Speck v. Union Elec. Co., 68781

• Decision Date: 19 May 1987
• Docket Number: No. 68781,68781
• Citation: 731 S.W.2d 16
• Parties: Thomas SPECK and Linda Walters, Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 16

731 S.W.2d 16

Thomas SPECK and Linda Walters, Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent.

No. 68781.

Supreme Court of Missouri En Banc.

May 19, 1987.

James E. Hullverson, St. Louis, for plaintiffs-appellants.

James J. Virtel, Ann E. Buckley, St. Louis, for defendant-respondent.

RENDLEN, Judge.

The issue is: "What effect shall be given a trial court's designation of an order as a final judgment for purposes of appeal under Rule 81.06?"

I.

This is an appeal from the trial court's order dismissing Count III of appellants' amended petition without prejudice, which the court designated to be "a final order and judgment for purposes of appeal."

Appellants' suit for damages arose from injuries to and subsequent death of their father, Stephen Speck, allegedly resulting from his exposure to asbestos while employed by respondent Union Electric Company. Evidently an original petition was filed by Stephen Speck against various companies that supplied respondent with asbestos-related insulation products and upon his death appellants filed their amended three-count petition.

Count I, grounded on several products liability theories, apparently reiterates claims raised by Stephen Speck against the asbestos suppliers in his original petition. It is averred that those defendants "supplied, sold, and furnished" defective and unreasonably dangerous asbestos-related insulation products to respondent and that, as a result of Stephen Speck's exposure to the asbestos during his employment with respondent, he developed mesothelioma and "other related asbestos diseases." Appellants in their brief submit that "[i]nsofar as Count I alleges that it is a cause of action for Stephen Speck, it is a moot cause of action." Nevertheless such averments remain relevant because they are incorporated by reference in Counts II and III.

Count II is appellants' wrongful death claim against the suppliers. There appellants incorporate by reference Count I and further allege that their father, Stephen Speck, died on December 25, 1984, as a direct result of the mesothelioma caused by the suppliers' tortious conduct.

Count III is appellants' claim against respondent incorporating by reference Counts I and II and they further allege:

Throughout the time of Stephen Speck's employment with Union [Electric] Company during which he was exposed to asbestos-containing products and materials, and was required by Union Electric Company to work with such products and materials, the Union Electric Company did deliberately and intentionally fail to warn Stephen Speck about the dangers associated with asbestos, did deliberately and intentionally withhold information regarding the health of Stephen Speck, and did deliberately and intentionally order Stephen Speck to work with deleterious materials, to wit asbestos insulation, and thereby committed an assault and battery upon Stephen Speck.

It is also alleged that respondent's "deliberate and intentional wrongdoing" was not an ordinary incident of Stephen Speck's work and therefore the Workers' Compensation Law does not provide the exclusive remedy for their claim against respondent.

Respondent moved to dismiss Count III, asserting the claim was barred by the exclusive-remedy provision of the Workers' Compensation Law, see § 287.120, RSMo 1986, and as noted above, the trial court sustained the motion, dismissed Count III without prejudice and designated its order "a final order and judgment for purposes of appeal."

Appellants appealed the dismissal order, asserting that its claim against respondent was not barred by the Workers' Compensation Law. The Court of Appeals, Eastern District, without reaching the merits of that issue, opined that under the "judicial unit" test expressed in Erslon v. Cusumano, 691 S.W.2d 310 (Mo.App.1985), the dismissal order was not a final appealable order and that the appeal should be dismissed. However, the court transferred the cause that we might consider the effect to be given a trial court's designation of an order as final under Rule 81.06 and to examine the conflict between Spires v. Edgar, 513 S.W.2d 372 (Mo. banc 1974), and subsequent court of appeals opinions on this issue. We now determine the cause as on original appeal. Mo. Const. art. V, § 10.

II.

