Schaffer v. Bess
| Decision Date | 15 October 1991 |
| Docket Number | 58736 and 58769,Nos. 58714,s. 58714 |
| Citation | 822 S.W.2d 871 |
| Parties | Margaret SCHAFFER, et al. Plaintiffs/Respondents/Cross-Appellants, v. James L. BESS and State Farm Mutual Automobile Insurance Company, Defendants/Appellants/Cross-Respondents. Margaret SCHAFFER, Next Friend for Julie SCHAFFER and Edward Schaffer, Plaintiffs/Cross-Respondents, and Martha Schaffer, Successor Next Friend for Julie Schaffer and Edward Schaffer, Plaintiffs/Cross-Appellants, and Michelle Schaffer Brickeen and Robin Schaffer Sillman, Plaintiffs, v. James L. BESS and State Farm Mutual Automobile Insurance Company, Defendants. |
| Court | Missouri Court of Appeals |
Michael R. Swafford, Rochelle Kaskowitz, St. Louis, for defendants/appellants/cross-respondents.
Randall D. Sherman, Hillsboro, John Hughes, St. Louis, Robert G. Kister, Festus, for plaintiffs/respondents/cross-appellants.
Defendant/Appellant/Cross-Respondent State Farm Mutual Automobile Insurance Company ("State Farm") appeals from the trial court's order denying State Farm's motion for a directed verdict at the close of all evidence. State Farm contends that the plaintiffs/respondents/cross-appellants failed to prove a direct and proximate causal relationship between the acts or omissions of an uninsured motorist, David Friese, and the accident between James L. Bess and plaintiffs'/respondents'/cross-appellants' decedent, Richard Schaffer. Plaintiffs/Respondents/Cross-Appellants: Margaret Schaffer, the widow and third wife of Richard Schaffer; Julie and Edward Schaffer, the minor children of Richard Schaffer by his second marriage; and Michelle Schaffer Brickeen and Robin Schaffer Sillman, the adult children of Richard Schaffer by his first marriage, appeal the dismissal of their claim against State Farm for vexatious refusal to pay damages pursuant to Section 375.420, RSMo 1986, and Section 375.296, RSMo 1986. Finally, plaintiffs/cross-appellants Julie Schaffer and Edward Schaffer, by their successor next friend, Martha Schaffer, appeal from the trial court's judgment in which the trial court: (1) found that a contract existed between Julie Schaffer, Edward Schaffer and the attorney for plaintiff/cross-respondent Margaret Schaffer; and (2) ordered Julie Schaffer and Edward Schaffer to pay $21,333.33 to said attorney.
Sometime after 4:00 p.m. on the gray, rainy afternoon of November 16, 1987, David Friese drove eastbound on Buck Creek Road towards its intersection with Highway 67. Friese wanted to make a left-hand turn onto the highway so that he would be headed north. Whether Friese came to a complete stop before attempting the left-hand turn is unclear. What is clear is that when Friese attempted his left-turn, his car collided with John Nappier's pickup as Nappier headed north. Nappier's vehicle crossed over the median and came to rest on southbound Highway 67, facing north. Friese's car came to rest on the shoulder of northbound 67.
After the collision, both Friese and Nappier exited their vehicles. A witness to the accident, Wallace Wills, also pulled over and exited his vehicle. Nappier thereafter climbed over the median and approached Friese, screaming obscenities. Wills tried to calm Nappier down. Wills told Nappier to go back to his truck and to move it out of the southbound passing lane. Nappier followed Wills' instruction by backing up his pickup. There is some controversy over where Nappier parked his pickup. Both Friese and Nappier contend that Nappier backed his truck into the left-turn lane of southbound Highway 67. Friese further contends that traffic was able to slowly flow through the accident scene. Nappier asserts the flow of traffic resumed to pretty much normal speed. However, two witnesses to the accident contend that Nappier's vehicle was at least partially blocking the passing lane. Wills contends that Nappier's vehicle was taking up at least two feet of the passing lane. Another witness, Ronnie Akers, contends that Nappier's vehicle was blocking about one foot of the southbound passing lane.
After Nappier parked his truck, he walked over to the northbound shoulder to exchange insurance information with Friese. Although Friese thought that he was insured at the time of the accident, he later discovered that his family's policy did not cover him.
