Riffe v. Peeler, WD
| Decision Date | 11 December 1984 |
| Docket Number | No. WD,WD |
| Citation | 684 S.W.2d 539 |
| Parties | Verneda M. RIFFE, Plaintiff-Appellant, v. Robert D. PEELER, Defendant-Respondent, and Allstate Insurance Company, Garnishee-Respondent. 34846. |
| Court | Missouri Court of Appeals |
George E. Kapke, Cochran, Kramer, Kapke & Willerth, Independence, for plaintiff-appellant.
George Spencer Miller, Miller & Dougherty, Kansas City, for garnishee-respondent.
Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
This is an appeal from a garnishment proceeding.
Verneda M. Riffe obtained a $35,000.00 judgment against Robert D. Peeler for personal injuries arising out of an automobile collision. Allstate Insurance Company, Peeler's liability carrier, was summoned as a garnishee in aid of execution of the judgment rendered against Peeler. Following an evidentiary hearing in the garnishment proceeding, the trial court entered judgment in favor of Allstate, garnishee, and against Riffe, garnishor, from which judgment Riffe appealed.
The following compilation of facts drawn from a rather convoluted record serve to put this appeal in general perspective. Additional facts will be interpolated, where appropriate, during the course of addressing particular issues. On November 25, 1975, the front end of an automobile in which Riffe was a passenger collided with the rear end of an automobile operated by Peeler. According to Riffe, Peeler, after entering an intersection, "threw his car into reverse and backed into" the automobile in which she was riding. Conversely, according to a police report, Peeler told the investigating officer that his car "stalled" in the outside lane and while he was attempting to start it, he was rear ended by the automobile in which Riffe was riding.
Riffe filed an action for personal injuries against Peeler. An answer denying both liability and damages was filed on Peeler's behalf by counsel retained by Allstate. Interrogatories were served by Riffe in the underlying personal injury action on Peeler by mailing same to Peeler's attorney of record. Peeler's attorney was unable to locate the whereabouts of Peeler to answer the interrogatories, and an extension of time for answering same was obtained. Peeler's attorney, after considerable effort, obtained a telephone number and mailing address where Peeler could be contacted. A number of letters were mailed to Peeler by his attorney of record emphasizing the necessity and importance of his cooperation in defense of the personal injury action, as well as the consequences of noncooperation. Additionally, a number of appointments were scheduled by telephone for Peeler to meet with his attorney for the purpose of answering the interrogatories, all of which Peeler failed to keep. During the interim, Peeler's attorney advised him that the underlying personal injury action had been set for trial, and that it was "important" that Peeler be present at the trial and that he should "immediately" contact the attorney.
Peeler ignored counsel's repeated efforts by mail and telephone to obtain his cooperation in answering the interrogatories and defending the personal injury action. After the extension of time expired for answering the interrogatories, Riffe filed a motion to strike Peeler's answer in the personal injury action as a sanction for Peeler's failure to answer the interrogatories. Counsel for Peeler immediately advised Peeler thereof by certified mail, accompanied by instructions that it was "imperative" that Peeler "immediately" contact him and in the event Riffe's motion to strike was sustained, Allstate would deny coverage. No response was forthcoming from Peeler. The trial court, notwithstanding written objections by counsel based on Peeler's lack of cooperation, sustained Riffe's motion--Peeler's answer was stricken, an interlocutory judgment was entered in favor of Riffe and against Peeler on the issue of liability, and a trial date was set on the issue of damages. Peeler was advised of the aforementioned turn of events by certified mail, along with instructions from counsel that it was "absolutely necessary" that Peeler contact him "immediately" and that Peeler appear in court on the date the issue of damages was set for hearing as it might be "possible" at that time, if he appeared, to reinstate his "answer and avoid a judgment against him"; Peeler was further advised that if he failed to appear in court at the scheduled time, counsel would withdraw as his attorney of record and Allstate would deny coverage under its policy of insurance. Peeler failed to respond, and neither contacted counsel nor appeared in court for the scheduled hearing on the issue of damages. On the morning of the hearing just mentioned, the trial court permitted counsel to withdraw as attorney of record for Peeler. An evidentiary hearing on the issue of damages immediately followed, resulting in a judgment in favor of Riffe and against Peeler in the sum and amount of $35,000.00. Thereupon, counsel for Peeler, by certified mail, advised Peeler that a judgment had been rendered against him in the amount of $35,000.00 for which he was personally liable as coverage under the automobile liability policy was denied by Allstate, and that Peeler should consult an attorney.
The long and short of the matter may be summed up as follows--Peeler utterly failed to cooperate in the defense of the underlying personal injury action from beginning to end. Suffice it to say, the automobile liability insurance policy issued by Allstate contained what may be characterized as a standard cooperation clause. At the garnishment hearing, the policy defense of noncooperation was asserted by Allstate as garnishee. The trial court found that Peeler had materially breached the cooperation clause, that Allstate was substantially prejudiced thereby, and that Allstate properly denied coverage.
Riffe raises two points on appeal: (1) the trial court erred in finding that Peeler's failure to assist in the preparation of answers to Riffe's interrogatories constituted a material breach of the cooperation clause since (a) Peeler was unaware of any facts which would constitute a valid defense to Riffe's cause of action arising out of the collision, and (b) Peeler's lack of cooperation did not materially prejudice Allstate's ability to defend against Riffe's cause of action; and (2) the trial court erred in finding that Peeler's failure to cooperate "authorized" Allstate to deny coverage since (a) Allstate failed to deny coverage when Peeler's failure to cooperate first became known to Allstate, and (b) "permitting withdrawal of insurance coverage after trial on damages is contrary to the intent of §...
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