Opinion
No. 22829 22844.
April 11, 2000.
APPEAL FROM: CIRCUIT COURT OF GREENE COUNTY, HON. CALVIN HOLDEN, CIRCUIT COURT OF CAMDEN COUNTY, HON. MARY PLATTER DICKERSON.
Rae L. Nickell, Counsel for Appellant. R.B. Regan and Rich Tiemeyer, Counsel for Respondent.
CROW, P.J., and SHRUM, J., concur.
OPINION
McNeill Trucking Co., Inc. (McNeill) and Roy S. Golden (Golden) appeal the dismissal of third-party petitions they filed in cases in the Circuit Court of Greene County (No. 22829) and the Circuit Court of Camden County (No. 22844) against the Missouri State Highway and Transportation Commission (MHTC). The cases arose from a motor vehicle accident that occurred in Laclede County, Missouri. The appeals have been consolidated. This court affirms.
The Accident
The two cases that are the subjects of this consolidated appeal are products of a motor vehicle accident that occurred on Interstate 44 (I-44) in Laclede County, Missouri. The accident involved a tractor-trailer driven by Golden. He was operating the vehicle pursuant to an independent contractor operating agreement with McNeill. The truck overturned. A vehicle driven by Jack Kramer struck the overturned truck. Passengers in the Kramer vehicle, in addition to Jack Kramer, were his children, Kyle Kramer, Brianne Kramer, Carol Marae Kramer and Raquel Kramer. Kyle was 11 years old. He died as a result of injuries he sustained in the collision. Brianne, Carol Marae and Raquel were also minors. They were each injured in the accident.
The petition in the Greene County case refers to Carol Kramer as "Carol Marae Kramer" and "Carol Marie Kramer." The caption in the judgment refers to her as "Carol Marae Kramer." This opinion uses the spelling that appears in the judgment.
The Two Cases
The Camden County case was originally filed in Laclede County. The case was transferred to Camden County on change of venue. It is a two-count action. Count I is Jack Kramer's claim for damages against McNeill and Golden for personal injuries he sustained in the accident. Count II is Jack Kramer's wife, Susan Kramer's, claim against McNeill and Golden for loss of consortium provided by her husband.
The Greene County case is in two counts. Count I is Jack Kramer's and Susan Kramer's action against McNeill and Golden for wrongful death of Kyle. Count II is an action by Susan Kramer, individually, for loss of consortium provided by her children, Brianne, Carol Marae, and Raquel, and for medical expenses incurred as a result of the children's injuries, and, as next friend for those children, for damages for injuries they sustained as a result of the accident. McNeill and Golden filed third-party petitions against MHTC in both cases alleging that the damages claimed by Jack Kramer and Susan Kramer in each case were caused or contributed to by the carelessness and negligence of MHTC. Both third-party petitions requested, in the event judgment was rendered against McNeill and Golden, that the damages be apportioned "pursuant to the relative percentages of fault" between Jack Kramer, McNeill, and Golden and MHTC.
Counts I and II of the Kramers' Greene County case were subsequently settled and dismissed. The third-party claim of McNeill and Golden against MHTC was the only remaining claim in the Greene County case.
The third-party petition in No. 22844 alleges that MHTC "was responsible for the construction, maintenance and repair of Interstate Highway I44" and "the road surface of Interstate Highway I44 in the area where this accident occurred was rough and uneven and as such constituted an unreasonably dangerous condition to members of the general public traveling in motor vehicles on said highway." The third-party petition in No. 22829 alleges that MHTC "was responsible for the maintenance and repair of Interstate Highway I44" and that if damages were sustained as a result of the death of Kyle, "such damages were caused or contributed to caused [sic] by the carelessness and negligence of the Third-Party Defendant, [MHTC], to wit:
(a) In failing to properly maintain and repair the highway when Third-Party Defendant knew or should have known of highway's dangerous condition;
(b) In failing to lower the speed limit when Third-Party Defendant knew or should have known of the highway's dangerous condition;
(c) In failing to close the lanes of traffic and detour traffic when the Third-Party Defendant knew or should have known of the highway's dangerous condition;
(e) In failing to timely and properly warn the driving public of the dangerous condition of the highway when Third-Party Defendant knew or should have know [sic] of the highway's dangerous condition."
