Deborah J. Newman and Terry Newman, Plaintiffs-Appellants, v. Ford Motor Company, Defendant-Respondent, CBS Redi-Mix and William McCoy, Defendants-Respondents. Deborah J. Newman and Terry Newman, Plaintiffs-Respondents, v. Ford Motor Company, Defendant-Appellant, CBS Redi-Mix and William McCoy, Defendants-Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Deborah J. Newman and Terry Newman, Plaintiffs-Appellants, v. Ford Motor Company, Defendant-Respondent, CBS Redi-Mix and William McCoy, Defendants-Respondents. Deborah J. Newman and Terry Newman, Plaintiffs-Respondents, v. Ford Motor Company, Defendant-Appellant, CBS Redi-Mix and William McCoy, Defendants-Respondents. Case Number: 20560 and 20573 Handdown Date: 12/19/1997 Appeal From: Circuit Court of Greene County, Hon. J. Miles Sweeney Counsel for Appellant: Thomas Strong, Clifton M. Smart III and James A. Burt Counsel for Respondent: Gary R. Cunningham, Craig Alden Smith, Theodore J. Boutrous, Jr., Mark A. Perry, John Wooddell and Jeffrey Bates Opinion Summary: None Citation: Opinion Author: Robert E. Crist, Special Judge Opinion Vote: AFFIRMED AS MODIFIED AND AMENDED. Prewitt and Barney, JJ., concur. Opinion: Defendant Ford Motor Company (Ford) appeals from a jury verdict finding it and Defendants CBS Redi- Mix, Inc. (CBS) and William McCoy (McCoy) liable, jointly and severally, for a multi-million dollar judgment to Deborah J. Newman (Plaintiff Wife) and Terry Newman (Plaintiff Husband) for personal injuries.(FN1) Plaintiff Wife filed a cross-appeal from the same jury verdict. On May 26, 1993, three vehicles were involved in a collision at the intersection of East-West Route D and North-South Missouri Highway 125 in Greene County, Missouri. One of the vehicles involved was a 1991 Mercury Tracer being driven in southerly direction by Sherry Davis and otherwise occupied by passengers in the right- front, left-rear, middle-rear, and right-rear seats. The Davis vehicle was stopped preparatory to making a left turn

at the intersection of the above referenced roads. None of these five persons received serious injuries in the accident. Plaintiff Wife was also driving south and stopped behind the Davis vehicle in a 1988 Ford Aerostar. The Aerostar was occupied by two passengers, one seated in the middle bench seat directly behind Plaintiff Wife and the other seated in the middle bench seat behind the front passenger seat. The two passengers were not seriously injured, but Plaintiff Wife was tragically injured and became a paraplegic after McCoy drove CBS's 1974 Mack dump truck into the rear of the Aerostar, causing it to collide with the Mercury. The dump truck was loaded with gravel and weighed approximately 53,000 pounds. The truck impacted the rear of the Aerostar at a speed of approximately 30-34 miles per hour, causing the Aerostar to accelerate from zero to approximately 28-32 miles per hour before impacting the Mercury. Upon impact, the Mercury accelerated from zero to approximately 25-29 miles per hour. Only Plaintiff Wife received serious injuries. Plaintiff Husband sued Defendants for loss of consortium. The case was submitted to a jury for negligence of the truck's driver and owner. It was submitted against Ford for defective seat design. The rear impact caused the seat cushion frame in the Aerostar driver's seat to crack from top to bottom near the reclining mechanism. This failure permitted the seat back to collapse rearward to a maximum angle of 60-65 degrees. Plaintiff Wife was propelled rearward and struck the middle bench seat with her shoulders. None of the other occupants' seats, in the Aerostar or Mercury, collapsed in the collision. The seat in which Plaintiff Wife was seated was a captain's chair with a head rest and a single recliner mechanism on the door side of the seat. The interior side of the seat had a pin connecting the seat back to the seat bottom. The primary support of the seat back was from the single recliner on the door side of the seat. The metal near the recliner mechanism had been thinned out in the production process (by design) creating a weak point in the system. This was the area torn in the collision. On February 23, 1995, Plaintiffs, CBS and McCoy entered into an agreement to limit Plaintiffs' recovery, if any, against CBS and McCoy to the proceeds from CBS and McCoy's insurance carrier, American States Insurance Company. The liability limit on the policy was $500,000.00. American States had already paid $31,376.02 to settle with all other possible claimants. This left $468,623.98 available to Plaintiffs if their verdict so warranted. Ford and the trial court were advised of such settlement, but the jury was not. CBS and McCoy have continued as Defendants to this date.

