Civil Practice & Procedure

John S. Sandberg, Esquire

Labor and Industrial Relations Commission has power to approve future settlements of death awards. Roth (deceased), et al, vs. J.J. Brouk & Company Corp., et al., No. 96708 (Mo. App. E.D., November 15, 2011), Ahrens, P.J.

The deceased died from lung cancer and his survivors alleged that the death was the result of asbestos exposure at work. The commission agreed in 2004. In 2011 the parties executed a structured settlement agreement which was submitted to the commission for approval but the commission refused to approve it on the basis that the law did not give the commission authority to do so.

Held: Reversed.
While the power of an administrative agency is limited to what the legislature has granted, here the CSR gives the commission authority to modify final awards on notice and § 287.241 allows for structured settlements. The commission had the authority to approve the proposed settlement. (See also, Wilson v. Wilson, No. 73742, summarized in Workers' Compensation, infra).

Service is shown by filing proof of service. Maddox, Jr., et al, v. State Automobile Mutual Insurance Company, No. 96220 (Mo. App. E.D., October 25, 2011), Romines, J.

Plaintiff sued defendant for money damages. Since defendant was an insurer plaintiff sent the summons to the Director of the Department of Insurance. While the Director was served he did not forward the suit papers to the insurer because the proper forms had not been submitted. Nevertheless, plaintiff moved for and was granted a default. Ten years later the plaintiff moved to revive the judgment of default. Defendant appeared and moved to set aside the default. The default was set aside and the revival was denied.

Held: Affirmed.
Rule 54.20(c) requires filing of proof of service with the court. Judgment was void due to the absence of proof.

Summary judgment affirmed where trial court’s failure to consider affidavit was error but such error created no dispute of material fact. Calvert v. Plenge, No. 96073 (Mo. App. E.D., November 1, 2011), Odenwald, C.J.

Plenge owned 1200 acres of farmland. She transferred the property to Calvert with the alleged promise that he would transfer it back when ordered. In 2003 Plenge asked for the land but Calvert refused. In 2009 Calvert filed suit to eject Plenge from the land. Plenge filed a counter claim that Calvert was supposed to retransfer the property. Calvert raised the statute of limitations as a defense and moved for summary judgment on that basis. While Plenge had testified by deposition about her demand to Calvert, Plenge filed an affidavit saying that she had rescinded her demand that Calvert reconvey the property in 2003. The court did not consider the affidavit because it held that plaintiff could not contradict her earlier testimony. Summary Judgment granted.

Affirmed.The court should have considered her affidavit because it was not inconsistent with her earlier testimony. The affidavit added to her earlier testimony. Despite the error, the court affirmed the judgment because the trial court ruled that even with the affidavit there was no dispute of material fact and defendant did not appeal this alternative ruling.