CASES (2022)

DILLARD V. SMITH

United States District Court for the Northern District of Georgia, Atlanta Division

May 9, 2022, Decided; May 9, 2022, Filed

Case No. 1:19-cv-821-MLB

Reporter

2022 U.S. Dist. LEXIS 83706 *; 2022 WL 1452748

Nessia Dillard, Plaintiff, v. Leroy Smith, Jr., and Marten Transport, Ltd., Defendants.

Core Terms

punitive damages, brakes, summary judgment, driving, truck, crashed, pull, material fact, intersection, undisputed, driver, movant, entrustment, negligent hiring, red light, supervision, retention, speed

Counsel: [*1] For Nessia Dillard, Plaintiff: Mitchell McGough, LEAD ATTORNEY, Mitchell E McGough, Atlanta, GA; Matthew Evan Cook, Nathan Riggs Nicholson, Cook Law Group, LLC, Gainesville, GA.

For Leroy Smith, Jr., Defendant: Richard C. Foster, LEAD ATTORNEY, Swift, Currie, McGhee & Hiers, LLP, Atlanta, GA; Jeffrey William Melcher, Stites & Harbison, PLLC, Atlanta, GA.

For Marten Transport, Ltd., Defendant: Zachary Musholt Matthews, McMickle, Kurey, & Branch, LLP, Alpharetta, GA.

For HA Select Medical Receivables Litigation Finance Fund, LLC, HA Select Medical Receivables Litigation Finance Fund International SP, Griffin Capital Management, LLC, HedgeACT Select, LLC, Movants: Hayes Michael Dever, Friedman Dever & Merlin, Atlanta, GA.

Judges: MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE.

Opinion by: MICHAEL L. BROWN

Opinion

OPINION AND ORDER

This case arises from a motor vehicle collision. Defendant Leroy Smith, Jr. crashed into Plaintiff Nessia Dillard while he was driving a truck for Defendant Marten Transport, Ltd. Plaintiff sued both Defendants for negligently causing the accident. Defendants now move for partial summary judgment. (Dkts. 86; 87.) The Court grants Defendant Smith’s motion in full and grants Defendant Marten’s motion [*2] in part.

I. Background

Defendant Smith was a truck driver for Defendant Marten. One night, while he was out on a job, he “had to stand on [his] brakes with more force than normal” to stop at a red light. (Dkt. 86-2 at 61.) He had never had any problems with his brakes before. (Id. at 62.) There was little space for him to pull over on the side of the road. (Id. at 70.) And he was “right up the road” from his destination. (Id. at 61-62.) So he decided to drive on and check his brakes when “got to [his] drop.” (Id.)

He did not make it far before he reached another red light—and, this time, he could not stop in time. He was going about 55 miles per hour (which was at or below the speed limit) when the light turned yellow. (Id. at 30-31.) He immediately applied his brakes and “should have been able to stop before the red light . . . . if everything was working normal.” (Id. at 30, 37-38.) But the pedal brake was “stiff,” the engine brake did not work at all, and he “wasn’t slowing down much.” (Id. at 34-35.) He “wasn’t exactly sure if [he] was going to stop” so he turned on his emergency blinkers and “look[ed] for people that may be entering the intersection.” (Id. at 36, 38.) He ultimately [*3] went through the red light and crashed into Plaintiff’s vehicle despite “mak[ing] a left-hand steer to try to avoid the collision.” (Id. at 36, 38, 40.)

Plaintiff sued both Defendants for causing the accident. (See Dkt. 47.) She asserts a claim for negligent driving against Defendant Smith, an identical claim against Defendant Marten under the doctrine of respondeat superior, and a claim for negligent hiring, retention, supervision, and entrustment against Defendant Marten. She seeks punitive damages for all three claims. Both Defendants move for summary judgment on Plaintiff’s request for punitive damages. Defendant Marten also moves for summary judgment on Plaintiff’s claim for negligent hiring, retention, supervision, and entrustment.

II. Standard of Review

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing a court, by reference to materials in the record, that there is no genuine dispute as to any material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). The nonmoving party then has the burden of showing that summary judgment is [*4] improper by coming forward with “specific facts” showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Ultimately, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Salinero v. Johnson & Johnson, 995 F.3d 959, 964 (11th Cir. 2021).

III. Discussion

A. Punitive Damages for Defendant Smith’s Negligent Driving

The parties agree Defendant Smith negligently crashed into Plaintiff. But they dispute whether Plaintiff is entitled to punitive damages for that negligence. Plaintiff says she is because Defendant Smith drove “a loaded tractor-trailer with known brake problems at speeds at or above 50 mph through a red traffic light.” (Dkts. 90 at 1; 91 at 1.) Defendants say punitive damages are unwarranted because, although “Mr. Smith’s actions were negligent,” they do not meet the “very high bar for punitive damages” as a matter of law. (Dkt. 86-1 at 17, 19; see Dkt. 87-1 at 1-2.) The Court agrees with Defendants.

“Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious [*5] indifference to consequences.” O.C.G.A. § 51-12-5.1(b). Plaintiff’s briefing focuses on the last clause, which requires an “entire want of care” suggesting “conscious indifference to consequences.” (See Dkts. 90 at 13-16; 91 at 9-13.) “Courts analyzing this standard have highlighted how stringent it is, noting that, where a defendant has exhibited at least some degree of care[,] there cannot be an entire want of care necessary to support a jury award for punitive damages.” Karr v. Celadon Trucking Servs., Inc., 2017 U.S. Dist. LEXIS 224326, 2017 WL 11084520, at *6 (N.D. Ga. Nov. 3, 2017). “Negligence alone, even gross negligence, is insufficient.” MDC Blackshear, LLC v. Littell, 273 Ga. 169, 537 S.E.2d 356, 361 (Ga. 2000). “There must be circumstances of aggravation or outrage.” W. Indus., Inc. v. Poole, 280 Ga. App. 378, 634 S.E.2d 118, 120 (Ga. Ct. App. 2006). And those circumstances must suggest “an intentional disregard of the rights of another, knowingly or wilfully.” COMCAST Corp. v. Warren, 286 Ga. App. 835, 650 S.E.2d 307, 311 (Ga. Ct. App. 2007).

Whether a defendant’s conduct is sufficiently aggravating to warrant punitive damages is generally a jury question. Weller v. Blake, 315 Ga. App. 214, 726 S.E.2d 698, 703 (Ga. App. 2012). But “summary judgment is appropriate if the . . . record does not suggest that a plaintiff could carry his burden of proof by showing clear and convincing evidence that the defendant acted with the requisite intent.” Dickerson v. Am. Nat. Prop. & Cas. Co., 2009 U.S. Dist. LEXIS 33145, 2009 WL 1035131, at *9 (M.D. Ga. Apr. 16, 2009); see, e.g., Taylor v. Powertel, Inc., 250 Ga. App. 356, 551 S.E.2d 765, 769 (Ga. Ct. App. 2001) (“[P]laintiff failed to come forward with some evidence that would indicate that at trial he could meet the intermediate standard of proof by clear and convincing [*6] evidence, creating a jury issue, because defendant, in support of its motion, demonstrated the complete absence of evidence of such culpability in the record.”)

