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Parrott v. Severs Trucking, LLC

Court of Appeals of Missouri, Southern District, Second Division

February 7, 2014

RHONDA PARROTT, as Surviving Spouse of JAMES KELSO PARROTT, Deceased, and Individually, Plaintiff-Respondent,
SEVERS TRUCKING, LLC, and BRANDON G. BLACK, Defendants-Appellants

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APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY. Honorable Timothy W. Perigo, Circuit Judge.


For Appellants: Monte P. Clithero and Kevin M. Fitzgerald, TAYLOR, STAFFORD, CLITHERO, FITZGERALD & HARRIS, L.L.P., Springfield, MO.

For Respondent: Roger Johnson and Erin Vorhees, Johnson, Vorhees & Martucci, Joplin, MO.

GARY W. LYNCH, J. - Opinion author. JEFFREY W. BATES, P.J. - concurs. DON E. BURRELL, J. - concurs.


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Rhonda Parrott (" Plaintiff" ) filed a wrongful death action against Brandon Black and Severs Trucking, LLC (" Severs" ), (collectively " Defendants" ) for the death of her husband James Parrott (" James" ).[1] Defendants appeal the trial court's judgment entered on a jury verdict in favor of Plaintiff. Defendants raise seven points of alleged trial court error. Defendants' first point--the trial court erred in instructing the jury under Missouri law instead of Oklahoma law on the issue of whether Black's conduct in a motor vehicle accident that occurred in Oklahoma was tortious--has merit, and we reverse and remand for a new trial. Due to that disposition, we need not address any of Defendants' remaining points except for their fourth point claiming that Plaintiff's wrongful death claim is barred by judicial estoppel. It has no merit and is denied.

Factual and Procedural History

The facts relevant to our disposition of this appeal are not in dispute. On April 4, 2007, James was operating a 2003 International semi tractor-trailer on U.S. Highway 69 in Mayes County, Oklahoma. Near the

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intersection of U.S. Highway 69 and county road EW 620, in the state of Oklahoma, James collided into the rear of a 2001 Peterbuilt semi tractor-trailer operated by Black during the course and scope of Black's employment with Severs. James suffered an injury to his kneecap for which he received outpatient surgery less than a month after the collision. Sometime during the night following his surgery or early the next morning, James suffered a heart attack that resulted in his death.

Plaintiff filed suit against Defendants in the Circuit Court of Newton County, Missouri, alleging that Black negligently operated his tractor-trailer unit and that such negligence directly caused or directly contributed to cause the wrongful death of James. While having initially asserted in her pleadings that the laws of Oklahoma should apply to all substantive issues of tort and recovery of damages, Plaintiff later filed a trial brief that instead argued that Missouri law should be applied.[2] Plaintiff's argument was based on the choice-of-law factors enumerated in section 145 of the Restatement (Second) of Conflict of Laws. Defendants opposed the application of Missouri law and instead countered that Oklahoma law should be applied. Before trial, the trial court determined the issue in favor of Plaintiff, specifically ruling " Missouri has the most significant relationship to the occurrence and parties and Mo. is entitled to have Missouri law determine issues." Plaintiff was granted leave to file her second amended petition, which alleged in part that " Black owed a duty to operate the 2001 Peterbuilt Semi Tractor Trailer in compliance with the rules of the road of the State of Missouri[.]"

The matter went to trial before a jury. The instruction packet included comparative fault verdict directors based upon negligence under Missouri Approved Instructions (" MAI" ) 37.01, modified by 20.02 and 19.01. Plaintiff's verdict director stated in part that the jury must assess a percentage of fault to Defendants if it believed Black either " failed to keep a careful lookout" or " failed to yield the right of way" ; that Black was thereby negligent; and that such negligence " directly caused or directly contributed to" cause James' death. To define " negligent" or " negligence," the trial court submitted to the jury MAI 11.03, which was offered by Plaintiff and based on the statutory language of section 304.012,[3] requiring " the highest degree of care" from motorists (" Instruction 7" ). Instruction 7 provided: " The term 'negligent' or 'negligence' as used in these instructions means the failure to use the highest degree of care. The phrase 'highest degree of care' means that degree of care that a very careful person would use under the same or similar circumstances."

