ESTHER A. WILSON,                            )
ALEC WILSON,                                 )
and ESTHER A. WILSON,                        )
as Personal Representative of the            )
Estate of KELLI A. WILSON, deceased,         )
                                             )      No. SD35233
       Plaintiffs-Appellants,                )      Filed: January 9, 2019
                                             )
vs.                                          )
                                             )
NEW PRIME, INC.,                             )
                                             )
       Defendant-Respondent.                 )


              APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                        Honorable Michael J. Cordonnier, Circuit Judge

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

       Esther A. Wilson, Alec Wilson, and Esther A. Wilson as Personal Representative of the

Estate of Kelli A. Wilson, deceased (collectively the “Wilsons”) appeal the trial court’s judgment

dismissing their petition, pursuant to a motion to dismiss filed by New Prime, Inc. (“New Prime”).

On appeal, the Wilsons assert the trial court erred in sustaining New Prime’s motion to dismiss.

We agree and reverse and remand for further proceedings consistent with this opinion.
                                          Facts and Procedural History

           The trial court’s succinct factual summary gives appropriate context for the instant appeal:

                    The facts underlying the issue are not in dispute. The case involves the
           alleged wrongful death of Kelli A. Wilson [Decedent] who died in 2016 as a result
           of a traffic accident on an interstate highway in Oklahoma. [Decedent] is survived
           by the Plaintiffs. Plaintiffs are all residents of Oklahoma, and the personal
           representative of the estate of [Decedent] serves pursuant to her appointment by the
           Probate Court in Oklahoma. Defendant New Prime, Inc. is a Nebraska corporation,
           with offices in Greene County, Missouri.

                   At the time of the accident, [Decedent] was a passenger in an automobile
           operated by Jennifer T. Bizeau (Bizeau). The collision occurred between the
           automobile operated by Bizeau and a truck operated by Defendant’s employee. The
           collision was also complicated, and perhaps contributed to, by poor visibility on the
           interstate highway as a result of smoke from a fire set by James L. Kafer (Kafer).
           Bizeau and Kafer are also Oklahoma residents.

                    ....

                   Plaintiffs . . . chose[] to file their Petition in Greene County, Missouri
           seeking damages against Defendant only. Plaintiffs claim[ed] Defendant’s actions
           caused or contributed to cause the death of [Decedent]. Plaintiffs . . . chose[] not
           to include as persons with potential responsibility either Bizeau or Kafer.[1]

           On June 20, 2017, New Prime filed a motion to dismiss the Wilsons’ petition. Relying on

Rule 52.04(b), 2 New Prime’s motion argued that: “complete relief cannot be accorded unless all

possibly negligent parties are before the court[]”; “‘someone or some combination of people will

almost certainly be found responsible for [Decedent’s] death[]’”; and “any judgment rendered in

[Kafer] and [Bizeau]’s absence would be prejudicial to [New] Prime . . . [because they] cannot be

assigned any causal responsibility for the accident because they are not parties.”

           On July 24, 2017, the Wilsons filed a response opposing the motion to dismiss, arguing

that “Missouri courts have divested [sic] power in plaintiffs to file suit against any and/or all


1
    We do not, by recitation, mean to adopt or endorse the legal intimations (or conclusions) embedded in this passage.
2
    All rule references are to Missouri Court Rules (2018).



                                                              2
potential wrongdoers under Missouri’s wrongful death statute (§ 537.080),[3] and . . . Plaintiffs

have the right to bring suit against the party or parties of their choosing.” In addressing Rule

52.04(b), the Wilsons indicated that “Bizeau and Kafer are not ‘necessary’ for complete relief to

be available. Plaintiffs are allowed to fully recover for the wrongful death action against New

Prime . . . if they prove their case.”

           The trial court granted New Prime’s motion to dismiss on October 16, 2017. In its “Order

of Dismissal,” the trial court found that Bizeau and Kafer were necessary parties because New

Prime could not, “as a practical matter” be accorded complete relief in their absence. The trial

court directed the Wilsons to the alternative forum of Oklahoma, and dismissed their petition for

the reason that New Prime had no “opportunity or legal ability to bring into court either Bizeau or

Kafer, as third-parties to Plaintiffs’ claim, because . . . [a] Missouri [c]ourt cannot exercise

jurisdiction over Bizeau and Kafer.” This appeal followed. 4

           On August 22, 2018, this Court sua sponte issued an Order directing “the parties to file

written suggestions as to whether choice-of-law considerations affect a proper Rule 52.04 analysis

herein.” The parties duly filed such suggestions. We now examine the choice-of-law issue before

this Court.