This is such a case. On the undisputed facts presented here, no reasonable jury could find by clear and convincing evidence that Defendant Smith engaged in culpable conduct so as to justify an award of punitive damages. He would not have crashed into Plaintiff if his brakes were working properly. And he had no reason to believe his brakes were even an issue until “the intersection right before” he crashed. (Dkt. 86-2 at 61.) That means he drove only a short distance with any knowledge of the mechanical problem that caused the crash. And, the mechanical problem did not suggest he would be unable to stop the truck as needed to operate it safely, but rather that he would simply have to work harder to do so. These undisputed facts reduce his culpability for Plaintiff’s injuries and preclude punitive damages. Cf. J.B. Hunt Transp., Inc. v. Bentley, 207 Ga. App. 250, 427 S.E.2d 499, 503 (Ga. Ct. App. 1992) (punitive damages permissible where, “notwithstanding either a serious mechanical problem or serious physical problem or both, [the driver] continued on the highway for at least 10 or 20 miles”).

Plaintiff contends the brake [*7] incident at the first light provided Defendant Smith knowledge of a “critical equipment failure” that he then intentionally disregarded. (Dkt. 91 at 11.) That is not an accurate statement of the undisputed facts. When the issue arose at the first light, Defendant Smith managed to stop the truck with only “a little difficulty.” (Dkt. 86-2 at 60.) There was no equipment failure. All he had to do was apply the pedal brake with “more force than normal.” (Id. at 61.) That may not have worried him much since Defendant Marten had serviced his brakes just three weeks earlier. (Dkts. 86-3; 90-1 at 10; 91-1 at 4-5.) Indeed, Defendant Smith testified he thought it was safe to continue driving despite the issue with his brakes. (Dkt. 86-2 at 71-72.)

Moreover, Defendant Smith did not simply ignore or disregard the braking issue; he came up with a “plan” to resolve it. (Id. at 61.) It was dark outside, there was not enough space to pull over safely, he did not know how to check the brakes himself, and he was “right up the road” from his destination. (Id. at 28, 61-62, 70.) So, instead of pulling over and causing a potential obstruction for traffic behind him, he decided to drive on for a short distance [*8] and investigate the issue when he reached his destination. (Id. at 61-62.) Given everything Defendant Smith knew at the time, that decision may have been reasonable. But even if it was not—indeed, even if it was grossly unreasonable—it does not demonstrate an “entire want of care” suggesting “conscious indifference to consequences.” Not even close.

Our facts are far different from the situation in Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 359 S.E.2d 351 (Ga. Ct. App. 1987)—the case Plaintiff primarily relies upon to argue a jury must decide punitive damages here. In Glenn McClendon, the Georgia Court of Appeals upheld an award of punitive damages against a trucking company after the wheels of a truck separated from the truck and smashed into the plaintiff’s car. Id. at 353. The court held a jury could find wanton disregard from evidence the defendant made repairs to the truck knowing the repair method was unsafe and created a risk the wheels would eventually fall off, the company’s driver was notified while driving down the road that the truck’s wheels were smoking (a sign of impending failure), the driver ignored specific advice to stop, and the driver continued down the road until the wheels separated from the truck. Id. at 354. All of that is to say, the defendant in Glenn McLendon knowingly [*9] created a risk of equipment failure and then continued driving despite clear evidence the risk was materializing and third-party advice to pull over.

None of those things happened here. Defendant Smith did not recklessly cause the braking issue with his truck, he had no reason to suspect the issue before he got on the road, he had little reason to think the issue was critical when it first arose at the intersection before he crashed, and no one told him to pull over. There are also mitigating facts here that were not present in Glenn McLendon. Defendant Smith could not pull over because there was not enough space to do safely, he was a short distance away from his destination, he did not simply ignore the braking issue but formulated a plan to resolve it, and, even now, he does not think his driving was unsafe. All of this distinguishes our case from the blatant recklessness in Glenn McClendon.

Plaintiff counters that “running a red light in a tractor-trailer is itself preventable” and egregious. (Dkt. 90 at 15-16.) But “punitive damages are not recoverable in automobile collision cases when a driver simply violates a rule of the road.” Ferguson v. Garkusha, 2020 U.S. Dist. LEXIS 146632, 2020 WL 4732187, at *4 (N.D. Ga. Aug. 14, 2020). That includes cases, like this one, where the driver “ran a [*10] red light and caused the collision.” Cullen v. Novak, 201 Ga. App. 459, 411 S.E.2d 331, 332 (Ga. Ct. App. 1991). So Plaintiff’s red-light argument is a non-starter.

Plaintiff also criticizes Defendant Smith for driving 55 miles per hour after noticing his brakes were faulty. (Dkt. 90 at 15.) But, according to Plaintiff, 55 miles per hour was less than the speed limit. (Dkt. 86-2 at 31.) There were no “cars ahead of [him] stopped at the intersection or preparing to stop at the intersection.” (Id. at 33.) And he managed to stop at the prior intersection despite presumably travelling at similar speeds. Throw in all the mitigating circumstances described above and Defendant Smith’s speed, though probably ill-advised, was not “reprehensible” enough to warrant punitive damages. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827, 830 (Ga. 1988) (“Punitive damages are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.”).

Finally, Plaintiff points to Defendant Smith’s testimony that, if possible, he “should have pulled over and inspected [his] brakes” when they first started acting up at the intersection before the crash. (Dkt. 86-2 at 70; see Dkt. 91 at 11.) But Defendant Smith said this with the benefit of hindsight at a deposition more than three years after the accident. So [*11] it tells us little about the reasonableness of his decision in real time. Moreover, Defendant Smith was clear that, while he “should have pulled over . . . . [i]f that was possible,” doing so was not in fact possible because “[t]here wasn’t enough space for [him] to stop” at the side of the road. (Dkt. 86-2 at 70 (emphasis added).)¹

Given the undisputed facts, no reasonable jury could find that Defendant Smith deserves punitive damages for crashing into Plaintiff’s vehicle. His driving was no worse than negligent. Maybe grossly negligent. Neither is sufficient for punitive damages. So Defendants are entitled to summary judgment on Plaintiff’s claim for punitive damages arising from Defendant Smith’s negligent driving.²

B. Negligent Hiring, Retention, Supervision, and Entrustment (and Related Punitive Damages)

Plaintiff also asserts a claim against Defendant Marten for negligent hiring, retention, supervision, and entrustment (for which she seeks punitive damages). Her theory is that, given Defendant Smith’s driving record, “Defendant Marten Transport knew or should have known that [he] was neither competent to be entrusted with a commercial vehicle [*12] nor suited for employment as a commercial vehicle operator.” (Dkt. 47 at ¶ 34.) Defendant Marten moves for summary judgment on this claim (including Plaintiff’s related request for punitive damages) given “Smith’s clean driving record and Marten’s proper hiring protocols.” (Dkt. 86-1 at 19.) The Court denies Defendant Marten’s motion for failure to comply with Local Rule 56.1 and for failure to meet a movant’s initial burden on summary judgment.

