Moreland v. Columbia Mut. Ins. Co.

Decision Date01 December 1992
Docket NumberNo. 17644,17644
PartiesRobert MORELAND and Winona Moreland, Plaintiffs-Appellants, v. COLUMBIA MUTUAL INSURANCE COMPANY, Defendant-Respondent.
CourtMissouri Court of Appeals

Ronald D. White, Joseph W. Rigler, Mark Turley, Williams, Robinson, Turley, Crump & White, Rolla, for plaintiffs-appellants.

Gerard T. Noce, Adrian P. Sulser, St. Louis, for defendant-respondent.

SHRUM, Presiding Judge.

On May 22, 1992, this district filed an opinion reversing the judgment and remanding the cause. On June 15, 1992, this district denied both the plaintiffs' and the defendant's motions for rehearing or transfer to the Missouri Supreme Court. The defendant then filed application for transfer with the supreme court, which sustained the application on July 21, 1992. On November 24, 1992, the supreme court entered the following order: "Cause ordered retransferred to the Missouri Court of Appeals, Southern District." With the addition of this paragraph, our original opinion is readopted. It is set out hereafter.

This action by the plaintiffs, Wayne and Winona Moreland, against Columbia Mutual Insurance Company (Columbia) seeks damages under an uninsured motorist coverage policy for the wrongful death of their minor daughter, Tina Moreland. At trial the plaintiffs tendered the version of MAI 5.01 which would have allowed the jury to consider aggravating circumstances. The trial court refused to submit that instruction to the jury. 1 Following a jury verdict for $75,000 the trial court entered a judgment for $30,000, that being the jury verdict sum less $45,000 previously paid to the plaintiffs under settlements made with Cameron Mutual ($22,500) and American Family Mutual Insurance Company ($22,500). The plaintiffs appeal from that judgment, raising two first impression issues.

1. Does the language of the uninsured motorist statute 2 and Columbia's policy language exclude Columbia from responsibility for damages arising from any aggravating circumstances surrounding the death so that the jury is not to be instructed on this issue?

We answer no and reverse and remand because the evidence supported the giving of the aggravating circumstances versions of MAI 5.01.

2. Is Columbia entitled to a dollar-for-dollar credit, here $45,000, for all sums paid by other carriers? The plaintiffs would have us answer no. They contend that Columbia was entitled to only a one-third reduction, $25,000, in the jury's verdict, representing the pro rata share of the liability which had been previously settled. 3

We answer in the affirmative. The trial court properly credited Columbia with all sums paid to the plaintiff by others because the position contended for by the plaintiffs would enable them to receive more damages than what the jury determined they were entitled to.

FACTS

On August 4, 1989, Tina Moreland, age 11, died instantly as a result of injuries she sustained in a motor vehicle accident which occurred on highway 32 in Dent County, Missouri. Tina was a passenger in a Buick being driven by her grandmother, Louise Moreland. The Buick was being driven easterly in the east-bound lane of highway 32 when it was struck head-on by a 1968 Ford Thunderbird that was traveling west in the east-bound lane. At the time the driver of the Thunderbird, Bradley Floyd, was attempting to pass a west-bound pickup truck driven by Michael Manthey. Louise Moreland and Floyd were also killed in the accident. A passenger in Floyd's car, Greg Buttler, was injured when he was thrown from the Thunderbird as a result of the impact.

There were four witnesses to the collision. They were Marlene Inman, who lived near the accident scene; Buttler; Manthey; and a passenger in Manthey's pickup, Laura Cahill. All testified that where Floyd attempted to pass Manthey, the highway was marked "no passing" because of a sight obstruction caused by a dip in the road. Manthey and Cahill further testified that Floyd had made several earlier attempts to pass their pickup, running up behind them, blinking his headlights, and tailgating. Manthey estimated the speed of the Thunderbird at 70 to 75 miles per hour as it crossed the center line to pass. He described Floyd's driving as "very reckless, careless," and Cahill said it was "reckless." Buttler testified that Floyd had drunk five to six beers en route from Berkeley, Missouri. Patrolman Fredendall, who investigated the accident, smelled the odor of alcohol about Floyd's body. Buttler also testified that before the accident he told Floyd to slow down, but Floyd failed to respond.

