Ameristar Jet Charter, Inc. v. Dodson International Parts, Inc., No. WD 61655 (Mo. App. 1/20/2004)
| Decision Date | 20 January 2004 |
| Docket Number | No. WD 62141,No. WD 61655,No. WD 61800,WD 61655,WD 61800,WD 62141 |
| Parties | AMERISTAR JET CHARTER, INC., AND SIERRA AMERICAN CORPORATION, Appellant-Respondent, v. DODSON INTERNATIONAL PARTS, INC.; Respondent-Appellant HOUSTON CASUALTY COMPANY; Respondent HOWE ASSOCIATES, INC., Defendant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, Missouri, Honorable Lee E. Wells, Judge.
Christopher S. Shank, Kansas City, MO, for Appellant-Respondent.
Donald G. Scott, Kansas City, MO, for Respondent-Appellant.
Martin M. Montemore, Kansas City, MO, Co-Counsel for Respondent-Appellant & Respondent, Howe Associates, Inc.
Howe Associates, Inc., Defendant.
Before Paul M. Spinden, P.J., Thomas H. Newton and Ronald R. Holliger, JJ.
This appeal stems from complex commercial litigation involving an airplane that made an emergency landing near Kansas City's Downtown Airport. The parties to this appeal include the airplane's owner/operator; the company that insured the airplane; and the company that hauled the airplane after the landing. The plane's owner/operator sued the insurance company and the hauler to recover damages purportedly incurred after the landing. While the trial court granted summary judgment in the insurance company's favor based upon the affirmative defense of release, the owner/operator obtained a jury verdict against the hauler. Both the owner/operator and the hauler now appeal.
We conclude that the trial court erred when it entered summary judgment against the owner/operator and in favor of the insurance company because the release was not broad enough to include the owner/operator's tort claims against the insurance company under Texas law. We further conclude that the trial court incorrectly calculated the damages due from the hauler. In all other respects, we affirm.
Sierra American Corporation (Sierra) and Ameristar Jet Charter, Inc. (Ameristar) are in the air charter business. Sierra owns various jet airplanes, including the airplane featured in this appeal. Sierra leases these airplanes to Ameristar, which uses them to deliver parts for automobile manufacturers. Because these two related corporations brought the underlying action together as plaintiffs, we refer to them collectively as Ameristar.
On April 9, 1998, one of Ameristar's planes, a Falcon 20 Jet, made an emergency landing on a levee near Kansas City's Downtown Airport. Ameristar notified its insurance company, Houston Casualty Corporation (HCC), of the incident. HCC's claims adjuster, Howe Associates, Inc.,1 in turn dispatched Dodson International Parts, Inc. to remove the plane from the levee and haul it to the Kansas City Downtown Airport. To get the plane to the airport, Dodson had to disassemble it and haul the fuselage on a flatbed trailer.
After Dodson hauled the plane to the Downtown Airport, some observers noticed a deflection in the plane's fuselage. While the fuselage was resting on the trailer at the Downtown Airport, Ameristar apparently asked three different companies to examine it and to submit written estimates; it is not clear from the parties' briefing what these three companies concluded. Ameristar also claimed that it asked HCC and Howe to remove the plane from the trailer during this time and that they failed to do so.
After determining that the fuselage was bent and that the cost to repair the plane would be high, HCC submitted a proof of loss to Ameristar, proposing to treat the plane as a constructive total loss and obligating HCC to pay the policy limits of $ 1.5 million. Although Ameristar contends that HCC gave it no choice in the matter, Ameristar ultimately signed the proof of loss and accepted payment of the policy limits. Among other things, the proof of loss included the release that HCC now relies upon to avoid Ameristar's tort claims against it.
But things are not always as they first appear. As it happens, the deflection in the fuselage was not permanent, but temporary. What HCC earlier had declared a constructive total constructive loss, Dodson later repaired for only $100,000.
After Dodson outbid Ameristar for the plane at a salvage auction2 and after Ameristar passed on Dodson's subsequent offer to sell the plane back to Ameristar for $1.5 million, Ameristar ultimately purchased another replacement airplane for approximately $ 2.1 million.3 Ameristar contends that the crashed airplane was worth $1.8 million immediately before the crash.
