Where There Has Been No Genuine Opportunity to Conduct Relevant Discovery, a Motion for Summary Judgment is PrematureOctober 8, 2020 | Martha Charepoo and Malika Baker
The Missouri Court of Appeals recently held that a trial court abused its discretion when it granted summary judgment to the defendants before the plaintiff deposed a witness whose testimony could not be secured by affidavit. The appeals court in Traweek v. Smith disagreed with a trial court’s dismissal of the plaintiff’s amended petition only two weeks after leave had been granted to add a claim for reformation, and before the plaintiff could present evidence to oppose the defendants’ motion for summary judgment. Having complied with Rule 74.04(f)’s requirement of presenting an affidavit specifying the discovery that was needed and why it was needed, the appeals court held that two weeks was not enough time for the plaintiff to conduct the discovery specified in the affidavit and reversed the trial court’s decision.
Traweek involved an automobile accident in which the plaintiff was injured while riding in a vehicle driven by someone else. The plaintiff spent two months in a coma and suffered severe head trauma, loss of memory, and loss of cognitive skills. The plaintiff entered an out-of-court policy limits settlement with the fault driver then filed suit against the driver and owner of the other vehicle involved in the accident. In exchange for a policy limits payment, the plaintiff executed a release prepared by the fault driver’s insurer.
The defendants moved for summary judgment on the basis of the release which contained language releasing the fault driver, its insurer, “and all other persons, firms or corporations liable, or who might be claimed to be liable.” The defendants argued that the plaintiff’s claims against them were barred because she had already released them from any claims arising out of the accident. In opposition, the plaintiff invoked Rule 74.04(f) and argued that summary judgment would be premature because she had just been granted leave to amend the petition to add a claim for reformation of the release. The plaintiff presented evidence that she did not intend to release the defendants and that the fault driver’s insurance adjuster had admitted to her lawyer that the insurer intended to release only the fault driver. On this basis, the plaintiff argued that there was a mutual mistake that warranted reformation of the release to reflect the parties’ true intent. However, because the adjuster was unwilling to sign an affidavit attesting to that, the plaintiff contended that she needed to take his deposition to elicit this information.
The appeals court acknowledged that a trial court generally has discretion to either permit or deny additional time to conduct discovery before ruling on a pending summary judgment motion, but ruled that granting summary judgment only two weeks after allowing the plaintiff to add a claim for reformation of the settlement agreement was an abuse of discretion because the plaintiff had met Rule 74.04(f)’s requirement.
For a trial court to consider a request under Rule 74.04(f), the party requesting time to conduct discovery must present an affidavit specifying the additional evidence sought and explain how it will support the existence of a factual dispute. In Traweek, the plaintiff’s lawyer filed an affidavit detailing his contacts with the insurance adjuster and the adjuster’s unwillingness to cooperate to correct the release. The affidavit also stated that the plaintiff intended to depose the adjuster to elicit this information and how it pertained to the plaintiff’s argument that there was a mutual mistake in the release. Also, the appeals court noted there was evidence in the record that the plaintiff did not intend to release the defendants from liability by entering a settlement with the fault driver. Taken together, the adjuster’s testimony and the evidence already in the record would create a genuine dispute of fact on the existence of mutual mistake which would justify reformation of the release. Accordingly, the appeals court found that the trial court acted hastily in entering summary judgment, and the case was remanded to the trial court to allow the plaintiff enough time to depose the adjuster.
While questions remain under Missouri law as to whether and under what circumstances the presumption of “logo liability” for motor carriers applies, and is rebuttable, the Missouri Court of Appeals recently affirmed that the doctrine only applies when there is evidence that the motor carrier operates as a carrier-lessee.
The plaintiffs in Hearns v. ABF Freight System, Inc., were involved in a motor vehicle accident with a tractor trailer displaying the ABF signage. The tractor-trailer failed to stop following the accident and left the scene. The driver of the truck was never identified.
At trial, the plaintiffs moved for a directed verdict under the logo liability doctrine. They contended that the only evidence in the case proved the accident truck displayed ABF signage. ABF contested the motion by arguing logo liability was inapplicable because it did not use leased drivers—all of its drivers are employees. ABF contended the traditional agency and vicarious liability principles applied. The Court treated plaintiffs’ motion as one for summary judgment and denied the motion.
The issue returned during the instruction conference when plaintiffs tendered instructions based on logo liability. The Court rejected the instructions and found that there was no evidence in the case that a carrier-lessee relationship existed. The Court instructed the jury that in order to find for the plaintiffs, it must first find that the driver was acting in the course and scope of his employment with ABF. The jury returned a defense verdict.
The Missouri Supreme Court identified the elements for logo liability under Missouri law as requiring: (1) that a sign or identifying legend was furnished by the carrier in connection with a lease; (2) that the sign was on the truck at the time of the accident; and (3) the truck was hauling regulated freight at the time of the accident. Johnson v. Pac. Intermountain Express Co., 662 S.W.2d 237, 245 (Mo. banc. 1983).
