Reddick v. Spring Lake Estates Homeowner's Ass'n

648 S.W.3d 765

Michael REDDICK, Appellant,

v.SPRING LAKE ESTATES HOMEOWNER'S ASSOCIATION, Melvin Dockins, and Acuity, a Mutual Insurance Company, Respondents.

No. ED 109672

Missouri Court of Appeals, Eastern District, DIVISION FIVE.

Filed: May 17, 2022

Application for Transfer to Supreme Court Denied June 21, 2022

Application for Transfer Denied August 30, 2022

Joseph C. Blanton Jr., Shaun D. Hanschen, Diedre A. Peters, Bryan E. Nickell, 219 S Kingshighway, P.O. Box 805, Sikeston, MO 63801, for appellant.

D. Keith Henson, Bradley J. Sylwester, 165 N Meramec Ave., Ste 110, St. Louis MO 63105, Martha Charepoo, 100 N. Broadway, 21^st Fl., St. Louis, MO 63102, James R. Howard, 302 Campusview Drive, Suite 204, Columbia, MO 65201, for respondents.

Cristian M. Stevens, J.

Introduction

Appellant Michael Reddick ("Reddick") brought a wrongful death lawsuit against his parents, Jesse and Pat Reddick ("the Reddicks"), and their neighbor, Roger McCullough ("McCullough"), following his wife's fatal fall from a wall adjoining their properties. Reddick settled with the Reddicks and McCullough and filed amended petitions adding Respondents the Spring Lake Estates Homeowner's Association ("Association"), home inspector Melvin Dockins ("Dockins"), and Acuity, a Mutual Insurance Company ("Acuity"), as defendants.

Reddick raises three points on appeal. First, Reddick argues the circuit court erred in granting summary judgment to the Association because the Association had a duty to adequately light the subdivision. Second, Reddick argues the circuit court erred in granting Dockins's and Acuity's motions to dismiss his Fifth Amended Petition ("Petition"). He argues the Petition stated a claim for Dockins's negligent inspection of McCullough's property where Susan Reddick ("decedent") fell; and a claim for Dockins's breach of a Section 537.065 agreement ("Agreement") with Reddick in which he agreed not to contest liability regarding the negligence claim.¹ He insists the negligence claim should not have been dismissed without first resolving the "threshold issue" of whether the Agreement prohibited Dockins and Acuity from contesting liability. Third, Reddick argues the circuit court erred in granting Acuity's motion to dismiss the Petition because Reddick may pursue a direct action against Acuity due to Acuity's intervention in the case, and the Petition stated a claim against Acuity for tortious interference with the Agreement.

We affirm the judgment of the circuit court.

Facts and Procedural Background

Michael Reddick filed a wrongful death lawsuit against the Reddicks and McCullough on December 13, 2017. In his original petition, Reddick alleged that, on the night of December 30, 2016, the decedent fell off an unguarded and unlit three-foot high retaining wall near the border between the Reddicks’ and McCullough's properties while walking her dog. Reddick found her injured on McCullough's driveway and called first responders. She was transported to the hospital, where she died. Reddick subsequently settled with the Reddicks and McCullough, and those claims are not at issue in this appeal.

Facts Related to Point I

On November 12, 2018, Reddick filed a First Amended Petition naming the Association as a defendant. Reddick alleged that the Association was negligent in failing to adequately light the subdivision after it had assumed responsibility for providing lighting. On June 3, 2019, the Association moved for summary judgment and asserted uncontroverted material facts pursuant to Rule 74.04.² Reddick responded with additional material facts.

The undisputed facts are that the Association did not own or possess the retaining wall, which was on McCullough's property approximately two to four inches from the Reddicks’ adjoining property. The Association never installed or maintained any lights on the Reddicks’ or McCullough's property. Nor did it install or maintain lights on any other homeowner's private property.³ The members of the Association discussed the sufficiency of the street lighting in the subdivision during meetings for more than four decades. The Association installed and maintained five streetlights in the subdivision at or near the subdivision entrance, common grounds, two different intersections, and the end of a street. The Association did not install or maintain any other streetlights. Each streetlight was attached to a utility pole extending the light toward the street. Each pole was located within a dedicated 50-foot-wide street right-of-way owned by the Association.

In its motion for summary judgment, the Association denied that it had a duty to light the area where the decedent fell because it did not own the retaining wall or property in the area. The Association also denied that it assumed a duty to provide lighting throughout the entire subdivision or where the decedent fell.

