Midwest Trust Co. as Conservator for K.P. v. United Parcel Service, Inc.

• Court: Missouri Court of Appeals
• Decided: May 20, 2025
• Docket: WD86697 and WD87624
• Status: Published

Opinion

MISSOURI COURT OF APPEALS WESTERN DISTRICT

MIDWEST TRUST CO. AS ) CONSERVATOR FOR K.P., ) ) Respondent, ) ) v. ) WD86697 ) Consolidated with WD87624 UNITED PARCEL SERVICE, INC., ) Filed: May 20, 2025 ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY THE HONORABLE DAVID P. CHAMBERLAIN, JUDGE

BEFORE DIVISION ONE: KAREN KING MITCHELL, PRESIDING JUDGE, LISA WHITE HARDWICK, JUDGE, AND MARK D. PFEIFFER, JUDGE

United Parcel Services, Inc., (“UPS”) appeals from a judgment awarding

compensatory damages on a negligence claim for in utero injuries to K.P.1 in a car

accident caused by a UPS driver. UPS contends the circuit court erred in admitting

evidence of the driver’s history of cocaine use and in awarding prejudgment interest. For

reasons explained herein, we affirm the judgment.

1 The judgment was awarded to Midwest Trust Company as the conservator and next friend of K.P. Factual and Procedural Background

On May 8, 2018, Steven Miller was driving a UPS delivery truck in Clay County

when he missed a stop sign and crashed into a car driven by J.P., who was 13 weeks

pregnant with K.P. An ambulance took J.P.to the hospital. K.P suffered fetal brain

damage in the accident and was born seven months later with severe neurological

impairments.

On March 10, 2021, K.P.’s parents, as Next Friend for K.P., filed an amended

petition seeking compensatory and punitive damages against UPS on claims of vicarious

liability for Miller’s negligence in causing the accident, negligent entrustment of the UPS

vehicle to Miller, and negligent hiring, supervision, and training of Miller.2 UPS filed an

answer admitting that Miller was acting in the course and scope of his employment as a

UPS driver when he failed to stop at a stop sign and caused the accident. On April 26,

2022, Midwest Trust Company (“Midwest”) was substituted as Conservator and Next

Friend for K.P.

Prior to trial, UPS filed a motion in limine to exclude any “evidence, argument or

discussion” related to Miller’s drug use prior to and after the accident, Miller’s

participation in drug rehabilitation programs before and after the accident, and Miller’s

positive drug test taken months after the accident. UPS argued that Miller’s history of

drug use was irrelevant and highly prejudicial because there was no “credible evidence”

2 The amended petition also alleged individual claims by K.P.’s parents for loss of consortium and negligence claims against Miller. The parents voluntarily dismissed their claims before trial. Midwest Trust Company moved to dismiss all claims against Miller at trial. The circuit court subsequently entered a judgment dismissing with prejudice all claims against Miller. 2 that he was under the influence at the time of the accident. The circuit court agreed to

exclude any references to Miller’s post-accident drug use but otherwise denied the

motion in limine. The court granted UPS’s request for a continuing objection at trial to

any mention of Miller’s drug use or rehabilitation prior to the accident.

At the jury trial, Miller testified that he caused the accident with J.P. when he

“missed the stop sign.” In 2009, Miller was convicted on a felony charge of cocaine

possession, and he informed UPS about the conviction in 2010 when he was initially

hired to work as a pre-loader in the warehouse. Miller acknowledged having attendance

problems at UPS due to his ongoing cocaine use, which resulted in his suspension from

work as a driver in 2016 and his termination in February 2018. After voluntarily

completing an outpatient drug rehabilitation program in April 2018, Miller was allowed

to return to work at UPS as a delivery driver on May 3, 2018. His collision with J.P.

occurred five days later on May 8, 2018. Two UPS supervisors, who arrived at the scene

shortly after the accident, testified that Miller was not asked submit to drug testing

because they did not see signs of his impairment or intoxication.

