Opinion
No. WD66348
May 9, 2007
Appeal from Circuit Court of Saline County, Hon. Dennis A. Rolf.
Matthew J. Padberg and Anna E. Spink, Counsel for Appellant.
J. Christopher Spangler, Counsel for Respondent.
REVERSED AND REMANDED. Hardwick, J., concurs. Smart, P.J., dissents in separate opinion.
Opinion
Nicole R. Kesterson and her husband, Philip M. Kesterson, appeal from an order of the Circuit Court of Saline County, dismissing their claims against the respondents, State Farm Mutual Automobile Insurance Company and State Farm Fire Casualty Company (collectively referred to herein as "State Farm"), as being barred by the doctrine of res judicata or the rule against the splitting of a cause of action. Mrs. Kesterson was seeking payment of uninsured motor vehicle (UM) benefits, under a policy of insurance with State Farm, for personal injuries she sustained in a motor vehicle accident allegedly caused, in part, by the negligence of a phantom driver. Mr. Kesterson was seeking payment from State Farm for a loss of consortium resulting from Mrs. Kesterson's personal injuries. In concluding that the appellants' claims were barred by res judicata or the rule against the splitting of a cause of action, the trial court found, inter alia, that the appellants' UM claims were part and parcel of the claims that they had previously brought unsuccessfully against State Farm for payment of UM benefits as to the same personal injuries Mrs. Kesterson sustained in the same accident, except with respect to Gary Wallut being the driver, rather than a phantom driver. At the time of the accident, Mrs. Kesterson was a passenger in a vehicle owned by her employer, the Missouri Department of Natural Resources, which was being driven by Wallut, her supervisor. Based on the decision of this court in Kesterson v. Wallut , 116 S.W.3d 590 (Mo.App. 2003) ( Kesterson I ), holding that the appellants could not maintain their claims against Wallut based on a theory of common-law negligence, due to the exclusivity of the Worker's Compensation Law which governed, this court held in Kesterson v. Wallut , 157 S.W.3d 675 (Mo.App. 2004) ( Kesterson II ) that they could not maintain their UM claims against State Farm based on the underlying negligence of Wallut in that he was not legally liable in tort to them for their damages, a requisite proof element of their UM claims.
The appellants raise one point on appeal. They claim that the trial court erred in dismissing their UM claims against State Farm in this case as being barred by the doctrine of res judicata or the rule against the splitting of a single claim or cause of action, because their claims in this case, based on the underlying negligence of a phantom driver, were separate and distinct from their UM claims against State Farm in Kesterson II , based on the underlying negligence of Wallut, on which they were previously unsuccessful.
We reverse and remand.
Factual and Procedural History
The appellants' claims arose out of a motor vehicle accident which occurred on December 30, 1998, in which Mrs. Kesterson was injured while riding as a passenger in a vehicle owned by her employer, the Missouri Department of Natural Resources, and driven by Wallut, her immediate supervisor. The appellants filed their second amended, six-count petition on August 13, 2001, in the circuit court, seeking damages for Mrs. Kesterson's personal injuries and Mr. Kesterson's loss of consortium. In Count I, Mrs. Kesterson sought recovery against Wallut on a theory of negligence. In Counts III and V, she sought recovery against the respondents under her uninsured motorist provisions of her State Farm policies, alleging in Count III that she was injured by the negligence of Wallut, who was uninsured, and alleging in Count V that she was injured by the negligence of a phantom driver, which under her insurance contracts, was a type of uninsured motorist. In Counts II, IV, and VI, Mr. Kesterson asserted loss of consortium claims predicated on Mrs. Kesterson's claims as pled in Counts I, III, and V, respectively.