                                                      Analysis

           Missouri cases have consistently held that “the substantive law of the state in which the

fatal injury occurred should apply to the cause of action for wrongful death.” Thompson v.

Crawford, 833 S.W.2d 868, 870 (Mo. banc 1992). In this case, the accident and death occurred in




3
    All references to statutes are to RSMo as amended through 2016, unless otherwise indicated.
4
  New Prime’s “Motion to Dismiss or, in the Alternative, to Stay the Above-Captioned Appeal” filed with this Court
is denied.



                                                           3
Oklahoma, therefore, the law of Oklahoma applies pursuant to the general rule. See id.; Rule

52.03(a) (allowing a civil action to be brought in Missouri “[w]henever a claim exists under the

law of another state[.]”). The parties have a least tacitly admitted Oklahoma law applies in this

case.

         Only in “exceptional cases” will Missouri courts apply the Missouri wrongful death statute

extraterritorially. Nelson v. Hall, 684 S.W.2d 350, 357-58 (Mo.App. W.D. 1984). To make that

determination, Missouri courts are guided by the RESTATEMENT (SECOND) OF CONFLICT OF LAWS

§ 145 (“the Restatement”). See Thompson, 833 S.W.2d at 870; Kennedy v. Dixon, 439 S.W.2d

173, 184-86 (Mo. banc 1969); Natalini v. Little, 185 S.W.3d 239, 247-48 (Mo.App. S.D. 2006);

Nelson, 684 S.W.2d at 356. The Restatement contemplates application of numerous factors

deriving from matters of both fact and policy. A lengthy digression on this issue is unnecessary,

however, because the only relationship Missouri has to the case is the fact that New Prime’s

principal place of business is located in Missouri. This is simply not enough—Oklahoma law

applies.

         The trial court dismissed the Wilsons’ petition because it reasoned that New Prime would

be deprived, under Missouri law, of the opportunity to apportion the appropriate degrees of fault

(and liability) to Bizeau and Kafer. However, as discussed supra, Oklahoma law applied, not

Missouri law. Under Oklahoma law, “a tort defendant may predicate its defense on a non-party’s

negligence. This is known as ‘ghost tortfeasor’ liability.” 5 Thomas v. E-Z Mart Stores, Inc., 102



5
  See Paul v. N. L. Indus., Inc., 624 P.2d 68, 70 (Okla. 1980) (“To limit the jury to viewing the negligence of only
one tortfeasor and then ask it to apportion that negligence to the overall wrong is to ask it to judge a forest by observing
just one tree. It cannot, and more important should not, be done. It simply is not fair to the tortfeasor which plaintiff
chooses to name in his lawsuit.”); Pain v. Sims, 283 P.3d 343, 345-46 (Okla. Civ. App. 2012); American Agency
Systems, Inc. v. Marceleno, 53 P.3d 929, 937 n.8 (Okla. Civ. App. 2002); cf., Monfore v. Phillips, 778 F.3d 849, 853
(10th Cir. 2015) (deriving the converse implication of “ghost tortfeasor liability,” in explaining that “[u]nder
Oklahoma law . . . it’s not for courts to absolve defendants who elect to go to trial from damages a jury has lawfully
found them personally liable for and attribute some of those sums to others not found liable[.]”) (emphasis in original).


                                                             4
P.3d 133, 138 (Okla. 2004). This defense represents substantive law and not a procedural rule.

See Ernst v. Ford Motor Co., 813 S.W.2d 910, 921 (Mo.App. W.D. 1991) (“A fundamental

principle of conflicts is that a forum state will always apply forum procedure, but it will choose

the applicable substantive law according to its own conflicts of law doctrines.”). 6                                    The

Restatement, 7 Missouri case law, 8 and Oklahoma case law 9 all recognize this distinction. The

potential Rule 52.04 harm to New Prime—on which the trial court premised its dismissal of the

Wilsons’ petition—would have been remedied had the trial court (properly) applied Oklahoma

law instead of (improperly) applying Missouri law.

