Kinney v. Schneider National Carriers, Inc.

• Citation: 213 S.W.3d 179
• Decision Date: 30 January 2007
• Docket Number: No. WD 66501.,No. WD 66429.,WD 66429.,WD 66501.
• Parties: Michael KINNEY, Appellant-Respondent, v. SCHNEIDER NATIONAL CARRIERS, INC., et al.; Defendant Allstate Insurance Company, Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

213 S.W.3d 179

Michael KINNEY, Appellant-Respondent, v. SCHNEIDER NATIONAL CARRIERS, INC., et al.; Defendant Allstate Insurance Company, Respondent-Appellant.

No. WD 66429.

No. WD 66501.

Missouri Court of Appeals, Western District.

January 30, 2007.

Michelle B. O'Neal, Joplin, Scott R. Pettit, Aurora, John A. Cowherd, Mount Vernon, MO, for Appellant-Respondent.

Paul P. Hasty, Jr., Overland Park, KS, for Respondent-Appellant.

Richard E. McLeod, Kansas City, MO, for Defendant, Schneider.

Steven H. Mustoe, Kansas City, MO, for Defendant, 3-C, Inc.

Before THOMAS H. NEWTON, P.J., PATRICIA A. BRECKENRIDGE, and JOSEPH M. ELLIS, JJ.

THOMAS H. NEWTON, Presiding Judge.

Mr. Michael Kinney became a paraplegic as a result of an automobile accident while traveling in his employer's car on a business trip. Mr. Joshua Cousins, the driver of the second vehicle caused the accident by making a u-turn on a highway. Mr. Kinney sued Schneider National Carriers (Schneider) for the negligence of their employee who operated the third vehicle involved in the accident. He sued Aurora Chrysler-Dodge-Jeep (Aurora) for selling his employer a defective automobile. He subsequently added 3-C, a dissolved corporation, as the entity that owned and operated Aurora when the automobile was sold. Mr. Kinney settled with Mr. Cousins's insurance company for the limit of his liability policy of $25,000. Mr. Kinney also sued Allstate insurance (Allstate), his employer's insurer, as a party to the suit for the remaining liability of Mr. Cousins under the uninsured motorist (UM) and underinsured motorist (UIM) clauses of the automobile insurance policy.

Prior to the lawsuit against Allstate, Mr. Kinney wrote a letter to Allstate requesting permission to settle with Mr. Cousins and also seeking permission to name Allstate in the lawsuit. In it he stated:

In addition and in anticipation that Allstate will deny coverage to Mr. Kinney under the uninsured and underinsured provisions of the applicable policy, we are awaiting to file a lawsuit naming Schneider . . ., Aurora Chrysler-Dodge-Jeep, L.L.C., and Allstate Insurance as defendants. . . . Accordingly I am also writing this letter on behalf of my client so as to request consent from Allstate to proceed with filing a lawsuit naming Schneider . . ., Aurora, and Allstate Insurance as defendants. As there are additional defendants besides Allstate with potentially a considerable amount of liability, we anticipate that you will agree to this lawsuit.

In a written response, Allstate gave permission to the settlement with Mr. Cousins's insurance company and did not object to a lawsuit being filed listing Allstate as a defendant. Following its consent to the lawsuit, Allstate discussed an objection to application of the UM coverage but not the UIM coverage, stating:

The final issue we discussed was that of the applicability of Uninsured Motorist benefits with regard to the circumstances presented in this loss. . . . This accident occurred in the state of Oklahoma. Mr. Cousins is a resident of the state of Oklahoma and his vehicle was garaged and insured in Oklahoma at the time of this accident. Uninsured motorist coverage is optional in the state of Oklahoma. The issue of whether or not Mr. Cousins had uninsured motorist coverage . . . is irrelevant to this case.

After the lawsuit was filed, Allstate filed a motion to dismiss, claiming that under the terms of the policy, it was premature to add them as a party. The policy was attached to the motion, and the policy language used to justify it is as follows: "We will pay under this coverage if a or b below applies: a. The limits of any applicable liability bonds or policies have been exhausted by judgments or payments."

Additionally, the policy provides: "We will not make a duplicate payment under this Coverage for any element of `loss' for which payment has been made by or for anyone who is legally responsible."

The trial court granted the motion to dismiss without prejudice. Mr. Kinney requested the trial court to amend the judgment to find "that there is no just reason for delay." The trial court granted this request and certified the judgment as final by adding this language.

Mr. Kinney appeals and asserts that the motion to dismiss was transformed into a summary judgment motion since the policy was attached to the motion and a genuine issue of material fact existed as to whether Allstate waived its right to object to being joined because it had consented to being joined and it had a right to participate in the case and expressly agreed to do so. Mr. Kinney also argues that Allstate should be estopped from requesting a dismissal of the action; and, finally, Mr. Kinney argues that Allstate was not entitled to a dismissal because the terms of the policy were ambiguous and should be construed against the insurance company. Because Allstate waived its right to object to being joined, we reverse and remand to the trial court.

Allstate contends that the trial court improperly amended its judgment dismissing Allstate without prejudice, to add a certification that "there is no just reason for delay" under Rule 74.01. The trial court's certification that "there is no just reason for delay" is not conclusive and we review the partial judgment to see if it qualifies as a final judgment. Sisk v. Union Pac. R.R., 138 S.W.3d 799, 802 (Mo. App. W.D.2004).

For a judgment to be appealed it must be a final judgment. Id. To be final, a judgment normally must resolve all issues, leaving nothing for future determination. Id. However, under Rule 74.01, when there are multiple claims or parties, the trial court can certify a partial judgment as final if it determines that there is no just reason for delay. Id. Whether such an order is final and therefore appealable is determined by the "content, substance, and effect of the order." Id. For an order to be final it must dispose of a "distinct judicial unit". Id. "A judgment that dismisses one of two defendants on the basis of a defense available to only the dismissed defendant constitutes a `distinct judicial unit' reviewable on appeal." Id. The insurance policy defense was only available to Allstate, therefore Allstate's dismissal was a distinct judicial unit, and the order was final as to Allstate. Thus, the order was properly certified as having "no just reason for...