The circuit court entered summary judgment in favor of the Association on July 24, 2019. Reddick appeals the judgment.

Facts Related to Points II and III

In the First Amended Petition, Reddick also alleged that Dockins negligently inspected McCullough's property and failed to identify and report the dangerous drop-off condition. Dockins notified his liability insurer, Acuity, of the lawsuit. On December 14, 2018, Acuity denied coverage.

On April 19, 2019, Dockins's counsel notified Acuity that Dockins had entered a Section 537.065 agreement with Reddick. Twelve days later, on May 1, 2019, Acuity moved to intervene in the lawsuit pursuant to Section 537.065.2 and Rule 52.12(a)(2). See RSMo § 537.065.2 (2017). The exhibits to Acuity's motion included the Agreement.

The Agreement contains the following language relevant to this appeal:

2. Agreement. [Dockins] will consent to the claim against him being severed from the remaining claims in the lawsuit for a separate, court-tried trial. [Dockins] will consent to the entry of a Judgment in favor of [Reddick] and against him in an amount to be determined by the Court at this trial, with the specific condition that [Reddick] may attempt to collect the Judgment only from any insurance which may apply to his claims, which the parties believe to be Acuity Insurance Company ....

3. Consideration.... [Dockins] denies any and all liability to [Reddick] in this Lawsuit. However, [Dockins] has tendered the Claims raised in the Lawsuit as well as the Lawsuit itself to all available insurance carriers and was denied a defense or indemnification.... [Dockins] by entering this contract waives his right to contest liability in exchange for the avoidance of further costly litigation and a limitation on his personal exposure. [Reddick] by this contract obtains judgment in the amount of his actual losses without the burden of additional litigation in exchange for limiting his collection ability on the Judgment to any insurance which may apply to his claims ....

The Agreement contains a signature block for Dockins and his counsel, and they signed and dated the Agreement on April 17, 2019. The Agreement does not include a signature block for Reddick, and his signature does not appear on the Agreement.

The circuit court granted Acuity's motion to intervene on May 13, 2019. Shortly thereafter, Dockins's counsel withdrew, and new counsel provided by Acuity entered his appearance on behalf of Dockins.

Dockins and Acuity moved for summary judgment on June 3, 2019. On June 5, 2019, Reddick moved to amend the petition to include Acuity as a defendant. On the same day, Reddick also filed a motion for a separate trial against Dockins and attached the Agreement as an exhibit. After the motions were briefed, the circuit court denied Dockins's and Acuity's motion for summary judgment without further comment. The court also ordered "a separate trial on the claim of Plaintiff against Defendant Melvin Dockins (in which Acuity, a Mutual Insurance Company, has intervened)."

After settling with McCullough and the Reddicks, Reddick filed a Fifth Amended Petition. Reddick repeated his negligence claim against Dockins and alleged that Dockins breached the Agreement by contesting his liability regarding the negligence claim. For his claims against Acuity, Reddick alleged that the Agreement with Dockins was binding on Acuity. He acknowledged that "Missouri is not a direct action state," but maintained that that he was entitled to enforce the Agreement, and to specific performance of the Agreement, as to both Dockins and Acuity. Reddick also pleaded that Acuity tortiously interfered with the Agreement by intervening and contesting Dockins's liability.

Dockins and Acuity filed motions to dismiss the Petition. Dockins contended that Reddick failed to state a negligence claim against him because Dockins was hired by McCullough to inspect his home and owed no duty of care to the decedent as a matter of law, and that Reddick failed to plead any facts showing that Dockins caused the decedent's death. Dockins also argued that the Petition failed to state a claim for breach of contract because the Agreement was unenforceable and its purpose had been frustrated by Acuity's intervention. The Agreement was one of the exhibits to Dockins's motion. In its motion, Acuity reiterated Dockins's arguments as to the negligence claim against him. Regarding the claims against Acuity, it argued that Missouri law prohibits direct actions against insurance companies and that the tortious interference claim should be dismissed for failure to state a claim.

Reddick concluded the parties’ extensive briefing of the motions with a notice of recent decision informing the court of Knight ex rel. Knight v. Knight , 609 S.W.3d 813 (Mo. App. W.D. 2020). Reddick submitted that, before Knight , the court "had no authority to consult that spoke directly to whether § 537.065.2 R.S.Mo. gave an insurer who denies coverage an unconditional right to contest liability." He argued that "Acuity intervened in this suit after the Plaintiff and Defendant Dockins reached their .065 Agreement and Dockins...