         Oklahoma’s “ghost tortfeasor” defense was a matter obliging judicial notice, 10 and the trial

court was required to apply it to the question presented by New Prime in its motion to dismiss.




6
 See also, Foreman v. AO Smith Corp., 477 S.W.3d 649, 653 (Mo.App. E.D. 2015); Accurso v. Amco Ins. Co., 295
S.W.3d 548, 551-54 (Mo.App. W.D. 2009); Armstrong Business Services, Inc. v. H & R Block, 96 S.W.3d 867,
872-73 (Mo.App. W.D. 2002).
7
 “The law selected by application of the rule of § 145 determines whether damages resulting from a harm caused by
two or more defendants should be apportioned between them or whether each should be held liable for the entire loss.”
Restatement (Second) of Conflict of Laws § 171 cmt. e., and § 178 cmt. a. & d. (1971). “The law selected by
application of the rule of § 145 determines whether one tortfeasor has a right to contribution or indemnity against
another tortfeasor.” Id. at § 173.
8
 Missouri cases apply Missouri choice-of-law analysis when determining which state’s fault statute applies. See
Wilson v. Image Flooring LLC, 400 S.W.3d 386, 391-92 (Mo.App. W.D. 2013); Livingston v. Baxter Health Care
Corp., 313 S.W.3d 717, 721-24 (Mo.App. W.D. 2010). See note 6 of this opinion.
9
  Oklahoma case law treats application of the “ghost tortfeasor” defense as a matter of substantive law. CNA
Insurance v. Ellis, 148 P.3d 874, 877-78 (Okla. 2006) (obligation to pay is fixed at time of injury and cannot be
changed retroactively); Myers v. Missouri Pacific R. Co., 52 P.3d 1014, 1030 (Okla. 2001) (reducing a defendant’s
liability); Sudbury v. Deterding, 19 P.3d 856, 859-60 (Okla. 2001) (increase in damages statute was a substantive
change rather than procedural).
10
  Notably, the record indicates that New Prime never brought this to the trial court’s attention. Instead, New Prime
presented the trial court with this dichotomy: (1) unjust non-joinder (and non-allocation of fault to potential
tortfeasors) in Missouri, or (2) dismissal of the Wilsons’ petition. New Prime’s proper remedy was to file a motion
requesting that it be allowed to apportion liability to non-party tortfeasors pursuant to Oklahoma law. Nevertheless,
waiver is not implicated: “In every action or proceeding wherein the pleading . . . contains allegations which show
that the law of another state must be applied, the courts of this state shall take judicial notice of the public statutes and
judicial decisions of said state.” Rule 55.21(b) (emphasis added). The Wilsons’ petition contained allegations
sufficient to put the parties and the trial court on notice that the cause of action was being pled under Oklahoma law.
Rule 55.21(b) uses mandatory language (“shall”) to import a mandatory trial court duty—thus, waiver is inapplicable.


                                                             5
The trial court failed to do so. That liability could (potentially or theoretically) be apportioned to

non-parties was, therefore, insufficient legal justification for a Rule 52.04 dismissal under these

facts, and the trial court committed prejudicial error in dismissing the Wilsons’ petition on that

basis.

         The judgment of the trial court is reversed and remanded for further proceedings consistent

with this opinion.


WILLIAM W. FRANCIS, JR., P.J. - OPINION AUTHOR

JEFFREY W. BATES, J. - CONCURS

DANIEL E. SCOTT, J. – CONCURS AND FILES SEPARATE CONCURRING OPINION




                                                  6
ESTHER A. WILSON, ALEC WILSON,          )
and ESTHER A. WILSON,                   )
as Personal Representative of the       )
Estate of KELLI A. WILSON, deceased,    )
                                        )
      Plaintiffs-Appellants,            )      No. SD35233
                                        )      Filed: January 9, 2019
vs.                                     )
                                        )
NEW PRIME, INC.,                        )
                                        )
      Defendant-Respondent.             )

                          CONCURRING OPINION

      Oral argument confirms that Oklahoma law likely applies no matter where
this trial occurs, so the trial court should have considered it, yet neither party
advised the court, which then cited Missouri’s much-different substantive law in
dismissing the case. Our principal opinion could exhaustively detail other cases
and authorities supporting the result we reach, but counsel’s commendable candor
in the foregoing respects makes that unnecessary. I concur.

DANIEL E. SCOTT, J. – CONCURRING OPINION AUTHOR