On September 4, 2001, State Farm filed a counterclaim against the appellants, in which it sought a declaration of the trial court that the UM policy issued to Mrs. Kesterson did not provide coverage for the December 30, 1998, accident, because the vehicle Wallut was operating was not an uninsured motor vehicle in that it was covered by the State Legal Expense Fund, which would satisfy any judgment obtained against Wallut by Mrs. Kesterson. On February 22, 2002, State Farm filed a motion for summary judgment on its declaratory judgment action against the appellants, which alleged that it was entitled, as a matter of law, to a declaratory judgment that the UM provisions contained in Mrs. Kesterson's insurance policy with State Farm did not cover the December 30, 1998, accident because the vehicle Wallut was operating was not an uninsured vehicle. On June 24, 2002, Wallut filed a motion to dismiss Counts I and II of the appellants' second amended petition, claiming that the trial court was without subject matter jurisdiction because the appellants' exclusive remedy was under the Workers' Compensation Law. On July 8, 2002, the appellants filed a third amended petition, which was essentially the same as the second amended petition.
On August 3, 2002, the trial court granted Wallut's motion to dismiss Counts I and II of the appellants' third amended petition for lack of subject matter jurisdiction and granted State Farm's motion for summary judgment on Counts III and IV. The court's summary judgment did not rule on Counts V and VI against State Farm in which the appellants alleged that a phantom driver caused the appellants' injuries. The appellants appealed both the trial court's dismissal of Counts I and II and its grant of summary judgment on Counts III and IV to this court. In Kesterson I , this court affirmed the dismissal of Counts I and II, but dismissed the appellants' appeal from the grant of summary judgment on Counts III and IV for a lack of appellate jurisdiction because the trial court's judgment was not a final and appealable judgment since it did not rule on Counts V and VI. Consequently, on March 3, 2004, the appellants filed a motion to dismiss without prejudice Counts V and VI, which the trial court granted on March 9, 2004. The appellants once again appealed the trial court's grant of summary judgment as to Counts III and IV. In Kesterson II , this court affirmed the summary judgment in favor of State Farm on Counts III and IV. 157 S.W.3d at 686.
On April 20, 2005, the appellants filed a two-count petition in the circuit court, seeking damages for Mrs. Kesterson's personal injuries and Mr. Kesterson's loss of consortium. In Count I, Mrs. Kesterson sought recovery against State Farm under her UM coverage with State Farm, alleging that she was injured by the negligence of a phantom driver. In Count II, Mr. Kesterson asserted a loss of consortium claim predicated on Mrs. Kesterson's personal injuries, as pled in Count I. On May 12, 2005, State Farm filed a motion to dismiss the petition based on the doctrine of res judicata, alleging that the appellants had impermissibly split their cause of action. In that regard, State Farm asserted that their claims were part and parcel of their UM claims in Kesterson II . On September 27, 2005, the trial court took up and heard State Farm's motion, which was sustained on December 8, 2005.
This appeal follows.
Standard of Review
At first blush, it would appear that our review in this case would be to determine if the trial court erred in dismissing appellants' petition in that the appellants are appealing from the court's "Judgment of Dismissal with Prejudice" entered on December 8, 2005, "sustain[ing] [State Farm's] Motion to Dismiss on the basis of res judicata/improper splitting of a cause of action" and ordering that the appellants' petition be "dismissed with prejudice." However, State Farm contends in its brief that in accordance with Rule 55.27(a), the trial court treated its motion for dismissal as one for summary judgment in that, in sustaining its motion, it took judicial notice, at the request of State Farm, of its file in Kesterston II , entitled" Nicole R. Kesterson, et ux. v. Gary R. Wallut, et al., Case No. CV400-001," such that our review should be to determine whether the court erred in granting State Farm summary judgment on the appellants' UM claims against it. We agree.
All rule references are to Missouri Rules of Civil Procedure, 2006, unless otherwise indicated.