Midwest presented testimony from several expert witnesses regarding how K.P.

was injured in the car accident, the debilitating nature of his injuries, and his need for

long-term treatment. An accident reconstructionist testified that Miller was driving down

the middle of the road at a speed between 32 to 34 miles per hour and did not brake prior

to the collision with J.P. According to an engineer specializing in biomechanics, the

force of the accident caused J.P. to lurch forward against the latched seat belt, which

applied the pressure of a 25 to 30-pound object to her abdomen while traveling at a speed

3 of 24 to 30 miles per hour. A diagnostic radiologist testified that the accident occurred in

the early stage of J.P.’s pregnancy, when the fetal brain is at a critical point of

development, and the sudden pressure impact most likely caused a malformation of

K.P.’s brain in a condition known as Schizencephaly.3

A physician certified in medical-biochemical genetics opined that K.P.’s

Schizencephaly was due to a vascular disruption event or insult to the brain and did not

arise from a genetic disorder. Testifying to a reasonable degree of medical certainty, the

physician concluded that K.P.’s condition was the result of a prenatal brain injury caused

by the car crash. He explained that K.P. has irreversible brain malformation, loss of

normal brain function, and neuro-developmental delays. A vocational rehabilitation

counselor and a clinical psychologist testified that K.P. is likely to have seizures that will

limit his ability to make a living, and he suffers from intellectual, speech, and physical

disabilities that will require lifetime therapy. Based on data for this long-term care and

low prospects for employment, a financial expert estimated the present value of K.P.’s

economic damages at $49,787,705.

During the defense case, UPS accepted responsibility for Miller causing the

accident while driving a company vehicle. UPS presented expert testimony on the

causation of K.P.’s injuries and the assessment of damages as the primary contested

issues. The defense medical experts listed genetics as one of several risk factors for

Schizencephaly that could not be excluded as a possible cause of K.P.’s condition.

3 Schizencephaly is a condition associated with a split or cleft in the cerebral cortex of the brain. 4 At the close of evidence, Midwest submitted two claims to the jury for

compensatory damages: 1) UPS’s vicarious liability for Miller’s negligent conduct in the

motor vehicle collision that caused injury to K.P., and 2) UPS’s negligent entrustment of

a motor vehicle that Miller was incompetent to operate due to his long-term cocaine use.

Midwest also requested punitive damages for both claims, asserting that UPS knew

Miller’s cocaine use created a high probability of injury and thereby showed complete

indifference or conscious disregard for the safety of others by allowing him to drive the

UPS vehicle.

The jury returned a verdict in favor of Midwest on the vicarious liability

negligence claim, awarding $65 million in compensatory damages and no punitive

damages. The jury ruled in favor of UPS on the negligent entrustment claim and denied

all relief. The circuit court granted Midwest’s motion for pre-judgment interest in the

amount of $9,895,068 and entered a final judgment against UPS for a total of

$74,985,068.4 UPS appeals.

Analysis

UPS raises three points on appeal. In Points I and II, UPS contends the circuit

court abused its discretion in overruling the objections regarding Miller’s drug use

because the evidence was not legally or logically relevant to the claims for vicarious

liability negligence and negligent entrustment. In Point III, UPS argues the court

4 The final judgment also included post-judgment interest of 9.875% annually, accruing from the jury’s verdict on March 17, 2023. 5 misapplied the law in awarding pre-judgment interest because Midwest failed to comply

with the demand letter provisions of Section 408.040. 5

Points I and II - Objections to Evidence of Drug Use

The admission of evidence is within the purview of the circuit court, and our

review is only for abuse of discretion. Bell v. Redjal, 569 S.W.3d 70, 81 (Mo. App.

2019). We defer to the circuit court’s evidentiary ruling unless it is “clearly against the

logic of the circumstances before the court and is so unreasonable and arbitrary that it

shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Id.

at 80-81. An abuse of discretion will not be found if reasonable minds can differ on the

circuit court’s course of action. Id. “The appellant has the burden of showing the abuse

of discretion and the prejudice resulting therefrom.” Porter v. Dir. of Revenue, 168

S.W.3d 147, 150 (Mo. App. 2005).

At trial, UPS objected to evidence of Miller’s history of cocaine use as irrelevant

because UPS had admitted responsibility for Miller’s conduct and there was no “credible

evidence” that he was under the influence of drugs at the time he caused the accident with

J.P. In overruling the objection, the circuit court explained that UPS did not require

Miller to submit to drug testing immediately after the accident and, thus, Midwest was

entitled to present evidence of Miller’s propensity for drug use as an indication that he

was impaired at the time of the accident or that UPS “purposely did not look to see if he

had used [drugs] that day.”

