Billingsley v. Ford Motor Co.

939 S.W.2d 493, 1997 Mo. App. LEXIS 160, 1997 WL 29287
CourtMissouri Court of Appeals
DecidedJanuary 28, 1997
Docket20987, 20988
StatusPublished
Cited by13 cases

This text of 939 S.W.2d 493 (Billingsley v. Ford Motor Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billingsley v. Ford Motor Co., 939 S.W.2d 493, 1997 Mo. App. LEXIS 160, 1997 WL 29287 (Mo. Ct. App. 1997).

Opinions

SHRUM, Judge.

These consolidated appeals by the defendant, Ford Motor Company (Ford), are before this Court for the second time.1 In No. 20988, Ford appeals the denial of a motion to set aside a default judgment for Plaintiffs. This default judgment, dated April 30, 1996, re-entered the same default judgment that was entered on April 6,1995, but apportioned damages among Plaintiffs. The judgment was entered in Plaintiffs’ action for wrongful death and injuries arising out of a motor vehicle accident. Ford filed a motion to set aside the judgment in accordance with Rule 74.05(d),2 asserting that it had a meritorious [495]*495defense to Plaintiffs’ claims and that there was good cause to set aside the judgment.

In No. 20988, this Court reverses the order denying the motion to set aside the judgment. The case is remanded and the trial court is directed to set aside the default judgment and allow Ford a reasonable time in which to file an answer.

In No. 20987, Ford attempts to appeal from the default judgment itself. However, in disposing of No. 20988, this court has accorded Ford all the relief it seeks in No. 20987, thus rendering moot the questions presented by No. 20987. Accordingly, No. 20987 is dismissed.

John Billingsley II (Deceased), died from injuries he sustained on May 6, 1992, when his 1988 Ford Bronco II “rolled over” as he attempted to avoid an oncoming white car in his lane of traffic. Deceased’s wife and son, passengers in the Bronco II, were also injured.3 The identity of the driver of the “white car” was never determined, and in their eventual lawsuit, Plaintiffs assigned the name “John Doe” to that unknown defendant.

Following the accident, Plaintiffs hired the Springfield, Missouri, law firm of Woolsey, Fisher, Whiteaker & McDonald (Woolsey Fisher) to pursue their claims against Ford for damages resulting from this accident. In May 1993, Woolsey Fisher sent a settlement brochure to attorneys W. Russell Welsh (Welsh) and Douglas S. Laird (Laird) of the Kansas City firm of Polsinelli, White, Varde-man & Shalton (Polsinelli White) in which they told them about the accident and Plaintiffs’ claims against Ford. We glean from the record that Woolsey Fisher’s initial contact was with Polsinelli White rather than Ford because of Woolsey Fisher’s considerable experience with Polsinelli White in other cases involving Ford products.

Welsh testified that he had a lengthy attorney-client relationship with Ford, having represented them “since 1981 continuously.” By 1993, Polsinelli White was regional counsel for Ford, and Welsh was the “responsible attorney primary contact with Ford.”

Once Woolsey Fisher notified Polsinelli White of Plaintiffs’ claim, the two firms engaged in several pre-suit activities to evaluate Plaintiffs’ claims. For example, Plaintiffs provided Polsinelli White with medical information. Lawyers from Polsinelli White also took sworn statements from Wife, Parents, and two psychologists who had treated Wife and Son. Polsinelli White personnel and automotive engineers acting for Ford performed a videotaped inspection of the Bronco II. Lawyers from the two firms talked settlement but none was reached.

On February 8, 1995, Plaintiffs filed suit against Ford and “John Doe” in Polk County. Discovery requests were included as part of Plaintiffs’ February 8 filings. Attorney Richard E. Davis (Davis) of Woolsey Fisher sent a courtesy copy of the petition to Laird at Polsinelli White on February 10, 1995. Davis’ letter to Laird on the same date included this paragraph:

“Under separate cover you will receive courtesy copies of all pleadings and discovery filed in the above captioned matter on February 8, 1995. I assume, but do not know, that your office will be handling the defense of this matter on behalf of Ford Motor Company.”