A party seeking summary judgment “must point to specific portions of the record in order to demonstrate that the nonmoving party cannot meet its burden of proof.” United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Ctys. in State of Ala., 941 F.2d 1428, 1438 n.19 (11th Cir. 1991). To do this, the movant must file a statement of undisputed material facts with “[e]ach material fact . . . numbered separately and supported by a citation to evidence.” LR 56.1(B)(1), NDGa. “The Court will not consider any fact . . . not supported by a citation to evidence . . . [or] set out only in the brief.” Id. This rule is “not a mere technicality.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009). It “streamlines the resolution of summary judgment motions” and “protects judicial resources by making the parties organize the evidence rather than leaving the burden upon the district judge.” Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008).

Defendant Marten has filed a statement of undisputed material [*13] facts. (See Dkt. 86-8.) And it does include some allegations about “Smith’s clean driving record and Marten’s proper hiring protocols” (which is the basis for Defendant Marten’s motion). (See id. ¶¶ 16-22.) But none of these allegations include “citation[s] to evidence.” LR 56.1(B)(1), NDGa. And all of them are bundled together with other facts rather than “numbered separately.” Id. So “the Court will not consider” them. Id.; see Johnson v. Am. Fam. Ins., 2021 U.S. Dist. LEXIS 120870, 2021 WL 2588010, at *3 (N.D. Ga. Jan. 29, 2021) (“The Court has excluded . . . assertions of fact unsupported by a citation to admissible evidence in the record or set forth only in Defendants’ brief and not in the statement of facts.”).

That leaves Defendant Marten with no cognizable evidence against Plaintiff’s claim for negligent hiring, retention, supervision, and entrustment, or the related request for punitive damages. So the Court denies Defendant Marten’s motion for summary judgment on those claims. See Gomez v. Jackson, 2020 U.S. Dist. LEXIS 126827, 2020 WL 4048061, at *3 (N.D. Ga. July 20, 2020) (“[Movant] did submit a statement of undisputed material facts, but it includes no record citations in violation of Local Rule 56.1. That precludes summary judgment in his favor.”); Lumbermen’s Underwriting All. v. Blount Int’l, Inc., 2007 U.S. Dist. LEXIS 102300, 2007 WL 7603709, at *3 (N.D. Ga. Feb. 5, 2007) (“[Movant], because of its failure to comply with the Local Rules, has not met its initial responsibility of informing the Court of the portions [*14] of the record, which it believes demonstrates that no question of material fact exists. . . . Accordingly, the Court DENIES [Movant’s] Motion for Summary Judgment.”).³

IV. Conclusion

Defendant Smith’s Motion for Partial Summary Judgment (Dkt. 87) is GRANTED. Defendant Marten’s Motion for Partial Summary Judgment (Dkt. 86) is GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to Plaintiff’s claim for punitive damages arising from Defendant Smith’s negligent driving. It is otherwise DENIED. The Court ORDERS the parties to meet and confer in a serious, good faith effort to resolve this case within the next 30 days. At least some of these discussions must be in person. The parties have previously expressed an interest in mediation. If they want to pursue that option, they should notify the Court within the next 30 days.

SO ORDERED this 9th day of May, 2022.

/s/ Michael L. Brown

MICHAEL L. BROWN

UNITED STATES DISTRICT JUDGE

End of Document

¹Plaintiff has submitted two “Google images” purporting to show the dimensions of one part of State Route 316. (Dkts. 90-11; 90-12.) Plaintiff says these images “show[] that there was room for Defendant Smith to get his tractor-trailer off of the road prior to the collision.” (Dkt. 91 at 7 n.2.) No reasonable jury could agree. The images are unclear, we do not know how big Defendants’ truck was, and there is no cognizable evidence of where the collision occurred or whether/when Defendant Smith even passed the location displayed in the images. (See Dkt. 86-2 at 92-93 (Defendant Smith testifying he is “not exactly sure” where the collision occurred).) Plaintiff also points to Defendant Smith’s testimony that he “pull[ed] off to the side of the road” after the accident. (Dkt. 86-2 at 28; see Dkt. 90-1 at 23.) But that does not necessarily mean he got off the road entirely. And it says nothing about whether he could have done so before the accident. Plaintiff’s “conjecture . . . cannot overcome [Defendant Smith’s] contradictory direct evidence.” Rodriguez v. Farrell, 280 F.3d 1341, 1353 n.20 (11th Cir. 2002). So it does not “raise a genuine issue of fact.” Id. And, even if it did, it would not change the Court’s view that punitive damages are unwarranted as a matter of law.

²“In cases involving automobile collisions, punitive damages are authorized when the accident results from a pattern or policy of dangerous driving, such as excessive speeding or driving while intoxicated.” Mastec N. Am., Inc. v. Wilson, 325 Ga. App. 863, 755 S.E.2d 257, 260 (Ga. Ct. App. 2014) (emphasis added). Plaintiff does not pursue this theory in her briefing (certainly not clearly anyway) but, even if she had, it would fail as a matter of law given the record here.

³See also Bulluck v. Newtek Small Bus. Fin., Inc., 2018 U.S. Dist. LEXIS 221469, 2018 WL 5262553, at *1 (N.D. Ga. Aug. 24, 2018) (denying summary judgment motion because “the party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact, and [Movant] has failed to carry that burden through her non-compliance with the Local Civil Rules.”); USAA Gen. Indem. Co. v. Pendergrass, 22017 U.S. Dist. LEXIS 159128, 017 WL 3461315, at *7 (N.D. Ga. Feb. 27, 2017) (“USAA provided no evidence in its statement of facts concerning this notice argument. . . . Consequently, the Court denies USAA’s request for summary judgment on this ground.”).

YUNCKER V. DODDS LOGISTICS, LLC

Court of Appeals of Missouri, Western District, Division Four

May 17, 2022, Opinion Filed

WD84645

Reporter

2022 Mo. App. LEXIS 300 *; 2022 WL 1548013

THOMAS YUNCKER AND CHRISTOPHER GUTIERREZ, Respondents, v. DODDS LOGISTICS, LLC AND KEITH DODDS; Respondents, ZURICH AMERICAN INSURANCE COMPANY, Appellant.

Notice: NOT FINAL UNTIL EXPIRATION OF THE REHEARING PERIOD.

