Starnes v. Aetna Cas. & Sur. Co., 9482
| Decision Date | 07 December 1973 |
| Docket Number | No. 9482,9482 |
| Citation | 503 S.W.2d 129 |
| Parties | Mary STARNES and Otis P. Starnes, Plaintiffs-Appellants, v. AETNA CASUALTY AND SURETY COMPANY, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Edward F. O'Herin, Malden, for plaintiffs-appellants.
Manuel Drumm, Sikeston, for defendant-respondent.
Aetna Casualty and Surety Company issued an automobile insurance policy to Otis Starnes which, inter alia, provided uninsured motorists, medical expense and collision coverages. While the policy was in effect on January 2, 1966, Otis was driving the insured automobile in Tennessee when it figured in a collision with an uninsured highway vehicle operated by one Moody. Otis and his wife, Mary, sustained injuries in the accident. Subsequent to the casualty, Moody filed a $14,000 bond with the Tennessee Department of Safety in which Otis and Mary were beneficiaries. Moody eventually paid the automobile damage and personal injury claims of Otis and Mary who had also sued Aetna under its medical expense and uninsured motorists coverages. The claims of Otis and Mary against Aetna were submitted to the Circuit Court of New Madrid County without a jury upon the pleadings, motions, interrogatories and stipulations of the parties. The trial court entered a judgment against plaintiffs and they have appealed.
On June 27, 1967, Otis and Mary filed a two count petition against Aetna. A pleading entitled 'Amendment to Petition' was filed September 30, 1970, and served to add Count III and Count IV to the petition. On May 4, 1972, a 'Second Amendment to Petition' was filed and added four new paragraphs and a new prayer to Count III on behalf of Otis and Mary, although, as originally filed, it claimed relief for Otis alone. In substance, the various claims of Otis and Mary ultimately submitted to the trial court were contained in this azygous petition:
Count I--A claim by Mary against Aetna under the uninsured motorists coverage for $10,000 damages, plus $1,000 for vexatious delay and $3,500 attorneys' fees;
Count II--A claim by Otis against Aetna under the uninsured motorists coverage for $10,000 damages, plus $1,000 for vexatious delay and $3,000 attorneys' fees;
Count III--A claim by Otis and Mary against Aetna under the uninsured motorists coverage for $1,770 damages, plus $177 for vexatious delay and $750 attorneys' fees. This is predicated upon averments that Otis and Mary had collectively recovered $6,000 from Moody and from this sum paid Aetna $693 on its collision subrogation claim, thereby entitling plaintiffs to a net recovery of $5,310 (actually $5,307) for their damages resulting from the accident. However, so it is alleged, Mary and Otis were required to pay their attorneys $1,770 in fees, which expenses they would not have incurred had Aetna honored their demands under the uninsured motorists coverage;
Count IV--A claim by Otis against Aetna under the medical expense coverage for $293.55, plus $29.35 for vexatious delay and $100 attorneys' fees.
To compound the confusion reaped by the sometimes contradictory counts of the petition, Aetna answered only the first two counts--it did not answer either Count III or Count IV. Also, and although we do not suggest the necessity therefor, Aetna did not undertake to require plaintiffs to elect or otherwise indicate on which count or counts they intended to submit their claims.
The 'Order, Judgment and Decree' entered by the trial court is in two parts; the first unlabeled section simply repeats the 'Stipulation of Facts' upon which the cause was submitted. One such stipulated fact was that 'plaintiffs incurred reasonable medical expenses within one (1) year of the accident in the...
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