Chubb Group of Ins. Companies v. C.F. Murphy & Associates, Inc.

• Citation: 656 S.W.2d 766
• Decision Date: 16 August 1983
• Docket Number: No. WD,WD
• Court: Court of Appeal of Missouri (US)
• Parties: CHUBB GROUP OF INSURANCE COMPANIES, and Ringling Brothers--Barnum & Bailey Combined Shows, Inc., Ice Follies & Holiday on Ice, Inc., Sells-Floto, Inc., Appellants, v. C.F. MURPHY & ASSOCIATES, INC., J.E. Dunn Construction Co., Kansas City Structural Steel Co., Bethlehem Steel Corp., Bob D. Campbell, Ivan L. Roenigk, Don H. Luellen, Michael F. Quinlan, Ralph Keith, and City of Kansas City, Missouri, Respondents. 32949.

Page 766

656 S.W.2d 766

CHUBB GROUP OF INSURANCE COMPANIES, and Ringling Brothers--Barnum & Bailey Combined Shows, Inc Ice Follies & Holiday on Ice, Inc. Sells-Floto, Inc., Appellants, v. C.F. MURPHY & ASSOCIATES, INC., J.E. Dunn Construction Co. Kansas City Structural Steel Co., Bethlehem Steel Corp., Bob D. Campbell, Ivan L. Roenigk, Don H. Luellen, Michael F Quinlan, Ralph Keith, and City of Kansas City, Missouri, Respondents.

No. WD 32949.

Missouri Court of Appeals, Western District.

Aug. 16, 1983.

Popham, Conway, Sweeny, Fremont & Bundschu, Kansas City, for appellants.

Shughart, Thomson & Kilroy, Kansas City, for defendant C.F. Murphy & Assoc., Inc.

Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for defendant J.E. Dunn Const. Co.

Field, Gentry, Benjamin & Robertson, Kansas City, for defendant K.C. Structural Steel Co.

Jackson & Sherman, P.C., Kansas City, for defendant Bethlehem Steel Corp.

Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for defendants Campbell, Roenigk, Luellen, Quinlan and Keith.

Before NUGENT, P.J., and WASSERSTROM and KENNEDY, JJ.

NUGENT, Judge.

Plaintiffs appeal from the trial court's dismissal of counts one through five of their nine-count petition for failure to state a cause of action for damages arising from the collapse of the roof of the R. Crosby Kemper Memorial Center (hereinafter Kemper Arena). All five of the dismissed counts relate to all defendants except the city of Kansas City. Counts I and II allege negligence in the construction and design of Kemper Arena and seek recovery for the plaintiffs' loss of their right to use and occupy the arena. Count III seeks to hold the defendants strictly liable for plaintiffs' loss. Count IV alleges breach of an implied warranty of usefulness for business and entertainment, and Count V alleges that defendants negligently and recklessly misrepresented that Kemper Arena was properly designed and constructed. Counts VI through IX are solely against the city, alleging breach of contract to rent the arena, detrimental reliance on the contract, wrongful representation that the arena was free of defects, and negligent maintenance and operation of the arena. In addition to the primary issue of whether plaintiffs' petition states a cause of action, we are first faced with the question of whether the trial court's order was final and appealable. We reverse in part the trial court's dismissal and remand for further proceedings consistent with this opinion.

On review of the trial court's dismissal of a petition, our duty is to determine if the facts pleaded and reasonable inferences to be drawn from the allegations, when viewed in the light most favorable to the plaintiffs, demonstrate any ground for relief. DeMaranville v. Fee Fee Trunk Sewer, Inc., 573 S.W.2d 674, 676 (Mo.App.1978). Even if the petition is imperfectly or defectively stated, we must accept as true all facts it avers, construe all averments liberally and favorably to the plaintiffs and determine whether they invoke principles of substantive law upon which relief may be granted. City of Kansas City v. Mary Don Co., 606 S.W.2d 411, 413-14 (Mo.App.1980).

Doing so, we accept as true the following facts which appear in plaintiffs' first amended petition dated October 13, 1980.

Plaintiff Chubb Group of Insurance Companies is the insurer of the other plaintiffs and is subrogated to the rights of those parties in the amount of $967,934.44. Plaintiffs Ringling Brothers-Barnum & Bailey Combined Shows Inc., Ice Follies & Holiday on Ice, Inc., and Sells-Floto, Inc. entered into an agreement with the city of Kansas City to use, possess, and occupy Kemper Arena exclusively for definite periods for the purpose of operating traveling entertainment revues and selling souvenirs and concessions.

