Contract Freighters v. Fisher

• Decision Date: 27 March 2000
• Citation: 13 S.W.3d 720
• Court: Missouri Court of Appeals
• Parties: (Mo.App. S.D. 2000) Contract Freighters, Inc., Plaintiff-Respondent, v. Dwayne Fisher, Susan Fisher, Brad Tuck, Tuck & jones, P.C., Bowlin & Johns, P.C., and Tuck and Malkmus, P.C., Defendants-Appellants. 23018 0

13 S.W.3d 720 (Mo.App. S.D. 2000)

Contract Freighters, Inc., Plaintiff-Respondent, v. Dwayne Fisher, Susan Fisher, Brad Tuck, Tuck & jones, P.C., Bowlin & Johns, P.C., and Tuck and Malkmus, P.C., Defendants-Appellants.

23018

Missouri Court of Appeals Southern District

03/27/2000

Appeal From: Circuit Court of Newton County, Hon. Timothy W. Perigo, Judge

Counsel for Appellant: C. Bradley Tuck

Counsel for Respondent: Ronald G. Sparlin

Opinion Summary: None

Prewitt and Barney, JJ., concur.

Kerry L. Montgomery, Presiding Judge

This is an appeal from an amended summary judgment in favor of Plaintiff Contract Freighters, Inc. (CFI), against all Defendants.

CFI's petition asserted a subrogation claim against Defendants based on section 287.150, RSMo 1994. The petition alleged that Defendant Dwayne Fisher, an employee of CFI, suffered an injury arising out of and in the course of his employment with CFI. As a result of this injury, CFI allegedly paid workers' compensation benefits to Fisher totaling $31,839.38. The petition further alleged that Defendant Fisher's injuries were caused by the negligence of a third party, Pilot Corporation, and that Defendant Fisher and his wife, Susan, settled their claim against Pilot Corporation for $95,000.

CFI's motion for summary judgment contained allegations similar to its petition. The motion further alleged that CFI's subrogation interest amounted to $20,488.92 calculated in accordance with the formula set forth in Ruediger v. Kallmeyer Bros. Serv., 501 S.W.2d 56 (Mo. banc 1973).

As relevant here, Defendants' response denied that CFI paid Defendant Fisher workers' compensation benefits totaling $31,839.38 and affirmatively alleged that CFI's agent, Dan Fowler, offered and represented to Defendant Fisher that if he "would agree to accept a lower sum of Ten Thousand Dollars ($10,000.00) in settlement of his worker's compensation claim, that [CFI] would not seek its full reimbursement under the Ruediger formula . . . ." Supporting this allegation was Defendant Fisher's affidavit which, in part, stated:

Dan Fowler told me that if I would agree to accept $10,000.00 as final settlement of my worker's compensation claim, my employer, Contract Freighters, Inc., "would work with me" on any subrogation claim that might be forthcoming from Contract Freighters, Inc., at the time I concluded my personal injury claim with Pilot Oil Corporation. At no time did Dan Fowler and I establish a percentage reduction in the Ruediger formula; however, it was my understanding from Mr. Fowler that Contract Freighters, Inc., would automatically agree to accept either one-half or two-thirds of its claimed amount under the Ruediger formula. At the time I accepted the $10,000.00 final settlement from Contract Freighters, Inc., it was my express understanding that only one-half or possibly two-thirds of any subrogation interest of Contract Freighters, Inc., would be returned to Contract Freighters, Inc. Accordingly, it was my belief that at no time would Contract Freighters, Inc., be entitled to obtain the entire amount provided under the Ruediger formula when I concluded my claim against Pilot Oil Corporation.After a hearing on the motion for summary judgment, the amended judgment entered by the court awarded CFI $20,488.92 plus interest, based on the Ruediger formula. The court found that Defendant Fisher's affidavit "clearly shows that no legal [sic] enforcement [sic] agreement was made between Mr. Fisher and CFI."¹

Defendants' first of four points is dispositive of this appeal. In that point, Defendants claim the trial court erroneously entered summary judgment in favor of CFI because the pleadings and affidavits showed the existence of a genuine issue of material fact in that "[a] disputed factual issue remained as to an agreement between Appellant Dwayne Fisher and Respondent's employee, Dan Fowler, regarding Contract Freighters, Inc.'s agreement to accept either two-thirds (2/3) or one-half (1/2) of the established Ruediger formula as reimbursement."

In considering an appeal from the entry of a summary judgment, an appellate court reviews the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The review is essentially de novo with the appellate court employing the same tests as should be employed by the trial court in deciding whether to grant the motion. Id. "The propriety of a summary judgment is purely an issue of law." Id. The party against whom judgment is rendered is accorded the benefit of all reasonable inferences from the record. Id.

Summary judgment is granted only where no genuine issue of material fact exists, and judgment is proper as a matter of law. Rule 74.04(c)(3); Cash v. Benward, 873 S.W.2d 913, 915 (Mo.App. 1994). "A genuine issue of material fact exists where the record contains competent evidence that two plausible but contradictory accounts of essential facts exist." Id. Furthermore, "a claimant moving for summary judgment in the face of an affirmative defense must also establish that the affirmative defense fails as a matter of law." ITT Commercial Fin., 854 S.W.2d at 381.

We are also guided in this case by additional rules unique to appeals from summary judgment. "If the evidence presented to support or oppose the motion is subject to conflicting interpretations, or reasonable people might differ as to its significance, summary judgment is improper." Rogers v. Illinois Central R.R. Co., 833 S.W.2d 426, 427 (Mo.App. 1992). "Summary judgment should likewise be denied where the affidavits or other sworn statements require an evaluative judgment between two rationally possible conclusions, even if the court is convinced that the...