hearing amounted to a claim of ineffective assistance of counsel). Accordingly, we deny Points II and IV.

Conclusion

Because we hold that Movant does not have a claim for abandonment or extrinsic fraud, we affirm the judgment of the motion court.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., Concur.

      . Even, if we were to consider Movant’s claim of abandonment, we would conclude that his complaints constitute perceived ineffectiveness of post-conviction counsel and are therefore unreviewable. See Barnett v. State, 103 S.W.3d 765, 773-74 (Mo. banc 2003); State v. Owsley, 959 S.W.2d 789, 799 (Mo. banc 1997). In addition, Movant’s claim that the trial court erred in granting his request to proceed pro se is without merit. See Bittick v. State, 105 S.W.3d 498, 504 (Mo.App. W.D.2003).


author: PER CURIAM.

text:
    Patania LASKER, Respondent Pro Se, v. Clinton M. JOHNSON, Appellant.
    No. WD 63604.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Application for Transfer Denied April 26, 2005.
    Patania Lasker, pro se.
    Richard L. Colbert, Kansas City, MO, for appellant.
    Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   Order

PER CURIAM.

This is an appeal from a judgment entered pursuant to this court’s mandate in Lasker v. Johnson, 123 S.W.3d 283 (Mo.App. W.D.2003) (“Lasker I”). Appellant Clinton Johnson brings four points on appeal. We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


author: ROBERT G. DOWD, JR., Judge.

text:
    Ronald COURTWAY, Dana Decker and Linda Prater, Respondents, v. Douglas BRAND, Jr., Respondent, v. Cheryl Jordan, Appellant.
    No. ED 84237.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.

      Mark L. Akers, St. Louis, Mo, for Appellant.
    Donald L. O’Keefe, Jr., Leo M. Newman, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Cheryl Jordan (Defendant Jordan) appeals from the dismissal of her claim against Douglas Brand, Jr. (Defendant Brand) for personal injuries arising out of an automobile accident. The trial court determined that a previous release dated October 20, 2003 was a general release which released Defendant Brand from Defendant Jordan’s cause of action for personal injury. On appeal, Defendant Jordan argues the trial court erred in dismissing her claim because the release (1) was not clear and unambiguous, (2) contained mutual mistakes of fact justifying rescission, and (3) released only those claims arising out of an accident on February 6, 2000. We reverse.

This case arises out of a multi-car accident which occurred on February 6, 2000 on Missouri Highway 21, in Washington County, Missouri, between Defendant Jordan, Defendant Brand, Jody Wilson (Defendant Wilson), and William Cook (Defendant Cook). Ronald Courtway, Dana Decker, and Linda Prater (collectively referred to as Plaintiffs) were all passengers in Defendant Jordan’s automobile. Winifred Courtway was also a passenger in Defendant Jordan’s automobile. As a result of the accident, Winifred Courtway died at the scene.

Plaintiffs initially filed a wrongful death action against Defendants Cook, Wilson, and Brand alleging, among other things, numerous acts of negligence against all three defendants. Thereafter, Defendant Brand filed a third-party claim against Defendant Jordan seeking contribution. Plaintiffs amended their claim and filed a claim for wrongful death against Defendant Jordan as well. Defendant Jordan filed a counterclaim for personal injuries against Defendant Brand and cross-claims against Defendants Cook and Wilson.

Prior to trial, Plaintiffs settled their claims against Defendants Cook, Wilson, and Jordan, but proceeded to trial against Defendant Brand after the trial court had denied Defendant Brand’s motion for summary judgment.

Thereafter, Defendant Jordan settled her claim against Defendant Cook and entered into a release with Defendant Cook which specifically released him from liability. On October 20, 2003, Defendant Jordan settled her claim against Defendant Wilson and signed another release (the Release). A copy of the Release was provided to Defendant Brand.