Prior History: [*1] Appeal from the Circuit Court of Jackson County, Missouri. Honorable Bryan Round, Judge.

Core Terms

motion to intervene, circuit court, trial court, post-judgment, intervene, window, parties, party to a suit, after-trial, insured, entry of judgment, confirming, aggrieved, residents, vacate, drive, flash, standing to appeal, arbitration award, non-party

Case Summary

Overview

HOLDINGS: [1]-The insurer had no standing to appeal the judgment because it was not a party to the suit when the judgment was entered and did not become a party to the suit when it filed a post-judgment motion to intervene. The post-judgment filing of the motion to intervene did not affect the judgment’s eligibility for appeal under Mo. Sup. Ct. R. 74.01(a) or its finality for purposes of appeal under Mo. Sup. Ct. R. 81.05(a) 30 days after the judgment’s entry.

Outcome

Appeal dismissed.

LexisNexis® Headnotes

Torts > … > Settlements > Multiple Party Settlements > Indemnity

HN1 Multiple Party Settlements, Indemnity

While Mo. Rev. Stat. § 537.065.1 does not explicitly require that insurers have the opportunity to defend a tortfeasor without reservation before a non-execution agreement is entered, Missouri courts have interpreted the statute as establishing this sequence of events.

Civil Procedure > Parties > Intervention > Intervention of Right

HN2 Intervention, Intervention of Right

Before a judgment may be entered against any tortfeasor after such tortfeasor has entered into a contract under this section, the insurer or insurers shall be provided with written notice of the execution of the contract and shall have thirty days after receipt of such notice to intervene as a matter of right in any pending lawsuit involving the claim for damages.

Civil Procedure > Parties > Intervention

Governments > Legislation > Statute of Limitations > Time Limitations

HN3 Parties, Intervention

A motion to intervene filed beyond the 30-day limitation of Mo. Rev. Stat. § 537.065.2 is untimely.

Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule

HN4 Appellate Jurisdiction, Final Judgment Rule

Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution is permitted to take an appeal from a final judgment in the case. Mo. Rev. Stat. § 512.020.

Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule

Civil Procedure > Appeals > Appellate Jurisdiction > State Court Review

HN5 Appellate Jurisdiction, Final Judgment Rule

An appeal lies from a judgment that resolves all issues as to all parties pending before the court when entered.

Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule

HN6 Appellate Jurisdiction, Final Judgment Rule

Pursuant to Mo. Sup. Ct. R. 74.01(a), judgments resolving all issues then pending in a case are sometimes referred to in Missouri jurisprudence as final judgments.

Civil Procedure > Judgments > Relief From Judgments > Altering & Amending Judgments

Civil Procedure > Appeals > Appellate Jurisdiction > Lower Court Jurisdiction

HN7 Relief From Judgments, Altering & Amending Judgments

Mo. Sup. Ct. R. 75.01,which states that a trial court retains control over judgments during the 30-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time. The purpose of Mo. Sup. Ct. R. 75.01 is to enable the trial court to rectify any errors in the judgment, and thus simplify or forestall any further litigation at the appellate level. Once a Rule 74.01(a)] judgment is entered, the 30-day time period under Rule 75.01 begins to run.

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Adverse Determinations

Civil Procedure > Parties > Intervention > Time Limitations

Civil Procedure > Parties > Intervention > Motions to Intervene

HN8 Reviewability of Lower Court Decisions, Adverse Determinations

When a motion to intervene is filed before the entry of a Mo. Sup. Ct. R. 74.01(a) judgment, the trial court’s interlocutory ruling on the motion is incorporated into a later-filed Mo. Sup. Ct. R. 74.01(a) judgment, such that resolution of the motion affords any person aggrieved by the ruling standing to appeal. Also, when a motion to intervene is filed before the entry of judgment, a trial court’s failure to rule on the motion disqualifies the judgment as a Rule 74.01(a) judgment, because no appeal will lie from a denominated judgment that fails to resolve all issues then pending before the court for determination.

Civil Procedure > Parties > Intervention > Motions to Intervene

Civil Procedure > Parties > Intervention > Time Limitations

HN9 Intervention, Motions to Intervene

Once a Mo. Sup. Ct. R. 74.01(a) judgment is entered, the judgment becomes final for purposes of appeal under Mo. Sup. Ct. R. 81.05(a) at the expiration of the 30-day window set forth in Mo. Sup. Ct. R. 75.01 unless the trial court takes action as authorized by Rule 75.01 to vacate or reopen the judgment, or unless an authorized after-trial motion is filed, extending the court’s jurisdiction beyond the 30-day window for the limited purpose of ruling on the authorized after-trial motion. Mo. Sup. Ct. R. 78.01 through 78.07. A motion to intervene filed after a Rule 74.01(a) judgment is entered, and thus after Rule 75.01 is triggered, is not an authorized after-trial motion, because such motions must be filed by parties to the underlying matter.

Civil Procedure > Parties > Intervention > Motions to Intervene

Civil Procedure > Parties > Intervention > Time Limitations

HN10 Intervention, Motions to Intervene

Motions filed by non-parties are not authorized after-trial motions that extend the circuit court’s jurisdiction pursuant to Mo. Sup. Ct. R. 81.05(a). A motion to intervene, therefore, is not an authorized after-trial motion.

Civil Procedure > Parties > Intervention > Motions to Intervene

Civil Procedure > Parties > Intervention > Time Limitations

Civil Procedure > … > Relief From Judgments > Grounds for Relief from Final Judgment, Order or Proceeding > Vacation of Judgments

HN11 Intervention, Motions to Intervene

Though a motion to intervene is not an authorized after-trial motion, it is nonetheless a motion that is allowed to be filed after a Mo. Sup. Ct. R. 74.01(a) judgment is entered. The mere filing of a post-judgment motion to intervene by a non-party, however, does not alter the judgment’s eligibility for appeal under Rule 74.01(a), or mean that the judgment will not automatically become final for purposes of appeal under Mo. Sup. Ct. R. 81.05(a) unless the trial court takes timely, authorized action to reopen or vacate the judgment. And, because a post-judgment motion to intervene is not an authorized after-trial motion, it must be ruled on, if at all, within the 30-day window contemplated by Mo. Sup. Ct. R. 75.01.

Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule

Civil Procedure > Parties > Intervention > Time Limitations

Civil Procedure > Parties > Intervention > Motions to Intervene

HN12 Appellate Jurisdiction, Final Judgment Rule

When a post-judgment motion to intervene is not ruled on within 30 days of entry of a Mo. Sup. Ct. R. 74.01(a) judgment, the judgment becomes final for purposes of appeal under Mo. Sup. Ct. R. 81.05(a), and the movant, who is not aggrieved by the judgment, remains a non-party to the proceeding, the same status the movant had when the judgment was entered.

