Rasmussen Dickey Moore attorneys, led by member attorney Vincent Gunter, successfully prevailed on a motion for summary judgment on behalf of a client in early June. The case began when Plaintiff filed a negligence claim and a premise liability claim, alleging that exposure to asbestos at a high-rise office building in the late 1970s caused her to develop mesothelioma.

RDM’s client moved for summary judgment, asserting immunity from suit under the workers’ compensation exclusivity doctrine. As part of our client’s argument that Plaintiff’s exclusive remedy was controlled by the Missouri Workers’ Compensation Law, our client produced several insurance policies that provided additional Mesothelioma Benefits Endorsement in order to establish it had the requisite coverage in place as required by the statute.

Plaintiff opposed our client’s motion by filing a series of responses, including a motion to strike the client’s summary judgment motion on the grounds that it did not comply with Rule 74 of the Missouri Rules of Civil Procedure. Plaintiff also argued that our client’s insurance policies are hearsay, and to be admissible, the foundation affidavit authenticating the policies must satisfy Missouri’s business records hearsay exception codified in RSMo. § 490.680.

Relying on CACH, LLC v. Askew, 358 S.W. 58 (Mo. banc 2012), Plaintiff argued that neither RDM’s client nor its insurance agent could authenticate the insurance policies because they were drafted by another company. The Court overruled all of Plaintiff’s arguments and objections.

Regarding Plaintiff’s hearsay argument, the Court held that insurance policies are not hearsay because they are written contracts that memorialize the fact of a legal agreement and, therefore, fall outside the definition of hearsay. The statute Plaintiff relied on is for “business records” that would otherwise be hearsay. The Court explained that if a document is not hearsay, an authentication affidavit does not need to satisfy the requirements of RSMo. § 490.680.

The Court further found that our client’s insurance agent may authenticate the policies because, as he stated in his affidavit and deposition, he has personal knowledge of the policies from his role as our client’s agent in obtaining the policies and advising our client throughout the process.

Plaintiff also challenged the validity of the insurance policies themselves. The Court rejected these arguments and ruled that the undisputed facts showed RDM’s client had a workers’ compensation policy covering claims for enhanced mesothelioma benefits under RSMo. § 287.200.4 during the relevant time period. Accordingly, because Plaintiff was our client’s employee when she claimed exposure to asbestos, and that our client had a policy for enhanced benefits for mesothelioma, our client was immune from civil liability under the workers’ compensation exclusivity doctrine.

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