Krenski v. Aubuchon, s. 60677 and 60679

• Citation: 841 S.W.2d 721
• Decision Date: 06 October 1992
• Docket Number: Nos. 60677 and 60679,s. 60677 and 60679
• Parties: Amy KRENSKI, Respondent-Appellant, v. Richard AUBUCHON, Appellant, and Safeco Insurance Company, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 721

841 S.W.2d 721

Amy KRENSKI, Respondent-Appellant, v. Richard AUBUCHON, Appellant, and Safeco Insurance Company, Respondent.

Nos. 60677 and 60679.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 6, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Nov. 5, 1992.

Application to Transfer Denied Dec. 18, 1992.

Rabbitt, Pitzer & Snodgrass, Daniel T. Rabbitt, Mark A. Kinzie, St. Louis, for Aubuchon.

Wuestling, James & DeVoto, William F. James, St. Louis, for Safeco.

David J. Rauscher, Kathleen L. Rauscher, Clayton, for respondent.

PUDLOWSKI, Judge.

This is a consolidated appeal from judgments arising out of an auto accident. The trial court granted a motion for summary judgment in favor of defendant Safeco (plaintiff's underinsured motorist insurance carrier). The jury returned a verdict in favor of plaintiff Krenski and against defendant Aubuchon. We reverse and remand the summary judgment and affirm the trial court's judgment on the jury verdict.

I. Background

On August 17, 1988, plaintiff Amy Krenski was involved in a collision with defendant Richard Aubuchon. The accident occurred at the intersection of Heatherton and Greenheath in a residential neighborhood where the speed limit is twenty-five miles per hour. Heatherton is a four lane street running north and south and is approximately forty-two feet wide. It consists of one parking lane and one traveling lane in each direction. Greenheath Street, running east and west, runs into Heatherton at a T-intersection. Greenheath is approximately twenty-four feet wide. There are no traffic signals or signs at the intersection where Greenheath dead-ends into Heatherton.

At approximately 3:00 p.m. on the day of the accident, plaintiff Amy Krenski was driving northbound on Heatherton. Plaintiff made a right turn onto Greenheath, but after proceeding approximately fourteen feet made a U-turn to head back towards Heatherton. The tight turn made plaintiff's car screech and it died, coming to a stop about four to six feet on Heatherton.

After restarting her car in the intersection, plaintiff saw defendant's truck approximately 225 feet to her left. Plaintiff testified that the truck was heading north on Heatherton at about 45 to 50 miles per hour. Defendant testified that he was only going 25 to 30 miles per hour and that he was within 50 feet of plaintiff when she began her right turn on to Greenheath.

Plaintiff observed that defendant's truck was weaving and crossed the center line into the south bound lanes. Defendant explained that he crossed over to the far curb to avoid a collision. Defendant's truck then came back over into the north bound lanes and hit plaintiff's stopped car. Defendant's right rear wheel well struck the left front bumper area of plaintiff's vehicle and flipped over on its side and came to rest on a lawn. Plaintiff testified she observed defendant's truck for four seconds and had been stopped at the intersection for a total of ten seconds before the collision.

Defendant testified that his truck was loaded with concrete sections torn out of driveways and beer and soda cans for recycling. He further testified that he had consumed no alcoholic beverages on the day of the accident. Three witnesses testified that in their opinion defendant was intoxicated at the scene of the accident. Gregory Krenski, Brigit Baker, and Rose Walsh each stated that they smelled the odor of alcohol at the scene of the accident and that defendant displayed signs of intoxication such as bloodshot eyes, slurred speech, staggering and a nonchalant attitude. The investigating officer, Thomas Argent, testified that there were no indications defendant was intoxicated. However, defendant was not given a breathalyzer or any field sobriety tests because it is standard procedure to dispense with these checks when an injured person, like defendant, is taken to the hospital.

At the time of the accident plaintiff was insured under a policy of insurance purchased by her parents from defendant Safeco. The policy covered three cars, including the car plaintiff was driving. Each vehicle had uninsured-underinsured motorist coverage in the amount of $25,000 per person, $50,000 per accident.

Prior to trial, Defendant Safeco made a motion for summary judgment on the ground that defendant Aubuchon's automobile insurance provided liability coverage in the amount of $25,000 per person, therefore, the underinsured coverage of plaintiff's Safeco policy should not be invoked. The trial court sustained this motion for summary judgment.