Ford submitted a comparative fault instruction to the jury. The jury found Plaintiff Wife to be five percent at fault for failure to wear her safety belt. It further found CBS and McCoy were 70% at fault and Ford 25% at fault. It assessed Plaintiff Wife's damages at $12,000,000.00 and Plaintiff Husband's at $500,000.00. After deducting Plaintiff Wife's proportionate fault, the total judgment to Plaintiff Wife against Ford, CBS and McCoy, jointly and severally, was $13,836,813.60, and the total judgment for Plaintiff Husband was $553,470.40. I. Comparative Fault for Failure of Plaintiff Wife to Wear a Safety Belt We will first address Plaintiff Wife's cross-appeal. She asserts that her failure to wear a safety belt at the time of the accident cannot be the basis for the comparative fault instruction submitted by Ford because section 307.178(FN2) prohibited the imposition of comparative fault to her because her injuries arose out of the operation of the Aerostar. We agree. Ford presented substantial evidence of Plaintiff Wife's contributory fault in failing to wear her safety belt. However, in Missouri, "failure to wear a safety belt . . . shall not be considered evidence of comparative negligence," but may be admitted into evidence for mitigation of damages. Section 307.178.3 (emphasis added). Ford maintains that Plaintiff Wife's action against Ford was for defective design and not for operation of an automobile. However, it would require a constrained construction of the statute to hold her injuries did not arise out the operation of the Aerostar. We give the words to a statute their plain and ordinary meaning, and we construe together provisions of the entire legislative act, trying to harmonize all of the provisions, if reasonably possible. Thoroughbred Ford, Inc. v. Ford Motor Co., 908 S.W.2d 719, 729 (Mo.App. 1995). The statute in question required Plaintiff Wife to wear a safety belt, but it also provided in her action to recover damages that her failure to wear a safety belt was not to be considered evidence of comparative fault, but could be admitted under certain circumstances to prove mitigation of damages. See section 307.178.3. Ford chose not to follow the mitigation provisions of the statute. Ford relies on LaHue v. General Motors Corp., 716 F. Supp. 407 (W.D. Mo. 1989) and several out-of- state cases which hold that injuries arising from accidents such as in the instant case are a result of products liability and not from the operation of an automobile. We are not bound by LaHue and believe our safety belt statute focuses on Plaintiff's conduct while operating a vehicle. Plaintiff Wife had no duty to wear a seat belt until she drove the Aerostar on a street or highway.

Missouri has never recognized a "safety belt defense." See Glasscock v. Miller, 720 S.W.2d 771, 776 (Mo.App. 1986); Miller v. Haynes, 454 S.W.2d 293, 300-01 (Mo.App. 1970). In 1985, section 307.178.2 was enacted and imposed a duty upon drivers to wear a seat belt. Further, with section 307.178.3, the General Assembly codified the rule against permitting the "safety belt defense" to be used for purposes of comparative fault. This subsection provides that evidence of the failure to wear a safety belt is admissible, but only for the purpose of mitigating damages by no more than one percent. The evidence is not admissible for the purpose of establishing comparative fault. See section 307.178.3. The error can be corrected without a new trial. The five percent fault assessed to Plaintiff Wife is re- allocated proportionately as follows: 1.32% fault to Defendant Ford Motor Company and 3.68% fault to Defendants CBS Redi-Mix and William McCoy. By this modification 26.32% fault is assessed to Defendant Ford Motor Company and 73.68% fault is assessed to Defendants CBS Redi-Mix and William McCoy. II. Failure to Inform the Jury that Plaintiffs Had Entered Into a Pre-trial Settlement Agreement with Defendants CBS Redi-Mix and McCoy Ford argues that the trial court's refusal to inform the jury that Plaintiffs had entered into a pre-trial settlement agreement with CBS and McCoy is reversible error. On February 23, 1995, the Plaintiffs, CBS and McCoy entered into an agreement to limit recovery to specified assets of these Defendants. The agreement was made pursuant to the authority of section 537.065.(FN3) During the trial, Ford sought unsuccessfully to disclose the terms of the agreement to the jury. After the trial, Ford challenged the good faith of the settlement agreement in order to avoid the provisions of section 537.060 relating to contribution. The trial judge held a hearing on the good faith question and determined the agreement was made in good faith. Eight people were injured as a result of the collision. Seven of the injured received relatively minor injuries, however, Plaintiff Wife's injuries were catastrophic. CBS and McCoy were covered by one insurance policy with limits of $500,000.00. Prior to the pre-trial settlement with Plaintiffs, CBS and McCoy had settled with all seven claimants for $31,567.02, leaving $468,432.98 available to Plaintiffs. Other than the insurance proceeds CBS and McCoy had limited assets. The pre-trial settlement agreement provided that Plaintiffs would not release CBS and McCoy, but would rather agree to execute only on the insurance coverage in the event of a verdict by Plaintiffs against CBS and McCoy. Further, CBS and McCoy agreed not to appeal any verdict rendered against them. Another law firm was

