Case Summary for November 29, 2007

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Case Summary for November 29, 2007

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Thursday, November 29, 2007

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SC88648
Nicole R. Kesterson and Philip M. Kesterson v. State Farm Fire & Casualty Company and State Farm Mutual Automobile Insurance Company
Saline County
Dividing causes of action from damages arising a motor vehicle accident
Listen to the oral argument:

Nicole Kesterson was a passenger in Gary Wallut's motor vehicle when an unknown driver rear-ended Wallut's vehicle and Wallut ran into a tractor-trailer in December 1998. This collision caused permanent, progressive and painful injuries to Kesterson.

Kesterson I
Nicole and Philip Kesterson sued Wallut for negligently operating a motor vehicle, alleging his negligence caused the vehicle to collide with the tractor-trailer. They also sued their insurer, State Farm, as Wallut was an uninsured driver and their policy provided them with uninsured motorist's coverage. They also claimed they were entitled to uninsured motorists benefits based on the fact that a "phantom vehicle" rear-ended Wallut's vehicle and caused or contributed to the indivisible damages suffered. Philip Kesterson alleged damages for loss of consortium. Wallut moved to dismiss based on lack of subject matter jurisdiction, contending he was a co-employee of Kesterson and that the Kestersons' exclusive remedy was workers' compensation. The trial court sustained his motion to dismiss and sustained State Farm’s summary judgment motion as to the Kestersons’ uninsured motorist claim for Wallut, but did not rule on their claim for uninsured motorist coverage for the phantom driver. The Kestersons appealed and the case was remanded. On remand, the Kestersons moved to dismiss their claim against State Farm for the phantom driver. The trial court sustained the motion and the Kestersons then appealed the issue of whether Wallut was an uninsured motorist (Kesterson II).

Kesterson II
In April 2005, the Kestersons sued State Farm Fire & Casualty Company and State Farm Mutual Automobile Insurance Company for the same accident, alleging their right to collect under their policy for the negligence of the unknown driver. In May 2005, State Farm moved to dismiss and suggestions in support of motion to dismiss based on res judicata (a case that has already been decided and is no longer subject to appeal) and improperly splitting a cause of action. In December 2005, the trial court sustained the motion and the Kestersons' petition was dismissed with prejudice. The Kestersons appeal.

The Kestersons argue their petitions allege separate and distinct causes of action in Kesterson I and II. They contend the parties, subject matter and evidence differ from those of, and neither case decided the merits of, their vehicle claim. The Kestersons assert the test for whether a cause of action is single and cannot be split is whether the separate actions arise out of the same act, contract or transaction; or whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions. They argue their cases are separate because in Kesterson I, the actions of Wallut and the phantom vehicle ultimately caused the vehicle in which Kesterson was a passenger, to collide with a semi-tractor/trailer, resulting in indivisible injuries. However, they contend, Wallut and the phantom vehicle acted separately to contribute to the outcome. They allege Wallut negligently operated the motor vehicle in which Kesterson was a passenger and the phantom vehicle negligently rear-ended Wallut's vehicle, contributing to or causing Wallut's loss of control over his car. The Kestersons assert, from these two separate acts, two causes of action arose. They argue in Kesterson I, the claim is against Wallut and their insurer, State Farm, and in Kesterson II, Wallut is not a party, but since the operator of the phantom vehicle was unidentifiable, the claim is brought against their insurance carrier for their uninsured motorist coverage provided in the policy. The Kestersons contend Kesterson I focused on whether Wallut was uninsured and whether his actions caused the accident and Kesterson II focused on whether Wallut was an uninsured motorist from whom the Kestersons were "legally entitled to collect" under their policy with State Farm.

State Farm responds that res judicata prohibits the Kestersons' reassertion of the phantom vehicle claim in Kesterson II since they previously prosecuted to judgment claims against State Farm in Kesterson I arising out of the same automobile accident and the same insurance contract provision.

