Hickory v. Morlang

Hickory v. Morlang (2004-212); 178 Vt. 604; 878 A.2d 318

2005 VT 73

[Filed 06-Jul-2005]

                                 ENTRY ORDER

                                 2005 VT 73

                      SUPREME COURT DOCKET NO. 2004-212

                              APRIL TERM, 2005

  Jay K. Hickory and Mona B. Hickory	}	 APPEALED FROM:
                                        }
                                        }
       v.	                        }	Rutland Superior Court
                                        }	
  Merton Morlang and Eleanor Morlang,	}
  Intervenor	                        }	DOCKET NO. 263-4-01 Rdcv

                                                Trial Judge: Richard W. Norton

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Eleanor Morlang appeals two superior court orders: the first
  denying her motion to amend her intervenor complaint to allege negligence
  on the part of Merton Morlang; and the second denying her motion to
  preclude the dismissal of Merton Morlang as a party following the entry of
  a settlement agreement.  We affirm.

       ¶  2.  This case arises out of an automobile accident that occurred
  on December 11, 1999 in Bridgewater, Vermont between vehicles operated by
  Jay Hickory and Merton Morlang.  Merton Morlang and his wife, the
  appellant, are New York residents who were traveling through Vermont when
  the accident occurred.  The occupants of the Hickory vehicle sustained
  injuries and property damage, and appellant was badly injured.  The
  Hickorys subsequently brought suit against Mr. Morlang alleging negligence. 
  Unfortunately for appellant, New York law then in effect-which governed the
  Morlang's insurance contract-did not permit her to recover from her
  husband's insurance company if she sued him and proved his negligence in
  court.  N.Y. Ins. Law § 3420(g) (2000). 

       ¶  3.  Appellant attempted to circumvent this problem by intervening
  in the case as a third-party plaintiff against the Hickorys.  She assumed
  that, in defending against her claims, the Hickorys would work to prove her
  husband's negligence, and the jury would apportion responsibility between
  the Hickorys and Mr. Morlang.  Appellant hoped to then take the judgement
  to her husband's insurer in an effort to recover his share of the damage
  liability.

       ¶  4.  The Hickorys settled their claims against Mr. Morlang a week
  before the case went to trial, however, and Jay Hickory moved the superior
  court to dismiss Mr. Morlang from the case.  Appellant objected to the
  dismissal, and also moved to amend her complaint to add a claim for
  negligence against her husband.  The court denied appellant's motion to
  amend as untimely, and then dismissed Mr. Morlang because no claims
  remained pending against him.  This appeal followed.
   
       ¶  5.  While we have instructed the trial courts to be liberal in
  allowing a party to amend its pleadings, we will reverse a court's decision
  to deny such a motion only where there is an abuse of discretion. 
  Lillicrap v. Martin, 156 Vt. 165, 170, 591 A.2d 41, 44 (1991).   In
  determining whether to allow a party to amend its complaint, the trial
  court should consider four factors: "(1) undue delay; (2) bad faith; (3)
  futility of amendment; and (4) prejudice to the opposing party."  Perkins
  v. Windsor Hosp. Corp., 142 Vt. 305, 313, 455 A.2d 810, 815 (1982).  

       ¶  6.  Several of the factors identified in Perkins weigh against
  appellant here.  First, amending the complaint would have caused undue
  delay.  Appellant had the opportunity to allege negligence against her
  husband when she initially intervened in the case; she concedes that she
  chose not to assert this claim because she could not recover from his
  insurance company pursuant to New York law.  Appellant's decision to add a
  new party to her claim just before the trial would undoubtedly have
  resulted in delay, as her husband prepared to defend a new claim.  Second,
  an amended complaint would not have afforded appellant the relief she
  seeks.  As discussed above, New York law did not permit her to collect from
  her husband's insurer should she prove his negligence in court.  Appellant
  concedes that this issue prevented her from asserting this claim in the
  first instance, and it does not appear that any relevant circumstances had
  changed at the time of her motion.  In light of these factors, the court
  did not abuse its discretion by denying appellant's motion to amend.

       ¶  7.  Once the court denied appellant's motion to amend, no claims
  remained pending against Mr. Morlang, and the court acted well within its
  discretion by dismissing him from the case.  While V.R.C.P. 41 prevents the
  court from dismissing a party against objection when a claim or
  counterclaim remains pending, the Rule does not preclude the dismissal of a
  party against whom no claims remain.  Because no claims remained pending
  against Mr. Morlang, the court properly denied appellant's motion to
  preclude his dismissal.

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice
     
                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Michael S. Kupersmith, District Judge 
                                       Specially Assigned

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned