Tort Law
Editors:
Matthew A. Clement
R. Max Humphreys
Keith A. Cutler
Daniel R. Wichmer
Scott E. Garrett
Order setting aside default judgment, rendered within ninety days, is interlocutory and non-appealable. Estes v. Norwest Mortgage, No. 82102 (Mo. App. E.D., June 24, 2003) Mooney, J.
Plaintiff filed suit against defendant. At some point, defendant was dismissed from the lawsuit without prejudice. Later, the order of dismissal was set aside without notice to defendant. Upon receiving no responsive pleading from defendant, plaintiff sought and obtained a default judgment against defendant. Three weeks thereafter, defendant filed a motion to set aside the default judgment. The trial court granted the motion and plaintiff appealed.
Held: Appeal dismissed for lack of jurisdiction. "When a motion to set aside default judgment is filed within thirty days of the judgment, it is treated as an `authorized after trial motion,' which extends the court's control over the judgment to ninety days. A ruling made by a trial court granting a motion to set aside default judgment within the ninety-day period of control is interlocutory in nature and is not immediately appealable and a trial on the merits may follow. Here, the motion to set aside was filed within thirty days and the trial court granted the motion within ninety days. Therefore, the order of the trial court is interlocutory and not appealable." (italics original).
Trial court has discretion, in a FELA case, to grant a new trial on the ground that the verdict is against the weight of the evidence. Braddy v. Union Pacific Railroad Company, No. 81967, (Mo. App. E.D., July 1, 2003) Ahrens, J.
Plaintiff injured his back at work while preparing a railroad car for painting. Plaintiff filed a FELA action against his employer, and the jury returned a verdict in favor of the employer. Plaintiff requested and the court granted a new trial, on the ground that the verdict was against the weight of the evidence. Employer appealed the granting of a new trial, on the grounds that plaintiff failed to make a submissible case of the employer's negligence, and that Missouri law limits the trial court's authority, in FELA cases, to grant a new trial to instances only where there is a "complete absence of probative facts to support the conclusion of negligence."
Held: Affirmed. The court of appeals previously ruled in Sanders v. National Railroad Passenger Co., 930 S.W.2d 36 (1996) that the trial court's authority to grant a new trial on the ground that the verdict is against the weight of the evidence in FELA cases is limited to cases where there is a "complete absence of probative facts to support the conclusion of negligence." However, the court concluded that the decision in Sanders was incorrectly applied; the Sanders court used the standard that appellate courts use to set aside a jury's verdict, instead of using the standard appropriate for a trial court to review a jury's verdict. The appropriate standard for a trial court to use in FELA cases is set forth in Zibung v. Union Pacific Railroad Co., 776 S.W.2d 4 (1989). In Zibung, the Missouri Supreme Court held that Missouri courts may apply their own procedural rules in FELA cases. Since Missouri Rule of Civil Procedure 78.02 gives the trial court the authority to grant one new trial on the ground that the verdict is against the weight of the evidence, the trial court here did not err in ordering a new trial.
Employee injured in automobile accident while riding in employer's vehicle driven by co-employee had no claim against employer or co-employee other than under the Workers' Compensation Act. Kesterson v. Wallut, No. 61846, (Mo. App. W.D., July 8, 2003), Smith, J.
Plaintiff was injured while riding in a vehicle owned by her employer and driven by a co-employee. She filed a negligence action against the co-employee and an uninsured action against her insurance carrier. The trial court dismissed the negligence action for lack of subject matter jurisdiction based upon the Workers' Compensation Act. The trial court also granted summary judgment to the insurer based upon a finding that the co-employee while driving a state-owned vehicle in the scope and course of his employment was covered by the State Legal Expense Fund and was therefore not an uninsured motorist.
Plaintiff on appeal claimed that the negligence of the co-employee was separate and apart from the employer's duty to provide a safe workplace, therefore not under the exclusive jurisdiction of the Workers' Compensation Act. The court of appeals affirmed the trial court's dismissal on the basis that there were no negligent acts independent of the employer's duty to provide a safe workplace.
On the claim against the insurer, the court of appeals found that the judgment did not dispose of all of the claims between the plaintiff and her insurer. The plaintiff had alleged in addition to the fact that the driver of the vehicle in which she was riding was uninsured, that a phantom vehicle caused the accident so the judgment did not dispose of all of the claims. Therefore, the appeal was dismissed as premature.
Defendant could not present evidence to jury in support of motion to enforce settlement agreement. Ingram v. Rinehart, No. 61140, (Mo. App. W.D., June 30, 2003), Holliger, J.
Plaintiffs were seriously injured in an automobile accident by an intoxicated driver. At the jury trial the defendant admitted liability and the amount of medical expenses and economic damages. After a substantial verdict, defendant appealed.
Defendant had filed a motion to enforce settlement agreement which had been denied by the court prior to the trial. Defendant attempted to present evidence of the alleged settlement agreement to the jury but the trial court refused. Defendant claimed that the plaintiffs had agreed to settle for two-thirds of the policy limits. The verdict was substantially in excess of the policy limits.
The court of appeals determined that where a settlement agreement was still executory, it could be enforced in equity by a motion to enforce or an action for specific performance, neither of which would be submitted to a jury. The court further found that the evidence did not support the defense.
The defendant also appealed on the basis that the court had allowed evidence such as photographs of the accident scene, testimony from witnesses describing the circumstances leading up to the accident and several beer glasses that were the same size as those used by the defendant on the night of the accident. Defendant's claim was that since he admitted liability this evidence was cumulative and repetitive. The court of appeals determined that a party admitting liability could not foreclose the other party from introducing evidence of said liability.
The Missouri Bar Courts Bulletin,
3-Aug
|