Defendants, however, maintained the contention that the definition of negligence should comport with the law of Oklahoma, which Defendants alleged required drivers to exercise " ordinary care." Before the submission of the instruction packet to the jury, Defendants offered MAI 11.07 (" Instruction A" )[4] to define " negligent" or

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" negligence," which the trial court received but marked as " refused."

Following deliberations, the jury returned a verdict for Plaintiff and against Defendants, attributing ninety-five percent of fault for the collision to Defendants and five percent of fault to James. The jury awarded Plaintiff damages of $1,620,000. Judgment was entered on September 12, 2012, for $1,539,000, plus court costs.

Defendants now appeal asserting seven points of alleged trial court error. Defendant's first point is dispositive.


Oklahoma Law Applies to Establish Defendants' Duty of Care

In their first point, Defendants claim that the trial court erred in submitting Instruction 7 because the duty of care as defined therein was improperly based upon section 304.012, rather than applicable Oklahoma law.[5] Defendants also allege that

Oklahoma applies a standard of ordinary care for operators of motor vehicles on its highways whereas Missouri applies a standard of the highest degree of care and, as such, the jury was improperly instructed and [Defendants] were held to a higher standard of care than that to which they should have been held.

The question of which state's law applies is a question of law for the court. Wilson v. Image Flooring, LLC , 400 S.W.3d 386, 391 (Mo.App. 2013). Determination of the appropriate standard of care is also a question of law. Lopez v. Three Rivers Elec. Co-op., Inc ., 26 S.W.3d 151, 158 (Mo. banc 2000). " Whether the jury was properly instructed is a question of law, which we review de novo ." Bradford v. BJC Corp. Health Servs ., 200 S.W.3d 173, 178 (Mo.App. 2006).

All parties recognize and acknowledge that, when determining choice-of-law issues relating to a tort action generally, Missouri courts apply the " most significant relationship test" as set out in section 145 of the Restatement (Second) of Conflict of Laws and adopted by Missouri in Kennedy v. Dixon , 439 S.W.2d 173 (Mo. banc 1969). By its terms, section 145 is framed upon and is viewed in light of section 6 of the Restatement (Second) of Conflict of Laws. Griggs v. Riley , 489 S.W.2d 469, 473 (Mo.App. 1972) (" The basic principles governing choice of laws are those enumerated in § 6. Section 145 simply provides that certain contacts may be taken into account in

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determining the choice of law under the principles of § 6." ).

Turning our attention to section 6, we observe that it begins by stating in subsection (1) that " [a] court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law." Restatement (Second) of Conflict Of Laws § 6(1) (1971). Only " [w]hen there is no such directive," do we proceed to analyze the enumerated " factors relevant to the choice of the applicable rule of law[.]" [6] Id . at § 6(2). Neither Defendants nor Plaintiff have directed us to a Missouri statute explicitly directing choice-of-law in the factual scenario before us, and we cannot find such a statute applicable to this case. Indeed, the comments to section 6 state that " [a] court will rarely find that a question of choice of law is explicitly covered by statute[,]" but further observes that " the court will constantly be faced with the question whether the issue before it falls within the intended range of application of a particular statute." Id . at § 6 cmt. b. This case presents that precise question--whether section 304.012 was applied consistent with its intended range of geographical applicability.

Section 304.012 states in pertinent part:

1. Every person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.

A plain reading of section 304.012.1 suggests that the statute's geographic range is limited to " the roads and highways of this state ," i.e., Missouri. (Emphasis added). This conclusion is supported by State v. Rowe , 63 S.W.3d 647 (Mo. banc 2002), where our supreme court interpreted similar language found within section 302.321.1.[7] The issue in that case was whether Rowe, an Iowa resident whose Iowa driver's license had been indefinitely suspended and revoked, could be convicted under section 302.321.1 for driving a motor vehicle in the state of Missouri. Rowe , 63 S.W.3d at 648. The supreme court found that the language " under the laws of this state ," (emphasis added) as used in section 302.321.1, was unambiguous and precluded the statute's application to Rowe because his driving privilege had not been " canceled, suspended, or revoked under the laws of this state[.]" [8] Rowe , 63 S.W.3d at 649-50.

