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Norman v. Wright3/18/2003
Opinion Vote: REVERSED AND REMANDED. All concur.
Opinion:
Kimberly and Jerry Norman sued Doctor Andy J. Wright for the wrongful death of their son. The jury found for the Normans. The circuit court reduced the verdict by the amount of a pre-trial settlement with two other defendants. The Normans appeal. After opinion by the Court of Appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. Reversed and remanded. I. The Normans' son died from brain damage suffered during birth. In addition to Dr. Wright, they sued two other defendants: another doctor and a hospital. A year before trial, the judge approved a $100,000 settlement with the two other defendants. The Limited Release, and the Stipulation for Dismissal with Prejudice, both cited section 537.060 RSMo 2000 . After settlement, only the claims against Dr. Wright remained.
In his answer, Dr. Wright initially requested that the jury apportion the fault of all parties. He cited section 538.230, which provides in part (emphasis added):
1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services where fault is apportioned among the parties and persons released pursuant to subsection 3 of this section, the court, unless otherwise agreed by all the parties , shall instruct the jury to apportion fault among such persons and parties . . . .
The Normans moved to strike this request. The judge sustained their motion, citing a lack of specific allegations. Dr. Wright did not amend his answer. Moreover, in a pre-trial conference, Dr. Wright orally waived jury apportionment under section 538.230. The Normans agreed. Because it was so "agreed by all the parties," there was no jury apportionment under section 538.230 in this case. See Vincent v. Johnson , 833 S.W.2d 859, 863 (Mo. banc 1992).II.The jury awarded the Normans $308,855.35. A week after the verdict, Dr. Wright moved -- for the first time -- to reduce the verdict by $100,000. He cited section 537.060, which provides in part (emphasis added):
Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater.
The Normans objected that the motion was untimely because Dr. Wright did not plead the reduction as an affirmative defense.
The trial court ruled for Dr. Wright "as a matter of law pursuant to Sec. 537.060 R.S.Mo.", and reduced the verdict by $100,000. The sole issue is whether the trial court erroneously declared the law. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Section 537.060 applies to all tort actions. See Brewster v. Gauss , 37 Mo. 518, 519 (1866); Spalding v. Citizens' Bank , 78 Mo. App. 374, 383 (1899). Section 538.230, discussed above, applies only to tort actions based on improper health care. The General Assembly specifically lists certain sections of chapter 537 that do "not apply" ; to improper-health-care torts. Sec. 538.300 . Section 537.060 is not listed. Id . Thus, if all the parties agree not to apportio
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