Jefferson v. Lyon Sheet Metal Works

• Decision Date: 28 June 2012
• Docket Number: No. ED 96338.,ED 96338.
• Citation: 376 S.W.3d 37
• Parties: Shawn JEFFERSON, Plaintiff/Respondent, v. LYON SHEET METAL WORKS, Defendant/Appellant, Chilimack's Union Couriers, LLC, and Durwin Petterson, Jr., Defendants.
• Court: Missouri Court of Appeals

376 S.W.3d 37

Shawn JEFFERSON, Plaintiff/Respondent,

v. LYON SHEET METAL WORKS, Defendant/Appellant,Chilimack's Union Couriers, LLC, and Durwin Petterson, Jr., Defendants.

No. ED 96338.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 9, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 28, 2012.

Application for Transfer Denied Sept. 25, 2012.

Appeal from the Circuit Court of the City of St. Louis, Bryan L. Hettenbach, J.

Ray B. Marglous, P.C., St. Louis, MO, for respondent.

John S. Sandberg, Timothy C. Sansone, Sandberg Phoenix & von Gontard P.C., St. Louis, MO, for appellant.

KATHIANNE KNAUP CRANE, Presiding Judge.

Defendant, Lyon Sheet Metal Works (Lyon), appeals from a judgment entered on a jury verdict finding it liable for damages sustained by a pedestrian when he was hit by a Lyon trailer that detached from a Lyon truck as a result of the truck driver's negligence. On appeal, Lyon challenges the trial court's grant of motions in limine that prohibited it from asserting at trial that a former codefendant was liable. We reverse and remand.

On August 6, 2007, plaintiff, Shawn Jefferson, was hit by a Lyon trailer that detached from a Lyon truck while he was waiting at a bus stop in the City of St. Louis. The driver of the truck was Durwin Petterson, Jr. (hereinafter, the driver). The driver worked for Chilimack's Union Couriers, L.L.C. (Chilimack's), and at the time of the accident, he had been “subbed out” to Lyon.

Plaintiff filed a lawsuit that sought damages from Lyon, Chilimack's, and the driver for his injuries. As amended, the petition alleged that the driver was the agent of both Lyon and Chilimack's, and sought damages from both Lyon and Chilimack's based on the driver's negligence and on the theory of res ipsa loquitur. In its amended answer, Lyon admitted that the accident occurred and that the driver was negligent, but it did not admit that the driver was its agent.

Chilimack's thereafter filed a motion for summary judgment on the ground that it was not vicariously liable for the driver's acts because the driver was a “borrowed servant” under the control of Lyon and was not under the control of Chilimack's. Plaintiff filed a response to Chilimack's motion, denying that the “borrowed servant” doctrine applied. The trial court granted Chilimack's motion for summary judgment on plaintiff's negligence count and dismissed that count against Chilimack's with prejudice. It thereafter entered summary judgment in favor of Chilimack's on plaintiffs res ipsa loquitur count in a supplemental order.

Plaintiff then filed two motions in limine with respect to Lyon, who remained in the case as a defendant. In his Motion in Limine No. 1, plaintiff sought to preclude Lyon from mentioning, discussing, or referring to Chilimack's during trial or from conveying in any manner that Chilimack's was responsible for plaintiff's injuries or had any relationship with the driver. In support of his motion, he argued that a party “may not argue a third person was negligent when that person has been dismissed from the lawsuit on the merits, i.e. when there has been a judicial determination the third person was not negligent.” He further argued that the summary judgment was a final judgment on the merits.

In his Motion in Limine No. 2, plaintiff sought an order prohibiting Lyon from denying that the driver was the “borrowed servant” of Lyon at the time of the accident. He argued that the summary judgment in Chilimack's favor was a prior adjudication in which the court had found as a matter of law that Chilimack's could not be liable to Plaintiff for the conduct of its employee, who at the time of the injury was a borrowed servant of Lyon, and therefore the doctrine of collateral estoppel applied to prohibit Lyon from relitigating this issue.

In its response to both motions, Lyon argued that (1) it could argue Chilimack's role because it was not bound by the summary judgment in Chilimack's favor in that Lyon was not a party to the summary judgment motion, and (2) it could contest whether the driver was its agent because collateral estoppel did not apply to prevent it from denying control over the driver.

The trial court granted plaintiffs Motion in Limine No. 1 to preclude Lyon from mentioning Chilimack's in the liability context and granted plaintiff's Motion in Limine No. 2 to preclude Lyon from denying that the driver was Lyon's borrowed servant “in light of the Court's previous findings and conclusions in its summary judgment orders dismissing Defendant Chilimack's from the case.” It ordered that Lyon could “not litigate or advocate at trial that Chilimack's is liable for the actions of [the driver] at the time of the accident.” During a pretrial discussion of this ruling, the trial court orally advised the parties that Lyon would be precluded from denying that the driver was a “borrowed servant,” and that Lyon could not litigate or advocate that Chilimack's was liable for the driver's actions. Lyon's counsel then clarified with the court that because the court had prohibited Lyon from denying that it employed the driver, and because it had admitted the driver's negligence in its answer, the only issue remaining for trial was the amount of damages.