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Adverse Determinations

Civil Procedure > … > Justiciability > Standing > Personal Stake

HN13 Reviewability of Lower Court Decisions, Adverse Determinations

To be a party, a person must either be named as a party in the original proceedings, or be later added as a party by appropriate trial court orders. Further, the rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.

Civil Procedure > Parties > Intervention > Motions to Intervene

Governments > Courts > Judicial Precedent

Civil Procedure > Parties > Intervention > Time Limitations

HN14 Intervention, Motions to Intervene

Missouri cases are clear that an appellate court does not interpret a failure to rule on a motion to intervene as a ruling sub silentio.

Civil Procedure > Parties > Intervention > Motions to Intervene

Civil Procedure > Parties > Intervention > Time Limitations

HN15 Intervention, Motions to Intervene

Although a post-judgment motion to intervene is allowed to be filed, Mo. Sup. Ct. R. 75.01 does not require a trial court to take any action on a motion filed by a non-party. And, the only rule that deems a trial court’s inaction on a post-judgment motion to be a denial is Mo. Sup. Ct. R. 78.06, which treats an authorized after-trial motion as overruled for all purposes if not ruled on within 90 days after the last such timely motion was filed.

Civil Procedure > Remedies > Provisional Remedies > Garnishment

Civil Procedure > Judgments > Enforcement & Execution > Garnishment

HN16 Provisional Remedies, Garnishment

The Missouri Supreme Court has stated that a tort-action judgment is not conclusive on the parties in the garnishment suit as to facts not actually litigated in the first action and to facts that were merely evidentiary or inferentially involved in the first.

Counsel: For ZURICH AMERICAN INSURANCE COMPANY, Appellant: WATTERS, RUSSELL F, Attorney for Appellant, ST LOUIS, MO; WOLF, TIMOTHY JOHN, Co-Counsel for Appellant, ST LOUIS, MO; UDE, LUCAS JAMES, Co-Counsel for Appellant, ST LOUIS, MO.

For YUNCKER, THOMAS, Respondent: BURNS, JEFFREY JOSEPH, Attorney for Respondent, KANSAS CITY, MO; DOLLAR, TIM EUGENE, Co-Counsel for Respondent, KANSAS CITY, MO; DOLLAR, LAUREN ALYSSA, Co-Counsel for Respondent, KANSAS CITY, MO.

For DODDS LOGISTICS, LLC, Respondent: SCOTT, JOSHUA DAVID, Attorney for Respondent, KANSAS CITY, MO.

For DODDS, KEITH, Respondent: SCOTT, JOSHUA DAVID, Attorney for Respondent, KANSAS CITY, MO.

For GUTIERREZ, CHRISTOPHER, Respondent: EMISON, MARK ADAM, Attorney for Respondent, LEXINGTON, MO; MANNERS, MICHAEL W, Co-Counsel for Respondent, LEXINGTON, MO; THRASHER, ALEX JOSEPH, Co-Counsel for Respondent, LEXINGTON, MO.

Judges: Before Division Four: Cynthia L. Martin, C.J., Janet Sutton, J. and Gary W. Lynch, Sp. J. Martin, C.J. and Lynch, Sp. J. concur.

Opinion by: Janet Sutton

Opinion

Zurich American Insurance Co. (Zurich) appeals a Jackson County Circuit Court judgment confirming an arbitration [*2] award that found Mr. Keith Dodds and Dodds Logistics, LLC (Dodds Logistics) negligent in an October 2020 tractor-trailer/motor vehicle accident in Kansas and awarded damages to Mr. Thomas Yuncker and Mr. Christopher Gutierrez. Zurich contends that the circuit court erred in failing to rule on its post-judgment motion to intervene, denying or impliedly denying its motion to vacate or set aside the judgment, and entering the judgment without proper notice to Zurich under section 537.065.2.¹ Because Zurich is not a party to the suit, nor aggrieved by the judgment, we dismiss the appeal.

Driving on behalf of Dodds Logistics, Mr. Dodds fell asleep behind the wheel of a tractor-trailer in October 2020 and struck Mr. Yuncker’s vehicle as it slowed while he approached vehicles and a police car with flashing lights parked on the shoulder of a highway in Johnson County, Kansas. Mr. Yuncker was working as an Uber driver at the time, and passenger Mr. Gutierrez was in the back seat. The impact pushed Mr. Yuncker’s vehicle into a tractor-trailer at the side of the highway. Both men had to be extricated from the Uber vehicle, and both sustained serious injuries that will have lasting consequences.

Mr. Yuncker and Mr. [*3] Gutierrez filed a petition alleging negligence and negligence per se in Jackson County Circuit Court on December 28, 2020, against Mr. Dodds and Dodds Logistics. Mr. Yuncker, Mr. Gutierrez, and Mr. Dodds are Kansas residents. Dodds Logistics is a Kansas corporation. The Dodds Respondents did not object to jurisdiction or venue, although their January 2021 answer to the petition denied a number of allegations and asserted several affirmative defenses.²

Counsel for the Dodds Respondents wrote to four insurance companies, Zurich among them, on February 5, 2021, enclosing a flash drive with information about the accident and injuries, and a more detailed letter from counsel containing the VIN numbers for vehicles involved in the crash, including an “Amazon box trailer.” The more detailed letter on the flash drive also stated that Mr. Dodds and Dodds Logistics were tendering their defense to the letter’s recipients. Noting that time was of the essence, the letter requested a response within 14 days of receipt as to whether the companies would defend and indemnify Mr. Dodds and /or Dodds Logistics. The letter further stated that the primary insurance carrier had paid the policy limits ($1 [*4] million) to the injured parties “pursuant to a non-execution agreement[.]”³

Zurich was potentially implicated because it had issued a commercial auto insurance policy covering the Amazon trailer that Mr. Dodds was hauling when the accident happened.⁴ Two insurers responded that they had not insured the Dodds vehicle in October 2020; a third insurer did not ultimately respond, but had asked for a replacement flash drive, apparently lost in transit, which request was accommodated; Zurich acknowledges that it received the cover letter on February 10, 2021, and claims that it did not receive the flash drive but attempted to contact counsel by purportedly leaving a voicemail message.⁵ Without indicating that the flash drive was missing, the company formally responded in a February 12, 2021, letter stating that it could not “confirm a valid policy number or alleged insured entity based on the information you provided.” Zurich stated that it had, accordingly, “cancelled” the claim.⁶ Zurich also stated that it would create a new claim number if a valid policy number for an allegedly insured entity were forwarded to the company.

Mr. Dodds and Dodds Logistics entered [*5] an arbitration agreement in early March 2021 with Mr. Yuncker and Mr. Gutierrez. An evidentiary hearing was held before an arbitrator in April 2021. The arbitrator issued an award in May 2021. While the arbitrator did not find sufficient evidence to support a punitive-damages award, compensatory damages of $13,500,197.25 were awarded to Mr. Yuncker, and $7,500,000 to Mr. Gutierrez.

