Thompson v. Rockett

• Decision Date: 07 June 2010
• Docket Number: No. SD 30015.,SD 30015.
• Citation: 313 S.W.3d 175
• Parties: Dennis THOMPSON, Plaintiff-Respondent, v. Wayne ROCKETT, Defendant-Appellant.
• Court: Missouri Court of Appeals

313 S.W.3d 175

Dennis THOMPSON, Plaintiff-Respondent, v.Wayne ROCKETT, Defendant-Appellant.

No. SD 30015.

Missouri Court of Appeals, Southern District, Division One.

June 7, 2010.

Matthew B. Lee, Poplar Bluff, MO, for Appellant.

Brian Scott McChesney, St. Louis, MO, for Respondent.

JEFFREY W. BATES, Presiding Judge.

Wayne Rockett(Rockett) appeals from a judgment entered against him in a personal injury action brought by Dennis Thompson(Thompson).In Rockett's first point, he contends the trial court lacked the statutory authority to award damages to Thompson because his exclusive remedy was his workers' compensation claim.In Rockett's second point, he contends the trial court erred in admitting certain documentary exhibits relating to Thompson's damages.This Court cannot address the merits of Rockett's first point because the trial court entered an interlocutory default judgment against him for failure to make discovery.The second point has no merit.Accordingly, the trial court's judgment is affirmed.

Thompson's personal injury action was originally filed in January 2007.At that time, Rockett was not a party to the action.He was added as a party-defendant in an amended petition filed by Thompson in June 2008.In relevant part, the amended petition alleged that:

(1) Rockett and Thompson were employed at Rose Concrete Products;

(2) Rockett was one of Thompson's supervisors;

(3) Thompson was severely injured when a dump truck that he was driving overturned;

(4) Rockett purposely and personally directed plaintiff to drive the dump truck, which had an unsafe hydraulic pump that needed to be replaced; and

(5) prior to the accident, Rockett had directed mechanics not to replace the pump because he did not want the vehicle to be taken out of service.

Rockett was served in early July 2008.Thereafter, Thompson voluntarily dismissed his claims against the other defendants in the case.Rockett filed an answer to the amended petition on August 7, 2008.

In mid-August 2008, Thompson propounded interrogatories to Rockett.No answers to those interrogatories were ever received by Thompson.On May 4, 2009, Thompson filed a motion for sanctions and asked the court to enter a default judgment on liability against Rockett for failing to answer interrogatories.In late May 2009, Rockett filed a motion to dismiss the case on the ground that Thompson's claim for workers' compensation benefits was his exclusive remedy.Thompson responded that his personal injury action against fellow employee Rockett was permitted by the "something more" exception to the exclusive remedy provision in § 287.120.2 discussed in cases like Burns v. Smith,214 S.W.3d 335(Mo. banc 2007).

On July 16, 2009, the court denied Rockett's motion to dismiss and granted Thompson's motion for sanctions.The court gave the following explanation for imposing sanctions against Rockett:

On or about August 18, 2008, Thompson's counsel served Rockett's counsel with interrogatories to be answered by Rockett.However, Rockett failed and/or refused to answer the interrogatories.Thompson's attorneys attempted to resolve this discovery dispute.Rockett's attorney repeatedly tried to contact Rockett and conceded the following: "I have no reason to believe that I will ever be able to contact Wayne Rockett."Thompson filed a motion for sanctions asking this Court to remedy Rockett's disobedience by entering a default judgment against Rockett pursuant to Supreme Court Rule 61.01(b)(1).After a full hearing on May 14, 2009, this Court granted Rockett additional time to answer Thompson's interrogatories, but emphasized to Rockett's attorney that Rockett would be sanctioned with a default judgment if he failed to answer Thompson's interrogatories on or before June 3, 2009.Thompson's motion for sanctions was therefore rescheduled for hearing on June 3, 2009.However, Rockett's attorney appeared for hearing on June 3 without Rockett and without Rockett's answers to interrogatories....Rockett was required to answer and/or object to the interrogatories within thirty (30) days as required by Supreme Court Rule 57.To date, nearly eleven (11) months have passed and Rockett still has not answered.Nor has Rockett offered a reasonable excuse.In fact, Rockett's own attorney has indicated that he has no reason to believe that he will ever be in contact with Rockett again.Therefore, this Court hereby sanctions Rockett's disobedience by entering a default judgment against defendant Rockett and for plaintiff Thompson pursuant to Rule 61.01(b)(1).This Court will set this matter for hearing to assess plaintiff Thompson's damages, if any.