The case was submitted to the jury against Lyon on the negligence count.¹ Over Lyon's objection, the trial court instructed the jury that it “must” find in plaintiff's favor and “must” award plaintiff damages in the amount that the jurors believed would fairly and justly compensate plaintiff. The jury assessed damages at $900,000.00, and the trial court entered a judgment on that verdict.

DISCUSSION

I. Grant of Motions in Limine

For its first point, Lyon asserts that the trial court erred in ordering that, as a matter of law, the summary judgment in favor of Chilimack's offensively and collaterally estopped Lyon from denying that the driver was Lyon's alleged agent, in directing the jury to find in favor of plaintiff and award him damages, and in denying Lyon's motion for new trial. It argues that Lyon was neither an adverse party in Chilimack's summary judgment motion nor aggrieved by the summary judgment, and, therefore, Lyon was entitled as a matter of due process to defend itself on the liability issue. It further argues that the doctrine of offensive collateral estoppel does not apply. It asserts that the doctrine of offensive collateral estoppel is available only when the party against whom it is asserted has litigated and lost in an earlier proceeding, not when the party asserting the doctrine has lost.

In response, plaintiff argues that Lyon was a party to the case and an adverse party in the summary judgment motion and was bound by the summary judgment which, plaintiff contends, immediately shifted liability to Lyon, who was an “aggrieved” party; that the law prohibited Lyon from “pointing the finger at Chilimack's” at trial; and that nothing in the record indicates that the court based its ruling on collateral estoppel. Although plaintiff now concedes that collateral estoppel is inapplicable, he argues that the principles of collateral estoppel show that Lyon had a full and fair opportunity to litigate the issue of liability.

As an initial matter, plaintiff's use of motions in limine to preclude Lyon from presenting its defense at trial was improper. This is not the function of a motion in limine. “Ordinarily, a motion in limine is used to exclude evidence in a jury trial which would be unfairly prejudicial or inflammatory.” Cass Bank & Trust Co. v. Mestman, 888 S.W.2d 400, 404 (Mo.App.1994). “It is appropriate when the mere asking of an improper question in front of a jury may be so prejudicial that a party will be denied a right to a fair trial.” Id. However, a motion in limine “is not a substitute for a summary judgment motion.” Id. “Nor should it ‘ordinarily [be] employed to choke off an entire claim or defense.’ ” Id. (quoting Lewis v. Buena Vista Mutual Ins. Ass'n, 183 N.W.2d 198, 201 (Iowa 1971)). Therefore, the trial court procedurally erred in granting plaintiff's motions in limine to preclude Lyon from litigating a defense at trial.

Moreover, the trial court substantively erred in prohibiting Lyon from asserting its defense at trial. Lyon was not an “adverse” party to Chilimack's in Chilimack'smotion for summary judgment and was not “aggrieved” by the summary judgment in Chilimack's favor. As a result, Lyon was not bound by the summary judgment in Chilimack's favor on either of these theories. Further, Lyon was not prohibited from arguing Chilimack's liability as a matter of law. Finally, collateral estoppel did not prohibit Lyon from asserting or arguing Chilimack's liability.

A. Adverse Party

We begin with the issue of whether Lyon was an “adverse party” to Chilimack's in Chilimack's motion for summary judgment. Plaintiff named Lyon and Chilimack's as codefendants in his lawsuit. Neither defendant filed cross-claims against the other. In this situation, they were not adverse or opposing parties. See Hemme v. Bharti, 183 S.W.3d 593, 596–98 (Mo. banc 2006); Brown v. Harrison, 637 S.W.2d 145, 147–48 (Mo.App.1982).² In the absence of cross-claims, codefendants are not adverse parties. This is true even when the codefendants' defenses to the plaintiff's claims conflict with each other, or even when each believes that the other was at fault. Brown, 637 S.W.2d at 147.

This was the status of the pleadings when Chilimack's filed its motion for summary judgment. Plaintiff was the claimant against whom Chilimack's summary judgment motion was filed, making plaintiff the “adverse party” to Chilimack's summary judgment motion.

Only the adverse party is required to respond to a motion for summary judgment. See Rule 74.04(c)(2) (providing that: “[w]ithin 30 days after a motion for summary judgment is served, the adverse party shall serve a response on all parties” (emphasis added)). In this case, plaintiff was the only...