ROSLYN BARNES v. ATHENE ANNUITY LIFE ASSURANCE COMPANY ET AL (2026)

Roslyn Barnes appeals the circuit court's judgment in favor of Athene Annuity & Life Assurance Company (“Athene”) on her petition for damages, in which she alleged she contracted mesothelioma due to asbestos exposure during her employment with Athene's predecessor. She contends the circuit court erred in overruling her motion for a directed verdict on Athene's workers’ compensation exclusivity affirmative defense; submitting the instruction for the workers’ compensation exclusivity defense because it was not supported by the evidence and was erroneous; and allowing Athene to present undisclosed expert opinion testimony. For reasons explained herein, we affirm.

Factual and Procedural History

Barnes worked for Business Men's Assurance Company of America (“BMA”) from 1976 to 1980. On July 25, 2019, she was diagnosed with asbestos-related disease, including mesothelioma. She filed a workers’ compensation claim against Athene, BMA's successor in interest, on October 17, 2019, in the Division of Workers’ Compensation (“Division”). She then filed a civil lawsuit for damages against Athene in the circuit court on February 5, 2020.

In its answer to Barnes's civil petition, Athene asserted the affirmative defense of workers’ compensation exclusivity pursuant to Section 287.200.4.¹ Under Section 287.200.4, an employer may elect to have employees’ claims of work-related mesothelioma covered by the exclusivity provision of the Workers’ Compensation Law by purchasing workers’ compensation insurance with specific coverage for those types of claims. Barnes v. Athene Annuity & Life Assurance Co., 681 S.W.3d 549, 552 (Mo. App. 2023). If an employer does not make this election, the exclusivity provision does not apply, and the employee may pursue a civil suit. Id.

Athene moved for summary judgment, asserting it had obtained the workers’ compensation insurance required to trigger the exclusivity defense. Athene attached to the motion a workers’ compensation insurance policy from its insurer, Pacific Indemnity Company, a wholly owned indirect subsidiary of Chubb Limited (collectively, “Chubb”), effective from October 2, 2018, to October 2, 2019. Athene asserted the relevant date for coverage for purposes of establishing exclusivity was the date of Barnes's diagnosis, July 25, 2019.² Id. Athene also contended it had a policy in effect when Barnes filed her claim on October 17, 2019, but it did not produce a copy of the policy. Id. The circuit court denied Athene's summary judgment motion, finding there was a genuine issue of material fact as to whether Athene had the requisite policy in effect on October 17, 2019. Id.

Athene filed a second summary judgment motion, this time attaching its 2019-2020 workers’ compensation insurance policy and a coverage binder for the 60-day period starting October 2, 2019. Id. at 552-53. The circuit court granted Athene's summary judgment motion on June 2, 2022, ruling the undisputed facts showed Athene had a workers’ compensation policy covering claims for enhanced mesothelioma benefits under Section 287.200.4(3). Barnes, 681 S.W.3d at 554.

We reversed this decision on appeal, however, after finding the 2019-2020 insurance policy and coverage binder were not properly authenticated because the affidavit purporting to authenticate the documents was from Athene's insurance broker and not a Chubb employee. Id. at 556-57. Additionally, we found factual issues remained as to whether Athene accepted the renewal of the policy and whether the policy, which was issued on November 12, 2019, actually covered Athene's liability for Barnes's October 17, 2019 claim. Id. Because the record did not “conclusively establish that Athene had valid workers’ compensation insurance coverage in place for enhanced mesothelioma benefits on the date Barnes filed her workers’ compensation claim,” we remanded the case to the circuit court for further proceedings. Id. at 558. On remand, Athene filed a third motion for summary judgment. The circuit court never ruled on Athene's motion, however, because Barnes did not file her response until several days after the jury trial on her civil suit began.³

Meanwhile, in the workers’ compensation case, Athene's attorney, T.C., sent a copy of the mesothelioma endorsement from the 2019-2020 insurance policy to Barnes's attorney to verify Athene's insurance coverage. T.C. also filed a second amended answer in the workers’ compensation case in the Division. In the answer, T.C. listed Chubb as Athene's insurance carrier and checked the box indicating that Athene had insured its liability for mesothelioma claims. According to T.C., Barnes's workers’ compensation case is still pending in the Division but is on hold awaiting the outcome of her civil suit.