to, and did, take over the defense of CBS and McCoy. Ford and the trial court were at all times aware of this agreement. Judgment was entered against all Defendants on June 23, 1995. On October 2, 1995, Plaintiffs executed a release and settlement agreement pursuant to section 537.060 and pursuant to the pre-trial settlement agreement of February 23, 1995. Plaintiffs received $468,623.98, the limits under said policy and released CBS and McCoy. Ford asseverates that the pre-trial agreement was a "Mary Carter" agreement and that it was reversible error to not inform the jury of such agreement. Mary Carter agreements occur in multiparty litigation when fewer than all defendants settle with the plaintiffs.(FN4) Carter v. Tom's Truck Repair, Inc., 857 S.W.2d 172, 175 (Mo. banc 1993). "The term encompasses a wide variety of settlement arrangements that are 'limited only by the ingenuity of counsel and the willingness of the parties to sign.'" Id. (quoting Maule Indus., Inc. v. Rountree, 264 So. 2d 445, 447 (Fla.App. 1972), modified, 284 So. 2d 389, 390 (Fla. 1973)). The seminal issue in such agreements is whether a defendant did, or could have had, a fair trial. See generally id. at 176. Under some circumstances, failure to disclose such agreements could be reversibly erroneous per se. See id. But not so, here. In the absence of compelling reasons to disclose the existence of such agreement, such agreements should generally not be admissible. See Hackman v. Dandamudi, 733 S.W.2d 452, 458 (Mo.App. 1986). However, Missouri courts have declared that the decision whether to admit evidence of Mary Carter agreements should be analyzed on a case-by-case basis. Montgomery v. Farnsworth, 907 S.W.2d 174, 175 (Mo.App. 1995). In Montgomery, the court held the admission of such agreements was a matter of trial court discretion. Id. at 176. A trial court's discretion is abused only when the court's ruling runs against the logic of the circumstances then before the court and is so arbitrary and unreasonable so as to shock the sense of justice and indicate a lack of careful consideration. State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988). Because the trial court's ruling is discretionary it is presumed correct and an appellant bears the burden of showing an abuse of discretion. Id.; see also Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 816 (Mo. banc 1997)(where the burden of proving the reasonableness of the settlement was on the entity claiming the settlement was unreasonable). In the instant case, the trial court and Ford were aware of the agreement before trial. Objections were

made by Ford and considered by the court. A hearing was afforded Ford. We accept the decision of the trial court. The so-called Mary Carter agreement was entered into in good faith and Ford was not prejudiced by the failure to inform the jury of its existence. Ford has not met its burden in establishing an abuse of discretion. Point denied. III. Introduction of Evidence of Other Incidents in which Front Seat Vehicle Occupants Sustained Injuries in Rear-End Impacts as to Whether or not Those Incidents were Substantially Similar to the Subject Incident Newman Collision. A. Seat Belt Issue Ford proffers that Plaintiffs, and in one instance, CBS and McCoy, introduced, over Ford's repeated objections, inflammatory and prejudicial evidence of numerous incidents which were not substantially similar to the facts of the Newman collision. More specifically, Ford says the trial court erroneously admitted the following evidence: (1) expert testimony by Dr. Kenneth Saczalski concerning four specific rear impact accidents in which vehicle occupants were allegedly injured as a result of yielding front seats; and (2) lay testimony from five persons involved in rear impact accidents, two of whom were in wheelchairs as a result of spinal cord injuries. The issue of other incidents first arose during the testimony of Plaintiffs' expert, Dr. Saczalski. Plaintiffs announced their intention to question Dr. Saczalski about four specific collisions in which people were injured, allegedly as a result of yielding front seats, when Ford vehicles were rear-ended. The trial court allowed the parties, out of the presence of the jury, to question the witness about each incident. Without finding that they were substantially similar, the court ruled that Dr. Saczalski could testify regarding these four collisions and that it would issue a limiting instruction to the jury. Ford objected that a limiting instruction would be insufficient given "the prejudicial effect of these cases." The court then brought in the jury and gave the following instruction: Ladies and gentlemen, in the coming testimony the witness is going to discuss some other accidents . . . by talking about actual events. Once again it's my instruction to you that this is limited to the issue of seat belt [use] and whether somebody can or is less likely or more likely to be ejected while they're wearing their seat belt. We have not established that these other accidents are substantially similar as far as the type of defect or the type of seat or anything like that. We're all talking now about the issue of seat belts and how that affects ejectment. (Emphasis added.) Dr. Saczalski then testified about the four collisions. Later in the trial, Plaintiffs announced their intention to call Mr. Joe Buster to the stand. Ford objected on the ground that his testimony would be cumulative of Dr. Saczalski's and that his quadriplegia would render his

