Great West Casualty Company v. Deborah Carr

• Court: Missouri Court of Appeals
• Decided: February 15, 2022
• Docket: ED109819
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION ONE

GREAT WEST CASUALTY COMPANY, ) No. ED109819 ) Appellant, ) Appeal from the Circuit Court of ) St. Louis County vs. ) ) Honorable John N. Borbonus DEBORAH CARR, ET AL., ) ) Respondents. ) Filed: February 15, 2022

I. Introduction

Great West Casualty Company (“Great West”) appeals from the judgment of the Circuit

Court of St. Louis County, whereby Great West was dismissed, without prejudice, from the

underlying interpleader action it commenced to determine the proper distribution of $1 million of

insurance proceeds following a vehicular accident caused by its insured. In its sole point on

appeal, Great West argues that although the circuit court correctly dismissed it from the

interpleader action, its dismissal should have been with prejudice, as a dismissal without

prejudice is erroneous because it remains exposed to additional liability beyond the policy limits

of its insured. However, because Great West did not file a motion to amend the judgment

pursuant to Rule 78.07(c)1, Great West has not preserved this issue for appellate review, and

thus, this appeal must be dismissed.

1 All rule references are to Missouri Supreme Court Rules (2019). II. Factual and Procedural Background

This case arises from a tragic multi-vehicle motor vehicle accident that occurred on

Interstate 64 in St. Louis County, Missouri on January 23, 2018 (the “Accident”). Specifically,

an employee of Great West’s insured, Diamondback Services, Inc. (“Diamondback”), allegedly

caused the Accident, which resulted in the death of Ryan Stoll (“Stoll”) and bodily injuries to

several others, as well as substantial property damage. Stoll’s parents, Chet Stoll and Deborah

Carr (collectively the “Parents”), filed suit against Diamondback in the Circuit Court of St. Louis

County in 2018; several other individuals injured in the Accident also made claims against

Diamondback for bodily injury and property damage (collectively the “Claimants”).

Although Great West attempted to reach a global settlement with all the Claimants, it was

unable to do so, as the Claimants’ total demands exceeded the $1 million limits of its insured’s

policy. On July 15, 2019, Great West commenced an equitable action for interpleader pursuant

to Rule 52.07, naming each of the Claimants as defendants therein (the “Petition”).

After each Claimant had been served with the Petition and filed a responsive pleading

thereto, Great West filed its Motion for Order of Payment and Discharge of Liability on

November 20, 2019, whereby Great West requested: (1) that the circuit court accept jurisdiction

of the insurance proceeds; and (2) that Great West be “discharged from any and all liability with

respect to this case and, more particularly, any and all liability with respect to the policy of

insurance issued by [Great West] to Diamondback Services, Inc., … and dismissed as a party in

this action.” In their written response to Great West’s motion, Parents objected to the scope of

the relief being sought by Great West, noting that it was “extraordinarily broad and vague,” and

furthermore, was “much broader than allowed by Rule 52.07.” The circuit court subsequently

issued an order, dated March 20, 2020, whereby Great West was ordered to deposit the sum of

2 $1 million with the clerk of the court. At this time, however, the circuit court did not rule on

Great West’s request to be dismissed and discharged from any and all liability with respect to

this case.

Great West was subsequently granted leave to file an amended petition that also sought

relief pursuant to § 507.060, RSMo.2, which was deemed filed as of October 16, 2020 (the

“Amended Petition”). In its Amended Petition, Great West requested the following in its prayer

for relief:

C. That Plaintiff and its insureds may be fully and finally discharged from all further liability by reason of filing this interpleader cause of action and payment of the proceeds of the Policy into this Court, pursuant to R.S.Mo. [§] 507.060.

D. That Defendants be required to execute a full release of all insureds under the Plaintiff’s policy upon distribution of interplead [sic] funds.

On March 4, 2021, Parents filed their Motion for Order and Judgment Dismissing

Plaintiff (the “Motion for Dismissal”), which requested an order dismissing Great West from the

interpleader action. On the same date, Parents also filed their Motion for Judgment of

Distribution of Interpleaded Funds, which requested the distribution of the interpleaded funds

according to the allocation agreed to by the Claimants. Following additional motion briefing by

Great West and Parents, including the parties’ submission of proposed judgments, the circuit

court entered two separate judgments on June 14, 2021, which effectively disposed of the case.

Both of the judgments entered were those proposed by Parents.

