Wendt v. General Accident Insurance Co.

895 S.W.2d 210, 1995 Mo. App. LEXIS 316

• Court: Missouri Court of Appeals
• Decided: February 21, 1995
• Docket: 63503, 63510
• Status: Published

Opinions

PUDLOWSKI, Judge.

Donald Wendt (husband) was involved in a collision with an underinsured motorist. Husband’s insurance carrier, General Accident Insurance Co., appeals from a decision in favor of husband on his claims for damages and loss of consortium against the un-derinsured motorist provisions of his insurance policy. It raises, among other issues, the question whether Betty Wendt’s (wife’s) past suit for her own injuries should estop husband from relitigating issues decided in her case. Husband cross appeals the trial court’s reduction of his award by 40% for his comparative fault and by an additional sum for the settlement he received from the un-derinsured motorist. We modify the judgment and, as modified, affirm.

This case comes before this writer as the result of a rehearing by the Court en banc. With permission, portions of the prior opinion have been incorporated without attribution. Husband was driving, with his wife as passenger, north on Germania Street across Gravois in St. Louis City. South of the intersection, the northbound side of Germa-nia is four lanes wide, consisting of a right turn lane (to turn east on Gravois), two through lanes, and a left turn lane (to turn west on Gravois). Husband was proceeding north in the through lane nearest the center of the road. He was following one car length behind another vehicle. North of the intersection, Germania’s name changes to Hampton and makes a noticeable bend to the right.

The underinsured motorist was proceeding southbound on Hampton in the left turn lane, intending to make a left turn onto eastbound Gravois. The underinsured motorist acknowledged his duty to yield to oncoming traffic while making a left turn under the green light. Testimony by the underinsured was by deposition and was read at trial. As he approached the intersection he asserted that he was slowing down, but still rolling, when he looked down to shift. The two vehicles then collided. Neither driver saw the other’s vehicle before impact.

However, the wife, who was a passenger in the northbound (husband’s) vehicle, testified that she saw the underinsured driver’s car, with its headlights on, turning into their car in the middle of the intersection. .She screamed, “he’s going to hit us.” The impact was severe, and caused considerable injuries to husband and wife. A police officer testified that the underinsured driver told him after the accident that the crash happened “as he was turning.”

The driver turning left held an insurance policy with liability limits of only $50,000 per person, and $100,000 per occurrence. Husband and wife filed separate suits against their own insurance company, General Accident, to compel them to honor the $500,000 underinsured motorist coverage in their policy. Husband and wife each then settled with this underinsured driver for the liability limits of $50,000 in his policy.

General Accident requested that the trial court consolidate the two suits, but the trial court refused. Wife’s cause went to trial first. She sought compensation for her personal injuries and for loss of consortium by reason of her husband’s injuries. The jury found against her and for General Accident. The trial court overruled all post-trial motions and she took no appeal.

Shortly after the verdict in the wife’s case, General Accident filed an amendment to its answer in husband’s case, which was still pending trial, raising the issues of collateral estoppel and comparative fault. Husband’s case then went to trial. The trial court refused to apply collateral estoppel to avoid relitigating issues already decided at the wife’s trial. Yet, it instructed the jury on comparative fault, based on the theories that husband was on the wrong side of the road, and that husband failed to keep a proper lookout. The jury found for husband, awarding him $217,500 for his personal injuries and $50,000 for his loss of consortium by reason of his wife’s injuries. However, it also apportioned 40% of the fault to husband.

General Accident moved that the trial court further reduce the award by $50,000 for amounts collected by husband in his settlement with the underinsured driver, and by another $50,000 for amounts collected by his wife in her settlement with the underinsured driver. The trial court sustained the reduction of the award by $50,000 for husband’s previous settlement with the underinsured driver, but declined to reduce the award by another $50,000 for the wife’s settlement. According to our computation, therefore, the final judgment entered by the trial court was for $110,500:

217,500 Husband’s personal injuries

50,000 Loss of consortium

267.500

<107,000> Less 40% comparative fault

160.500

<50,000> Settlement with underinsured

110.500 Total award

General Accident then appealed the judgment. It alleged that the trial court erred in refusing to apply the doctrine of collateral estoppel to avoid relitigating issues already decided in the wife’s previous trial. It also alleged that the trial court erred in ruling that husband had introduced enough evidence to make a submissible case on the underinsured’s failure to yield, failure to keep a careful lookout, and driving on the wrong side of the road.

Husband cross appealed that the trial court erred in instructing the jury on comparative fault because no substantial evidence supported the theories that he was on the wrong side of the road and that his failure to keep a lookout proximately caused the accident. He also alleged that the trial court erred in reducing his verdict by the $50,000 already paid to him as settlement for his claim against the underinsured motorist.