testimony more prejudicial than probative. The trial court overruled Ford's objection. Mr. Buster testified that the vehicle was struck from the rear by a large truck and "[t]he seat actually broke into a reclining position and from there I was -- I had slid out of the seat and hit my head on the back seat frame and it caused a compression fracture to [the fifth cervical vertebra]." Plaintiffs also sought to introduce the videotaped deposition of Mr. Frank Zuern. Ford objected that "[t]he circumstances of Mr. Zuern's accident are not substantially similar to the subject accident" and, therefore, "this testimony will be unduly prejudicial to Ford and it's being improperly admitted because it doesn't meet the standard which is necessary for it to be shown." The trial court overruled Ford's objection. Mr. Zuern testified that after the collision, he was "reclined back, laying on top of the seat." Plaintiffs also showed photographs of the seat after the collision. Plaintiffs also called Ms. Lydia Carillo, who suffered a spinal cord injury when her Ford vehicle was rear- ended. Ford objected that "continuing to parade people who have spinal cord injuries in this courtroom is so prejudicial to Ford Motor Company that it outweighs any possible probative effect . . . and there's no relevance here when they haven't established substantial similarity." Plaintiffs responded that "the only similarity that's relevant on this issue [is]: "I was in a car. I was hit from the rear. My seat collapsed. I was wearing the seat belt and I ramped out." The court overruled Ford's objection. Mrs. Carillo testified that she was driving a Ford Explorer that was struck from the rear, that her seat "collapsed," and that she was thrown into the passenger seat, hitting her head and causing spinal cord trauma. Later in the trial, Plaintiffs offered the video-taped deposition testimony of Mr. Arvill Smith, who was rear- ended while driving an Aerostar. Ford objected because "this testimony is unduly prejudicial and because of the lack of substantial similarity it is improper to be admitted." The court overruled Ford's objection. Mr. Smith testified that when his vehicle was struck, "[t]he seat back collapsed, and I slid underneath the seat belt into the back seat. I ended up with my head and shoulders on the floor of the van, my buttocks on the back of the seat, and my legs underneath the seat belt." Plaintiffs also displayed photographs of the Aerostar and the seat. Plaintiffs then elicited direct testimony of five other incidents in which vehicle occupants allegedly were injured in rear-end collisions as a result of yielding front seats. Three of these cases were the subject of both expert and lay testimony. Two of the witnesses were in wheelchairs as a result of the injuries they had sustained. This evidence was introduced in Plaintiff's case-in-chief. The trial court admitted the evidence on the limited issue of whether a belted occupant can ramp out from under a seat belt in a rear impact collision.

The seat belt issue was first injected in the case in Ford's answer where it alleged that Plaintiff Wife was negligent for failing to wear her seat belt, and that such failure caused or contributed to cause her injuries. Ford's position was that seat belts prevent occupants from ramping into the rear seat even if the seat collapses in a rear- end collision, and that had she been wearing a seat belt she would not have been paralyzed. Ford reiterated its position in its opening statement. Plaintiffs' position was that Plaintiff Wife was wearing a seat belt, but even if not, seat belts do not restrain front seat occupants in rear impact collisions because the occupants ramp out from under the belt when the seat collapses rearward. Both parties presented evidence supporting their positions. The evidence of other accidents by Dr. Saczalski and the lay witnesses was not substantially similar to the Newman accident insofar as showing Plaintiff Wife's seat was defective. But evidence of the other accidents was admissible for the limited purpose offered regarding the seat belt issue. Dr. Saczalski testified about four rear impact accidents wherein the front seats had collapsed and the belted occupants had slid from under their seat belts causing severe injuries. The five lay people were involved in rear impact collisions where the seat collapsed and a person ramped out from a fastened seat belt causing severe injuries. The evidence was admissible as being substantially similar on the limited seat belt issue in that the trial court issued a limiting instruction to the jury prior to the introduction of the complained of evidence. Evidence which is admissible for one purpose may not be excluded because it is inadmissible for another purpose. Martin v. Durham, 933 S.W.2d 921, 924 (Mo.App. 1996). When evidence is admissible on one issue but not on another, a limiting instruction is appropriate if requested by the interested party. Id. Trial courts have wide discretion on issues of admissibility of evidence of similar occurrences. Richardson v. State Hwy. & Transp. Comm'n, 863 S.W.2d 876, 881 (Mo. banc 1993). Point denied. B. Defective Seat Issue Ford also complains about the admission of evidence of other accidents in Plaintiffs' rebuttal as follows: (1) expert testimony by Mr. William Muzzy concerning three different accidents in which vehicle occupants were allegedly injured or killed as a result of yielding seats; and (2) expert testimony by Mr. Mark Pozzi, who testified about 15 additional specific incidents in which yielding seats allegedly caused injury or death. Plaintiffs called Mr. Muzzy as a rebuttal expert. Plaintiffs asked him about several specific incidents. The trial court overruled Ford's objection based on "foundation and lack of similarity." Mr. Muzzy testified about one case in which a passenger in a Chevette "was launched into the rear seat" and "hit her back of her head onto the top of the seat back, flexing her seat, her head forward, breaking her neck here and she's now a quad." Mr.

