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Peterson v. Discover Prop. & Cas. Ins. Co.

Court of Appeals of Missouri, Western District, Third Division

January 13, 2015


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Appeal from the Circuit Court of Buchanan County, Missouri. The Honorable Randall R. Jackson, Judge.

Edwin H. Smith, St. Joseph, MO, for appellants-respondents.

Thomas H. Davis, Kansas City, MO, for respondent-appellant.

Before Division Three: Karen King Mitchell, Presiding Judge, Alok Ahuja, Chief Judge and Gary D. Witt, Judge. All concur.


Gary D. Witt, Judge

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After a one-car automobile accident on a bridge, two plaintiffs sought damages for wrongful death and personal injuries against, inter alia, the Missouri Highway and Transportation Commission (" MHTC" ) and one of its contractors, Progressive Contractors, Inc. (" PCI" ). As part of bridge repairs, PCI had cut a hole into which the automobile traveled. Appellant/Cross-Respondent Discover Property and Casualty Insurance Company (" Discover" ) is PCI's insurer and, through an endorsement in the commercial general liability policy, is MHTC's putative insurer.

This appeal and cross-appeal derive from an agreement pursuant to Section 537.065[1] settling claims of wrongful death and personal injury regarding one of multiple defendants and a consent judgment entered thereon. An equitable garnishment action and related summary judgment proceedings based on the settlement agreement and consent judgment frame the issues before us.

Appellant/Cross-Respondent Discover claims error (1) in the trial court's reading of the language of the insurance policy that gave rise to the Section 537.065 settlement, (2) in the application of Section 537.065, and (3) as to the assessment of post-judgment interest. We affirm the trial court's rulings as to the first two claims raised by Discover and reverse as to Discover's claim related to post-judgment interest. Respondents/Cross-Appellants Janet Winslow Peterson (" Janet" )[2] and Linda Lambright (" Linda" ) claim error (1) in two points regarding the trial court's ruling as to the adequacy of one of Discover's affirmative defenses, and (2) in a third point as to the trial court's reduction of the damage amounts in the settlement agreement. We reverse the trial court's ruling as to the adequacy of the affirmative defense, which renders moot Janet and Linda's third claim of error.


Janet and Linda are the original two plaintiffs in an underlying civil action that has generated an extensive procedural history. Following a serious automobile accident, Janet sued three defendants for personal injury. Linda, together with Janet, brought suit for the wrongful death of their mother, who died as a result of the

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injuries she sustained in the accident against the same defendants.

The accident giving rise to the injury and death occurred on a bridge over which the MHTC had possession or control. PCI was under contract with MHTC to perform certain construction work on the bridge. PCI sub-contracted with Highway Technologies, Inc. (" HTI" ) for traffic control services regarding that construction. As explained more fully below, MHTC, PCI, and HTI were all three defendants in the underlying action. In this second appeal, the parties consist only of the original plaintiffs (Janet and Linda) and the putative insurer of MHTC, Discover.

Underlying Facts

On September 23, 2007, Tiffany Peterson (" Tiffany" ) was driving a car that was involved in a single-car accident. The accident occurred at approximately 9 p.m. on eastbound U.S. Highway 36 on a bridge over the Missouri River in between Elwood, Kansas and St. Joseph, Missouri. Though no workers were present on the bridge at the time of the accident, PCI was in the process of replacing the expansion joints on the bridge, pursuant to its contract with MHTC. As part of that work, PCI had cut a long rectangular hole in the bridge. HTI had put into place various traffic control devices to warn drivers of the construction zone and to divert traffic from the lane of travel where the hole was located.

Notwithstanding the traffic control devices, Tiffany believed she could permissibly access an exit from U.S. Highway 36 to I-229 Highway. Tiffany drove between traffic channelizers (devices used to delineate the traffic path through a work zone) into the right lane of travel toward the exit ramp. Before reaching the ramp, Tiffany's car dropped into the hole on the bridge where PCI had removed an expansion joint.

There were two passengers in her car at that time. Tiffany's mother, Janet, was seated in the back seat behind Tiffany. Janet's mother (Tiffany's grandmother), Virginia Winslow (" Virginia" ), was seated in the front passenger seat. Janet and Virginia sustained injuries in the accident. Virginia suffered from her injuries for several months until her death on February 24, 2008.

Underlying Action

Janet and Linda filed a six-count petition for Janet's personal injuries and for the wrongful death of their mother, Virginia, against MHTC, PCI, and HTI. Janet and Linda asserted that the defendants failed to exercise ordinary care to ensure that the work zone through which Tiffany traveled was in a reasonably safe condition for motorized traffic. As to MHTC, Janet and Linda premised their suit in part on the " dangerous condition" exception to sovereign immunity found in Section 537.600.1(2).

Additionally, Janet and Linda alleged the following general allegation as to all defendants:

On the knowledge and belief of Plaintiffs, the hole was cut in the bridge by employees and/or agents of the MHTC/MoDOT and PCI as part of the construction project pursuant to the general contract between MHTC and PCI. Defendants are vicariously liable for the wrongful acts and negligent conduct of their employees and/or agents, done within the course and scope of their employment and/or agency, as alleged, infra .

Count I of the First Amended Petition contained the wrongful death allegation against MHTC, and Count IV contained the negligence claim for personal injury to

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Janet against MHTC. The remaining counts contained allegations against PCI and HTI ...

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