Is Missouri's No Pay No Play law Constitutional?

In 2013 Missouri joined the ranks of 11 other states by enacting a “No Pay, No Play”  statute. Under RSMO 303.390, uninsured drivers waive their right to recover for non-economic losses against an insured driver following an accident, even if the insured driver is at fault.

What are non-economic losses? These are usually an individual’s financial recovery received from a settlement,  such as pain and suffering damages and lost wages. An individual will only be able to recover for their direct economic loss, meaning their medical bills and property damage will be paid for but they will not be allowed to recover anything beyond that.

The theory behind this law is that it will both incentivize individuals to buy car insurance and that it will keep insurance costs down by narrowing the potential liabilities. It is, after all, a requirement under state law that car insurance is maintained if you own or operate a car. No consumer wants to pay higher rates because some choose to not abide by the law by not having insurance.  

There are important exceptions to the No Pay, No Play statue that lessen the law’s impact on disadvantaged people who may have hit a temporary hard time. An individual can escape the no pay no play damages cap if they had automobile coverage within 6 months of the time of the accident and this policy was cancelled for non-payment. The cap also does not apply if the at fault driver was drunk or if the claimant is a passenger.

If you are injured in an accident and your car insurance has expired, it is important to let your attorney know that immediately. This fact is an important one in the attorney’s calculation of the direction to take your case. You will need to provide your attorney with a copy of your expired policy that is dated no older than 6 months before the date of your accident. If you can do this, you will be able to make a claim as if though fully insured. If you did not have insurance at any time before the accident, recent developments have offered some hope.

A spate of recent court decisions have ruled the No Pay No Play law an unconstitutional infringement on the right to a trial by jury. The first to rule on this issue was a case out of Jackson County, Missouri. In Gilmore vs. Page, 17PT-CC00092 (2017), the court ruled that applying the statute to the Plaintiff’s case would violate their right to a trial by jury by capping the damages jurors could consider.

A more legally persuasive opinion was issued last year by a federal court sitting in the Western District of Missouri. It should be noted that while this court does not have the authority to invalidate the law as the Supreme Court of Missouri would, it’s decision is considered predictive on how the Missouri Supreme Court would rule. They were asked if the No Pay, No Play law is a violation of Missouri’s constitution on two separate theories. Plaintiff’s attorneys argued that the law was an unconstitutional infringement on the right to trial by jury and if it is a violation of the equal protection clause by treating uninsured motorists as a different class than insured motorists.  

This case, Miles vs. Shuster Co., 4:17-CV-0894-SRB (W.D. Mo. Nov. 14, 2018) said that the law was unconstitutional. The court said that statute is unconstitutional and that  a plaintiff should be able to have all their damages considered, and not be limited by statute.  

Despite these and other trial court decisions, No Pay, No Play is still the law of the land until it is either overturned by the Missouri State Supreme Court or by legislative act. Some insurance companies have sensed the legal trend toward this law becoming toothless and are no longer using this to devalue a victim’s claim. Other insurance companies are digging in their heels an continuing to fight these claims.  

If you have a serious accident case that is devalued due to No Pay, No Play, I would consider filing a lawsuit on it immediately. You may be able to have a trial court rule against applying the statute to your case and force the insurance company to make you a higher offer. If you take this route, I caution that you may be in for a long-term battle until the law changes, even if you obtain a favorable trial court decision. The insurance company may appeal any verdict you get at trial. With an appeal comes the chance that any victory you get is later overturned.

I think, given the latest trends, you should only consider taking this risk if you have a serious injury case. I would not recommend filing a lawsuit on a low value soft tissue injury case limited by No Pay, No Play.  

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