Tort Law

Editor:
Keith A. Cutler, Esquire

Humane Society is not liable for injury caused by animal it no longer possessed.  Miles, a minor, et al., v. Rich v. Humane Society of Missouri et al., No. 95112 (Mo. App. E.D., April 26, 2011) Crane, J.

Plaintiff was bitten by a dog, and filed suit for her injuries against Defendant, the dog's owner.  Defendant filed a third-party petition for contribution against the Humane Society, alleging that the Humane Society was negligent in failing to properly screen and test the dog before allowing Defendant to adopt it.  Defendant further alleged that the Humane Society was negligent in failing to advise Defendant of the risks of owning a dog that had already bitten someone once before.  The Humane Society filed a motion to dismiss the third-party petition for failure to state a claim.  The trial court granted the motion, and Defendant appealed.

Held:  Affirmed
.   Under Missouri law, which is based on the Restatement (Second) of Torts, only the owner, possessor or harborer of a domestic animal may be held liable in negligence for harm caused by the animal.   Once Defendant adopted the dog and took ownership and possession, the Humane Society was no longer an owner, possessor or harborer of the dog.  Therefore, there was no liability on the part of the Humane Society, and the third-party petition failed to state a cause of action.

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

Res judicata and/or collateral estoppel does not bar insurer from raising policy defenses where insurer was not named in underlying action, did not receive service or summons and provided defendant ad litem with counsel for the sole purpose of denying the right of coverage.Morgan v. State Farm Fire and Casualty Co., No. 30654(Mo. App. S.D., April 26, 2011), Francis, Jr., J.

Morgan brought an equitable garnishment action against State Farm to satisfy a judgment rendered in a separate wrongful death suit. The court granted State Farm's Motion for Summary Judgment allowing State Farm to assert policy defenses and determining the policies did not provide coverage. Morgan appealed, arguing State Farm waived its right to raise policy defenses and furthermore, is barred from doing so because of res judicata and/or collateral estoppel.  The court of appeals sustained State Farm's motion.

In the underlying action, State Farm was not named nor did it receive service or summons, and only provided the defendant ad litem counsel for the sole purpose of reserving the right to deny coverage.  After determining no policy applied, State Farm withdrew counsel and appeared again only to intervene and remove its name from the judgment.

Denying Appellant's first point, the court reiterated that waiver is not the preferred method for determining relinquished policy defenses; rather, estoppel with elements of unfairness, lack of notice or other detriment is favored. If by waiver, however, evidence must "clearly and unequivocally" show the insurer purposefully relinquished contractual rights. Here, the record is void of such proof, and instead, the evidence demonstrated State Farm specifically intended not to relinquish its right to raise defenses.

Contrary to Appellant's argument, there is no law that suggests appointment of a defendant ad litem is binding on the existence of coverage. Regardless of cases describing insurers as the "real defendant," State Farm appeared before the court only in a limited capacity. Even then, State Farm was in no position to raise defenses and could not intervene as a matter or right because there was no judgment against it as putative insured. To raise coverage issues during its limited stay as counsel would create a conflict of interest, as the defendant ad litem has a duty to claim and prove coverage of the deceased tortfeasor.

The court similarly dismissed the res judicata and collateral estoppel arguments. Relisting the four required identities of res judicata as identity (1) of the thing sued for, (2) of the cause of action, (3) of the persons and parties to the action, and (4) "identity of the quality of the person for or against whom the claim is made," the court noted the "identity of the cause of action" failed because the first suit was wrongful death and the second, a contract action.  The remaining elements did not need to be discussed.  Similarly, the court considered the four collateral estoppel elements, (1) identical issues, (2) judgment on the merits, (3) same party or privity, and (4) full and fair opportunity to litigate. The court determined none applied and furthered, it refused to use the doctrine to create coverage where it did not exist.

Appellant also argued the court erred in failing to enter post-judgment interest but because the summary judgment was sustained, this point was rendered moot and not discussed.

Where timely notice of a decision has not been received, appropriate avenue for relief is a Rule 74.03 motion, not the filing of an untimely appeal in violation of Rule 81.04. Temares v.  LSK Lebanon, Inc., et al., No. 30773 (Mo. App. SD., April 22, 2011), Francis, Jr., J

Stanley Temares sought review of the trial court's decision to sustain LSK's and Suzuki's joint Motion to Dismiss. Respondents argued the appeal was untimely, violating Rule 81.04. The court of appeals sustained the joint motion and denied the appeal.

In the initial action, Appellant filed suit and Respondents jointly motioned to dismiss.  On June 16, 2010, the court held a hearing and subsequently entered judgment dismissing the Appellant's claim with prejudice. The original docket sheet was initialed and indicated notice given. Appellant's counsel, however, inquired on July 8, 2010 about when the court might rule. Counsel was informed of the previous decision, and the court docketed the occurrence and re-sent notice. On July 14, 2010, the court entered an order stating the judgment was deemed final for purposes of appeal.  Appellants attempted to file an appeal on August 6, 2010, arguing it timely because it was filed within thirty (30) days of the July 14, 2010 order.

The court of appeals denied the appeal, holding the June 16 order final judgment under Rule 74.01 because it was initialed by the judge and denominated a "judgment" by the court's order. Consequently, under Rule 81.05, the judgment was final as of July 16, 2010, making notices of appeal due by July 26, 2010. The entry of July 14, 2010 did not effectively work to extend the deadline for filing appeals, when a proper judgment was previously entered.

The court explained that there is a rule to assist parties when notice of a decision is not received .Specifically, Rule 74.03 states "if such notice is not given, the order or judgment shall be set aside for good cause show upon written motion filed within six months from the entry of the order or judgment."  Because Appellants were given notice of the decision by at least July 8, 2010, the appropriate avenue for relief was Rule 74.03, not an untimely appeal.

The Missouri Bar Courts Bulletin, 11-Jun