General Accident’s Appeal

Upon rehearing, we deem that the trial court was correct in its decision not to collaterally estop husband’s claims, both for his own injuries and for his loss of consortium due to his wife’s injuries. When considering the appropriateness of applying collateral estoppel in a given case, a court should consider:

(1) whether the issue decided in the prior adjudication is identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; and (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979).

Above all, it should consider whether the party against whom collateral estoppel is asserted had a “full and fair opportunity to litigate the issue in the prior suit,” for “fairness is the overriding consideration.” Id.

Neither of husband’s claims should be barred as the result of his wife’s failed suit. Husband, although he was a testifying witness at his wife’s trial, was not a party to that proceeding. Nor was he in privity with her. Missouri has long ago eschewed the concept of privity founded solely upon marriage. Wives are not bound to judgments against their husbands, and vice versa. Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 446 (1907). Nor can we infer privity between two people merely because they both have an interest in proving or disproving the same set of facts, share the same attorney, testify for each other, or sustain injuries in the same vehicle. Steinhoff v. Churchill Truck Lines, Inc., 875 S.W.2d 175, 177 (Mo.App.E.D.1994). Husband in this action is not in legal privity with his wife by estate, contract, or otherwise. Thus, barring husband’s personal injury and consortium claims would violate the third prong of Oates.

However, General Accident maintains that at least the loss of consortium claim should be barred because husband’s claim is derivative of wife’s claim. We disagree. While it is often said that a consortium claim is “derivative,” see, e.g., Burrow v. Moyer, 519 S.W.2d 568, 572 (Mo.App.1975), it is also said that a claim for loss of consortium is “separate and distinct” from the spouse’s claim for her injuries, Marusic v. Union Electric Company, 377 S.W.2d 454, 459 (Mo.1964), and that they are “two independent causes of action,” Garland v. American Family Mutual Insurance Co., 458 S.W.2d (Mo.App.1970). We believe that these statements are best reconciled by the view that a consortium claim is a separate, distinct, and personal legal claim, and is derivative only in the sense that it must be occasioned by a spouse’s injury. See Peeples v. Sargent, 77 Wis.2d 612, 253 N.W.2d 459, 471 (1977).

In Womach, supra, a case squarely on point with the present facts, the Supreme Court of Missouri held that a wife’s failure to prevail in a separate suit for her own personal injuries does not bar a husband’s subsequent suit for his loss of consortium by reason of her injuries. When a spouse is injured, the other spouse suffers. Each spouse bears a separate real loss, and each should be afforded an opportunity to seek redress for that loss in the way that he or she sees fit. We note that there is a current trend in some, but by no means all, foreign jurisdictions tending to oppose the result of Womack. See Restatement (Second) of Judgments '§ 48, cmt. c (1982). However, the pronouncements of foreign courts and commentators carry no precedential value, and we are bound by the long standing Supreme Court precedent of Womack.

The minority opinion argues that Rule 66.01(c),¹ effective July 1, 1965, changes the WoraacA result. We acknowledge that this Rule can compel negligence and consortium claims to be tried together in certain circumstances. However, none of those circumstances attend this case.

Rule 66.01(c) ... makes the joint filing procedure mandatory in two instances: (1) if notice is given, or (2) if both spouses have ever been coparties and in these two instances only. (Our emphasis).

Cline v. Carthage Crushed Limestone Company, 504 S.W.2d 118, 119 (Mo.1974).

The notice must be “written notice,” Rule 66.01(c), and must be served either personally with proof by return of the officer or affidavit, or by registered or certified mail with a return signed by the addressee, Rule 66.01(d).² General Accident never alleged that it gave proper notice to husband. In fact, Rule 66.01 never appeal’s in any briefs to this Court or in the record, and it is not the duty of this Court to act as an attorney for the parties. Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). To our knowledge, General Accident has not availed itself of Rule 66.01, and the record bears no evidence of proper compliance with the notice provision.

Nor have husband and wife ever been co-parties to each other’s cases. In this case, husband chose to remain a complete stranger to his wife’s action. Motions to consolidate were overruled.

In light of the Supreme Court’s pronunciation in Oates, supra, fairness should be the ultimate consideration in collateral estoppel cases. General Accident apparently never gave notice under the Rule, and husband and wife never voluntarily joined as co-parties. By providing a separate notice provision, Rule 66.01 implicitly recognizes that it would be unfair to completely bar a spouse’s action without giving him or her prior actual notice of this harsh possibility. “ ‘It is also a most obvious principle of justice that no man ought to be bound by proceedings to which he was a stranger_’ ” Womach, 100 S.W. at 445, quoting 1 Greenl. on Ev. § 523 (16th ed.). We deem that the trial court properly afforded husband his fair day in court for his separate and distinct losses in accordance with Supreme Court precedent. General Accident’s points on appeal with respect to collateral estoppel are, therefore, denied.

