Linder v. Hawkeye-Security Ins. Co.
| Decision Date | 11 October 1971 |
| Docket Number | No. 53846,HAWKEYE-SECURITY,53846 |
| Citation | 472 S.W.2d 412 |
| Parties | Clifford Eugene LINDER, Respondent, v.INSURANCE COMPANY, a Corporation, Respondent, and Edwin Ray Haynes et al., Appellants. |
| Court | Missouri Supreme Court |
Roy F. Carter, Kansas City, for respondent, Hawkeye-Security Insurance Co.; Sprinkle, Carter, Larson & Hanna, Kansas City, of counsel.
John C. Milholland, Harrisonville, Ben W. Swofford, Kansas City, for appellants Haynes; Anderson & Milholland, Harrisonville, Swofford & Waisblum, Kansas City, of counsel.
The sole question presented in this case is whether or not any possible claim that an insured driver of an automobile might have against his insurance carrier for 'excess coverage' over and above the policy limits is subject to equitable garnishment by those having obtained judgments against the insured in amounts exceedings the coverage designated in the policy. We are compelled to hold that it is not.
Factually, the record reflects that Linder, the insured driver, was on April 28, 1956, involved in a collision with an automobile in which the Haynes family was riding. Mrs. Haynes was killed and the husband and three children each suffered serious injuries. Five separate damage suits were filed against Linder, and he forwarded all pleadings to the Hawkeye-Security Insurance Company with a demand that it defend the suits. The company refused for the asserted reasons that it had not issued a policy to Linder, nor was he a 'permissive' driver of one Bacus who prior to the accident had purchased liability insurance covering the car Linder was driving. That policy provided a total of $10,000 for personal injury claims arising from one occurrence. After refusal of the company to defend the suits, Linder and his own attorney filed pleadings, making up the issues, and all five cases were consolidated for trial. A jury was waived, and on the same day judgments were entered against Linder in a total amount of $115,000. In due time, garnishments reference two of the judgments were run against the company. Section 379.200, RSMo 1969, V.A.M.S. In the garnishment proceeding, it was determined that Linder was an insured driver by virtue of the liability policy Bacus had obtained from Hawkeye, and judgments were entered in the total amount of $10,000 plus interest. These judgments were affirmed on appeal in Haynes v. Linder (and Hawkeye-Security Insurance Company), Mo.App., 323 S.W.2d 505, wherein may be found the details as to how the automobile in question got from Bacus to Linder. The company satisfied these judgments, which left unpaid judgments of $105,000 against Linder in favor of the Haynes.
The present suit was then filed by Linder against Hawkeye and the Haynes, seeking a declaration that Hawkeye was liable for the total amount of the unpaid judgments plus damages for attorney's fees, loss of driver's license and loss of income; and also, that the Haynes be enjoined from having execution on their judgment against him in view of the existing chose in action against Hawkeye. The Haynes, in effect, adopted this position by filing a cross-claim against Hawkeye wherein they asserted that they had an equitable lien on Linder's claim for 'excess coverage' against Hawkeye.
At the trial, Linder testified as to the details of the damage suffered by him because of the denial of coverage. In addition, testimony was given that the Haynes had offered to settle all claims, both before and after trial, for amounts within the designated coverage of $10,000, and that such offers were forwarded to Hawkeye. The trial court ruled that the evidence did not show that there had been a firm offer to settle the five original suits within the policy limits, which is, generally, the factual basis upon which a claim for 'excess coverage' is bottomed. However, in view of what we believe to be the proper disposition of this case, we need not consider the propriety of that ruling. In any event, prior to entry of judgment by the trial court, Linder advised the Haynes that he planned to settle his claim against Hawkeye for $4,000 and to dismiss his petition with prejudice. Over objection by the Haynes, Linder's petition was dismissed with the stipulation that such action should have no bearing on the cross-claim of the Haynes. The trial court approved dismissal of Linder's petition and ruled that the Haynes' equitable claims against Hawkeye were foreclosed. From these and other findings, the present appeal was taken.
As noted, we need not consider whether or not the trial court was correct in finding that there had never been a firm offer to settle within the coverage; nor, need we consider what, if any, claim for 'excess coverage' Linder might have...
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