                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1740
                                   ___________

Kaytina Harrison,                       *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Purdy Brothers Trucking                 *
Company, Inc.; David Carey,             *
                                        *
             Appellants.                *
                                   ___________

                             Submitted: September 13, 2002

                                  Filed: December 3, 2002
                                   ___________

Before BYE, BEAM, and MELLOY, Circuit Judges.
                           ___________

BYE, Circuit Judge.

      Purdy Brothers Trucking, Inc., and its driver, David Carey (collectively Purdy
Brothers), appeal from the district court's1 denial of their motion for a new trial
following a $3 million verdict in favor of Kaytina Harrison for the wrongful death of
her son, Ryan. The case was tried to a jury on the issue of damages only. Purdy


      1
       The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri, presiding by consent of the parties pursuant to 28
U.S.C. § 636(c).
Brothers contends the district court abused its discretion by admitting an autopsy
report, Harrison's counsel made prejudicial comments during closing arguments, and
the district court erred in awarding prejudgment interest. We affirm.

                                             I

       When Purdy Brothers admitted liability on the first morning of trial following
voir dire, the parties agreed to a stipulated set of facts for the district court to read to
the jury. The stipulation serves equally well for our purposes in setting forth the
factual background of this case, so we repeat it here:

       This case is the result of a collision between an automobile and a
       tractor-trailer on June 30, 2000, in Columbia, Missouri, in which
       plaintiff Kaytina Harrison's 8 ½ year-old son, Ryan Thompson, was
       killed. Ms. Harrison has brought this claim against David Carey and
       Purdy Brothers Truckling [sic] Company for her son's wrongful death.

       Mr. Carey and Purdy Brothers have admitted they are liable for Ryan
       Thompson's death. You will be asked to determine whether Ms.
       Harrison is entitled to money damages for her son's death in accordance
       with instructions that I will read to you later and, if so, how much.

       So that you may have some understanding of the facts surrounding Ryan
       Thompson's death and the wreck that caused it, I am going to give you
       some information that may aid you in your deliberations.

       This wreck occurred at 6:45 a.m. on Friday, June 30, 2000. The day was
       clear and the road was dry at the time of the accident. Ryan Thompson
       was on his way home after spending the night with his father, Rob
       Thompson. Ryan was lying down in the back seat of Mr. Thompson's
       Chevrolet Malibu. Their car was stopped on the westbound ramp from
       I-70 at the Highway 63 connector. Their car was struck from behind by
       a tractor-trailer rig being driven by David Carey in the course and scope



                                            -2-
      of his employment with Purdy Brothers. Ryan Thompson died in the
      collision.

      Mr. Carey was traveling to Columbia from St. Louis. When he
      approached the exit on which the accident occurred, he was going
      approximately 60-65 m.p.h. The speed limit on I-70 at that location is
      60 m.p.h.

      The defendants admit that David Carey was negligent in the operation
      of the Purdy Brothers truck in that he drove at an excessive speed for the
      conditions and that he caused or allowed the tractor trailer to collide
      with the car in which Ryan Thompson was a passenger, and that Mr.
      Carey's negligence caused Ryan Thompson's death.

      None of the parties involved in the wreck were on drugs or under the
      influence of alcohol at the time of the collision.


        After the accident, Kaytina Harrison hired counsel to pursue a claim on her
behalf. On August 18, 2000, her counsel wrote to Purdy Brother's liability carrier,
Empire Fire & Marine Insurance Company, offering to settle for $2,499,999. Counsel
sent the offer by certified mail to trigger Missouri's prejudgment interest statute,
which allows for an award of prejudgment interest "if a claimant has made a demand
for payment or an offer of settlement of a claim, to the party, parties or their
representatives and the amount of the judgment or order exceeds the demand for
payment or offer of settlement [when the offer is] made in writing and sent by
certified mail." Mo. Rev. Stat. § 408.040 (emphasis added). Under the terms of the
policy, Purdy Brothers gave Empire authority to "investigate and settle any claim or
'suit' as we [Empire] consider appropriate. Our duty to defend or settle ends when the
Liability Coverage Limit of Insurance has been exhausted by payment of judgments
or settlements."




                                         -3-
        When the parties were unable to settle, Harrison brought suit and the case
proceeded to trial. Because Purdy Brothers admitted liability, the trial focused on
Ryan's personality and activities. A total of seven witnesses took the stand — Ryan's
little league coach, his second grade teacher, his best friend's mother, both of his
grandmothers and mother and stepfather — all testifying about Ryan's life and his
relationship with his mother.