First, the circuit court entered a Judgment and Order Dismissing Plaintiff (the “Dismissal

Judgment”), whereby Great West was dismissed from the case and discharged from further

liability. Specifically, ¶ 3 of the Dismissal Judgment contained the following simple dismissal

2 All statutory references are to Mo. Rev. Stat. Cum. Supp. (2019).

3 language: “That Plaintiff is hereby dismissed from this action.” In addition, ¶ 4 of the Dismissal

Judgment provided as follows regarding Great West’s discharge from further liability:

The Court further orders Plaintiff Great West Casualty Company to be discharged from further liability, regarding its policy number GWP147160, with respect to any claims of Defendants to the funds deposited arising out of the multi-vehicle collision which occurred on or about January 23, 2018 on eastbound Interstate 64 of St. Louis County, Missouri; and orders each party to pay his/her/its own attorney fees and costs. This Judgment makes no finding regarding Plaintiff’s claim under R.S.Mo. 507.060.4 as that issue is not ripe for determination.

Second, the circuit court entered its Judgment and Order of Distribution (the “Original

Distribution Judgment”), whereby the court adopted the Claimants’ agreement regarding the

distribution of the interpleaded insurance proceeds, of which Parents received the lion’s share—

$963,176.90. However, due to an apparent minor mathematical error in dividing the insurance

proceeds in the Original Distribution Judgment, the circuit court entered an Amended Judgment

and Order of Distribution (the “Amended Distribution Judgment”) on July 7, 2021, whereby

Parents’ distribution was reduced by $0.03, to $963,176.87. In all other respects, the Amended

Distribution Judgment was identical to the Original Distribution Judgment.

Although not adopted by the circuit court, Great West submitted its own proposed order

in connection with the parties’ motion briefing, discharging it from further liability and

specifying the distribution of the insurance proceeds to the Claimants. While Great West’s

proposed order was virtually identical to that of Parents with respect to the distribution of the

insurance proceeds, there were several noteworthy differences with respect to its proposed

discharge from further liability. First, ¶ 16 of Great West’s proposed order stated:

The Court further orders Plaintiff Great West Casualty Company to be discharged from further liability, pursuant to Mo. Rev. Stat. §507.060, with respect to any and all claims of Defendants arising out of the multi-vehicle collision which occurred on or about January 23, 2018 on eastbound Interstate 64 St. Louis County, Missouri; and orders each party to pay his/her/its own attorney fees and costs.

4 Second, ¶ 17 of Great West’s proposed order stated, in pertinent part, as follows:

The Judgment in no way is to be construed as a determination of liability, fault, or damages of any party except as to Plaintiff. The Judgment does not release any party from liability except Plaintiff as stated herein. The Judgment is not to be construed to limit or prevent the parties from making claims and/or adjudicating claims and liability and damages arising from the underlying motor vehicle collisions except as it relates to claims against Plaintiff. The Court recognizes the interplead [sic] funds are limited and may not fully compensate the parties.

It is worth noting that Great West’s proposed judgment did not in any way provide for its

own “dismissal” from the interpleader action (either with or without prejudice); rather, it simply

provided for Great West’s “discharge from further liability,” as set forth in ¶ 16 above. It is also

worth noting that the record does not reflect that Great West ever filed a motion to amend the

Dismissal Judgment, pursuant to Rule 78.07(c), after it was filed on June 14, 2021. In addition,

the record does not reflect that Great West otherwise objected to the Dismissal Judgment,

including a motion filed pursuant to Rule 78.09. At oral argument, counsel for Great West

acknowledged that no such motions were filed. Rather, following the Amended Distribution

Judgment becoming final, Great West simply filed its timely notice of appeal, and this appeal

followed.

III. Standard of Review

“The standard of review in suits of an equitable nature is that the judgment of the trial

court will be sustained unless there is no substantial evidence to support it, it is against the

weight of the evidence or unless it erroneously declares or applies the law.” Anglen v.

Heimburger, 803 S.W.2d 109, 112 (Mo. App. W.D. 1990) (citing Murphy v. Carron, 536 S.W.2d

30, 32 (Mo. banc 1976)); accord Amwest Sur. Ins. Co. v. Stamitiou, 996 S.W.2d 708, 711 (Mo.

App. W.D. 1999).

5 IV. Discussion

As a preliminary matter, because Great West’s dismissal in ¶ 3 of the Dismissal

Judgment was not expressly with prejudice, we must presume that it was without prejudice. See,

e.g., Jeffrey v. Cathers, 104 S.W.3d 424, 428 (Mo. App. E.D. 2003) (citing Rule 67.03).

Furthermore, although “[t]he general rule is that a dismissal without prejudice is not a final

judgment and, therefore[,] cannot be appealed,” a party may nonetheless appeal from a dismissal

without prejudice “if the dismissal has the practical effect of terminating the action in the form

cast.” Id. In this case, because the Dismissal Judgment had the practical effect of terminating

the interpleader action as to Great West, it became a final judgment from which an appeal was

permitted upon the Amended Distribution Judgment becoming final.

