Case Summary for February 25, 2003

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Case Summary for February 25, 2003

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, February 25, 2003

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SC84896
Charles Grewell, et al. v. State Farm Mutual Automobile Insurance Co., Inc., et al.
Jackson County
Insured's right to insurance company records

In May 2000, Linda Grewell was involved in a vehicle collision with James Kephart. Both were insured by State Farm Mutual Automobile Insurance Company. Neressa Wilkins became Grewell's claims specialist, and Tom Prawl became the claims specialist for Kephart. In August 2000, Wilkins notified the Grewells' attorney that she and State Farm had determined that Linda Grewell was 50 percent at fault for the accident. Wilkins also notified the attorney that she could not release most of the contents of State Farm's files because they were considered work product. In December 2000, the Grewells filed a declaratory judgment action seeking release of the information and documents State Farm was refusing to turn over. In January 2001, State Farm moved to dismiss the suit. The court dismissed the case with prejudice, and the Grewells appeal.

The Grewells argue there is a special relationship between a liability insurer and the insured that gives the insured a right to be informed fully of all matters arising from the claim. They contend they properly brought a declaratory judgment action because they have a right to access the claims file, the parties' positions cannot be resolved without judicial resolution and that no other adequate legal remedy exists. The Grewells assert that they have stated a proper claim for attorneys' fees because Wilkins and State Farm's continued refusal to release the requested information was in bad faith, was without just cause or excuse, was intentional, was frivolous and/or was outrageous. The Grewells further argue that they stated a proper claim for nominal and punitive damages because, as the Grewells' liability insurer, State Farm breached various fiduciary duties to them.

State Farm and Wilkins respond that the Grewells have no legally protectable interest at stake because they have no right of access to the claims file. They argue that, even if the Court finds a legally protectable interest, a declaratory judgment action is inappropriate because the Grewells have another adequate remedy at law. Wilkins and State Farm further respond that the Grewells' counts for attorneys' fees and for nominal and punitive damages properly were dismissed for failure to state a claim.

SC84838
Zilma and Wayne Nusbaum v. City of Kansas City, Missouri, and Asphalt Plant Sales,
Starlight Theatre, and J.E. Dunn Construction, Inc., and PC Contractors, Inc.
Jackson County
Entitlement to contractual indemnification

In July 1996, Zilma Nusbaum was injured when she tripped on a manhole cover protruding above a sidewalk while attending a production at Starlight Theatre in Kansas City. She and her husband, Wayne Nusbaum, sued the city of Kansas City in February 1997. Through subsequent amendments, they added Starlight Theatre Association of Kansas City, Inc., and J.E. Dunn Construction Company, as defendants. The Nusbaums alleged that the city owned the manhole, that Starlight was responsible for maintaining the sidewalk and surrounding area, and that Dunn's employees knocked down a light pole nearest the area where Zilma Nusbaum fell. In May 1998, Starlight filed its answer and asserted a cross-claim against Dunn, seeking contractual indemnification, non-contractual indemnification and contribution. The next week, Dunn filed a third-party petition against PC Contractors, Inc., seeking contractual indemnification and/or contribution pursuant to a subcontract. In June 1998, the Nusbaums filed a third amended petition, adding PC Contractors as a direct defendant. Starlight later reasserted its cross-claim against Dunn, but Dunn did not reassert a cross-claim for indemnification against PC Contractors.

The Nusbaums eventually settled with all defendants. Starlight sought indemnification from Dunn for Starlight's $45,000 settlement with the Nusbaums and for the more than $25,500 in attorneys' fees and expenses it incurred in defending against the Nusbaums' claims. Dunn sought indemnification from PC Contractors for Dunn's $5,000 settlement with the Nusbaums and the more than $30,000 in attorneys' fees and expenses Dunn incurred in defending against the Nusbaums' claims. In June 2001, the court determined that Starlight was entitled contractually to nearly $69,000 from Dunn, that Dunn contractually was entitled to more than $95,000 from PC Contractors and that both Dunn and Starlight were entitled to 9-percent post-judgment interest. The court did not award Dunn the full attorneys' fees it requested from PC Contractors or prejudgment interest. PC Contractors appeals, and Dunn and Starlight cross-appeal.

PC Contractors argues the court erred in ordering it to indemnify Dunn because Dunn's settlement with the Nusbaums was for Dunn's own direct negligence. PC Contractors contends that the indemnification clause in its contract with Dunn does not require PC Contractors to indemnify Dunn for Dunn's own negligent acts.