On October 27, 2003, Thomas Buckley, attorney for Defendant Wilson, received a telephone call from Mark Akers, attorney for Defendant Jordan, notifying Mr. Buckley that Cheryl Jordan was rescinding the Release she had previously signed. On the same day, the day of trial, Defendant Brand filed a motion to dismiss Defendant Jordan’s counterclaim against him and filed a motion to amend his answer arguing that the Release of Defendant Wilson signed by Defendant Jordan was a general release that released Defendant Brand from all liability for Defendant Jordan’s injuries. The trial court continued the trial and ordered the parties to brief the issues with respect to the motion to dismiss and return to argue the motion. At the hearing on Defendant’s motion to dismiss, Defendant Jordan presented an affidavit prepared by Thomas Buckley, which accepted the rescission of the Release by Defendant Jordan. Following the hearing, the trial court dismissed Defendant Jordan’s counterclaim for personal injuries against Defendant Brand. This appeal follows.

We need not address Defendant Jordan’s points relating to the language and effect of the Release, because we find the parties mutually rescinded the Release.

A release should be construed as a contract. Liquidation of Professional Medical Ins. Co. v. Lakin, 88 S.W.3d 471, 476 (Mo.App. W.D.2002). A written contract may be rescinded or abandoned by an agreement, either written or parol, of the parties to the contract. Tahan v. Garrick, 701 S.W.2d 189, 191 (Mo.App. E.D.1985). Such rescission may be shown by acts and declarations of the parties which are inconsistent with the continued existence of the previous contract. Id. The evidence here is sufficient to establish a rescission by mutual agreement.

Here, as is clearly set forth in the affidavit of Thomas Buckley, which was presented to and considered by the trial court, the Release signed by Defendant Jordan did not reflect the agreement of the parties to release solely Defendant Wilson. Thomas Buckley’s affidavit stated that the Release prepared by himself and Defendant Jordan’s attorney inadvertently failed to include language that would have specifically excluded Defendant Brand from the effect of the Release. Thomas Buckley further stated that one week after the Release was signed, Defendant Jordan’s attorney notified him that she was rescinding the Release. Defendant Wilson accepted the rescission. Both parties indicated the Release did not reflect their agreement. As there was an inconsistency between the declarations of the parties and the continued existence of the Release, we find the Release was mutually rescinded. The trial court erred in dismissing Defendant Jordan’s claim against Defendant Brand for personal injuries arising out of an automobile accident which occurred February 6, 2000.

Reversed.

PATRICIA L. COHEN, P.J., and KATHIANNE KNAUP CRANE, J„ concur.

      . Plaintiffs are the surviving children of Winifred Courtway.

      . The Release provides as follows:
      FOR THE SOLE CONSIDERATION OF Twenty-Five Thousand Dollars ($25,000.00), the receipt and sufficiency whereof is hereby acknowledged, the Undersigned hereby releases and forever discharges Jody Wilson, Go America Insurance Company, their heirs, executors, administrators, employees, agents and assigns, and all other persons, firms or corporations liable or, who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to persons any property, which have resulted or may in the future develop on account of an occurrence on or about the 6th day of February, 2000 on South Bound Highway 21 near Potosí, Missouri, as set forth more fully in the lawsuit filed in the Circuit Court of Washington County, State of Missouri Bearing Cause No.: CV1000-120CC.
      The Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.
      IN WITNESS WHEREOF, I have hereunto set my hand and seal this 20th day of October, 2003.
      _(signed)_
      Cheryl Jordan, a single person

      . In, Everhart v. Westmoreland, 898 S.W.2d 634, 638 (Mo.App. W.D.1995), a case factually similar to the one at bar, the trial court allowed reformation of a general release because the evidence showed the release failed to embody the parties’ original intention.

      . The affidavit also indicates that the settlement payment was never tendered to Defendant Jordan by Defendant Wilson.


author: ROBERT G. ULRICH, Judge.

text:
    Frank NEASE, Appellant, v. INDEPENDENT LIVING RESOURCE CENTER, INC.; Division of Employment Security, Respondents.
    No. WD 63993.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.
    Motion for Transfer to Supreme Court Denied March 1, 2005.
    Application for Transfer Denied April 26, 2005.

