Kesterson v. State Farm Fire & Casualty Company, No. WD 66348 (Mo. App. 5/9/2007)
| Decision Date | 09 May 2007 |
| Docket Number | No. WD 66348,WD 66348 |
| Parties | Nicole R. Kesterson and Philip M. Kesterson, Appellants v. State Farm Fire & Casualty Company and State Farm Mutual Automobile Insurance Company, Respondents. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Saline County, Hon. Dennis A. Rolf.
Matthew J. Padberg and Anna E. Spink, Counsel for Appellant
J. Christopher Spangler, Counsel for Respondent.
Before HARDWICK, J., and Smart, P.J.
Nicole R. Kesterson and her husband, Philip M. Kesterson, appeal from an order of the Circuit Court of Saline County, dismissing their claims against the respondents, State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company (collectively referred to herein as "State Farm"), as being barred by the doctrine of res judicata or the rule against the splitting of a cause of action. Mrs. Kesterson was seeking payment of uninsured motor vehicle (UM) benefits, under a policy of insurance with State Farm, for personal injuries she sustained in a motor vehicle accident allegedly caused, in part, by the negligence of a phantom driver. Mr. Kesterson was seeking payment from State Farm for a loss of consortium resulting from Mrs. Kesterson's personal injuries. In concluding that the appellants' claims were barred by res judicata or the rule against the splitting of a cause of action, the trial court found, inter alia, that the appellants' UM claims were part and parcel of the claims that they had previously brought unsuccessfully against State Farm for payment of UM benefits as to the same personal injuries Mrs. Kesterson sustained in the same accident, except with respect to Gary Wallut being the driver, rather than a phantom driver. At the time of the accident, Mrs. Kesterson was a passenger in a vehicle owned by her employer, the Missouri Department of Natural Resources, which was being driven by Wallut, her supervisor. Based on the decision of this court in Kesterson v. Wallut, 116 S.W.3d 590 (Mo. App. 2003) (Kesterson I), holding that the appellants could not maintain their claims against Wallut based on a theory of common-law negligence, due to the exclusivity of the Worker's Compensation Law which governed, this court held in Kesterson v. Wallut, 157 S.W.3d 675 (Mo. App. 2004) (Kesterson II) that they could not maintain their UM claims against State Farm based on the underlying negligence of Wallut in that he was not legally liable in tort to them for their damages, a requisite proof element of their UM claims.
The appellants raise one point on appeal. They claim that the trial court erred in dismissing their UM claims against State Farm in this case as being barred by the doctrine of res judicata or the rule against the splitting of a single claim or cause of action, because their claims in this case, based on the underlying negligence of a phantom driver, were separate and distinct from their UM claims against State Farm in Kesterson II, based on the underlying negligence of Wallut, on which they were previously unsuccessful.
We reverse and remand.
The appellants' claims arose out of a motor vehicle accident which occurred on December 30, 1998, in which Mrs. Kesterson was injured while riding as a passenger in a vehicle owned by her employer, the Missouri Department of Natural Resources, and driven by Wallut, her immediate supervisor. The appellants filed their second amended, six-count petition on August 13, 2001, in the circuit court, seeking damages for Mrs. Kesterson's personal injuries and Mr. Kesterson's loss of consortium. In Count I, Mrs. Kesterson sought recovery against Wallut on a theory of negligence. In Counts III and V, she sought recovery against the respondents under her uninsured motorist provisions of her State Farm policies, alleging in Count III that she was injured by the negligence of Wallut, who was uninsured, and alleging in Count V that she was injured by the negligence of a phantom driver, which under her insurance contracts, was a type of uninsured motorist. In Counts II, IV, and VI, Mr. Kesterson asserted loss of consortium claims predicated on Mrs. Kesterson's claims as pled in Counts I, III, and V, respectively.
On September 4, 2001, State Farm filed a counterclaim against the appellants, in which it sought a declaration of the trial court that the UM policy issued to Mrs. Kesterson did not provide coverage for the December 30, 1998, accident, because the vehicle Wallut was operating was not an uninsured motor vehicle in that it was covered by the State Legal Expense Fund, which would satisfy any judgment obtained against Wallut by Mrs. Kesterson. On February 22, 2002, State Farm filed a motion for summary judgment on its declaratory judgment action against the appellants, which alleged that it was entitled, as a matter of law, to a declaratory judgment that the UM provisions contained in Mrs. Kesterson's insurance policy with State Farm did not cover the December 30, 1998, accident because the vehicle Wallut was operating was not an uninsured vehicle. On June 24, 2002, Wallut filed a motion to dismiss Counts I and II of the appellants' second amended petition, claiming that the trial court was without subject matter jurisdiction because the appellants' exclusive remedy was under the Workers' Compensation Law. On July 8, 2002, the appellants filed a third amended petition, which was essentially the same as the second amended petition.