Ameristar asserted tort claims against HCC for negligence, negligent misrepresentation, and bad faith. The trial court granted HCC's motion for summary judgment on these claims. The trial court concluded that Texas law governed these claims and that the release contained in the proof of loss "mentioned" these claims under Texas law, thereby barring the claims.
Ameristar also asserted a claim against Dodson for negligence in handling the airplane. The trial court submitted this claim to the jury on comparative fault instructions. The jury found in favor of Ameristar, assigning seventy percent of the fault to Dodson and thirty percent of the fault to Ameristar. The jury found Ameristar's actual damages to be $2.1 million. Based upon the jury's findings, the trial court entered judgment in favor of Ameristar for $1,435,000.
Ameristar has appealed the summary judgment in favor of HCC. Ameristar also has appealed the judgment against Dodson as it pertains to the trial court's calculation of the damages award. We conclude that each of Ameristar's two points has merit.
Dodson has appealed the judgment in favor of Ameristar. Dodson raises eight points on appeal. In its first point Dodson contends that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict. In its second point, Dodson contends that Ameristar lacked standing to maintain any claims against Dodson because Ameristar assigned all of its claims against Dodson to HCC in the proof of loss. In its third point, Dodson contends that the trial court erred when it failed to take judicial notice of and to admit into evidence a document purporting to set forth certain federal aviation regulations relevant to the case. In its fourth point, Dodson contends that the trial court erred in failing to submit a contributory negligence instruction to the jury. In its fifth point, Dodson contends that the trial court erred in submitting affirmative defense comparative fault and mitigation of damages instructions that deviated from MAI. In its sixth point, Dodson contends that Ameristar failed to present sufficient evidence to support an award of damages for lost profits. In its seventh point, Dodson contends that the trial court committed plain error by failing to address objectionable comments made by counsel for Ameristar in closing argument. In its eighth and final point, Dodson contends that the trial court erred in denying its motion for new trial and request for remittitur. As discussed in detail below, we do not find Dodson's points persuasive.
Ameristar and HCC agree (and the trial court found) that Texas law governs their dispute over the release under the "most significant relationship" test of the Restatement (Second) of Conflicts of Laws, section 188. Even if Texas substantive law governs the dispute over the release, however, we still apply Missouri procedural law. See, e.g., Armstrong Bus. Serv., Inc. v. H&R Block, 96 S.W.3d 867, 872 (Mo. App. W.D. 2002) ().
Accordingly, we will apply Missouri law "to all procedural matters such as the rules of evidence, the competency of witnesses, the burden of proof, the weight of the evidence and to other matters that may relate to the remedy." Lukas v. Hays, 283 S.W.2d 561, 565-66 (Mo. 1955).
Under Missouri's summary judgment procedure, the trial court shall enter summary judgment only if the motion and response thereto "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 74.04(c)(6). The moving party's entitlement to a judgment as a matter of law revolves to a great extent around whether that party is the claimant or the defending party. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp, 854 S.W.2d 371, 381 (Mo. banc 1993). "A claimant is one who 'seeks to recover,' without regard to whether recovery is sought by claim, counterclaim, cross-claim or declaratory judgment." Id. at 380 (quoting Rule 74.04(a)). By contrast, a "'defending party' is one against whom recovery is sought." Id. (quoting Rule 74.04(b)).
Although HCC filed a counterclaim against Ameristar in this case, that counterclaim did not figure in its motion for summary judgment. HCC's motion for summary judgment pertains solely to Ameristar's claims against it. Accordingly, HCC was a "defending party" for the purpose of analyzing its entitlement to summary judgment. See ITT, 854 S.W.2d at 382. As a defending party, HCC could establish its right to summary judgment by showing "(1) facts that negate any one of [Ameristar's] elements, (2) that [Ameristar], after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of Ameristar's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support [HCC's] properly-pleaded affirmative defense." Id. at 381.
HCC relied upon the third method by invoking the affirmative defense of release to bar Ameristar's claims for damages.
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