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ATS6/3/2003
Opinion Vote: AFFIRMED.
Dowd, Jr., P.J. and Draper III, J., concur.
Opinion:
ATS, Inc. (Employer) and Liberty Mutual Insurance Company (Insurer) appeal from the trial court's grant of summary judgment in favor of Kenneth Listenberger (Employee), which held that Employer and Insurer did not have a subrogation interest in any recovery made by Employee against his former attorneys for an alleged failure to timely file a claim against a tortfeasor (the tortfeasor) who caused physical injury to Employee. We affirm.
The trial court resolved this case after hearing argument on mutual summary judgment motions filed by the parties. The motions were presented to the trial court with the stipulation that the matter involved a sole legal issue which could be resolved by interpreting how Section 287.150 RSMo 1994 applied to the following facts as agreed between the parties.
On October 26, 1994, Employee was employed by Employer and sustained injuries in an automobile accident (accident) during the scope and course of his employment. Insurer provided worker's compensation coverage to Employer during the relevant period.
As a result of the injuries he sustained in the accident, Employee filed a claim for compensation with the Missouri Department of Labor and Industrial Relations Division of Workers' Compensation against Employer. Consequently, Insurer paid benefits to Employee on his worker's compensation claim, including medical payments totaling $89,985.10, total disability payments in the amount of $127,138.70, and permanent disability or lump sum settlement in the amount of $125,000.00.
Employee hired attorneys to pursue a claim against the tortfeasor to recover for the physical injuries arising out of the accident. The attorneys failed to file the personal injury action against the tortfeasor within the time prescribed by the applicable statute of limitations, and Employee's action against the tortfeasor was dismissed. Subsequently, Employee brought a legal malpractice action against those attorneys. Employee later settled that claim and dismissed his legal malpractice action with prejudice.
Employer and Insurer likewise failed to pursue a claim against the tortfeasor in a timely manner.
Upon learning of Employee's settled legal malpractice claim, Employer and Insurer filed a petition for declaratory judgment, requesting a judgment declaring that Section 287.150 gave them the right to recover in subrogation against any recovery Employee obtained from his former attorneys. The parties filed cross-motions for summary judgment, stipulating that a ruling on the motions would dispose of all the issues. The parties filed memoranda and the trial court heard oral argument. The trial court held that Employer and Insurer did not have a subrogation interest in Employee's recovery against his former attorneys and entered judgment in favor of Employee, against Employer and Insurer. This appeal followed.
In appeals from summary judgment, we "review the record in the light most favorable to the party against whom judgment was entered," and our review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). Whether to grant summary judgment is purely an issue of law. Id . Because the trial court's judgment is based upon the record submitted and the law, we "need not defer to the trial court's order granting summary judgment." Id.
The moving party bears the burden to show a right to judgment flowing from material facts about which there is no genuine dispute. Id . at 378. Here, the record reveals there is no genuine dispute
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