Syn, Inc. v. Beebe

Decision Date27 June 2006
Docket NumberNo. WD 64553.,No. WD 64552.,WD 64552.,WD 64553.
PartiesSYN, INC., Appellant-Respondent, v. Elizabeth A. BEEBE, Respondent-Appellant.
CourtMissouri Court of Appeals

Thomas R. Larson, Leawood, KS, for appellant-respondent.

Jack T. Bangert, Kansas City, MO, for respondent-appellant.




This appeal arises from an action for contribution by Syn, Inc., formerly Synergy, Inc. ("Syn"), a propane gas supplier, and Elizabeth Beebe ("Beebe"), the owner and landlord of a mobile home that suffered a gas explosion. The heart of the issue on appeal is instructional error. The facts remain hotly contested. Both parties have appealed.

Beebe owned a trailer on a parcel of land in Warsaw, Missouri. The mobile home was connected to a propane gas tank and delivery system installed by Syn. The propane system had two regulators to reduce the pressure of gas coming out of the tank into the mobile home. The first regulator was installed on the tank, the second on the outside of the trailer home.

In September 1991, Beebe's tenants reported difficulty keeping the furnace pilot light lit and were concerned about the occasional smell of gas. To what degree Beebe was aware of the potential problem with the gas system is unclear from the record. Beebe engaged the services Eugene Greg Markle ("Markle"), an electrician and heating and cooling technician, who installed new furnaces. Markle replaced the thermocouple on the furnace.

When tenants reported that the pilot light would not stay lit in March 1992, Beebe again engaged Markle. Markle checked the internal gas fitting and appliances, cleaned the furnace with a shop vac, checked the pilot light and replaced the thermocouple. Markle also pressure checked the system and performed soap bubble tests on the fittings inside and below the trailer. Whether he did so at the request of Beebe or the tenant and whether this was the extent of his activities was at issue at trial.

Doug Sullentrop rented the trailer from Beebe beginning May 1992. On December 5, 1992, an explosion destroyed the mobile home. Sullentrop sustained injuries from which he died twenty-two days later. Sullentrop's family brought a wrongful death action against Syn. Beebe was not sued by the family nor joined in the action by Syn. Beebe brought suit against Syn for property damage related to the trailer in December 1997. Syn counterclaimed for indemnity in 1998. Syn and Beebe agreed that the counterclaim for indemnity was not ripe until a resolution of the wrongful death suit was reached. In August 1999, Syn settled the wrongful death claim for $900,000. Upon settlement, Sullentrop's family executed a release of claims against any and all parties. In June 2001, Syn amended its counterclaim to seek recovery from Beebe under two theories: (1) contribution based on the negligence of Markle, and (2) contractual indemnity.

Syn sought contribution from Beebe based on the landlord liability under an exception to the general rule that landowners are not liable for negligence of independent contractors. This exception applies only where the "harm results from the negligence of the contractor in failing to take precautions against the danger involved in the work itself, which the employer should contemplate at the time of his contract." Bowles v. Weld Tire Wheel, Inc., 41 S.W.3d 18, 24 (Mo.App.2001). Syn claimed that it was the negligent acts of Markle, an independent contractor hired by Beebe to engage in an inherently dangerous activity, that either led to or contributed to the damages suffered by Sullentrop. Under this theory, Syn claimed Beebe should be responsible to Syn for all or part of the settlement it made with the Sullentrop family.


This appeal arises from the June 2002 suit for contribution.1 Investigators had concluded that the cause of the explosion was related to the orientation of the second-stage regulator installed outside the trailer. Because the vent was positioned facing upward, rainwater entered the regulator and froze, permitting too much gas to enter the mobile home. The accumulation of gas led to the explosion that killed Doug Sullentrop. Syn contended Markle had adjusted or changed the second stage regulator; Beebe argued that Markle had done nothing more than change the furnace thermocouple and soap the lines looking for a leak.

The jury rendered the following verdicts:

Verdict A: On the claims of [Syn] for assessment of the proportions of fault for the settlement paid to the Sullentrop plaintiffs, we, the undersigned jurors, find: [Syn] is 80% at fault, Greg Markle is 20% at fault.

Verdict B: We, the undersigned jurors find: That Greg Markle was hired by Elizabeth Beebe to conduct an inherently dangerous activity.

