Defendant's Attorney: Not Available.

Description: Kansas City, Missouri insurance law lawyer represented Plaintiff, who sued Defendant seeking confirmation of an arbitration award in her favor.

In November of 2017, M.O. and Insured began a romantic relationship. Effective at that
time was an automobile insurance policy issued by GEICO to Insured.

On February 25, 2021, M.O. submitted to GEICO a copy of a petition she intended to file
against Insured, and made a final settlement offer to resolve her “claims against [Insured] for the
applicable limits of $1m.”2 The petition attached to the settlement offer alleged that during
“November and early December of 2017,” Insured and M.O. engaged in unprotected sexual
activities in Insured’s vehicle, and during those sexual encounters, Insured “negligently caused or
contributed to cause [M.O.] to be infected with HPV by not taking proper precautions and
neglecting to inform and/or disclose his diagnosis,” despite “having knowledge of his condition.”

M.O. alleged that as a result of Insured’s negligence, she incurred, and will incur, “past and future
medical expenses,” as well as “past and future mental and physical pain and suffering.” On April
7, 2021, GEICO denied coverage and refused M.O.’s settlement offer. GEICO also initiated a
declaratory judgment action in federal court to establish the parties’ rights and obligations under
the insurance policy.

Meanwhile, on March 11, 2021, M.O. and Insured entered into a Contract to Limit
Recovery to Specified Assets and Arbitration Agreement Pursuant to Section 537.065 RSMo (“065
Agreement”).3 On May 17, 2021, M.O. and Insured arbitrated M.O.’s claims, and the arbitrator
thereafter issued his “Findings, Conclusions, and Award.”

The award first described procedural aspects of the arbitration proceeding, including that:
(1) Prior to the arbitration, Insured submitted an Arbitration Statement detailing his defense; (2)
Both parties presented opening statements at the arbitration; (3) Insured was given the opportunity
to cross-examine M.O.’s witnesses and elicit testimony for Insured’s defense; (4) Insured
submitted as exhibits three internet articles discussing HPV; (5) M.O. requested an award of $9.9
million in damages in her closing argument; and (6) In his closing argument, Insured disputed that
he was aware he could transmit HPV to M.O., M.O. received HPV from him, he had a duty to
disclose such diagnosis to M.O., and the amount of damages.

As to his substantive findings, the arbitrator determined that: (1) “there was sexual activity
in [Insured’s] automobile in November/December of 2017 which occurred in Jackson County,
Missouri”; (2) the sexual activity in Insured’s vehicle “directly caused, or directly contributed to
cause, M.O. to be infected with HPV”; (3) Insured knew he had “been told that his throat cancer
tumor was diagnosed as HPV positive”; (4) Insured should have disclosed his diagnosis to M.O.
prior to the sexual activity that occurred, but he did not; and (5) Insured “was negligent and is
liable for causing M.O. to contract HPV.” The arbitrator found that “an amount that would fairly
and justly compensate Plaintiff, M.O., for all of her damages and injuries is $5,200,000,” and
entered an award in that amount “in favor of Plaintiff M.O. and against the Defendant [Insured].”
On May 24, 2021, M.O. provided written notice to GEICO that she and Insured had entered
into an agreement pursuant to section 537.065. The following day, M.O. initiated this action by
filing her Petition for Damages in the trial court.4 On June 10, 2021, GEICO discovered the
existence of this lawsuit by monitoring Case.net (Missouri state courts’ automated case
management system). On June 18th, GEICO filed a motion to intervene.

On June 22nd, M.O. filed a response to GEICO’s motion to intervene and a motion to
confirm the arbitration award. In her motion to confirm the award, M.O. asserted she and Insured
had agreed “that after an arbitration award is issued, [M.O.] will immediately seek to have the
award confirmed . . . and reduced to judgment . . . and that neither party will seek judicial review
of the award or attempt to have the award set aside, modified, amended or changed in any way
unless by express written agreement of each party.” On June 29th, GEICO filed a reply in support
of its motion to intervene. On July 2nd, the trial court granted M.O.’s motion to confirm the
arbitration award and entered judgment in favor of M.O. and against Insured in the amount of
$5,200,000. The trial court adopted and incorporated the findings and conclusions of the arbitration
award, and stated the award was attached to the judgment as Exhibit A. No exhibit was attached
to the judgment. Also on July 2nd, after entering judgment, the trial court entered an order granting
GEICO’s motion to intervene.

On July 30th, GEICO filed a motion for leave to conduct discovery, a motion for new trial,
and a motion to vacate the arbitration award. In the latter two motions, GEICO asserted that the
arbitration award and judgment confirming it should be vacated because the award “was procured
by collusion, fraud, [and] undue means,” it was “contrary to public policy and §§ 537.065 and
435.350,” it was the result of an invalid and unenforceable arbitration agreement, and it violated
GEICO’s due process rights and right to access the courts. The parties submitted additional
briefing on GEICO’s motions. On September 8, 2021, the trial court summarily denied all of the
motions and entered a “Judgment Nunc Pro Tunc,” attaching the arbitration award that was
inadvertently omitted from the original judgment.

GEICO appeals, asserting three claims of error relating to the trial court’s confirmation of
the arbitration award—specifically, to the timing of the trial court’s confirmation.5 GEICO asserts
that by confirming the arbitration award without giving GEICO a meaningful opportunity to
defend its interests and develop facts and arguments pre-judgment, the trial court acted in
contravention of section 537.065 and Rule 52.12 (Point I), section 435.405 (Point II), and state
and federal constitutional provisions guaranteeing due process and access to the courts (Point III)

Outcome: Arbitration award of $5.2 million affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: