State ex rel. Nixon v. Dally, SC 88829.

• Decision Date: 01 April 2008
• Docket Number: No. SC 88829.,SC 88829.
• Citation: 248 S.W.3d 615
• Parties: STATE ex rel. Kendra NIXON and Brian Nixon, Relators, v. The Honorable David C. DALLY, Respondent.
• Court: Missouri Supreme Court

248 S.W.3d 615

STATE ex rel. Kendra NIXON and Brian Nixon, Relators, v. The Honorable David C. DALLY, Respondent.

No. SC 88829.

Supreme Court of Missouri, En Banc.

April 1, 2008.

Glenn R. Gulick, Jr., Joplin, for relators.

Kevin M. Fitzgerald, Monte P. Clithero, Springfield, Karl W. Blanchard, Jr., Joplin, for respondent.

MICHAEL A. WOLFF, Judge.

Issue

Does Rule 52.05(a) permit the joinder, in a single case, of claims against two drivers whose cars struck the plaintiff Kendra Nixon's car in separate accidents?

The dispositive question is whether these two claims were a "series" of occurrences, with a common question of fact or law, to come within the terms of Rule 52.05(a).¹ There is a common question of fact in these claims: what caused plaintiff Nixon's injuries, that is, which of Nixon's injuries are the result of the first collision and which of her injuries resulted from the second collision?

Factual and Procedural History

Plaintiff Kendra Nixon's car was struck in the rear by defendant Shannon Hayes' car in February 2005. Ten months later, in December 2005, Nixon and her husband Brian Nixon, were rear-ended by Defendant William Gardner. Both accidents took place in Jasper County.

Following the February accident, Nixon sought treatment in a local emergency room for injuries to her lower back and neck. Nixon received chiropractic treatment for several months following the accident and then began seeing an osteopathic physician. On her physician's recommendation, Nixon began physical therapy in November 2005 and discontinued treatment about a month later, just before the second collision. Nixon's physical therapy discharge report states that at the time of discharge, which was prior to the second collision, she had ongoing neck and back pain.

Following the December rear-end collision, Nixon sought treatment from Dr. Melvin Karges, a specialist in physical medicine rehabilitation. In his deposition, Karges testified that ". . . in general symptoms, it appears that the first wreck certainly was [sic] primary trigger of the neck and shoulder symptoms. The second accident, undoubtedly, aggravated that, but appears to have actually created more of the lumbar and right lower extremity symptoms."

Nixon filed suit in February 2007 in Jasper County, the county where both accidents took place. Both Hayes and Gardner were named as defendants, pursuant to Rule 52.05(a)'s permissive joinder provision. Nixon's petition requests joint and several judgment against Hayes and Gardner. Defendant Hayes filed a motion to sever plaintiff's claims against the two defendants, arguing that the two collisions and Nixon's resulting injuries were separate and distinct and did not arise from the same transaction or occurrence, within the meaning of the rule. The respondent judge sustained defendant's motion to sever. A motion to reconsider was filed and overruled.

Contending that Rule 52.05(a) permits joinder of separate defendants in successive tortious incidents, the Nixons, as relators, sought a writ of prohibition in the court of appeals, which denied the writ. This Court issued its preliminary writ of prohibition which is now made absolute.

Analysis

Rule 52.05(a) permits permissive joinder of defendants in separate cases "aris[ing] out of the same transaction, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action." (emphasis added). Respondent trial judge contends that this Court in State ex rel. Jinkerson v. Koehr decided the "very issue" of whether two separate car accidents involving two separate defendants qualify as the "same transaction, occurrences or series of transactions." 826 S.W.2d 346 (Mo. banc 1992). The issue presented in Jinkerson, however, was the effect that permissive joinder had on venue where the accidents occurred in different counties. Id. at 347. The holding does not control the propriety of permissive joinder in separate accident cases.

The facts of Jinkerson are very similar to those in the case at hand. The Jinkerson plaintiff was involved in two car accidents, several months apart, with two separate defendants. The first accident was in St. Louis City, and the second accident was in St. Louis County. Plaintiff filed suit in St. Louis City, joining both defendants under Rule 52.05(a). "The issue before [the Court was] whether the Circuit Court of the City of St. Louis ha[d] venue over the cause of action" against the second defendant, Jinkerson, whose accident occurred in St. Louis County. Id. The venue statutes in place at the time of Jinkerson allowed suits to be brought either in any county in which a defendant resided or "where the cause of action accrued regardless of the residence of the parties." Section 508.010(2), (6), RSMo 1986.