The damages trial was held on July 23, 2009.At the beginning of that hearing, Thompson's counsel offered ten exhibits into evidence.Rockett's counsel objected to all of the documents on the grounds of hearsay and lack of foundation.Thompson was the only witness who testified at the hearing.Viewed in a light most favorable to the judgment, the following is a summary of his testimony.

In March 2005, Thompson worked for Rose Concrete as a manual laborer.He was then 52 years old.He had been employed by Rose Concrete for 16 years, and he worked an average of between 40-70 hours a week.For the first eight hours he worked each day, he earned $12 per hour.For each additional hour of that work day, he earned $18 per hour.His average weekly wage was $694.49.He had planned to work until he was 65 years of age.

On March 9, 2005, Thompson was working in the bed of a dump truck full of rocks when the vehicle flipped over on top of him.He sustained an injury to his left shoulder and arm that required hospitalization.He had to have two surgeries performed on his arm.He also underwent physical therapy.His medical expenses totaled $61,238.

Thompson had first begun working at the age of 16 or 17, and he had been fully employed his whole adult life before this injury occurred.After the first surgery, he returned to work.He ended up having to undergo a second surgery to his left arm.Once the second surgery was performed, Thompson was never able to return to work again.His doctors stressed that he should not use his left arm anymore to avoid tearing up the muscles that had been surgically repaired.Due to Thompson's inability to work any longer, he had sustained past lost wages of $134,731.His anticipated lost wages from the date of trial through age 65 totaled $310,437.

Thompson suffered from pain every day because of the injury to his left shoulder and arm.The pain was severe enough that it sometimes caused him to awake at night.The pain also was significant enough to inhibit his use of his left arm and interfere with his activities of daily living.As a result of this injury, he had become depressed and was taking medication for that condition.Thompson attributed his depression to the fact that he went from "doing everything to not being able to do anything."Thompson lived alone and had to take care of himself because his wife had died.

At the conclusion of Thompson's testimony, his attorney pointed out to the court that Thompson's economic losses (his past medical bills plus past and future lost wages) totaled over $500,000.Counsel asked the court to award an additional $300,000 to $400,000 for Thompson's noneconomic losses.The court found Thompson's damages to be $850,000.This appeal followed.

Point I

In Rockett's first point, he contends the trial court lacked the statutory authority to award damages to Thompson for this on-the-job injury because his workers' compensation claim was his exclusive remedy.For the reasons set forth below, we cannot address this issue because Rockett lost the ability to assert that affirmative defense, or any others, when the trial court entered its interlocutory default judgment on liability as a sanction for failing to make discovery.

As noted above, Rockett filed a motion to dismiss Thompson's tort claim in May 2009.At the time Rockett's motion was filed, this was an accepted procedure for raising the exclusive remedy defense contained in § 287.120.2.See, e.g., Harris v. Westin Management Co. East,230 S.W.3d 1, 2-3(Mo. banc 2007).¹Harris and like cases were decided on the basis that a circuit court lacked "subject matter jurisdiction" over a claim barred by § 287.120.2.See, e.g., State ex rel. Taylor v. Wallace,73 S.W.3d 620, 621(Mo. banc 2002)("subject matter jurisdiction over workers' compensation claims properly lies in the Labor and Industrial Relations Commission").That was the same argument Rockett made to the trial court.

In McCracken v. Wal-Mart Stores East, LP,298 S.W.3d 473(Mo. banc 2009), however, our Supreme Court overruled that prior line of cases.Id. at 475.McCracken held that article V, § 14 of the Missouri Constitution gives a circuit court subject matter jurisdiction to hear a civil case sounding in negligence.Id.The exclusive remedy provision in § 287.120 is merely an affirmative defense that must be pleaded and proven as provided in Rules 55.08and55.27.Seeid. at 479.Because this statutory bar to recovery is not jurisdictional in nature, it can be waived like other defenses.Id.To accommodate pending cases, our Supreme Court also decided the rule requiring this issue to be timely raised as an affirmative defense would only be applied prospectively.²"In pending cases, courts should treat the matter as preserved if raised by motion to dismiss and should be liberal in permitting amendment ... to responsive pleadings during the transition back to treating this matter as an affirmative defense."Id. at 479-80.Thus, the Supreme Court directed that courts in pending cases should treat a motion to dismiss raising the exclusive remedy bar of § 287.120.2 as though it were an affirmative defense asserted in a defendant's answer.

This change in the law has a direct bearing on our resolution of Rockett's first point on appeal.Although Rockett raised...