General Accident next contends that the trial court erred in denying its motion for directed verdict because husband failed to make a submissible case. General Accident claims that there is no evidence of the under-insured motorist’s negligence in failing to yield the right-of-way, failing to keep a careful lookout, and driving on the wrong side of the road. Separately, General Accident attacks the court’s submission of these theories in the disjunctive. We have reviewed the transcript and find that there was substantial evidence to support each of the specifications of negligence in husband’s instruction as submitted. However, extended discussion of these fact intensive issues would be of no precedential value. We deny these points pursuant to Rule 84.16(b).

General Accident next asserts that Instruction No. 8 confused and misled the jury by obscuring the fact that the liability of General Accident depended on husband being legally entitled to recover from the un-derinsured motorist. We hold that any ambiguity caused by Instruction No. 8 was cured by the converse instruction, Instruction No. 9, which stated:

In your verdict you must not assess a percentage of fault to General Accident Insurance Company unless you believe Steven Webb’s conduct was negligent as submitted in Instruction No. 8.

This converse instruction made clear to the jury that they were not to assess a percentage of fault to General Accident unless they found Webb (the underinsured motorist) negligent. Point denied.

Finally, General Accident contends that the trial court erred by not reducing husband’s verdict by an additional $50,000 for funds received by his wife from the un-derinsured motorist. As stated earlier, we hold that husband’s cause of action is distinct from hers. Any funds received by wife in settlement for her cause of action in no way affects husband’s cause of action or rights under the policy. Under the policy, husband remains “legally entitled to recover” from the underinsured for his distinct claims (and, therefore, from General Accident) even after the underinsured’s settlement with his wife for her distinct claims. Point denied.

Cross Appeal

We now address husband’s points on cross appeal. First, husband alleges that it was error to submit a comparative fault instruction because there was no substantial evidence to support the theory that husband was on the wrong side of the road, or that his alleged failure to keep a careful lookout was a contributing cause to the accident. We agree with this point.

A comparative fault instruction is not warranted in every negligence suit. Rather, the defendant bears the burden of producing evidence to support the instruction. Finninger v. Johnson, 692 S.W.2d 390, 393 (Mo.App.E.D.1985). While the instruction may be based on any theory supported by the evidence as construed most favorably to defendant, it must be based on “substantial evidence,” and not merely a “scintilla of evidence, or speculative deductions and conclusions.” Id.

As to the “wrong side of the road” theory, General Accident claims that this is supported by the relative positions of the vehicles after the crash. However, mere evidence of the positions of vehicles after a crash raises conflicting inferences, and does not make a submissible case. Bentley v. Crews, 630 S.W.2d 99, 102 (Mo.App.1981). Likewise, the damage to the left and front sides of both cars raises equally conflicting inferences in this case, and therefore carries no substantial probative value.

No other evidence was introduced from which the jury could infer that husband was on the wrong side of the road. The other driver does not remember the accident, nor does he even remember seeing husband and wife’s car before impact:

Q Where was the other car when you first saw it?

A Stopped — You mean after' the accident?

Q Yes. Well, did you ever see it before the accident?

A No. I never seen, heard nothing, [sic]

As far as the position of his own car before the crash, the underinsured’s deposition does say that he was moving forward, not to the left. Yet, we do not regard this evidence to be sufficient to support the instruction. Even in the most favorable light, statements by a driver about his position in the road do not carry substantial weight where that driver admits that he was not even looking at the road:

Q And the last you remember is putting your car in neutral?

A Yes, sir. I remember looking down and pushing my stick shift into neutral and then that’s the last thing I remember.

The minority opinion suggests that even though the underinsured driver was not looking at the road at the time of the accident, his statement about where he was is reliable because “a driver can be expected to know whether he has turned the steering wheel and can quite often sense a change in direction by sensation or peripheral vision.” We disagree.

No evidence was introduced by General Accident as to the position of the steering wheel, the driver’s- sensations, or his peripheral vision. As mentioned above, an instruction must be based upon substantial evidence, not merely a scintilla of evidence or speculative deductions. Finninger, supra. The minority’s account of how the underin-sured driver knew his precise position in the road when he was “glancing down” is an exercise in pure speculation. Furthermore, even if the underinsured driver had testified about his sensations and peripheral visions, we would be unlikely to consider them substantial evidence. Whether an instruction is supported by substantial evidence is a question of law, therefore, this analysis does not invade the province of the jury.