      Michael H. Finkelstein, Jefferson City, MO, for appellant.
    Ninion S. Riley, Jefferson City, MO, for respondent, State of MO. Div. of Employment.
    Carla G. Holste, Jefferson City, MO, for Resp. Independent living Resource Center, Inc.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ROBERT G. ULRICH, Judge.

Frank Nease appeals the decision of the Labor and Industrial Relations Commission disqualifying him from unemployment benefits for six weeks. The appeal is dismissed as moot.

Mr. Nease applied for unemployment benefits after he was discharged by his employer, Independent Living Resource Center, Inc. A deputy with the Division of Employment Security determined that Mr. Nease was disqualified for benefits for four weeks because he was discharged for misconduct connected with work. Mr. Nease appealed, and the Appeals Tribunal modified the deputy’s determination deciding that Mr. Nease was disqualified for benefits for six weeks. Mr. Nease then appealed to the Commission, which affirmed the decision of the Appeals Tribunal. This appeal followed.

The Division filed a motion to dismiss Mr. Nease’s appeal, which was taken with the case, arguing that no justifiable issue exists, and, therefore, Mr. Nease’s case is now moot. It contends that Mr. Nease has received the maximum amount of unemployment benefits and cannot receive any additional benefits should he prevail on appeal. Mr. Nease responded to the motion arguing that dismissal of his appeal would deprive him of the liberty interest in his good name and judicial review of the decision of the Division finding that he engaged in misconduct at work. He also argues that his case presents issues of general importance that are likely to recur yet evade judicial review.

A case is moot when the question presented for decision seeks a judgment upon some matter that, if the judgment is rendered, would not have any practical effect upon any then existing controversy. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)(quoting Shelton v. Farr, 996 S.W.2d 541, 543 (Mo.App. W.D.1999)). “The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.” Id. (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App. W.D.1999)). In deciding whether a case is moot, the appellate court may consider matters outside the record. Id.

This case is similar to Hill v. Venator Group Retail, Inc., 138 S.W.3d 746 (Mo.App. E.D.2003), and Rockett v. Radar, Inc., 97 S.W.3d 535 (Mo.App. E.D.2003). In those cases, the claimants had received the maximum amount of their unemployment benefits for the benefit year. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 536-37. The cases were dismissed as moot because even if the claimants prevailed on appeal, they could not receive any additional unemployment benefits. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 537.

Here, Mr. Nease also cannot receive any additional unemployment benefits. The Division included with its motion to dismiss the affidavit of Janice Belt, Chief of Benefits of the Division. She states that Mr. Nease has been paid the maximum amount of his unemployment benefits and that, even if he wins his appeal, he will not be paid any additional money on his claim. The record on appeal shows that after his six week disqualification period, Mr. Nease began receiving unemployment benefits of $250 per week on September 27, 2003. He received those benefits for twenty-six weeks for a total payment of $6,500. Mr. Nease’s maximum benefit amount for the benefit year is $6,500. Therefore, even if this court were to reverse the decision of the Commission, Mr. Nease would not receive any additional benefits. If a claimant has received all of his entitled unemployment benefits, then the case is moot. Hill, 138 S.W.3d at 747; Rockett, 97 S.W.3d at 537.

Mr. Nease does not dispute that he received the maximum amount of his unemployment benefits. He argues, however, that he is aggrieved by the decision of the Commission because his reputation in the community was stained. This is not, however, the proper forum to raise such a claim. Chapter 288 provides the procedure for the payment of benefits to persons unemployed through no fault of their own. Mr. Nease’s appeal involves the payment of unemployment benefits, and, as stated above, he has received the maximum benefit amount for the benefit year’. Other forums may be available for addressing Mr. Nease’s claim.