Mr. Yuncker and Mr. Gutierrez filed an unopposed application in the circuit court on May 13, 2021, to confirm the arbitration award.⁷ The court entered a judgment confirming the arbitration award on May 26, 2021, and thus resolved all issues then pending before the court. Two days later, Zurich filed a motion to intervene which included a request that the court allow Zurich to file a motion to vacate and set aside the judgment.⁸ Mr. Yuncker and Mr. Gutierrez filed a response to the motion, and, on June 14, 2021, Zurich filed a pleading requesting a hearing before June 24, 2021, on the motion to intervene, but made no attempt to notice a hearing for a specific date. The court issued no ruling on the motion to intervene within the 30-day period after entry of its May 26, 2021, judgment confirming the arbitration [*6] award. Zurich filed a notice of appeal to this Court on July 2, 2021.⁹

Legal Analysis

Zurich has raised nine points relied on. Five relate to the circuit court’s failure to rule on the motion to intervene. Three relate to the court ‘s alleged denial or implied denial of the motion to vacate and set aside the judgment. One alleges that it was error to enter a judgment when Zurich did not receive the notice required by section 537.065.2.

We cannot address these points without first considering the question of Zurich ‘s standing to bring the appeal. See Stichler v. Jesiolowski, 547 S.W.3d 789, 793 (Mo. App. W.D. 2018) (“The right to appeal . . . within the meaning of § 512.020 is jurisdictional.” (citation omitted) (footnote omitted)). HN4 “Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution” is permitted to take an appeal from a “[f]inal judgment in the case . . . .” § 512.020 (emphasis added). We asked the Appellant and Respondents to address whether Zurich’s post-judgment motion to intervene afforded it standing to appeal the judgment. We conclude that it did not.

The May 26, 2021, judgment qualified as a judgment under Rule 74.01(a),¹⁰ as it was “a decree” or “any order from which an appeal lies” that was “signed [*7] by the judge and denominated ‘judgment.'” HN5 An appeal lies from a judgment that resolves all issues as to all parties pending before the court when entered. See Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995) (“An appealable judgment disposes of all issues in a case, leaving nothing for future determination.”); § 511.020 (defining a “judgment” as “the final determination of the right of the parties in the action.”).¹¹

HN7 The circuit court’s entry of a Rule 74.01(a) judgment triggered Rule 75.01, which states that a “trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.” See In re Marriage of Short, 847 S.W.2d 158, 162 (Mo. App. S.D. 1993) (“The purpose of Rule 75.01 is to enable the trial court to rectify any errors in the judgment, and thus simplify or forestall any further litigation at the appellate level. Once a [Rule 74.01(a)] judgment is entered . . . the thirty-day time period under Rule 75.01 begins to run.” (citation omitted)).

Zurich was not a party to the underlying suit when the court’s judgment was entered on May 26, 2021. See State ex rel. AJKJ, Inc. v. Hellmann, 574 S.W.3d 239, 242 (Mo. banc 2019) (holding that subdivision residents who filed a motion to intervene in a deed-reformation case after judgment was entered were not parties [*8] to the suit when judgment was entered). Plainly, when the judgment was entered, Zurich was neither a party to the suit nor aggrieved by the judgment, thus affording it no standing to appeal.

Zurich contends that, because it is permissible to file a motion to intervene within 30 days after a Rule 74.01(a) judgment is entered, it became a “party” to the suit with the right to appeal the judgment once its motion to intervene was filed. We disagree.

Zurich’s contention relies on caselaw involving motions to intervene filed before a Rule 74.01(a) judgment was entered. HN8 When a motion to intervene is filed before the entry of a Rule 74.01(a) judgment, the trial court’s interlocutory ruling on the motion is incorporated into a later-filed Rule 74.01(a) judgment, such that resolution of the motion affords any person aggrieved by the ruling standing to appeal. See State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d 397, 401-02 (Mo. banc 2016). Also, when a motion to intervene is filed before the entry of judgment, a trial court’s failure to rule on the motion disqualifies the judgment as a Rule 74.01(a) judgment, because no appeal will lie from a denominated judgment that fails to resolve all issues then pending before the court for determination.¹² See Henson v. Merob Logistics, LLC, 633 S.W.3d 838, 842-43 (Mo. App. W.D. 2021) (dismissing appeal taken from denominated judgment where trial court failed to rule [*9] on pending motion to intervene filed before judgment was entered).

Here, Zurich’s motion to intervene was filed after the circuit court’s entry of a Rule 74.01(a) judgment that resolved all issues then pending before the court and was therefore eligible for appeal, triggering Rule 75.01. This is a distinction with a difference that renders ConocoPhillips, Henson, and other similar cases Zurich relies on of no relevance.

HN9 Once a Rule 74.01(a) judgment is entered, the judgment becomes final for purposes of appeal under Rule 81.05(a) at the expiration of the 30-day window set forth in Rule 75.01 unless the trial court takes action as authorized by Rule 75.01 to vacate or reopen the judgment, or unless an authorized after-trial motion is filed, extending the court’s jurisdiction beyond the 30-day window for the limited purpose of ruling on the authorized after-trial motion. See Rules 78.01 through 78.07. A motion to intervene filed after a Rule 74.01(a) judgment is entered, and thus after Rule 75.01 is triggered, is not an authorized after-trial motion, because such motions must be filed by parties to the underlying matter. See State ex rel. AJKJ, Inc., 574 S.W.3d at 242 (Mo. banc 2019) (HN10[] “Motions filed by non-parties are not authorized after-trial motions that extend the circuit court’s jurisdiction pursuant to Rule 81.05(a). A motion to intervene, therefore, is not an authorized [*10] after-trial motion.”).

HN11 Though a motion to intervene is not an authorized after-trial motion, it is nonetheless a motion that is allowed to be filed after a Rule 74.01(a) judgment is entered. Id. at 242-43. The mere filing of a post-judgment motion to intervene by a non-party, however, does not alter the judgment’s eligibility for appeal under Rule 74.01(a), or mean that the judgment will not automatically become final for purposes of appeal under Rule 81.05(a) unless the trial court takes timely, authorized action to reopen or vacate the judgment. And, because a post-judgment motion to intervene is not an authorized after-trial motion, it must be ruled on, if at all, within the 30-day window contemplated by Rule 75.01. Id. at 243 (holding court’s ruling on motion to intervene was void because a motion to intervene filed “during the 30-day window in which the circuit court retained jurisdiction” was not ruled on “until after the 30[-]day[] window expired.”).