Muzzy testified about another case in which a Ford Tempo was struck from the rear, the driver's "[s]eat back collapsed and she was ejected out the rear window and was killed." Mr. Muzzy further testified about a case in which two sailors were driving with their dates; the car spun and hit a tree, "[t]he driver's seat collapsed" and "[h]e was severely injured in that one with neck injuries," rendering him a quadriplegic. The expert witness called by CBS and McCoy, Mr. Pozzi, also testified about other incidents. In the first case about which Mr. Pozzi testified, "[t]he belted driver was ejected into the rear of the occupant compartment and struck her neck and head on the parcel shelf . . . . [H]ad she lived, she'd have been a quadriplegic." In another, "both of the occupants went through the back window and slammed their heads in the bolted-on toolbox," resulting in closed-head injuries. The next involved an Escort: "Her [the driver's] seat collapsed. She went rearward. She lost control and when [the car] veered into the oncoming lane and got hit on the passenger side by a large passenger car and she received some very severe injuries." Mr. Pozzi further testified regarding a Ford station wagon: "[T]he male occupant in the right front seat, his seat back collapsed and he crushed the adult woman sitting behind [him] . . . and that killed her." Another case involved a Ford pickup: "[A]ll three occupants went back and slammed their heads into the rear bulkhead of the cab . . . . [The passenger] incurred a closed head injury and died . . . ." In yet another case, "the seat collapsed and the driver went back and struck his head in the rear part of the vehicle and had fatal injuries from skull fractures at the back of his head." Mr. Pozzi's litany of collisions continued for some time. He testified about a case in which the driver's "seat collapsed, causing a loss of control. She veered into the median. The vehicle went sideways, rolled over, the roof collapsed causing the door latch to fail. It was a door mounted seat belt and when the door opened it pulled her out of the car. She was ejected and killed." In another case the car hit a tree; the driver's "seat collapsed and twisted . . . . He went through the back window and struck his head on the tree trunk and he was rendered quadriplegic . . . ." In a collision on the freeway, "[t]he seat failed and the driver went away from the controls, lost control of the vehicle and the vehicle proceeded to roll over and he received very severe injuries as a result of the rollover." In another case in which a car spun out of control, Mr. Pozzi testified that "[i]t was a combination of seat back collapse and seat belt buckle failure. And the man has a very severe mid thoracic complex of fractures." Another man was driving a Suburban: [H]is seat failed and incurred a permanent neck injury as a result of the seat collapsing." In another case, "a subcompact Nissan was rear-ended and the driver's seat collapsed . . . .

[H]e had severe fractures to the cervical spine and is rendered quadriplegic." Another vehicle spun rearwards into a tree, "[a]nd the occupant went back and slammed into the tailgate and was rendered paraplegic." Finally, Mr. Pozzi testified about a Tercel that was rear-ended: The driver's "seat collapsed and he went into the back of the car and there was [an] exposed prop rod for the glass hatchback . . . and he hit that in this area and it punched through his skull and he was rendered paralyzed on one side." In reviewing the trial court's determinations regarding evidence of other incidents, this Court must ensure that the trial court "satisfied itself that the evidence was relevant . . . and that the occurrences bore sufficient resemblance to the injury-causing accident, while weighing the possibility of undue prejudice or confusion of issues." Pierce v. Platte-Clay Elec. Co-op., Inc., 769 S.W.2d 769, 774 (Mo. banc 1989). With respect to the defective seat issue, Plaintiffs contended the Ford seat back was far too weak and should not have broken in the collision, that production seats that collapse are extremely dangerous, and that very inexpensive alternative designs have been available for years. Ford took the position that Plaintiff Wife's seat performed as it was designed to perform, that all production seats, including the one at issue (with rare exceptions) are similarly designed to collapse rearward in a rear impact collision, and these collapsing production seats are responsible for very few severe injuries in the real world of rear impact collisions. Ford lumped all yielding (production) seats together in a class for comparison, starting with its opening statement and continued to do so throughout the trial. Prior to Plaintiffs' presentation of the complained of rebuttal evidence, in order to demonstrate the safety of production seats like that found in Plaintiffs' vehicle, Ford spent several days of trial presenting evidence showing that all production seats were similarly identical. During this time, Ford introduced like-kind evidence, lumping together production seats in a class for purposes of comparison. This was consistent with Ford's opening statement which, in part, recited: The truth of the matter is that the seats here, which really will be the focus of the claim against Ford Motor Company, the seats here performed like other production seats. * * * And I say productions seats generally. I'm not talk [sic] about Ford seats. Yes, they perform that way, Ford seats from the Escort to the Continental. * * * I'm talking about the seats of all production vehicles. * * * So the truth of the matter is again that there's nothing unique about these seats in the Ford vehicle and they perform as other seats in other cars and we'll show you about that in just a moment and through the testimony.

