Roberts v. Progressive Northwestern Ins.

• Citation: 151 S.W.3d 891
• Decision Date: 21 December 2004
• Docket Number: No. 25960.,No. 25961.,25960.,25961.
• Parties: Thomas Brandon ROBERTS and Cara Lee Roberts, Plaintiffs-Respondents, v. PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

151 S.W.3d 891

Thomas Brandon ROBERTS and Cara Lee Roberts, Plaintiffs-Respondents, v. PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Defendant-Appellant.

No. 25960.

No. 25961.

Missouri Court of Appeals, Southern District, Division Two.

December 21, 2004.

John L. Mullen, Nikki Cannezzaro, Kansas City, MO, for appellant.

Robert W. Stillings, Springfield, MO, for respondents.

JEFFREY W. BATES, Chief Judge.

On July 21, 1997, Thomas Roberts ("Thomas") and Cara Roberts ("Cara") were passengers in a 1997 Camero being driven by Chad Campbell ("Campbell") on Highway 65 north of Branson, Missouri.¹ The car was involved in a high-speed automobile crash, killing Campbell and causing serious injuries to Thomas and Cara.

The Camero was owned by Reliable Chevrolet, Inc. ("Reliable"). Reliable had obtained liability, uninsured motorist and other insurance coverages on the Camero through a policy issued by Universal Underwriters Insurance Company ("Universal"). At the time the automobile accident occurred, Thomas and Cara resided with their mother, Patricia Roberts. She had a policy of automobile insurance issued by Progressive Northwestern Insurance Company ("Progressive") that covered the three vehicles she owned. The policy included uninsured motorist coverage on each vehicle with limits of $25,000 per person and $50,000 per accident.

Thomas and Cara submitted claims to Universal alleging their personal injuries had been caused by Campbell's negligent operation of the Camero. Universal issued a written denial of liability coverage for these claims. Thereafter, Thomas and Cara submitted claims for uninsured motorist benefits to Progressive. Progressive denied it owed Thomas or Cara any uninsured motorist benefits, which resulted in separate lawsuits being filed by each claimant against Progressive.

While the Progressive lawsuits were pending, Thomas and Cara settled claims for uninsured motorist benefits they had asserted against Universal. As a part of these settlements, Thomas and Cara each signed a document releasing Universal, Reliable, Campbell and others from any further liability. These releases, however, preserved Thomas' and Cara's uninsured motorist claims against Progressive.

After a consolidated trial in July 2003, Thomas and Cara each obtained a judgment against Progressive in the amount of $75,000 on their uninsured motorist claims. Progressive appealed from both judgments, and the appeals have been consolidated in this Court. Progressive challenges the judgments against it on two grounds. First, Progressive argues each judgment is against the weight of the "admissible" evidence because "there is insufficient evidence from which the court could conclude that Chad Campbell had implied permission of Reliable Chevrolet to use the vehicle as any such evidence was improperly considered by the court...." Second, Progressive argues Thomas' and Cara's uninsured motorist claims were void as a matter of law because the releases they signed did not preserve Progressive's right of subrogation. Additional facts necessary to our analysis of the case are included below as we address Progressive's two points on appeal.

Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d).² We must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Ridgway v. TTnT Development Corp., 126 S.W.3d 807, 812 (Mo.App.2004).³ The trial court's judgments are presumed correct, and Progressive has the burden of proving them erroneous. See Wingate v. Griffin, 610 S.W.2d 417, 419 (Mo.App.1980). We review the evidence and all reasonable inferences in the light most favorable to the judgments and disregard all contrary evidence and inferences. Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses. Savannah Place, Ltd. v. Heidelberg, 122 S.W.3d 74, 86 (Mo.App.2003). We defer to the trial judge's superior opportunity to assess the witnesses' credibility. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App.1997).

Point I — Admission of Hearsay Statements Concerning Implied Permission

Progressive's first point on appeal attempts to present a challenge to the admission of "evidence" — otherwise undescribed — on the issue of implied permission that Progressive says the trial court improperly considered. This point relied on states:

The trial court erred in entering judgment in favor of Cara and Thomas Roberts because the judgment was against the weight of the admissible evidence in that the unequivocal evidence established that it was Reliable Chevrolet's express policy to forbid employees such as Chad Campbell from using company vehicles and there is insufficient evidence from which the court could conclude that Chad Campbell had implied permission of Reliable Chevrolet to use the vehicle as any such evidence was improperly considered by the court and therefore Cara Roberts and Thomas Roberts' uninsured motorist claims are excluded from coverage by operation of Progressive's permissive-use exclusion.

