Schumann v. Missouri Highway and Transp. Com'n, s. WD

• Citation: 912 S.W.2d 548
• Decision Date: 17 October 1995
• Docket Number: Nos. WD,s. WD
• Parties: Peter H. and Carolyn SCHUMANN, Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent. State of Missouri, through Attorney General, Jeremiah W. ("Jay") Nixon, Intervenor. 49581, WD 49590.
• Court: Court of Appeal of Missouri (US)

Page 548

912 S.W.2d 548

Peter H. and Carolyn SCHUMANN, Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Respondent State of Missouri, through Attorney General, Jeremiah W ("Jay") Nixon, Intervenor.

Nos. WD 49581, WD 49590.

Missouri Court of Appeals,

Western District.

Oct. 17, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 5, 1995.

Application to Transfer Denied

Jan. 23, 1996.

Roger G. Brown, Renee T. Duffield, Roger G. Brown & Associates, Jefferson City, for appellant.

Zachary T. Cartwright, Jefferson City, for respondent.

Jeremiah W. (Jay) Nixon, Attorney General, Karen King Mitchell, Georgianne L. Huckfeldt, Assistant Attorneys General, Jefferson City, for Intervenor.

Before ULRICH, P.J., and LOWENSTEIN and ELLIS, JJ.

ELLIS, Judge.

Peter H. Schumann and the Missouri State Highway and Transportation Commission ("Commission") appeal from a judgment of the Randolph County Circuit Court. Schumann filed the action seeking damages for personal injuries he sustained in a vehicular accident, allegedly due to the Commission's design, construction and maintenance of a dangerous and defective condition. The case was tried to a jury which returned a verdict in favor of Schumann and against the Commission, with total damages assessed at $191,000, and allocating fault 70% to the Commission and 30% to Schumann. The trial court entered judgment in favor of Schumann for $133,700 (70% of $191,000), but subsequently amended the judgment to the sum of $100,000 to reflect the statutory cap on damages against governmental administrative agencies pursuant to § 537.610. ¹

On June 6, 1990, at approximately 9:50 a.m., Schumann was driving his 1971 Massey Ferguson 410 self-propelled combine in the southbound lane of U.S. Highway 63, a two-lane undivided highway constructed and maintained by the Commission. Schumann had recently sold the combine and was delivering it from his farm in the Moberly area to the new owner in Jefferson City. As Schumann attempted to pull the combine over to the shoulder to allow backed-up traffic to pass him, he experienced a slow sinking feeling in the shoulder of the highway. Schumann lost control of the combine as it pivoted to the right and headed down a steep embankment, picking up speed as it went down the hill. ² He was flung about the inside of the cab until he was eventually thrown through the cab window and landed at the bottom of the ravine. As a result of the accident, he suffered a broken left forearm, a broken rib, a bruised kidney, and some scratches and bruises.

On June 24, 1991, Schumann filed a petition for personal injuries against the Commission, alleging that the Commission had designed, constructed, and maintained that portion of the shoulder of Highway 63 in a dangerous and defective condition and that the Commission had failed to guard against, adequately warn, or remedy the dangerous condition. ³ On July 3, 1991, the Commission answered, asserting several affirmative defenses, including the $100,000 liability cap pursuant to § 537.610. In response, on January 19, 1994, Schumann filed an amended petition which added Counts II and III. Count II asked the trial court for a judgment declaring § 537.610 unconstitutional. Count III asked for prejudgment interest pursuant to § 408.040. The Commission filed answers to Count I and III on January 28, 1994, and on Count II on March 1, 1994.

The case was tried to a Randolph County jury in February, 1994. ⁴ The jury assessed damages in the amount of $191,000, finding the Commission to be 70% at fault and Schumann to be 30% at fault. The court then entered judgment for $133,700 (70% of $191,000) in favor Schumann.

On March 10, 1994, the Commission filed a motion for judgment notwithstanding the verdict and an alternative motion for new trial. On March 29, 1994, Schumann filed a motion for judgment as a matter of law as to counts II and III. On June 7, 1994, the trial court entered an order and judgment denying both parties' motions. The trial court then amended the judgment to the sum of $100,000 to reflect the statutory cap on damages and assessed costs against the Commission. Both parties appealed and the Attorney General intervened on behalf of the State of Missouri.

