Lee v. Andrews

• Decision Date: 18 August 1983
• Docket Number: No. 82-326,82-326
• Citation: 204 Mont. 527,667 P.2d 919
• Parties: James Leroy LEE, Plaintiff, Respondent and Cross-appellant, v. James R. ANDREWS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 919

667 P.2d 919

204 Mont. 527

James Leroy LEE, Plaintiff, Respondent and Cross-appellant, v. James R. ANDREWS, Defendant and Appellant.

No. 82-326.

Supreme Court of Montana.

Submitted April 25, 1983.

Decided July 5, 1983.

Rehearing Denied Aug. 18, 1983.

Worden, Thane & Haines, Ronald Bender, argued, Missoula, for defendant and appellant.

Garlington, Lohn & Robinson, Sherman Lohn, argued, Paul Meismer, argued, Missoula, for plaintiff, respondent and cross-appellant.

GULBRANDSON, Justice.

After entering judgment for defendant, Andrews, upon a special jury verdict, the District Court of the Fourth Judicial District, Missoula County, granted plaintiff Lee's motion for new trial. Andrews appeals from the new trial order, and Lee cross-appeals, claiming the District Court should have directed verdict or entered judgment notwithstanding the verdict for him.

Plaintiff, James Lee, and defendant, James Andrews, had been friends for over ten years. They were neighbors, played golf together, and saw each other frequently. Over the years, they had been involved in several minor business deals.

Andrews is an insurance agent, and has worked for State Farm Insurance Company for about twenty-one years. Lee had purchased automobile insurance from Andrews in the 1960's, but had let many of these policies lapse after six months. In 1977, Lee had two fire insurance policies and one life insurance policy purchased through Andrews. The controversy here is based upon Lee's claim that Andrews breached an oral agreement to procure car insurance.

On September 28, 1977, Lee was driving his Oldsmobile Toronado and collided with a motorcycle driven by Earl Wilson. Wilson brought suit against Lee and obtained a judgment of about $152,000.

Meanwhile, Lee had requested State Farm to represent him in the action brought by Wilson. State Farm refused and brought a declaratory judgment action in federal District Court, claiming it had no obligation to defend Lee or pay damages in the Wilson action. After a jury trial, the federal District Court concluded that State Farm had no obligation toward Lee.

On September 27, 1979, Lee filed a complaint in the state District Court, against Andrews, alleging breach of an oral contract, tort, and general promissory estoppel. On February 16, 1982, a pre-trial order was filed reducing the claim to breach of contract.

Lee claims that an oral contract to procure insurance arose from the following circumstances.

In early June 1977, Lee negotiated with car dealer, Michael Dolce, for the lease of an Oldsmobile Toronado. Dolce told Lee he would need insurance and Lee told Dolce to call Andrews' Insurance Agency. Lee testified that he had told Andrews he was going to lease a car and would need insurance. According to Lee, Andrews had replied that he "would take care of it." They did not discuss the amount of coverage, the terms of the policy, the amount of the premium, or the names of the insureds.

Dolce testified that before delivery of a vehicle financed through GMAC, he was required to complete an insurance verification form and verify that the information given him by his prospective customer was correct.

On June 15, 1977, Dolce called Andrews' office and talked with Mrs. Andrews to verify the insurance coverage. Based on the information received from Mrs. Andrews, Dolce completed the insurance verification form. He wrote in policy limits of $100,000/$300,000 for bodily injury, and $25,000 for property damage. He testified that Mrs. Andrews told him "it would be taken care of."

Mrs. Andrews admitted receiving the call from Dolce. She made a note that Lee wanted automobile insurance, listing the year, make, model, and serial number of the car. Although she normally handled car insurance herself, she placed the note on her husband's desk because she realized that Lee's insurance would not be handled in the ordinary manner. She also testified that she assumed Lee would come into their office and complete insurance application forms.

Barbara Sharp, an agent for GMAC, wrote "confirmed 6/20" on the insurance verification form completed by Dolce. Although she did not recall the particular conversation, Barbara Sharp testified that she would not have written "confirmed" on the form had she not called Andrews' Insurance and confirmed insurance coverage on the leased vehicle.