       The district court excluded most evidence related to the accident, including all
photos of Ryan's body, a video re-enactment of the accident, testimony from
witnesses who were on the scene immediately following the accident, and the fact that
Carey had pleaded guilty to felony manslaughter for causing the wreck. The district
court also excluded all photos of the accident scene, with the exception of three which
Purdy Brothers had stipulated were admissible — two aerial photos showing the
intersection, and a single photo showing the accident scene itself. The accident scene
photo showed the crumpled and severely-burned shell of the Thompson vehicle,
which caught fire as a result of the collision. The jury already knew about the fire
because during voir dire, before Purdy Brothers admitted liability, the district court
told them "[t]here was a major accident. There was a fire and I guess I don't need to
say much more about it."

       Over Purdy Brothers's objection, the district court also admitted a two-page
report of Ryan's autopsy. The report contained a brief description of the condition of
the body:

      The head hair is burned away. The irides are burned away. The nose,
      ears and mouth are burned away. The neck, chest, back and abdomen
      are unremarkable except for the thermal injuries to the back and chest.

      There is significant thermal injury to the head and upper trunk,
      especially the back. There are open fractures of the skull and lacerations



                                         -4-
      to the brain. There is skin slippage to the trunk and extremities due to
      the diesel fuel.

       During closing argument, Purdy Brothers objected to three statements made by
Harrison's counsel. Because the district court had informed the jury during voir dire
that the case would take all week to try, Harrison's counsel began his closing
argument by explaining why it took just a day and a half:

      We came here to spend a week with you and we told you that in – at the
      beginning of the case, and you can see in all this stuff they've brought
      along, we came for a week. And then Mr. Gotfredson told you in
      opening statement, he said we've come here today and said we are
      responsible for this tragedy, and that's true. They did come Monday and
      say, while you were out in the hall, well, yeah, we're responsible. We
      caused the death of Ryan Thompson. And that's good that they did that.
      But that doesn't make the loss to Kaytina Harrison any less. The fact
      that the defendants in the case finally 'fessed up, that doesn't make . . .

Purdy Brothers then objected, and the district court immediately sustained the
objection. Harrison's counsel continued by explaining the context of his comments,
with no objection from Purdy Brothers:

      That doesn't make Kaytina's loss any less. So, why do the defendants
      then confess liability at the eleventh hour? I don't know that. I don't
      know that. But they did and so we're here Tuesday at noon and the case
      is going to you instead of Thursday or Friday, so I guess that part is
      good.

      Next, Purdy Brothers objected to a reference Harrison's counsel made to the
speed at which Carey drove his truck on the off ramp:

      And, by the way, in Mr. Richmond's opening statement, he talks about
      something, well, never did Mr. Carey think that going 65 in a 60 mile
      per hour zone would end up like this. But we all know that this wreck

                                         -5-
      didn't happen on the interstate where the speed limit is 60. This wreck
      happened on the off ramp, at the stop sign.

Purdy Brothers objected on the grounds that "he's arguing evidence that's not in the
case." The district court overruled the objection.

      Finally, Purdy Brothers objected when Harrison's counsel argued the
defendants had not been "willing to do" justice:

      We need a fair and just closure for this tragedy, justice for the death of
      Ryan Thompson, the justice that is required by the Court's instruction
      No. 7 – Instruction No. 7 in your pamphlet – in your booklet that the
      judge gave you, you must award, not you can award if you want to, you
      must [award] Plaintiff Kaytina Harrison such sum as you believe will
      fairly and justly compensate her for the loss of her son. That justice
      comes only from your verdict, from your decision, because these
      defendants have not been willing to do that.

Purdy Brothers requested a bench conference, and objected on the grounds counsel
had referred to pre-trial settlement discussions. The court sustained the objection,
and told the jury:

      I'm going to instruct you to disregard counsel's last statement. What
      defendants were or were not willing to do before the start of the trial is
      really irrelevant to this stage. What is relevant at this proceeding is the
      stipulation and the evidence you've received and anything concerning
      what anybody did or did not do that wasn't presented in this courtroom,
      that wasn't in the evidence in this case is irrelevant to the case and must
      not be considered by you.

      Harrison's counsel ultimately suggested an award of $8.5 million. Purdy
Brothers suggested an award of $500,000 to $1 million. The jury returned a verdict
of $3 million.


