Oldaker v. Peters

Decision Date16 October 1991
Docket NumberNo. 73255,73255
Citation817 S.W.2d 245
PartiesFelicitas OLDAKER, et al., Appellants, v. Harold C. PETERS, et al., Respondents.
CourtMissouri Supreme Court

William H. Pickett, David T. Greis, Steve A. Matalone II, Kansas City, for appellants.

Judy L. Curran, Dist. Counsel, Kansas City, Rich Tiemeyer, Jefferson City, Theodore J. Furry, Kansas City, for respondents.

RENDLEN, Judge.

This is an action for wrongful death. The survivors of decedent Larry Oldaker appeal from the summary judgment entered for defendant Missouri Highway and Transportation Commission (Highway Commission) and the judgment following a verdict in favor of defendant Julia Reidlinger. The seminal issue is whether Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27 (Mo. banc December 13, 1988, reh'g denied January 17, 1989), which applied the provisions for waiver of sovereign immunity contained in § 537.600, RSMo 1986, retrospectively to plaintiff there, is retroactive as to other cases in which the point has been preserved. Stated otherwise, should the holding of Wilkes control this case in which summary judgment was entered before Wilkes was decided, and will plaintiffs be allowed the benefit of that ruling liberalizing the waiver provisions for claims against the Highway Commission. Transfer was granted from the Missouri Court of Appeals, Western District, which, affirming the trial court, held that Wilkes should not apply in the case at bar. We affirm in part, and reverse in part and remand.

The accident occurred December 15, 1984, at approximately 8:15 p.m. as Julia Reidlinger drove north on Highway 71. She lost control of her car, hit the median, and blocked the passing lane adjacent to the median where her car was struck by another vehicle. Witnessing these events, Noble Lauderdale pulled his van to the side of the road and went to render assistance. Decedent Larry Oldaker, a staff sergeant in the United States Air Force, was also at the scene and he walked from the opposite side of the median to examine the wrecked vehicles. Lauderdale testified that he and Oldaker were standing in the safety area by the median, but other testimony placed Oldaker in the traffic lane. As Oldaker and Lauderdale were talking, another vehicle, driven by Harold Peters, struck Reidlinger's auto, which in turn threw Oldaker into the traffic and killed him.

Plaintiffs filed suit against Peters on June 3, 1985, and later added Reidlinger, State Farm Mutual Automobile Insurance Company and the Highway Commission as defendants. The claim against Peters was subsequently settled, and on July 15, 1987, the Highway Commission moved for summary judgment raising as a bar its claim of sovereign immunity. Citing State ex rel. Missouri Highway and Transportation Commission v. Appelquist, 698 S.W.2d 883 (Mo.App.1985), the trial court on June 23, 1988, sustained the motion and entered summary judgment for the Highway Commission. In December 1988, this Court rendered its decision in Wilkes, 762 S.W.2d 27, holding that the 1985 amendments to § 537.600 were to be given retrospective effect. After trial of the claim as to the remaining party during the week of August 15, 1989, the jury assessed zero percent fault to defendant Reidlinger and one hundred percent fault to decedent Oldaker.

I. The Case Against the Highway Commission

Plaintiffs first contend the trial court erred in granting the Highway Commission summary judgment on the basis of the state's sovereign immunity because § 537.600, RSMo, waives sovereign immunity in this instance. As a preliminary procedural point, respondent Highway Commission argues that plaintiffs are barred from raising this issue because they failed to renew their objection to the summary judgment and once again seek to join the Highway Commission as defendant after Wilkes was finally decided January 17, 1989, and before trial began against the remaining defendant on August 15 of that year. In effect the Commission would have plaintiffs collaterally estopped from raising the issue. Plaintiffs counter by noting the trial court's order of summary judgment in favor of the Commission did not contain the precise language required to make the order appealable under Rule 74.01(b). Plaintiffs' contention is well taken and as they appeal from both the summary judgment in favor of the Commission and the jury verdict in favor of the remaining defendant after resolution of all issues in the case by the trial court, the matters are properly presented on appeal and we address the issues raised. 1

It will be recalled by way of background that this Court abrogated the common law doctrine of sovereign immunity in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), but the legislature responded with the enactment of § 537.600, RSMo 1978, reinstating the doctrine, with exceptions however, as to (a) torts arising from governmental operation of motor vehicles and (b) dangerous conditions on government property. Thereafter this Court in a 4 to 3 decision interpreted quite restrictively the statutorily prescribed waiver of sovereign immunity, holding it permitted suits against the public entity only in the circumstances (a) and (b) enumerated in the statute and only to the extent the governmental entity was covered by liability insurance. Bartley v. Special School District of St. Louis County, 649 S.W.2d 864, 870 (Mo. banc 1983).

