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McCarter v. Davis

United States District Court, E.D. Missouri, Eastern Division

July 28, 2014



THOMAS C. MUMMERT, III, Magistrate Judge.

This is an action filed by Katherine Jane McCarter (McCarter) seeking contribution from John Edward Davis (Davis) for monies McCarter paid in settlement of claims against her by Daniel and Tara Rozum.[1] Davis moves for summary judgment.


The relevant facts are not in dispute.

In June 2010, John Edward Davis (Davis) was driving a Toyota 4Runner and pulling a trailer in a westbound lane of Interstate 70 in Missouri. (Def.'s Stat. of Uncontroverted Facts ¶ 1-2.[2]) Davis lost control of his vehicle. (Id. ¶ 3.) The 4Runner and trailer went into the median between the east and westbound lanes and came to a stop, the 4Runner resting on its passenger side and the trailer resting on its top. (Davis Dep. at 20[3]; ECF No. 36-1.) McCarter, driving a Ford Escort, was behind Davis' vehicle, saw Davis lose control, and pulled her car to the left shoulder of the Interstate to see if Davis was okay. (Def.'s Stat. ¶ 5-7; McCarter Dep. at 22, ECF No. 36-2.) The left tires of her car were on the grass of the median; the right side of her car was off the shoulder line. (Def.'s Stat ¶ 7; McCarter Dep. at 21.) Other vehicles pulled over behind McCarter's. (Id. at 20.) McCarter, and her two passengers, Roma Vora and Anthony Wright, got out of her car. (Def.'s Stat. ¶ 5; McCarter Dep. at 12, 19.) Wright went to assist Davis. (Def.'s Stat. ¶ 9.) McCarter and Vora stood in the grass to the left of McCarter's car. (McCarter Dep. at 19.) Vora called "911." (Def.'s Stat. ¶ 10.) McCarter stayed by her car; she did not go to Davis' vehicle. (Id. ¶ 11-12.)

Other westbound vehicles pulled over on the right side of the Interstate, including a tractor-trailer and, approximately fifty yards in front of it, a Ford Taurus driven by Daniel Rozum (Daniel). (D. Rozum Dep. at 13, 14, ECF No. 36-3; McCarter Dep. at 20, 37.) Daniel had not seen Davis' accident occur, but did see two people on the median heading to a vehicle parked on its side. (D. Rozum Dep. at 9-11.) His wife, Tara Rozum (Tara), was in the car; she also did not see the accident. (Def.'s Stat. ¶ 13; T. Rozum Dep. at 42-43, ECF No. 36-4.) Daniel parked his car as far off the shoulder as he could and not be in the adjacent ravine. (D. Rozum Dep. at 16; T. Rozum Dep. at 22.)

As McCarter stood by her car and Vora was calling "911, " McCarter heard the driver of the tractor-trailer yell at her to move her car to the right shoulder. (Id. ¶ 19; McCarter Dep. at 21-22, 61-62.) McCarter then got back into her car, put on her seatbelt, checked for oncoming traffic, and started to drive across the two westbound lanes. (Def.'s Stat. ¶ 21; McCarter Dep. at 22, 24-25, 62.)

Back on the right side of the Interstate, Tara got out of the car and, "keeping as far away from the highway as [she] could stay, " walked back east on the gravel side of the shoulder to speak with the man standing by the tractor trailer about whether "911" had been called. (T. Rozum Dep. at 23, 43.) She left her cell phone in her car, intending to return to the car and call "911" if the driver of the tractor trailer said it had not been called. (Id. at 43.) If the call had been made, she would return to the car and she and Daniel would then have driven on. (Id.)

As Tara was walking toward the tractor-trailer, she heard a crash. (Id. at 23, 24, 25.) She looked up and saw a Ford Escort headed toward her. (Id.)

The Ford Escort was the one being driven by McCarter from the left side of the Interstate westbound lanes to the right. (Def.'s Stat. ¶ 20-21.) When at least a portion of the Ford Escort was in the right lane of the westbound traffic, it was struck by a truck pulling a horse trailer. (Bonn Dep. at 40, 50, 53, 58, ECF No. 36-5.) The truck was being driven by Matthew Bonn (Def.'s Stat. ¶ 21.)

The car, driven by McCarter, struck Tara after it was hit by Bonn's truck. (Def.'s Stat. ¶¶ 22, 24.) Tara sustained serious injuries. (Id. ¶ 26.)

Before hitting McCarter's car, Bonn did not know of Davis' accident. (Bonn Dep. at 69.)

Neither Daniel nor Tara Rozum intended to cross the Interstate to the median where Davis was. (D. Rozum Dep. at 28; T. Rozum Dep. 17, 43, 44.) They only stopped to see if "911" had been called. (D. Rozum Dep. at 28, 29-30; T. Rozum Dep. at 43.) It is undisputed that Daniel would not have stopped had he not seen Davis' overturned vehicle in the median. (D. Rozum Dep. at 27.) Asked if she would not have stopped had she not seen Davis' overturned vehicle, Tara was unable to answer, explaining that "it would have depended on what [she] saw." (T. Rozum Dep. at 45.)

Tara and Daniel Rozum filed suit against McCarter in the Circuit Court of Montgomery County, Missouri. See Rozum v. McCarter, 10AA-CC00040 (Mo. Cir. Ct Nov. 17, 2010). McCarter was the only named defendant. (Id.) She filed a third-party petition against Davis, Bonn, and Bonn's business, Airpark Equestrian Stables, LLC. (Def.'s Ex. C, ECF No. 33.) Davis moved for summary judgment, arguing that he was not liable for the Rozums' injuries. (Pl.'s Ex. 9, ECF No. 36-9.) The motion was granted as to Bonn's crossclaim and denied as to McCarter's claims for damages and contribution. (Pl.'s Ex. 6, ECF No. 36-6.) McCarter then dismissed her claims against Davis without ...

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