As Nappier and Friese exchanged information, other minor accidents occurred farther north of the Nappier-Friese collision in the southbound lanes of Highway 67. Although traffic had temporarily backed up, vehicles were moving slowly through the Nappier-Friese wreckage. Subsequently (estimates of the time sequence range from more than a couple of minutes to at least fifteen minutes), James Bess, who was traveling in the passing lane of southbound Highway 67, and Ronnie Akers, who was traveling in the travel lane of southbound Highway 67, each approached the Buck Creek Road Intersection. At that time, both drivers were traveling at approximately fifty miles per hour. Bess saw a green Buick approximately 500 feet in front of him. Initially, he could not tell how fast the Buick was traveling. When Bess was approximately 400 feet from the Buick, he realized that: (1) the Buick was traveling much more slowly than he was; and (2) there was a pickup truck in the southbound left-turn lane facing north. Therefore, Bess applied his brakes. Although Bess intended that the application of the brakes would stop his vehicle, he felt that he actually picked up speed as he applied his brakes. Bess subsequently hit both the green Buick that Richard Schaffer was driving, and Nappier's pickup. Although Bess contends that he struck Schaffer's automobile first and then hit Nappier's vehicle, Friese, who witnessed the accident, contends that Bess struck Nappier's truck in the passing lane first, and then ricocheted off and hit Schaffer's car.
When Bess' vehicle struck Schaffer's Buick, the Buick was propelled over the median into the northbound lanes of Highway 67 where it impacted head-on with a white El Camino. Subsequently, ambulance attendants took Schaffer to Jefferson Memorial Hospital in Crystal City, Missouri. Doctor Brown pronounced Schaffer dead in the emergency room at 5:40 p.m.
Plaintiffs: Margaret Schaffer, the widow and third wife of Richard Schaffer; Julie Schaffer and Edward Schaffer, the minor children of Richard Schaffer by his second marriage; and Michelle Schaffer Brikeen and Robin Schaffer Sillman, the adult children of Richard Schaffer by his first marriage, brought suit against James Bess, John Nappier and David Friese, for the wrongful death of Richard Schaffer. All plaintiffs also sued State Farm under the uninsured motorist provisions of three insurance policies that State Farm had previously issued to Richard Schaffer. The plaintiffs not only claimed entitlement to Richard Schaffer's uninsurance coverage, they also claimed State Farm vexatiously refused to pay them. Defendants Nappier and Friese were dismissed prior to trial. A three day jury trial ensued. At the close of all evidence, State Farm moved for a directed verdict based on a lack of sufficient evidence connecting the negligence of David Friese with the subsequent death of Richard Schaffer. The trial court overruled State Farm's motion. State Farm also moved for a directed verdict on plaintiffs' claim of vexatious refusal to pay. The trial court sustained this motion. Before the jury returned its verdict, all plaintiffs settled with Bess for $25,000. The jury returned a $500,000 verdict against defendants Bess and State Farm. It assessed liability at 45% against Bess and 55% against the uninsured motorist, David Friese. The $500,000 verdict was reduced to $150,000, representing the stacked policy limits of Richard Schaffer's uninsured motorist coverage, and entered judgment against State Farm.
On April 27, 1990, State Farm filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. On May 1, 1990, all plaintiffs filed a motion for a new trial on the issue of vexatious refusal to pay, together with a notice of hearing to be held on May 21, 1990. On May 21, 1990, the trial court took both motions under submission.
On June 8, 1990, the trial court held an apportionment hearing in order to disperse the total funds available ($175,000) to all plaintiffs and their attorneys. On July 17, 1990, the trial court overruled all motions for a new trial. The court awarded Robert G. Kister, attorney for Margaret Schaffer, Julie Schaffer and Edward Schaffer, $2,788.14 against the initial award in that Kister's expenses were beneficial to all plaintiffs. The court apportioned the remaining $172,211.86 as follows: (1) $11,500.00 to Michelle Schaffer Brickeen; (2) $11,500.00 to Robin Schaffer Sillman; (3) $50,000 to Julie Schaffer; (4) $50,000.00 to Edward Schaffer; and (5) $49,211.86 to Margaret Schaffer.
The trial court further determined that plaintiffs Michelle Schaffer Brickeen and Robin Schaffer Sillman had a ten percent contingency contract with their attorney, John Hughes. The court assessed attorney's fees of $2,300.00 plus $2.00 costs for a total of $2,302.00 in favor of John Hughes. The court then addressed the $149,211.86 awarded to Margaret Schaffer, Julie Schaffer and Edward Schaffer. The court found that Randall Sherman had a one-third contingency contract with Martha Schaffer, successor next friend and mother of Julie Schaffer and Edward Schaffer, and second wife of Richard Schaffer. It also found that Robert Kister had a one-third contingency contract with Margaret Schaffer, the widow and surviving spouse of Richard Schaffer, and next friend of both Julie Schaffer and Edward Schaffer. The court thereafter awarded $12,000.00 attorney's fees to Randall Sherman and $37,737.28 to Robert Kister to be paid $16,403.95 under his contingent fee contract with Margaret Schaffer as surviving spouse and $21,333.33 under his contract with Margaret Schaffer as next...
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