* * * [A]nd our experts will show you that the seats here performed like other seats in other cars. The evidence included: (a) Ford Taurus crash tests, wherein production seats were compared with rigid seats; (b) fuel system integrity tests run on a Mercury Sable, a Ford Crown Victoria, a Bronco II and a Lincoln Continental, each equipped with production seats; (c) statistical data from nation-wide data bases involving a wide variety of cars in all types of rear-end collisions to show that all production (collapsing) seats are safe and not defective; (d) seat strength test data on ninety-four other cars made by other manufacturers; and (e) crash films on a variety of cars, including a 1986 Yugo, a 1987 Nissan Sentra, a 1986 Mazda 323, a 1985 Dodge Colt, a 1985 Subaru DL, and a 1986 Toyota Celica ST. Ford contends that in either event Plaintiffs did not object to its introduction of evidence on the frequency of occurrence of severe injury rear impact accidents. Whether Ford objected or not, however, Plaintiffs were entitled to counter this evidence on rebuttal. This is because Ford had defined the parameters of substantial similarity by comparing a very wide variety of rear impact collisions, without regard to the type of vehicle, type of seat belt, type of seat, or type of collision forces. Ford made the frequency of occurrence of severe injury rear impact accidents an issue, and the trial court was within its discretion in permitting the testimony of Messieurs Muzzy and Pozzi, in order to refute the inferences raised by Ford's evidence. Deveney v. Smith, 812 S.W.2d 810, 812-13 (Mo.App. 1991); see also City of Joplin v. Flinn, 914 S.W.2d 398, 400 (Mo.App. 1996)(a party who opens up a subject is held either to be estopped from objecting to its further development or to have waived his right to do so); Pettet v. Bieterman, 718 S.W.2d 188, 191 (Mo.App. 1986)(where the defendant raises the frequency of occurrence as an issue, the plaintiff can present other incident evidence to refute the inferences raised by defendant's evidence). Point denied. IV. The Instruction Defining "Unreasonably Dangerous" Ford complains of the trial court's rejection of its proposed instruction which provided "[t]he phrase 'unreasonably dangerous' as used in these instructions means that the utility or usefulness of the product was outweighed by its risks." The trial court instructed the jury that Ford was liable for Plaintiff Wife's injuries if the jury found "the driver's seat in the Ford Aerostar van was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use." Plaintiffs followed MAI. The law at the time of trial was that Ford's proposed definition was not to be given

and the issue of the unreasonable dangerousness of a product was to be submitted to the jury as an ultimate issue. Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 378 (Mo. banc 1986); see also Wilson v. Danuser Machine Co., Inc., 874 S.W.2d 507, 512-13 (Mo.App. 1994). Point denied. V. Testimony of Plaintiffs' Medical Economist, Dr. Harold Goldstein Ford opines that the trial court erred in refusing to strike or exclude the testimony of Dr. Harold Goldstein in that his method for calculating present value estimates the real rate of growth as 3.29% by using the Gross National Product (GNP) for approximately the last 40 years as a surrogate. Further, Ford asserts, this GNP methodology was not generally accepted in any scientific community, as required by Alsbach v. Bader, 700 S.W.2d 823, 828 (Mo. banc 1985). This point must be denied for the reason Dr. Goldstein did not rely exclusively on the GNP. His methodology was based on the historical trend of the Medical Consumers Price Index (MCPI), the Congressional Budget Office Forecasts for Future Medical Cost Increases, and the GNP. While using the GNP in his methodology, he went to great lengths to explain that the GNP was one of many criteria used by him in forming his opinion. To paraphrase Firestone v. Crown Ctr. Redev. Corp., 693 S.W.2d 99, 109 (Mo. banc 1985), Dr. Goldstein's testimony was for the jury. He was cross-examined on a variety of subjects, including the growth rate. Ford offered its own economic expert, who opted for a lower growth rate. The jury could evaluate the conflicting opinions of the two economists. The jury could understand the GNP, the MCPI, and the Congressional Budget Office forecasts. Dr. Goldstein's testimony met the requirements of section 490.065 on opinion testimony of expert witnesses.(FN5) Point denied. VI. Reallocation Ford asserts reversible error in the trial court's refusal to reallocate the judgment pursuant to section 537.067.2 in that the jury found Plaintiff Wife five percent at fault and the judgment attributed by the jury to CBS Redi-Mix and McCoy uncollectible. This point relied on is moot in lieu of our holding herein that Plaintiff Wife was not at fault as alleged by Ford. See Part I., supra. VII.