HN12 When a post-judgment motion to intervene is not ruled on within 30 days of entry of a Rule 74.01(a) judgment, the judgment becomes final for purposes of appeal under Rule 81.05(a), and the movant, who is not aggrieved by the judgment, remains a non-party to the proceeding, the same status the movant had when the judgment was entered. [*11] ¹³ This is the conclusion the Missouri Supreme Court reached in State ex rel. AJKJ, Inc., 574 S.W.3d at 241, 243-44, where residents living in a subdivision moved to intervene in a deed-reformation case after a Rule 74.01(a) judgment was entered, but while the trial court retained jurisdiction over the judgment under Rule 75.01. The Missouri Supreme Court held the following as to the circuit court’s failure to rule on the pending motion to intervene while it retained Rule 75.01 jurisdiction over the judgment:

Here, the reformation judgment became final pursuant to Rule 81.05(a)(1) . . . 30 days after the circuit court first entered judgment reforming the deed. The circuit court had no legal basis to take further action after that point. Although Residents filed their motion to intervene during the 30-day window in which the circuit court retained jurisdiction, the court did not rule on the motion to intervene until after the 30 days [sic] window expired. The circuit court . . . lacked jurisdiction to rule on Resident [s’] motion to intervene after the underlying reformation judgment became final. As a result, the court’s ruling on Residents’ motion to intervene was void.

. . . . Residents, therefore, never became parties to the reformation action. Id. at 243 (emphasis added). See also City of Montgomery v. Newson, 469 S.W.2d 54, 56 (Mo. App. 1971) (“Appellant’s [*12] motion, although filed within the thirty-day period, was not acted on by the court within that period. Upon the expiration of the thirty-day period, the judgment became final, the court lost jurisdiction to reopen it, and no case was then pending into which [movant] could intervene. In order to intervene there must be an action pending into which to intervene.”).

The same is true here. Zurich was not a party to the suit when the circuit court entered its May 26, 2021, judgment. Zurich did not become a party to the suit by the mere filing of a post-judgment motion to intervene. And Zurich remained a non-party to the suit, unaggrieved by the judgment, when the circuit court failed to rule on the motion to intervene during the 30-day window contemplated by Rule 75.01. Accordingly, Zurich lacks statutory authority to appeal from the judgment confirming the arbitration award under section 512.020, and this appeal must be dismissed. See Henson, 633 S.W.3d at 841 (observing that right to appeal is statutory and that “[a]n appeal without statutory sanction confers no authority upon an appellate court except to enter an order dismissing the appeal.” (citation omitted)).

Zurich attempts to escape this reality by claiming in its first five points [*13] relied on that the circuit court’s failure to rule on the pending motion to intervene during the 30-day window following entry of the May 26, 2021, judgment is, in effect, a denial of the motion.¹⁴ This argument is not persuasive for two reasons. HN14 First, our cases are clear that we do not interpret a failure to rule on a motion to intervene as a ruling sub silentio. See, e.g., Howe v. Heartland Midwest, LLC, 604 S.W.3d 774, 779 (Mo. App. W.D. 2020); see also Daniel v. Ind. Mills & Mfg., Inc., 103 S.W.3d 302, 318 (Mo. App. S.D. 2003) (refusing to review claim that trial court erred in ruling on motion where record did not show it was ruled on, court states, “Absent a finding by the trial court on an issue, the issue is not for appellate review. To undertake to review an issue not having been decided by the trial court would be akin to rendering an advisory opinion, something appellate courts are wont not to do.” (citation omitted)).

HN15 Second, and even more compelling, although a post-judgment motion to intervene is allowed to be filed, Rule 75.01 does not require a trial court to take any action on a motion filed by a non-party. And the only rule that deems a trial court’s inaction on a post-judgment motion to be a denial is Rule 78.06, which treats an authorized after-trial motion as “overruled for all purposes” if not ruled on within 90 days after the [*14] last such timely motion was filed.

The circuit court’s failure to rule on Zurich’s motion to intervene within the 30-day window during which it had the jurisdiction to do so therefore is neither deemed a denial of the motion nor independently actionable error.¹⁵ See State ex rel. AJKJ, Inc., 574 S.W.3d at 242-43 (declaring circuit court ruling on post-judgment motion to intervene entered more than 30 days after judgment was entered to be void and declaring the movants to have no status in the case as parties).

Because Zurich has no standing to appeal from the judgment, its appeal must be dismissed. We are not troubled by Zurich’s implication that a ruling depriving it of the opportunity to appeal and/or of the opportunity to intervene in the underlying case will result in manifest injustice or a miscarriage of justice. Zurich ‘s constitutionally based claims—V and VII—have been considered and rejected in cases such as Loveland v. Austin, 626 S.W.3d 716, 728, 730-31 (Mo. App. E.D. 2021) (finding no violation of constitutional rights of due process and access to the courts in light of insurer ‘s opportunity to litigate coverage issues in a pending garnishment proceeding); see also Knight ex rel. Knight v. Knight, 609 S.W.3d 813, 820 (Mo. App. W.D. 2020) (ruling that, in context of claims of alleged constitutional violations, 2017 amendment to section 537.065.2 did not give “insurers [*15] the right to contest the insured’s liability, and the claimant’s damages, on the merits, whatever the status of the litigation at the time of the insurer’s intervention.”). Zurich’s policy coverage issues can be litigated in the Kansas proceedings. HN16 The Missouri Supreme Court has stated that a tort-action judgment “is not conclusive on the parties in the garnishment suit as to facts not actually litigated in the first action and to facts that were merely evidentiary or . . . inferentially involved in the first.” Allen v. Bryers, 512 S.W.3d 17, 33 (Mo. banc 2016) (citation omitted).

Conclusion

Zurich was not a party to the suit when the May 26, 2021, judgment was entered and did not become a party to the suit when it filed a post-judgment motion to intervene. The post-judgment filing of the motion to intervene did not affect the judgment ‘s eligibility for appeal under Rule 74.01(a) or its finality for purposes of appeal under Rule 81.05(a) 30 days after the judgment’s entry. Because Zurich is not a party to the suit aggrieved by the judgment, it has no standing to appeal the judgment. We dismiss the appeal.

/s/ Janet Sutton

Janet Sutton, Judge

Martin, C.J. and Lynch, Sp. J. concur.

End of Document

¹Statutory references are to RSMo. (20 17 Supp.), unless otherwise indicated. Note that more recent amendments to section 537.065 took effect in 2021. The parties do not contend that these changes apply here.

²Mr. Thomas Yuncker, Mr. Keith Dodds, and Dodds Logistics, LLC briefly argue that Zurich American Insurance Co. (Zurich) did not engage in a choice-of-law analysis to establish that section 537.065 applies to these facts. We do not consider this matter further as it has not been briefed.