The doctrine of res judicata is an affirmative defense. Rule 55.08. The doctrine encompasses the rule against the splitting of a single claim or cause of action. Chesterfield Vill., Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). An affirmative defense must be set forth in the defendant's answer to the plaintiff's petition or it is waived. Damon Pursell Constr. Co. v. Mo. Highway Transp. Comm'n , 192 S.W.3d 461, 475 (Mo.App. 2006). Here, State Farm did not file an answer to the appellants' petition. However, it is well settled that although not expressly stated in Rule 55.27(a)(6), the defense of res judicata is "in essence [a] defense[ ] alleging the plaintiff has failed to state a claim upon which relief may be granted," King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints , 821 S.W.2d 495, 498 (Mo. banc 1991); see also Hollida v. Hollida, 190 S.W.3d 550, 554 (Mo.App. 2006); Deatherage v. Cleghorn , 115 S.W.3d 447, 455 (Mo.App. 2003), such that, pursuant to Rule 55.27(a), it does not have to be raised in the defendant's answer, but can be raised by motion. Hence, State Farm was permitted to raise the defense of res judicata /improper splitting of a cause of action in its motion to dismiss filed on March 3, 2004, essentially alleging that the appellants had failed to state a cause of action upon which relief could be granted.
With respect to a motion to dismiss for failure to state a claim upon which relief can be granted, as provided in Rule 55.27(a):
[If] matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.
Here, as we noted, supra, at the request of State Farm, the trial court, in sustaining State Farm's motion to dismiss, took judicial notice of its file in Case No. CV400-001 ( Kesterson I and II ), which was outside the pleadings in the case. Accordingly, the trial court essentially treated State Farm's motion as one for summary judgment. Rule 55.27; see also Deatherage, 115 S.W.3d at 455; Lomax v. Sewell, 50 S.W.3d 804, 808 (Mo.App. 2001); WEA Crestwood Plaza, L.L.C. v. Flamers Charburgers, Inc. , 24 S.W.3d 1, 5 (Mo.App. 2000); Shores v. Express Lending Servs., Inc. , 998 S.W.2d 122, 125-26 (Mo.App. 1999) . This it could not do, however, unless in accordance with the rule, it first notified the parties that it was going to do so and gave them an opportunity to present all relevant materials pertinent to a summary judgment motion. Rule 55.27; Lomax , 50 S.W.3d at 808; Shores , 998 S.W.2d at 126
The record reflects that no notice was ever given to the parties by the trial court that it intended to treat State Farm's motion to dismiss as a motion for summary judgment in accordance with Rule 55.27(a) . However, this was not fatal to the trial court's treating State Farm's motion as a motion for summary judgment in that "the relevant material from the underlying case was before the trial court, an evidentiary hearing was held, and the parties have not suggested any other documents were necessary to decide the question." WEA Crestwood Plaza, L.L.C. , 24 S.W.3d at 5; see also King Gen. Contractors, Inc., 821 S.W.2d at 499-500; Shores , 998 S.W.2d at 126. Hence, our review will be to determine whether the trial court erred in entering summary judgment for State Farm on the appellants' UM claims on the basis that they were barred by the affirmative defense of res judicata such that their petition failed to state a claim upon which relief could be granted.
In reviewing a summary judgment, we review de novo . ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.
Id. (citation omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact; and (2) the movant is entitled to judgment as a matter of law. Id. at 380.
When considering appeals from summary judgments, the [c]ourt will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.
Id. at 376 (citations omitted).
I.
In their sole point on appeal, the appellants claim that the trial court erred in dismissing their UM claims against State Farm in this case as being barred by the doctrine of res judicata or the rule against the splitting of a single claim or cause of action, because their claims in this case, based on the underlying negligence of a phantom driver, were separate and distinct from their UM claims against State Farm in Kesterson II , based on the underlying negligence of Wallut, on which they were previously unsuccessful. We agree.
