Submitted: September 20, 2016
from United States District Court for the Eastern District of
Missouri - St. Louis
WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
Barbara Williams appeals the district court's denials of
two motions to remand; grant of judgment on the pleadings in
favor of the defendant-appellees Employers Mutual Casualty
Company, Capitol Indemnity Insurance Co., and Owners
Insurance Company; and grant of consent judgment in favor of
the defendant-appellee The Collier Organization, Inc. We
Collier Organization, Inc. (Collier) was the owner of Autumn
Hills Mobile Home Park (Autumn Hills) in Old Monroe,
Missouri. From 1998 to 2009, Collier purchased commercial
general liability insurance policies from three different
insurance companies: Employers Mutual Casualty Company
(Employers), Capitol Indemnity Insurance Company (Capitol),
and Owners Insurance Company (Owners) (collectively, the
Insurers). Employers issued three year-long policies,
covering the period from March 13, 1999, to March 13, 2002.
Capitol issued two year-long policies, covering the period
from April 1, 2003, to April 1, 2005. Owners issued four
year-long policies, covering the period from April 1, 2005,
to April 1, 2009. Each policy provided that the relevant
insurance company had a duty to defend and indemnify Collier
for "bodily injury and property damage" resulting
March 5, 2008, Michelle Pratt brought a class-action lawsuit
(Original Action) in Lincoln County, Missouri Circuit Court
on behalf of the residents of Autumn Hills against Collier
and two other entities that are not parties in this case.
Williams was later substituted as class representative. The
state court certified a class of Autumn Hills residents.
complaint alleged that from 1999 to 2008, the two wells that
supplied Autumn Hills with drinking water contained illegal
levels of Radium 226, combined Radium 226 and Radium 228,
gross alpha particle activity, and coliform bacteria.
According to the complaint, Collier was aware the water
supply was contaminated, and failed to correct the issue.
Further, the complaint alleged that Collier failed to inform
Autumn Hills residents of the contamination, as required by
Missouri law. As a result, the complaint stated, class
members "suffered injury and damages including, but not
limited to, the payment of monies to the Defendants for rent,
water and sewer systems; the diminution in value of . . .
property; costs of relocation; purchasing alternative sources
of water; mental anguish and other damages." The
complaint additionally alleged that Collier promised to build
a picnic area, basketball court, and other amenities at
Autumn Hills, and never did. The complaint asserted claims
for fraud, violation of the Missouri Merchandising Practice
Act, breach of the implied warranty of habitability,
negligence, negligence per se, and breach of contract.
informed each of the Insurers of the complaint, and demanded
indemnity and defense. Each of the Insurers declined.
Thereafter, Williams entered into an agreement with Collier,
which provided that Collier would assign the rights to its
insurance proceeds to Williams, as class representative. In
exchange, Williams agreed that if the class obtained judgment
against Collier, the class' recovery would be limited to
those insurance proceeds. This type of agreement is
specifically authorized by Missouri law. See Mo.
Rev. Stat. § 537.065.
state court held an evidentiary hearing to determine
liability. At the hearing, Williams dismissed all claims
except for the negligence claim, and orally amended the
pleadings to add a claim for trespass. Shortly after the
hearing, the state court entered findings of fact,
conclusions of law, and a judgment in favor of the class.
Specifically, the state court concluded that Collier
"pump[ed] water with levels of combined Radium 226 and
Radium 228 and Gross Alpha Particle Activity levels that
exceeded the established maximums." The state court also
concluded that the class suffered bodily injury and property
damage as a result of the Radium and alpha particle activity
in the water. On August 28, 2013, after a separate hearing on
damages, the state court awarded the plaintiffs $70, 085, 000
for medical monitoring, and $11, 952, 000 for the loss in
value to their homes.
October 18, 2013, Williams filed an equitable garnishment
action in state court against the Insurers and Collier
pursuant to Missouri Revised Statute § 379.200, which
provides that if a plaintiff's judgment against a
defendant is not satisfied within thirty days, "the
judgment creditor may proceed in equity against the defendant
and the insurance company to reach and apply the insurance
money to the satisfaction of the judgment." The
complaint stated that Williams was bringing the equitable
garnishment action "as class representative, by and
through class counsel."
Insurers removed the case to the United States District Court
for the Eastern District of Missouri, asserting jurisdiction
under the Class Action Fairness Act (CAFA), 28 U.S.C. §
1332(d). Williams moved to remand, arguing that the equitable
garnishment action was not a "class action" as
defined by § 1332(d)(1)(B). The district
court denied the motion on April 8, 2014,
concluding that although the garnishment action was not
brought under a statute specifically authorizing class action
suits, it was a class action under CAFA because Williams
filed it on behalf of a class. Later, after the case was
reassigned to a different district court judge,
Williams filed a renewed motion to remand,
which the district court denied on July 28, 2015.
Insurers each moved for judgment on the pleadings. Each
argued that it was not obligated to defend or indemnify
Collier, because none of the claims asserted in the Original
Action were covered by the policies issued to Collier. The
district court granted judgment on the pleadings in favor of
the Insurers on March 2, 2015. First, it concluded as a
matter of law that the allegations that Autumn Hills'
drinking water supply contained illegal levels of Radium,
alpha particle activity, and coliform bacteria fell within a
pollution exclusion contained in each policy. Second, it
concluded as a matter of law that the allegations that
Collier failed to build promised amenities at Autumn Hills
were not covered by the policies because the policies did not
provide coverage for breach of contract.
point, Collier still had not been served with process. On
March 3, 2015, the district court ordered Williams to show
cause as to why Collier should not be dismissed without
prejudice pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure. Williams responded, explaining that if she filed
an appeal before obtaining service on Collier, the Eighth
Circuit might deem the appeal premature, and remand it to the
district court. Williams then served Collier. Collier failed
to appear, and Williams moved for a default judgment, which
was granted on August 25, 2015. On October 8, 2015, the court
set aside the default judgment against Collier and allowed
Collier to file a motion to dismiss, which it then denied.
