Eich v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 08 May 1981
• Docket Number: No. 43271,43271
• Citation: 305 N.W.2d 621,208 Neb. 714
• Parties: Irene M. EICH, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellant, and David J. Wojcik, Appellee.
• Court: Nebraska Supreme Court

Page 621

305 N.W.2d 621

208 Neb. 714

Irene M. EICH, Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellant, and David J. Wojcik, Appellee.

No. 43271.

Supreme Court of Nebraska.

May 8, 1981.

Syllabus by the Court

1. Insurance Contracts: Joinder of Actions. Under the provisions of Neb.Rev.Stat. §§ 25-701 and 25-702 (Reissue 1979), the joinder in a single action of the cause against the uninsured motorist with the insurer carrying the uninsured motorist coverage for the claimant is not permissible.

2. Insurance Contracts: Jury Instructions. In a suit against the uninsured motorist, the amount of uninsured motorist coverage should not be disclosed to the jury.

3. Insurance Contracts. The following exclusion in uninsured motorist coverage does not prevent the stacking of coverage where the insured has separate policies of uninsured motorist coverage on two or more vehicles: "(b) TO BODILY INJURY TO AN INSURED WHILE OCCUPYING OR THROUGH BEING STRUCK BY A LAND MOTOR VEHICLE OWNED BY THE NAMED INSURED OR ANY RESIDENT OF THE SAME HOUSEHOLD, IF SUCH VEHICLE IS NOT AN OWNED MOTOR VEHICLE," and the policy definition of owned motor vehicle includes the motor vehicle described in the declaration.

4. Jury Verdicts. Defects in a verdict which are matters of substance must be corrected before the jury is discharged. Neb.Rev.Stat. § 25-1123 (Reissue 1979).

Wayne J. Mark of Fraser, Stryker, Veach, Vaughn, Meusey, Olson & Boyer, P. C., Omaha, for appellant.

Daniel G. Dolan, Omaha, for appellee Eich.

No appearance for appellee Wojcik.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

CLINTON, Justice.

Plaintiff Eich brought this action in the District Court for Douglas County, Nebraska, against State Farm Mutual Automobile Insurance Company and David J. Wojcik, an uninsured motorist, to recover damages for personal injuries received in a collision between an automobile driven by the plaintiff and one operated by Wojcik.

In order that the assignments of error hereinafter considered be seen in proper perspective, it is necessary to first summarize more of the background information than is ordinarily required.

State Farm insured the plaintiff's automobile and, in one or more other separate policies, other automobiles in the Eich household. The amended petition upon which the case was tried made the necessary allegations to state a cause of action against Wojcik founded upon his negligence, and further alleged the issuance of two policies of insurance by State Farm which provided uninsured motorist coverage for Eich.

State Farm filed a demurrer to the petition on the ground of misjoinder of causes of action and of parties defendant. This motion was overruled and State Farm was directed to answer.

State Farm, after first denying Wojcik's negligence and alleging contributory negligence on the part of the plaintiff, later filed an amended answer in which it admitted that Wojcik was negligent and that such negligence was a proximate cause of the accident. It admitted the existence of one certain policy of insurance which afforded uninsured motorist coverage to Eich and admitted that Wojcik was an uninsured motorist. At the same time it filed an offer to confess judgment in the amount of $15,000.

Wojcik defaulted. However, in a deposition he admitted that he drove through a stop sign and collided with the Eich automobile and that he had been drinking at the time. This deposition was later received in evidence at the trial.

The court directed a verdict against Wojcik and State Farm on the issue of liability and left to the jury only the question of the amount of damages proximately caused by the collision. It instructed the jury that State Farm had in force at the time of the accident three policies of insurance under which it was obligated to pay all sums which the plaintiff had sustained as damages, not to exceed $45,000. It further instructed the jury that the amount of the insurance was not a factor to be considered by them in determining the amount of damages to which the plaintiff was entitled.

The form of the verdict prepared by the court for the use of the jury in rendering its verdict was in the following form: "We, the jury duly impaneled and sworn in the above entitled cause, do find for the said plaintiff and assess the amount of plaintiff's recovery as to defendant State Farm in the sum of $______, and as to defendant David J. Wojcik in the sum of $______."