However, before we can reach the merits of Great West’s sole point on appeal, we must

first address whether this point was properly preserved for appellate review. Great West argues

that the circuit court should have dismissed it from this interpleader action with prejudice, but

instead erroneously dismissed it without prejudice, which Great West argues does not provide it

with “finality,” and leaves it exposed to “liability in excess of policy limits upon the tendering of

policy limits.” However, as further explained below, we need not address whether the circuit

court erred in this regard because we find that Great West failed to preserve this issue for

appellate review by not filing a motion to amend the Dismissal Judgment pursuant to Rule

78.07(c), which was required because this allegation of error relates to the form or language of

the Dismissal Judgment.

Rule 78.07, which addresses after-trial motions, generally governs our disposition of this

appeal. However, as sub-section (a) of Rule 78.07 pertains to jury tried cases only, it is not

relevant; rather, sub-sections (b) and (c) state the relevant provisions. Sub-section (b) generally

6 provides that neither a motion for a new trial nor a motion to amend the judgment are required in

cases tried without a jury, such as this one; however, sub-section (b) is subject to sub-section (c),

which further provides that, “[i]n all cases, allegations of error relating to the form or language

of the judgment, … must be raised in a motion to amend the judgment in order to be preserved

for appellate review.” (Emphasis added).

Missouri courts have specifically recognized that “[t]he purpose of Rule 78.07(c) is to

ensure that complaints about the form and language of judgments are brought to the attention of

the trial court where they can be easily corrected, alleviating needless appeals, reversals, and

rehearings.” Ruhl ex rel. Axe v. Ruhl, 401 S.W.3d 553, 557 (Mo. App. W.D. 2013) (quoting

Gerlt v. State, 339 S.W.3d 578, 584 (Mo. App. W.D. 2011)). “Issues not preserved are not

entitled to review on appeal; however, we may review plain errors affecting substantial rights

resulting in manifest injustice or a miscarriage of justice.” Id. (quoting Downard v. Downard,

292 S.W.3d 345, 348 (Mo. App. E.D. 2009), and citing Rule 84.13(a), (c)).

In this case, there is no dispute that Great West did not file a motion to amend the

Dismissal Judgment pursuant to Rule 78.07(c) prior to commencing this appeal. However, if

Great West had an issue with being dismissed from the interpleader action without prejudice, in

order to preserve that issue for appellate review, it was required to raise the issue with the circuit

court via a timely motion to amend the Dismissal Judgment pursuant to Rule 78.07(c). Through

the filing of the motion, the circuit court could easily have corrected the language of the

judgment, provided that Great West was entitled to a dismissal with prejudice.3

Furthermore, although we acknowledge that Great West argued it was entitled to a

dismissal with prejudice in its motion briefing to the circuit court, this pre-judgment argument

3 Although we expressly do not decide whether Great West would have been entitled to a dismissal with prejudice under the particular facts and circumstances of this case if the issue had been timely raised, such relief appears unlikely under applicable Missouri law, as Parents argued in their motion briefing to this Court.

7 does not obviate the need to file a timely motion to amend the Dismissal Judgment itself

pursuant to Rule 78.07(c), which Great West failed to do. Although such a motion may have

seemed redundant to Great West’s counsel at the time, the language of Rule 78.07(c) is very

clear, and we simply cannot ignore it. Such a motion was especially important in this case

because, as noted, Great West’s own proposed order did not in any way provide for its own

“dismissal” from the interpleader action (either with or without prejudice); rather, its proposed

order simply provided for Great West’s “discharge from further liability,” as set forth in ¶ 16

thereof. On the other hand, the proposed order submitted by Parents, which the circuit court

ultimately adopted, did provide for Great West’s “dismissal,” albeit without specifying whether

the dismissal was with or without prejudice. Therefore, under these specific facts, Great West

can hardly convict the circuit court of error in failing to dismiss it with prejudice, as Great West

was required to call this issue to the attention of the circuit court on a timely basis. If

appropriate, the circuit court could have corrected the wording of the Dismissal Judgment

quickly and efficiently without the necessity of this appeal, which is the whole point of Rule

78.07(c). Ruhl, 401 S.W.3d at 557.

Consequently, because Great West failed to file a motion to amend the Dismissal

Judgment pursuant to Rule 78.07(c), Great West has failed to preserve this issue for appellate

review, waiving its sole claim of error. Ruhl, 401 S.W.3d at 557. Accordingly, this appeal must

be dismissed.

V. Conclusion

For these reasons, the appeal is dismissed.

_______________________________ Kelly C. Broniec, Judge Kurt S. Odenwald, P.J. and John P. Torbitzky, J. concur.