Dunn responds that the court properly granted it summary judgment on its indemnification claim against PC Contractors for defending the Nusbaums' claims. Dunn argues that the indemnification provision in PC Contractor's subcontract with Dunn clearly and unambiguously provides for indemnification for any claims, damages, loss and expenses, including attorneys' fees and amounts for which it is liable to other parties, related to PC Contractors' work. Dunn contends this indemnification clause applies regardless of whether Dunn was negligent. In its cross-appeal, Dunn argues the court should have awarded it the full amount of attorneys' fees and expenses it requested because such fees and expenses clearly are covered in the indemnification clause in its contract with PC Contractors. Dunn contends the court should have awarded it prejudgment interest under section 408.020, RSMo, because it is entitled to such interest accrued from April 23, 1998, when Dunn notified PC Contractors of the pending lawsuit and demanded indemnification from PC Contractors. Dunn further asserts that Starlight is not entitled to indemnification from Dunn for Starlight's defense of the Nusbaums' direct claims because Starlight was negligent and, under those circumstances, such indemnification is not covered under Dunn's contract with Starlight.

Starlight responds that the court properly ordered Dunn to indemnify Starlight and PC Contractors to indemnify Dunn because such indemnifications clearly and unequivocally are covered in the contract clauses, regardless of any negligence on the part of Starlight or Dunn. In its cross-appeal, Starlight argues that the court should have awarded it all of its attorneys' fees for pursuing its indemnification claim because the language of the indemnification agreement is broad enough to include such fees. Starlight further contends the court should have awarded it pre-judgment interest under section 408.020 because there was a written contract and the damages were readily ascertainable.

SC84855 -- Mr. Gaines voluntarily dismissed his appeal on February 21, and, therefore, this case will not be argued.
State of Missouri v. Ronnie C. Gaines
Greene County
Admission of evidence of prior incident in assault case

Ronnie Gaines was charged with assault after hitting his girlfriend in the face in December 1997 at their Springfield, Missouri, duplex. The floor of her right eye socket was fractured, and despite surgery, she eventually she lost her sight in that eye. At the trial, the state introduced evidence, over objection, that Gaines had hit his girlfriend in the face in November 1997 as well, breaking her nose. Gaines denied hitting his girlfriend either time, stating that he was not home when she was injured in December and that she told him she was in a car accident. He said that in November, his girlfriend had slipped and fallen into a rocking chair. The jury, which was given instructions for both first-degree assault and second-degree assault, found Gaines guilty of second-degree assault. The court sentenced him, as a prior offender, to six years in prison. He appeals.

Gaines argues the court should not have admitted the objectionable evidence about the alleged November 1997 incident, for which he was not charged. He contends that evidence was neither logically nor legally relevant to the December incident. Gaines further asserts that admission of this evidence violated his rights to due process and to be tried only for the crime with which he was charged.

The state responds that the court properly admitted testimony about the previous incident. The state argues the testimony tended to prove Gaines' intent, motive and animus toward his girlfriend. The state contends that Gaines was not prejudiced because the evidence to which he objected was cumulative to other evidence that was admitted without objection.

SC84496
Allen L. Nicklasson v. State of Missouri
Lafayette and St. Louis counties
Post-conviction relief in a death penalty case

Allen Nicklasson was charged with first-degree murder for the August 1994 shooting death of Richard Drummond in rural Lafayette County. A St. Louis County jury was brought in to hear the case. The jury found Nicklasson guilty of first-degree murder and recommended the death penalty. The trial court entered judgment accordingly, and this Court affirmed the conviction and sentence. State v. Nicklasson, 967 S.W.2d 596 (Mo. banc 1998). Nicklasson subsequently sought post-conviction relief, which the court denied after an evidentiary hearing on five of the 12 points he raised. He appeals.

Nicklasson argues his counsel failed to object when the state argued, during the trial's guilt phase, that it did not matter whether he suffered from a mental disease or defect. He contends that the state's argument misstated the law because his defense was that he had a diminished capacity that had prevented him from deliberating about the shooting and, therefore, it was relevant whether he suffered from a mental disease or defect. He asserts that, had his counsel objected, he likely would have been granted a mistrial. Nicklasson further argues his appellate counsel failed to brief and argue that the trial court should not have ordered Nicklasson to be shackled throughout the trial because he had not caused any disturbances in the courtroom. He contends the fact he was shackled was noticeable to the jury because brown paper was placed in front of his table but not the prosecutor's table. He asserts the shackles also caused a jingling sound during the trial.

The state responds that Nicklasson's counsel did not fail to object to the prosecutor's guilt-phase closing argument. The state argues the prosecutor's argument was not a misstatement of the law but rather was a permissible comment about the overwhelming amount of evidence showing that Nicklasson deliberated in murdering Drummond. The state further responds that the motion court did not clearly err in denying, without hearing, Nicklasson's claim about the shackles. The state contends that even if Nicklasson's appellate counsel had raised this claim on direct appeal, it would not have required reversal of the conviction. The state asserts that the trial court acted within its discretion in shackling Nicklasson based on his violent history, including three confessed murders, prior convictions for assaultive behavior and incidences of violence while in custody. The state argues Nicklasson also failed to plead sufficient facts to show that any juror was aware he was wearing leg irons during his trial.