Interest Calculation A. Ford objects to the award of prejudgment interest to Plaintiff Husband, in that Plaintiffs jointly agreed to settle for the sum of $1,999,999.00 and the judgment for Plaintiff Husband was $500,000.00 or $1,499,999.00 less than the joint demand. The judgments for both Plaintiffs were in the total sum of $12,500,000.00. See section 408.040. Section 408.040 provides generally that where a claimant has made a settlement demand for payment of a claim, which was rejected, and the amount of a subsequent judgment exceeds the demand payment, then prejudgment interest shall be awarded to claimant on the entire amount of the judgment. See section 408.040.2; Lester v. Sayles, 850 S.W.2d 858, 873 (Mo. banc 1993). Lester, 850 S.W.2d at 872 and Amador v. Lea's Auto Sales & Leasing, Inc., 916 S.W.2d 845, 855 (Mo.App. 1996) suggest that settlement demands should be separated as between multiple claimants. In the instant matter, Plaintiffs' settlement demand was not separated between Plaintiff Wife and Plaintiff Husband. We note, however, that section 408.040 does not purport to require multiple claimants, joined in one lawsuit, to separate or distinguish their respective settlement demands. See section 408.040. Further, notwithstanding Lester and Amador, our supreme court has held that multiple plaintiffs could combine demands on multiple claims into a single sum. Call v. Heard, 925 S.W.2d 840, 854 (Mo. banc 1996). Here, Ford did not accept the offer of Plaintiffs to settle and their subsequent judgment exceeded their former demand for payment. It would require conjecture and speculation, on our part, to conclude that if Plaintiffs' one settlement demand had been separated into two demands that Plaintiff Husband's demand would have exceeded $500,000.00, the amount of his judgment, which would preclude his right to prejudgment interest under the statute. See section 408.040.2. In Lester, the supreme court rejected a similar argument to the one Ford offers by holding that "[a]lthough we can assume that this offer was intended to dispose of the claims of both claimants, any attempt to apportion the offer between the two plaintiffs is entirely speculative." Lester, 850 S.W.2d at 872. Accordingly, Plaintiff Husband was entitled to prejudgment interest on his loss of consortium judgment. B. Ford also objects to the inclusion of prejudgment interest in the total amount of each Plaintiff's judgment, allowing post-judgment interest to accrue on the total amount. Ford argues this constitutes compound interest