Floyd had no liability insurance coverage on the Thunderbird. Three automobile insurance policies provided uninsured motorist (UM) coverage applicable to the death of Tina as follows: Cameron Mutual Insurance Company, $25,000; American Family Mutual Insurance Company, $25,000; and Columbia, $100,000. Before trial the plaintiffs settled their UM claim against Cameron for $22,500 and their UM claim against American for $22,500.

Portions of Columbia's insurance policy are quoted where pertinent to the issue under discussion.

DISCUSSION AND DECISION
Plaintiffs' Point II: May Aggravating Circumstances Be Submitted in an Uninsured Motorist Case?

The plaintiffs' second point on appeal is dispositive. They contend that the trial court abused its discretion when it refused to include in the damage instruction, MAI 5.01, the following optional language:

In assessing damages you may take into consideration any aggravating circumstances attendant upon the fatal injury.

They point to evidence of Floyd's (a) drinking five to six beers and driving; (b) driving in what witnesses characterized as a "very reckless and careless manner" immediately before the accident; (c) alternately tailgating another vehicle, then backing off, and then attempting to pass; (d) repeated attempts to pass another vehicle and finally pulling around that vehicle in a "no passing" zone; (e) refusal to heed his passenger's request to "slow down"; (f) passing where oncoming traffic could not be seen; and (g) driving 70 to 75 miles per hour in a passing lane when his ability to see oncoming traffic was obscured. They contend that such facts present a submissible jury issue of aggravating circumstances.

We agree. Facts similar to the foregoing tend to show aggravating circumstances within the meaning of the wrongful death statute. See, e.g., May v. Bradford, 369 S.W.2d 225 (Mo.1963); Richeson v. Hunziker, 349 S.W.2d 50 (Mo.1961); Dougherty v. Smith, 480 S.W.2d 519 (Mo.App.1972). Upon this record, failure to give the requested instruction on aggravating circumstances was error if the assigned reason for the refusal is lack of evidence to support it. 4 And indeed, Columbia does not seriously contend otherwise. Instead, it argues that the trial court properly refused the instruction because damages for aggravating circumstances are not encompassed by UM coverage, and the policy exclusions for punitive and exemplary damages preclude coverage for aggravating circumstances.

Initially we look to the insuring agreement, the UM statute, and the wrongful death statute. We then shall consider separately the policy's exclusion provision.

The insuring agreement for uninsured motorist coverage is contained in "Part C" of Columbia's policy. It reads:

We will pay damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury".... (Emphasis added.)

Under paragraph D of the policy definitions, " '[b]odily injury' means bodily harm, sickness or disease, including death that results." (Emphasis added.) Columbia's insuring agreement meets the UM statute requirement which reads, in part:

No automobile liability insurance ... shall ... be issued ... unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. (Emphasis added.)

§ 379.203.1, RSMo 1986.

In arguing that there is coverage for aggravating circumstances damages in a wrongful death where the coverage is under the UM insuring agreement, the plaintiffs point to the wrongful death statute, § 537.090, RSMo 1986, which reads, in part:

In every action brought under section 537.080, the trier of the facts may give ... such damages as the trier of the facts may deem fair and just for the death ... having regard to the pecuniary losses ..., funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death.... In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts.... (Emphasis added.)

The plaintiffs assert that because of the egregious facts in this case, § 537.090 legally entitled them to any additional damages which the trier of fact determined were owed because of the aggravating circumstances attending the death of their daughter. Being legally entitled to such damages from the motor vehicle operator, Floyd (or his estate), they would have us hold that Columbia's insuring agreement obligates Columbia to pay those damages and, hence, entitles them to have the jury so instructed.

Columbia responds that any portion of a wrongful death damage claim that is attributable to aggravating circumstances attending the death are the same as punitive damages and are not covered under the UM statute nor under its policy language. Its argument proceeds as...

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