Mr. Nease also argues that if his appeal is dismissed, the issues raised in his appeal regarding the fairness of the hearing conducted by the Division, which are of general importance, will never be reviewed by the judiciary. A narrow exception to the mootness doctrine applies if a case presents an issue that is of general public interest and importance and that will evade appellate review unless the court exercises its jurisdiction. Kinsky v. Steiger, 109 S.W.3d 194, 196 (Mo.App. E.D.2003); Johnson v. Meyer, 108 S.W.3d 130, 131 (Mo.App. E.D.2003). Issues regarding the hearing before the Division are, however, not likely to evade appellate review in future live controversies where individuals are disqualified from unemployment benefits.

The appeal is, therefore, dismissed as moot.

HARDWICK, P.J., and NEWTON, J. concur.


text:
    STATE of Missouri, Respondent, v. Adrian BOWMAN, Appellant.
    No. ED 83457.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant Adrian Bowman (“Bowman”) appeals from the trial court’s judgment entered upon his convictions by a jury of one count of murder in the first degree, in violation of Section 565.020, RSMo 2000, one count of assault in the first degree, in violation of Section 565.050, RSMo 2000, and two counts of armed criminal action, in violation of Section 571.015, RSMo 2000. Bowman was sentenced to life imprisonment without the possibility of parole on the murder conviction and concurrent sentences of thirty years imprisonment each on the other three convictions.

On appeal, Bowman argues the trial court erred in: (1) overruling his motion for continuance of his sentencing hearing for the purpose of securing the presence of one of the State’s witnesses who would allegedly recant his trial testimony, or in the alternative denying his motion for new trial on the basis of this alleged newly discovered post-trial evidence; and (2) denying Bowman’s request for a mistrial or in the alternative, denying Bowman’s request to replace Juror Number 73, because of alleged exposure to a newspaper article relating to Bowman and his trial.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 30.25(b).


text:
    Joseph BECKER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84141.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for Respondent.

      Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Joseph Becker (“Movant”), appeals from the judgment of the Circuit Court of Franklin County denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Movant pleaded guilty to first degree murder, section 565.020 RSMo (2000). Movant was sentenced to life imprisonment without parole. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.


text:
    James WASHINGTON Jr., Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.
    No. ED 84629.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2005.
    Application for Transfer Denied April 26, 2005.
    James Washington Jr., Cameron, MO, pro se.
    Deborah Daniels, Karen Louise Kramer-Co-Counsel, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

James Washington, Jr. (Appellant) appeals the dismissal of his motions requesting inquiry into abandonment and fraud upon the court by his post-conviction counsel. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court did not err in dismissing Appellant’s motions. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    STATE of Missouri Ex Rel., Bobby G. LARKIN, Relator, v. Honorable Gary M. OXENHANDLER, Respondent.
    No. WD 64321.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Application for Transfer Denied April 26, 2005.

      Wade H. Ford, Jr., Susan Ford Robertson, Richard S. Ward, Columbia, MO, for relator.
    Sidney E. Wheelan, Moberly, MO, for respondent.
    Before: JAMES M. SMART, P.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.
   ROBERT G. ULRICH, Judge.

Relator Bobby Larkin seeks a writ of prohibition against the trial court’s decision to proceed in a wrongful death action against him by Mendy Blades, widow; Fred and Linda Blades, parents; and James and Rachel Blades, children of Douglas Blades, decedent. Mr. Larkin filed a motion to dismiss the action for lack of subject matter jurisdiction, which was denied by respondent. Mr. Blades and Mr. Larkin were co-workers, employed by the same employer when Mr. Blades was killed by a vehicle driven by Mr. Larkin. This court issued a preliminary writ directing Respondent not to proceed with the underlying claim.

Mr. Larkin argues that the circuit court is exercising jurisdiction over a claim to which exclusive jurisdiction lies within the Labor and Industrial Relations Commission pursuant to the Workers’ Compensation Act, RSMo § 287.120.1. Because Mr. Blades’ death occurred while both parties were acting within the course of their co-employment and the petition fails to sufficiently allege that Mr. Larkin performed any affirmative negligent acts beyond the duty to maintain a safe working environment, the trial court lacks subject matter jurisdiction over the claim. The writ of prohibition is made absolute.

