ABB, Inc. v. Securitas Sec. Servs. USA, Inc.

• Decision Date: 20 November 2012
• Docket Number: No. WD 75228.,WD 75228.
• Citation: 390 S.W.3d 196
• Parties: ABB, INC., Appellant, v. SECURITAS SECURITY SERVICES USA, INC., Respondent.
• Court: Missouri Court of Appeals

390 S.W.3d 196

ABB, INC., Appellant,
v.
SECURITAS SECURITY SERVICES USA, INC., Respondent.

No. WD 75228.

Missouri Court of Appeals,
Western District.

Nov. 20, 2012.

[390 S.W.3d 198]

Bruce C. Oetter, Dennis E. O'Connell and Thomas C. Walsh, St. Louis, MO, for appellant.

Debbie S. Champion, Kevin P. Schnurbusch and Victor H. Essen II, St. Louis, MO, for respondent.

Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

ABB, Inc. (“ABB”) appeals from the trial court's entry of partial summary judgment in favor of Securitas Security Services USA, Inc. (“Securitas”). In its judgment, the trial court interpreted a security services agreement between ABB and Securitas and concluded that the agreement required ABB to indemnify Securitas for claims asserted by injured employees and relatives of deceased employees following a workplace shooting. The trial court certified its judgment as final for purposes of appeal pursuant to Rule 74.01(b). We conclude that the judgment did not dispose of a distinct judicial unit and that we thus do not have jurisdiction to entertain this appeal, requiring its dismissal.

Factual and Procedural Background

ABB Power T & D Company, Inc. (a predecessor in interest to ABB) entered into a security services agreement (“Agreement”) with Burns International Security Services (a predecessor in interest to Securitas) in 1998. The Agreement provided that Securitas would provide ABB with security services. The Agreement set limits on the liability Securitas would face as a result of the provision of its services and required indemnification from ABB in certain instances. The Agreement outlined Securitas's potential liability as follows:

In no event shall [Securitas] be liable to [ABB] for any Claim other than one which arises during the performance of services under this Agreement and is caused by the negligence of [Securitas], its employees or agents while acting within the scope of their duties and authority. In no event shall [Securitas] be liable for any Claim caused in whole or in part by acts or omissions of [ABB] or third parties or their respective employees or agents, or for consequential or incidental damages or loss of profits.

With respect to indemnification, the Agreement provided:

[ABB] agrees to indemnify and hold [Securitas] harmless from and against any Claims made by a third party(s), including, but not limited to, injury, death or damage or loss of property, arising from [Securitas] negligent acts or omissions, including those relating to the hiring, training, supervision or retention of Personnel by [Securitas], its agents or employees.

The Agreement did not define “third party.”

[390 S.W.3d 199]

On January 7, 2010, Securitas provided security services to an ABB plant in St. Louis pursuant to the Agreement. That day, a disgruntled ABB employee wielding a firearm entered the ABB plant. The gunman killed three fellow employees and injured at least five more before taking his own life.

In April 2010, relatives of the deceased employees filed wrongful death lawsuits and several injured employees filed personal injury lawsuits against Securitas (“Employee Lawsuits”).¹ ABB was not named as a defendant in the Employee Lawsuits. Securitas made written demand on ABB to defend and indemnify Securitas in the Employee Lawsuits. Securitas alleged in its demand letter that ABB was required by the Agreement to “defend, indemnify and hold [Securitas] and its employees harmless against claims of the type included in the [Employee Lawsuits].” ABB disputed that the claims asserted in the Employee Lawsuits were claims by “third parties” within the scope of the indemnification provision in the Agreement.

ABB filed a declaratory judgment action against Securitas. In its petition, ABB asked the trial court for “[a] declaration that the [Agreement] does not require ABB to defend or indemnify Securitas against or from the claims in the [Employee Lawsuits].” Securitas answered the petition, denying ABB's argued construction of the Agreement.

ABB and Securitas filed cross motions for summary judgment addressing ABB's declaratory judgment action. Each agreed the issue before the court was whether the Agreement required ABB to indemnify Securitas for claims asserted by ABB employees or their families. Each agreed that the construction of the Agreement presented a question of law and that there were no material facts in dispute preventing the entry of summary judgment on that issue. Each asked the trial court to determine whether the Agreement obligated ABB to “defend and indemnify” Securitas against the claims in the Employee Lawsuits.

Before the cross-motions for summary judgment were argued and taken under submission, Securitas sought and was granted leave to file a counterclaim against ABB for breach of contract. Securitas's counterclaim alleged that ABB's refusal to defend and indemnify Securitas in the Employee Lawsuits was a breach of the Agreement and that Securitas had been damaged as it was incurring the cost to defend, and was exposed to pay judgments or settlements of, the Employee Lawsuits.² The pending cross motions for summary judgment did not request disposition of the counterclaim for breach of contract.

On February 10, 2012, the trial court granted Securitas's motion for summary judgment and denied ABB's motion for summary judgment (“Judgment”). The trial court entered judgment in favor of Securitas and against ABB on ABB's declaratory

[390 S.W.3d 200]

judgment claim. The Judgment noted that “Securitas's counterclaim for breach of contract shall continue to pend.” ABB thereafter sought and received an order from the trial court designated “Final Judgment” which expressed the trial court's conclusion “that there is no just reason for delay,” and declaring the disposition of ABB's declaratory judgment action a final judgment for purposes of appeal pursuant to Rule 74.01(b).

ABB then filed this appeal.

Jurisdiction

Securitas argues that we do not have jurisdiction to hear this appeal because the trial court's Judgment was not eligible for certification as a final appeal pursuant to Rule 74.01(b) as the unresolved counterclaim involves issues that are “inextricably intertwined” with ABB's declaratory judgment action. ABB argues that we have jurisdiction to entertain this appeal because the Judgment disposed of the sole claim raised by ABB.

The right to appeal is established by statute. SeeMO. CONST. art. V, section 5. We acquire jurisdiction to entertain an appeal upon the trial court's issuance of a “final judgment.” Section 512.020(5); ³Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995). “If [a] judgment is not final, we lack authority to consider the case and must dismiss the appeal.” Stewart v. Liberty Mut. Fire Ins. Co., 349 S.W.3d 381, 384 (Mo.App. W.D.2011). Generally, a judgment is final if it disposes of all the issues with respect to all parties and leaves nothing for future determination. Melson v. Traxler, 356 S.W.3d 264, 268 n. 9 (Mo.App. W.D.2011). Under this standard, there is no dispute that the trial court's Judgment is not “final” as, in light of the unresolved counterclaim asserted by Securitas, it does not resolve “all of the issues with respect to all parties.” Id.

Rule 74.01(b) provides an exception to the general finality rule, however. It permits a trial court to characterize a judgment as “final” even though it disposes of fewer than all the claims or parties but “only upon an express determination that there is no just reason for delay.” Though written to suggest unfettered discretion in the trial court, in fact a trial court's certification “that there is no just reason for delay” is not conclusive. Lunceford v. Houghtlin, 326 S.W.3d 53, 61 (Mo.App. W.D.2010). “It is the content, substance, and effect of the order that determines finality and appealability.” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997).

A trial court's designation of a judgment as final under Rule 74.01(b) “is effective only when the order disposes of a distinct ‘judicial unit.’ ” Id. Stated differently, even if the circumstances suggest that judicial economy could be promoted by...