Pursuant to Rule 74.04, to be entitled to summary judgment, the movant must show that: (1) there is no genuine dispute as to the material facts on which he is relying for summary judgment; and (2) based on those undisputed facts, he is entitled to judgment as a matter of law. Rule 74.04; ITT Commercial Fin. Corp. , 854 S.W.2d at 380; Childress Painting Assocs., Inc. v. John Q. Hammons Hotels Two, L.P. , 106 S.W.3d 558, 561 (Mo.App. 2003). "A movant's right to judgment as a matter of law differs significantly depending upon whether that movant is a 'claimant' or a 'defending party.'" Mo. Employers Mut. Ins. Co. v. Nichols , 149 S.W.3d 617, 623 (Mo.App. 2004). If the movant is a defending party, as in this case:
[A] prima facie case for summary judgment can be established by employing one or more of three means: (1) showing undisputed facts that negate any one of the plaintiff's required proof elements; (2) showing that the plaintiff, after an adequate period of discovery, has not produced and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of one or more of the plaintiff's proof elements; or (3) showing that there is no genuine dispute as to the existence of the facts necessary to prove the movant's properly pleaded affirmative defense. "Regardless of which of these three means is employed by the 'defending party,' each establishes a right to judgment as a matter of law."
Childress Painting Assocs., Inc. , 106 S.W.3d at 561 (citations omitted). In this case, State Farm employed the third means, alleging facts in their motion, which they contend established, as a matter of law, the affirmative defense of res judicata or improper splitting of a single cause of action, barring the appellants' claims. There is no dispute as to the underlying material facts on which the trial court relied in granting State Farm summary judgment on the appellants' claims. The only question is a question of law — whether on those facts, State Farm established, as a matter of law, that the appellants' claims were barred under the doctrine of res judicata, specifically the rule against splitting a single cause of action.
" Res judicata "is a Latin phrase meaning "a thing adjudicated." Black's Law Dictionary 1336 (8th ed. 2004). The common law doctrine of res judicata, or as referred to in modern parlance, claim preclusion, "precludes relitigation of a claim formerly made." Chesterfield Vill., Inc. , 64 S.W.3d at 318. The purpose of the doctrine is to prevent a multiplicity of lawsuits. Deatherage , 115 S.W.3d at 454; Collins v. Burg , 996 S.W.2d 512, 515 (Mo.App. 1999) . The doctrine of res judicata applies to both losers and prevailing parties in an earlier judgment and "precludes not only those issues on which the court in the former case was required to pronounce judgment, 'but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.'" Chesterfield Vill., Inc. , 64 S.W.3d at 318 (citation omitted).Thus, the doctrine of res judicata not only prohibits the relitigation of a claim formerly made, but the splitting of a cause of action. Id; Shores , 998 S.W.2d at 128. Generally, a single cause of action may not be split, and filed or tried piecemeal. Collins , 996 S.W.2d at 515 . As in the case of res judicata, the "purpose of the general rule against the splitting of claims is to discourage a multiplicity of lawsuits." McCrary v. Truman Med. Ctr., Inc. , 943 S.W.2d 695, 697 (Mo.App. 1997). "Claims that could have been raised by a prevailing party in the first action are merged into, and are thus barred by, the first judgment." Chesterfield Vill., Inc. , 64 S.W.3d at 318.
In determining what constitutes a single claim or cause of action for purposes of the doctrine of res judicata or the rule against splitting a single claim or cause of action, "there is no hard and fast rule . . . rather, it depends on the facts and circumstances of the particular case." Collins , 996 S.W.2d at 515. In general, the test for determining whether a claim or cause of action is single and cannot be split is: "1) whether separate actions brought arise out of the same act, contract or transaction; 2) or whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions." Deatherage , 115 S.W.3d at 455; see also Collins, 996 S.W.2d at 515. This is sometimes referred to as the test of Grue v. Hensley [, 210 S.W.2d 7, 10 (Mo. 1948) ]. Collins , 996 S.W.2d at 516. With respect to the Grue v. Hensley test:
A claim is [t]he aggregate of operative facts giving rise to a right enforceable by a court. The definition of a cause of action is nearly the same: a group of operative facts giving rise to one or more bases for suing. Whether referring to the traditional phrase "cause of action" or the modern terms "claim" and "claim for relief" used in pleading rules such as Rule 55.05, the definition centers on "facts" that form or could form the basis of the previous adjudication.