5 All statutory citations are to the Revised Statutes of Missouri 2016. 6 On appeal, UPS contends the court abused its discretion in overruling the

objection because the evidence of Miller’s drug use was irrelevant to the vicarious

liability negligence claim and was designed to inflame the jury, resulting in an “excessive

verdict.” UPS also asserts the evidence was “irrelevant as to any theories of negligent

hiring, training, supervision, and/or entrustment” because UPS’s admission of vicarious

liability barred any additional theories of imputed negligence.

We note initially that the circuit court repeatedly denied UPS’s motions

challenging submission of the negligent entrustment claim (and similar theories)

throughout the trial court proceedings. Pursuant to the general rule in McHaffie v. Bunch,

891 S.W.2d 822, 825 (Mo. banc 1995), UPS had argued that once it accepted respondeat

superior liability, Midwest could not pursue any other claims of imputed negligence for

Miller’s conduct. However, McHaffie recognized an exception to the general rule in

cases where the employer may be liable for punitive damages that would not be assessed

against the employee. Id. at 826. Midwest asserted claims for punitive damages that fell

within that exception, and therefore the circuit court allowed submission of the additional

claim for negligent entrustment of the UPS vehicle and evidence that would support a

punitive damages award based on Miller’s drug use. See Wilson v. Image Flooring, LLC,

400 S.W.3d 386, 393 (Mo. App. 2013). While this appeal challenges the denial of

objections to evidence of Miller’s drug use, UPS has not appealed the denial of its

challenges to the negligent entrustment claim and the court’s decision to submit that

claim to the jury. Accordingly, we will only address the relevance of the drug-related

7 evidence in determining the precise question of whether the circuit court erred in

overruling UPS’s objections.

To be admissible at trial, evidence must be both logically and legally relevant.

Dixson v. Missouri Dep't of Corr., 586 S.W.3d 816, 830 (Mo. App. 2019). Evidence is

logically relevant if it tends to make the existence of any consequential fact more or less

probable. Id. Evidence is legally relevant if its probative value outweighs any prejudicial

effect. Id.

The evidence of Miller’s long history of cocaine use was a key fact underlying the

negligent entrustment claim that Midwest submitted to the jury at trial. As stated in Jury

Instruction No. 11:

Your verdict must be for plaintiff on his claim for compensatory damages against defendant UPS for negligent entrustment if you believe:

First, UPS permitted Steven Miller to operate its motor vehicle, and

Second, at the time UPS permitted Steven Miller to operate its motor vehicle, Miller was incompetent to do so due to long-term cocaine use, and

Third, at the time UPS permitted Steven Miller to operate its motor vehicle, UPS knew or in the exercise of ordinary care should have known that Miller was incompetent to do so, and

Fourth, in permitting Miller to operate its motor vehicle, defendant UPS was thereby negligent, and

Fifth, Miller's operation of the UPS motor vehicle was negligent and caused the collision as submitted in Instruction No. 9

Sixth, the negligence of UPS directly caused or directly contributed to cause damage to plaintiff.

8 Based on this submission, the cocaine-related evidence was a consequential fact

that made it more probable that Miller was incompetent to operate the UPS vehicle. 6 The

evidence was also essential to support the punitive damages claim, as the jury was asked

to consider whether UPS showed complete indifference or conscious disregard for the

safety of others by negligently entrusting the vehicle to Miller as a long-term cocaine

user. The logical relevance is clear, and there is no indication that any prejudice from

this evidence outweighed its probative value. The jury returned a defense verdict on the

negligent entrustment and punitive damages claims, all of which were based solely on

Miller’s cocaine use. It is apparent the jury did not believe such drug use was a factor in

the accident and therefore denied relief for alleged misconduct. The circuit court did not

abuse its discretion in admitting the evidence as it was logically and legally relevant to

the negligent entrustment and punitive damage claims, regardless of the jury’s ultimate

decision.

Our courts have long recognized that evidence admissible for one purpose is not

necessarily inadmissible because it is improper or prejudicial for another issue. Pierce v.

Platte-Clay Elec. Coop., Inc., 769 S.W.2d 769, 775 (Mo. banc 1989). Thus, we must also

reject UPS’s argument that the drug-related evidence should have been excluded because

it was irrelevant to the vicarious liability claim on which the jury awarded $65 million in

compensatory damages. There can be no showing of prejudice because the jury’s

consideration of this damage claim was unaffected by the evidence relating to other

6 Although not addressed by either party on appeal, we note that Miller testified at trial and, thus, information regarding his prior cocaine conviction was admissible “to affect his credibility” pursuant to Section 491.050. 9 claims. As noted, the jury denied relief on the punitive damages claim associated with

the vicarious liability claim, presumably because it did not believe that Miller was

impaired at the time of the accident. The jury was able to distinguish between UPS’s

liability for Miller missing the stop sign and any additional liability that could have been

imposed for his drug use.