Allegations of Fact and Procedural History

The facts alleged in Plaintiffs First Amended Petition reflect that on October 12, 2000, Relator Bobby Larkin was employed by APAC, and was assisting in a road construction project on U.S. Highway 63 in Boone County. Mr. Larkin was operating a dump truck owned by APAC and was transporting gravel to a construction site approximately ten miles north of Columbia. He had driven off site to acquire gravel and returned to unload his cargo; he traveled to the construction site via northbound U.S. Highway 63.

APAC was engaged in the process of building a shoulder along the eastern side of southbound U.S. Highway 63. At the location where the underlying incident occurred, Highway 63 is a four-lane highway with two southbound lanes separated from two northbound lanes by a grass median. On the date of the incident, the east lane (the passing lane for southbound traffic) and a majority of the west lane had been closed to traffic. The outermost portion of the west lane and the west shoulder remained open to traffic, but the speed limit for southbound motorists passing through the construction zone was 50 miles per hour rather than the normal 70 miles per hour limit. Bright orange traffic barrels delineated the boundaries of the construction zone. Signs were in place indicating to traffic that a portion of the roadway was closed and that speed was reduced.

Proceeding north in the northbound lanes of Highway 63, Mr. Larkin turned left to enter the construction site in the southbound lanes by using a turn-off perpendicular to the highway, located between the northbound and southbound lanes. Another worker told Mr. Larkin that the gravel was needed at a site north of the turn off, and Larkin began to back the dump truck to this different location. While backing the truck, Mr. Larkin entered the western lane of Highway 63, which remained open for traveling motorists, and began moving northbound in the southbound lane of traffic.

Douglas Blades was employed by APAC as a heavy equipment operator, and was operating a piece of heavy equipment when Mr. Larkin returned to the construction site. Mr. Blades noticed that Mr. Larkin had exited the boundaries of the construction site, and had backed the truck he was driving into the open southbound lane. At approximately 1:53 P.M., Blades left the equipment he was operating and walked behind Larkin's vehicle to flag down vehicles traveling through the site in the open lane. Deposition testimony indicates that Mr. Blades was given the instruction to “spot” the truck, i.e. showing the truck the spot to dump its cargo. The dump truck that Mr. Larkin drove was equipped with sideview mirrors, but provided the driver with no method of seeing directly behind the vehicle. While moving to the area designated to receive the truck’s cargo, the truck struck Mr. Blades and backed over him, causing his death.

Mr. Larkin was sued for the wrongful death of Douglas Blades. Plaintiffs First Amended Petition alleges that while APAC is immune from suit under the Workers’ Compensation Act, Mr. Larkin could be independently sued as a co-employee. The petition claims that Mr. Larkin created a hazardous condition by moving outside the designated construction zone and into the open lane of travel, which was compounded by backing the truck in a northbound direction against southbound traffic. Plaintiffs petition alleges that Larkin “knew or should have known that Douglas Blades was behind his vehicle” and that Larkin “operated his vehicle ... with reckless, careless, and conscious disregard for the consequences.” The petition further alleges that Larkin owed “a personal duty, separate and apart from the employer’s duty to provide a safe work area” and that Larkin violated two separate Missouri statutes, constituting negligence per se. Plaintiffs contend that these factors charge “something more” than the breach of an employer’s duty of general supervision and safety, allowing the action to be brought outside the exclusive remedies provided by the Workers’ Compensation Law.

Mr. Larkin filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 55.27, arguing that proper subject matter jurisdiction lies exclusively with the Labor and Industrial Relations Commission. The motion was overruled. Mr. Larkin then filed his petition for this court’s writ of prohibition, and a preliminary writ of prohibition was issued on July 22, 2004.