Jinkerson held that "[t]he Circuit Court of the City of St. Louis does not have venue over the first accident involving Jinkerson under [section] 508.010(2) because neither Jinkerson nor Kroeger resided in the City of St. Louis. Similarly, venue cannot be established pursuant to [section] 508.010(6) because the first accident occurred in St. Louis County, not in the City of St. Louis." 826 S.W.2d at 347. This holding had the incidental effect of barring the permissive joinder of the defendants, but only insofar as it pertained to venue. Had the accidents taken place in the same county, the Jinkerson holding would not have affected the validity of the permissive joinder. It is important to note that venue is not at issue in the present case. The two accidents took place in the same county in which the suit was brought. This Court also does not address the issue of whether venue in the Jinkerson situation would be correct under the 2005 amended venue statute that specifies that venue is proper in the county where the "first injury" occurred.²

This Court views the two discrete accidents involved in Nixon's claim as a "series of occurrences" as described in Rule 52.05(a). The common meaning of series is a "group of . . . events . . . succeeding in order and having a like relationship to each other," which can include events that are in "temporal succession."³ The definition of "series" does not require that the events be related to a common cause. Rule 52.05(a) requires that the series of occurrences be related by a common question of law or fact, a requirement that is readily apparent here because of the common factual question as to the origin of Nixon's injuries.

This view is consistent with federal courts' interpretation of the same permissive joinder language in Rule 20 of the Federal Rules of Civil Procedure. Rule 52.05(a) is derived from the federal rule, and this Court has held that the interpretation of a Missouri rule generally should be "in accord with the interpretation of the federal rule from which it came." State ex rel. Farmers Ins. Co. v. Murphy, 518 S.W.2d 655, 662 (Mo.1975).

Two or more discrete accidents involving unrelated defendants do constitute a "series" of transactions under the federal permissive joinder rule. In Diehl v. H.J. Heinz Co., 901 F.2d 73, 73-74 (7th Cir. 1990), the plaintiff was first injured when she was struck by a forklift at a warehouse owned by one defendant, Metromail, and again approximately four months later, when she tripped over debris in a warehouse owned by Heinz, a separate defendant. There was no relationship between the two defendants or the circumstances of the accidents. "It may seem odd that a single complaint should encompass injuries inflicted four and a half months apart by different firms not acting in concert, but [the plaintiff's] claim is that the accident at the Heinz warehouse aggravated the back injury she had sustained in the accident at the Metromail warehouse," the court observed. "If true, and if both defendants were negligent or otherwise culpable, this would make them successive joint tortfeasors despite the lack of concert between them. . . ."⁴ Diehl v. H.J. Heinz Co., 901 F.2d 73, 73-74 (7th Cir.1990) (citing 7 Wright, Miller & Kane, Federal Practice and Procedure Section 1653, at p. 385 (2d ed.1986)). See also Poster v. Central Gulf S.S. Corp., 25 F.R.D. 18, 20 (E.D.Pa.1960); Lucas v. City of Juneau, 127 F.Supp. 730, 732 (D.Alaska 1955). As in Diehl, the injuries Nixon incurred in the first accident were aggravated by the second accident.

Missouri precedents also support permissive joinder in this case. Hager v. McGlynn addressed "the question of permissive joinder by the plaintiff of two defendants who collided with the plaintiff at different times and places." 518 S.W.2d 173, 174 (Mo.App.1974). The court concluded that "[s]eparate trials in this case would result in the situation in which two juries sitting separately would each be faced with the argument that the greater portion of the injury was caused by the absent defendant. . . . [W]hen the injuries are alleged to be indivisible, or to have been aggravated in another accident, then joinder is permissible." Hager v. McGlynn, 518 S.W.2d at 177-78.

Hager's point is well-taken. Were permissive joinder to be prohibited in cases of aggravated, successive injuries, separate trials would afford each defendant the opportunity to impute the bulk of liability to the other tortfeasor(s). Joining the defendants both saves judicial resources by preventing multiple, duplicative trials and increases the ability of the jury accurately to apportion damages and liability. That said, it should be noted that the permissive joinder rule, Rule 52.05(a), is a rule that only pertains to which parties can be joined in a single petition; it does not dictate that the claims against the two defendants always must be tried together. Rule 55.02(b) and Rule 66.02 give the trial court discretion to order separate trials on separate claims or to enter protective orders to avoid delay or prejudice in having claims joined together.⁵

The court of appeals, however, has...