SC88368
Missouri Alliance for Retired Americans, et al. v. Department of Labor and Industrial Relations, Division of Workers' Compensation
Cole County
Constitutionality of amendment to workers' compensation law
Listen to the oral argument:

In March 2005, the Missouri General Assembly passed Senate Bill 1 and 130, which amended Missouri's workers compensation law. Seventy-one organizations, including Missouri Alliance for Retired Americans, filed a nine-count claim against the division of workers' compensation regarding compensation benefits payable under the amended workers' compensation law. The parties both moved for judgment on the pleadings on Alliance's due process challenges to the bill. The trial court sustained the division's motion and overruled Alliance's motion. The division also moved for summary judgment on all counts for lack of justiciability. The trial court sustained the motion with respect to Counts II and IV-IX and denied it as moot as to Counts I and III. The trial court held that no genuine dispute of material fact existed and that the division was entitled to judgment as a matter of law and that the seven claims were not justiciable. Alliance appeals.

Alliance argues its petition for declaratory judgment presents a justiciable controversy. It asserts its petition presented a substantial, presently existing controversy and seeks specific relief, it has standing to challenge the constitutionality of the bill, a ripe controversy exists and it does not have an adequate remedy at law. Alliance asserts the amended workers' compensation law violates the due process clause and the due process and open courts guarantees of the Missouri Constitution. It argues the law no longer assures workers certain compensation for work related injuries without regard to fault. Alliance contends the amendments violate due process and equal protection in that the legislation bears no rational relationship to the legislature's purpose.

The division responds the new law comports with due process and the amendments are constitutional. It contends the seven remaining claims are not justiciable because Alliance seek an advisory decree and does not have a legally protectable interest at stake. The division asserts Alliance's members lack standing to sue in their own right, the interests Alliance seeks to protect are not germane to its organizational purposes, and it does not have to prove Alliance's lack of standing. It argues no ripe controversy exists and there is an adequate remedy at law. In the alternative, the division responds, the trial court's judgment should be affirmed because Alliance's claims fail on the merits.

The Associated Industries of Missouri, National Federation of Independent Business Legal Foundation and Associated Home Builders and Contractors, Inc., argue, as friends of the Court, that Alliance seeks an advisory opinion and that there is no substantial, presently-existing controversy since all allegations are hypothetical and not based in fact. They contend that the amended workers' compensation law is constitutional and that compensation is still available for workers injured on the job through the workers compensation system or in a circuit court. They assert there is a factual, objective basis for the legislature reasonably to believe that the bill would accomplish its purpose and that the bill provides equal rights to all workers in that the provisions of the bill rationally provided non-discriminatory treatment for all workers.

The International Association of Fire Fighters argues, as a friend of the Court, Alliance has representational standing to assert a constitutional challenge to the amended law on behalf of its members. It contends challenging the constitutionality of a statute affecting the health and safety of its members is germane to Alliance's organizational purpose and the participation of Alliance's individual members is not required. It further argues the members were not required to exhaust administrative remedies.

The Missouri Association of Trial Attorneys argues, as a friend of the Court, Alliance presents a justiciable controversy and is asking for the specific relief of this Court finding the bill unconstitutional. It contends the matter is ripe and Alliance has no other adequate remedy at law. The association asserts the bill's provisions violate the due process and open courts guarantees of the Missouri Constitution and the Fourteenth Amendment due process clause. It argues the workers' compensation law no longer provides certain or adequate substitute remedy for work-related injuries. The association contends the amendments to the act contained in the bill violate due process and equal protection in that the legislation bears no rational basis to the legislature's purpose. It asserts the amendments arbitrarily eliminates compensation for injuries and does not rationally address the causes of increased workers compensation costs. The association argues there is no rational basis to believe the bill will increase and retain employers in the state.

The Missouri State Labor Council argues, as a friend of the Court, that Alliance is a proper plaintiff to bring this lawsuit. It contends Alliance's members have standing in their own right to bring this action for declaratory relief; the interests Alliance seeks to protect are germane to the purpose of representing and protecting its members' conditions of employment; and the declaratory relief sought by Alliance does not require the participation of individual union members.

The Workers Injury Law and Advocacy Group argues, as a friend of the Court, that Missouri's workers compensation law, as amended by the bill, violates the Fourteenth Amendment due process clause and the due process and open courts guarantees of the Missouri Constitution. It contends the law no longer assures workers certain compensation for work-related injuries without regard to fault.