At issue in Hearns is the first element. The trial court, in rejecting plaintiffs’ proposed jury instruction on logo liability, determined that there was no evidence supporting that the unidentified driver was a leased driver. In fact, the only evidence demonstrated that all of ABF’s drivers were employees.
The plaintiffs argued the jury should have been instructed on logo liability. The Court of Appeals noted the application of logo liability would have shifted the burden of proof. Under logo liability, it would be ABF’s burden to prove that unidentified driver was on a personal mission not connected to hauling regulated freight. However, under vicarious liability, plaintiffs bear the burden of proving the unidentified driver was acting in the course and scope of his employment with ABF. The Court of Appeals found the record was completely devoid of any evidence that ABF ever operated as carrier-lessee.
Plaintiffs asserted logo liability is not limited to carrier-lessee situation and applies in any situation when a commercial vehicle is displaying a motor carrier’s placard. The Court of Appeals rejected this argument. It noted plaintiffs’ failure to cite any Missouri case in which logo liability had been applied in cases where a lease was not at issue. It refused to extend the doctrine to cases where there was no evidence that the motor carrier operated using leased drivers. It r-iterated the first element of logo liability, as directed by the Missouri Supreme Court, required the plaintiffs to prove the placards were provided in connection with a lease.
The Court also discounted plaintiffs’ public policy arguments that applying logo liability only in carrier-lessee situations runs counter to the reasons the doctrine was created. Plaintiffs asserted the doctrine was designed to address motor carriers attempting to avoid liability by hiring independent contractors to haul freight. The Court held:
Without question, the public policy supporting the creation of the logo-liability doctrine stemmed from a concern over a very specific issue that had arisen—and not to supplant the general rules of vicarious liability as developed under common law.
In affirming the defense verdict, the Court of Appeals confirmed that the mere presence of a motor carrier’s placard on a vehicle alone is insufficient to invoke logo liability. Plaintiffs must satisfy all of the required elements of logo-liability including that the placard was furnished in connection with a lease. Without evidence demonstrating the motor carrier utilized some leased drivers, plaintiffs cannot rely on logo liability.
While questions remain whether the presumption created by logo liability is truly rebuttable, and if so, what evidence is sufficient to rebut the presumption, motor carriers now have excellent case law barring the application of the doctrine when the only evidence is that the motor carrier’s placard was on the accident truck. The Court of Appeals affirmed that the doctrine applies only if there is evidence that the motor carrier operated as a carrier-lessee.
In the recent decision of State Ex rel. Woodco, Inc. v. Phillips, the Missouri Supreme Court upheld the long-standing principle that joinder of all tortfeasors in a single suit is not required under Missouri’s compulsory joinder rule. On a writ of prohibition, the Supreme Court considered the application of Missouri’s compulsory joinder rule, Mo. R. Civ. P. 52.04, in a construction defect case arising from the construction of a senior living facility. In the underlying case, the general contractor sued all but one of the subcontractors for breach of contract and negligence. The circuit court allowed the other subcontractors to add the subcontractor that had not been sued by the plaintiff. But the Supreme Court ruled that Rule 52.04 did not require the addition of unnamed subcontractor, and prohibited the circuit court from allowing the defendants to join as a defendant the subcontractor that had not been sued by the plaintiff.
The lawsuit came about as a result of a settlement reached between the project’s general contractor and owner after discovering defects in the construction of the project. Pursuant to the settlement agreement, the project owner assigned its claims against the subcontractors to the general contractor. Subsequently, the general contractor filed suit against the project’s architect, structural engineer, construction company, supplier, and framer, asserting breach of contract and tort claims, but did not include the masonry company. The architect, structural engineer, and construction company moved to join the masonry company as a defendant, arguing that its joinder was required under Rule 52.04, which the trial court allowed.
The general contractor sought a writ of prohibition to direct the trial court to remove the masonry company from the action, which the Court of Appeals denied. The case proceeded to the Supreme Court, where the general contractor argued that Rule 52.04 did not require that the masonry company be added as a party defendant to the lawsuit. This time, the general contractor’s writ was granted, and the Supreme Court directed the trial court to remove the masonry company as a defendant.
Missouri’s compulsory joinder rule, found in Rule 52.04, requires joinder of a party in either of two situations: when complete relief for parties to the action cannot otherwise be obtained, or when either the absent party’s interest would be prejudiced or when the parties before the court would be subject to inconsistent obligations due to the absent party’s claimed interest. The subcontractor defendants argued that the masonry company’s joinder was required under Rule 52.04 because complete relief for the other parties was not possible in its absence, and there would be a risk of inconsistent obligations to the existing parties without the masonry company. The Supreme Court disagreed.
The Supreme Court found that joinder of the masonry company was not required under either scenario set forth in Rule 52.04. First, the masonry company was not a party to any of the contracts upon which the general contractor was suing the other defendants. Thus, although the contractual disputes at issue might concern work performed by the masonry company, the masonry company would not be affected by the outcome and the breach of contract claims could be fully resolved among the existing defendants.
* Hannah Chanin, Summer Law Clerk in the St. Louis office of Baker Sterchi, assisted in the research and drafting of this post. Chanin is a rising 3L student at the Washington University St. Louis School of Law.
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