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Tort Law

Keith A. Cutler, Esquire 

Relation back of amendments under Rule 55.33 applies to a change of parties where party sought to be added has been given notice sufficient to defend himself against the claims.  Johnson v. Delmar Gardens West, Inc., Delmar Gardens of Chesterfield, L.L.C., d/b/a Delmar Gardens of Chesterfield, and Delmar Gardens of Chesterfield, Inc., No. 95317 (Mo. App. E.D., March 8, 2011), Sullivan, J.
Plaintiff timely filed a wrongful death suit against Delmar Gardens West for the death of her husband.  In actuality, her husband had been a resident at Delmar Gardens of Chesterfield.   By the time Plaintiff realized that she had sued the wrong facility/entity, the statute of limitations had run on her wrongful death claim.   Plaintiff sought to amend her petition to name the correct facility (Delmar Gardens of Chesterfield) as a Defendant.  Delmar Gardens of Chesterfield filed a motion to dismiss based on the statute of limitations; Plaintiff argued that the statute of limitations had not expired because her amendment related back to the original Petition under Rule 55.33(c).  The trial court granted Delmar Gardens of Chesterfield's Motion to Dismiss, and Plaintiff appealed.
Held: Reversed and remanded.   The court of appeals noted that this was not a situation where the correct party had been sued, but under an incorrect name.  In this situation, the correct party was not initially named or served in the lawsuit at all.    Rule 55.33(c) allows an amendment changing a party to relate back to the original petition if the party to be brought in by amendment (1) has received such notice of the lawsuit as will not prejudice that party, and (2) knew or should have known that, but for a mistake, suit would have been brought against that party.  In this case, both criteria were satisfied.  The evidence showed that both Delmar Gardens entities shared the same corporate headquarters, registered agent, and attorneys.  Their annual reports with the Secretary of State's Office were filed by the same person, and show that they share a majority of the same officers and directors.  "Rule 55.33 is to be applied liberally, and is based on the concept of whether a defendant has been given notice sufficient to defend himself against the claims."  Therefore, the trial court erred in dismissing the lawsuit, and the case was remanded.

Edward J. Hershewe, Esquire
Alison R. Hershewe, Esquire 

City of West Plains held vicariously liable for personal injury negligently caused by city fire fighter en route to an emergency in his personal vehicle. Judgment against city for $162,500 upheld despite numerous procedural objections including: late amendment to the pleadings, alleged error in verdict directing instruction, denial of affirmative converse instruction, no prejudice from mention of insurance, reading a city ordinance at trial, and value of medical services. Wheeler v. Phenix and City of West Plains, No. 30371 (Mo. App. S.D., February 8, 2011),Francis, Jr., J.
In the original action, Respondent, Desiree Wheeler, was a passenger in a car driven by Frances Ness. As she approached a green light and attempted to turn left, Michael Phenix, a city firefighter en route to an emergency, drove his personal vehicle with lights and sirens on through a red light, striking Ness's car. The Respondent filed a personal injury suit against Phenix, later amending to add West Plains under vicarious liability. A jury trial resulted in a judgment against the city of West Plains for $162,500. The city appealed on six separate points. All points were denied and the judgment affirmed.
Point 1: Late Amendment to the Pleadings-Two days before trial, the Respondent moved to file an amended petition, adding negligence counts based on city ordinances. The motion was sustained, and only on appeal did the city formally object to its timeliness. Reviewing under an abuse of discretion standard, the court stressed the rules are designed to "liberally permit amendments when justice so requires," considering potential hardships, surprises, and deprivation of claims or defenses. The court stated this motion was sufficient as it engaged the same defense strategy, and the Appellant presented no evidence the amendment denied it any claim, defense, or additional discovery.
Point 2: Alleged Error in Verdict Directing Instruction-The Appellant argued that a definitional difference in the term "emergency vehicle" between the city ordinance and state law created an error in a jury instruction. Under a de novo review, the court noted the term was not even mentioned in the particular instruction and therefore, any conflict is irrelevant.
Point 3: Denial of Affirmative Converse Instruction-The Appellant claimed the court erred in refusing a tendered affirmative converse instruction to follow the Respondent's negligence per se instruction. Under de novo review, the court said the issue is whether the tendered instruction was correct and proper in form, as the burden is on the Appellant to submit a proper instruction showing legal justification or excuse. The court held the instruction improper as the Appellant used the term "negligence" for the first time without defining it, leaving the jury without guidance. Additionally, the court stressed the Appellant did not object to the form of the Respondent's verdict director or tender an instruction that included the required affirmative defense tail for the verdict director.
Point 4: No Prejudice From Mention of Insurance-In an attempt to establish a foundation at trial, the Appellant's Safety Director was asked if an accident report was prepared in the ordinary course of business. He responded, "[i]t's prepared for the insurance company." The Appellant immediately requested but was denied a mistrial. Reviewing under abuse of discretion, the court noted it is normally "improper to inject the issue of the existence of liability insurance into an action for damages.but not every reference warrants reversal." In this instance, the court concluded the question was not asked in bad faith because it was asked only once, never revisited, and worded to elicit a yes or no response.
Point 5: Reading a City Ordinance at Trial-The Appellant argued the court erred in allowing an in-court reading of city ordinances because law is supposed to be derived from submitted instructions and the reading mislead the jury as to a purported conflict in city and state law. The court, under an abuse of discretion standard, noted case law does prohibit the reading of state statutes, but even the Appellant admitted no such case law exists for city ordinances. Regardless, when a statute is read it "is reversible error only if counsel misstates the law, or states it in a manner calculated to mislead the jury," and here, the court held counsel did misstate or mislead.
Point 6: Value of Medical Services-Before trial, both parties filed motions asking the court assess the value of medical services pursuant to Section 490.715, RSMo.  Accordingly, the Respondent presented nine affidavits and an itemized summary. The Appellant argued the court's determination that the Respondent's evidence represented the value of services lacked of sufficient proof. The court said the finding must be upheld unless there is "no substantial evidence to support," it is "against the weight of the evidence," or it "erroneously declares or applies the law." Considering the Appellant filed no controverting affidavits, the court held the nine affidavits and other evidence sufficient. A further argument that the affiants' statements were based on "mere speculation, guess or conjecture" was dismissed because the information was apparently based on personal knowledge and determining credibility is a matter for the trial court.

