Cogdill v. Flanagan

• Decision Date: 23 October 2013
• Docket Number: No. SD 32219.,SD 32219.
• Parties: Karmon COGDILL and Sammye Cogdill, Plaintiffs–Appellants, v. Cary FLANAGAN, by and through his Defendant ad Litem, Kurt LARSON, Defendant–Respondent.
• Court: Missouri Court of Appeals

410 S.W.3d 714

Karmon COGDILL and Sammye Cogdill, Plaintiffs–Appellants,
v.
Cary FLANAGAN, by and through his Defendant ad Litem, Kurt LARSON, Defendant–Respondent.

No. SD 32219.

Missouri Court of Appeals,
Southern District,
Division One.

Oct. 7, 2013.
Motion for Rehearing and/or Transfer to the Supreme Court Denied Oct. 23, 2013.

[410 S.W.3d 715]

James E. Corbett, of Springfield, MO, for Appellant.

Ralph V. Hart, of St. Louis, MO, for Respondent.

WILLIAM W. FRANCIS, JR., C.J.

Karmon Cogdill (“Karmon”) and Sammye Cogdill (“Sammye”), husband and wife, (collectively “the Cogdills”) appeal the judgment of the trial court entered following a jury trial based upon their “Second Amended Petition” that asserted claims arising from a car accident in which the tractor-trailer driven by Karmon collided with a vehicle driven by Cary Flanagan (“Flanagan”). ¹

Factual and Procedural Background

In the early morning hours of February 12, 2005, Karmon was driving a tractor-trailer eastbound on I–44 in Phelps County, when he came upon a vehicle lying upside down in the road. The upside-down vehicle had been driven by Flanagan before he was killed in a separate accident.² Karmon struck Flanagan's vehicle, causing Karmon's truck to swerve and strike a guardrail.

On April 10, 2007, the Cogdills filed a “Petition” for damages against Flanagan. Due to Flanagan's death, the Cogdills requested the court appoint a defendant ad litem and the court appointed attorney Kurt J. Larson (“DAL”).

On December 8, 2011, the Cogdills filed a “Second Amended Petition,” alleging Karmon was driving his truck eastbound

[410 S.W.3d 716]

on I–44 when he collided with Flanagan's vehicle, which was lying on its top “in a portion of I–44[.]” The Cogdills alleged Flanagan had the “right of control over his vehicle[ ]”; that a car “does not usually end up on its top in a traveled portion of I–44 if the driver uses due care[ ]”; Flanagan was speeding; and had “operated [his car] while intoxicated to the extent his driving ability was impaired.” As a direct result of Flanagan's negligence, the Cogdills alleged Karmon was damaged in that he suffered injury to his chest, back and neck; post-traumatic stress disorder (“PTSD”); loss of income; diminution of earning capacity; loss of household contributions; and incurred medical expenses. Karmon also requested an award of punitive damages alleging Flanagan, in driving while intoxicated, “showed a complete indifference to or conscious disregard for the safety of others[.]” Sammye alleged she was entitled to “derivative damages” for the injuries to Karmon.

On January 6, 2012, DAL filed an “Answer to Plaintiff's [sic] Second Amended Petition.” DAL denied all of the Cogdills' allegations except for admitting jurisdiction and venue were proper in Phelps County, and that Sammye was the wife of Karmon. DAL asserted an affirmative defense that the “carelessness and negligence of [Karmon] in failing to keep a careful lookout and in driving at an excessive rate of speed directly caused or directly contributed to cause whatever injuries or damages [Karmon] sustained, if any, and for that reason [Karmon] cannot recover herein.”

A jury trial was held on April 11 and 12, 2012. Sometime in the week prior to trial, DAL informed the Cogdills that they were going to admit liability for the accident, and filed a motion in limine to prevent the Cogdills from introducing evidence of Flanagan's intoxication. An amended answer was never filed by DAL where they admitted liability. There was no pre-trial conference with the trial court. On the morning of trial, the trial court announced, on the record, that DAL's motion in limine was granted and allowed Cogdills' counsel to make an offer of proof. The following colloquy then took place:

[COGDILLS' COUNSEL]: I understand that [DAL] filed a motion in limine to exclude evidence of the—any liability or the cause of the accident, including the fact that [Flanagan] was legally intoxicated. As a matter of fact, [Flanagan] was .129 percent blood alcohol, um, by a measure.

And we intended to prove up liability in this case, and that was our intent based on Ruppel versus Clayes, and that's 72 S.W.2d 833.

THE COURT: That's an Eastern District case, is it not?

[COGDILLS' COUNSEL]: It is. Yes, it is, your Honor, back when St. Louis was its own district.

The [Cogdills] intended to call the trooper that investigated the accident. That's Trooper Dubois. And we intended to call the coroner, Larry Swinfard, and we intended to call David Nanneman (ph. sp.) who is a criminologist, and a witness to the accident, Christy Melton, all going to what happened in the accident.

