Nichols v. Mama Stuffeati's, s. WD

• Decision Date: 26 August 1997
• Docket Number: Nos. WD,s. WD
• Citation: 965 S.W.2d 171
• Parties: Maggie NICHOLS, Respondent, v. MAMA STUFFEATI'S, Defendant, American Motorist Insurance Company, Appellant, Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent. 53514, WD 53518.
• Court: Missouri Court of Appeals

Page 171

965 S.W.2d 171

Maggie NICHOLS, Respondent, v. MAMA STUFFEATI'S, Defendant American Motorist Insurance Company, Appellant Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent.

Nos. WD 53514, WD 53518.

Missouri Court of Appeals Western District.

Aug. 26, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 31, 1998.

Application for Transfer Denied

May 26, 1998.

Thomas Clinkenbeard, Kansas City, for Appellant.

Michael A. Knepper, McIntosh, Knepper, Hobson & Healy, Kansas City, for Respondent Maggie Nichols.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Michael C. Kirkham, Asst. Atty. Gen., Kansas City, for Respondent Treasurer of the State of Missouri.

Before ULRICH, C.J., P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.

ULRICH, Chief Judge, Presiding Judge.

American Motorists Insurance Company (AMI), workers' compensation insurer of Mama Stuffeati's Restaurant, appeals the decision of the Labor and Industrial Relations Commission finding that it had issued a workers' compensation policy of insurance to the restaurant that was in existence when Maggie Nichols, an employee of the restaurant, was injured and affirming the award of the Administrative Law Judge awarding Ms. Nichols $2,477.30 as a Temporary Total Disability Award based in part on her weekly average wages of $371.25. AMI claims the Commission erred when it: (1) found that the workers' compensation policy issued by it to Mama Stuffeati's had not been cancelled before Ms. Nichols's injury and claim; (2) interpreted section 287.090.3 as being analogous to section 287.090.2; and (3) allowed Ms. Nichols to amend her claim to assert additional injury and disability for additional compensation during trial. The decision of the Commission is affirmed in part and reversed in part. The case is remanded with directions.

FACTS

Maggie Nichols was injured June 8, 1991, when she attempted to catch a boxed roll of plastic wrap weighing approximately twenty-five pounds as it fell from a shelf in the kitchen at Mama Stuffeati's where she was employed. The falling roll of plastic wrap sliced the fifth digit of her left hand and hyper-extended her hand backwards from the wrist.

Ms. Nichols's injury occurred in the presence of her supervisor from whom she requested medical care. The supervisor told her to obtain medical treatment at Kansas University Medical Center. Ms. Nichols complied and received medical attention. The Medical Center verified that the employer and employee were "covered" by insurance before providing medical treatment.

Ms. Nichols told her supervisor that additional surgery was required to repair a damaged nerve in her hand. The supervisor stated that Mama Stuffeati's would continue to furnish medical care for the injury Ms. Nichols suffered. Ms. Nichols lost two weeks work as a result of the initial accident. After corrective surgery was performed to her hand, she was unable to work for a period of eight additional weeks.

Medical expenses of $12,354.30 were incurred by Ms. Nichols. Mama Stuffeati's did not pay any of those expenses.

Ms. Nichols's claim for workers' compensation was conducted before an Administrative Law Judge on November 14, 1995. The hearing before the ALJ included Ms. Nichols, represented by counsel, the Second Injury Fund, and AMI, the employer's alleged insurance carrier. The employer, having ceased to operate in 1992, did not participate. During the hearing, AMI admitted that it had issued a workers' compensation insurance policy to Mama Stuffeati's in 1989. AMI contended, however, that the policy had been cancelled on or about December 24, 1990, before Ms. Nichols's accident. Because AMI had destroyed the records pertaining to the policy issued to the employer in December of 1992, extrinsic evidence was examined by the ALJ to ascertain whether the policy was cancelled, and if it was, when it was cancelled. The ALJ determined that the policy had not been cancelled before the date of Ms. Nichols's injury. The ALJ awarded Ms. Nichols a Temporary Total Disability Award in the amount of $2,477.30 based in part on her average weekly wage of $371.25. AMI appealed the decision to the Labor and Industrial Commission. The Commission affirmed the ALJ's decision. This appeal followed.

STANDARD OF REVIEW

The Commission's decision will be overturned only if the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission did not support the award, or sufficient competent and substantial evidence was not presented to support the award. § 287.495, RSMo 1994; Johnson v. Denton Constr. Co., 911 S.W.2d 286, 288 (Mo. banc 1995). The Commission's determinations involving witness credibility and the weight ascribed to that testimony are not reviewed. Id. The entire record is viewed in the light most favorable to the Commission's findings. Wright v. Sports Associated, Inc., 887 S.W.2d 596, 598 (Mo. banc 1994).