As noted above, the accident occurred December 15, 1984, and at that moment the cause of action arose. The following year, the legislature, concerned by the narrow holding in Bartley, amended § 537.600, effective September 28, 1985, with the addition of subsection 2, which broadened the waiver of sovereign immunity provisions and allowed such waiver whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity was covered by liability insurance. However, a tail was added to subsection 1 providing that in actions founded upon negligent, defective or dangerous design of a highway or road designed or constructed prior to September 12, 1977, the public entity would be entitled to a complete defense if it demonstrated the alleged negligent, defective or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.

The trial court granted the Highway Commission's motion for summary judgment June 23, 1988, citing State ex rel. Missouri Highway and Transportation Commission v. Appelquist, 698 S.W.2d 883, 897-98 (Mo.App.1985), which held the 1985 amendments were to be applied only prospectively and not given retroactive effect. Subsequent decisions in the courts of appeal also recognized that causes of action based on incidents occurring after the enactment of § 537.600, RSMo 1978, but prior to the effective date of the 1985 amendments were barred by sovereign immunity when the defendant had no liability insurance. E.g., Missouri Highway and Transportation Commission v. Ryan, 741 S.W.2d 828, 829-30 (Mo.App.1987); Aylward v. Baer, 745 S.W.2d 692, 695 (Mo.App.1987); Asher v. Department of Correction and Human Resources, 727 S.W.2d 155, 156-57 (Mo.App.1987). In December 1988, approximately six months after the trial court's grant of summary judgment in favor of the Highway Commission in the case sub judice, this Court decided Wilkes, 762 S.W.2d at 28-29, holding that the 1985 amendments were to be applied retroactively and that all decisions to the contrary, including Appelquist, 698 S.W.2d 883, "should not be followed."

The issue then is whether the statutory amendments are to be given retroactive effect as announced in Wilkes and should be applied to the case at bar. The trial court determined the case on the basis of what it deemed the applicable law in vogue the date the cause of action accrued. See Ryan, 741 S.W.2d at 829-30; Aylward, 745 S.W.2d at 695. Compare Hudson v. Carr, 668 S.W.2d 68, 69 (Mo. banc 1984). However, in Wilkes this Court construed § 537.600, RSMo 1986, stating that the statute provided a remedy for a cause of action whose remedy was previously barred: "An act abrogating sovereign immunity does not create a new cause of action but provides a remedy for a cause of action already existing for which redress could not be had because of the immunity." 762 S.W.2d at 28. The Court further stated:

Procedural law prescribes a method of enforcing rights or obtaining redress for their invasion; substantive law creates, defines and regulates rights; the distinction between substantive law and procedural law is that substantive law relates to the rights and duties giving rise to the cause of action, while procedural law is the machinery used for carrying on the suit.

Id. In addition, the Court, describing the applicable canon for construing statutory provisions, noted, "[a] statutory provision that is remedial or procedural operates retrospectively unless the legislature expressly states otherwise." Id. In sum the Court held that "Section 537.600, RSMo 1986, is retroactive and applies to plaintiffs' claim," because the statute is remedial and contains neither express nor implied provisions manifesting a legislative intent that it apply only prospectively. Id. The Court concluded that State ex rel. Missouri Highway and Transportation Commission v. Appelquist, 698 S.W.2d 883 (Mo.App.1985), and similar cases "should not be followed." Wilkes, 762 S.W.2d at 29.

The Highway Commission argues these final words of the opinion, "should not be followed," indicate the Court intended the statute should reach back only to the plaintiff Clarence Wilkes. Such was not intended and is contrary to the express language of the case. The statute was found and declared to be "retroactive" in its effect and that the legislature so intended. See also Mispagel v. Missouri Highway and Transportation Commission, 785 S.W.2d 279 (Mo. banc 1990); ...

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