Bryan v. Peppers

• Decision Date: 08 November 2005
• Docket Number: No. 26338.,26338.
• Citation: 175 S.W.3d 714
• Parties: Hugh BRYAN, Plaintiff-Appellant, Ruth Bryan, Plaintiff, v. Joseph W. PEPPERS, and State Farm Mutual Automobile Insurance Company, Defendants-Respondents.
• Court: Missouri Supreme Court

175 S.W.3d 714

Hugh BRYAN, Plaintiff-Appellant Ruth Bryan, Plaintiff, v. Joseph W. PEPPERS, and State Farm Mutual Automobile Insurance Company, Defendants-Respondents.

No. 26338.

Missouri Court of Appeals, Southern District, Division Two.

November 8, 2005.

Steven E. Marsh, Springfield, MO, for Appellant.

Paul D. Link, Kristoffer R. Barefield, Springfield, MO, for Respondent Joseph W. Peppers.

Monte Paul Clithero, Springfield, MO, for Respondent State Farm Mutual Automobile Insurance Company.

No brief filed by this respondent.

JEFFREY W. BATES, Chief Judge.

Hugh Bryan ("Bryan") appeals from a judgment entered after a jury trial on his tort claim against Joseph Peppers ("Peppers"). Bryan sustained personal injuries when his truck was rear-ended by Peppers' vehicle. This collision also gave rise to an uninsured motorist ("UM") contract claim by Bryan against his insurer, State Farm Mutual Automobile Insurance Co. ("State Farm"). Bryan sought UM benefits from State Farm because a phantom driver allegedly precipitated the automobile accident by stopping suddenly and without warning on the highway ahead of Bryan and Peppers. The trial court severed the UM contract claim and ordered that it be tried after Bryan's tort claim against Peppers. During the tort trial, Peppers' lawyer made a comment in opening statement suggesting that Bryan could identify the alleged phantom driver and that this driver probably contributed to cause the collision. Bryan's request for a mistrial was overruled. The jury ultimately found in favor of Bryan, but he was awarded only $1,720.32 for his injuries. On appeal, Bryan contends, inter alia, that the trial court erred in severing the UM claim and in failing to grant a mistrial after Peppers' lawyer injected the issue of the phantom driver's fault during opening statement. Because we find both errors in combination caused substantial prejudice to Bryan, we reverse and remand for a new trial on all issues.

I. Facts and Procedural History

On April 13, 1997, Bryan was driving his truck on Highway 65 south of Branson, Missouri. The road was straight and flat with clear visibility ahead. Bryan brought his truck to a stop because the cars in front of him were not moving. Bryan heard something behind him and looked into his rear-view mirror. He saw Peppers' truck, which had a U-Haul trailer attached to it, approaching "too fast and smoke coming out from underneath the tires where they were obviously trying to stop." Peppers' truck struck the rear end of Bryan's truck at approximately 8 to 10 miles per hour. Bryan was jolted by the impact, but he did not believe he had been hurt very badly at that time. Bryan got out of his truck and came back to check on the condition of Peppers and his two children, who were passengers in Peppers' vehicle. None of them were injured. After Bryan and Peppers talked for a few minutes and exchanged information, they both left the scene of the collision.

The first night after the accident, Bryan began having pain in his right elbow. The muscle relaxers he was prescribed for this injury reduced, but did not entirely eliminate, his right elbow pain. A few months later, he began to experience tingling and numbness in his right hand. In April 1999, Bryan was evaluated by Dr. Tom Briggs, a neurosurgeon. After conducting a number of tests, Dr. Briggs concluded Bryan's symptoms were caused by a spinal cord contusion he suffered during the collision. In June 1999, Dr. Briggs recommended that Bryan undergo neck surgery to improve the function of his right hand and prevent further deterioration of his condition. In June 2000, Bryan had a diskectomy and surgical fusion of the C5-C7 vertebrae in his neck, which cured the pain in his elbow and the numbness in his hand. Bryan incurred approximately $33,000 in medical bills for treatment received after the accident.

In April 2001, Bryan and his wife filed a lawsuit against Peppers and State Farm asserting a tort claim and a contract claim, respectively, against the defendants. In Bryan's tort claim, he alleged that he sustained personal injuries and property damage when Peppers negligently collided with the rear end of Bryan's truck.¹ In Bryan's contract claim, he sought to recover UM benefits from State Farm. Bryan alleged that State Farm provided UM coverage because an unknown motorist, meeting the policy's definition of a "phantom" driver, negligently made a sudden and unexpected stop or turn on Highway 65 and thereby caused the collision which injured Bryan. In Peppers' answer, he denied causing the collision and asserted comparative fault on the part of Bryan. In State Farm's answer, it alleged that the collision was solely Peppers' fault and that Bryan breached certain policy provisions that required him to report a claim involving a phantom driver.