Trial in Barnes's civil suit was held in September 2024. At trial, both parties presented evidence regarding whether Barnes's mesothelioma was caused by asbestos exposure during her employment with BMA and whether Athene had properly secured enhanced mesothelioma benefits such that Barnes's civil suit was barred by the workers’ compensation exclusivity provision. The court submitted Barnes's claim for damages under theories of general negligence and unsafe workplace. The court also instructed the jury on Athene's exclusivity affirmative defense.

The jury returned a general verdict form in favor of Athene, and the court entered judgment on the jury's verdict. Barnes filed a motion for new trial, which was denied. Barnes appeals. Additional facts will be provided as necessary to address the points on appeal.

Analysis

In Point I, Barnes contends the circuit court erred in overruling her motion for directed verdict on Athene's exclusivity affirmative defense. Barnes failed to preserve this issue by not filing a motion for JNOV. “To preserve a jury-tried issue for appellate review, a party must include the issue in both a motion for directed verdict at the close of all evidence, if the defendant puts on evidence, and in a motion for JNOV.” Moody v. Dynamic Fitness Mgmt., Ltd., 707 S.W.3d 610, 615 (Mo. banc 2025) (citation omitted). “Without a motion for JNOV, the circuit court is never asked to set aside the verdict on the basis it should have sustained the motion for directed verdict.” Id.

Barnes's motion for new trial, which asserted as error the court's denial of her motion for directed verdict, cannot be considered a motion for JNOV.⁴ The motion stated it was a motion for new trial under Rule 78.04 and did not mention a motion for JNOV or Rule 72.01(b). Id. at 616. We will not construe her new trial motion's broad prayer requesting “such other and further relief as the Court deems just and proper under the circumstances” as a motion for JNOV, because doing so would “render meaningless Rules 72.01(b) and 78.01 and the distinct purposes of motions for new trial and motions for JNOV.” Id. at 617. It would also require us to disregard Barnes's “motion title, rule reference, and specific request for relief and become an advocate for [Barnes],” which we will not do. Id. Because Barnes did not preserve for appellate review the denial of her motion for directed verdict on Athene's exclusivity affirmative defense, we deny Point I.

Barnes's Points II and III concern Instruction No. 13, which submitted Athene's exclusivity affirmative defense instruction to the jury. Instruction No. 13 stated:

Your verdict must be for Defendant Athene if you believe:

First, [Chubb] offered to insure defendant's liability for workers’ compensation benefits for mesothelioma claims in exchange for defendant's payment of the premium, and

Second, on or before October 17, 2019, defendant accepted [Chubb]’s offer, and

Third, [Chubb] issued an insurance binder that included an endorsement for enhanced benefits for individuals diagnosed with mesothelioma.

In Point II, Barnes argues the circuit court erred in giving this instruction because Athene failed to present sufficient evidence to establish her claim was covered by workers’ compensation insurance at the time she filed it. We review the court's decision to submit the instruction de novo. Schultz v. Great Plains Trucking, Inc., 707 S.W.3d 570, 578 (Mo. banc 2025). Viewing the evidence in the light most favorable to the instruction's submission, we must determine whether there was substantial evidence from which the jury could reasonably find the issue submitted in the instruction. Id.

