Norman v. Progressive Preferred Ins. Co., WD84634

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKAREN KING MITCHELL, PRESIDING JUDGE
PartiesSYLVIA NORMAN, Appellant, v. PROGRESSIVE PREFERRED INSURANCE COMPANY, Respondent.
Decision Date07 June 2022
Docket NumberWD84634

SYLVIA NORMAN, Appellant,
v.

PROGRESSIVE PREFERRED INSURANCE COMPANY, Respondent.

No. WD84634

Court of Appeals of Missouri, Western District, Second Division

June 7, 2022


Appeal from the Circuit Court of Cass County, Missouri The Honorable William B. Collins, Judge

Before: Karen King Mitchell, Presiding Judge, and Edward R. Ardini, Jr., and Thomas N. Chapman, Judges

KAREN KING MITCHELL, PRESIDING JUDGE

Sylvia Norman appeals from the trial court's judgment, entered following a remand from this court, in her equitable garnishment action against Progressive Preferred Insurance Company. The underlying judgment awarded Norman prejudgment interest on a wrongful death judgment she obtained against Progressive's insured, Amber Ralston, with the amount of prejudgment interest calculated based on the limit of liability identified in Progressive's policy ($100, 000.00). Because Norman believes the trial court misapplied this court's mandate in limiting the amount of prejudgment interest based on the policy's limit of liability, she brings this appeal. But because there is no final judgment, we lack appellate jurisdiction and dismiss.

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Background

This matter arose from a vehicle accident wherein Ralston caused the death of Norman's husband Robert. Norman v. Progressive Preferred Ins. Co., 619 S.W.3d 126, 128 (Mo. App. W.D. 2021). At the time, Ralston was insured by Progressive. Id. Norman obtained a wrongful death judgment against Ralston for approximately six million dollars in actual damages and one million dollars in aggravated circumstances damages. Id. The judgment also awarded prejudgment interest, post-judgment interest, and statutory court costs. Id. "Following the entry of judgment, Progressive tendered the bodily injury limits of liability of $100, 000.00 together with $3, 118.95 for statutory costs and $8, 600.00 for post-judgment interest." Id. Norman filed a partial satisfaction of judgment and an equitable garnishment action against Progressive, claiming it had not paid all interest and costs required under Ralston's policy. Id. In accordance with § 379.200, [1]the equitable garnishment action named both Ralston and Progressive as defendants.

Progressive sought summary judgment, and Ralston filed a cross-claim against Progressive, alleging bad faith. The trial court subsequently granted Progressive's motion to sever Ralston's bad faith claim from Norman's equitable garnishment claim "for purposes of discovery and trial." The trial court then granted summary judgment in favor of Progressive, certified the judgment as immediately appealable under Rule 74.01(b), [2] and Norman appealed. Id. at 130.

On appeal, Norman argued that Progressive was required to pay prejudgment interest, that it failed to pay all court costs, and that, as a result of the failure to pay prejudgment interest and all court costs, Progressive's liability for post-judgment interest continued to accrue. Id. at 130-31. We rejected Norman's claims regarding court costs and continuing post-judgment interest, but we agreed that Progressive owed prejudgment interest "on that part of the judgment that does not

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exceed" the relevant policy limits. Id. at 132-34, 136. We reversed the trial court's grant of summary judgment and remanded the case "for further proceedings consistent with th[e] opinion." Id. at 136.

On remand, Progressive filed a motion seeking entry of a judgment in accordance with our opinion. Specifically, Progressive stated, "Based on the analysis of the Court of Appeals, the obligation on Progressive that remains is to pay prejudgment interest on that portion of the judgment awarded against Ralston that does not exceed $100, 000.00." Norman filed a response arguing that Progressive was required to pay all prejudgment interest awarded in the underlying wrongful death suit, which amounted to $556, 470.72. The trial court entered a judgment, awarding prejudgment interest to Norman in the amount of $10, 151.84, which represented a 3.91% interest rate on $100, 000.00 for a total of 947 days.[3] Norman filed this appeal.

After receiving the record on appeal, this court sent a letter to both parties, seeking suggestions regarding our jurisdiction over the appeal. Specifically, we advised the parties as follows:

A review of the record on appeal in the above-referenced case indicates the judgment may not be final and appealable. It appears that all parties and claims to the action may not have been disposed. If so, there is not a final and appealable judgment pursuant to Rule 74.01(b). Zeller v Scafe, 455 S.W.3d 503 (Mo. App. 2015). Specifically, it appears that the claims involving Amber Ralston may remain pending before the circuit court. The November 18, 2019, Amended Judgment of the circuit court that was previously appealed had an express determination that there is "no just reason for delay" as required by Rule 74.01(b). The present judgment contains no such
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