Lone Star Industries v. Howell Trucking

• Decision Date: 29 August 2006
• Docket Number: No. ED 86740.,ED 86740.
• Citation: 199 S.W.3d 900
• Parties: LONE STAR INDUSTRIES, INC., Plaintiff/Appellant, v. HOWELL TRUCKING, INC., Defendant/Respondent.
• Court: Missouri Court of Appeals

199 S.W.3d 900

LONE STAR INDUSTRIES, INC., Plaintiff/Appellant, v. HOWELL TRUCKING, INC., Defendant/Respondent.

No. ED 86740.

Missouri Court of Appeals, Eastern District, Division Three.

August 29, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas B. Weaver, Cynthia A. Petracek, St. Louis, MO, for appellant.

John G. Enright, St. Louis, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

Plaintiff Lone Star Industries filed suit against Howell Trucking seeking a declaratory judgment that an indemnity agreement between them was valid and enforceable, and further seeking indemnity for amounts Lone Star paid to settle an underlying wrongful-death lawsuit. Lone Star now appeals from the circuit court's judgment granting Howell Trucking's motion for judgment on the pleadings. Because the allegations of Lone Star's petition are sufficient and a judgment different from that pronounced could be rendered, we reverse the judgment and remand the cause.

Factual Background

Carl Howell was killed at Lone Star's quarry in Cape Girardeau in February of 1997 when, allegedly, a slab of rock fell from a high wall area and hit the excavator in which he was working. Vicki Howell, Mr. Howell's widow, brought a wrongful-death suit against Lone Star, asserting that her husband's death resulted from Lone Star's negligence.

Lone Star and Mrs. Howell settled. The parties entered into a release and settlement agreement in December of 2001, in which Mrs. Howell agreed to release Lone Star and to dismiss her lawsuit with prejudice in consideration of a cash payment. Mrs. Howell and Lone Star agreed that this agreement was not an admission of liability, which Lone Star expressly denied. The parties further acknowledged that Lone Star reserved its right to prosecute an action for declaratory judgment and indemnity against Howell Trucking.

After settling the case with Mrs. Howell, Lone Star filed an action for declaratory judgment and indemnity against Howell Trucking.¹ Lone Star sought indemnity under a written agreement between Lone Star and Howell Trucking from June of 1996. In its petition Lone Star alleged:

[o]n June 30, 1996, [Lone Star] and [Howell Trucking] entered into a written agreement under the terms of which, [Howell Trucking], in consideration of payment by [Lone Star], agreed in relevant part to assume the defense of, and to indemnify and hold [Lone Star] harmless from, any claim, liability, loss, damage, judgment or expense made or recovered against [Lone Star] by reason of the death to [Howell Trucking's] employees, arising out of or in any way relating to the negligence of [Howell Trucking] or its employees.

Lone Star further posited negligence on the part of Howell Trucking, specifically pleading:

[t]he injuries to Carl D. Howell, Jr., were caused in whole or part by the negligent acts or omissions of the employees of [Howell Trucking], including but not limited to [Howell Trucking's] employee Carl D. Howell, Jr.

Lone Star's petition denied its own conduct was negligent or in any way caused or contributed to cause Mr. Howell's demise. Lone Star also noted that its settlement with Mrs. Howell did not, by specific provision of their agreement, admit any liability on its part. Lone Star sought a declaration that the written agreement between Lone Star and Howell Trucking was enforceable and valid, and sought indemnity from Howell Trucking pursuant to the agreement for the entire settlement amount, as well as any costs, fees, and expenses attendant to Lone Star's defense of Mrs. Howell's wrongful-death lawsuit.

Howell Trucking answered, denying many of Lone Star's allegations and setting forth numerous "defenses." Among these, Howell Trucking asserted that the indemnity count of Lone Star's petition failed to state a claim upon which relief could be granted. As another defense, Howell Trucking asseverated that it was Lone Star's own negligence that caused its damages and that Howell Trucking was not obligated to indemnify Lone Star for Lone Star's negligence.²

Howell Trucking then filed a motion for judgment on the pleadings, again asserting that Lone Star was not entitled to obtain indemnification for its own negligence. Howell Trucking contended that because there was no allegation in the underlying wrongful-death action that Howell Trucking or any of its employees contributed to cause Mr. Howell's death, the negligence of Howell Trucking was never an issue in the wrongful-death action. Instead, it maintained, the underlying wrongful-death case was merely a claim against Lone Star for Lone Star's own negligence. Howell Trucking thus argued this necessarily meant that Lone Star was currently seeking indemnity from Howell Trucking for Lone Star's own negligence. Based on this premise, Howell Trucking maintained that it could not be required to indemnify Lone Star for its own negligence because the indemnity provision in the agreement under which Lone Star sought indemnification was neither conspicuous nor explicit in providing that Lone Star could be so indemnified.