SCHUMANN'S APPEAL

Schumann raises two points on appeal. In his first point, he contends the trial court erred in denying his motion for judgment as a matter of law based on his claim that the $100,000 cap imposed by § 537.610 is unconstitutional because it violates his rights under Mo. Const. art. I, §§ 2, 10 and 14. Specifically, he asserts the $100,000 cap is unconstitutional because it denies him his rights to " 'pursuit of happiness and the enjoyment of the gains of [his] own industry', due process, and access to the courts of justice for 'certain remedies afforded to every injured person.' " ⁵

Because Schumann challenges the validity of a statute of this state, we must first determine whether the issue is within the exclusive jurisdiction of the Supreme Court. Mo. Const. art. V, § 3. Schumann, in his Jurisdictional Statement, asserts the Supreme Court has exclusive jurisdiction over this point. However, we are not bound by a party's statement that jurisdiction lies with the Supreme Court or with this court. State v. Ellis, 853 S.W.2d 440, 446 (Mo.App.1993).

Article V, § 3 of the Missouri Constitution declares that the Supreme Court has "exclusive appellate jurisdiction in all cases involving the validity ... of a statute ... of this state...." However, the mere assertion that a statute is unconstitutional does not deprive the court of appeals of jurisdiction. The constitutional issue must be real and substantial; not merely colorable. State v. Ellis, 853 S.W.2d at 446; State v. Prowell, 834 S.W.2d 852, 854 (Mo.App.1992); State v. Charity, 637 S.W.2d 319, 321 (Mo.App.1982). In this case, we find Schumann's constitutional issue to have been implicitly, if not expressly, decided by our Supreme Court, and therefore to be merely a colorable assertion of a constitutional impediment.

Both parties and the Attorney General cite Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876 (Mo. banc 1993), in which the Missouri Supreme Court recently addressed the constitutionality of § 537.610. In Richardson, the Court held the statute did not violate equal protection rights, due process rights, or the right to trial by jury. Id. Schumann, however, relies on Judge Holstein's concurring opinion in that case ⁶ and asks this court to declare that § 537.610 deprives him of his "natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of [his] own industry " in violation of Mo. Const. art. I, § 2. We are, of course, constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court. Godfrey v. Union Elec. Co., 874 S.W.2d 504, 505 (Mo.App.1994); Mo. Const. art. V, § 2 (1945). In Richardson, the Court held that § 537.610 was constitutional. In doing so, as noted in Judge Holstein's concurring opinion, the majority implicitly found the statute did not touch a fundamental right. Thus, the decision in Richardson is dispositive of Schumann's purported constitutional claim. Schumann's first point is denied.

In his second point, Schumann contends the trial court erred in denying, due to the $100,000 limit imposed by § 537.610, prejudgment interest allowable under § 408.040.2. He asserts that the cap imposed by § 537.610 does not abrogate his right to prejudgment interest because § 408.040.2 was enacted after § 537.610 and contained no provision that § 408.040.2 should be limited by any statutory cap on damages.

Section 408.040.2 states:

In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest, at [9% ], shall be calculated from a date sixty days after the demand or offer was made, or from the date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier.

Schumann argues that because § 408.040.2 broadly refers to "tort actions," presumably including tort actions pursuant to the waiver of sovereign immunity contained in § 537.600.1(2), and does not specifically preclude prejudgment interest from being assessed against the state, the legislature must have intended to allow prejudgment interest without regard to the limit of § 537.610. See Citizens Elec. Corp. v. Director of Rev., 766 S.W.2d 450, 452 (Mo. banc 1989) (Stating that when the legislature enacts a statute, it is presumed to have acted with knowledge of existing law).

Section 537.610.2 states:

The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650 shall not exceed ... one hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287, RSMo.

Even if we presume the legislature enacted § 408.040.2 with the knowledge of the waiver of sovereign immunity contained in § 537.600 and the limit imposed by § 537.610, it does not follow that the legislature intended prejudgment interest to be allowed above the $100,000 limit. At most, it indicates that prejudgment interest is allowable in any tort suit, including one against the state under § 537.600. The limit imposed by § 537.610 is on the liability of the state. To allow Schumann to recover interest on top of the $100,000 judgment would cause the liability of the state in this case to exceed the $100,000 limit. Therefore, under the circumstances of this case, we conclude that Schumann was not entitled to pre-judgment interest....