                                         -6-
      Both parties filed post-trial motions. Harrison moved for prejudgment interest
pursuant to Mo. Rev. Stat. § 408.040 because the verdict exceeded her August 18,
2000, settlement offer to Empire. Purdy Brothers opposed the motion, arguing
Empire was not its "representative" within the meaning of the statute. The district
court disagreed, and awarded prejudgment interest.

       Purdy Brothers moved for a new trial arguing the district court abused its
discretion by admitting the autopsy report, and that the closing arguments of
Harrison's counsel were improper and resulted in a miscarriage of justice. The district
court denied the motion, noting in part "the award of damages, although large, is not
excessive in this case when considered against other cases of this nature and the
circumstances."

                                          II

       "We review the denial of a motion for a new trial for a clear abuse of
discretion." Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 495 (8th Cir. 2002).
"The key question is whether a new trial should have been granted to avoid a
miscarriage of justice." Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000)
(quoting McKnight v. Johnson Controls, 36 F.3d 1396, 1400 (8th Cir. 1994)). An
allegedly erroneous evidentiary ruling does not warrant a new trial "unless the
evidence was so prejudicial that a new trial would likely produce a different result."
Bevan v. Honeywell, Inc., 118 F.3d 603, 612 (8th Cir. 1997). Similarly, when a new
trial motion is based on improper closing arguments, a new trial should be granted
only if the statements are "plainly unwarranted and clearly injurious" and "cause[]
prejudice to the opposing party and unfairly influence[] a jury's verdict." Alholm v.
Am. Steamship Co., 144 F.3d 1172, 1181 (8th Cir. 1998) (citations omitted).

       Purdy Brothers contends admitting the autopsy report caused a miscarriage of
justice because Ryan's post-mortem condition was irrelevant to the issue of damages.

                                         -7-
See Mo. Rev. Stat. § 537.090 (limiting damages in a wrongful death action to the
"reasonable value of the services, consortium, companionship, comfort, instruction,
guidance, counsel, training, and support of which those on whose behalf suit may be
brought have been deprived by reason of such death"). Purdy Brothers argues the
reference to the post-mortem condition of Ryan's body was prejudicial and inflamed
the jury.

        It appears the district court admitted the report to give the jury some
background information about the accident. After Purdy Brothers conceded liability,
the district court told counsel "that does severely limit what becomes relevant at
trial," but added "I think the jury is entitled to some information concerning the
circumstances of the action. I don't think juries can make decisions as to loss of life
in the abstract." We believe the district court was within its discretion to provide the
jury a limited amount of background information regarding the circumstances of the
accident. Cf. United States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000)
(allowing the admission of background information in a criminal case because it
"completes the story . . . or explains the relationship of parties or the circumstances
surrounding a particular event"). But the two paragraphs in the autopsy report
describing Ryan's post-mortem condition were not relevant, even for background
purposes. The post-mortem condition of Ryan's body was not probative of any
element of damage allowed by § 537.090, and the jury did not need to know that fact
to understand how the accident happened. Although that portion of the autopsy
report should have been redacted, the district court's failure to do so did not result in
a miscarriage of justice.

        When the district court admitted the autopsy report, Purdy Brothers had
already stipulated to the admission of one accident scene photo showing the charred
vehicle. After having seen the photo, the jury would not have been at all surprised,
shocked or inflamed by the information contained in the autopsy report. In addition,
plaintiff's counsel did not emphasize that information, and instead focused his case

                                          -8-
on his client's relationship with Ryan. Furthermore, the district court specifically
instructed the jury that it "must not consider grief or bereavement suffered by reason
of [Ryan's] death" when awarding damages. We presume the jury obeyed this
instruction. See Loehr v. Walton, 242 F.3d 834, 836 (8th Cir. 2001); Ryan v. Bd. of
Police Comm'rs, 96 F.3d 1076, 1083 n.1 (8th Cir. 1996). The admission of the
autopsy report did not result in a miscarriage of justice, and the district court did not
abuse its discretion by denying the motion for a new trial on that ground.

       Purdy Brothers also contends opposing counsel's closing arguments were
improper and unfairly influenced the jury's verdict. Harrison claims Purdy Brothers
failed to preserve this issue for review, so we address that claim first. The record
shows closing arguments finished right before lunch, and the district court submitted
the case to the jury giving counsel "a half an hour to go get something to eat, then
come on back and we'll make a record on any matters that we need to make a record
on." When the jury reached a verdict faster than expected, the district court took the
verdict before giving the parties an opportunity to make a record on outstanding
matters. Purdy Brothers then moved for a mistrial as soon as the district court
allowed. Harrison nevertheless argues Purdy Brothers waived the claim because the
mistrial motion was untimely. We disagree for two reasons.