SC88618
Floyd Wilcut, deceased, Sharon Wilcut v. Innovative Warehousing
St. Francois County
Right to deny health care after work-related accident
Listen to the oral argument:

Wife sought death benefits after her husband's death. Husband was a truck driver for Innovative Warehousing and was in a work-related motor vehicle accident in April 2000. Husband was taken to a hospital for treatment and, as a practicing Jehovah Witness, he refused a blood transfusion. He died from cardiac ischemia and severe anemia. The Labor and Industrial Relations Commission determined that a refusal of blood transfusion based upon a reasonable religious belief was not necessarily a reasonable refusal, but that evidence surrounding the refusal must be considered. In June 2006, the commission denied compensation to Wife, holding Husband's refusal to accept life-saving blood transfusion was unreasonable and, thus, broke the medical causal link between the accident and his death. It concluded if Husband accepted the blood transfusion to reverse his anemia, he would have survived his work injuries. Wife appeals.

Wife argues the commission erred when it narrowly construed section 287.140.9, RSMo, by concluding that Husband's refusal to accept blood transfusions was not a spiritual means to treat his injuries. She contends the commission violated article I, section 7 of the Missouri Constitution by discriminating against Husband by claiming his refusal to accept blood transfusion was merely a "religious act."

The company responds Husband's refusal to accept a life-saving blood transfusion was an unreasonable refusal of medical treatment within the meaning of section 287.140.5 of the workers' compensation act, barring Wife from recovering death benefits. It contends the undisputed medical evidence and medical testimony demonstrate that while Husband's injuries were not life threatening, he lost a significant amount of blood as a result of the accident and two surgical procedures to treat his injuries. The company argues the minimal risks posed by the transfusion were greatly outweighed by the benefits of undergoing that medical treatment; Husband refused a blood transfusion, knowing that meant almost certain death; and his refusal to accept a blood transfusion was the cause of his death. The company contends Husband's decision to refuse a blood transfusion broke the medical causal connection between the accident and his death, and his death was not compensable as a legitimate consequence of the accident. It asserts his decision was a refusal of medical treatment offered by the employer, as contemplated by section 287.140.5 of the workers' compensation act, and did not constitute treatment of Husband's injuries by "prayer or spiritual means", within the meaning of section 287.140.9 of the act. The company further responds Husband had the right to exercise his religious beliefs, but Wife does not have right to impose the consequences of Husband's decision on the employer, so as to increase its workers' compensation liability. It asserts any construction of section 287.140.5 as precluding its application to any refusal of medical treatment based on employee's religious beliefs must be rejected, as that construction would violate the provisions of the Missouri and United States constitutions requiring the separation of church and state and prohibiting the state from advancing religion.

SC88597
Timothy Sorrell v. Norfolk Southern Railway Company
City of St. Louis
Jury instructions in a negligence case
Listen to the oral argument:

Timothy Sorrell was permanently disabled after a motor vehicle accident in November 1999. Sorrell worked for Norfolk Southern and was driving one of the company's trucks when he collided with a truck driven by another company employee. In November 2003, the circuit court awarded Sorrell $1.5 million. The jury was to determine fault between Sorrell and the company's other employee and reduce Sorrell's damages in proportion to his fault. The jury was instructed to find Sorrell contributorily negligent if his actions were a "direct" cause of the accident. The jury did not indicate in its verdict whether the amount reflected a reduction in damages for Sorrell's contributory negligence or the jury's finding of Sorrell's total compensatory damages. The company appeals.

The company contends the trial court committed prejudicial error in giving instructions Nos. 12 and 13 because the instructions misdirected, misled and confused the jury. It contends the jury could not assess comparative fault using different standards of causation and there is a substantial likelihood that the jury could have found that Sorrell's negligence was "slight" cause of the accident, but the jury would not have compared the parties' fault due to the requirement in instruction No. 13 that it find Sorrell's negligence was a "direct" cause of the accident to be contributory negligence.
Sorrell responds the trial court committed harmless error in giving jury instruction 13, MAI 32.07(B). He contends this was an approved MAI instruction at the time of trial and the company has not shown that the instruction given materially affected the jury's verdict and, therefore, the company has not shown any prejudice. Sorrell asserts the trial court did not commit error in giving jury Instruction 12, based on MAI 24.01, as it was and is still a correct statement of the law - the broader issue that the company has not preserved for appeal.