Murphy v. A.A. Mathews, a Div. of CRS Group Engineers, Inc.

• Decision Date: 24 November 1992
• Docket Number: No. 74550,74550
• Citation: 841 S.W.2d 671
• Parties: Clifford W. MURPHY, Trustee of American Drilling Service Company Liquidating Trust, Appellant, v. A. A. MATHEWS, a DIVISION OF CRS GROUP ENGINEERS, INC., Respondent.
• Court: Missouri Supreme Court

Page 671

841 S.W.2d 671

Clifford W. MURPHY, Trustee of American Drilling Service Company Liquidating Trust, Appellant, v. A. A. MATHEWS, a DIVISION OF CRS GROUP ENGINEERS, INC., Respondent.

No. 74550.

Supreme Court of Missouri En Banc.

Nov. 24, 1992.

Rehearing Overruled Dec. 18, 1992.

P. Terence Crebs, Craig A. Newman, Patricia N. McCloskey, St. Louis, for appellant.

Kenneth Slavens, James P. Reinert, St. Louis, for respondent.

PRICE, Judge.

This case presents an issue of first impression in Missouri: whether a cause of action for negligence may be stated against a professional who agrees to provide litigation-related services for compensation. We hold that witness immunity does not bar suit if the professional is negligent in providing the agreed services.

I.

Appellant, Clifford W. Murphy, Trustee of American Drilling Service Company Liquidating Trust ("American"), appeals the dismissal of its engineering malpractice claim against respondent, A.A. Mathews, a division of CRS Group Engineers, Inc., ("Mathews"). American's claim arose from services provided by Mathews concerning an arbitration proceeding brought by American against Zurn Industries, Inc., ("Zurn").

American subcontracted with Zurn to perform foundation work for six nuclear cooling towers. Construction problems arose causing additional expenses for American. In 1980, American retained Mathews, as professional engineers, to prepare claims for additional compensation from Zurn and to present those claims at an arbitration proceeding, if necessary. Mathews testified at the arbitration proceeding on behalf of American for additional compensation in the amount of $4,888,390. The arbitrators awarded American $1,118,608.

American filed suit against Mathews on October 23, 1984. The original petition consisted of a single count alleging that Mathews was negligent in its performance of professional services involving the preparation and documentation of American's claims for additional compensation from Zurn. Consequently, American alleges that it was unable to support its claims for all of the additional compensation.

In response to a motion for more definite statement, an amended petition was filed on June 26, 1990, specifically pleading negligence. On August 14, 1990, American filed its second amended petition. Count I sounded in negligence and Count II alleged breach of contract based upon Mathews' breach of its agreement to provide professional engineering services. Prior to trial, the court dismissed American's breach of contract claim as untimely. Nine days into trial, the court ordered a mistrial and then dismissed the remaining count of negligence for failure to state a cause of action based upon witness immunity.

Because this matter is before us on a motion to dismiss, we must accept plaintiff's properly pleaded facts as true. We must also give those averments liberal construction and draw all reasonable inferences that are fairly deducible from the facts stated. Concerned Parents v. Caruthersville School Dist. 18, 548 S.W.2d 554, 558 (Mo. banc 1977). Thus, we test the sufficiency of the petition on the premise that the defendant's engineers were negligent in their preparation and documentation of plaintiff's claims for additional compensation from Zurn. Count I of American's second amended petition, at paragraphs 12-14, sets forth the allegations at issue:

12. That defendants [Mathews], as professional engineers, in documenting, evaluating and reporting of plaintiff's claims for additional compensation against Zurn Industries were negligent and careless in one, some or all of the following particulars:

a. The form of report prepared by defendants to be completed by American Drilling's job site engineering personnel, the Daily Caisson Summary, was not adequate for the purpose intended. Such inadequacies include, inter alia:

(1) failure to document or record job site occurrences or events on a pier-by-pier basis;

(2) failure to contain necessary explanations of the various columns on the report in order to ensure accurate understanding and documentation by American Drilling's field personnel;

(3) failure to document, or failure to document with requisite detail, job site occurrences or events necessary to support a claim for extra compensation;

(4) failure to document all necessary job site occurrences or events on the Daily Caisson Summary such that a later compilation of various field documents was deemed necessary; and

