Case Summary for February 24, 2015

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Case Summary for February 24, 2015

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

9:30 a.m. Tuesday, February 24, 2015
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SC94115
City of Harrisonville v. McCall Service Stations d/b/a Big Tank Oil, et al., The Missouri Petroleum Storage Tank Insurance Fund
Cass County
Liability for remediation; challenge to punitive damages awarded against state fund
Listen to the oral argument:

SC94115.mp3
Harrisonville was represented during arguments by Steven E. Mauer of Zerger & Mauer LLP in Kansas City; the fund was

After beginning excavation to replace a major sewer line in 2003, Harrisonville discovered the soil in its sewer easement was contaminated with gasoline. It notified the state’s department of natural resources and learned the state’s petroleum storage tank insurance fund had employed Bob Fine to contain and mediate contamination following a September 1997 leak from underground tanks at a nearby gas station then owned by McCall Service Stations. Fine subsequently confirmed the gasoline contamination in the sewer easement emanated from the McCall station. Rather than the more costly option of removing and replacing the contaminated soil, Fine proposed leaving the contaminated soil in place and replacing the city’s sewer line with a pipe specially designed to withstand the contamination. A third-party administrator for the fund reviewed Fine’s proposal and helped Midwest Remediation submit a lower bid. City officials later said they left an April 2004 meeting with the administrator and Midwest understanding that the city would hire Midwest to do the work proposed by the fund and Fine and that the fund would pay the bill, minus the amount the city would have paid to replace the sewer line absent the contamination. The city contracted for Midwest to perform the work. Upon completion of the project, Harrisonville paid all bills and sought reimbursement of about $172,100 from the fund. The fund refused to pay the claim, citing a variety of reasons. In November 2005, the city sued the fund. In its first amended petition, filed in November 2007, the city alleged claims of fraudulent misrepresentation and negligent misrepresentation against the fund and sought punitive damages from the fund, McCall and the company that bought the gas station from McCall. Following a May 2011 trial, the jury returned a verdict in favor of Harrisonville on all claims and awarded $172,100 in actual damages against all three defendants, $100 in punitive damages each against McCall and the successor owner of the station, and $8 million in punitive damages against the fund. The fund and the companies filed post-trial motions for judgment notwithstanding the verdict or, in the alternative, for remittitur (a judge’s reduction of the jury’s award of damages) – arguing the punitive damages award against the fund violated Missouri’s statutory cap on punitive damages – or a new trial. In September 2011, the court found the $8 million punitive damages award against the fund violated due process, reduced the award to $2.5 million and overruled the remaining motions. Both the city and the fund appeal.

Harrisonville’s appeal

Harrisonville argues the trial court erred in reducing the punitive damages award against the fund from $8 million to $2.5 million. The city contends the fund failed to assert any due process violation as a defense at any time before the judgment was entered and, therefore, waived any argument that the jury’s award violated due process. The city asserts the jury’s $8 million punitive damages award did not violate the fund’s constitutional rights to due process. The city argues the fund’s conduct in this case was reprehensible and egregious. The city contends that the ratio of punitive damages to actual damages was not improper and that similar awards have been upheld in comparable cases. Harrisonville asserts the trial court properly refused to apply the statutory cap on punitive damages. The city argues it preserved its constitutional challenge and that, even if it did not, this Court already determined the cap violates the state constitutional right to a trial by jury and, therefore, is void. The city contends Missouri’s prohibition against retrospective laws further precludes the retroactive application of the statutory punitive damages cap in this case.

The fund responds that the trial court abused its discretion in entering a $2.5 million punitive damages judgment against the fund. The fund argues the city did not assert its claim that the cap is unconstitutional in a timely manner. Regardless, the fund contends the statutory cap on punitive damages is constitutional as applied both to the city as a plaintiff and to the fund as a defendant. The fund asserts the city has not shown that “heretofore” (i.e. when the state adopted its first constitution in 1820) a city, a political subdivision, had a right to have a jury consider, without limit, whether to award punitive damages against the fund, a government-created account in the state treasury. The fund responds that the trial court abused its discretion in entering a $2.5 million punitive damages judgment against the fund. The fund argues section 510.265.1(2), RSMo, limits punitive damages to five times the actual damages. It contends that five times the actual damages is about $860,500. The fund asserts that the due process clauses of the state and federal constitution limit punitive damages to a single-digit multiple of actual damages and that, even after remittitur, the punitive damages were 15 times the actual damages.