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With regard to section 304.012.1, the legislature imposed the duty that operators of motor vehicles exercise the highest degree of care but explicitly limited such to " the roads and highways of this state[.]" By its plain meaning, section 304.012.1 is inapplicable to operators of motor vehicles on the roads and highways of Oklahoma. The geographic scope of section 304.012.1 is clear, and " [w]hen the words are clear, there is nothing to construe beyond applying the plain meaning of the law." Rowe , 63 S.W.3d at 649. " Legislative intent can only be derived from the words of the statute itself." Id . at 650. Our conclusion is further compelled by the Restatement, which recognizes that

[t]he court should give a local statute the range of application intended by the legislature when these intentions can be ascertained and can constitutionally be given effect. If the legislature intended that the statute should be applied to the out-of-state facts involved, the court should so apply it unless constitutional considerations forbid. On the other hand, if the legislature intended that the statute should be applied only to acts taking place within the state, the statute should not be given a wider range of application.

Restatement (Second) of Conflict of Laws § 6 cmt. b.

Therefore, because section 304.012 does not apply outside the geographical boundaries of the state of Missouri, it cannot " conflict" with the law of Oklahoma, and the choice-of-law factors enumerated in section 6(2) of the Restatement (Second) of Conflict of Laws have no applicability. As a matter of law, it was error for the trial court to submit Instruction 7, premised upon the application of section 304.012, to the jury for its determination of the tortiousness of Black's conduct in a vehicular accident that occurred on roads in Oklahoma.

Finding the submission of Instruction 7 to be erroneous does not end our inquiry, however. We must also address whether its submission prejudiced Defendants. See Lopez , 26 S.W.3d at 158. Instruction 7, based upon section 304.012.1, defined " negligent" or " negligence" as " the failure to use the highest degree of care." The phrase " highest degree of care" was defined as " that degree of care that a very careful person would use under the same or similar circumstances." See MAI 11.03 (7th ed.). Defendants contend, and Plaintiff disputes, that Oklahoma law mandates a lower degree of care on its roads and highways--that of " ordinary care," defined in Oklahoma's Uniform Jury Instructions as " the care which a reasonably careful person would use under the same or similar circumstances." OUJI-Civ. No. 9.3 (2012 ed.).

Defendants' contention has merit. In Agee v. Gant , 1966 OK 31, 412 P.2d 155 (Okla. 1966), the Supreme Court of Oklahoma construed title 47, section 11-801(a) of the 1961 Oklahoma Statutes[9] as requiring drivers of motor vehicles to use " that degree of care which is reasonable and prudent under the circumstances." Agee , 412 P.2d at 158-59. Subsequent Oklahoma cases have reiterated this standard. E.g., Dirickson v. Mings ,

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1996 OK 2, 910 P.2d 1015, 1018 (Okla. 1996) (citing Agee ); Fuller v. Pacheco , 2001 OK CIV APP 39, 21 P.3d 74, 78 (Okla.Civ.App. 2001) (citing Dirickson ). In our view, nothing about " reasonable and prudent" suggests a duty beyond exercising " the care which a reasonably careful person would use under the same or similar circumstances" as stated in the Oklahoma uniform jury instruction defining " ordinary care." Nothing in the Oklahoma case law or statute supports a duty to use the highest degree of care on Oklahoma roads as is required on Missouri roads by section 304.012.[10]

When a jury instruction imposes upon a party a standard of care greater than that required by law, prejudice is ordinarily presumed and is rarely rebutted. Lopez , 26 S.W.3d at 158. Our supreme court " has consistently held that an instruction that imposes upon a party a standard of care higher than that required by law is prejudicial, requiring a new trial." Id . (citing Schlegel v. Knoll , 427 S.W.2d 480, 485 (Mo.1968); Toburen v. Carter , 273 S.W.2d 161, 165 (Mo.1954); Oesterreicher v. Grupp , 119 S.W.2d 307, 308 (Mo.1938); Borgstede v. Waldbauer , 337 Mo. 1205, 88 S.W.2d 373, 376 (Mo. banc 1935)). We are not convinced by Plaintiff's argument otherwise.[11] Defendants' first point is granted.