(5) failure to construct such Daily Caisson Summary in such a manner that it would bear a one-to-one relationship to the final claims documents;

b. The instructions given by defendant American Drilling's job site engineering personnel or the methodology for the completion of the form of the Daily Caisson Summary was inadequate for such job site personnel, in all cases, to accurately complete such documentation in the field;

c. Defendants failed to provide on-site assistance in, or on-site supervision of, the completion of the Daily Caisson Summary and other source documentation;

d. Defendants failed to timely review the Daily Caisson Summary and other source documents sent to them by American Drilling and thus failed to correct any documentation ambiguities, insufficiencies or discrepancies which could have been discovered and corrected upon prompt and reasonable inspection and inquiry;

e. Defendants failed to discover documentation ambiguities, insufficiencies or discrepancies which may have existed in or among the various job site or source documents;

f. Defendants failed to document the claims clearly and cogently such that they could be understood;

g. Defendants failed to document the claims in a manner which would avoid the appearance that the data was manipulated and therefore not credible;

h. Defendants failed to provide a detailed explanation in the claims documents as to why the hours in the Daily Caisson Summary deviated from the hours reflected in the claims documents;

i. Defendants attempted to condense the claims data and oversimplify the record keeping in such a manner as to cause the claims to be vague, unspecific and ambiguous;

j. Defendants received the completed Daily Caisson Summaries for perusal, study and posting by defendants' engineers to the various subcontract and non-subcontract claimable work categories, but defendants' engineers unilaterally altered, amended, changed or misallocated hours documented in such Daily Caisson Summaries when preparing claims on American Drilling's behalf so as to cause unexplained and insupportable discrepancies and inconsistencies between the Daily Caisson Summaries and the claims for additional compensation prepared by defendants, so as to render the claims incorrect and unreliable and subject [sic] plaintiff to charges of misconduct by Zurn Industries, Inc. Such discrepancies and inconsistencies were manifested in a variety of ways including, but not limited to the following:

(1) The Daily Caisson Summary would reflect no hours worked on a particular caisson on a particular day, but the claims documents prepared by defendants would reflect various hours worked on the caisson for that day;

(2) The Daily Caisson Summary would reflect various hours worked on a particular caisson on a particular day, but the claims documents prepared by defendants would reflect no hours worked on that caisson on that day;

(3) Hours would be allocated as "contract" items in the Daily Caisson Summary but allocated as "delays" in the claims documents prepared by defendants, and vice-versa;

(4) Hours would be allocated in a particular category of work type in the Daily Caisson Summary but allocated to an entirely different category of work type in the claims documents prepared by defendants; and

(5) Specific amounts of hours shown in the Daily Caisson Summary would differ from the specific amounts of hours shown in the claims documents as prepared by defendants;

k. Defendants' professional engineers were either unable or unwilling to reconcile and resolve the discrepancies and inconsistencies described herein above.

13. That had defendants properly fulfilled their duty to exercise such reasonable degree of care, skill and ability as is ordinarily exercised under the same or similar conditions and under like circumstances by engineers generally in practicing their profession, American Drilling would have received an additional $3,769,782.00 as stated in American Drilling's claim for additional compensation prepared by defendants, which sum American Drilling was actually entitled to as additional compensation and was due and owing to American Drilling by Zurn Industries, Inc.

14. That as a direct and proximate result of the negligence and carelessness of defendants, plaintiff has been injured and damaged in the amount of $3,769,782.00.

Missouri law generally holds that a professional owes to his or her client a duty of care commensurate with the degree of care, skill and proficiency commonly exercised by ordinarily skillful, careful and prudent professionals. When the degree of care provided does not meet this standard, a cause of action for damages may be stated. Steel v. Woods, 327 S.W.2d 187 (Mo.1959); Siteman v. Woodward-Clyde & Associates, Inc., 503 S.W.2d 141 (Mo.App.1973); Roehl v. Ralph, 84 S.W.2d 405 (Mo.App.1935). In response to these claims and allegations, however, Mathews has asserted the defense of witness immunity.

Missouri has recognized witness immunity. The immunity is one that is generally related to defamation actions against adverse witnesses. Hager v. Major, 353 Mo. 1166, 186 S.W.2d 564 (1945); Laun v. Union Electric, 350 Mo. 572, 166 S.W.2d 1065 (1943); Jones v. Brownlee, 161 Mo. 258, 61 S.W. 795 (1901); Hyde v. McCabe, 100 Mo. 412, 13 S.W. 875 (1890). Thus, we must determine whether this immunity should be extended to bar malpractice claims against professionals hired to perform litigation support services.

II.

A.

An examination...