On August 3, 2002, the trial court granted Wallut's motion to dismiss Counts I and II of the appellants' third amended petition for lack of subject matter jurisdiction and granted State Farm's motion for summary judgment on Counts III and IV. The court's summary judgment did not rule on Counts V and VI against State Farm in which the appellants alleged that a phantom driver caused the appellants' injuries. The appellants appealed both the trial court's dismissal of Counts I and II and its grant of summary judgment on Counts III and IV to this court. In Kesterson I, this court affirmed the dismissal of Counts I and II, but dismissed the appellants' appeal from the grant of summary judgment on Counts III and IV for a lack of appellate jurisdiction because the trial court's judgment was not a final and appealable judgment since it did not rule on Counts V and VI. Consequently, on March 3, 2004, the appellants filed a motion to dismiss without prejudice Counts V and VI, which the trial court granted on March 9, 2004. The appellants once again appealed the trial court's grant of summary judgment as to Counts III and IV. In Kesterson II, this court affirmed the summary judgment in favor of State Farm on Counts III and IV. 157 S.W.3d at 686.
On April 20, 2005, the appellants filed a two-count petition in the circuit court, seeking damages for Mrs. Kesterson's personal injuries and Mr. Kesterson's loss of consortium. In Count I, Mrs. Kesterson sought recovery against State Farm under her UM coverage with State Farm, alleging that she was injured by the negligence of a phantom driver. In Count II, Mr. Kesterson asserted a loss of consortium claim predicated on Mrs. Kesterson's personal injuries, as pled in Count I. On May 12, 2005, State Farm filed a motion to dismiss the petition based on the doctrine of res judicata, alleging that the appellants had impermissibly split their cause of action. In that regard, State Farm asserted that their claims were part and parcel of their UM claims in Kesterson II. On September 27, 2005, the trial court took up and heard State Farm's motion, which was sustained on December 8, 2005.
This appeal follows.
At first blush, it would appear that our review in this case would be to determine if the trial court erred in dismissing appellants' petition in that the appellants are appealing from the court's "Judgment of Dismissal with Prejudice" entered on December 8, 2005, "sustain[ing] [State Farm's] Motion to Dismiss on the basis of res judicata/improper splitting of a cause of action" and ordering that the appellants' petition be "dismissed with prejudice." However, State Farm contends in its brief that in accordance with Rule 55.27(a),1 the trial court treated its motion for dismissal as one for summary judgment in that, in sustaining its motion, it took judicial notice, at the request of State Farm, of its file in Kesterston II, entitled "Nicole R. Kesterson, et ux. v. Gary R. Wallut, et al., Case No. CV400-001," such that our review should be to determine whether the court erred in granting State Farm summary judgment on the appellants' UM claims against it. We agree.
The doctrine of res judicata is an affirmative defense. Rule 55.08. The doctrine encompasses the rule against the splitting of a single claim or cause of action. Chesterfield Vill., Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). An affirmative defense must be set forth in the defendant's answer to the plaintiff's petition or it is waived. Damon Pursell Constr. Co. v. Mo. Highway & Transp. Comm'n, 192 S.W.3d 461, 475 (Mo. App. 2006). Here, State Farm did not file an answer to the appellants' petition. However, it is well settled that although not expressly stated in Rule 55.27(a)(6), the defense of res judicata is "in essence [a] defense[ ] alleging the plaintiff has failed to state a claim upon which relief may be granted," King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 498 (Mo. banc 1991); see also Hollida v. Hollida, 190 S.W.3d 550, 554 (Mo. App. 2006); Deatherage v. Cleghorn, 115 S.W.3d 447, 455 (Mo. App. 2003), such that, pursuant to Rule 55.27(a), it does not have to be raised in the defendant's answer, but can be raised by motion. Hence, State Farm was permitted to raise the defense of res judicata/improper splitting of a cause of action in its motion to dismiss filed on March 3, 2004, essentially alleging that the...
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