MHTC filed a "Motion to Dismiss for Lack of Subject Matter Jurisdiction" in the Greene County case and an "Answer to Second Amended Third-Party Petition and Motion to Dismiss" in the Camden County case. Both motions asserted sovereign immunity.
The motion to dismiss the Camden County case was granted as to the claims for apportionment of any damages awarded for claims of Jack Kramer and Susan Kramer. Judgment was entered in the Camden County case dismissing the part of the third-party petition directed to the Kramers' claims (Count I of the third-party petition). The trial court found, pursuant to Rule 74.01(b), that there was no just reason to delay entering judgment as to Count I of the third-party petition.
The Second Amended Third Party Petition in the Camden County case includes Counts II, III and IV which are Golden's claims against MHTC for personal injuries (Count II), for loss of consortium as a result of personal injuries sustained by Golden's wife, Luanne Golden, who was a passenger in the tractor at the time of the accident, (Count III) and McNeill's claim against MHTC for damages to and loss of use of a refrigerated van that was being pulled by the tractor Golden was operating (Count IV).
The motion to dismiss the Greene County case was granted. Judgment was entered dismissing the third-party petition.
Issues on Appeal
McNeill and Golden present two points on appeal. Point I asserts that the trial courts erred in granting MHTC's motions to dismiss the third-party claims for contribution on the basis of sovereign immunity because MHTC waived that defense in each case by not timely asserting it. Point II argues that the trial courts erred in granting the motions because "sovereign immunity is not a bar to a third-party action for contribution."
Point II is addressed first. If sovereign immunity is not a bar to third-party actions for contribution, there is no waiver question.
McNeill and Golden contend their third-party claims for contribution from MHTC fall within exceptions to sovereign immunity established by section 537.600. That statute states, in applicable part:
References to statutes are to RSMo 1994, unless stated otherwise.
1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:
. . .
(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that . . . a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition. . . .
2. The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort.
. . .
MHTC acknowledges that it would not be shielded from immunity by section 537.600 if it had been named a defendant along with McNeill and Golden in the tort actions brought by the Kramers. MHTC contends, however, that a third-party claim for contribution is independent from an underlying tort action, that a claim for contribution is separate and distinct. MHTC argues that sovereign immunity protects it from claims for contribution.
This issue was addressed and decided in Steinhoff v. Rolen, 945 S.W.2d 516 (Mo.App. 1997). In a similar fact situation to the one in this case the Eastern District of this court reasoned:
The right of the sovereign to immunity from suit has long been recognized in Missouri. Beatty v. Metro. St. Louis Sewer Dist., 914 S.W.2d 918, 923 (Mo.banc 1995). The general rule of sovereign immunity is that a sovereign may not be sued without its consent. Fort Zumwalt School Dist. v. State, 896 S.W.2d 918, 923 (Mo.banc 1995). Statutory provisions that waive sovereign immunity must be strictly construed. State ex rel. Missouri Highway and Transp. Comm'n. v. Appelquist, 698 S.W.2d 883, 888 (Mo.App. 1985).
Section 537.600, RSMo 1994, waives sovereign tort immunity for certain claimants to collect compensatory damages for injuries resulting from the negligent operation of motor vehicles or dangerous conditions on public property. A contribution claim is a separate and distinct cause of action from a tort claim. Rowland v. Skaggs Cos., Inc., 666 S.W.2d 770, 773-74 (Mo.banc 1984). In light of this, we find that the limited waiver of sovereign tort immunity in section 537.600, does not apply to contribution claims. We are precluded from making extensions beyond this limited waiver. State ex rel. Missouri Dep't of Agric. v. McHenry, 687 S.W.2d 178, 182 (Mo.banc 1985).