       First, under the circumstances involved in this case, the motion for a mistrial
was timely even though made after the verdict was announced. Cf. Reeves v.
Teuscher, 881 F.2d 1495, 1498 (9th Cir. 1989) (holding a motion for a directed
verdict timely even though made after the jury's verdict was announced, where
district court interrupted defendants and told them to make motion after the verdict).
Second, Purdy Brothers entered timely objections to the closing arguments in any
event, and therefore preserved the issue even if it had made no motion for a mistrial.
A party need not object to an offensive argument and move for a mistrial in order to
preserve the right to bring a motion for a new trial. See Hofer v. Mack Trucks, Inc.,
981 F.2d 377, 385 (8th Cir. 1993) (addressing motion for new trial on merits where

                                          -9-
plaintiff objected to allegedly improper argument at trial but did not also bring a
motion for mistrial); Griffin v. Hilke, 804 F.2d 1052, 1057 (8th Cir. 1987) (granting
a motion for new trial based on improper closing arguments without indicating the
objecting party also moved for a mistrial).

      Although the timely objections preserved this issue for our review, we
conclude Purdy Brothers is not entitled to relief. As to the first comment ("the
defendants in the case finally 'fessed up"), the district court immediately sustained an
objection. In addition, counsel's comments following the objection show he was
simply trying to explain why the case took a day and a half to try rather than a week,
and Purdy Brothers did not object to the follow-up comments.

       As to the second comment ("this wreck didn't happen on the interstate where
the speed limit is 60. This wreck happened on the off ramp, at the stop sign"), the
district court properly overruled the objection. Counsel's statements were true, and
based on the evidence. The wreck did not happen on the interstate, the speed limit
on the interstate was 60, and the parties had stipulated "the car was stopped on the
westbound ramp." To the extent counsel's statement implied the speed limit on the
ramp was something less than 60 mph, we find no prejudice because Purdy Brothers
had stipulated that Carey drove his truck "at an excessive speed for the conditions."

       As to the third comment ("these defendants have not been willing to do
[justice]"), the district court immediately gave a cautionary instruction to the jury to
disregard the comment, and had previously advised the jury that arguments of counsel
are not evidence. The district court's cautionary instructions cured any prejudice that
might have been caused by the comment. See Billingsley v. City of Omaha, 277 F.3d
990, 997 (8th Cir. 2002). The district court did not abuse its discretion by denying
the motion for a new trial because of improper closing arguments.




                                         -10-
       Finally, Purdy Brothers claims the district court erred by awarding prejudgment
interest. It contends Empire was not its "representative" within the purview of Mo.
Rev. Stat. § 408.040, and therefore the August 2000 settlement demand to Empire did
not trigger the statute. Although the Missouri courts have twice implicitly recognized
the validity of a demand letter sent to a defendant's liability insurer, see Brown v.
Donham, 900 S.W.2d 630, 631 (Mo. 1995); Hurst v. Jenkins, 908 S.W.2d 783, 784
(Mo. Ct. App. 1995), they have never explicitly addressed whether an insurer is a
party's "representative" under § 408.040, and so our task is to predict how the
Missouri Supreme Court would decide the issue. See Cassello v. Allegiant Bank, 288
F.3d 339, 340 (8th Cir. 2002).

       Purdy Brothers's argument is based upon a rule of statutory construction. The
Missouri legislature enacted § 408.040 in the same bill as the collateral source rule,
which refers to both a party's "insurer" and its authorized "representative." Mo. Rev.
Stat. § 409.715.2 Purdy Brothers argues the "[p]rovisions of the entire legislative act
must be construed together and, if reasonably possible, all provisions must be
harmonized." Hagely v. Bd. of Educ. of Webster Groves Sch. Dist., 841 S.W.2d 663,
667 (Mo. 1992). Purdy Brothers contends the difference in the two statutes shows
that the Missouri legislature considers a party's "representative" to be distinct from
a party's "insurer." We disagree. One would expect the collateral source rule to
specifically refer to payments from a party's insurer. We doubt the Missouri
legislature intended that reference to have any bearing whatsoever on a party's right
to prejudgment interest.




      2
        Section 409.715 provides in pertinent part that "[i]f prior to trial a defendant
or his insurer or authorized representative, or any combination of them, pays all or
any part of a plaintiff's special damages, the defendant may introduce evidence that
some other person other than the plaintiff has paid those amounts."


