Ferris v. Anderson

• Decision Date: 29 June 1977
• Docket Number: No. 2-58614,2-58614
• Citation: 255 N.W.2d 135
• Parties: Teri L. FERRIS, Appellant, v. Joseph S. ANDERSON and the Holmes Company, Appellees.
• Court: Iowa Supreme Court

Page 135

255 N.W.2d 135

Teri L. FERRIS, Appellant, v. Joseph S. ANDERSON and the Holmes Company, Appellees.

No. 2-58614.

Supreme Court of Iowa.

June 29, 1977.

Paul W. Deck, Sioux City, for appellant.

Charles R. Wolle, James M. Cosgrove and Gerald M. Kraai, Sioux City, for appellees.

Heard by MOORE, C. J., and MASON, REES, UHLENHOPP and HARRIS, JJ.

MOORE, Chief Justice.

Plaintiff, Teri L. Ferris, in this negligence action appeals from judgment entered in her favor claiming trial court erred in disallowing evidence of advance payments by defendants' insurer as an admission of liability and in permitting defendants to have the amount of these advance payments credited against judgment entered on $12,000 jury verdict. We affirm.

Plaintiff-appellant and her husband brought this action seeking damages for injuries she suffered when a car owned by defendant Holmes Company and driven by defendant Joseph Anderson struck the rear of her car as she prepared to enter Highway 75 South in Sioux City. In their amended petition plaintiff sought $250,000 for damages and her husband sought $75,000 damages for loss of consortium.

In their amended answer after generally denying plaintiffs' claim and raising contributory negligence and legal excuse as defenses, defendants affirmatively alleged that their insurer, Travelers Insurance Company, had made payments to plaintiffs in the amount of $3524.32 as an advance against any future judgment and prayed this sum be credited against any judgment entered for plaintiffs.

Trial court, pursuant to rule 186, Rules of Civil Procedure, ordered the offset issue be tried separately and further stated that "this portion of the ruling shall not prejudice the rights, if any, of the plaintiffs with respect to claiming said payments were made under an admission of liability." Plaintiffs then filed a reply in which they admitted the advance payments and alleged they were admissions of liability.

Thereafter prior to trial of plaintiffs' cause, defendants filed a motion in limine seeking to prevent plaintiffs from introducing evidence their insurer had made advance payments to plaintiff. Supporting their allegation by affidavit, defendants stated the advance payments could not be considered an admission of liability because they were made by Travelers without their knowledge. James Weeks, Travelers Adjuster, also filed an affidavit in support of the motion stating the payments of medical bills were "as an advance against any future settlement or judgment and not as an admission of liability." Additionally defendants alleged plaintiffs were seeking to improperly interject liability insurance into the case. Plaintiffs resisted but trial court ultimately sustained the motion.

During trial plaintiffs made an offer of proof relative to matters and statements made by Weeks to them concerning the advance payments but they were not permitted to introduce this evidence for the jury's consideration.

The jury returned a verdict in the amount of $12,000 in favor of plaintiff and a defendants' verdict on her husband's claim. He has not appealed.

Defendants subsequently filed a motion for "summary judgment for credit or offset," seeking to have the $3524.32 advance payment applied against the $12,000 awarded to plaintiff in order to prevent a windfall double recovery for these expenses. Plaintiff filed no resistance to the motion which was sustained by the court. From the adverse evidentiary rulings and the credit entered against her judgment, plaintiff has appealed.

I. Plaintiff first contends trial court erred in sustaining defendants' motion in limine and in disallowing her proffered

evidence of advance payments by defendants' insurer.

These assigned errors which relate only to the issue of liability were cured by the favorable jury verdict and thus we need not consider them on appeal. Under the facts in this case the following statement from Jones v. Iowa State Highway Commission, Iowa, 185 N.W.2d 746, 749, is relevant:

"The appellant in argument assigns a number of alleged errors committed upon the trial which it contends were prejudicial to it upon such trial. However, such errors, if any, are not available to the plaintiff as appellant on this appeal. Errors committed against it on the trial of the case were all cured by the verdict in its favor. Having won the verdict, all errors, if any, proved nonprejudicial to it."

Also see, Hoyt v. Chicago, Rock Island and Pacific Railroad Co., Iowa, 206 N.W.2d 115, 119; Everhard v. Thompson, Iowa, 202 N.W.2d 58, 61; Nassif v. Pipin, Iowa, 178 N.W.2d 334, 337; Edgren v. Scandia Coal Co., 171 Iowa 459, 474, 151 N.W. 519, 524, 525; Thew v. Miller, 73 Iowa 742, 743, 36 N.W. 771, 772. Plaintiff's first assignment is untenable.

II. Plaintiff next contends trial court improperly granted defendants' motion for summary judgment which credited the undisputed advance payments of $3524.32 against the $12,000 verdict returned by the jury.

Prefatorily we note plaintiff failed to resist defendants' motion in any manner whatsoever. While this failure to adequately resist a summary judgment motion is a dangerous course for any plaintiff to follow, it becomes fatal only if the summary judgment movant has met the burden of proof imposed upon it by rule 237, R.C.P. A. T. & T. Co. v. Dubuque Communications, Iowa, 231 N.W.2d 12, 14; Daboll v. Hoden, Iowa, 222 N.W.2d 727, 735; Sherwood v. Nissen, Iowa, 179 N.W.2d 336, 339. Thus we must determine whether trial court was correct in sustaining the motion.

This is our first occasion to determine whether a post judgment motion such as made by the defendant was the proper procedure for obtaining credit for advance payments. However, where the issue of offset has been properly plead so that a complete determination of the right to and amount of recovery may be had in the same action and has been separated from the liability issue to avoid prejudice under rule 186, R.C.P., we believe ...