Avidan, v. Transit Casuality Comp.

• Decision Date: 27 June 2000
• Citation: 20 S.W.3d 521
• Parties: (Mo.banc 2000) . Joshua Avidan, Appellant, v. Transit Casualty Company, in receivership, J. Burleigh Arnold, special deputy receiver, in his personal and official capacities, Respondents. Case Number: SC81985 Supreme Court of Missouri Handdown Date: 0
• Court: Missouri Supreme Court

20 S.W.3d 521 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Joshua Avidan, Appellant, v. Transit Casualty Company, in receivership, J. Burleigh Arnold, special deputy receiver, in his personal and official capacities, Respondents.

Case Number: SC81985

Supreme Court of Missouri

Handdown Date: 06/27/2000

Appeal From: Circuit Court of Cole County, Hon. Patricia Joyce

Counsel for Appellant: Jon E. Beetem

Counsel for Respondent: Michael L. Blumenthal, James C. Owen, Katherine S. Walsh and Lori J. Levine

Opinion Summary:

Transit Casualty Company in Receivership, through its special deputy receiver J. Burleigh Arnold, entered an employment contract with Joshua Avidan and later terminated it. Avidan sued for breach of contract and deprivation of federal civil rights. The court dismissed Avidan's claim against Arnold based on statutory immunity. The court determined it lacked jurisdiction to hear the claims against the receivership and transferred them to the receivership proceeding. Avidan appealed.

REVERSED AND REMANDED.

Court en banc holds:

(1) This Court lacks jurisdiction over the attempted appeal of Avidan's claims against the receivership. The judgment does not finally dispose of Avidan's claims against the receivership. First, the order provides that Avidan's claims are not dismissed but are transferred to the receivership proceeding. Second, the transfer is held in abeyance if Avidan appeals dismissal of his claim against Arnold. Finally, the trial court intended to sever its dismissal of Avidan's claim against Arnold and allow an immediate appeal of it, but to retain jurisdiction over Avidan's claims against the receivership.

(2) The court erred in dismissing Avidan's claim against Arnold. Construing the immunity statutes, section 375.650.2 applies and provides two immunities, both conditioned on Arnold acting in good faith in performing receivership functions. Avidan alleged willful, wanton and malicious violations of his rights under the Fourteenth Amendment and 42 U.S.C. section 1983. If proved, such actions exceed good faith immunity.

Opinion Author: William Ray Price, Jr., Chief Justice

Opinion Vote: REVERSED AND REMANDED. All concur.

Opinion:

This case involves claims by an individual against an insurance receivership and the special deputy receiver for breach of an employment contract and violation of civil rights pursuant to 42 U.S.C. section 1983. We hold that we are without jurisdiction to consider the claims against the receivership because they were not finally disposed of below. We further hold that the immunity provided to a deputy receiver for an insurance receivership initiated prior to August 28, 1991, is conditioned upon actions taken in "good faith" and it was error to dismiss a petition alleging the deputy receiver's actions were "willful, wanton and malicious."

I.

In December of 1985, the Circuit Court of Cole County, Missouri, declared Transit Casualty Company ("Transit"), an insurance company, to be insolvent in case no. CV185-1206CC. Pursuant to the Missouri insurance laws embodied in chapter 375, RSMo 1994,¹ a permanent receiver was appointed to "do all things necessary to effectuate the winding up and liquidation" of Transit. This action created Transit Casualty Company in Receivership ("Receivership").

On April 16, 1987, with the approval of the receivership court, J. Burleigh Arnold ("Arnold") was appointed Special Deputy Receiver for Receivership. On December 18, 1995,² Receivership, through Arnold, entered into a five-year employment contract hiring Joshua Avidan ("Avidan") to serve as the Manager of Information Technology for Receivership. The employment contract contained a forum clause, entitled "Applicable Law," that stated:

This Agreement shall be governed by, interpreted under and construed in accordance with the internal laws of the State of Missouri without giving effect to the choice of law provisions thereto. Each party hereto irrevocably submits to the exclusive jurisdiction of the Circuit Court of Cole County, Missouri for any action or proceeding arising out of or relating to this Agreement for the purpose of hearing and deciding all claims in respect of such action or proceeding. Each party irrevocably waives the defense of an inconvenient forum to the maintenance of such action or proceeding. Each party irrevocably consents to the service of process which may be served in any action or proceeding by mailing copies thereof to such party at its address specified hereunder or as thereafter changed by proper notice.