While Lee and Andrews saw and spoke to each other many times over the next few months, Lee never completed an insurance application form nor paid any premium.

Based on the above evidence, the jury returned a special verdict form with the following findings:

1. Did Jim Lee request insurance for the 1977 Oldsmobile Toronado from Jim Andrews? ANSWER: Yes 8, No 4

2. Did Jim Andrews agree to procure insurance for Jim Lee? ANSWER: Yes 9, No 3

3. Was there sufficient information regarding Lee's insurance needs so that Jim Andrews could have, using reasonable care and skill in making inquiries and assembling information, obtained the details necessary to carry any agreement. ANSWER: Yes 9, No 3

4. Did Jim Andrews fail to exercise ordinary care and reasonable diligence in procuring the insurance? ANSWER: Yes 8, No 4

5. Did Jim Lee, by any failure of cooperation, or by his actions or inactions, prevent Jim Andrews from procuring the insurance? ANSWER: Yes 12, No 0

6. Did Jim Andrews fail to procure insurance for the Toronado as he agreed? ANSWER: Yes 8, No 4

7. Did Jim Andrews receive any consideration from Lee for undertaking to provide such insurance coverage? ANSWER: Yes 8, No 4 In findings 8--12, the jury found that Lee and Andrews had not agreed on the specific terms of the contract, such as, the amount of insurance, who would be insured, and who would be responsible for the premiums. While the jury found that Lee believed he had insurance, the jury also found that this belief was unreasonable. The jury then awarded Lee $80,150 in damages.

Several weeks after the verdict, and after discussion with counsel for both parties, the District Court entered judgment for Andrews. Lee filed several post-trial motions, seeking in the alternative, judgment notwithstanding the verdict, amendment of the judgment, or a new trial. The District Court granted Lee's motion for new trial, and didn't discuss the motions for amended judgment and judgment notwithstanding the verdict.

The District Court granted a new trial on the grounds that Lee had been denied his right to a fair trial. Lee had the right to choose his form of action and had chosen to pursue solely the breach of contract action. Court's instruction 10 described the duty of an agent or broker in terms of negligence, not contract. The District Court reasoned that the jury was obviously confused because it didn't grant the total amount of uncontradicted damages introduced into evidence. By apportioning damages, the jury seemingly applied comparative negligence principles. Lee was thereby denied his right to a fair trial and a new trial was granted.

Lee on cross-appeal argues that the District Court erred by not granting him a directed verdict or judgment notwithstanding the verdict. He argues that there is no evidence to support the jury finding that Lee prevented Andrews from procuring insurance. (Finding # 5) Absent this finding, Lee claims that the verdict supports a judgment for him. (See, in particular, findings # 2 and # 3) We agree with Lee's contention.

There is no evidence in the record to support the jury's finding that Lee prevented Andrews from procuring the insurance. Applying the doctrine of collateral estoppel from the findings in State Farm's federal action, the District Court sustained objections to any testimony indicating that Andrews had told Lee to come into his office and complete an application. In fact, the only evidence on this point was Lee's own testimony denying that Andrews told him he would have to come into the office and complete an application.

Excluding the finding that Lee prevented Andrews from procuring insurance, the remaining findings support judgment for Lee. We therefore order that Lee be granted judgment notwithstanding the verdict, and remand for a new trial on the issue of damages only.

Andrews argues that on remand this Court should limit the evidence of damages to the limits of the alleged insurance policy. Lee, on the other hand, argues that damages should be limited only by the operation of section 27-1-311, MCA, which provides that the measure of damages for breach of contract "is the amount which will compensate the party aggrieved for all the detriment which was proximately caused thereby or in the ordinary course of things would be likely to result therefrom."

In Gay v. Lavina State Bank (1921), 61 Mont. 449, 202 P. 753, this Court stated:

"And as between the insured and his own agent or broker authorized by him to procure insurance there is the usual obligation on the part of the latter to carry out the instructions given him and faithfully discharge the trust reposed in him, and he may become liable in damages for breach of duty. If ...