Missouri Supreme Court upholds $3.25 million verdict against employer where defense counsel’s trial and appellate arguments did not match.

February 16, 2018

On February 13, 2018, the Missouri Supreme Court issued an opinion in Wieland v. Owner-Operator Services, Inc., No. SC 96210, that clarifies the differences between arguments that a jury instruction was not submissible versus an argument that a party’s claim was not submissible.  The case involved a suit by an employee who sued her employer after her ex-boyfriend entered the employer’s premises, hid in the employee’s car, and shot her.  A jury awarded the employee $3.25 million dollars.

At trial, the employer argued that the verdict director incorrectly stated the law. On appeal, the employer argued that the verdict director was not submissible because the evidence at trial did not prove the correct legal elements of the plaintiff’s claim.  The Missouri Supreme Court, in an opinion authored by Judge Powell, affirmed the judgment on grounds that the employer did not preserve its appellate argument. The Court explained that a submissibility-of-the-instruction argument considers whether there was substantial evidence to support the court’s instruction as given to the jury and a submissibility-of-the-claim-argument considers whether there was substantial evidence to support each element of the actual legal claim.  Because the employer did not make its appellate argument at the trial court, it had not preserved the point for appellate review.

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