because post-judgment interest is awarded on prejudgment interest. We note that section 408.040 provides that interest shall be allowed on the entire judgment from the date it is rendered. See section 408.040.1. The United States Supreme Court has determined that prejudgment interest is considered an award of damages. Greene County v. State, 926 S.W.2d 701, 704 (Mo.App. 1996)(citing Missouri v. Jenkins, 491 U.S. 274, 281, 109 S.Ct. 2463, 2468, 105 L.Ed.2d 229, 238 n.3 (1989)). Prejudgment interest is awarded on the theory that it is necessary to give full compensation for the loss sustained. Green Acres Enterp., Inc. v. Freeman, 876 S.W.2d 636, 641 (Mo.App. 1994). On the other hand, post-judgment interest is awarded on the theory that it is a penalty for delayed payment of the judgment. Id.; Boatmen's First Nat'l Bank of Kansas City v. Bogina Petro. Engineers, 794 S.W.2d 703, 705 (Mo.App. 1990); see also Chambers by Abel v. Rice, 858 S.W.2d 230, 232-33 (Mo.App. 1993). Thus, in the instant matter, the award of prejudgment interest became an element of Plaintiffs' damages and a part of the judgment. See id. Point denied. VIII. Dismissal of Ford's Cross-Claim for Contribution against Defendants CBS Redi-Mix and McCoy Ford asserts that the "Contract to Limit Recovery to Specified Assets Pursuant to R.S.Mo. section 537.065 and Settlement Agreement" executed on February 23, 1995, by and between Plaintiffs and CBS and McCoy pursuant to section 537.065, was insufficient to bar Ford's cross-claim against the other two Defendants. And that being so, the "Release and Settlement Agreement Pursuant to Missouri Revised Statute section 537.060" executed by the same parties on October 2, 1995, was not a bar to Ford's contribution claim because the latter was executed after the rendition of judgment on June 23, 1995. As stated in Part II., supra, the terms of the pre-trial February 23, 1995 agreement included a promise by Plaintiffs to satisfy any judgment obtained against CBS and McCoy from applicable insurance policies. The agreement was made in good faith under section 537.065 and was approved by the trial court. Other pertinent facts are: (1) Judgment was entered on June 23, 1995. (2) On August 29, 1995, the trial court dismissed Ford's cross-claim for contribution from the other two Defendants. (A) This ruling was based on the trial court's determination that the February 23, 1995, pre-trial agreement mandated such action. (3) On October 2, 1995, while Ford's motion for new trial was still pending, Plaintiffs executed a release of all claims against the other two Defendants in exchange for payment of $468,623.98 to Plaintiffs and a payment of $14,956.10 for court costs. This release was made pursuant to the February 23, 1995

agreement. (4) On October 10, 1995, Plaintiffs filed an affidavit showing settlement, along with a copy of the release. Ford took no action with reference thereto. (5) Ford's motion for new trial was finally determined on October 19, 1995. Section 537.060 provides in relevant part: When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death . . . [t]he agreement shall discharge the tort-feasor to whom it is given from all liability for contribution or noncontractual indemnity to any other tort-feasor. The release so executed on October 2, 1995, was a concomitant part and conclusion to the pre-trial February 23, 1995 agreement. The mere fact that the release was a post judgment release is of no import, as is fully explained in Callahan v. Cardinal Glennon Children's Hosp., 901 S.W.2d 270, 273-76 (Mo.App. 1995). The February 23, 1995, settlement agreement and the October 2, 1995, release were carefully drawn so as to be within sections 537.060 and 537.065. Point denied. The judgment is hereby amended to provide that zero percent fault is assessed to Plaintiff Wife, and the 5% fault assessed by the jury to Plaintiff Wife is reallocated as follows: 1.32% fault to Ford and 3.68% fault to CBS and McCoy. By this amendment, 26.32% fault is assessed to Ford and 73.68% fault is assessed to CBS and McCoy. The judgment is further amended to provide the net damages to Plaintiff Wife is $12,000,000.00 instead of $11,400,000.00. The judgment is further amended to provide Plaintiff Wife's prejudgment interest is $1,982,465.74 (670 days x 2958.9041), instead of $1,883,343.20.(FN6) The total amount of Plaintiff Wife's judgment, as amended, is $13,982,465.70. The judgment is further amended to provide the net damages to Plaintiff Husband is $500,000.00 instead of $475,000.00. The judgment is further amended to provide Plaintiff Husband's prejudgment interest is $82,602.69 (670 days x 123.2876), instead of $78,470.40. The total amount of Plaintiff Husband's judgment, as amended, is $582,602.69. The judgment, in all other respects, is affirmed. Footnotes: FN1. Deborah J. Newman and Terry Newman are also referred to jointly herein as "Plaintiffs." FN2. All statutory references are to RSMo 1994, unless otherwise indicated. FN3. Section 537.065 provides, in part:

Any person having an unliquidated claim for damages against a tort-feasor, on account of bodily injuries or death, may enter into a contract with such tort-feasor or any insurer in his behalf or both, whereby, in consideration of the payment of a specified amount, the person asserting the claim agrees that in the event of a judgment against the tort-feasor, neither he nor any person, firm or corporation claiming by or through him will levy execution, by garnishment or as otherwise provided by law, except against the specific assets listed in the contract and except against any insurer which insures the legal liability of the tort-feasor for such damage and which insurer is not excepted for execution, garnishment or other legal procedure by such contract. Section 537.065. FN4. The term is derived from Booth v. Mary Carter Paint Co., 202 So. 2d 8 (Fla.App. 1967). FN5. Section 490.065 provides, in part: In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Section 490.065.1. FN6. On June 22, 1993, pursuant to section 408.040.2, Plaintiffs offered to settle their claims against Ford Motor Company. Their offer remained open for acceptance for 60 days. The judgment was entered against Ford Motor Company on June 23, 1995. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.