The fund’s appeal

The fund argues that the trial court erred in submitting the city’s fraud claim to the jury and in failing to grant the fund’s motion for judgment notwithstanding the verdict on that claim. The fund contends the city failed to make a submissible case of fraud because it presented no evidence that the city relied to its detriment on the alleged promise that the fund would pay the Midwest Remediation bill. Alternatively, the fund asserts the trial court erred in submitting to the jury the issue of punitive damages against the fund. The fund argues that it is an account in the state treasury that is not subject to a punitive damages award. It contends that no statute authorizes the fund to pay punitive damages awarded against the fund and that section 319.131.5, RSMo, provides that the fund shall not pay damages of an intangible nature or punitive damages awarded against insureds.

The city responds that it made a submissible case of fraud. It argues it established each element necessary for its fraud and negligent misrepresentation claims. It contends the fund promised to reimburse the remediation expenses if the city agreed to follow the fund’s plan and use the fund’s recommended contractor, the city agreed, Midwest Remediation performed the work, the city paid, but the fund refused to reimburse the city. The city asserts it presented evidence that it could have completed the sewer work at no additional cost to the city had the fund removed all the contaminated soil and replaced it with clean soil, which would have cost the fund $500,000 and that, instead, it agreed to the fund’s remediation plan, which resulted in substantial savings to the fund. The city argues that this shows detrimental reliance by the city on the fund’s representations and that the fund’s director admitted the fund never intended to pay for the remediation. The city responds that the fund is not precluded from paying punitive damages. The city contends that nothing in section 319.131.5 precludes an award of punitive damages against the fund itself and, as such, does not make the fund exempt for its own punitive conduct.

SC94115_Harrisonville_first_brief.pdf

SC94115_Missouri_Petroleum_Storage_Tank_Ins_Fund_first_brief.pdf

SC94115_Harrisonville_second_brief.pdf

SC94115_Missouri_Petroleum_Storage_Tank_Ins_Fund_second_brief.pdf

SC94120
Douglas Stewart v. Krikor O. Partamian, M.D., and Phoenix Urology of St. Joseph Inc.
Buchanan County
Challenge to jury verdict in medical negligence case, request to reduce damages
Listen to the oral argument:

SC94120.mp3
Partamian and Phoenix Urology were represented during arguments by James E. Meadows of Polsinelli PC in Springfield

Douglas Stewart sued Dr. Krikor Partamian and Partamian’s employer, Phoenix Urology of St. Joseph Inc., alleging they were medically negligent in not draining an abscess in Stewart’s prostate before the abscess ruptured in May 2009 and claiming infertility and other damages as a result. Partamian and Phoenix denied the core allegation and asserted affirmative defenses, including the right to rely on the provisions of chapter 538, RSMo, governing actions against health care providers. Before trial, Partamian and Phoenix moved to prevent Stewart from introducing into evidence portions of a videotaped deposition of another doctor whom Phoenix had terminated in which the doctor discussed partnership disputes at Phoenix and his own treatment of prostate abscesses. The trial court overruled the objections and allowed the videotaped testimony to be presented to the jury, but it did sustain Partamian and Phoenix’s pretrial motion to prevent witnesses from testifying about their own personal practice and about any lawsuits or claims against Partamian, Phoenix or expert witnesses. Following a December 2013 trial, the jury returned its verdict in Stewart’s favor, awarding him a total of $4.3 million in damages – including almost $1 million more in non-economic damages than Stewart requested in closing argument. The trial court entered its judgment against Partamian and Phoenix for the full amount of damages the jury found. Partamian and Phoenix filed a motion for a new trial or, alternatively, for remittitur (a judge’s reduction of the jury’s award of damages). The court overruled their motion for remittitur without analysis. Partamian and Phoenix appeal.

Partamian and Phoenix argue the trial court erred in overruling their motion to reduce the jury verdict on the basis of section 538.300. They contend the portion of this statute prohibiting defendants in medical negligence actions from seeking remittitur violates their right to a trial by jury under article I, section 22(A) of the state constitution. They assert that remittitur is an integral part of common law and the right to trial by jury “heretofore enjoyed” and that the jury verdict against them far exceeds fair and reasonable compensation for Stewart’s injuries. Partamian and Phoenix argue the trial court abused its discretion in allowing Stewart to present the other doctor’s videotaped testimony concerning his prior treatment of other patients with prostate abscesses. They contend that the testimony of a doctor’s personal practice or custom is not admissible to establish the standard of care and that evidence of similar occurrences is admissible only when such occurrences are sufficiently similar so as to outweigh concerns of prejudice and confusion. They assert the doctor’s testimony included no evidence of the other patients’ injuries or treatments and contradicted the testimony of Stewart’s expert about the standard of care, which was that prostate abscesses should be treated primarily with antibiotics and drained only if antibiotics fail to work. Partamian and Phoenix argue the trial court abused its discretion in allowing Stewart to present the other doctor’s reasons why he no longer worked for Phoenix. They contend that testimony involving an irrelevant and prejudicial side matter is inadmissible and that this doctor’s testimony implied to the jury that Phoenix was more concerned about money than the quality of Stewart’s care. Partamian and Phoenix assert the trial court prejudicially erred in refusing to grant their motion for a new trial. They argue the jury’s $4.3 million verdict was excessive, exceeded fair and reasonable compensation for Stewart’s damages, and was the product of passion and prejudice due to the other doctor’s testimony. They contend that the verdict exceeded the amount Stewart requested in his closing arguments and that Stewart showed no evidence of future medical expenses or future lost income.