Ford’s registered agent in Missouri was served with the summons, petition, and discovery requests on February 15, 1995. The suit papers served on Ford’s registered agent were in the hands of John L. Wanamaker (Wanamaker), a senior attorney in Ford’s office of general counsel, by February 22, 1995. On that date Wanamaker mailed the documents to Welsh at Polsinelli White with instructions that they should “enter an appearance on behalf of [Ford] and take such steps as immediately necessary to protect its interests, consistent with the guidelines set out below.” The assignment letter also states:

“Pleadings ... you propose to file with the Court,' must have my approval. I should receive a copy of the draft you propose to file at least five (5) business days before it is due to be filed.... After [496]*496reviewing the draft, unless unforeseen circumstances or conflicts arise, I will contact you with my thoughts, comments, suggestions or revisions. All documents should be filed in a timely manner and, accordingly, you should file the proposed draft in fined form if you have not heard from me before it is due.”

Welsh received the suit papers from Wanamaker on February 23. He immediately dictated a letter to Wanamaker in which he confirmed that Polsinelli White would represent Ford in the case. Welsh’s letter to Wanamaker also stated that he was assigning the case to Polsinelli White associate, David Boman (Boman). Welsh testified that when he dictated the letter to Wanamaker, he directed that a copy thereof be sent to Boman. This was in keeping with the usual practice in the firm that the acknowledgment letter to the client also served to notify an associate such as Boman of his responsibility to prepare responsive pleadings in the case. Welsh dictated the client acknowledgement letter on a cassette tape dictation system. Welsh’s secretary, Randi L. Kuhl (Kuhl), typed the letter in draft form but the letter did not go out as Welsh had anticipated. Welsh testified that he did not know the exact reason the letter was not placed in final form and mailed. However, he did suggest two possibilities: First, that he “returned the draft to [Kuhl] and she for whatever reason either mislaid it or didn’t type it[;]” or second, “I did not return the draft to [Kuhl].” Thus, although Welsh “intended to get this [assignment letter] to ... Boman so that he could file the answer as we were directed to do[,]” Boman received neither the assignment letter nor Plaintiffs’ petition, summons, and discovery requests. Consequently, Bo-man knew nothing of his assigned responsibility regarding the suit, and the March 17, 1995, deadline for Ford to plead to Plaintiffs’ petition passed without any response.

Welsh testified that in the six-week period after dictating the assignment letter, he first was preparing for a two-week trial in another matter and then was away from his office. From March 8 to March 21 — the time frame in which the answer deadline passed — Welsh was in trial in Jefferson City. Immediately thereafter, Welsh left on a vacation and was gone until April 3,1995.

On Monday, March 20, 1995, the first business day after a response to Plaintiffs’ petition was due, Plaintiffs moved for and obtained an interlocutory order of default.4 Neither Ford nor its lawyers were notified of the filing of the motion or the entry of the default judgment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jones v. Riley
560 S.W.3d 540 (Missouri Court of Appeals, 2018)
Lewis v. Lewis
375 S.W.3d 870 (Missouri Court of Appeals, 2012)
First Bank of the Lake v. White
302 S.W.3d 161 (Missouri Court of Appeals, 2009)
Wilderman v. Drawbond
267 S.W.3d 772 (Missouri Court of Appeals, 2008)
Brungard v. RISKY'S INC.
240 S.W.3d 685 (Supreme Court of Missouri, 2007)
Pyle v. Firstline Transportation Security, Inc.
230 S.W.3d 52 (Missouri Court of Appeals, 2007)
Heintz Electric Co. v. Tri Lakes Interiors, Inc.
185 S.W.3d 787 (Missouri Court of Appeals, 2006)
CBD Enterprises, Inc. v. Braco Manufacturing, Inc.
181 S.W.3d 129 (Missouri Court of Appeals, 2005)
Reed v. Reed
48 S.W.3d 634 (Missouri Court of Appeals, 2001)
Winsor v. Terex-Telelect-Inc.
43 S.W.3d 460 (Missouri Court of Appeals, 2001)
Klaus v. Shelby
42 S.W.3d 829 (Missouri Court of Appeals, 2001)
Young v. Safe-Ride Services
23 S.W.3d 730 (Missouri Court of Appeals, 2000)
Billingsley v. Ford Motor Co.
939 S.W.2d 493 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
939 S.W.2d 493, 1997 Mo. App. LEXIS 160, 1997 WL 29287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billingsley-v-ford-motor-co-moctapp-1997.