Chesterfield Vill., Inc. , 64 S.W.3d at 318 (internal quotation marks omitted). A "transaction," for purposes of the bar of res judicata or the rule against splitting a single cause of action, is "defined as the aggregate of all the facts and circumstances which constitute the foundation for a claim or counterclaim." Collins , 996 S.W.2d at 515; see also Chesterfield Vill., Inc., 64 S.W.3d at 319; Deatherage , 115 S.W.3d at 456. "'[A]ssertion of alternate theories of recovery for the same wrong does not constitute an action presenting more than one claim for relief.'" Creel v. Union Elec. Co. Inc. , 950 S.W.2d 315, 317 (Mo.App. 1997) (citation omitted). "Claims are not considered separate unless separate recovery is possible on each claim." Id.
The rule against splitting a single claim or cause of action does not apply "where the parties are different, or where the claims arise from different acts or circumstances, or where evidence needed to sustain the actions is different." McCrary , 943 S.W.2d at 697 (citations omitted). And, despite the broad definitions given to a "claim" or "transaction" for purposes of the bar of res judicata or the rule against splitting a single cause of action:
Missouri case law in this area leaves no doubt that separate and distinct causes of action can sometimes arise from the same act, transaction or contract. In such instances a plaintiff may bring separate causes of action separately, even if they arise out of the same transaction, and doing so does not violate the rule against splitting a cause of action. This is true even where joinder of the two separate causes in one lawsuit would be permissible, subject of course to the power of the court to order consolidation. For the same reason, it is equally clear that a later lawsuit does not necessarily and always violate the rule against splitting a single cause of action even when it meets the first prong of the Grue v. Hensley [, 210 S.W.2d 7, 10 (Mo. 1948)] test, if at the same time it fails to meet the second prong of [that] test (that the parties, subject matter and evidence necessary to sustain the claim are the same in both actions).
Collins , 996 S.W.2d at 516 (internal citations omitted).
In its motion to dismiss, which was treated as a motion for summary judgment by the trial court, State Farm alleged that the appellants' UM claims against it were barred by the doctrine of res judicata or the rule against splitting a single cause of action in that the appellants' claims in this case were part and parcel of their previous claims in Kesterson II , Counts III and IV of their third amended petition filed on July 8, 2002, which were ruled against them in Kesterson II , or in other words, the appellants were attempting to split their claims and raise them piecemeal in two separate cases. In their UM claims in Kesterson II , as in their present claims, the appellants were seeking payment from State Farm of UM benefits for the personal injuries Mrs. Kesterson sustained in the accident of December 30, 1998, and Mr. Kesterson's resulting loss of consortium. However, their claims in Kesterson II were based on the underlying negligence of Wallut, while the present claims are based on the underlying negligence of a phantom driver. Nonetheless, State Farm contends that the appellants were attempting to impermissibly split their UM claims between Kesterson II and this case in that in both instances they were seeking payments under the same policy of insurance for the same accident and personal injuries.
Section 379.203 mandates uninsured motorist coverage if: "(1) the insured is legally entitled to recover damages in tort from the owner or operator of the vehicle for causing bodily injury, sickness or disease, including death; and (2) the vehicle, at the time of the accident, was uninsured by a liability policy of insurance." Stotts v. Progressive Classic Ins. Co. , 118 S.W.3d 655, 664 (Mo.App. 2003). To prevail on a cause of action based on uninsured motorist coverage, "the insured does not need an unsatisfied judgment against the uninsured motorist[.]" Kesterson , 157 S.W.3d at 685.
All statutory references are to RSMo, 2000, unless otherwise indicated.
Here, there is no dispute that at the time of the accident, the appellants were insured by a policy of insurance issued by State Farm, which provided UM coverage. In that regard, the policy provided:
UNINSURED MOTOR VEHICLE — COVERAGE U
We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle . The bodily injury must be sustained by an insured and caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle .
