American Family Mutual Insurance Co. v. Harot12/29/2000
Appeal From: Circuit Court of Jackson County, Hon. Charles Kramer
Opinion Vote: DISMISSED.
Holliger, P.J. and Smart, J., concur
Opinion:
Melvin Dewey, Dixie Dewey, Brian Dewey and Susan Hollingsworth (Appellants) appeal the circuit court's denial of their motion for prejudgment interest, following the circuit court's entry of a consent judgment pursuant to the agreement of Appellants and Joe A. Hart, Jr. Appellants claim on appeal that the circuit court erred in not awarding them prejudgment interest in addition to the amount of the consent judgment because they complied with all of the requirements of section 408.040.2, RSMo 1994, and they received a judgment in excess of their demand for payment. Joe A. Hart, Jr., and American Family assert that no timely notice of appeal was filed, and request that the appeal be dismissed for lack of jurisdiction. Because this court finds that the notice of appeal was not timely filed and this court is without jurisdiction to hear this appeal, the appeal is dismissed.
I. Factual and Procedural Background
On May 11, 1997, Appellants were injured in a motor vehicle accident when a vehicle driven by Joe Hart, Jr., crossed the center line and struck the van in which they were riding. The van was owned by Melvin and Dixie Dewey, and driven by Melvin Dewey. Nancy Hart, Mr. Hart's mother and a passenger in his car, was also injured in the collision.
On June 11, 1997, Melvin and Dixie Dewey made a formal, written demand on Mr. Hart, pursuant to section 408.040, for payment of their personal injury claims. They demanded payment of $90,000 for the personal injury claim of Dixie Dewey, $10,000 for the loss of services claim of Melvin Dewey, $25,000 for the personal injury claim of Melvin Dewey, $5,000 for the loss of services claim of Dixie Dewey, and $7,500 for property damages. On June 18, 1997, Brian Dewey made a formal, written demand on Mr. Hart, pursuant to section 408.040, for payment of $10,000 for his personal injury claim. Also on June 18, Susan Hollingsworth demanded payment of $50,000 for her personal injury claim. Each of these offers to settle was sent by certified mail and left open for sixty days in accordance with the statute.
At the time of the accident, American Family Mutual Insurance Company insured Mr. Hart's car through an automobile liability policy with policy limits of $25,000 per person and $50,000 per accident. Because the total claims asserted against Mr. Hart exceeded his policy limits, American Family did not pay the proceeds to Appellants. Instead, American Family referred the case to outside counsel, who attempted to reach an agreement with counsel for Appellants and counsel for Ms. Hart on how the policy proceeds were to be apportioned among the various defendants. Attempts to resolve the matter failed and American Family initiated an interpleader action on June 23, 1998. The petition for interpleader named Joe Hart, Nancy Hart, Melvin Dewey, Dixie Dewey, Brian Dewey, Susan Hollingsworth, St. Luke's Hospital of Kansas City, and Liberty Hospital as defendants.
On March 12, 1999, the circuit court granted American Family's motion for interpleader and ordered American Family to pay its policy proceeds of $50,000, less $80 costs for filing fees already paid, into the court registry. Appellants subsequently filed a cross-claim and petition for damages against Mr. Hart for their personal injuries. In their cross-claim and petition, Appellants included a claim for prejudgment interest pursuant to section 408.040.
In June 1999, Mr. Hart and Appellants reached a settlement of the case. In accordance with Rule 77.04, Mr. Hart ma
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