A personal injury precedent was set statewide last month when a state appeals court affirmed a $12.8 million judgment in favor of an Australian couple injured in a crash with a Phelps County winery truck.
“Insurance is always a touchy issue,” said Mark McCloskey, a personal injury attorney in St. Louis. “You've got judges who will absolutely grant a mistrial if insurance gets mentioned and other judges that do not and this decision gives a little bit of specific instruction on when it's appropriate and when it is not.”
Missouri Lawyers Media reported that Daniel and Tanya Woodgate were awarded $14.2 million by jurors, which was the ninth largest plaintiffs’ verdict last year until the award was lowered to $12.8 million even though Daniel Woodgate suffered a severe traumatic brain injury in a 2018 crash with a St. James Winery vehicle.
“I think everybody that does personal injury cases now has a clearer idea of when it is and is not appropriate to point out that an individual defendant may not have any personal responsibility whatsoever because the defense does always play that insurance card,” McCloskey told the St. Louis Record.
As previously reported, the crash occurred during a guided motorcycle tour of Route 66 with a pickup truck whose driver was employed by the nearby St. James Winery.
At issue on appeal was a remark made by the plaintiff's counsel that the winery would not “pay one cent for any judgment,’ due to insurance coverage but the allegedly inappropriate comment did not require a new trial, according to Southern District appeals judges Jeffrey W. Bates, Don E. Burrell, and Chief Judge Jack Goodman.
“Although a party may not flaunt insurance coverage in the jury’s face, a brief, retaliatory argument is not necessarily out of order,” Goodman wrote in the Sept. 30 opinion.
McCloskey added that the ruling was appropriate because the remark was one that could have gained the sympathy of the jury.
“The inference was that if you award a big judgment, it'll be bad for our economy in Phelps County and for the owners of the St. James Winery personally and that kind of sympathy ploy is inappropriate,” he said. “It was correct that the judge allowed the plaintiff's lawyer to point out that it was just all nonsense.”
Attorneys for the winery are likely to fail if they seek to reverse the decision at the Missouri Supreme Court, according to McCloskey.
"Under the circumstances, the brief inference of insurance is not going to cause it to get reversed," he said.