Palmer Ex Rel. Diacon v. Farmers Insurance Exchange

761 P.2d 401, 233 Mont. 515, 1988 Mont. LEXIS 267
CourtMontana Supreme Court
DecidedSeptember 13, 1988
Docket87-459
StatusPublished
Cited by29 cases

This text of 761 P.2d 401 (Palmer Ex Rel. Diacon v. Farmers Insurance Exchange) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Palmer Ex Rel. Diacon v. Farmers Insurance Exchange, 761 P.2d 401, 233 Mont. 515, 1988 Mont. LEXIS 267 (Mo. 1988).

Opinions

MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The defendant, Farmers Insurance Exchange, appeals a 9-3 jury verdict from the Eighth Judicial District, Cascade County, finding it liable for $50,000 under two uninsured motorist policies to cover a motorcycle accident in which David Alaric Palmer suffered head injuries.

Palmer was injured on June 10, 1984, when his southbound 750-cc motorcycle went off the east side of U.S. 89 approximately fifteen miles north of White Sulphur Springs, Montana. His family subsequently filed claims for $25,000 in uninsured motorist protection on each of two policies issued by the defendant, claiming that a red semi tractor-trailer traveling north had forced Palmer off the road and had not stopped after the accident. The defendant refused the claims. It cited the Highway Patrol officer’s report that attributed the accident to Palmer’s recklessness and excessive speed. Neither Palmer, who is not able to recall the accident, nor the driver of the tractor-trailer, who was never identified or located, testified.

Serena Diacon was riding as a passenger on Palmer’s motorcycle at the time of the accident and suffered only cuts and bruises. She testified at trial that Palmer was driving south at about 50 m.p.h. when they came to a right-hand curve in the highway. On the east side of this curve (to the left of Palmer’s southbound motorcycle), Stud Horse Road enters the highway. Serena testified that Palmer was about two and one-half feet from the center line in his proper lane [518]*518when she looked over Palmer’s shoulder and saw the tractor-trailer “half in our lane and half in their lane.” This northbound tractor-trailer, which was straddling the center line of the highway, was traveling between 60 and 70 m.p.h., Serena testified. She said she ducked behind Palmer and braced herself as he swerved to the left; she could not say whether Palmer passed in front of or behind the tractor-trailer. The motorcycle traveled across the northbound lane of traffic, across the approach to Stud Horse Road, and flew off an adjacent embankment in pretty much of a straight line.

The only other witness to testify as to the position of the tractor-trailer was Frank Atchison, a water truck driver, who was following the tractor-trailer some 100 yards back. His testimony was that the tractor-trailer was so far to the right side of its proper lane of travel that it kicked up dirt and dust as it passed over the approach to Stud Horse Road. Through that dirt and dust, Atchison said he saw a “flash” that he thought was a motorcycle going off the road, but did not know whether it passed in front of or behind the tractor-trailer. Atchison stopped at Stud Horse Road, where he had planned to turn off originally, and helped Serena Diacon as she climbed up the embankment. Atchison testified that he was gaining on the tractor-trailer when the accident occurred and was driving 45 m.p.h. Thus, he said he believes the tractor-trailer was traveling no faster than 40 m.p.h. and believes the motorcycle was traveling more than 55 m.p.h. The defense presented other witnesses who testified that a red tractor pulling a trailer stopped several hundred yards north of the accident scene to inform them that he thought he, had seen through his side mirrors a motorcycle going off the road behind him.

The investigating Highway Patrol officer diagrammed the scene and measured skid marks. He testified that the motorcycle’s skid marks started just east of the center line (in the northbound lane), and extended in roughly a straight line off and on for 90 feet before reaching the dirt road, and then the embankment. His measurements show that the motorcycle was airborne for twenty-eight feet from this point and rolled another twenty-four feet. The patrolman did not learn of the tractor-trailer’s alleged involvement in the accident until one day later, when he talked to Serena. However, he inspected both lanes of traffic on the day of the accident and found no skid marks or other signs that a northbound vehicle had braked suddenly or hit any object. He testified that this indicates the motorcycle passed behind the tractor-trailer. Although his original report [519]*519said the accident was caused by Palmer’s excessive speed, he said at trial that he no longer has an opinion as to the cause of the accident.

The plaintiff presented various experts to testify as to the speed of the motorcycle. Professor Denman Lee, a Montana State University physicist, testified that the length of the skid marks, the height of the embankment, and the distance of flight indicated the motorcycle was traveling about 28 m.p.h. when it became airborne as it left the embankment, and about 48 m.p.h. at the point on the highway where it started to leave skid marks. Robert “Evil” Knievil, a motorcycle stunt driver, testified that had the motorcycle been traveling more than 25-30 m.p.h. when it left the embankment it would have been airborne farther. Also introduced as evidence were ambulance reports that indicated Palmer had been injured when his motorcycle left the road “at a moderate rate of speed” and a physician confirmed that Palmer’s injuries were consistent with moderate, speed, over defense’s objection that such testimony was impermissible hearsay as well as irrelevant.

The defendant raises these issues:

1. Did the District Court err when it allowed medical evidence concerning the injuries even though the defendant had stipulated to the severity of the injuries?

2. Did the District Court err by allowing the plaintiff to display certain video tapes to the jury?

3. Did the District Court issue an improper “sudden emergency” instruction?

4. Did the District Court err in computing prejudgment interest?

We affirm on all counts except for the last one. We remand the court’s order granting prejudgment interest for a new order consistent with this opinion.

This case presented difficulties in proof for both parties. In a sense each party was attempting to prove a negative since Palmer was asserting an unidentified tractor-trailer driver, not he, was responsible for the accident. In turn, the defendant asserted that this same unidentified tractor-trailer driver was nowhere near the center line of the highway, let alone straddling or crossing it. The jury voted 9-3 to accept Palmer’s version.

This Court presumes the verdict of a jury properly instructed on the law to be correct and will accept the evidence in a light most favorable to the prevailing party. Mountain West Farm Bureau Insurance v. Girton (Mont. 1985), [215 Mont. 408,] 697 P.2d 1362, 1363, 42 St.Rep. 500, 501. We do not disturb lightly the verdict of a [520]*520competent jury, Gee v. Egbert (1984), 209 Mont. 1, 18-19, 679 P.2d 1194, 1203. Instead we determine if substantial credible evidence exists in the record to support that verdict and, if such evidence exists, to affirm. Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 184-85, 44 St.Rep. 444, 445; Gibson v. Western Fire Insurance Co. (Mont. 1984), 210 Mont. 267, 682 P.2d 725, 736, 41 St.Rep. 1048, 1058; Wilhelm v. City of Great Falls (Mont. 1987), [225 Mont.

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Cite This Page — Counsel Stack

Bluebook (online)
761 P.2d 401, 233 Mont. 515, 1988 Mont. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmer-ex-rel-diacon-v-farmers-insurance-exchange-mont-1988.