Other evidence cited by the minority does not meet the substantial evidence standard. The fact that the road was curved raises no substantial inference that the car on the inside of the curve crossed the center line. Otherwise, every curve in every road would support an instruction in favor of the driver in the outside lane.

Nor do husband’s statements on direct examination that he was “following” a line of traffic “straight onto Hampton” and not right or left, create a substantial inference that he failed to negotiate the turn. In answering the “right or left” question, husband also said that he never varied from his lane of travel: “Q Did you ever vary from that lane [of] travel, ever go right or left? A No, sir.” He also said that the line of cars which he was following went “straight ahead.”

The minority’s argument is, in effect, that husband meant that he went absolutely straight, not right or left, through a curved intersection, taking him out of his lane. The majority is not persuaded by this semantic play on the terms “straight” and “right or left.” No jury should be allowed to find that by “straight onto Hampton” and not “right or left” husband meant that he went absolutely straight, heedless of the shape of his lane, when in the same breath he said he was following a line of traffic, also going “straight,” and never varying from the lane. A jury is only entitled to make reasonable inferences based on substantial evidence. General Accident simply did not meet its burden to produce substantial evidence at trial to support the “wrong side of the road” instruction.

The “failure to keep careful lookout” portion of the instruction was also unsupported by substantial evidence. The party seeking this instruction bears the burden to show that the other party, had he been keeping careful lookout, could have reacted in time to avoid the accident. Thurman v. Anderson, 693 S.W.2d 806, 807-08 (Mo. banc 1985). Although there was evidence that husband had a lane open to his right, General Accident averred nothing to prove that there was sufficient time to react between the moment when husband should have realized the danger, and the moment of collision. This time factor is crucial to the propriety of an instruction on failure to keep a lookout. Id. General Accident did not meet its burden to supply substantial evidence that husband would have had time to avoid the collision had he been keeping a careful lookout. We are not persuaded by the minority’s argument that a car travelling 20-25 m.p.h. over the distance of one car’s length shows “ample time” to take evasive action. Since neither branch of the comparative fault instruction was supported by substantial evidence, we find in favor of husband on this point.

Husband also contends on cross appeal that the trial court erred in reducing the verdict by the $50,000 he received from the underinsured motorist because such a reduction conflicts with the language of the insurance policy. Husband wishes us to infer that it was error to offset his settlement against his actual damages because the contract says only that there should be a set-off against the upper limit of liability. We disagree.

The provision cited by husband pertains solely to the upper limit of liability and does not address General Accident’s obligation to pay. Rather, the obligation to pay is set forth in a separate provision:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury:

1. Sustained by a covered person; and

2. Caused by an accident_

We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.

Under these terms, General Accident is only bound to pay “damages which [husband] is legally entitled to recover.” (emphasis added).

We find that husband is not “legally entitled to recover” from the underinsured motorist any funds already received by him in settlement. Therefore, General Accident is not bound to pay the sum corresponding to the settlement. General Accident’s obligation to pay does not arise until exhaustion of the tortfeasor’s policy by judgment or settlement. Accordingly, at the time when General Accident’s obligation is determined, the insured is no longer “legally entitled to recover” amounts already received. Thus, it would be improper to award husband an amount from General Accident which he is no longer entitled to recover from the tortfea-sor.

Any other construction would conflict with the underlying purpose of underinsured motorist coverage — to place the insureds in the position they would have been in had the tortfeasor been adequately insured. See Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 41.7, at 95 (2d ed. 1992).

Husband’s interpretation would result in a windfall to him by permitting recovery of the full amount of the tortfeasor’s policy plus the full amount of his damages from his own carrier. Such a result cannot be reconciled with the language of the policy or the purpose of underinsured motorist coverage. Point denied.

For the aforementioned reasons we hold that it was error to have submitted the comparative fault instruction to the jury. Pursuant to Rule 84.14 the judgment is modified to provide for damages to husband in the amount of $267,500 reduced by $50,000 for his settlement with underinsured but with no reduction for comparative fault. See Robinson v. Weinstein, 856 S.W.2d 337, 338 (Mo.App.E.D.1993). We affirm the judgment of the trial court in all other respects.

Judgment affirmed as modified.

REINHARD, SIMON, KAROHL, GARY M. GAERTNER, WHITE, and DOWD, JJ., concur. CRAHAN, J., concurs in part and dissents in part, in separate opinion, joined by GRIMM, C.J., and SMITH, CRANE, and AHRENS, JJ. CARL R. GAERTNER, J., concurs in part and dissents in part, with separate opinion.

1 . As of January 1, 1995, Rule 66.0.1(c) was renumbered as Rule 66.01(d).

2 . As of January 1, 1995, Rule 66.01(d) was renumbered as Rule 66.01(e).