Case Summary for January 31, 2006

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Case Summary for January 31, 2006

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. Tuesday, January 31, 2006

______________________________________________________________________________________________________________________

SC87026
State ex rel. Roxanne Kelly v. The Honorable Marco A. Roldan
Jackson County
Challenge to circuit court denial of motion to dismiss

In January 1998, Quinlock Shobe was involved in an automobile accident in which others were injured. At the time of the accident, Shobe was insured under an Allstate Insurance Company auto insurance policy. Allstate employee Roxanne Kelly handled the claim. The parties involved in the accident sued Shobe. Allstate ultimately denied coverage and defense for Shobe. The court entered a nearly $139,000 judgment against Shobe, who sought damages for bad faith insurance practices against Allstate and Kelly. Kelly filed a motion to dismiss Shobe's petition against her. The court denied her motion without explanation. She seeks relief from this Court.

Kelly argues that she is entitled to an order prohibiting the trial court from proceeding on any claims Shobe has brought against her. She contends the court acted in excess of its jurisdiction. She asserts that the court deprived her of an absolute defense when it overruled her motion to dismiss for failure to state a claim for which relief can be granted. Kelly argues that a claim for bad faith against an individual adjuster does not exist in the state of Missouri. She contends that the duty of good faith does not run from the adjuster to the insured but rather runs from the insurer to the insured.

Shobe responds that a writ is an extraordinary remedy not warranted in this case. He argues Kelly has not been denied access to a clear and absolute defense under Missouri law. Shobe contends that the bad faith insurance practice claims pending against Kelly are tort claims arising from Kelly's fiduciary relationship with him that do not depend on the insurance contract. He asserts that corporate employees who knowingly participate in tortious conduct are subject to individual liability. Shobe further argues that public policy supports individual liability for Kelly.

SC87138
Lee Davis v. Lambert-St. Louis International Airport and William Powell
St. Louis City
Challenge to governmental employee immunity

In August 1997, a St. Louis Airport Police patrol vehicle with its lights and sirens on and driven by William Powell struck a vehicle driven by Lee Davis near the intersection of Banshee Road and Lindbergh Boulevard in St. Louis County. Davis was injured in the accident. In June 2002, Davis sued Powell, for the negligent operation of a motor vehicle, and Lambert-St. Louis International Airport, alleging that Powell was acting within the course and scope of his employment as an airport police officer. Following a May 2004 trial in the St. Louis City circuit court, the jury attributed 25 percent of fault to Powell and the airport, attributed the remaining 75 percent of fault to Davis, and awarded Davis $6,250 in net damages. Powell and Lambert appeal.

Powell and Lambert argue the trial court erred in entering judgment against Powell. They contend that the record demonstrates, on its face, that Powell was protected by official immunity. They assert that, at the time of the accident, Powell's emergency lights and siren were operating and he was responding to an emergency. Powell and Lambert argue that the trial court also erred in entering judgment against the airport. They contend Lambert was protected under a theory of respondeat superior, asserting that because its employee was protected by official immunity, it also is protected by official immunity.

Davis responds that the trial court did not err in entering judgment against Powell and Lambert. He argues that Powell did not have blanket protection through official immunity under section 304.022.5, RSMo 2004. Davis contends that even though Powell had his lights and sirens engaged, Powell still had a duty under that statute to exercise reasonable discretion and proceed safely. Davis asserts that Powell failed in his burden to prove compliance with section 304.022.5 because the evidence showed that Powell lost control of his vehicle, failed to swerve and hit Davis' stopped vehicle. Davis argues that Powell waived any instructional error by the court by not submitting an affirmative defense instruction. Davis further responds that even if Powell was protected by official immunity, Lambert was not protected under respondeat superior and could be held liable when its employee was found to be negligent.

The state of Missouri argues, as a friend of the court, that imposing vicarious liability on a governmental employer when a public officer is protected by official immunity incorrectly applies both the official immunity doctrine and the general assembly's waiver of sovereign immunity in automobile accidents. The state contends that official immunity defines a duty, not a defense. It asserts that Davis failed to establish a claim against Powell and that respondeat superior does not impose liability on an employer if there is no ground for recovery against its employee. The state argues that section 537.600.1(1), RSMo, does not alter either the nature of a cause of action against a public officer or the respondeat superior doctrine.

The Missouri Association of Trial Attorneys argues, as a friend of the court, that a government employer is vicariously liable for the actions of an employee, even if the employee enjoys official immunity. It contends that if Powell and Lambert's theory of liability is adopted, there is no need to have distinct concepts and tests for official immunity and sovereign immunity. The association asserts that Powell and Lambert's theory encourages police recklessness. The association argues that not allowing official immunity to be shared encourages a higher standard by which police conduct is measured and further promotes public safety.