³Mr. Yuncker and Mr. Christopher Gutierrez also referred to this non-execution agreement in the application to confirm the arbitration award. They stated that it was entered in exchange for payment of the primary insurer’s policy limit and that it required them to arbitrate their dispute “in the event no other insurance company agreed to provide an unconditional defense of [their] personal injury claims arising out of the subject crash.” This non-execution agreement has not been included in the legal file, and it is unknown when the parties signed it. On the basis of the February 5, 2021, communication with Zurich and the other insurance companies, however, the non-execution agreement was arguably entered before they were given an opportunity to defend and indemnify Mr. Dodds and Dodds Logistics. HN1 While section 537.065.1 does not explicitly require that insurers have the opportunity to defend a tortfeasor without reservation before a non-execution agreement is entered, Missouri courts have interpreted the statute as establishing this sequence of events. See Desai v. Seneca Specialty Ins. Co., 581 S.W.3d 596, 600 (Mo. banc 2019) (noting that amended statute added “a prerequisite to the execution of a valid contract that did not previously exist. Under the amended statute, a tortfeasor is able to enter into a contract only if the tortfeasor’s insurer or indemnitor ‘had [sic] the opportunity to defend the tort-feasor without reservation but refuse[d] to do so.’ Section 537.065.1, RSMo Supp. 2017.” (emphasis added)). The amended statute stated in relevant part, “Any person having an unliquidated claim for damages against a tort-feasor, on account of personal injuries, bodily injuries, or death, provided that, such tort-feasor’s insurer or indemnitor has the opportunity to defend the tort-feasor without reservation but refuses to do so, may enter into a contract with such tort-feasor . . . .” § 537.065.1 (emphasis added). While Zurich contends that the non-execution agreement was not valid because Zurich had not been given the opportunity to defend before it was entered, nothing in the record establishes that the agreement was entered before the primary insurer was given the opportunity to defend. Zurich also contends that the non-execution agreement was entered before the litigation was filed, and thus, with no case or controversy in issue, the circuit court lacked jurisdiction to consider the matter. Without the agreement in the record, we cannot conclude that it was entered before Mr. Yuncker and Mr. Gutierrez filed a petition against the tortfeasors in Jackson County Circuit Court.

⁴Because no one has asserted that Zurich’s insured was a tortfeasor, it is unclear to this Court whether section 537.065 actually has any applicability. But that is a question for another court and another proceeding.

⁵As part of its argument in support of the first point relied on, Zurich asserts that it was given “just 14 days to respond to the February 5, 2021, letter, . . .” and, in fact, it did so. Interestingly, this time limitation appeared only in the letter included on the flash drive.

⁶The communications between Zurich and counsel for Mr. Dodds and Dodds Logistics are not a model of clarity. It is arguable that a letter stating that a claim is cancelled, written in response to a request that the insurer respond within 14 days by indicating whether it would provide a defense and indemnification, is the equivalent of a refusal to defend and indemnify as it did not conform to the requester’s terms by the deadline. See Woods ex rel. Woods v. Cory, 192 S.W.3d 450, 459 (Mo. App. S.D. 2006) (“Inherent in the offeror’s power as master of his offer is the power to insist that the offer may terminate upon the occurrence of a condition and that it may only be accepted in accordance with the conditions stated by it.” (citation omitted)).

⁷The application was filed before the court in which the initial petition had been filed, so the litigation was pending when Zurich received the February 5, 2021, communication from counsel for Mr. Dodds and Dodds Logistics and remained pending until the circuit court entered the judgment confirming the arbitration award. Zurich repeatedly claims on appeal that it was never notified about the existence of the pending lawsuit and implies that this is a requirement under section 537.065. HN2 Though the company’s policy may require such notification and any alleged shortcomings in notice may presumably be addressed during declaratory-judgment/garnishment proceedings currently pending in Kansas, the statute simply requires notification about the non-execution agreement before judgment may be entered. § 537.065.2 (“Before a judgment may be entered against any tort-feasor after such tort-feasor has entered into a contract under this section, the insurer or insurers shall be provided with written notice of the execution of the contract and shall have thirty days after receipt of such notice to intervene as a matter of right in any pending lawsuit involving the claim for damages.”).

⁸The proposed motion to vacate and set aside the judgment, attached as an exhibit to the motion to intervene, invoked the authority of Rule 55.27 and section 537.065. The motion to intervene invoked the authority of Rule 52.12 and section 537.065. Under section 537.065, Zurich would have had 30 days from the date it received notice of the non-execution agreement within which to exercise its right to intervene in the underlying litigation. § 537.065.2. The non-execution agreement did not have to be referred to as a contract under section 537.065 for the statute to apply. § 537.065.3 (“The provisions of this section shall apply to any covenant not to execute or any contract to limit recovery to specified assets, regardless of whether it is referred to as a contract under this section.”). Zurich arguably received notice on February 10, 2021, and did not file the motion to intervene until more than three months later on May 28, 2021. HN3 A motion to intervene filed beyond the 30-day limitation of section 537.065.2 is untimely. See Barnett v. Columbia Maint. Co., 632 S.W.3d 396, 402 (Mo. App. E.D. 2021).

⁹Zurich filed a declaratory judgment action on June 7, 2021, in a Kansas district court against Mr. Dodds, Dodds Logistics, Mr. Yuncker, and Mr. Gutierrez; the latter two have counterclaimed for garnishment, and the Dodds Respondents have counterclaimed for breach of contract.

¹⁰Rule references are to Mo.R.Civ.P. (2021), unless otherwise indicated.

¹¹HN6 Rule 74.01(a) judgments resolving all issues then pending in a case are sometimes referred to in our jurisprudence as “final judgments.” In fact, they are merely appeal-eligible judgments that do not become “final judgments” until an appeal can actually be filed under Rule 81.05.

¹²The exception for properly certified Rule 74.01(b) judgments is inapplicable to this case.

¹³HN13 As recently noted by this Court, “To be a party, a person must either be named as a party in the original proceedings, or be later added as a party by appropriate trial court orders.” MILA Homes, LLC v. Scott, 608 S.W.3d 658, 661 (Mo. App. W.D. 2020) (citations omitted). Further, “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.” Id. (citations omitted).

¹⁴Presumed in Zurich’s argument, although not at all developed, is that Zurich would have been entitled to pursue an appeal of the May 26, 2021, judgment had the circuit court denied its post-judgment motion to intervene during the 30-day window contemplated by Rule 75.01. The validity of that premise should not be assumed, but it is not before us and will not be addressed.

¹⁵To conclude otherwise would afford a non-party the power to manipulate when a Rule 74.01(a) judgment becomes final for purposes of appeal under Rule 81.05(a) by, for example, filing a post – judgment motion close to the expiration of the 30-day window during which a trial court retains jurisdiction over a judgment under Rule 75.01. We are aware of no authority for the proposition that a trial court commits error by failing to rule on a motion filed after a Rule 74.01(a) judgment is entered. See Henson v. Merob Logistics, LLC, 633 S.W.3d 838, 842-43 (Mo. App. W.D. 2021) (dismissing appeal because it was taken from judgment rendered ineligible for appeal under Rule 74.01(a) in light of unruled motion to intervene filed before judgment was entered, but not based on finding that trial court committed error in failing to rule on motion).