In Barnes's first appeal following the entry of summary judgment in this case, we discussed what Athene was required to show to support its exclusivity affirmative defense. We noted the “Supreme Court has made clear an employer wishing to avail itself of the protections of section 287.200 must take an affirmative act to elect to accept enhanced liability for mesothelioma benefits under the Workers’ Compensation Act.” Barnes, 681 S.W.3d at 555 (citing Hegger v. Valley Farm Dairy Co., 596 S.W.3d 128, 133 (Mo. banc 2020)).⁵ Section 287.200.4(3)(a) provides that one of the ways employers may elect to accept mesothelioma liability is by “insuring their liability.” Id. at 555 n.3. We found the phrase “insuring their liability” means “employers have in place valid insurance coverage for the employee's mesothelioma-related injuries, not just a policy that may or may not cover the employee's injury.” Id. We explained the importance of this distinction:

This distinction is important because it not only determines who, as between the employer and the workers’ compensation insurer, is responsible for the workers’ compensation damages related to the employee's injuries, but also determines the employee's available remedies and whether she is limited to the recovery provided under the Workers’ Compensation Law or can bring a civil action for damages.

Id. To meet its burden to show it had “insured [its] liability,” we held Athene had to prove it had valid enhanced mesothelioma workers’ compensation insurance in effect that would cover its liability for Barnes's injuries when she filed her workers’ compensation claim on October 17, 2019. Id. at 558.

At trial, Athene presented evidence concerning how and when it secured mesothelioma coverage for 2019-2020. Athene's insurance broker, J.B., testified via video deposition that Athene directed him on October 4, 2019, to “proceed with binding” Athene's insurance program.” J.B. testified Athene's “insurance program” included Chubb's workers’ compensation insurance policy. J.B. confirmed to Athene he would “proceed with instructing carriers accordingly” and “invoice all lines of coverage for full pay at inception.” Athene then confirmed it would pay in full at inception. J.B. does not personally collect the premiums from his clients, but he would be notified if a client had not paid its premiums. J.B. did not receive any notification that Chubb ever canceled Athene's 2019-2020 workers’ compensation insurance policy for nonpayment and, in fact, he helped Athene renew the policy in the fall of 2020 and the fall of 2021.

Chubb's records custodian, B.C., who has worked for Chubb for 16 years, testified via video deposition that Chubb issued a coverage binder to Athene on October 4, 2019. Chubb's cover letter attached to the coverage binder stated the binder was valid for 60 days, and the effective date of the policy described in the binder was October 2, 2019. B.C. explained the purpose of the coverage binder was to provide Athene proof that coverage was in place until Athene received the full policy. B.C. testified Athene's coverage binder included coverage for additional mesothelioma benefits in Missouri, as the binder expressly stated:

The Missouri Notification of Additional Mesothelioma Benefits Endorsement is part of the binder and policy. If you choose to reject the Additional Benefits provided under Section 287.200.4, subdivision (3) of the Missouri Revised Statutes, you must notify us as soon as possible by completing and executing the Rejection of Additional Mesothelioma Benefits form. Please contact your Chubb Underwriter for a copy of this Rejection Of Additional Mesothelioma Benefits form in the event you are rejecting such Additional Benefits.

(Emphasis in original.) The full policy, issued on November 12, 2019, also contained the Missouri Notification of Additional Mesothelioma Benefits Endorsement. It stated, in pertinent part:

Section 287.200.4, subdivision (3) of the Missouri Revised Statutes provides additional benefits in the case of occupational diseases due to toxic exposure that are diagnosed to be mesothelioma and result in permanent total disability or death. Your policy provides insurance for these additional benefits.

If you reject liability for mesothelioma additional benefits provided under Section 287.200.4, subdivision (3), of the Missouri Revised Statutes, you must notify us of this election. Once you notify us, we will endorse this policy to exclude insurance for these additional benefits. If you reject liability for mesothelioma additional benefits, the exclusive remedy provisions under Missouri Revised Statutes Section 287.120 shall not apply to your liability for mesothelioma additional benefits.

(Emphasis added.) The endorsement in the policy stated it was effective on October 2, 2019, two weeks before Barnes filed her claim on October 17, 2019.