SC87159
Ryan K. York v. Director of Revenue
Crawford County
Challenge to reinstatement of driver's license

In May 2003, Ryan York stopped at a highway patrol sobriety checkpoint. The trooper noticed that York smelled strongly of alcohol; had watery, bloodshot and glassy eyes; and had slurred speech. York told the trooper he had consumed one or two beers and failed to pass certain field sobriety tests. The trooper administered a portable breath test to York at the scene, and it indicated his blood alcohol content was greater than the legal limit of 0.08 percent. The trooper arrested York and administered a Datamaster breathalyzer test, which indicated York had a blood alcohol content of 0.119 percent. In October 2003, the director of revenue suspended York's driving privileges, and York sought review in the circuit court. Following an April 2004 hearing, the court found that the trooper did not have probable cause to believe York's blood alcohol content was over the legal limit. It determined that the director failed to lay a common-law foundation for admitting the portable breath test results. The court reinstated York's driving privileges but did not explicitly reach a conclusion as to York's blood alcohol content while driving. The director appeals.

The director argues the court misapplied and misdirected the law in excluding York's portable breath test result on due process grounds. She contends that section 577.021, RSMo Supp. 2003, allows breath test results administered prior to arrest to be admissible as evidence of probable cause to arrest. She asserts that due process does not require the proponent of evidence to establish a foundation for admission of such test results because the chance of erroneous deprivation of driving privileges is almost non-existent. The director argues the court's reinstatement of York's driving privileges is not supported by substantial and uncontroverted evidence and is against the weight of the evidence.

York responds that the trial court's judgment is supported by substantial evidence and is not against the weight of the evidence. He argues the director failed to establish that the officer had probable cause to arrest him. He contends the court properly disregarded the trooper's testimony about the results of the portable breath test because the trooper improperly administered the test and because other probable cause did not exist. York also asserts that the court's judgment does not erroneously declare or apply the law.

SC87088
In re: Marc Burstein
St. Louis County
Attorney discipline

In October 2002, Marc Burstein asked a St. Louis assistant prosecuting attorney to show him the prosecutor's letters of recommendation in two misdemeanor cases pending on that day's docket. Burstein was the defendant's attorney in one case and was covering for the defendant's attorney in the other. After reviewing the prosecutor's punishment recommendations, Burstein asked the assistant prosecutor if he could change the recommendation made in the cases and if the assistant would accompany Burstein to the judge's chambers to discuss the cases. The assistant prosecutor informed Burstein that he was not the attorney assigned to the cases, and, therefore, refused Burstein's requests. Burstein proceeded alone to the judge's chambers to obtain the judge's signature on the plea forms. In May 2003, the St. Louis County prosecuting attorney filed a complaint against Burstein with the disciplinary committee. In June 2005, the hearing panel dismissed two counts but found that Burstein violated Rule 4-3.5(b) by engaging in ex parte communication with the judge (where opposing counsel was not present). The panel recommended that Burstein be given a written admonition. The chief disciplinary counsel seeks a greater punishment for Burstein's violation.

The chief disciplinary counsel argues that this Court should publicly reprimand Burstein's law license. She contends that Burstein violated Rules 4-3.5(b) and 4-8.4(d) because he engaged in ex parte communication with a judge that affected the administration of justice by acting in a manner inconsistent with procedural rules. She asserts that this Court also should find that Burstein violated Rule 4-8.4(c) by misrepresenting to an assistant prosecutor that his supervisor authorized the assistant prosecutor to sign the plea form. The chief disciplinary counsel argues that a public reprimand is appropriate because Burstein's misrepresentation to the prosecutor and ex parte contact with the judge were made knowingly. She contends that this conduct at least was negligent and was prejudicial to the administration of justice. She asserts that this Court's review of the panel's issuance of an admonition is important to the attorney discipline system and is not precluded by Rule 5.16.

Burstein responds that the panel's issuance of a public admonition is proper. He argues he did not violate Rules 4-3.5(b) and 4-8.4(d) because he followed the proper procedures. He contends the trial court and his opposing counsel had notice and opportunity to object but did not attend the advisory panel's hearing. Burstein responds that the panel properly dismissed Count II. He asserts that he did not misrepresent to the assistant prosecutor that his supervisor had authorized him to sign the plea form. Burstein argues that he did not make a misrepresentation to the prosecutor and did not have improper ex parte communication with the judge and, therefore, that he should not be reprimanded publicly. Burstein contends his conduct was neither negligent nor prejudicial to the administration of justice. He responds that Rule 5.16 does not provide for this Court to review the panel's issuance of an admonition to him. Burstein asserts that Rule 5.16 only provides for review of dismissed counts. He further contends the panel had the authority to issue an admonition.