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Woods v. Cory12/2/2004
Opinion Vote: DISMISSED.
Prewitt, J., and Rahmeyer, J., - concur
Opinion:
U.S. Foodservice ("Appellant") appeals from the order of the Circuit Court of Howell County enforcing a settlement agreement between it and Christopher S. Woods, by his Next Friend Lena Woods, and Lena Woods, Ann Dunnegan, and Larry Woods (referred to collectively as "Respondents" ). We dismiss the appeal.
The genesis of this appeal is an automobile accident involving a vehicle driven by Ronald Murray Cory ("Cory") and one driven by Opal Woods in which Christopher S. Woods ("Christopher") was a passenger. The accident occurred on Highway 60 in Carter County, Missouri on February 15, 2001. Opal Woods and Cory died as a result of injuries sustained in the accident and Christopher suffered serious injuries. Christopher, by his Next Friend Lena Woods, filed suit against Jason R. Cory, the Personal Representative of the Estate of Cory, and Appellant, as Cory's employer, for the alleged negligence of Cory in causing the accident. Lena Woods, Ann Dunnegan, and Larry Woods, the surviving children of Opal Woods, also filed suit pursuant to Section 537.080.1(1) against the same parties, for the wrongful death of Opal Woods. Both petitions alleged that Cory was acting within the scope of his employment with Appellant at the time of the accident. The two cases were consolidated by the trial court on September 27, 2001.
Appellant eventually moved for a summary judgment in the consolidated cases, contending that there was no genuine issue of fact concerning whether Cory was acting in the scope of his employment with Appellant and that it was entitled to a judgment as a matter of law. That motion was sustained by the trial court, but was later set aside and a judgment entered enforcing a settlement agreement. The enforceability of that settlement agreement is the basis of this appeal.
Though Respondents raise an issue about the timeliness of this appeal, neither party raises an issue about whether the judgment from which this appeal is taken is a final judgment. We are required to consider, sua sponte, whether the prerequisite of an appealable final judgment has been met. American Standard Ins. Co. of Wisconsin v. Bittick, 112 S.W.3d 55, 56 (Mo.App. W.D. 2003).
The trial court is required, upon the approval of any settlement in a suit for wrongful death, to enter judgment apportioning the proceeds of the settlement among the persons entitled thereto. Section 537.095.3. In its amended judgment, the trial court enforced a settlement agreement as to both of the consolidated claims, one of which was a claim for damages pursuant to the wrongful death statute. The trial court did not apportion the proceeds of the settlement for the wrongful death claim among the Respondents. There can be no final judgment where the trial court does not apportion the recovery among the Respondents as required by Section 537.095.3. Lavender v. State Auto. Mut. Ins. Co., 908 S.W.2d 882, 883 (Mo.App. S.D. 1995); see also Kilmer v. Browning, 806 S.W.2d 75, 85 (Mo.App. S.D. 1991). Thus, there is no final judgment as to the wrongful death claim.
We also conclude that we do not have before us an appealable judgment relating to Christopher's personal injury claim. As indicated above, the record demonstrates that the wrongful death and the personal injury claims presented here were ordered consolidated by the trial court on September 27, 2001. The basis of that consolidation is reflected in the record here only as "Defendant's Motion." Rule 66.01(b) provides that " hen civil actions involving a common question of law or fact are pending before the court, it may order a joint hearing
Page 1 2 Missouri Personal Injury Attorneys
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