The jury returned a verdict in which it placed in each of the blank spaces in the form the sum of $17,500. The jury was discharged on December 12, 1979. The court entered judgment on the verdict as follows: "Pursuant to verdict of December 12, 1979, ordered, that plaintiff have and recover from the defendants jointly and severally, the sum of $17,500.00, plus plaintiff's taxable costs."

On December 18, 1979, the plaintiff filed a motion in the following form: "Comes now the plaintiff and respectfully requests the Court to correct a ministerial error of the judgment entry to accurately reflect the intentions of the jury as it was their intention to totally award the plaintiff the sum of $35,000.00 in damages for the injuries sustained as supported by the attached affidavit which is marked Exhibit 'A' and attached hereto." Exhibit A referred to in the motion was an affidavit of the foreman of the jury which stated that it was the intent of the jury panel to award the plaintiff the total amount of $35,000.

The plaintiff filed an alternative motion in the following form: "Comes now the plaintiff and alternatively requests the Court to reassemble the jury to correct or amend their verdict as to the form."

On December 27, 1979, the trial judge reassembled the jury, interrogated each of the jurors, and then entered the following order on the verdict form: "The court orders clerk to correct verdict form to read as follows: 'We, the jury duly impaneled and sworn in the above entitled cause, do find for the said plaintiff and assess the amount of plaintiff's recovery as to defendant State Farm in the sum of $35,000.00 and as to defendant David J. Wojcik in the sum of $35,000.00.' Pursuant to verdict, ordered, that judgment entered December 13, 1979, be and the same is hereby vacated. It is further ordered that the plaintiff have and recover from the defendants, jointly and severally, the sum of $35,000.00, plus plaintiff's taxable costs. Jurors are discharged. / s/ (Buckley)"

State Farm appeals to this court and urges, among other things, that the trial court erred: (1) In overruling the demurrer, based on misjoinder of causes of action and of defendants; (2) In instructing the jury on the policy limits; (3) In giving an instruction which permitted the "stacking" of three policies affording uninsured motorist coverage; and (4) In receiving the jurors' affidavits, and in reassembling the jury and entering a modified verdict.

We sustain the assignments in part, and reverse and remand for a new trial on the issue of damages only.

We will discuss the claims of error in the order listed.

Could the plaintiff, under the Nebraska statutes governing joinder clauses, combine in one action her cause against her own insurer and the cause against the uninsured motorist? This question is presented to this court for the first time.

Because of inherent and unavoidable conflicts of interest which arise between the insured and the insurer where recovery is sought under uninsured motorist coverage, many procedural problems, including that related to joinder, arise. The courts of the various jurisdictions have not been able to resolve these problems in a uniform way. See Widiss, Uninsured Motorist Coverage §§ 7.2 to 7.15 (1969). Indeed, because of the unique nature of uninsured motorist coverage, it is difficult to resolve these problems by applying logic to established principle. Sometimes merely pragmatic solutions must be reached, and that is what we do in this case.

We conclude, for reasons hereinafter set forth, that the court erred in overruling the demurrer. However, we also conclude that, since there must be a retrial for other reasons and because liability has been admitted by State Farm and clearly established by the evidence against Wojcik, the error in joinder is essentially harmless because, on retrial, the cases may be separately docketed and retrial on the tort action will be on the issue of damages only.

Neb.Rev.Stat. §§ 25-701 and 25-702 (Reissue 1979) lay down the rules as to joinder of causes. Those sections permit joinder only within certain described classes, and with one exception not here applicable the causes united must affect all parties to the action and not require different places of trial. Insofar as the causes before us here are involved, the only classes described in the statute which we must consider are: "(1) The same transaction or transactions connected with the same subject of action; (2) contracts, express or implied; (3) injuries with or without force ...." § 25-701.

The action against Wojcik clearly sounds in tort and comes within class (3). The cause of action against State Farm is clearly founded on contract and comes under class (2). Its contractual obligation depends, however, upon establishing Wojcik's tort liability. At least one court has held that joinder in cases such as this is permissible because the causes relate to the "same subject of action."

Section 25-702 lays down the further requirement that the causes of action so united must affect all the parties to the action. Although it is true that the action against Wojcik affects State Farm, the contractual action against State Farm does not directly affect Wojcik. See Fuchs v. Parsons Constr. Co., 166 Neb. 188, 88 N.W.2d 648 (1958).

We hold that under the above statutes governing joinder, the joinder in a single action of the cause against the uninsured motorist with the...