                                         -11-
        We suspect the Missouri Supreme Court would recognize an insurer to be a
party's "representative" under § 408.040. One of the obvious goals of the statute is
to encourage settlements, even before a suit is filed. See Lester v. Sayles, 850 S.W.2d
858, 873 (Mo. 1993) (recognizing the statute is triggered by a demand made prior to
filing suit). In many instances plaintiff's counsel initiates settlement discussions with
a defendant's insurer prior to filing suit. If the statute were to exclude insurers from
the term "representative," the primary goal of the statue would be frustrated, not
furthered. We doubt the Missouri legislature intended such a result.

      Furthermore, as is true in this case, parties often agree by contract to have their
insurer act as their representative for settlement purposes. The Purdy Brothers policy
provided that Empire "may investigate and settle any claim or 'suit' as we [Empire]
consider appropriate. Our duty to defend or settle ends when the Liability Coverage
Limit of Insurance has been exhausted by payment of judgments or settlements."
Thus, if the present case were before the Missouri Supreme Court, we believe the
court would recognize Empire as Purdy Brothers's "representative."

       Purdy Brothers argues Empire's contractual authority to settle was restricted by
the policy's $1 million limits, however, and that Empire was not authorized to receive
a settlement demand exceeding that amount. We disagree. The policy's coverage
limits have no effect on Empire's authority to act as Purdy Brothers's representative
for purposes of receiving a settlement offer, which is the only issue we must address
under § 408.040. In other words, the issue is not whether Empire could agree to the
settlement demand, but whether Empire was Purdy Brothers's representative for the
purposes of having a settlement demand sent to them by certified mail. The policy
did not limit Empire's authority to act as Purdy Brothers's representative for that
purpose until "the Liability Coverage Limit of Insurance has been exhausted by
payment of judgments or settlements." Empire never exhausted its limits, and
therefore was Purdy Brothers's "representative" when Harrison made her settlement
offer.

                                          -12-
      We affirm the judgment of the district court in all respects.

BEAM, Circuit Judge, concurring and dissenting.

      I reluctantly concur in the court's affirmance of the denial of the defendant's
motion for a new trial, sought because of the district court's evidentiary error
concerning the autopsy report, a mistake duly recognized by the court in its opinion.
However, the district court's decision to award prejudgment interest is clearly wrong
and should be reversed. Accordingly, I respectfully dissent on this issue.

        The district court and this court rely upon an expansive and incorrect reading
of Missouri Revised Statute § 408.040.2 for authority to award prejudgment interest,
in derogation of Missouri common law to the contrary. See Overcast v. Billings Mut.
Ins. Co., 11 S.W.3d 62, 69 (Mo. 2000) (statutes displacing common law are to be
strictly construed). However, of greater importance, section 408.040.2 is, whether
liberally or narrowly applied, simply not applicable under the facts of this case. A
brief recapitulation of the relevant circumstances is helpful.

       The accident occurred on June 30, 2000. On August 18, 2000, Ms. Harrison's
lawyer, Wally Bley, sent a demand letter/settlement offer to Bob Reynolds, an
insurance adjustor with Empire Fire and Marine Insurance Company, Purdy Brothers'
insurer. The demand was for $2,499,999 and coverage under the Empire policy was
limited to $1,000,000. On November 3, 2000, Ms. Harrison commenced a wrongful
death action against Purdy Brothers and driver David Carey in the Circuit Court of
Boone County, Missouri. Purdy Brothers filed a notice of removal in the United
States District Court for the Western District of Missouri on December 13, 2000.

      The Bley letter of August 18, 2000, is the sole basis for the claim for
prejudgment interest.



                                        -13-
      Section 408.040.2 provides, in pertinent part, as follows:

      In tort actions, if a claimant has made . . . an offer of settlement of a
      claim, to the party, parties or their representatives and the amount of the
      judgment . . . exceeds the . . . offer of settlement, prejudgment interest,
      at the rate specified in subsection 1 of this section, shall be calculated
      from a date sixty days after the demand or offer was made . . . . Any
      such demand or offer shall be made in writing and sent by certified mail
      and shall be left open for sixty days unless rejected earlier.

Mo. Ann. Stat. § 408.040.2 (emphasis added). The court and the parties spend
considerable time arguing over the statutory meaning and breadth of the word
"representatives." However, they ignore a more fundamental problem. The offer of
settlement, if the Bley letter can be properly construed as such, was not made in a tort
action. Indeed, no tort action, as defined by Missouri law, existed when Mr. Bley
sent his demand of August 18, 2000. The tort action was commenced on November
3, 2000, almost three months later.