Verdict C: We, the undersigned jurors find: That Elizabeth Beebe did reserve to herself the exclusive right to perform maintenance and repairs on the propane system and appliances at the mobile home.

Verdict D: We, the undersigned jurors find: That amount of settlement paid by [Syn] was reasonable.

Syn then sought prejudgment interest, attorneys' fees, expenses, and costs associated with defending the underlying wrongful death case. After a hearing, the trial court applied the percentage fault assessed to Markle to award a judgment for contribution against Beebe in the amount of $180,000. The court denied Syn's motion for prejudgment interest, expenses, and costs but entered judgment for Syn for twenty percent of the attorneys' fees directly related to the settlement activities amounting to $1,400.2

On appeal, Syn raises two points touching the denial of prejudgment interest. Beebe cross-appeals raising issues of instructional error in four points and the denial of the Motion for Judgment Notwithstanding the Verdict in its final point. This opinion initially addresses Beebe's cross-appeal.


Whether a jury is properly instructed is a matter of law subject to de novo review by this court. Boggs, ex rel Boggs v. Lay, 164 S.W.3d 4, 20 (Mo.App. 2005). The court will determine if the instruction is supported by substantial evidence by viewing the evidence in a light most favorable to the instruction and disregard contrary evidence. M.C. v. Yeargin, 11 S.W.3d 604, 615 (Mo.App.1999). The party challenging the instruction must show that the instruction misled, misdirected, or confused the jury, and that prejudice resulted from the error. Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 459 (Mo. banc 2006). A trial court's instructional error is reversible if the error substantially prejudiced a party. Wiskur v. Johnson, 156 S.W.3d 477, 480 (Mo.App. 2005).


Supreme Court Rule 70.02(b) directs the exclusive use of the Missouri Approved Instructions whenever an approved instruction is applicable to the case. The law is well-settled that where an MAI instruction applies to the case, the use of such instruction is mandatory. Clark v. Mo. & N. Ark. R.R. Co., 157 S.W.3d 665, 671 (Mo.App.2004); Meredith v. Mo. Pacific R.R. Co., 467 S.W.2d 79, 82 (Mo.1971) ("[i]f the Missouri Approved Instructions include an instruction which correctly states the substantive law [governing the case], the approved instruction must be given"). In insisting that the appropriate MAI be followed, the Supreme Court of Missouri has explained that use of the MAI is key to the integrity of the court system. Brown v. St. Louis Pub. Serv. Co., 421 S.W.2d 255, 258 (Mo. banc 1967). "MAI instructions, promulgated and approved by the Supreme Court, are authoritative if applicable to the factual situation . . . this court, as well as the trial court, is bound by them as surely as it is bound by Supreme Court cases and rules." Lindsay v. McMilian, 649 S.W.2d 491, 493-94 (Mo. App.1983).

If a submitted instruction deviates from MAI, the appellate court performs a four step analysis. Lay v. P & G Health Care, Inc., 37 S.W.3d 310, 329 (Mo.App. 2000). First, if the MAI prescribes a particular form of instruction, submission of that instruction is mandatory. Id. If the appropriate MAI instruction is not used, prejudicial error is presumed.3 Id. Second, the proponent of the instruction bears the burden of demonstrating nonprejudice. Murphy v. Land, 420 S.W.2d 505, 507 (Mo.1967). The presumed prejudice prevails unless the proponent makes it "perfectly clear" that no prejudice ensued. Id. Third, the appellate court determines if any prejudicial effect is created. Lay, 37 S.W.3d at 329. Finally, to be reversible, the error must materially affect the merits of the case. Id.


In its suit, Syn sought contribution or contractual indemnity from Beebe for all or part of the wrongful death settlement outlay. In order to hold Beebe responsible for the activities of Markle, however, Syn must demonstrate that the activities for which Beebe hired the independent contractor fall into an exception for independent contractors hired to perform an inherently dangerous activity. The MAI on point for such a case is 31.15 "Verdict Directing — Inherently Dangerous Activity — Liability of Employer of Independent Contractor," which states:

Your verdict must be for plaintiff and against [employer of independent contractor] if you believe:

First, [the allegedly inherently dangerous activity] was inherently dangerous activity, and

Second, during such activity, [independent contractor] either;

Failed to [special precaution independent contractor failed to take], or

Failed [alternative failure], and

Third, [independent contractor], in one or more respects submitted...

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