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Nast v. Gateway Ambulance Service, LLC

Court of Appeals of Missouri, Eastern District, First Division

July 26, 2016

JEAN-ROBERT NAST by and through his guardian JAN FREEMAN, Plaintiff/Respondent,
v.
GATEWAY AMBULANCE SERVICE, LLC, et al., Defendants/Respondents. CERTAIN UNDERWRITERS AT LLOYD'S LONDON, Proposed Intervenor/Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable Michael F. Stelzer

          ROY L. RICHTER, Judge

         Certain Underwriters at Lloyd's, London, Beazley Underwriting, Ltd. ("Appellant") appeals from the trial court's denial of Appellant's oral motion to intervene and the trial court's denial of Appellant's Renewed Motion to Intervene and Motion to Set Aside Judgment and Motion for New Trial. We affirm in part and dismiss in part.

         I. BACKGROUND

         This appeal arises from a personal injury lawsuit filed by plaintiff Jean-Robert Nast ("Respondent") based on injuries he sustained when he was transported on July 1, 2011, by a private and licensed ambulance service, defendant PROCARENT d/b/a Gateway Ambulance Service, LLC, ("Gateway"), from St. Louis University Hospital to his residence in the City of St. Louis. Respondent's Petition, filed April 24, 2014, asserted claims of negligence, medical negligence and res ipsa loquitur against Gateway and its two Emergency Medical Technicians, as well as Petre Construction, which was retained to install a lift and patio at Respondent's residence.[1] Gateway was insured by Appellant with a $1 million limit of liability.

         Gateway entered into an agreement with Respondent, paying $100, 000 to Respondent and making certain agreements as to its further conduct in the litigation, including the assignment of its bad faith claims against Appellant. A bench trial on damages then took place on June 8, 2015. Prior to the commencement of the bench trial, Appellant made an oral motion to intervene and for a continuance, which request was orally denied. On June 9, 2015, an Order and Final Judgment was entered by the trial court awarding Respondent $24, 131, 336 in damages and prejudgment interest in the amount of $784, 268.

         On June 9, 2015, Respondent filed an equitable garnishment and bad faith refusal to settle claim against Appellant, and on July 20, 2015, Appellant filed an answer and affirmative defenses, claiming Gateway breached its contractual duty to cooperate and duty to act in good faith by entering into the Section 537.065 agreement, and otherwise failed to comply with the terms of the policy, and that Appellant does not have to pay any portion of the judgment.

         Appellant filed two notices of appeal in this case. First, on June 18, 2015, Appellant filed a Notice of Appeal from the trial court's oral denial of Appellant's oral motion to intervene on June 8, 2015. On July 7, 2015, Appellant filed a Renewed Motion to Intervene, Motion to Set Aside the Judgment and Motion for New Trial with the trial court. The trial court denied this Renewed Motion on August 27, 2015, stating it no longer had jurisdiction over the Renewed Motion under Rule 75.01.

         Appellant filed a second Notice of Appeal on September 8, 2015, seeking review of the trial court's August 27, 2015 Order denying the Renewed Motion and of the trial court's substantive June 9, 2015 Judgment. Respondent filed a Motion to Dismiss Appellant's second appeal based on a lack of jurisdiction. Appellant filed a Motion to Consolidate the appeals, which this Court granted on October 7, 2015. Respondent's Motion to Dismiss for lack of jurisdiction was taken with the appeal.

         II. DISCUSSION

         Appellant alleges five points on appeal. Its first and second points allege the trial court erred in denying its renewed motion to intervene, first because the motion was timely filed and the court continued to have jurisdiction to consider the merits of the motion; and second, because Appellant has an interest in the subject matter of the action, disposition of the action in Appellant's absence may impede its ability to protect that interest, and Appellant's interest is not adequately represented by the existing parties. Appellant's fifth point additionally argues the trial court erred in denying its renewed motion to intervene as of right because the denial deprived Appellant of its right to its due process protected by Article I, Section 10 of the Missouri Constitution and the Fourteenth Amendment of the U.S. Constitution.

         In its third point, Appellant contends the trial court erred in denying Appellant's oral motion to intervene because Appellant has an interest in the subject matter of the action, disposition of the action in Appellant's absence may impede its ability to protect that interest, and Appellant's interest is not adequately represented by the existing parties, in that Appellant accepted coverage and provided an unconditional defense regarding Nast's claim, Appellant had always defended its insured and the Insured had accepted that defense, and under the Section 537.065 agreement, the Insured had agreed not to contest liability and damages in the uncontested trial of Nast's claim, thereby improperly preventing Appellant from exercising its right to defend the claim against its insured, and resulting in a judgment of more than $24 million.

         In its fourth point, Appellant alleges the trial court erred in denying its intervention and approving the Section 537.065 agreement as a basis for doing so, because the agreement improperly denied Appellant its contractual right to defend the claim against the Insured, in that Appellant provided the Insured an unqualified defense of the claim against the Insured, and an insured cannot enter into a Section 537.065 agreement that includes an agreement not to defend unless an insurer has forfeited its right to control the defense and settlement of the litigation, and Appellant never forfeited its right to control the defense of the claim against the Insured.

         We first take up Appellant's challenge to the denial of its first oral motion to intervene in Point III. On the morning of June 8, 2015, counsel appeared at a hearing and made an oral motion to intervene, which was denied. On June 9, 2015, the trial court entered a final judgment on the merits ...


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