Furthermore, the purpose of section 537.600 is to benefit those persons directly injured by the negligence of the state. In his initial third-party petition, Rolen did not seek compensation for his injuries. Instead, he sought contribution from MHTC, as an alleged joint tortfeasor, for any amount paid in excess of his proportionate share of fault. Rolen's action for contribution was not in furtherance of the statutory purpose of section 537.600, which is to enable persons to recover damages for injuries resulting from the negligent operation of motor vehicles or dangerous conditions on public property. The trial court erred in denying MHTC's motion to dismiss for lack of subject matter jurisdiction.
Id. at 519-20.
Notwithstanding Steinhoff , McNeill and Golden rely on State ex rel. Missouri Highway and Transportation Commission v. Appelquist , 698 S.W.2d 883 (Mo.App. 1985), and State ex rel. Wartick v. Teel, 737 S.W.2d 258 (Mo.App. 1987), in claiming their third-party actions for contribution from the state are not barred by sovereign immunity. Neither case supports the proposition for which it is cited by McNeill and Golden.
Appelquist arose from an underlying tort action in which a third-party petition had been filed naming a contractor who had constructed the area of a public highway where a fatal accident had occurred and MHTC as third-party defendants. The third-party petition sought, in the event the defendants (a truck driver and his employer who owned the truck) were found liable, "'a determination of the relative fault' of [MHTC] in causing plaintiffs' damages." 698 S.W.2d at 885. It asserted, alternatively, that "any responsibility of [the employer/truck owner] for the death . . . is the responsibility of [MHTC] 'to the extent it has procured or provided insurance coverage or self-insurance, pursuant to the application of comparative fault under the laws of the State of Missouri, and would be subject to apportionment of fault, allocation of fault, and contribution pursuant to applicable comparative fault laws, or in the alternative, [MHTC] would be liable to [the driver and the employer/truck owner] for the entire amount of any judgment entered against [them], including attorney fees, litigation expenses, damages, and court costs.'" Id. at 885-86.
Appelquist held that, under section 537.610.1, RSMo 1978, statutory waiver of sovereign pursuant to section 537.600, RSMo 1978, was effective "'only to the extent the public entity has purchased liability insurance for such purposes.'" Id. at 889, quoting Bartley v. Special School District of St. Louis County, 649 S.W.2d 864, 868 (Mo.banc 1983). Appelquist concluded, "[N]o insurance, no waiver." 698 S.W.2d at 889. Although the issue in Appelquist arose from a third-party claim in an underlying tort action, the question of whether a third-party claim for contribution could be brought against the state was not raised or addressed. Appelquist was disposed of on the basis that, under the then applicable statute, if the state had no liability insurance (and no self-insurance plan), sovereign immunity was not waived.
Section 537.600 was amended in 1985 to provide that the express waivers of sovereign immunity provided therein were "absolute waivers of sovereign immunity . . . whether or not the public entity is covered by liability insurance for tort." See section 537.600.2, RSMo 1985 Supp.
Likewise, no issue was presented in Teel about whether sovereign immunity precluded a third-party claim for contribution. The issue it adjudicated was whether the underlying tort action alleged a violation of the city of Joplin's proprietary functions as opposed to its governmental functions. The question of whether a claim for contribution could be asserted against a public entity was not raised. Neither Teel or Appelquist is of assistance to McNeill and Golden. The applicable law is stated in Steinhoff. Point II is denied.
In Point I, McNeill and Golden claim MHTC waived the defense of sovereign immunity by not timely raising it. The third-party petition against MHTC was filed January 12, 1998, in the Greene County case. MHTC initially filed a motion to dismiss or in the alternative to make more definite and certain. The motion did not assert sovereign immunity as a basis for MHTC's request that the third-party claim be dismissed. On July 27, 1998, MHTC filed a motion to dismiss for lack of subject matter jurisdiction. The ground it alleged for dismissing the third-party claim was sovereign immunity.
