Lavender v. State Auto. Mut. Ins. Co., 20146

• Decision Date: 01 November 1995
• Docket Number: No. 20146,20146
• Citation: 908 S.W.2d 882
• Parties: Holly A. LAVENDER, et al., Plaintiffs-Respondents, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, and Franklin Marshall, III, Defendant ad litem for Donald W. Hartgroves, deceased, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 882

908 S.W.2d 882

Holly A. LAVENDER, et al., Plaintiffs-Respondents, v. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, and Franklin Marshall, III, Defendant ad litem for Donald W Hartgroves, deceased, Defendants-Appellants.

No. 20146.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 1, 1995.

Richard G. Steele, Matthew M. Mocherman, Finch, Bradshaw, Strom & Steele, L.C., Cape Girardeau, for appellants.

Phillip J. Barkett, Jr., Dempster, Barkett, McClellan & Edwards, Sikeston, for respondents.

PER CURIAM.

This appeal must be dismissed as premature for lack of final judgment.

On April 28, 1993, William Lavender, Jr. was a passenger in a Ford Ranger driven by Donald W. Hartgroves. The Ford, which was uninsured, collided with another vehicle. The collision was caused by the negligence of Hartgroves and resulted in the death of William Lavender, Jr. Plaintiffs are the surviving parents (William Lavender, Sr. and Ruth Lavender), spouse and children of William Lavender, Jr. Defendants are State Automobile Mutual Insurance Company and Franklin Marshall, III, defendant ad litem for Donald W. Hartgroves, deceased.

Pursuant to § 537.080, ¹ plaintiffs sued the defendant ad litem for decedent's wrongful death. William Lavender, Sr. and Ruth Lavender were the named insureds under a policy issued by State Automobile Mutual Insurance Company, and they sought recovery under the uninsured motorist provisions of the policy.

Following the filing of a stipulation of facts executed by all parties, the trial court, on February 24, 1995, entered a "Judgment," which found: plaintiffs William Lavender, Sr. and Ruth Lavender have available to each of them $25,000 coverage on each of the three automobiles insured at the time of the death of William Lavender, Jr., for a total coverage of $150,000; the damages of plaintiffs exceed $150,000; "plaintiffs" shall have and recover from the defendants, and each of them, the sum of $150,000 on account of the wrongful death of William Lavender, Jr.; judgment is entered in favor of plaintiffs and against defendant State Automobile Mutual Insurance Company and the defendant ad litem for Donald W. Hartgroves, deceased, and each of them, in the sum of $150,000. "It is further ordered that upon motion of plaintiffs, or any of them, an apportionment hearing shall be heard by the court to determine each plaintiff's damages."

Only defendant State Automobile Mutual Insurance Company seeks to appeal from the judgment.

There is no final judgment because the trial court has not apportioned the recovery among the plaintiffs pursuant to § 537.095.3. Until apportionment is made, jurisdiction remains in the trial court and is not lodged here. Kilmer v. Browning, 806 S.W.2d 75, 85 (Mo.App.1991); Schaefer v. Yellow Freight Systems, Inc., 788 S.W.2d 345, 346 (Mo.App.1990); Bragg v. Missouri Pacific R.R., 756 S.W.2d 666, 667-668 (Mo.App.1988).

An insured has no obligation to assert a tort claim against a tort-feasor prior to filing suit against his or her uninsured motorist carrier. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 717 (Mo. banc 1979); Schreiner v. Omaha Indem. Co., 854 S.W.2d 542, 544 (Mo.App.1993). The claim against the insurer under the...