Section 2.28 Retroactive Application of Mo-ISRLA and Other Changes to Missouri Insolvency Law

• Library: Insurance Practice 2015

In 1992, by amendment, the Missouri legislature expressly stated that some changes made to the 1939 codification (see, e.g., §§ 375.650–375.700, RSMo 2000, and 375.740–375.750, RSMo 2000) and all sections of the Mo-UILA (§ 375.950.2, RSMo 2000) would apply only to pre-August 28, 1991 insolvencies. A more difficult issue is whether a court may apply retroactively the 1991 and later-passed provisions of the Mo-ISRLA. Missouri courts have resolved this issue only in a few contexts: the allowance of late-filed claims of creditors, claims estimation, SDR immunity, and application of the new personal jurisdiction and in rem jurisdiction statute. See:

Avidan v. Transit Cas. Co. in Receivership, 20 S.W.3d 521 (Mo. banc 2000) (SDR immunity) (discussed below);

Angoff v. Holland-Am. Ins. Co. Trust, 937 S.W.2d 213 (Mo. App. W.D. 1996) (IBNR claims estimation) (discussed below);

Transit Cas. Co. in Receivership v. Gen. Accident Ins. Co., No. CV597-1CC, slip op. at 6–7 (Cole County Cir. Ct. Jan. 7, 1998) (§§ 375.1176.2 and 375.1182.1(12), RSMo 2000, governing powers of liquidator to maintain and defend suits, are procedural);

Melahn v. Chicago Pneumatic Tool, No. CV692-5CC, slip op. at 2 (Cole County Cir. Ct. July 23, 1993), appeal dismissed, 939 S.W.2d 390 (Mo. App. W.D. 1996) (§ 375.1206, RSMo 2000, governing late filed claims against the insolvent, is procedural in nature, does not conflict with the provisions of § 375.670, RSMo 2000, and, therefore, the court may apply it retroactively);

Melahn v. Chaddock Winter, & Alberts, Inc., No. CV590-0009CC, slip op. at 1 (Cole County Cir. Ct. June 3, 1993) (jurisdiction).

In Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. banc 1987), the Supreme Court of Missouri set forth the principles for determining whether a court may apply a statute retrospectively. The Supreme Court stated:

The Missouri Constitution, Article I § 13, prohibits the “retrospective” application of laws enacted by the legislature, such a law is one which “take[s] away or impair[s] vested rights acquired under existing laws, or create[s] a new obligation, impose[s] a new duty, or attach[es] a new disability in respect to transactions or considerations already past.” Barbieri v. Morris, 315 S.W.2d 711, 714 (Mo. 1958) . . . . See also Willhite v. Rathburn, 332 Mo. 1208, 1217, 61 S.W.2d 708, 711 (1933) (laws may not be applied retrospectively when they would “affect . . . past transactions to the substantial prejudice of parties interested”).

Andres, 730 S.W.2d at 552 (citation omitted). In applying these principles...