Court of Appeals of Missouri, Southern District, Second Division
RHONDA PARROTT, as Surviving Spouse of JAMES KELSO PARROTT, Deceased, and Individually, Plaintiff-Respondent,
SEVERS TRUCKING, LLC, and BRANDON G. BLACK, Defendants-Appellants
APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY. Honorable Timothy W. Perigo, Circuit Judge.
REVERSED AND REMANDED.
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.
GARY W. LYNCH, J.
REVERSED AND REMANDED
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" ). 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
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. 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, 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 (" ...