Uninsured Motor Vehicle — means:
a land motor vehicle, the ownership, maintenance or use of which is:
a. not insured or bonded for bodily injury liability at the time of the accident; or
b. insured or bonded for bodily injury liability at the time of the accident; but the limits of liability are less than required by the financial responsibility act of the state where your car is mainly garaged; or the insuring company denies coverage or is or becomes insolvent; or a "phantom vehicle" which is a land motor vehicle whose owner or driver remains unknown and causes bodily injury to the insured
In their third amended petition in Kesterson II , the appellants sought in Counts III and IV payment of UM benefits under this policy, which State Farm refused to pay. "It is well settled that '[t]he right of [an] injured party to recover from an uninsured motorist carrier arises from the insurance contract rather than in tort.'" Gaunt v. State Farm Mut. Auto. Ins. Co. , 24 S.W.3d 130, 136 (Mo.App. 2000) (citation omitted). Thus, given the controlling law and the policy language, to succeed on their claims, the appellants had to show that: (1) at the time of the accident of December 30, 1998, the policy of insurance in question was in full force and effect; (2) at the time, they were insureds under the policy; (3) the accident arose out of the operation of an uninsured motor vehicle; (4) they were damaged due to the bodily injuries sustained by Mrs. Kesterson in the accident; and (5) they were legally entitled to collect their damages from the driver of the uninsured motor vehicle, or stated another way, the driver of the uninsured motor vehicle was legally liable to them for their damages. While the right of an injured party to recover uninsured motor vehicle benefits arises from the insurance contract, such cases combine both tort and contract liability. Stotts , 118 S.W.3d at 664. In that regard, the fifth proof element, that the driver of the uninsured motor vehicle was legally liable to the appellants for their damages, speaks in tort. Id.
To establish the third and fifth elements of their UM claims in Kesterson II , the appellants alleged, inter alia, in Counts III and IV of their third amended petition, that the accident arose out of Wallut's operation of his employer's vehicle, in which Mrs. Kesterson was a passenger and which was uninsured, and that he was legally liable to them for their damages based on his negligent operation of that vehicle. In Kesterson II , this court held that the appellants could not succeed on their UM claims against State Farm because, as a matter of law, Wallut was not legally liable to them in damages due to the exclusivity provision of the Workers' Compensation Law, as decided in Kesterson I . 157 S.W.3d at 686. In other words, the court essentially held that the appellants could not establish the fifth element of their required proof for recovery, the tort element.
In this case, to prove the third and fifth elements of their claims, the appellants alleged that the accident in which Mrs. Kesterson was injured was caused in part by the operation of an uninsured motor vehicle driven by a phantom driver and that the phantom driver was legally liable to them for their damages based on his negligent operation of his vehicle. In other words, while the appellants' claims in Kesterson II were based on the underlying negligence of Wallut in operating his employer's vehicle, in the present case, their claims are based on the underlying negligence of a phantom driver operating a second, or hit-and-run, vehicle. Hence, while the appellants' UM claims in Kesterson II and their UM claims in this case involve the same accident and the same personal injuries to Mrs. Kesterson, they allegedly involve different UM vehicles and underlying tortfeasors. The question is whether these distinctions in the allegations of the appellants' UM claims against State Farm in this case rendered them separate and distinct from their allegations of their UM claims in Kesterson II
Given the requisite proof elements of a claim for the payment of UM benefits, discussed supra, there were two separate and distinct sets of operative facts that would have formed the basis for the appellants' sought-after recovery of UM benefits under the State Farm policy with respect to the accident of December 30, 1998: (1) the underlying negligence of Wallut as the driver of his employer's vehicle; or (2) the underlying negligence of the phantom as the driver of the hit-and-run vehicle. Stated another way, there were two separate and distinct sets of operative facts that formed the bases for the appellants' allegations for recovering against State Farm for UM benefits under the policy. In other words, the subject matter and evidence necessary to sustain the appellants' allegations of recovery in Kesterson II for UM benefits were not the same as those necessary to sustain their allegations of recovery in this lawsuit. Hence, each alleged independent act of negligence by the joint tortfeasors, Wallut and the phantom driver, assuming proof of the other requisite elements of their UM claims, would have triggered payment of UM benefits under the State Farm policy in question such that State Farm's failure to pay with respect to the negligence of either driver would have constituted a violation of the policy, each of which would constitute a separate cause of action on the policy. See Schuchmann v. Air Servs. Heating Air Conditioning, Inc., 199 S.W.3d 228, 237 (Mo.App. 2006) (stating that: "[W]hile a contract is still in existence, each time the defendant fails to perform in accordance with its provisions is a separate violation of its terms and gives rise to a new cause of action."). Thus, the appellants' UM claims in Kesterson II and in this case are separate claims such that the failure of the appellants to raise in Kesterson II their claims in this case did not work to bar them under the doctrine of res judicata or the rule prohibiting the splitting of a single cause of action.