And we intended to offer, um—and I'll get to those exhibits in a second. But as I understand the stipulation of the parties, is—and with permission of the Court—

THE COURT: Let me just announce what I think the stipulation is. That might make it quicker.

I'd indicated that I was going to grant the motion in limine because of the fact that I'm of the opinion that if the [DAL] admits liability, and that is not an issue,

[410 S.W.3d 717]

the intoxication of [Flanagan] or lack of intoxication is not relevant to the actual issue of damages.

The [Cogdills] asked to make an offer of proof, and my understanding is that there is a stipulation that the trooper's report, which indicates an alcohol level of .129, would be stipulated to as to establishing the fact that [Flanagan], was intoxicated.

[DAL's COUNSEL]: That's correct.

THE COURT: Is that a fair assessment of what we—

[COGDILLS' COUNSEL]: I think it goes even beyond that. Just not—

THE COURT: You may.

[COGDILLS' COUNSEL]:—intoxication, your Honor. I think it goes to the fact of the accident as well, um, about what happened in the accident, the cause of the accident, based on his stipulation this morning that he's not only responsible but liable in damages to the Cogdills because of the negligence.

[DAL'S COUNSEL]: As far as my stip—as far as my admitting to the jury? Yeah, I'm ad—that's correct, I said, and I'll say this on the record that I am stipulating the accident was caused by Flanagan and I'm—and that [Karmon] did sustain an injury in the accident.

[COGDILLS' COUNSEL]: And that they were, in fact—Sammye and Karmon Cogdill were damaged because of the negligence of your client?

[DAL'S COUNSEL]: Yes.

THE COURT: And that the intoxication level of Flanagan was .129 percent?

[DAL'S COUNSEL]: That part I'm stipulating to purely for the purposes of [Cogdills'] offer of proof.

THE COURT: Okay, for the offer of proof.

[COGDILLS' COUNSEL]: Okay. And then, of course, the Court's ruling is a ruling on motion in limine, which, as everybody knows, preserves nothing for appeal.

So with the Court's permission and with the agreement by [DAL's Counsel], we're going to allow me to make oral offers of proof about what my witnesses would testify to so I can preserve what I feel is error in the event this case goes on appeal.

THE COURT: Are you—are you agreeing that [Cogdills' Counsel] can summarize in his words and that will be considered by the Court and accepted as an offer of proof of what those three or four witnesses would testify if they were here personally?

[DAL'S COUNSEL]: Yes[.]

(Emphasis added).

Cogdills then made an oral offer of proof about what they believed their witnesses would testify to on the issue of liability and intoxication, and admitted various exhibits in order to preserve any potential error for appeal.

Cogdills' counsel then stated to the trial court that at the time of the accident, Karmon was a driver for Yellow Freight, and it was their “contention that he retired early because of the trauma and development of [PTSD] in this particular accident.” With respect to the Cogdills' contention, the following colloquy took place:

[COGDILLS' COUNSEL]: As part of that analysis, the facts of the accident are very important because of a near-death experience that [Karmon] went through, the fact that he thought that he killed somebody and the fact that he has to deal with drunk drivers on the highway as a professional driver. All of that's relevant not only to what happened in the accident, which goes to liability, but also the development of

[410 S.W.3d 718]

PTSD]. And so for all of those reasons, we think that it's entirely relevant concerning the facts of the accident, the damage to the vehicles, which I understand the Court's going to allow me to get into that, but also the intoxication as well.

THE COURT: Anything further? Well, first of all, as to his comment concerning PTSD, Post–Traumatic Stress Syndrome and so forth, any comment?

[DAL'S COUNSEL]: The only thing I say in response to that—I don't really have anything to add to what I said earlier about the intoxication issue.

But let me just be clear about one thing, I never objected to and I was—the fact that this previous accident had occurred and that the—and that Flanagan had died in that accident, I wasn't really objecting to that to begin with. I was assuming that that was going to be part of the case.

My objection was simply about the alcohol evidence, which I did not feel was relevant. So certainly if he—and I didn't take it that the Court's ruling was excluding anything about the overall circumstances of the accident.

THE COURT: I don't think it did either.

[DAL'S COUNSEL]: Other then the alcohol.

THE COURT: That certainly was not the Court's intention.

[DAL'S COUNSEL]: Okay.

THE COURT: Anything else at this point on preliminary matters?

[COGDILLS' COUNSEL]: No. As I understand the Court's ruling, the only issue we're going to be talking about is the amount of damages and that all other evidence is excluded.

THE COURT: Well, what I excluded was evidence of the alcohol. As far as the facts of the accident insofar as they would—let me back up.

I don't think when we discussed in Chambers there was a reference to [PTSD] and [Karmon] having to retire early as a result of this. The, for lack of a better term, shock, gruesomeness of...