Wheeler v. Phenix

• Decision Date: 08 February 2011
• Docket Number: No. SD 30371.,SD 30371.
• Citation: 335 S.W.3d 504
• Parties: Desiree WHEELER, by and through Limited Co–Conservators, Sandy WHEELER and Rob Wheeler, Plaintiff–Respondent,v.Michael L. PHENIX, Defendant,andCity of West Plains, Missouri, Defendant–Appellant.
• Court: Missouri Court of Appeals

335 S.W.3d 504

Desiree WHEELER, by and through LimitedCo–Conservators, Sandy WHEELER and Rob Wheeler, Plaintiff–Respondent,

v.Michael L. PHENIX, Defendant,andCity of West Plains, Missouri, Defendant–Appellant.

No. SD 30371.

Missouri Court of Appeals, Southern District, Division Two.

Feb. 8, 2011.

Warren E. Harris, Springfield, MO, for Appellant.H. Lynn Henry, West Plains, MO, for Respondent.WILLIAM W. FRANCIS, JR., Judge.

The City of West Plains, Missouri (“Appellant”), appeals from a judgment entered against it in the amount of $162,500 following a two-day jury trial.We affirm the judgment of the trial court.

Factual and Procedural Background

On April 11, 2006, Desiree Wheeler(“Respondent”) was a passenger in a vehicle being driven by Frances Ness(“Ness”) in the city limits of West Plains, Missouri.The Ness vehicle was eastbound on Highway 160 approaching the intersection of Highway 63 and attempting a left turn onto Highway 63 North—from the outside left turn lane—when the collision occurred.The traffic light for Ness was green.Michael Phenix(“Phenix”),¹ a firefighter for Appellant, was driving his personal vehicle southbound on Highway 63 with an activated flashing blue light—roof-mounted system—along with an activated siren.He was en route to a bomb threat at the Royal Oak charcoal plant in Howell County.He approached the intersection and stopped to check traffic before he proceeded because his light was red.To his right, there was a tractor-trailer in the inside left turn lane of Highway 160, which partially obscured his vision.He proceeded slowly past the tractor-trailer.Richard Hammon, a passenger in Phenix's vehicle, noticed the Ness vehicle approaching from the right in the outside turn lane next to the tractor-trailer.There was no indication that Ness heard Phenix's siren or saw his blue light.She proceeded at a continuous rate of speed and hit the side of Phenix's vehicle as he moved through the intersection, against the red light for his direction.

Respondent was injured and the total charges for her medical treatment were $55,088.34.At the time of the collision, she was eligible for Medicare and her healthcare providers were reimbursed by Medicare for $20,543.10, in accordance with the contract rate at that time.

On May 16, 2006, Respondent filed suit for personal injury against Phenix.Respondent contended Phenix was negligent for proceeding against a red light at the intersection when this collision occurred.Phenix asserted as an affirmative defense that he was permitted to proceed against the red light because he was operating an authorized emergency vehicle and was en route to an emergency.

On October 5, 2006, Respondent filed a first amended petition naming Appellant as an additional defendant on a theory it was vicariously liable for Phenix's negligence.

On October 23, 2006, Appellant filed a third-party petition versus Ness.Before trial, Appellant reached a settlement with Ness in the amount of $12,500.

On October 29, 2009, Respondent filed a second amended petition substituting her limited co-conservators as plaintiffs.

Before trial, Respondent and Phenix each filed motions for the court to assess the value of medical services.In October 2009, Respondent filed nine affidavits, pursuant to section 490.525,² in which respective healthcare providers' custodians of record stated the amount charged by each office was necessary and reasonable and included an itemized statement of charges.

On October 30, 2009, at a pre-trial conference—by agreement of the parties—the trial court heard evidence concerning the issue of the reasonable value of Respondent's medical treatment, including five witnesses employed by Respondent's healthcare providers who were subpoenaed to testify by Appellant.Appellant argued the trial court had the authority to determine the reasonable value of the medical services.The trial court found the reasonable value of the medical services to be $55,088.34.At trial, the parties agreed the medical bills in that amount would go into evidence subject to Appellant's objection that there was not sufficient evidence to rebut the presumption created in section 490.715.