Standard for Prohibition

Petitions before this court for a writ of prohibition differ from traditional appeals, most importantly in that “[p]rohi-bition is an independent proceeding to correct or prevent judicial proceedings that lack jurisdiction.” State ex. rel. Pulliam v. Reine, 108 S.W.3d 148, 154 n. 6 (Mo.App. W.D.2003) (quoting State ex. rel. Am. Family Mut. Ins. Co. v. Koehr, 832 S.W.2d 7, 8 (Mo.App. E.D.1992)). Prohibition serves as a means of preventing circuit courts “from exercising jurisdiction over actions where workers’ compensation provides the exclusive remedy; subject matter jurisdiction over such matters properly lies in the Labor and Industrial Relations Commission.” State ex. rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002). “[PJrohibition is an appropriate remedy when it appears from the fact of the pleadings that defendant is immune from the suit as a matter of law.” State ex. rel. FAG Bearings Corp. v. Perigo, 8 S.W.3d 118, 120 (Mo.App. S.D.1999). A circuit court lacking subject matter jurisdiction may take no action other than to dismiss the suit. Id.

Missouri’s Workers’ Compensation Law pre-empts judicial resolution of tort claims arising “out of and in the course of’ employment; an employer is released from liability but required to furnish compensation irrespective of negligence. RSMo 287.120(1). “The Workers’ Compensation Law supplants the common law'in determining remedies for on-the-job injuries.” Sexton v. Jenkins & Assocs., Inc., 41 S.W.3d 1, 4 (Mo.App. W.D.2000) (quoting Vatterott v. Hammerts Iron Works, Inc., 968 S.W.2d 120, 121 (Mo. banc 1998)). A more limited form of this immunity also extends to employees of the exempt employer; “[sjuits against employees personally for breach of the duty to maintain a safe working environment are preempted by the workers’ compensation remedy[.]” State ex. rel. Taylor, 73 S.W.3d at 621. “However, an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employer’s responsibility to provide a safe workplace.” Id. at 621-22 (quoting Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 672 (Mo. banc 1993)).

When a workers’ compensation exclusivity defense is raised, the motion to dismiss should be granted where it appears, by a preponderance of the evidence, that the trial court lacks subject matter jurisdiction because of workers’ compensation exclusivity. Collier v. Moore, 21 S.W.3d 858, 860 (Mo.App. E.D.2000). While the burden of proving the lack of jurisdiction falls on the party who raises the motion to dismiss, the quantum of proof required is not high. Id. The Workers’ Compensation Law is to be liberally interpreted, and where there is doubt regarding a question of jurisdiction, it should be resolved in favor of the Labor and Industrial Relations Commission. Sexton, 41 S.W.3d at 7.

Discussion and Analysis

The substitution of the Workers’ Compensation Law for traditional tort remedies reflects an historical compromise recognizing the benefits of providing a means to effectively resolve claims for workers’ injuries without resorting to the unpredictability of litigation. See Gunnett v. Girardier Bldg. & Realty Co., 70 S.W.3d 632 (Mo.App. E.D.2002). The extension of Workers’ Compensation Law immunity to co-employees reflects a concern for those instances in which a co-employee’s alleged negligence may require indemnification by the employer, effectively eliminating the component of the compromise that protects the employer. See State ex. rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo.App. E.D.1982). A co-employee cannot be held liable for failing to carry out the non-delegable duties of the employer. Gunnett, 70 S.W.3d at 637. In order to strip a co-employee of the immunity of the Workers’ Compensation Law, a petition must allege “something extra” beyond a breach of general supervision and safety. Sexton, 41 S.W.3d at 5. However, the underlying question of what is sufficient to meet this standard “has not proven susceptible of reliable definition, and Missouri courts have essentially applied the rule on a case by case basis with close reference to the facts in each individual case” State ex. rel. Taylor, 73 S.W.3d at 622.