We further deny UPS’s argument on appeal that the jury verdict was excessive as

a result of repeated references to Miller’s drug use at trial. The jury has “virtually

unfettered” discretion to determine damages because there is a “large range between the

damage extremes of inadequacy and excessiveness.” Stewart v. Partamian, 465 S.W.3d

51, 56 (Mo. banc 2015). A damages award should “fairly and reasonably” compensate

the plaintiff based on “the nature and extent of injury, diminished earnings capacity,

economic condition, plaintiff’s age” and consideration of other factors such as past and

future pain, suffering, and effect on lifestyle. Id. at 56-57. Given the severity of K.P.’s

injuries arising from the accident and expert testimony estimating the present value of his

economic damages at $50 million, it was not unreasonable for the jury to award a total of

$65 million for the long-term care and treatment his condition requires, as well as pain

and suffering during his 82-year life expectancy. UPS did not seek remittitur of the

damages award and has not challenged the evidence supporting the award on appeal.7

7 UPS also could have requested a limiting instruction with regard to the cocaine-related evidence but did not do so. Sapp v. Morrison Bros. Co., 295 S.W.3d 470, 483-84 (Mo. App. 2019) (“When a trial court receives evidence admissible for one purpose but not for another, a party upon request is entitled to an instruction limiting the extent and purpose for which the jury may consider the evidence.”) 10 Accordingly, no prejudice has been shown from the verdict in favor of Midwest and the

award of compensatory damages. Points I and II are denied.

Point III - Award of Prejudgment Interest

UPS contends the circuit court misapplied the law in awarding prejudgment

interest because Midwest failed to comply with a notice provision of Section 408.040.

As relevant to this point on appeal, Section 408.040.3 provides:

In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives, and to such party's liability insurer if known to the claimant, and the amount of the judgment or order exceeds the demand for payment or offer of settlement, then prejudgment interest shall be awarded…

UPS argues that Midwest failed to send a demand letter to Liberty Mutual, as UPS’s

insurer, and therefore was not entitled to recover prejudgment interest on the damages

awarded for injuries to K.P. This point raises a question of law and statutory

interpretation, subject to our de novo review. Child. Int'l v. Ammon Painting Co., 215

S.W.3d 194, 202 (Mo. App. 2006).

Midwest responds that it did not send a separate demand letter to Liberty Mutual

because it was directed to communicate with Liberty Mutual through the attorney the

insurer had retained to defend UPS. Based on that instruction, Midwest sent a certified

mail demand letter to UPS’s attorney and specifically requested: “Please forward this

letter and the enclosures to the insurance companies providing liability insurance

coverage to United Parcel Service, Inc. for this lawsuit.” On appeal, UPS does not

dispute that Midwest was instructed to direct all such communications through the

11 retained attorney and that Midwest sent the demand letter to the designated attorney with

a request that it be forwarded to the insurers.

The purpose of the prejudgment interest statute is to promote lawsuit settlements

and fully compensate plaintiffs for the time-value of money. Mabie v Mason, 703

S.W.3d 667, 670-71 (Mo. App. 2024). Awards of such interest are not discretionary; if

the statute applies, the court must award prejudgment interest. Id. The courts may also

consider equitable principles of fairness and justice when awarding such relief. Id.

Our court recently addressed this specific issue of compliance with Section

408.040.3 in Mabie, where the plaintiff similarly sent a demand letter to defense counsel

who had been retained by the defendant’s insurer. Id. We recognized that “defense

counsel retained by an insurance company actually represents both insurer and insured.”

Id. at 671. In so doing, defense counsel becomes an agent of the insurer, and defense

counsel’s receipt of a demand letter for the defendant also constitutes receipt for the

insurer. Id. Mabie concluded that the plaintiff “complied with section 408.040.3” when

she sent the demand letter to defense counsel as the agent for insurer. Id. at 672.

In light of the holding in Mabie, we find no error in the circuit court’s award of

prejudgment interest based on the demand letter Midwest sent to the counsel for both

Liberty Mutual and UPS. Point III is denied.

Conclusion

We affirm the circuit court’s judgment.

_____________________________ LISA WHITE HARDWICK, JUDGE All Concur. 12