In the argument following this point, Progressive states that "[d]uring the trial of this matter, the Roberts presented testimony from Cara Roberts regarding hearsay statements of Chad Campbell.... It is clear from review of the Trial Court's Findings and Order that the Court took into consideration these hearsay statements.... Therefore, the issue of the admissibility of these hearsay statements must be addressed." We are unable to determine from Progressive's brief what statements by Campbell were actually admitted during Cara's testimony. The statements were not set out in Progressive's statement of facts or argument, and no specific page references were provided to identify where such statements could be found in the transcript. See Rule 84.04(i). After reviewing Progressive's point relied on and corresponding argument, we conclude this evidentiary issue has not been preserved for appellate review.

The disposition of this point is controlled by Rule 84.04, which states, in pertinent part, as follows:

Where the appellate court reviews the decision of a trial court, each point shall:

(A) identify the trial court ruling or action that the appellant challenges;

(B) state concisely the legal reasons for the appellant's claim of reversible error; and

(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The point shall be in substantially the following form: `The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].'

Rule 84.04(d)(1). Progressive's first point relied on meets none of these requirements.

First, the point fails to identify the ruling challenged on appeal: the trial court's admission of Cara's testimony concerning statements made to her by Campbell. See Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210, 221 (Mo.App.1990); State v. Hulsey, 557 S.W.2d 715, 716-17 (Mo.App.1977); Beasley v. Hull, 400 S.W.2d 423, 425 (Mo.App.1966); Jennings v. Jennings, 379 S.W.2d 159, 163 (Mo.App.1964).

Second, the point fails to state the legal reason for the claim of reversible error: that such testimony was inadmissible hearsay. Richmond v. Springfield Rehab & Healthcare, 138 S.W.3d 151, 154 (Mo.App.2004); In Interest of T.B., 963 S.W.2d 252, 256 (Mo.App.1997); Hulsey, 557 S.W.2d at 716-17.

Third, the point fails to explain why, in the context of this case, the legal reasons that support the claim of reversible error: e.g., Cara's testimony concerning what she was told by Campbell is hearsay because it was offered for the truth of the matter asserted, it was not within any allowable exception to the hearsay rule, and it was prejudicial because the trial court relied upon this testimony in finding that Campbell had Reliable's implied permission to use the Camero. Warren v. State, 2 S.W.3d 128, 130 (Mo.App.1999); Tripp v. Harryman, 613 S.W.2d 943, 950 (Mo.App.1981); State v. Davis, 556 S.W.2d 745, 747-48 (Mo.App.1977).

The Western District of this Court addressed this same issue in the case of In Interest of T.B., 963 S.W.2d 252 (Mo.App.1997), which we find to be directly on point:

In her third Point Relied On, Mother attacks the sufficiency of the evidence, claiming that the Juvenile Officer failed to show by clear, cogent, and convincing evidence that the alleged abuse or neglect had occurred. She appears to be arguing that, considering all of the evidence, the evidence just did not support the judgment. Review of the argument portion of the brief reveals, however, that Mother is really arguing that the trial court erroneously admitted hearsay evidence and that without this evidence, there would not have been sufficient evidence to support the judgment. Because this argument was not made in the Point Relied On — the latter does not even mention hearsay — it is not preserved for review.

Id. at 256.

Progressive did raise the hearsay issue in the argument portion of its brief but that was not sufficient to preserve the matter for review. The only issues required to be determined on appeal are those raised in the points relied on. State v. Henderson, 954 S.W.2d 581, 586 (Mo.App.1997); State v. Talbert, 873 S.W.2d 321, 323 (Mo.App.1994). Issues first raised in the argument portion of the brief are not preserved for review. Murphy v. Director of Revenue, 136 S.W.3d 141, 145 n. 3 (Mo.App.2004); American Family Mut. Ins. Co. v. Nigl, 123 S.W.3d 297, 303 n. 2 (Mo.App.2003).

Although Progressive's first point is not preserved...