In November 2001, Peppers filed a motion to sever the tort claim against him for a separate trial. The motion alleged that trying the tort and contract claims together "would irretrievably litter the entire trial with matters of insurance," and "any evidence, remark or arguments by [Bryan] which might tend to inflame the jury with respect to [the UM counts] would substantially prejudice Peppers with regard to the wholly separate and distinct tort claims against him." In December 2001, the trial court granted the motion to sever and ordered that Bryan's tort claim against Peppers be tried first. The court did not state the grounds for its ruling.

In February 2004, Bryan's tort claim went to trial. In Bryan's opening statement, his attorney did not mention the phantom driver at all; he merely told the jury that Bryan had "come up on a line of cars that'd stopped in traffic" and was "waiting for the traffic up ahead to clear." In Peppers' opening statement, his attorney told the jury that Peppers noticed that Bryan's truck was stopped "and that there's cars in front of him stopped, evidently, because someone is making a left-hand turn across the highway." After discussing Bryan's injuries and medical treatment for some time, Peppers' counsel returned to the topic of how the accident occurred. He characterized it as a minor, low-speed collision that caused little damage to the vehicles and then made the following statement:

Another interesting tidbit, it was — when [Bryan] comes back and checks on my guy, on Mr. Peppers, he comes back and says — hands him a piece of paper with a license plate number on it. Tells Mr. Peppers that that car that was making that turn up in front, they've probably contributed to this accident and —

Bryan's counsel immediately objected and asked for a bench conference. He moved for a mistrial because this statement "gets back to the State Farm aspect, the uninsured motorist thing, and that was something I thought had been made clear that we weren't going to go into, going into this case." Peppers' counsel denied that his statement referred to the uninsured motorist claim or the phantom motorist. Bryan's counsel argued that a mistrial was required because the jury would not be able to disregard a statement, attributed to Bryan, that "here's the license number of the fellow that I believe — I believe contributed or caused this accident...." In considering the request for a mistrial, the court stated that "my memory was that there was something about the license number of the left-turning car that you had alluded to, [Bryan's counsel], this left-turning car, and I didn't hear anything about who caused the accident." After further colloquy, Peppers' counsel then stated, "I didn't mention the left-turning car. I mentioned that he was stopped for the — a line of cars, anyway...."² The court denied the motion for mistrial and ordered Peppers' counsel to "get off this subject."

When the case was submitted to the jury, causation and the amount of damages were the only disputed issues. There was no contention that Bryan was at fault, and Peppers' counsel conceded in closing argument that his client had been negligent. The jury returned a verdict in favor of Bryan and awarded him $1,720.32 for his personal injuries and $1,250 for property damage. The trial court entered a judgment in Bryan's favor against Peppers and expressly determined that there was no just reason for delay.

This appeal followed. Bryan contends the trial court erred in: (1) severing the UM claim; (2) denying his motion for mistrial; (3) denying his motion for a new trial on damages; and (4) denying his motion for additur. Because we find Bryan's first and second points to be dispositive, we address only these issues. Given the interrelated nature of the two points, we review them together.

II. Analysis

Preliminarily, we must address our jurisdiction to decide this appeal. As a general rule, a judgment is not final for purposes of appeal unless it disposes of all parties and all issues in the case and leaves nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App.2003). Bryan's petition asserted a tort claim against Peppers and a contract claim against State Farm. The trial court's judgment only resolves Bryan's tort claim against Peppers. The severance of Bryan's contract claim against State Farm for later resolution did not constitute an "adjudication" of the claim so as to make the judgment against Peppers alone final for purposes of appeal. See Colton, McMichael, Lester, Auman, Visnovske, Inc. v. Mueller, 877 S.W.2d 702, 703-04 (Mo.App.1994).

An exception to the general rule that a judgment must dispose of all claims and all parties to be appealable, however, is found in Rule 74.01(b).³ City of Kansas City v. Woodson, 130 S.W.3d 7, 10 (Mo.App.2004). When more than one claim is presented or multiple parties are involved, Rule 74.01(b) authorizes a trial court to "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." So long...