       In defining the meaning of the phrase a tort action, Missouri has adopted a
"usual and ordinary sense" of the word "action." North v. Hawkinson, 324 S.W.2d
733, 744 (Mo. 1959). "'Generally, an action is such a judicial proceeding as,
conducted to termination, results in a judgment.'" Id. (quoting State ex rel. Silverman
v. Kirkwood, 239 S.W.2d 332, 336 (Mo. 1951)). It is also clear that an "action is
commenced by filing a petition with the court." Ostermueller v. Potter, 868 S.W.2d
110, 111 (Mo. 1993) (emphasis added). When Bley mailed his letter, there was no
tort action. Accordingly, I would find that section 408.040.2 is inapplicable.

      I recognize that there is obiter dictum in Lester v. Sayles, 850 S.W.2d 858 (Mo.
1993) (en banc) that counsels a contrary conclusion. In Lester, a case ultimately
remanded for a new trial, defendant Sayles asserted a due process void-for-vagueness
defense to section 408.040.2, claiming it was ambiguous as to whether the demand


                                         -14-
must come before or after the filing of a lawsuit. In response, the Missouri Supreme
Court held that the words, "a demand for payment of a claim or an offer of
settlement," placed no limits on when a plaintiff may make this offer. Id. at 873.
However, in its discussion, the court totally ignored the "[i]n a tort action" language
that commences and, time wise, frames the section. Further, under the facts of Lester,
"the offer of settlement was made approximately one year after the filing of the
lawsuit." Id. (emphasis added), not three months before. So, on the facts, the before-
after issue was moot.

       Further, the demand was sent to an insurance representative who had, because
of a deficiency in insurance coverage, no duty, obligation or means to affirmatively
respond to the demand. So, assuming for purposes of discussion, that the pre-action
demand or claim could somehow be construed to have been made in a tort action, an
insurance carrier with insufficient coverage to meet the "offer of settlement" cannot
be construed to be a representative under the intent and purposes of section
408.040.2.

       Missouri, somewhat uniquely in the present day, apparently does not assemble
a history of legislative intent. Nonetheless, Purdy Brothers cites various Missouri
statutes that recognize a distinction between a person's "insurer" and its
"representative." See, e.g., Mo. Ann. Stat. §§ 379.820.1 and 490.715.2. Purdy
Brothers also points out that section 408.040.2 was enacted as part of House Bill 700
in 1987. See 1987 Mo. Laws 792, 807-08. As part of the same bill, the Missouri
legislature enacted another provision that refers explicitly to a party's insurer and to
its authorized representative. See § 490.715.2. Thus, Purdy Brothers argues,
construing "representative" to include a party's insurer under section 408.040.2 is
inconsistent with the legislative act as a whole. See Hagely v. Bd. of Educ. of
Webster Groves Sch. Dist., 841 S.W.2d 663, 667 (Mo. 1992) ("Provisions of the
entire legislative act must be construed together and, if reasonably possible, all
provisions must be harmonized."). Finally, Purdy Brothers accurately points to

                                         -15-
instances when the Missouri legislature has distinguished between "agents" and
"representatives" and argues that, if the legislature wanted to permit service of
settlement demands on a party's "agent," it knew how to do so. See, e.g., Mo. Ann.
Stat. §§ 376.500, 376.510.

       Missouri law does not recognize an insurer's duty to defend (or presumably to
settle) beyond the applicable policy limits. See Millers Mut. Ins. Ass'n v. Shell Oil
Co., 959 S.W.2d 864, 867 (Mo. App. 1997). But here, the court would ignore the
policy limits of $1,000,000, and would ignore this limitation in duty, but would
impose prejudgment interest, reciting the supposition that Empire should have
tendered its coverage limits into the face of the larger demand before it could shed the
mantle of "representative" under section 408.040.2. This construction is totally at
odds with the plain language and clear intent of the prejudgment interest statute. The
legislation is obviously designed to penalize a party with assets or insurance coverage
sufficient to settle a claim asserted in a tort action, but who willfully refuses to do so.
The penalty is the imposition of prejudgment interest. Indeed, to activate the benefits
of section 408.040.2, Ms. Harris and her counsel had a duty to make an offer of
settlement directly to Purdy Brothers or Purdy Brothers' representative in the tort
action she filed. This was not done.

      Accordingly, I dissent.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -16-
