Jerry and Kimberly Norman, Individually and as Husband and Wife, and Jerry Norman, as plaintiff ad litem for Kenneth Norman, a deceased minor, Appellants, v. Andy J. Wright, M.D., Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Jerry and Kimberly Norman, Individually and as Husband and Wife, and Jerry Norman, as plaintiff ad litem for Kenneth Norman, a deceased minor, Appellants, v. Andy J. Wright, M.D., Respondent. Case Number: SC86089 Handdown Date: 01/25/2005 Appeal From: Circuit Court of Greene County, Hon. J. Miles Sweeney Counsel for Appellant: David W. Ransin Counsel for Respondent: Joel A. Block, Bruce E. Hunt and Glenn A. Burkart Opinion Summary: After Kimberly and Jerry Norman's son died from brain damage suffered during birth, they filed a wrongful death suit against Dr. Andy Wright, another doctor and the hospital. A year before trial, the Normans reached a $100,000 settlement with the other doctor and the hospital. During trial, Wright asked the jury to apportion the fault of all three parties. The court granted the Normans' motion to strike the request. Wright did not move to amend his answer and later waived jury apportionment under section 538.230, RSMo 2000. The jury awarded the Normans more than $308,850 in damages against Wright, who moved to reduce the verdict by $100,000 under section 537.060, RSMo

1. The court reduced the verdict, and the Normans appealed. This Court reversed that judgment and remanded

the case, holding that a reduction under section 537.060 must be pled and proved as an affirmative defense. Norman I, 100 S.W.3d 783, 786 (Mo. banc 2003). On remand, the court allowed Wright to amend his answer to assert the affirmative defense and again reduced the verdict by the amount of the pretrial settlement with the other defendants. The Normans appeal. REVERSED AND REMANDED. Court en banc holds: In a footnote in Norman I, this Court said it need not "decide how late a trial court may permit amendment of the pleadings in order to request a reduction under section 537.060." This footnote should not have been read to undercut this Court's holding, however, by allowing an amendment to the answer in this case to

assert an affirmative defense years after the trial. A settlement with some but not all of the defendants in a case may trigger a remaining defendant's motion to amend the answer to raise the affirmative defense of reduction under section 537.060 or the affirmative defense of an apportionment under section 538.230, which applies to health care providers. To avoid arguments of prejudice, a defendant should move to assert these affirmative defenses as soon as possible after a partial settlement. Here, the partial settlement occurred a year before trial, and Wright abandoned his effort to amend his answer to assert the affirmative defense of apportionment under section 538.230. He cannot now seek to amend his answer to assert an affirmative defense after the case has been tried. The circuit court abused its discretion in allowing Wright to amend his pleadings to assert the affirmative defense after trial. Citation: Opinion Author: Michael A. Wolff, Judge Opinion Vote: REVERSED AND REMANDED. All concur. Opinion: This Court again considers the judgment upon the verdict in favor of Kimberly and Jerry Norman against Dr. Andy J. Wright for the wrongful death of the Normans' son. In the first appeal, Norman I , 100 S.W.3d 783 (Mo. banc 2003), this Court reversed the circuit court's judgment reducing the verdict by the amount of a pretrial settlement with two other defendants. This appeal presents essentially the same question. After remand, the circuit court allowed an amendment to Dr. Wright's answer to assert an affirmative defense and again reduced the verdict by the amount of the pretrial settlement. After opinion in the Court of Appeals, Southern District, this Court granted transfer and has jurisdiction. Mo. Const. art. V, section 10. The facts, as set forth in Norman I , show that the Normans' son died from brain damage suffered during birth. The Norman's sued Dr. Wright, another doctor, and a hospital. A year before trial, the Normans reached a settlement in the amount of $100,000 with the hospital and the other doctor. After the settlement, only the claims against Dr. Wright remained and were the subject of the trial. In his answer, filed after the settlement, Dr. Wright requested that the jury apportion the fault of all parties, citing section 538.230. (FN1) The circuit court granted the Normans' motion to strike the request, citing a lack of specific allegations. Dr. Wright

did not amend his answer to make his affirmative defense more specific. Later, during a pretrial conference, Dr. Wright waived jury apportionment under section 538.230. After the jury awarded the Normans' $308,855.35, Dr. Wright moved to reduce the verdict by $100,000, citing section 537.060. (FN2) This Court held in Norman I that a reduction under section 537.060 must be pleaded and proved as an affirmative defense. 100 S.W.3d at 785. This Court held: "The trial court should not have reduced the judgment, because Dr. Wright failed to plead and prove the affirmative defense of reduction under section 537.060." 100 S.W.3d at 786. In a footnote to this holding, this Court said that it need not "decide how late a trial court may permit amendment of the pleadings in order to request a reduction under section 537.060." This part of the footnote should not have been read to undercut this Court's holding by allowing an amendment to the answer in this case to assert an affirmative defense years after trial. A settlement with some, but not all, defendants may trigger a remaining defendant's motion to amend the answer to raise the affirmative defense of reduction under section 537.060 or the affirmative defense of an apportionment under section 538.230, which applies to health care providers. 100 S.W.3d at 785. Amendment of pleadings is addressed to the sound discretion of the trial court. Rule 55.33. Prompt assertion of these affirmative defenses after a partial settlement will negate or substantially undercut arguments of prejudice -- arguments that might otherwise cause a trial court judge to exercise discretion to deny an amendment. The partial settlement in this case occurred a year before trial. Prior to trial, Dr. Wright attempted to amend his answer to assert the affirmative defense of apportionment under section 538.230. He later abandoned this effort before trial. Dr. Wright waited until after trial to move that the verdict be reduced by the $100,000 amount of the settlement with the two defendants, under section 537.060. This Court in Norman I specifically disapproved a court of appeals decision that held that a motion for reduction of the verdict under section 537.060 may be filed, considered and ruled at any time after entry of judgment. (FN3) Here, as this Court noted in Norman I , the issue of reduction under section 537.060 was not raised by the pleadings, and the case was tried without any reference to that statute. In this appeal, Dr. Wright does not seek a new trial. He seeks only to apply an affirmative defense after the case has been tried. In the context of this case, that is too late. The settlement that was reached with the other two defendants was, as noted, a year before the trial of this case. The trial court could have considered an amendment as timely during that period. In the circumstances of this case, it was an abuse of discretion for the trial court to allow an amendment to the pleadings to assert an affirmative defense after trial.

The judgment of the circuit court is reversed, and the case is remanded for the entry of a judgment on the jury's verdict that does not include a reduction for the settlement amount. All concur. Footnotes: FN1. All references are to RSMo 2000 unless otherwise indicated. FN2. Section 537.060 provides in part: Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. FN3. Julien v. St. Louis University, 10 S.W.3d 150, 152 (Mo. App. 1999) Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.