I. SUFFICIENT EVIDENCE EXISTED FOR THE COMMISSION TO FIND THAT THE WORKERS' COMPENSATION POLICY ISSUED TO EMPLOYER HAD NOT BEEN CANCELLED BEFORE EMPLOYEE WAS INJURED

AMI's first two points of error concern the Commission's determination that cancellation of the policy was not sufficiently proven. ¹ Both points focus on the reasoning of the Commission that AMI did not sufficiently prove it cancelled its workers' compensation insurance policy insuring Mama Stuffeati's before Ms. Nichols's June, 1991 accident.

AMI begins its argument alleging that Respondents had the burden of proving insurance coverage by AMI had existed and that they failed to make a prima facie showing. AMI's contention on this point is misplaced for two reasons. First, it did not assert in its Points Relied On that any error was made by the Commission in concluding that an insurance contract had existed between it and Mama Stuffeati's. Instead, AMI only claims error in the Commission's finding regarding the issue of cancellation. Secondly, AMI admitted at the hearing before the ALJ that an insurance contract was issued in 1989 to Mama Stuffeati's:

Q: [W]hen did the relationship between Mama Stuffeati's and American Motorist, for purposes of Workers' Compensation coverage in the State of Missouri, first take place?

A: 1989.

Q: Did this relationship continue up to a date certain?

A: Yes, it ceased January--December 24th, 1990.

Q: And for what reason did the relationship come to an end?

A: Cancellation for nonpayment of premium.

AMI further restated this admission as a fact in its statement of facts: "American Motorists Insurance Company had, in fact, written workers' compensation coverage for Mama Stuffeati's Restaurant, commencing in 1989...." This fact is also bolstered by filings made by AMI. AMI filed a Certificate of Insurer, form WC-75, with the Division of Workers' Compensation that renewed coverage for Mama Stuffeati's from November 1, 1989, through November 1, 1990. AMI also filed another WC-75 form on October 8, 1990, that renewed the coverage again from November 1, 1990, through November 1, 1991. Whether an insurance contract was entered into between AMI and Mama Stuffeati's regarding workers' compensation insurance was never contested by AMI at any level of the proceedings. AMI has conceded that a valid insurance contract was entered into in 1989 with Mama Stuffeati's. The only issue contested regarding the insurance contract was not whether one ever existed but when the contract terminated. ²

AMI, as insurer, has the burden of showing, as an affirmative defense, the cancellation of the insurance contract before the date of the accident. Dyche v. Bostian, 361 Mo. 122, 233 S.W.2d 721 (1950). Whether an insurance policy has been cancelled is a question of fact. Smith v. Ohio Millers Mut. Fire Ins. Co., 325 Mo. 51, 26 S.W.2d 962 (1930); Walters Auto Body Shop, Inc. v. Farmers Ins. Co., 829 S.W.2d 637, 640 (Mo.App.1992). Cancellation of an insurance policy requires "strict compliance with the conditions provided in the policy for cancellation." Schroeder v. Horack, 592 S.W.2d 742, 748 (Mo.1979); MFA Mut. Ins. Co. v. Southwest Baptist College, Inc., 381 S.W.2d 797, 801 (Mo.1964).

The terms of a document must generally be proven by production of the original of that document. Redpath v. Missouri Highway and Transp. Comm'n, 783 S.W.2d 429, 431 (Mo.App.W.D.1989). Secondary evidence may be admitted if the offering party demonstrates that the primary evidence is lost or destroyed, is outside the jurisdiction, is in the possession or control of an adversary, or is otherwise unavailable or inaccessible. Scrivner v. American Car & Foundry Co., 330 Mo. 408, 430, 50 S.W.2d 1001, 1009 (1932); State ex rel. Barkwell v. Trimble, 309 Mo. 546, 274 S.W. 683 (1925); Interstate Distrib., Inc. v. Freeman, 904 S.W.2d 481, 484 (Mo.App.1995); 2 McCormick on Evidence §§ 229-240 (4th ed.1992); Fed. R. Evid 1004. Extrinsic evidence may not be offered when the original has been destroyed, lost, or has become unavailable through the serious fault of the party offering the secondary evidence. State v. Fontana, 589 S.W.2d 639 (Mo.App.1979). A proponent of the terms and provisions of a lost insurance policy must prove those terms at issue by "clear and convincing" evidence. Welsh v. Veasley, 286 Mo. 93, 227 S.W. 58 (1920); Transamerica Ins. Co. v. Pennsylvania Nat'l Ins. Companies, 908 S.W.2d 173, 175 (Mo.App.1995); Whitenton v. Whitenton, 659 S.W.2d 542, 547 (Mo.App.1983); Brunswick Corp. v. Briscoe, 523 S.W.2d 115, 123 (Mo.App.1975); State ex rel. Dryden v. Thym, 282 S.W.2d 178, 187 (Mo.App.1955). See also Monsanto Co. v. Aetna Cas. & Sur. Co., 1993 WL 563244 * 3 (Del.Super.Dec. 21, 1993)(interpreting Missouri law as requiring "clear and convincing" standard of proof for lost insurance contracts).

The insurance contract was never introduced as evidence by either party. Instead, AMI offered an example of its typical insurance contract issued in Missouri....