Finding Defendants' first point to be dispositive in requiring a remand for a new trial, we need not address any of Defendants' remaining points other than their

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fourth point.[12] " Issues that are not essential to a disposition of the case should not be addressed." S & P Props., Inc. v. Daly , 330 S.W.3d 128, 130 (Mo.App. 2010) (quoting O'Hare v. Permenter , 113 S.W.3d 287, 289 (Mo.App. 2003)) (internal quotations omitted). Because Defendants' fourth point, if meritorious, would require outright reversal rather than remand, we next address it.

Plaintiff's Wrongful Death Cause of Action not Barred by Judicial Estoppel

In their fourth point, Defendants contend that Plaintiff's wrongful death claim is barred under the doctrine of judicial estoppel.[13]

" Judicial estoppel applies to prevent litigants from taking a position in one judicial proceeding, thereby obtaining benefits from that position in that instance and later, in a second proceeding, taking a contrary position in order to obtain benefits from such a contrary position at that time. While judicial estoppel cannot be reduced to a precise formula, the United States Supreme Court has indicated that whether judicial estoppel applies requires the consideration of three factors: First, a party's later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position. . . . A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped."

Strable v. Union P. R.R. Co ., 396 S.W.3d 417, 421 (Mo.App. 2013) (quoting Vinson v. Vinson , 243 S.W.3d 418, 422 (Mo.App. 2007)).

Defendants base their argument on a workers' compensation stipulation for compromise settlement agreement executed on August 24, 2010 (" settlement agreement" ). An administrative law judge approved the settlement agreement, which was entered into by Plaintiff, on behalf of James, as his dependent; James' employer, Colonial Freight (" Colonial" ); and Colonial Freight's insurer, Liberty Mutual Insurance Company (" Liberty" ). Under the settlement agreement, " it [was] agreed by the parties to enter into a compromise lump sum settlement" where Colonial and Liberty paid Plaintiff $10,543.40 based upon a 17.5% disability of James' right knee as a result of the April 4, 2007 tractor-trailer collision with Black. Defendants contend that Plaintiff's wrongful death cause of action is " contradictory" to this settlement agreement.[14]

We are not persuaded by Defendants' argument. The settlement agreement does not indicate that the collision between James and Black resulted " only" in injury to James' right knee, as Defendants contend.

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Neither does the settlement agreement reflect that Plaintiff took the position that James' death did not result from the collision. Indeed, under the terms of the settlement agreement, the parties agreed to compromise because " there are dispute(s) between the parties to accident; injury; medical causation; wage and compensation rate; nature and extent of disability; responsibility for medical, past, present and future; statute of limitations; notice; and disfigurement." In short, the settlement agreement is not " clearly inconsistent" with Plaintiff's wrongful death claim against Defendants, and Defendants do not provide us with any case law to suggest otherwise.[15] One of Defendants' strained arguments is that Plaintiff is not allowed to recover for both injury to decedent and wrongful death of decedent, which, in the abstract, is correct. Point denied.


Our grant of Defendants' first point requires the case to be remanded for a new trial as to both the issue of Defendants' liability and Plaintiff's damages. " [I]n a comparative fault case, the issues of fault and damages are blended and interwoven, and it would be a rare case in which a jury would not consider the effect of its determination of percentages of fault in terms of the damages to be eventually awarded to the plaintiff." Secrist v. Treadstone, LLC , 356 S.W.3d 276, 285 (Mo.App. 2011) (quoting Talley v. Swift Transp. Co ., 320 S.W.3d 752, 756 (Mo.App. 2010)) (internal quotations omitted).

The judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

GARY W. LYNCH, J. - Opinion author

JEFFREY W. BATES, P.J. - concurs

DON E. BURRELL, J. - concurs

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