MFA Mut. Ins. Co. v. Howard Const. Co.

• Decision Date: 03 November 1980
• Docket Number: No. WD 31246.,WD 31246.
• Parties: MFA MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. HOWARD CONSTRUCTION COMPANY, Defendant-Appellant, and William George, as Administrator of the Estate of Barbara Frances George, Kristy George and Amanda George, Defendants.
• Court: Missouri Court of Appeals

608 S.W.2d 535

MFA MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. HOWARD CONSTRUCTION COMPANY, Defendant-Appellant, and William George, as Administrator of the Estate of Barbara Frances George, Kristy George and Amanda George, Defendants.

No. WD 31246.

Missouri Court of Appeals, Western District.

November 3, 1980.

Thomas R. Larson, Kansas City, for defendant-appellant.

Thomas A. Sweeny, John E. Turner, Kansas City, for plaintiff-respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

CLARK, Presiding Judge.

This is a declaratory judgment action brought by MFA Mutual Insurance Company to determine the extent of its coverage under an automobile liability insurance policy issued to William George. The trial court granted summary judgment to the insurance company, and Howard Construction Company, a party to associated litigation arising out of an automobile accident in which the George vehicle was involved, appeals.

On May 20, 1977, the wife of William George was operating the vehicle insured by MFA when a collision occurred resulting in her death and injuries to two George children who were passengers. At and near the accident site, Howard Construction Company was engaged in repair of the roadway, particularly the shoulders, and in subsequent litigation it was alleged that the accident was attributable to Howard's negligence in failing to post signs warning of the repair work ahead and the dangers thereby created.

A negligence action was brought by George and the two children for the wrongful death of the wife and mother and was pursued to judgment against Howard. On appeal of that case by Howard, this court affirmed in George, et al. v. Howard Construction Company, 604 S.W.2d 685, No. WD 30,499, handed down August 4, 1980, by Missouri Court of Appeals, Western District. For additional details of the accident and specification of the claims of negligence, the reader is referred to that opinion.

Subsequently, Amanda George, one of the two children, brought suit against Howard for her own injuries sustained in the accident, alleging that Howard's negligence was the proximate cause of the accident and of her injuries. On the basis of Missouri Pacific Ry. Co. v. Whitehead and Kales Co., 566 S.W.2d 466 (Mo. banc 1978), Howard filed a third-party petition naming the estate of Barbara George, the deceased driver, and seeking contribution and apportionment of any damages recovered by Amanda on the ground that the driver's negligence caused or contributed to cause the accident and Amanda's resulting injuries. It is by reason of this third-party proceeding that insurance coverage on the George vehicle is brought in question.

In the action here, MFA sought and received a declaration that an exclusionary clause of the policy which precludes obligation under the bodily injury and property damage insurance agreements for such claims by members of the insured's family residing in the same household exonerates MFA from obligation to defend the third-party action brought against the Barbara George estate or to pay any sums ultimately adjudged due by reason of fault apportionment pursuant to the Whitehead and Kales principle. Howard contends on this appeal that the MFA exclusion clause does not apply in this case because the claim at issue is one by Howard against the Barbara George estate for indemnity, not a claim between family members encompassed in the policy exclusion. Alternatively, Howard argues that if the exclusion can be construed as applicable, it should be held void as against public policy because the Whitehead and Kales doctrine has effected a change in the law subsequent to the policy contract.

In practical consequence, it may well be that the Whitehead and Kales third-party indemnification claim is a phase of the litigation in which the original plaintiff has no direct interest because successful prosecution of the claim benefits only the third-party plaintiff, but decisions after Whitehead and Kales have not adopted this rationale. These cases have repeatedly stated that apportionment of fault and contributory payment liability are appropriate only where the contributing defendant added to the suit by the third-party action could have been joined by assertion of liability on the part of the original plaintiff. The Whitehead and Kales concept is therefore not one of liability between concurrent tort-feasors but primary liability of the third-party defendant to the injured party.

Thus, in State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), one Meiser was an employee of Charter Development Corporation and was killed by reason of the alleged negligence of Maryland. The latter sought to bring in Charter who, it was contended, shared the fault in conduct resulting in Meiser's death. The court held that the Whitehead and Kales apportionment theory did not apply to Charter which was immunized from common law negligence liability under the workmen's compensation law.

The Court of Appeals, Eastern District, applied the holding in Maryland Heights Concrete Contractors to a case in which the plaintiff automobile passenger sued the driver of the other colliding vehicle and the latter sought to join by a third-party action under Whitehead and Kales the passenger's husband, the driver. In Martinez v. Lankster, 595 S.W.2d 316 (Mo.App.1980), the court held the test under Maryland Heights Concrete Contractors to be that Whitehead and Kales joinder of contributing defendants is permitted only where the third party could have been joined as a defendant originally. Because the wife-plaintiff was barred by the doctrine of interspousal immunity in Missouri from suing her husband as driver of the automobile, he cannot be joined in a third-party contribution action by the original defendant.

This court followed Martinez in Renfrow v. Gojohn, 600 S.W.2d 77 (Mo.App.1980), where husband and wife had each sought damages from the driver of the other vehicle and the defendant pleaded contributory negligence of the husband as a basis to defeat his claim and for contribution to any recovery by the wife in the proportion of the drivers' respective degrees of fault. Renfrow notes the split of authority in other jurisdictions but relies on Maryland Heights Concrete Contractors and Martinez as authority for the rule that immunity doctrines will prevail to defeat contribution among tort-feasors as exceptions to application of Whitehead and Kales.

In Kohler v. Rockwell International Corp., 600 S.W.2d 647 (Mo.App.1980), this court reviewed the cases above cited in the context of the parental immunity doctrine. While Kohler was remanded to determine...