Following McNeill's and Golden's filing of the third-party petition in the Camden County case, MHTC filed a motion to dismiss or in the alternative to make more definite and certain. It did not state sovereign immunity as a ground for the relief sought. MHTC's answer to the third-party petition asserted, "In an effort to be responsive Third-Party defendant states that it is a branch of the Executive Department of the State of Missouri capable of being sued in this state." The answer asserted various affirmative defenses.
A first amended third-party petition was filed May 14, 1998, in the Camden County case. A second amended third-party petition was filed July 14, 1998. MHTC filed an answer to the second amended third-party petition and motion to dismiss August 6, 1998. The motion to dismiss that was included with the answer to Count I of the second amended third-party petition asserted sovereign immunity as the reason the third-party claim should be dismissed.
McNeill and Golden point to the first motions to dismiss MHTC filed in the Greene County case and the Camden County case. The motions did not assert sovereign immunity. McNeill and Golden contend MHTC waived any defense based on sovereign immunity because it "did not raise the defense of lack of personal jurisdiction based on sovereign immunity in any way, shape or form. . . ."
McNeill and Golden base their argument on the premise that MHTC's claim for relief on the basis of sovereign immunity is founded on lack of jurisdiction over the person. They point to the provision of Rule 55.27(a) that permits the defense of lack of jurisdiction over the person to be asserted by motion. They then point to the provision of Rule 55.27(g)(1) that states, "A defense of lack of jurisdiction over the person . . . is waived (A) if omitted from a motion in the circumstances described in subdivision (f) or (B) if it is neither made by motion under this Rule nor included in a responsive pleading."
Rule 55.27(f) allows any motion permitted by Rule 55.27 to be joined with any other motions permitted by it. It further provides, "If a party makes a motion under this Rule 55.27 but omits therefrom any defense or objection then available that this Rule 55.27 permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Rule 55.27(g)(2) on any grounds there stated." Rule 55.27(g)(2) does not include the defense of lack of jurisdiction over the person. The grounds for relief to which Rule 55.27(g)(2) relates are failure to state a claim upon which relief can be granted, failure to join an indispensable party and failure to state a legal defense.
The fallacy of McNeill's and Golden's argument lies in its premise that the assertion of sovereign immunity defense is a claim of lack of jurisdiction over the person and can, therefore, be waived. "Jurisdiction" is often used ambiguously. It is frequently difficult to determine if the term alludes to jurisdiction over the person or subject matter or, in a third sense, to refer to jurisdiction to render a particular judgment in a particular case. As explained in State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52 (banc 1941):
It is said that the jurisdiction of a court to adjudicate a controversy rests on three essentials: (1) jurisdiction of the subject matter; (2) jurisdiction of the res or the parties; (3) and jurisdiction to render the particular judgment in the particular case. Charles v. White, 214 Mo. 187, 206, 208, 112 S.W. 545, 549, 21 L.R.A., N.S., 481, 127 Am.St.Rep. 674 [1908]. The first two are the grand subdivisions of jurisdiction. Jurisdiction of the subject matter is derived from the law and cannot be conferred by consent. Jurisdiction over the person may be waived because it is a personal privilege.
But the third essential, jurisdiction to render the particular judgment in the particular case (sometimes called "competency"), partakes of the character of one or the other of the first two. Where the lacking element of jurisdiction goes to the personal privilege of the litigant, it may be waived. But when it depends on the power of the court under a public policy established by statute or otherwise, it cannot be waived. It is said in 21 C.J.S., Courts, section 85, pp. 128, 129: "If the court cannot try the question except under particular conditions or when approached in a particular way, the law withholds jurisdiction unless such conditions exist or unless the court is approached in the manner provided, and consent will not avail to change the provisions of the law in this regard." [Footnote omitted.]
Waiver of sovereign immunity is a public policy issue. A court's power to enter judgment against a public entity is derived from statute. The limited waiver of sovereign immunity in section 537.600 does not apply to contribution claims. Seinoff, 945 S.W.2d at 519. The privilege from being sued for third-party contribution partakes of subject matter jurisdiction. It cannot be waived. Point I is denied.
The judgment is affirmed.