Barnes argues this evidence was insufficient to submit the exclusivity affirmative defense instruction to the jury because “potential coverage issues” remained, including: Athene had no physical workplace, employees, or payroll in Missouri; Barnes's claim occurred before Athene paid the premium for the 2019-2020 policy; and Athene did not report Barnes's claim to Chubb until February 7, 2020. B.C. addressed these issues in his testimony. Specifically, he testified having no payroll or employees in a state would not preclude coverage, and he has seen situations in which commercial insureds like Athene have workers’ compensation coverage in a state even though they do not currently have employees in the state. B.C. testified it was not unusual for commercial insureds to pay the premium after the policy was issued, and “coverage would go back to the effective date of the policy.” B.C. further testified that, while Chubb would want to know of pending claims during the renewal process and be promptly notified of claims, it is not uncommon for claims to be reported “quite a while after they actually occurred” and, to his knowledge, Chubb has never denied coverage for a claim that “wasn't reported soon enough.” While these “potential coverage issues” precluded summary judgment on Athene's exclusivity affirmative defense, they were disputed factual issues at trial that could be resolved by the jury; thus, their existence did not preclude the submission of the affirmative defense instruction.

Additionally, Barnes argues B.C.’s testimony that he was “unable to confirm” whether her claim was covered was fatal to Athene's assertion of the exclusivity defense. B.C. testified he could not confirm coverage for Barnes's specific claim because he does not work in the claims department, is not a lawyer, and would defer to the claims department and the courts to make that determination. To be entitled to the exclusivity defense under Section 287.200.4(3)(a), Athene needed to confirm it had coverage for its liability for Barnes's claim. Chubb's 2019-2020 coverage binder, full policy, J.B.’s testimony, and B.C.’s testimony confirmed Athene had such coverage.

Barnes's arguments against submitting the exclusivity affirmative defense instruction to the jury rely on evidence unfavorable to its submission, which is contrary to our standard of review. To conclude Athene was not entitled to this instruction, we must find the evidence supporting the instruction was not substantial. Schultz, 707 S.W.3d at 578. That is not the case here. The plain language of Chubb's 2019-2020 coverage binder and insurance policy, which were admitted into evidence upon B.C.’s authentication, provided Athene coverage for its liability for mesothelioma-related workers’ compensation injuries in Missouri, effective October 2, 2019. B.C.’s testimony addressed the “potential coverage issues” Barnes raised. This evidence constituted substantial facts to support that Athene had valid enhanced mesothelioma workers’ compensation coverage in effect for Barnes's injuries when she filed her workers’ compensation claim on October 17, 2019, and, therefore, had insured its liability for her claim pursuant to Section 287.200.4(3). See Barnes, 681 S.W.3d at 558. The evidence was sufficient to support the submission of the exclusivity affirmative defense instruction. Point II is denied.

In Point III, Barnes challenges the language of the exclusivity affirmative defense instruction. There is no MAI instruction for this affirmative defense. “[A] not-in-MAI instruction must follow substantive law by submitting the ultimate facts necessary to sustain a verdict.” Dugan v. Hyatt Corp., 707 S.W.3d 669, 683 (Mo. App. 2024) (quoting Johnson v. Auto Handling Corp., 523 S.W.3d 452, 463 (Mo. banc 2017) (internal quotation marks omitted)). In evaluating non-MAI instructions, we must determine “whether the instruction clearly communicates a correct characterization of applicable substantive law and is understandable.” Church v. CNH Indus. Am., LLC, 671 S.W.3d 829, 838 (Mo. App. 2023) (citation omitted)). The criteria we consider is “whether an average juror would correctly understand the applicable rule of law, and whether a jury was not or could not be confused or misled, resulting in prejudice to one of the parties.” Id. (citation omitted). Generally, “where the law is embodied in a statute, it is sufficient in instructions to the jury to follow the language of the statute.” Id. (citation omitted).

Both Barnes and Athene provided a proposed instruction for the defense. The court rejected the parties’ instructions and submitted its own. The court's instruction required the jury to find that Athene was offered and accepted, prior to the date of Barnes's claim, a valid contract to insure its liability for workers’ compensation benefits for mesothelioma claims. This instruction tracked Section 287.200.4(3)(a)’s provision that employers are entitled to the exclusivity defense if they accept mesothelioma liability under the statute by “ensuring their liability.”

