Hitchcock v. New Prime, Inc.
| Decision Date | 28 August 2006 |
| Docket Number | No. 27034.,27034. |
| Citation | 202 S.W.3d 697 |
| Parties | DOYLE HITCHCOCK, Plaintiff-Appellant, v. NEW PRIME, INC., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Nick M. Venute of Springfield, MO, for Appellant.
Stuart H. King of Springfield, MO, for Respondent.
Doyle Hitchcock (Hitchcock) appeals from the dismissal of his lawsuit to recover damages for injuries sustained in a motor vehicle accident. The trial court entered a summary judgment against Hitchcock after concluding that his petition failed to state a claim because of certain contracts he had executed with defendant New Prime, Inc. (NPI). We reverse and remand.
On June 17, 1999, Hitchcock leased a 2000 Freightliner truck to NPI. As a part of that transaction, two agreements were executed by Hitchcock and NPI. The first was an Independent Contractor Operating Agreement (ICOA); the second was a Personnel Service Agreement (PSA). The ICOA contained a hold harmless and indemnification provision which stated, in pertinent part, that "You agree to hold Prime harmless and to indemnify Prime against all claims, losses, damages and expenses, including attorneys' fees (i) arising out of Your acts or omissions or those of Your agents and employees (including drivers leased from Prime). . . ." The PSA obligated NPI, upon request, to "lease" to Hitchcock a NPI employee to operate the Freightliner. The PSA stated, in pertinent part, as follows:
Hitchcock's wife, Rama Hitchcock (Rama), was an employee of NPI. At Hitchcock's request, she was "leased" to him to operate the Freightliner.
On June 1, 2004, Hitchcock filed suit against NPI in the Circuit Court of Greene County, Missouri. In that lawsuit, Hitchcock alleged that: (1) he was riding as a passenger in a tractor-trailer unit being operated by Rama on December 5, 2000; (2) at that time, Rama was an employee of NPI; (3) she was operating the tractor-trailer unit in the scope and course of her employment by NPI; (4) the tractor-trailer unit left the highway and crashed; (5) the accident was caused by Rama's negligence in various respects; (6) Hitchcock sustained personal injuries in the collision; and (7) pursuant to the doctrine of respondeat superior, NPI was liable for Rama's negligence since she was acting as NPI's employee and/or agent when the accident occurred. Hitchcock sought to recover lost wages, medical expenses and other damages from NPI.
On June 17, 2004, NPI filed a motion to dismiss Hitchcock's petition. Copies of the ICOA and PSA were attached as exhibits to the motion. Based on the hold harmless provision in the ICOA and the release clause in the PSA, NPI argued that dismissal was required. Specifically, NPI argued that Hitchcock was responsible for Rama's negligence because: (1) she was Hitchcock's borrowed servant; and (2) the indemnity provisions of the ICOA and PSA should be enforced because they were plain and unambiguous. In August 2004, an amended motion to dismiss advancing these same arguments was filed by NPI.
At the same time Hitchcock's lawsuit was pending in the Circuit Court of Greene County, Missouri, another personal injury action styled Caballero v. Stafford and New Prime, Inc. (Case No. 104CC2079) had been filed in that same court. Caballero's lawsuit was virtually identical in all material respects to...
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...there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Rule 74.04(c)(6).7 This Court uses the same criteria the probate court should have used in initially deciding whether to gr......
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...issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Lindsay v. Mazzio's Corp., 136 S.W.3d 915, 919 (Mo.App.2004).1 Appellate review is de novo. Wilson v. Rhodes, 258 S.W.3d......
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