Cimaglia v. St. Louis County, 54111

• Decision Date: 09 August 1988
• Docket Number: No. 54111,54111
• Citation: 756 S.W.2d 616
• Parties: Thomas J. CIMAGLIA and Sherrin Cimaglia, Appellants, v. COUNTY OF ST. LOUIS and Redland Prismo Corporation, Respondents.
• Court: Missouri Court of Appeals

Page 616

756 S.W.2d 616

Thomas J. CIMAGLIA and Sherrin Cimaglia, Appellants, v.COUNTY OF ST. LOUIS and Redland Prismo Corporation, Respondents.

No. 54111.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 9, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 12, 1988.

Wiseman, Shaitkeqitz, McGivern Wahl, Flavin & Hesi, P.C., Robert S. Flavin, St. Louis, for appellants.

Daniel Bartlett, Jr., Clayton, Kathi Lynne Chestnut, John A. Michener, St. Louis, for St. Louis County.

John G. Enright, St. Louis, for Redland.

CRIST, Presiding Judge.

Plaintiffs appeal the denial of their motion seeking reconsideration of the granting of summary judgment in favor of St. Louis County(County) and seeking to add or substitute the Missouri Insurance Guaranty Association(MIGA) as a party to the action.We dismiss the appeal of the summary judgment as untimely.

PlaintiffThomas J. Cimaglia filed suit against County and the City of Florissant on August 8, 1984, alleging defendants' negligence caused his motorcycle accident which occurred on June 8, 1984.County filed a motion to joinRedland Prismo Corporation(Redland) as a third-party defendant, which was granted.Summary judgment was granted for the City of Florissant for the reason the City did not maintain the road where the accident occurred.Plaintiff later added Redland as a defendant.Sherrin Cimaglia then joined as a partyplaintiff in the action.Plaintiffs alleged wet paint on the roadway caused the motorcycle accident which injured plaintiffThomas J. Cimaglia.They sued County for negligently using lane striping paint which failed to dry within twenty seconds, failing to check and see whether the paint was drying in twenty seconds, as it was supposed to, and failing to warn the public of the wet paint.Plaintiffs sued Redland on negligence and strict liability theories for manufacturing defective paint which failed to dry within twenty seconds.In County's third-party petition against Redland, it alleged it was entitled to indemnity or contribution from Redland if the jury found the paint was defective because it failed to dry properly.

County filed a motion for summary judgment after its insurer, Transit Casualty Company, became insolvent.The motion was based on sovereign immunity.Sections 537.600and537.610, RSMo 1986, abrogate the defense of sovereign immunity in actions involving injuries caused by the dangerous condition of public property only to the extent of coverage of liability insurance.The County contended that due to the insolvency of its insurer, it was no longer covered by liability insurance, and therefore, plaintiffs' claim against it was precluded by sovereign immunity.SeeOrlando v. St. Louis County, 740 S.W.2d 393, 395(Mo.App.1987).The summary judgment was granted on April 21, 1986.The case against Redland was eventually settled before coming to trial.

On October 2, 1987, plaintiffs filed their motion to reconsider the summary judgment granted in favor of County and to add or substitute defendants.In their motion to add or substitutedefendants, plaintiffs offered no pleading substituting or adding MIGA for the court to consider and neither alleged nor presented evidence to show they had taken the steps necessary to present a claim to MIGA.The motion was overruled on November 12, 1987, and plain...