Powell v. State Farm Mut. Auto. Ins. Co., No. WD 64690.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Robert G. Ulrich
• Citation: 173 S.W.3d 685
• Parties: Raymond POWELL and Renee Powell, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
• Docket Number: No. WD 64690.
• Decision Date: 18 October 2005

173 S.W.3d 685 Raymond POWELL and Renee Powell, Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. No. WD 64690. Missouri Court of Appeals, Western District. October 18, 2005.

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John E. Turner and Christopher P. Sweeny, Kansas City, MO, for appellants.

Kevin Weakley, Kansas City, MO, for respondent.

Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.

ROBERT G. ULRICH, J.

Raymond and Renee Powell appeal the judgment of the trial court reducing the jury verdict in their action against their insurance carrier, State Farm Mutual Automobile Insurance Company, for underinsured motorist benefits. The judgment of the trial court reduced the verdict awarding damages in favor of Officer Powell by $9,011.44 as an offset under the insurance policy for workers' compensation benefits paid or payable to him. Officer Powell claims that the trial court erred in reducing the verdict because (1) there was no competent or substantial evidence that $9,011.44 was paid or payable to him and (2) as a matter of law the amount should have been reduced from the policy limits not the damages. The judgment of the trial court is reversed, and the case is remanded for further proceedings.

Facts

Shortly after 3:00 a.m. on March 18, 2001, Raymond Powell, a police officer with the Kansas City, Missouri, Police Department, was riding his motorcycle on duty when a drunk driver struck him. Officer Powell suffered injury to his foot requiring medical attention and ultimately surgery. Officer Powell missed work as a result of his injury and surgical recovery. The Powells sued the driver and their insurance provider, State Farm, from which they had purchased underinsured motorist coverage. Prior to trial, the Powells settled with the driver for $50,000, the limit on his liability insurance policy. At trial, the jury returned a verdict in favor of Officer Powell for $75,000 for his personal injuries. Thereafter, State Farm filed a motion to reduce the verdict by $9,011.44, which allegedly represented the amount of workers' compensation benefits paid to Officer Powell.¹ The trial court sustained State Farm's motion and entered judgment in favor of Officer Powell in the amount of $15,988.56, which represented the verdict ($75,000) less the settlement with the driver ($50,000) and the amount of workers' compensation benefits received by Officer Powell ($5,739.96 medical bills and $3,271.38 lost wages). This appeal by Officer Powell followed.

Points on Appeal

Officer Powell raises two points on appeal. He claims that the trial court erred in reducing the verdict by $9,011.44 because (1) State Farm failed to prove by competent substantial evidence that the

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amount was paid or payable to him under the Missouri Workers' Compensation Law and (2) as a matter of law the amount should have been reduced from the policy limits, not the verdict for damages. Because the first point is dispositive, Officer Powell's second point is not addressed.²

Following the jury verdict, State Farm filed a motion to reduce the verdict by $9,011.44, which it claimed represented the amount of benefits paid to Officer Powell under the Missouri Workers' Compensation Law. It relied on the following policy provision:

Limits of Liability

Coverage W

* * *

2. Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured under any worker's compensation, disability benefits, or similar law.

State Farm argued that it was entitled to offset against the amount of the verdict the amount of medical bills paid or payable to Officer Powell by his employer, $5,739.96, and two-thirds of the amount of injury time paid or payable to Officer Powell by his employer, $3,271.38. In support of this argument, State Farm attached six exhibits to its motion: the insurance policy; Kansas City, Missouri, Police Department Personnel Policy 818-7; Kansas City, Missouri, Police Department Personnel Policy 1005; Board of Police Commissioners of Kansas City, Missouri, Resolution 95-5; a summary of Officer Powell's medical bills totaling $5,739.96; and a summary of Officer Powell's regular duty lost wages totaling $4,956.64. State Farm also relied on evidence at trial that Officer Powell's medical bills totaled $5,739.96 and on an offer of proof outside of the hearing of the jury where Officer Powell testified that he believed the City of Kansas City had paid his medical bills.

Thereafter, Officer Powell filed suggestions in opposition to the motion to reduce the verdict. He argued, inter alia, that the trial court should not take judicial notice of or consider the Kansas City Police Department Personnel Policy documents attached as exhibits to State Farm's motion and that State Farm otherwise did not prove the amount of any sums paid or payable by Officer Powell's employer, the Board of Police Commissioners.³

The question of application of the offset provision of the insurance policy was tried to the trial court following the jury trial on Officers Powell's personal injury claim. In a court-tried case, the trial court is presumed to consider only properly received evidence. State ex rel. Webster v. Cornelius, 729 S.W.2d 60, 65 (Mo.App. E.D.1987). The erroneous admission of

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evidence requires reversal only when no sufficient competent evidence to support the trial court's judgment was presented. Id. In reviewing a court tried case, the appellate court only considers properly admitted evidence and...