Barnes argues that, because of “potential coverage issues,” the instruction should have required the jury to additionally find her specific claim was covered. As we stated supra in our discussion of Point II, Athene was entitled to the exclusivity defense if it proved it had valid enhanced mesothelioma workers’ compensation coverage in effect for its liability for Barnes's injuries when she filed her workers’ compensation claim on October 17, 2019. See Barnes, 681 S.W.3d at 558. Those are the ultimate facts that establish Athene had insured its liability for Barnes's claim under Section 287.200.4(3). Instruction No. 13 clearly communicated the law and required the jury to find the ultimate facts necessary to sustain a verdict in favor of Athene on its exclusivity affirmative defense. Point III is denied.

In Point IV, Barnes argues the circuit court erred in admitting testimony from T.C., Athene's attorney in the workers’ compensation proceeding before the Division, regarding insurance coverage for workers’ compensation claims made by employees injured in a state where the employer had paid no corresponding premium. She argues his testimony constituted an undisclosed expert opinion that was unfairly prejudicial because it was outcome determinative.

We review the circuit court's decision to admit evidence for an abuse of discretion. Bell v. Redjal, 569 S.W.3d 70, 80 (Mo. App. 2019). We defer to the court's 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 (citation omitted). If reasonable minds could differ on the ruling, no abuse of discretion occurred. Id. at 81.

Athene elicited the disputed testimony on its direct examination of T.C. Athene asked T.C. if he was familiar with or knew whether an out-of-state employer could have workers’ compensation coverage in a state in which it does not have employees. Barnes objected, arguing such testimony was an undisclosed expert opinion. The court overruled the objection. The court explained Barnes had “pounded” the fact that Chubb's insurance policy showed no premiums paid for Missouri and no employees in Missouri and whether that fact precluded a meeting of the minds between Chubb and Athene for enhanced mesothelioma benefits in Missouri. Because of this, the court ruled Athene could ask T.C. if, in his experience, he had seen cases in which workers were provided workers’ compensation coverage even if their company did not have a building or employees in Missouri. Athene asked the question, and T.C. responded, “That situation happens all the time.” When asked to give an example of how that situation could occur, T.C. explained the ways in which Missouri acquires jurisdiction over workers’ compensation claims.

Barnes argues T.C.’s testimony constituted undisclosed expert opinion. We disagree. Barnes asserted that the absence of Athene employees and payroll in Missouri negated coverage of Athene's liability for her claim under Chubb's workers’ compensation insurance policy. To rebut this assertion, T.C. was allowed to testify he had seen cases in which coverage was provided under such circumstances. Although T.C. relied on his experience as a workers’ compensation attorney to make that observation, he remained a fact witness, as he testified only to what he had seen and did not draw conclusions or express his opinion on the relevant legal issue of whether there was coverage in this case. See Whelan v. Mo. Pub. Serv., Energy One, 163 S.W.3d 459, 462 (Mo. App. 2005). The court's decision to allow T.C.’s testimony does not shock our sense of justice or indicate a lack of careful consideration. Point IV is denied.

Conclusion

The judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Revised Statutes of Missouri 2016, as updated by the 2025 Cumulative Supplement.

2.   The operative date for coverage to support the exclusivity defense is the date the claim was filed. Barnes, 681 S.W.3d at 556 n.4 (citing Accident Fund Ins. Co. v. Casey, 550 S.W.3d 76, 80 (Mo. banc 2018)).

3.   The court denied Athene's motion to continue the trial to allow time for its third summary judgment motion to be fully briefed and ruled on.

4.   “Rule 72.01(b) explicitly permits a party to join a motion for new trial with a motion for JNOV or request a new trial in the alternative in the motion for JNOV.” Moody, 707 S.W.3d at 616.

5.   Section 287.200.4(3)(a) provides, in pertinent part, “For employers that have elected to accept mesothelioma liability under this subsection, an additional amount of three hundred percent of the state's average weekly wage for two hundred twelve weeks shall be paid by the employer[.]”

Lisa White Hardwick, Judge

All Concur.