Plaintiffs Wallace and Deborah Shields (the Shields) appeal from a denial of a motion for new trial following a jury verdict in favor of the Defendant Freightliner of Joplin, Inc. (Freightliner). The Shields moved for a new trial on the basis of intentional voir dire nondisclosure by juror Russell Allgood (Allgood). The denial was affirmed. Shields v. Freightliner of Joplin, Inc., No. 29515 (Mo. App. S.D., February 28, 2011), Bates, J.
In the original action, the Shields alleged Freightliner was negligent in failing to repair a defective steering mechanism that caused its vehicle to run the Shields' RV off the road. During voir dire, the Shields' counsel asked if jurors (1) knew Kevin Loudermilk (Freightliner employee); (2) were ever wrongly accused of   "something" or been a "defendant" in a lawsuit; or (3) had mechanical knowledge, ever performed, or otherwise trained to, service vehicles. Allgood did not respond and was seated as a juror, signing the verdict.
The Shields made a timely motion for a new trial, claiming Allgood intentionally failed to disclose (1) two orders of protection issued against him, and (2) he knew or recognized Loudermilk. The motion did not mention the series of service work questions.
At the hearing, Allgood admitted that his wife, twice, filed pro se petitions seeking orders of protection, to  which he appeared pro se and did not contest. He testified he did not understand those to be lawsuits like the one between the Shields and Freightliner but rather, personal matters between spouses. Similarly, evidence was presented that a home, lived in by Allgood's mother but jointly owned, was sold to Loudermilk in 2004. Allgood testified he had little to do with the sale, and never met the purchaser.
The Shields, additionally, argued intentional non-disclosure concerning the service questions. Allgood testified to changing oil and flat tires but did not consider himself any more knowledgeable than the average person. Freightliner properly objected, as the subject was not mentioned in the motion.
Concerning the orders, the court found no intentional nondisclosure because Allgood had not been asked "a clear question," and believed Allgood's testimony genuine in his misunderstanding of "lawsuit." Similarly, the court was satisfied with Allgood's testimony that he did not know or recognize Loudermilk, finding no intentional nondisclosure. Lastly, based on his testimony and demeanor, the court found Allgood did his best in answering the service questions and found no intentional nondisclosure.
On appeal, the court reviewed the case under the abuse of discretion standard. Setting out a venire person's duty, the court said a juror's response "is triggered only after a clear question has been asked," meaning the question must "clearly and unambiguously trigger the juror's obligation to disclose the information requested."  If nondisclosure is found, next is a determination of whether it was intentional or unintentional. Nondisclosure is considered intentional when "(1) there is no reasonable inability of the prospective juror to comprehend the information solicited by the question; and (2) the prospective juror actually remembers the experience, or it was of such significance that his or her purported forgetfulness is unreasonable." Oppositely, nondisclosure is unintentional if "(1) the juror forget[s] about an experience that was insignificant or remote in time; or (2) a prospective juror reasonably misunderstand[s] about the questions posed."  Intentional nondisclosure of material information assumes prejudice and bias, but unintentional nondisclosure must be accompanied by actual, resulting bias and prejudice.
Reviewing the three issues individually, the court found no nondisclosure concerning Allgood's knowledge of Loudermilk. The appellate court stated that the trial court had the opportunity to assess Allgood's demeanor, from which it was convinced Allgood did not know Loudermilk. This finding was supported by ample evidence that Allgood did not live at the property and was barely involved in its sale.
Next, the court found the question asking if "anybody has ever been accused of something that they did not do" to be unclear, extremely vague and ambiguous.
The court restated nondisclosure is unintentional when questions are reasonably misunderstood. In further review, the court stated counsel, evidently, was not digging for personal information, and the orders referred to Allgood as a respondent, not a defendant. Based on this evidence and the weight given trial court's finding of creditably, the court denied this point as well.
Last, the court found the line of questions concerning mechanical training was not properly reserved for review. Relying on Rule 78.07, the court said complained errors should be "stated specifically," and the motion contained nothing about failing to disclose mechanical knowledge or service work. The court refused to raise plain error sua sponte. Nonetheless, the court included a footnote that claimed, even if properly reserved, the trial court's finding was not an abuse of discretion.
In conclusion, the court found the trial court did not abuse its discretion in denying the Shields' request for a new trial.

The Missouri Bar Courts Bulletin, 11-Apr