Further support for treating the appellants' UM claims in Kesterson II and in this case as separate claims can be found in the fact that considering collectively the appellants' claims against State Farm in both cases, the appellants were essentially asserting in their separate petitions that Wallut and the phantom driver were joint tortfeasors in causing the accident in question. A joint tortfeasor is a tortfeasor whose independent, separate wrongful act coupled with the wrongful act of one or more other persons causes a single, indivisible harm. Costello v. City of Ellisville , 921 S.W.2d 134, 137 (Mo.App. 1996) ( overruled on other grounds by Davis v. Lambert-St. Louis Int'l. Airport, 193 S.W.3d 760 (Mo. banc 2006). In the case of joint tortfeasors, a plaintiff has the option of suing each tortfeasor separately or suing them in one action. Arana v. Koerner , 735 S.W.2d 729, 734 (Mo.App. 1987) ( overruled on other grounds by Klemme v. Best , 941 S.W.2d 493 (Mo. banc 1997)). "The defendant cannot compel the plaintiff to make the others parties to the action, or complain because they have not been joined[.]" Id. (citation omitted). Thus, while a plaintiff is entitled to only one satisfaction of judgment, Gaunt , 24 S.W.3d at 135, he may, at his option, seek recovery from the joint tortfeasors in the same action or he may sue one tortfeasor, and assuming he does not fully recover, he may bring a subsequent action against the other tortfeasor. And, this would not violate the rule against splitting a cause of action because the rule "presupposes a claim and action by a single plaintiff against a single defendant . When two defendants are potentially liable for the same loss, the claims are considered separate and two suits can be maintained against the differing parties." Hollida , 190 S.W.3d at 556 (internal quotation marks and citations omitted). As discussed, supra, the appellants' claims against State Farm for recovery under the UM coverage of their policy were based on the separate acts of negligence of joint tortfeasors. Inasmuch as tort claims against joint tortfeasors are considered separate claims even though they involve the same injuries and the same accident or transaction, it would be illogical to treat contract claims, based on the separate wrongful acts of those same joint tortfeasors, as a single claim.
In ruling as we do, we are mindful that in Kesterson I , this court held that the appellants' UM claims against State Farm in Counts V and VI, based on the underlying negligence of the phantom driver, simply alleged a different theory of recovery of their UM claims in Counts III and IV, based on the negligence of Wallut. 116 S.W.3d at 598. In other words, we held that the UM claims alleged in Counts III and V constituted a single claim of Mrs. Kesterson seeking UM benefits from State Farm for her personal injuries, the former being based on the negligence of Wallut and the latter being based on the negligence of the phantom driver, and that the claims alleged in Counts IV and VI constituted a single claim of Mr. Kesterson seeking UM benefits from State Farm for loss of consortium, the former being based on the negligence of Wallut and the latter being based on the negligence of the phantom driver. This would at first blush support State Farm's position on appeal as the "law of the case." Further examination proves otherwise.