Stewart responds that the court properly denied remittitur. He argues that Partamian and Phoenix failed to raise their constitutional argument at the earliest time and, therefore, should not be able to raise it now and that, in any event, the section 538.300 restriction on applying remittitur in medical negligence cases is constitutional. Stewart contends remittitur is antithetical to the right to trial by jury, is not a core incident to a jury trial, has not been held to be part of the right to a trial by jury and exists only by statute, but not in medical negligence actions. He asserts the evidence fully supports the economic and non-economic damages the jury awarded. Stewart responds that the trial court properly exercised its discretion in allowing him to explain the basis for the other doctor’s experience and the basis of his comment to Partamain about Stewart’s abscess. Stewart argues that Partamian failed to object during the deposition to this testimony, waiving any objections to use of that testimony. Stewart contends there were no comparisons made between Stewart and other patients and, therefore, no prejudice resulted. Stewart asserts the trial court properly admitted the other doctor’s testimony about the nature of the dispute between the doctor and Phoenix, which was not prejudicial and was necessary to explain any bias or prejudice Partamian and Phoenix might have used to impeach the doctor’s testimony. Stewart responds that the jury properly weighed the evidence, properly evaluated his injuries and awarded damages consistent with the evidence. He argues the award is in line with other damage awards in other cases and is not subject to reversal on any grounds.

SC94120_Partamian_and_Phoenix_Urology_brief.pdf

SC94120_Stewart_brief.pdf

SC94120_Partamian_and_Phoenix_Urology_reply_brief.pdf

SC94393
Paige Parr, a Minor, by and through her Conservator, Janett Waid, Jerimy Morehead and Charles Parr v. Charles Breeden, Wendy Cogdill and Melanie Buttry
New Madrid County
Co-employee liability for man killed in vehicle accident while working
Listen to the oral argument:

SC94393.mp3
The survivors were represented during arguments by Shaun D. Hanschen of Blanton, Rice, Nickell, Cozean & Collins LLC in Sikeston; the employees were represented by Michael S. Hamlin of Pitzer Snodgrass PC in St. Louis.

Kevin Parr was killed in an April 2008 single-vehicle accident on Interstate 55 while working as a truck driver for Breeden Transportation Inc. His survivors – Paige Parr, Jerimy Morehead and Charles Parr – subsequently sued three of his coworkers – Charles Breeden, president of the trucking company, and Breeden employees Melanie Buttry and Wendy Cogdill. At the time of the fatality, Parr was suffering from severe coronary artery disease, diabetes, obesity and probable sleep apnea and was medicated for the diabetes. Parr’s survivors alleged his coworkers never asked Parr about his health conditions or his use of narcotics or habit-forming drugs and never sought to have Parr medically recertified after two prior single-vehicle accidents – one occurring 17 days before the fatal accident – although at least Buttry was aware that Parr was using narcotics or habit-forming drugs and had fallen asleep while driving. Federal regulations disqualify drivers who have certain health problems. The employees moved for summary judgment (judgment on the court filings, without a trial) in February 2012; the survivors responded in May 2012. Following a July 2012 argument regarding the motion, the circuit court entered an order in December 2012 sustaining the employees’ motion for summary judgment and, in February 2013, made a docket entry overruling the survivors’ motion for reconsideration. In March 2013, the court entered its final judgment. The survivors appeal.