The contract was reviewed and approved by the receivership court.

On June 19, 1996, Arnold terminated Avidan's employment with Receivership. Avidan filed suit against Receivership for breach of contract, and against both Receivership and Arnold for deprivation of his civil rights under 42 U.S.C. section 1983. Avidan alleged that Arnold's actions were "willful, wanton and malicious." Pursuant to his employment contract's "Applicable Law" provision, Avidan filed these claims in the Circuit Court of Cole County, Missouri, but under a separate case, case no. CV197-552CC. Avidan demanded a jury trial.

On April 13, 1998, the trial court dismissed Avidan's claim against Arnold based on Arnold's claim of statutory immunity. The court also determined that it lacked jurisdiction to hear Avidan's claims against Receivership outside of case no. CV185-1206CC and transferred those claims as "timely-filed claims" to the receivership proceeding, although the transfer was to be held in abeyance if Avidan filed a notice of appeal.

II.

In all appeals, we are required to examine our own jurisdiction. Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995); Committee for Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994). An appeal will only lie from a final judgment. Section 512.020, RSMo 1994; Rule 74; City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo. banc 1997); Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995); Committee for Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994). To be final, a judgment must leave nothing for future consideration. Johnson v. Great Heritage Life Ins. Co., 490 S.W.2d 686, 688 (Mo. App. 1973). "If an intended judgment does not dispose of all issues and all parties in the case or does not form a final disposition of the matter, it is not a final, appealable judgment and we have no jurisdiction to entertain an attempted appeal therefrom." Wallace v. Hankins, 541 S.W.2d 82, 84 (Mo. App. 1976).

The trial court's "Judgment" stated:

IT IS THEREFORE HEREBY ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss of Defendant [Receivership] and Defendant Arnold is granted, the cause is dismissed as against Defendant Arnold and as against Defendant [Receivership] in this action in that the causes of action against Defendant [Receivership] are transferred to the Circuit Court of Cole County, Missouri, in Cause No. CV185-1206CC, and shall be treated as timely-filed claims against Transit Casualty Company in Receivership, said transfer to be held in abeyance if [Avidan] files a Notice of Appeal and until said appeal is prosecuted or dismissed.

This judgment dismissing all of [Avidan's] claims against all Defendants is the final action of this Court in Circuit Court Case No. CV197-552CC and, therefore, pursuant to Rule 74.01(b), the Court expressly finds that there is no just reason for delay of an appeal of this dismissal. (emphasis added)

It is clear this judgment does not finally dispose of Avidan's claims against Receivership for three reasons.

First, the order provides that Avidan's claims for relief against Receivership are not finally dismissed, but merely "transferred to" the receivership cause of action. Avidan is free to pursue a remedy in that proceeding and to pursue an appeal therefrom if necessary.³ A judgment that does not fully dispose of a claim is not final. Second, the trial court specifically notes that even the transfer of these claims is "to be held in abeyance" in the event of an appeal of the dismissal of Avidan's claim against Arnold. Finally, the trial court cites to Rule 74.01(b). This rule states:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay.

Accordingly, it appears that the trial court intended to sever its dismissal of Avidan's claim against Arnold and allow an immediate appeal of it, but to retain jurisdiction over the claims of Avidan against Receivership. We have jurisdiction only over the claim against Arnold. We have no jurisdiction over the attempted appeal of Avidan's claims against Receivership.

III.

A.

The trial court dismissed Avidan's claim against Arnold on the basis of statutory immunity. Two statutes provide immunity to individuals acting as receivers for insurance companies under liquidation, section 375.650.2 and section 375.1182.5. Section 375.650.2 provides:

The receiver, special deputy receiver, commissioners and special masters appointed by the court, the agents and employees of the receivership and the commissioners and employees of the state of Missouri when acting with respect to the receivership shall enjoy absolute judicial immunity and be immune from any claim against them personally for any act...