Without any findings or written opinion, the circuit court sustained Howell Trucking's motion for judgment on the pleadings, and entered judgment in favor of Howell Trucking on Lone Star's petition for indemnity and declaratory judgment. Lone Star now appeals.

Discussion

As an initial matter, Howell Trucking, on appeal, challenges the sufficiency of certain factual allegations contained in Lone Star's petition, and thus maintains that Lone Star's petition fails to state a claim upon which relief could be granted. We note that Howell Trucking does not contend that it previously challenged the sufficiency of Lone Star's pleadings in the circuit court. It is true that a general allegation that the indemnity count of Lone Star's petition failed to state a claim upon which relief could be granted was embedded in Howell Trucking's answer, by way of a defense. That proposition was phrased in the most general terms, asserting only that the indemnity count of Lone Star's petition "fails to state a claim upon which relief can be granted." Howell Trucking did not specify the defects of which it now complains. Moreover, the circuit court was never presented with an opportunity to rule on Howell Trucking's "defense." From the record before us, it does not appear that Howell Trucking ever filed a motion for a more definite statement, or a motion to dismiss for failure to state facts sufficient to constitute a claim upon which relief could be granted. Nor does it appear that Howell Trucking ever set the matter for hearing, or otherwise brought the matter to the circuit court's attention for its ruling. Rather, the first serious assignment and challenge to the sufficiency of the petition is brought on appeal.

Howell Trucking complains that the allegations in Lone Star's petition are insufficiently specific. Particularly, Howell Trucking demurs that Lone Star failed to sufficiently allege the existence of an indemnity agreement because it did not attach the indemnity provision of the contract as an exhibit to its petition. Howell Trucking also protests that Lone Star did not particularly plead that Mr. Howell was, at the time of his fatal injury, laboring within the scope of the work described in the purchase order. And, Howell Trucking further complains that Lone Star failed to set forth particular facts supporting its allegation that Howell Trucking was negligent. Thus, Howell Trucking maintains that Lone Star's negligence allegations are entirely conclusory. As we noted, however, Howell Trucking neglected to raise its complaints before the circuit court by a motion for a more definite statement. Thus it has waived any complaint regarding the mere lack of specificity in the petition. In the Interest of D.W.P., 110 S.W.3d 863, 865 (Mo.App. E.D.2003); see also, State ex rel. Harvey v. Wells, 955 S.W.2d 546, 547 (Mo. banc 1997).

Howell Trucking is correct in its assertion, however, that the failure to state a claim upon which relief may be granted is a jurisdictional defect, and that such defense can be raised at any time, including upon appeal. Rule 55.27(g); City of Sullivan v. Truckstop Restaurants, Inc., 142 S.W.3d 181, 191 (Mo.App. E.D.2004). However, when a challenge to a pleading for failure to state a claim is brought for the first time on appeal, the pleading will be more liberally construed than if the challenge was made via a motion to dismiss. Weidner v. Anderson, 174 S.W.3d 672, 681 (Mo.App. S.D.2005). The purpose of pleadings is to present, define, and isolate the issues, so that the trial court and all parties have notice of the issues. Norman v. Wright, 100 S.W.3d 783, 786 (Mo. banc 2003). When an attack on the sufficiency of a petition is made for the first time on appeal, the pleading will be held good unless it wholly fails to state a claim. Sumpter v. J.E. Sieben Const. Co., 492 S.W.2d 150, 153 (Mo.App.1973). In this determination, the petition will be given its fullest intendment as a claim for relief. Id.

Examined in light of these principles, we conclude that Lone Star's petition is sufficient. Lone Star's petition specifically recites that it is an indemnity cause of action against Howell Trucking to recover amounts Lone Star paid to settle and defend Mrs. Howell's wrongful-death action. Lone Star explicitly pleaded that it was entitled to indemnity based on the indemnity provisions of an agreement between Lone Star and Howell Trucking, under which Howell Trucking agreed to "assume the defense of, and to indemnify and hold [Lone Star] harmless from, any claim, liability, loss, damage, judgment or expense made or recovered against [Lone Star] by reason of the death to [Howell Trucking's] employees, arising out of or in any way relating to the negligence of [Howell Trucking] or its employees." Lone Star's pleading of the indemnity agreement is thus pleaded according to legal effect as permitted by Rule 55.22.³ The petition by clear implication...