On Saturday, November 7, 2009—two days before trial—Respondent's attorney faxed to Appellant's attorney a motion for leave to file a third amended petition and a proposed third amended petition.The proposed third amended petition³ added negligence allegations that Phenix violated city ordinances—“Code of Ordinances, City of West Plains, Missouri (2009)”—(“cityordinance”or “city ordinances”).Specifically, the proposed amendments alleged Phenix, while facing a steady red signal, failed to stop before entering the intersection in violation of city ordinance Sec. 90–410(a)(3)a, ⁴ and failed to obey the instructions of the traffic control device in violation of city ordinance Sec. 90–407.⁵

On November 9, 2009, the case was called for trial.The trial court sustained Respondent's motion for leave to file the third amended petition, and the third amended petition was filed.While there may have been objections asserted by Appellant as to these amendments off the record, nothing in the record indicates objections to the motion, or a request for continuance of the trial.

During trial, Kent Edge(“Mr.Edge”), the safety director for Appellant, was questioned regarding an accident report,⁶ which was filled out following the collision.In the process of laying a foundation for admission of that report into evidence, Mr. Edge was asked if it was prepared in the ordinary course of business.His response was: “It's prepared for the insurance company.”At that point, Appellant requested a mistrial, which was denied.There were no other references to insurance, or any implications of insurance, in the testimony or in the remaining proceedings before the jury.

Mallory Prewett, City Clerk for the City of West Plains, was called to prove up city ordinances: “Sec. 90–410.Signal legend; observance”; “Sec. 90–7.Authorized emergency vehicles”; ⁷“Sec. 90–2.Definitions”; ⁸ and “Sec. 90–77.Duty to drive with care.”⁹No objections were made to the admission of city ordinance Sec. 90–410, but Appellant objected to the other three city ordinances “as being in conflict with Missouri law and, therefore, irrelevant.”The objections were overruled and the city ordinances were admitted into evidence.Ms. Prewett then read to the jury a portion of city ordinance Sec. 90–2 defining “authorized emergency vehicle” over Appellant's objection.Appellant objected to reading city ordinance Sec. 90–2 to the jury because “[t]he instructions of the case are to be the law of the case and you're not to read or display a statute to the jury....We believe the same law applies with regard to an ordinance.”

During the jury instruction conference, Respondent tendered a negligence per se verdict director that Phenix failed to stop and remain standing at the red traffic signal.This instruction was patterned after Missouri Approved Jury Instructions (“MAI”) 17.17 and MAI 19.01, and was consistent with both city ordinance Sec. 90–410andsection 304.281.This instruction was submitted to the jury over Appellant's objections that “its submitting the municipal ordinance, which is conflicted with state statute 304.022.It's not-paragraph first is not submitted, it's got two elements combined and it puts in a fact that's undisputed, that [Phenix] stopped.”Appellant tendered an affirmative converse instruction in support of its affirmative defense that Phenix was in an “emergency vehicle” and was entitled to proceed through the red signal, and thus not negligent.The instruction was based on MAI 33.05(2)andsections 304.022and307.175.The tendered instruction was refused by the trial court.

The jury returned a verdict in the amount of $175,000 and the trial court, after applying a credit of $12,500, entered judgment against Appellant for $162,500.This appeal followed.

Appellant claims the trial court erred in: (1) allowing Respondent to amend her petition on the morning of trial and denying its motion for continuance; (2) allowing Respondent to submit a negligence per se verdict directing instruction based on a city ordinance; (3) refusing to submit to the jury the affirmative converse instruction patterned after MAI 33.05(2);(4) refusing to grant Appellant's request for a mistrial after Mr. Edge mentioned insurance during his testimony; (5) allowing Respondent to read city ordinance Sec. 90–2 to the jury; and (6) determining the reasonable value of medical treatment because there was not substantial evidence to rebut the presumption that the amount of the medical bills to be submitted into evidence was the amount actually paid.

Point I: Late Amendment to the Pleadings

In its first point, Appellant asserts it was error for the trial court to permit Respondent leave of court to amend her petition to assert a negligence per se claim, based on Phenix's violation of city ordinances, because it was untimely.Respondent argues the trial court acted within its discretion in that there was no prejudice to Appellant.The issue for determination is whether granting Respondent leave to amend her petition deprived Appellant of a legitimate claim or defense.

Standard of Review

“It is within the trial court's discretion to grant leave to amend pleadings, and this Court will not disturb the decision to grant leave to amend absent a showing the trial court obviously and palpably abused its discretion.”Carpenter v. Countrywide Home Loans, Inc.,250 S.W.3d 697, 701(Mo. banc 2008).“Judicial discretion is abused when a ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.”Jaron Corp. v. Pellet,866 S.W.2d 897, 902(Mo.App. S.D.1993).

Analysis

Rule 55.33¹⁰ governs the procedure for amendments to the pleadings.“The...