Boehm v. Reed

• Court: Missouri Court of Appeals
• Citation: Boehm v. Reed, 14 S.W.3d 149 (Mo. App. 2000)
• Decision Date: 18 January 2000
• Parties: (Mo.App. W.D. 2000) . Elizabeth Boehm, Appellant, v. Terry Reed, Respondent; Jeremy Lyons, Defendant. WD56955 Missouri Court of Appeals Western District Handdown Date: 0

14 S.W.3d 149 (Mo.App. W.D. 2000)

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

Elizabeth Boehm, Appellant, v. Terry Reed, Respondent; Jeremy Lyons, Defendant.

WD56955

Missouri Court of Appeals Western District

Handdown Date: 01/18/2000

Appeal From: Circuit Court of Adair County, Hon. Gary L. Dial

Counsel for Appellant: Andrew Jay Gelbach

Counsel for Respondent: Scott Lee Templeton

Opinion Summary:

Elizabeth Boehm appeals from the judgment of the trial court overruling her request for prejudgment interest because her demand letters constituted a proper settlement demand.

AFFIRMED.

Division IV holds:

Where the thirty-day conditions contained in the settlement offer were conditions on the power of acceptance of the offer, the non-occurrence of which terminated the power of acceptance, the thirty-day conditions of acceptance contained in the settlement offer violate the sixty-day open offer requirement under the statutory section regarding prejudgment interest on settlement offers.

Opinion Author: Robert G. Ulrich

Opinion Vote: AFFIRMED. Breckenridge, C.J., P.J., and Smith, J., concur.

Opinion:

Elizabeth Boehm appeals from the judgment of the trial court overruling her request for prejudgment interest under section 408.040, RSMo 1994. Ms. Boehm contends that the trial court erred in denying prejudgment interest because her demand letters to Mr. Reed and his liability insurance company constituted a proper settlement demand as required by section 408.040, RMSo 1994, in that the amount requested in her demand letters was readily ascertainable and the thirty-day conditions of acceptance contained in her demand letter did not cause the demand offer to be open less than the statutorily-required, sixty-day period. The judgment of the trial court is affirmed.

Background

On July 31, 1993, Ms. Boehm's thirteen-year-old daughter was killed in a motor vehicle accident while a passenger in a car driven by Terry Reed. Mr. Reed was insured at the time of the accident by American Standard Insurance Company of Wisconsin under a policy that provided liability limits of $50,000.

Ms. Boehm's attorney made a written demand upon Mr. Reed and his liability insurance company on October 26, 1993, for settlement of Ms. Boehm's claims. The demand letters were sent by certified mail and were received by Mr. Reed and his liability insurance company, American Standard Insurance Company. The letter to Mr. Reed stated in pertinent part:

It is my understanding that you have insurance with American Family and that the policy limits are $50,000. In accordance with Missouri Revised Statute 408.040, this letter is a formal demand for payment of $50,000 which has been represented to be the policy limits. I am willing to recommend a Chapter 537.065 Agreement which would give you full protection for any personal liability over your insurance coverage. My client would be preserving all other claims she may have against others for this most tragic incident. Please forward a copy of this letter immediately to your insurance company and your insurance agent. This offer is open for 60 days from the date of this letter. It is specifically conditioned on the events occurring timely that I have listed in my letter to [insurance company's in-house counsel]. I have enclosed a copy of that letter for your convenience.

The letter to Mr. Reed's liability insurance company stated in pertinent part:

It is my understanding that Terry Reed was insured by American Family on the 1982 Datsun Sentra he was operating and the policy carried limits of $50,000 each person/$100,000 per occurrence. Assuming that information is correct, this letter is a formal demand for payment of the policy limits of $50,000 or whatever the total applicable liability insurance coverages are including any excess coverages. This offer is open for 60 days in accordance with Missouri Revised Statute 408.040, but it is conditioned upon the following events timely occurring:1. Receipt in my office within the next 30 days of a certified copy of the insurance policy . . .

7. Payment of the enclosed [$395.50] funeral charges within the next 30 days.

8. Payment of the enclosed [$2,598.23] medical expenses within the next 30 days.

9. Payment of the policy limits of all medical payment coverages that would apply to this accident.

No settlement was reached between the parties within sixty days from the date the letters were received.

Ms. Boehm filed her petition for damages for wrongful death against Mr. Reed on October 27, 1993, claiming that the death of her daughter was caused by the negligence of Mr. Reed. A jury trial was waived and the case was tried before the court. The court entered its judgment dated November 5, 1998, against Mr. Reed in the amount of $894,770.98 for actual and aggravated damages.

In her wrongful death action, Ms. Boehm requested prejudgment interest which, after a separate hearing, was denied by the court. The court found that Ms. Boehm was not entitled to prejudgment interest because the demand upon Mr. Reed and his liability insurance company was not sufficiently definite and was conditional. This appeal followed.

Standard of Review

In a court-tried case,...