Missouri courts have confronted a series of cases that question the extent to which injuries incurred by a co-employee’s careless or negligent driving of an employer’s vehicle can demonstrate the “something extra” necessary to deprive a co-employee of the immunity granted by the Workers’ Compensation Law. While not the first case to address the issue, the Missouri Supreme Court clarified the outcomes for these types of cases with its decision in Taylor. In Taylor, the plaintiff was a “trash helper” who brought a claim of negligence against the driver of a trash truck alleged to have been driven carelessly. The plaintiff claimed head, neck, and back injuries as a result of the driver striking a mailbox while the plaintiff was riding on the vehicle while holding onto the back of the truck. State ex. rel. Taylor, 73 S.W.3d at 621. The Court observed “an allegation that an employee failed to drive safely in the course of his work and injured a fellow worker is not an allegation of ‘something more’ than a failure to provide a safe working environment.” Id. at 622. The plaintiff alleged that careless driving is different from other forms of negligence because the statutory duty to drive carefully imposed a personal duty on the defendant, which the Court rejected:

Respondent misconstrues this provision. It does not create a separate duty of driving with the highest degree of care on public roads. At most, it provides that the standard of conduct for discharging the general duty to behave carefully so as not to injure others is higher when a person is operating a motor vehicle on a public road. The violation of the general duty to drive carefully as a part of one’s work in order not to injure one’s co-workers is not controverted into “something more” merely because fulfilling that duty may require more careful conduct than carrying out some other aspect of one’s duty to maintain a safe working environment.

Id.

The Eastern District Court of Appeals confronted a similar instance of an injury resulting from careless driving by a co-employee in Brown v. Roberson, 111 S.W.3d 422 (Mo.App. E.D.2003). The plaintiff was a passenger in a tractor-trailer, who alleged that the driver’s carelessness in driving and securing his load was sufficient to create liability in negligence when the tractor-trailer overturned and injured the plaintiff. Id. at 423. The appellate court found that allegations of driving at an excessive speed, taking an inappropriate route, and continuing to drive after the trailer’s load had shifted constituted allegations of failing to discharge the duty to operate the vehicle safely, and were thus controlled by Taylor. Id. at 424-25.

This court examined a similar question in Kesterson v. Wallut, 116 S.W.3d 590 (Mo.App. W.D.2003). The plaintiff was a passenger in a pickup truck owned by her employer and driven by her supervisor, which crashed when the driver lost control due to the snow-packed pavement. Id. at 592. The plaintiff alleged that the accident was negligence, in that her supervisor failed to keep a careful lookout, drove at an excessive speed, and failed to drive within his own lane of travel. Id. at 593. This court rejected the plaintiffs “attempt to distinguish Taylor on the basis that it is limited to situations where the vehicle in question is essentially the workplace, as opposed to simply being a mode of transportation to and from work sites.” Id. at 596.

The respondent contends that the present case is factually distinguishable from Taylor and its successive cases. Taylor does not, as the relator suggests, establish a bright-line rule that no accident involving a motor vehicle operated by a co-employee can present sufficient grounds for a court to exercise jurisdiction over a claim. The cases emphasize, however, that careless driving by a co-employee, without more, fails to meet the “something extra” required to take a tort action outside the purview of the Workers’ Compensation Law. The cases reach this result by concluding that an employee’s duty to drive safely is merely an extension of the duty to maintain a safe work environment.

Plaintiffs First Amended Petition essentially alleges two distinct actions that Respondent argues constitute “something more” than the general non-delegable duties of the employer. The first is that Mr. Larkin made the conscious decision to back his truck outside of the construction zone without taking measures to avoid a collision with oncoming traffic, despite his inability to see behind the truck, which was both unsafe and in violation of statute. The petition’s second allegation is that Mr. Larkin knew of or should have known that Mr. Blades was behind the truck, knew or should have known that colliding with Mr. Blades would cause severe injury or death, and proceeded to back the truck despite this knowledge. The respondent argues that these alleged actions put the death of Mr. Blades in keeping with pre-Taylor cases illustrating actions by co-employees deemed to be outside the exclusive jurisdiction of the Workers’ Compensation Law.