Rule 81.06 provides:

When a separate trial of any claim, counterclaim or third-party claim is ordered in any case and a jury trial thereof is had, the separate judgment entered upon the verdict therein shall be deemed a final judgment for the purposes of appeal within the meaning of Section 512.020, RSMo. When a separate trial is had before the court without a jury of claims arising out of the same transactions occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, RSMo, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, RSMo, unless the court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims, or third-party claims are determined. In any case (jury or nonjury) when a separate final judgment is entered the court may stay its enforcement until other or all final judgments in the cause are entered and may prescribe such conditions as are necessary to secure and protect the relative rights of all parties; provided, however, any such stay shall not affect the right of appeal.

(Emphasis added.) Because the dismissal of a petition or a count in a petition upon the hearing of a motion to dismiss for failure to state a claim is considered a separate trial before the court without a jury within the meaning of Rule 81.06, see State ex rel. Ashcroft v. Gibbar, 575 S.W.2d 924, 927 (Mo.App.1978), and because Count III of appellants' amended petition is a claim "arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case," it is the second sentence of Rule 81.06, italicized above, which is relevant to this appeal.

Under the plain language of Rule 81.06, whether dismissal of Count III was to be "a final judgment for purposes of appeal" was a matter for the trial court to determine in its discretion for it is the trial court that the rule allows to specifically so designate. In Spires v. Edgar, 513 S.W.2d 372, this Court discussed the history of Rule 81.06 and its predecessor at length and, relying heavily upon Dotson v. E.W. Bacharach, Inc., 325 S.W.2d 737 (Mo.1959), adopted a quite literal application of Rule 81.06, holding that "[t]he trial court's order dismissing plaintiffs-appellants Spires' claim against respondent Edgar, having been designated as final for the purpose of appeal pursuant to rule 81.06, is an appealable order." Spires, 513 S.W.2d at 377. Nevertheless, subsequent to Spires, while several court of appeals decisions have followed a Spires approach in applying Rule 81.06, ¹ a host of court of appeals decisions, see, for example, cases cited infra note 2, either have ignored, overlooked or otherwise construed Spires and some have adopted a "judicial unit" test in applying that portion of Rule 81.06 relevant here.

In Dotson, 325 S.W.2d at 738, the trial court dismissed a third-party defendant's counterclaim against plaintiff, and the third-party defendant appealed from the dismissal order. This Court considered whether the appeal was premature under then-effective Rule 3.29 (as amended effective May 15, 1957), which, like its successor Rule 81.06, provided that:

When a separate trial is had before the Court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, RSMo., unless specifically so designated by the Court in the judgment entered.

See Dotson, 325 S.W.2d at 739. On the authority of Rule 3.29 as amended, we dismissed the appeal as premature, holding:

If the trial court intended the order of dismissal to be a final judgment for the purposes of appeal it should have "specifically so designated" it. This discretion rests in the trial court, not in this court. Pizzo v. Pizzo, Banc, 365 Mo. 1224, 295 S.W.2d 377, 380 [1956]. Not having done so, this appeal is premature.

Dotson, 325 S.W.2d at 739 (emphasis added). Additionally, as we observed in Spires, 513 S.W.2d at 374:

[T]he court in Dotson believed so strongly in its interpretation of rule 3.29 as amended (now rule 81.06) that it invited the trial court to amend its prior order of dismissal so as to designate it to be final for purposes of appeal under amended rule 3.29 in order that an appeal could thereafter be taken.

See Dotson, 325 S.W.2d at 739.

In Spires, 513 S.W.2d at 372, respondent was one of three defendants in appellants' suit for wrongful foreclosure of a deed of trust. The trial court dismissed appellants' claim against respondent and designated its order final for purposes of appeal. Id. In considering whether the order appealed from was an appealable judgment, this Court reviewed Dotson and subsequent cases, concluding that "the interpretation placed upon amended Rule 3.29 (now 81.06) by Dotson, with reference to the trial court's authority to designate a dismissal order which order does not dispose of all parties and issues as final for the purposes of appeal, has been followed by the Missouri courts." Spires, 513 S.W.2d at 377. Therefore, because the trial court had designated its dismissal order as final for the purpose of appeal, w...