Defendant C.F. Murphy and Associates, Inc., is an architectural firm. Defendant J.E. Dunn Construction Co. is a construction firm. Defendant Kansas City Structural Steel Co. is engaged in the erection of steel beams and frames. Defendant Bethlehem Steel Corp. manufactures and fabricates steel products, including steel bolts. Individual defendants Campbell, Roenigk, Luellen, Quinlan, and Keith comprised the last board of directors of the Bob D. Campbell Corp. and continue to do business as consulting structural engineers. These defendants (referred to collectively as the non-city defendants) all participated in the design and construction of Kemper Arena.

Defendant city of Kansas City owns and operates the arena.

On June 4, 1979, the roof of the arena collapsed.

In Count I, the plaintiffs allege that the non-city defendants negligently designed and constructed Kemper Arena, and list thirteen specific failures of design and construction, including failure to design and construct the roof to withstand stress caused by normal weather conditions; failure to design and construct devices to drain water from the roof; failure to design, construct, inspect, and test adequate roof supports; failure to provide a warning system for stress build-up; failure to design and manufacture parts that could withstand normal and foreseeable pressures; and failure to warn that the parts provided were not capable of withstanding such pressures. The defects were said to be concealed so that a reasonable inspection by plaintiffs would not have revealed them. Plaintiffs assert that as a direct and proximate result of defendants' negligence, the arena was unusable from June 4, 1979, to February 20, 1980, preventing plaintiffs from staging performances and selling souvenirs, thereby damaging Ringling Brothers in the amount of $203,342.58 plus costs; damaging Ice Follies in the amount of $450,000.00 plus costs; and damaging Sells-Floto in the amount of $314,591.86 plus costs.

In Count II, plaintiffs allege that the negligence of the non-city defendants "rendered the structure essentially and imminently dangerous to plaintiffs, other users of the building and the general public," damaging plaintiffs in the same amounts sought in Count I.

In Count III, plaintiffs allege that each of the non-city defendants participated in the design and construction of Kemper Arena, and that at the time plaintiffs obtained the rights to use the arena, it "was in a defective condition unreasonably dangerous", damaging them in the amounts shown above.

In Count IV, plaintiffs allege that the non-city defendants knew that the plaintiffs as well as the general public would use the Kemper Arena for business and entertainment and impliedly warranted that the arena was designed and constructed so as to be free of defects in design, workmanship and material. As a result of a breach of that implied warranty, plaintiffs were damaged in the amounts shown above.

In Count V, plaintiffs allege that the non-city defendants negligently and recklessly misrepresented that the Kemper Arena was properly designed and constructed, that defendants knew or should have known that those representations were not true, that in reliance on them, plaintiffs obtained the rights to use Kemper Arena, and that as a direct and proximate result, the plaintiffs were damaged in the amounts shown above.

The remaining four counts relate solely to the defendant city of Kansas City. In Count VI, plaintiffs assert that they entered into an agreement with the city for the use of Kemper Arena, that the city refused to make the arena available, and that as a result of that breach, plaintiffs were damaged in the amounts shown above.

In Count VII, plaintiffs assert that in reliance on the contract with the city, they scheduled performances in Kansas City and "materially altered their position". As a "direct, proximate and foreseeable" result of the city's refusal to be bound by the lease, plaintiffs were damaged in the amount of $967,934.44 plus costs.

In Count VIII, plaintiffs assert that the defendant city "negligently maintained and operated Kemper Arena in that its roof and supporting structure were dangerous and defective as fully described" in Count I. Further, the city was negligent by "wrongfully representing and certifying that Kemper Arena was free from defects ... where defendant knew or should have known ... that Kemper Arena was in a dangerous and defective condition" and that the arena was in violation of city ordinances pertaining to the maintenance of foundations, walls and roofs. As a result of the city's negligence, plaintiffs were damaged in the amounts shown in Count I.

In Count IX, the plaintiffs again assert that the city negligently maintained and operated Kemper Arena and that the defects listed in Count I "rendered Kemper Arena essentially and imminently dangerous to plaintiffs, other users thereof and the general public." As a result of this negligence, plaintiffs were damaged in the amounts shown in Count I.

Following the filing of the petition, the non-city defendants filed motions to dismiss Counts I through V. On February 24, 1981, the trial court sustained those motions for failure to state a claim on which relief can be granted. On March 2, 1981, plaintiffs requested that the court designate its order as final for purposes of appeal. On July 9, 1981, the court ruled on that motion, denying the request. On July 17, 1981, plaintiffs filed a notice of appeal from both the February 24 and the July 9 order. On August 26, 1981, the court designated the order of February 24, 1981, as final. On September 2, 1981, plaintiffs again filed a notice of appeal from the February 24 order dismissing Counts I through V. (That appeal was consolidated with the earlier appeal on September 9, 1981.)

On October 8, 1981, the non-city defendants jointly filed a motion to dismiss plaintiffs' appeal, arguing that the appeal was not timely. Although the motion was overruled, this court granted permission to the parties to brief the issues, and they have done so. Accordingly, we reach this issue before considering the substance of plainti...