Sparkman v. Columbia Mutual Insurance Co.

271 S.W.3d 619, 2008 Mo. App. LEXIS 1683, 2008 WL 5136332
CourtMissouri Court of Appeals
DecidedDecember 8, 2008
DocketSD 28891
StatusPublished
Cited by12 cases

This text of 271 S.W.3d 619 (Sparkman v. Columbia Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sparkman v. Columbia Mutual Insurance Co., 271 S.W.3d 619, 2008 Mo. App. LEXIS 1683, 2008 WL 5136332 (Mo. Ct. App. 2008).

Opinion

GARY W. LYNCH, Chief Judge.

Columbia Mutual Insurance Company (“Columbia Mutual”) appeals the trial court’s judgment on a jury verdict in favor of Lisa Sparkman. Columbia Mutual contends, first, that the trial court erred in excluding the testimony of Marcus Gross because the exclusion amounted to an impermissible credibility determination by the trial court and his testimony was otherwise admissible under an exception to the hearsay rule, and, second, that the trial court erred in submitting Instruction 8 to the jury because it was not supported by substantial evidence. We affirm the judgment.

Factual and Procedural Background

Sparkman is the owner of the Gordon-ville Food and Fuel — a gas station with four gas pumps and a small convenience store — in Pemiscot County, Missouri. Vicki Lanpher worked full-time for Spark- *621 man, and on May 2, 2003, Sparkman leased the business with an option to purchase to Vicki and her husband, Stanley Lanpher. 1 Pursuant to the terms of the lease agreement, the Lanphers acquired and maintained a fire insurance policy on the property with Sparkman listed as an additional insured. The lease provided that, in the event of a fire, Sparkman would receive the insurance proceeds for the real property, as well as any of the contents that she owned, and the Lanphers would receive the proceeds for any.of the contents that they purchased for the business. Under the terms of the Columbia Mutual policy, the loss limit for the main building was $153,000.00; for any personal property, $45,000.00; and for the outbuilding canopy covering the gas pumps, $4,080.00.

Six to eight months after taking over the business, the Lanphers fired an employee, Tim Little, for being “unruly” toward Vicki. Immediately thereafter, the Lan-phers changed the locks to the store. Following his termination, Little often threatened Vicki, and in June 2004, Little was arrested for assaulting Vicki; in November 2004, he pleaded guilty to assault and received a suspended nine-month sentence. On December 2, 2004, the Gordonville Food and Fuel was completely destroyed by fire. Pursuant to the terms of the policy, the Lanphers filed a “Proof of Loss” with Columbia Mutual, listing everything that they could recall being in the store prior to the fire. When Columbia Mutual refused to pay on the claim, Spark-man and the Lanphers filed suit, claiming breach of contract and vexatious refusal to pay pursuant to Section 375.420. 2 Bank of America was also named as a defendant, as the mortgage-holder on the property.

Just before trial, Columbia Mutual paid $75,970.45 into the court’s registry, in order to satisfy the mortgage clause of the insurance policy. This was the amount remaining on the Bank of America mortgage, including interest, as of the date of the fire. A stipulation was filed with the trial court acknowledging that, in exchange for Columbia Mutual’s deposit with the court, Sparkman waived any vexatious refusal to pay claim with regard to the mortgage clause, as well as any argument relating to mortgage payments at trial. Columbia Mutual then filed a motion to dismiss Sparkman as a plaintiff, claiming that her only interest in the policy was as mortgagee, and that interest had been resolved. Columbia Mutual never sought a ruling on this motion by the trial court. Sometime after the filing of this motion, the Lanphers assigned them claims against Columbia Mutual to Sparkman, and following trial, Sparkman dismissed Bank of America as a defendant from the underlying action.

At trial, the parties stipulated that the fire was intentionally set. This was in large part because the criminal investigation into the arson had not yet been completed at the time of trial, and the state fire marshal was unable to comment as to the specifics of the origin of the fire. Columbia Mutual’s sole defense at trial was that the Lanphers set the fire themselves so as to collect on the insurance policy, thus absolving Columbia Mutual from any obligation to pay on the contract. Specifically, Columbia Mutual pointed to the Lan-phers’ alleged dire financial situation, as well as suspicious behavior surrounding the fire itself. Sparkman countered Columbia Mutual’s defense by intimating that Tim Little could have set the fire out of *622 revenge and by pointing out that the Lan-phers would not have profited from the insurance money, as they had sunk more money into the property than they would have received on the claim.

As part of their- defense, Columbia Mutual sought to introduce the testimony of Marcus Gross, a patron of Gordonville Food and Fuel, which was accomplished by way of an offer of proof made by Columbia Mutual outside of the presence of the jury. During the offer of proof, Gross testified that he had entered the store a few weeks before the fire and overheard two women discussing a “fire” or “burnfing] it” and a “refund.” Gross admitted that he came within earshot too late to hear what exactly the two were talking about, but when he later saw that the gas station had burned down, he “assumed” that the women must have been talking about setting fire to the property. The trial court did not allow Gross to testify, saying that his personal knowledge of the conversation was too limited.

During the jury instruction conference, Sparkman submitted Instruction 8, which reads:

If you find in favor of plaintiff Lisa Sparkman, on her claim for damages, then you must award plaintiff Lisa Sparkman the sum of One Hundred Fifty Seven Thousand dollars ($157,000.0) [sic] for the loss of the insured buildings, and you must award plaintiff Lisa Sparkman the sum of Forty Five Thousand dollars ($45,000.0) [sic] for the loss of personal property, plus interest on the above at the rate of 9% per annum from December 2, 2004.

Columbia Mutual objected to the instruction on the ground it was not supported by the evidence and proceeded to argue that it was entitled to a set-off in the amount of the mortgage payoff, but conceded that the parties had already stipulated to such a setoff. The trial court acknowledged the stipulated set-off.

The jury returned a verdict for Spark-man on her breach of contract claim, and awarded her $202,000.00, plus interest from the date of the fire in the amount of $49,995.00. The jury found in favor of Columbia Mutual on Sparkman’s vexatious refusal to pay claim. The trial court entered judgment in accordance with the jury’s verdict reduced by the stipulated set-off amount. Columbia Mutual filed a motion for judgment notwithstanding the verdict or alternately for new trial, which was denied. This appeal timely followed.

Discussion

In its brief, Columbia Mutual presents two points for our review. We review them in reverse order.

Testimony of Marcus Gross

Columbia Mutual’s second point alleges reversible error in the trial court’s exclusion of the testimony of Marcus Gross. Specifically, Columbia Mutual contends that Gross’s testimony was admissible under the co-conspirator exception to the hearsay rule, and its exclusion left Columbia Mutual without a critical link in their arson defense between the Lanphers’ financial problems and their behavior leading up to and after the fire.

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Bluebook (online)
271 S.W.3d 619, 2008 Mo. App. LEXIS 1683, 2008 WL 5136332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sparkman-v-columbia-mutual-insurance-co-moctapp-2008.