October 21, 2015, the district court entered a "Consent
Judgment" in favor of Collier. The order stated,
"The only remaining defendant in this equitable
garnishment action is Collier. Collier is a nominal but
necessary party under Missouri's equitable garnishment
statute. Mo. Rev. Stat. § 379.200. Based on its prior
ruling, the Court finds no relief can be obtained against
Collier under Mo. Rev. Stat. § 379.200 and the Court
must enter judgment in favor of Collier." Counsel for
Collier and Williams both signed the judgment. Williams filed
a notice of appeal on November 2, 2015.
appeals the district court's denials of her two motions
to remand, as well as the district court's grant of
judgment on the pleadings in favor of the Insurers, and grant
of consent judgment in favor of Collier. Before we reach
Williams' arguments, we must consider the Insurers'
contention that we lack jurisdiction over this appeal.
Jurisdiction over appeal
initial matter, the Insurers contend that we lack
jurisdiction to consider this appeal. They argue that a
consent judgment is not appealable, that the March 2, 2015,
judgment on the pleadings was a final judgment, and that the
district court erred in granting Williams an extension of
time to file a notice of appeal to the judgment on the
pleadings. The Insurers previously moved to dismiss this
appeal on the same grounds. An administrative panel denied
that motion without comment. This court has an ongoing
obligation to consider its own jurisdiction. United
States v. Stanko, 762 F.3d 826, 828 n.3 (8th Cir. 2014)
(per curiam). However, "an administrative panel's
denial of a motion to dismiss for lack of jurisdiction
typically 'is the law of the case, ordinarily to be
adhered to in the absence of clear error or manifest
injustice.'" Id. (quoting McCuen v. Am.
Cas. Co., 946 F.2d 1401, 1403 (8th Cir. 1991)).
the Insurers argue that a consent judgment like the one the
district court entered in favor of Collier is not appealable.
They further argue that all of the district court's
orders prior to the consent judgment merge into the consent
judgment, and, therefore, are likewise not appealable. We
have previously held that appellate jurisdiction exists over
all "final decisions, " regardless of what form
they take. See Great Rivers Coop. v. Farmland Indus.,
Inc., 198 F.3d 685, 689 (8th Cir. 1999) (holding that
there is appellate jurisdiction over a voluntary dismissal
without prejudice, but noting that an appellate court has
discretion to reverse a district court's grant of
voluntary dismissal, or to deem an ambiguous voluntary
dismissal to be with prejudice). Here, the consent judgment
was a final decision because it unconditionally disposed of
the last of Williams' unresolved claims. Thus, we have
jurisdiction over the appeal of the consent judgment.
there is a non-jurisdictional limitation on appeals from
consent judgments: Generally, where a party consents to a
judgment, it has waived its right to appeal the claims
disposed of by that judgment. See Scanlon v. M.V. SUPER
SERVANT 3, 429 F.3d 6, 8 (1st Cir. 2005) (collecting
cases); Walling v. Miller, 138 F.2d 629, 631 (8th
Cir. 1943). But several courts have recognized an exception
to this general rule, holding that a party has not waived its
right to appeal a consent judgment when the consent judgment
followed a ruling that was, as a practical matter,
case-dispositive. Those courts reason that in such
circumstances, the party adverse to the dispositive ruling
has consented to putting the ruling in its final form, not to
the substance of the judgment. See Taylor Brands, LLC v.
GB II Corp., 627 F.3d 874, 878 (Fed. Cir. 2010)
(stipulated judgment was appealable where it followed a
partial summary judgment order that was practically
case-dispositive); OFS Fitel, LLC v. Epstein, Becker
& Green, P.C., 549 F.3d 1344, 1357 (11th Cir. 2008)
(consented-to judgment of dismissal was appealable where it
followed the district court's exclusion of the
appellant's expert witness, and the appellant's legal
malpractice claims inherently required the testimony of an
expert witness); The Ansaldo San Giorgio I, 73 F.2d
40, 41 (2d Cir. 1934) (consent decree was appealable where it
"merely carried into effect the court's previous
decision on a litigated issue"); cf. United States
v. Procter & Gamble Co., 356 U.S. 677, 679-80 (1958)
(judgment of dismissal was appealable where the government
refused to obey a district court order to produce grand jury
transcripts, and the government asked the district court to
order dismissal as a sanction-rather than civil contempt or
some other sanction-in order to expedite review).
the record shows that Williams consented to entry of judgment
because Collier was a nominal defendant, and, as a result,
the district court's grant of judgment on the pleadings
in favor of the Insurers effectively disposed of
Williams' entire case. Under these circumstances, we
conclude that Williams' consent to entry of judgment
against her represented consent to the form, rather than the
substance, of the judgment. Accordingly, Williams has not
waived her right to appeal the consent judgment.
the Insurers argue that we have no jurisdiction over the
appeal of the March 2, 2015, judgment on the pleadings
entered in favor of the Insurers. According to the Insurers,
the judgment on the pleadings was a final, appealable order,
and the district court abused its discretion in granting
Williams an extension of time to file its notice of appeal of
the judgment. Thus, the Insurers argue, the ...