Following a jury trial, judgment was entered on June 27, 1991. Plaintiff's total damages were found to be $135,000 with fault assessed at 75 percent to defendant and 25 percent to plaintiff. Therefore, plaintiff was awarded $101,250 with prejudgment interest of $7,016.63 for a total of $108,266.63. Defendant Aubuchon settled his claims for injury and damage with plaintiff's insurance carrier before trial.

II. Trial Issues

Defendant Aubuchon's first point on appeal is that the trial court erred in giving the yield right-of-way jury instruction because it was an incorrect statement of the law and was not supported by the evidence. Although Defendant failed to comply with Rule 84.04(e) by not setting out the relevant instruction in the argument portion of his brief, we will gratuitously examine this point. See Sewell v. MFA Mutual Ins. Co., 597 S.W.2d 284, 290 (1980).

The jury instruction at issue contained the language of MAI 14.02 (1978 Revision), which states, "The phrase 'yield the right of way' as used in these instructions means a driver is required to yield to another vehicle which enters the intersection first." This instruction is based on the statutory definition of right-of-way found in § 304.351.1, RSMo 1986. Section 304.351 codifies the rules of the road regarding right-of-way at intersections. Each subsection addresses a specific category of intersections. Section 304.351.1 applies when there are no traffic controls at an intersection and states that the vehicle approaching the intersection shall yield the right-of-way to a vehicle which has entered from a different highway.

Defendant contends that plaintiff did not obtain the right-of-way simply by entering the intersection first. Defendant argues that he had the right-of-way because he was driving on the through street. Defendant maintains that this instruction does not apply to this intersection because an instruction that takes into consideration "the whole circumstances" should have been given.

We disagree with defendant's contentions because neither street has been designated a through highway and the lack of traffic controls denotes this as an intersection falling within § 304.351.1. Under § 304.351.4, through highways are designated by the erection of stop signs or signals at specified entrances thereto. ¹ There were no traffic controls on Greenheath that would designate Heatherton as a through highway. Also, the mere fact that Heatherton continues past the intersection with Greenheath does not elevate Heatherton to a through highway at its intersection with Greenheath.

The cases cited by defendant that allow for consideration of the whole circumstances are distinguishable. In Montgomery v. Petrus, 307 S.W.2d 24 (Mo.App.1957), the intersection was controlled by stop signs. In both Stonefield v. Flynn, 347 S.W.2d 472 (Mo.App.1961), and Herr v. Ruprecht, 331 S.W.2d 642 (Mo.1960) a motorist was attempting to cross a through highway designated as such by a stop sign. Because these cases involve controlled intersections, they are governed by § 304.351.4, which requires the driver at the stop sign to "yield the right-of-way to any vehicle which has entered the intersection from another highway or which is approaching so closely on the highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection." This statutory provision encompasses the principle advocated by defendant that the whole circumstances should be taken into account. The statutory scheme of § 304.351, however, clearly creates a different standard for uncontrolled intersections.

Although the intersection in Haymes v. Swan, 413 S.W.2d 319 (Mo.App.1967), was not controlled by traffic signals, the court held that the failure to include language in the instruction that allowed for consideration of how a reasonable person would have acted was prejudicial error in a contributory negligence setting. Defendant argues that this case supports the proposition that the right-of-way depends upon all existing circumstances.

Initially, the Haymes court stated defendant's duty at an uncontrolled intersection. "If plaintiff's car was the first to reach and enter the intersection, it then became defendant's duty not to enter, and if the collision resulted from defendant's breach of this negative duty, such facts alone establish a basis for recovery." Haymes, 413 S.W.2d at 325. Also, with the advent of Missouri's comparative fault setting, the jury is now allowed to assess a percentage of the fault to plaintiff. Gustafson v. Benda, 661 S.W.2d 11 (Mo.banc 1983). The reasonable person language that the Haymes court found lacking has since been dropped from the instruction because the jury is now allowed to consider plaintiff's fault. This, in effect, permits the jury to consider circumstances besides who entered the intersection first.

Defendant had an absolute duty to yield the right-of-way because plaintiff entered the intersection first. This absolute duty does not necessarily result in absolute liability because the plaintiff may still be at fault. The jury, in its assessment of 25% of the fault to plaintiff, properly considered factors that limit her damages. There was sufficient evidence, such as plaintiff's sharp U-turn, to support the jury's assessment of fault to plaintiff.

Defendant further asserts that the facts of this case...