The crux of the first argument is that Mr. Larkin created a “dangerous situation” by backing his truck into oncoming traffic and that Mr. Blades’ response (flagging the oncoming traffic) was a direct result of this situation. Respondent contends this places the actions of Mr. Larkin in a posture similar to pre-Taylor cases asserting that actively creating a hazardous condition is “something extra” beyond the breach of the employer’s duty to provide a safe place to work. See e.g. Tauchert v. Boatmen’s Nat’l Bank of St. Louis, 849 S.W.2d 573, 574 (Mo. banc 1993) (supervisor not immune from liability after constructing a faulty hoist system that injured a co-employee); Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 927 (Mo.App. W.D.1995) (supervisor not immune in wrongful death action after allegations that he had instructed decedent to hang from a forklift above scalding water).

However, the allegations against Mr. Larkin fail to meet the same concerns as those expressed within the cases stripping the co-employee of immunity. As this court observed in Groh v. Kohler, cases that have met the “something extra” requirement are usually triggered by “directing the employee to participate in acts that were dangerous and that a reasonable person would recognize to be hazardous and beyond the usual requirements of the employment.” 148 S.W.3d 11, 14 (Mo.App. W.D.2004) (emphasis added). The sum of the allegations against Mr. Larkin are that he was instructed to move his truck to a different location, and he chose an unsafe manner of performing the requested action. Mr. Blades response, while arguably necessitated by the actions of Mr. Larkin, were not inconsistent with his normal job duties; Mr. Blades had been trained to flag traffic, and the petition alleges that he was performing this duty appropriately. The subsequent collision of the truck with Mr. Blades, while tragic, fails to amount to more than a failure to discharge the duty to preserve a safe working environment. Mr. Larkin’s actions do not demonstrate the affirmatively negligent conduct present in the cases that have stripped a co-employee of immunity under the Workers’ Compensation Act.

The second argument suggests that Mr. Larkin had a personal duty of care to Mr. Blades to take notice of his presence and to avoid colliding with him. The Respondent places weight upon the decision of this court in Biller v. Big John Tree Transplanter Mfg. & Truck Sales, Inc., 795 S.W.2d 630 (Mo.App. W.D.1990). In Bil-ler, a supervisor was found to be liable in a wrongful death action for failing to keep a careful lookout for the location of his co-employee while operating a tree transplan-ter. Id. at 632. The Biller decision predates nearly all the cases reflecting the accepted interpretation of Workers’ Compensation preemption, particularly Taylor, and fails to reflect the current status of the law. As such, Biller has been effectively overruled to the extent that it is in conflict with modern precedent. Accounting for the whereabouts of co-employees while engaging in an activity that could cause them harm is a component of the duty to maintain a safe working environment and does not constitute the “something extra” needed to deny a co-employee of Workers’ Compensation immunity. See Quinn v. Clayton Constr. Co., 111 S.W.3d 428 (Mo.App.E.D.2003) (co-employees were held immune in a negligence action for failing to ascertain the location of other workers before throwing angle iron from a rooftop). Respondent’s contention that a driver is statutorily required to exercise a higher degree of care to avoid colliding with pedestrian is similarly without merit and is governed by the controlling ideas expressed in Taylor. The simple fact that a co-employee is required to be “more careful” in his duty to maintain a safe working environment does not convert the duty into “something extra.” See State ex. rel. Taylor, 73 S.W.3d at 622.

The Plaintiffs First Amended Petition fails to allege the “something more” or “something extra” required to deprive the Labor and Industrial Relations Commission of exclusive jurisdiction over the claim. As such, the circuit court lacked subject matter jurisdiction over the wrongful death action filed against Mr. Larkin.

The writ of prohibition is made absolute.

All concur.

        . All statutory references are to RSMo 2000 unless otherwise indicated.

      . The evidence presented to the court indicates that APAC is not an acronym, but is instead is the entire name of the employer.

      . Plaintiffs allege that Larkin violated RSMo 300.335 by backing “his vehicle when such movement could not be made with reasonable safety and without interfering with other traffic” and RSMo 300.410 by failing "to exercise the highest degree of care to avoid colliding with a pedestrian.”