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.
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