Sherman v. Kaplan
2017 Mo. App. LEXIS 158
Mo. Ct. App.2017Background
- Patient sued Doctor, Doctor’s wife (assistant), Doctor’s practice, and hospital after complications from an abdominoplasty; original petition included negligence and medical-malpractice claims.
- Trial court dismissed malpractice claims against Doctor and Doctor’s practice for failure to file a required healthcare affidavit; only a negligence claim against Doctor’s Wife remained. Hospital was dismissed with prejudice.
- Insurer (Doctor’s liability carrier) initially defended Doctor but later denied coverage for Doctor’s Wife and for alleged MMPA claims, prompting Doctor and Doctor’s Wife to retain independent counsel.
- Parties executed a § 537.065 settlement: Patient dismissed claims against Doctor’s Wife; Doctor consented to a medical-malpractice amended petition, waived the affidavit, and agreed to a consent judgment against him for up to the $500,000 policy limit; the court entered judgment on September 28, 2015.
- Sixty-seven days later Insurer moved to intervene and, as an intervenor, filed a Rule 74.06(b) motion to set aside the September 28 judgment as void; the trial court granted intervention and set aside the judgment. Patient appealed.
Issues
| Issue | Plaintiff's Argument (Patient) | Defendant's Argument (Insurer) | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction to review trial court’s grant of Insurer’s Rule 74.06(b) motion | Trial court lacked jurisdiction to permit intervention because the September 28 judgment was final, so appellate jurisdiction is improper | Order permitting intervention is interlocutory; no final appealable order | Court has jurisdiction: a ruling on Rule 74.06(b) is appealable and challenges to intervention can be reviewed on appeal from that final Rule 74.06(b) decision |
| Whether Insurer timely and properly intervened as of right under Rule 52.12(a) | Intervention was untimely because it was filed after the 30-day Rule 75.01 window and the judgment was final | Post-judgment intervention can be permitted in some circumstances; Insurer asserted interest as potential indemnitor | Intervention reversed: motion untimely, trial court divested of jurisdiction after 30 days, and insurer’s indemnity interest is not a direct, immediate interest supporting intervention as of right |
| Whether insurer’s Rule 74.06(b) motion could be adjudicated | If Insurer lacked right to intervene, it was not a party and could not bring a Rule 74.06(b) motion | Insurer argued the judgment was void for reasons including failure to join an indispensable party (the insurer) | Court held Insurer was not a party entitled to bring Rule 74.06(b); trial court lacked authority to set aside the judgment; original judgment reinstated |
| Whether insurer’s alleging coverage/indemnity liability gives direct interest to intervene | Patient: insurer’s potential indemnity liability does not give direct interest to intervene | Insurer: potential liability and interest in the policy funds justify intervention | Court held insurer’s potential indemnity liability is insufficient for intervention as of right; insurer must seek relief via declaratory action or garnishment |
Key Cases Cited
- Bate v. Greenwich Ins. Co., 464 S.W.3d 515 (Mo. banc 2015) (ruling that a trial court’s decision on a Rule 74.06(b) motion is appealable)
- Allen v. Bryers, 512 S.W.3d 17 (Mo. banc 2016) (Rule 52.12(a) intervention as of right requires timely motion and direct, immediate interest; Rule 74.06(b) relief is limited to parties)
- State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d 397 (Mo. banc 2016) (proper appellate review of intervention rulings is from final judgment)
- Spicer v. Donald N. Spicer Revocable Living Trust, 336 S.W.3d 466 (Mo. banc 2011) (trial court loses jurisdiction over judgment after Rule 75.01 period absent timely after-trial motion)
- Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302 (Mo. banc 1991) (post-judgment intervention discussed where motion was filed within Rule 75.01 period)
- Meyer v. Meyer, 842 S.W.2d 184 (Mo. App. E.D. 1992) (permissive post-judgment intervention considered under a substantial-justice/prejudice framework)
- Whitehead v. Lakeside Hosp. Ass’n, 844 S.W.2d 475 (Mo. App. W.D. 1992) (insurer’s liability as indemnitor does not create direct interest to intervene in third-party action)