The survivors argue the circuit court erred in entering judgment in favor of the employees. The survivors contend a genuine issue of material fact exists as to whether the employees were negligent. The survivors assert that the employees admitted they had a duty to ensure that Breeden drivers were safe to operate a commercial motor vehicle and that the employees knew or should have known Parr was unable to operate a motor vehicle safely due to his health condition and previous single-vehicle accidents. The survivors argue that Parr’s death resulted from the employees placing him on the road and that the survivors suffered damages as a result. The survivors contend that, at a minimum, there was a genuine issue of material fact as to whether the employees breached their individual duties – separate and apart from their employer’s nondelegable duties – arising from federal regulations. The survivors assert that the employees failed to take steps to remove Parr from the road, to have him medically certified, or to provide him with additional training following his prior accidents. The survivors argue these failures caused or contributed to cause the accident resulting in Parr’s death.

The employees respond that the circuit court properly granted summary judgment. They argue that, under the law and undisputed facts, the survivors are unable to establish that the employees owed Parr a personal duty, independent of their employment, or that the employees breached a duty. The employees contend that the existence of a duty is a question of law and that 2005 amendments to the workers compensation act have not altered the analysis that co-employees are not liable for non-delegable duties owed by their employer. The employees assert that the allegations the survivors make fall within an employer’s non-delegable duties and that the survivors fail to establish an affirmative personal duty necessary to bring an action against them as Parr’s co-employees. The employees argue that the court should not consider deposition testimony submitted after it granted summary judgment. They contend the testimony of the survivors’ expert and of the employees fail to establish the employees had a personal duty to Parr independent of their employment. The employees assert federal regulations do not establish a personal duty on them, independent of their employment. The employees respond the survivors present nothing to show there is “something more” in this case to establish any liability.

SC94393_Parr_brief.pdf

SC94393_Breeden_brief.pdf

SC94393_Parr_reply_brief.pdf

SC94442
Curt Peters and Cheri Peters v. Wady Industries Inc. and Patrick Terrio
St. Charles County
Co-employee liability for workplace injury
Listen to the oral argument:

SC94442.mp3
The Peterses were represented during arguments by James M. Dowd of The James M. Dowd Law Firm PC in St. Louis; Terrio was represented by Teresa M. Young of Brown & James PC in St. Louis.

Wady Industries Inc. manufactured and shipped dowel baskets, one on top of another, to Tramar Contracting Inc. for its use in its concrete construction work. Tramar kept the baskets, which weigh about 200 pounds each, in a staging area until needed at a construction site. Tramar employee Curt Peters was injured in September 2008 when a row of dowel baskets fell onto him while he was unloading the baskets at a construction site. Peters and his wife sued Wady and Tramar project manager Patrick Terrio for negligence, alleging that Tramar employees previously had warned Terrio that the baskets were stacked dangerously, posing safety hazards to the workers. The circuit court dismissed Terrio from the suit, finding that the Peterses’ petition failed to allege Terrio breached a duty independent from Tramar’s non-delegable duty to provide a safe workplace. The Peterses appeal.

The Peterses argue the circuit court erred in dismissing their co-employee negligence claim against Terrio. They contend 2005 amendments to the state’s workers compensation act stripped co-employees of the immunity they had enjoyed from negligence claims by fellow employees, reinstating common law. The Peterses assert they pleaded facts sufficient to support a common law negligence claim by alleging that Terrio was individually negligent in ordering and directing Peters to stack and unload the Dowel baskets in a known dangerous manner, thereby creating the hazardous condition that directly resulted in the Peterses’ injuries.

Terrio responds that the circuit court did not err in dismissing the Peterses’ co-employee negligence claim against him because they did not show he owed or breached a duty to protect Peters from injury. He argues the Peterses did not allege that he independently and negligently made an otherwise safe workplace unsafe. Rather, Terrio contends, the Peterses allege only that he failed to correct the unsafe method Tramar used to transport dowel baskets. Terrio asserts that the Peterses’ allegations, therefore, fall within Tramar’s non-delegable duty to provide a safe workplace.

The Missouri Association of Trial Attorneys provides, as a friend of the Court, historic arguments that, before and after the state adopted its workers compensation act, this Court repeatedly recognized that co-employees had a personal duty to use ordinary care to prevent injuries to other employees caused by negligent operation of machinery, conduct that rendered and otherwise safe workplace unsafe, or by ordering subordinates into places of danger. The association contends that prior cases have caused confusion and that two districts of the appeals court now take different approaches to co-employee liability. The association asserts that Terrio breached a common law duty – owed to a fellow employee independent of Tramar’s non-delegable duties – to not order Peters to perform tasks Terrio knew were hazardous.

SC94442_Peters_brief.pdf

SC94442_Terrio_brief.pdf

SC94442_Peters_reply_brief.pdf

SC94442_Missouri_Assoc_of_Trial_Attorneys_amicus_brief.pdf