Normally, "a decision of an appellate court becomes the 'law of the case' and is controlling in all subsequent proceedings, trial and appellate, as to all matters decided by the appellate court in the first appeal." Sumnicht, III, ex rel. Sumnicht, II v. Sackman , 968 S.W.2d 171, 178 (Mo.App. 1998). However, an exception to this rule exists where it is determined that in the first instance, the appellate court made a mistake. Id. In that regard, given our analysis, supra, it is clear to us that this court, in Kesterson I , was mistaken in its holding that the appellants' UM claims in Counts V and VI were the same UM claims being raised in Counts III and IV, only based on a different theory of recovery. As such, in deciding this appeal, we are not bound by our decision in Kesterson I under the guise of law of the case. Id.
In light of the foregoing analysis, and giving the allegations of the appellants' petition in this case their broadest intendment, treating the facts alleged as true, and construing them favorably to the appellants, we find that they invoke substantive principles of law which would entitle them to the relief they request. See Farm Bureau Town Country Ins. Co. of Mo. v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995) (holding that in determining whether a petition states a claim upon which relief can be granted, the appellate court is to determine whether the averments of the petition invoke substantive principles of law which entitle the plaintiff to relief, giving the pleadings their broadest intendment, treating as true all the facts alleged, and construing the allegations favorably to the plaintiff). In other words, we see nothing in the pleadings in this case, Kesterson II , or the summary judgment record that would establish that the appellants were attempting to re-litigate in this case the same UM claims that they unsuccessfully brought in Kesterson II . As such, the trial court erred in granting summary judgment to State Farm on the appellants' UM claims in this case based on the doctrine of res judicata or the rule against splitting of a single claim or cause of action.
Conclusion
The trial court's summary judgment for State Farm on the appellants' UM claims against it, based on the doctrine of res judicata or the rule against splitting a single claim or cause of action, is reversed and the cause remanded to the court for further proceedings in accordance with this opinion.
Separate Opinion:
I believe the majority errs in concluding that one claim for damages under an uninsured motorist provision can be divided into multiple claims based on the number of perceived or asserted negligent uninsured motorists.
While a claim for damages caused by an uninsured motorist is for practical purposes a tort claim (in that the fault of an uninsured motorist must be established in the same way as in a tort claim), the liability of the UM carrier ultimately rests upon its contractual obligation to the insured arising out of the transaction or occurrence in question. Certainly, separate UM claims can arise out of separate vehicular collisions. When there is only one transaction or occurrence giving rise to a claim under one contractual provision, policy and common sense suggests that it should be treated as one cause of action that cannot be subdivided. The rule against splitting a cause of action serves to "prevent a multiplicity of suits and appeals with respect to a single cause of action, and is designed to protect defendants against fragmented litigation, which is vexatious and costly." Bagsby v. Gehres, 139 S.W.3d 611, 615 (Mo.App. 2004).
We have reached a similar conclusion in other contexts. For instance, with regard to the area of respondeat superior liability, if a hypothetical construction crew had negligently discharged an explosive device causing damage to an adjoining property owner, each allegedly negligent individual member of the crew could be sued as an individual. But while there could be as many separate suits as there are allegedly negligent individual defendant employees, the corporate defendant could not be subjected to multiple suits for vicarious liability arising out of the same transaction or occurrence. There is only one cause of action for respondeat superior liability in such a case. See Welch v. Contreras, 174 S.W.3d 53 (Mo.App. 2005).
There are sound policy reasons for this rule. In Welch, the plaintiff sued a mortgage company and certain of its employees in Kansas. The claims against the company were based on respondeat superior . Id . at 55. The plaintiff also filed a suit in Missouri against the same mortgage company and an employee who was not a party to the Kansas suit. Id . at 56. The court held that the plaintiff had split her cause of action as to the mortgage company. The court thus ruled that the company was entitled to judgment as a matter of law in Missouri, though the action in Missouri against the employee was allowed to proceed. Id . at 57.
Similarly, regardless of how many uninsured joint tortfeasors may have participated in causing the collision, it is sound policy to require that all UM claims arising out of the one transaction or occurrence under the one contractual provision be included in the same litigation. We did not get it wrong in Kesterson I when we viewed the UM claims as actually a single claim. 116 S.W.3d at 598. For these reasons I dissent.