Tate v. Golden Rule Ins. Co.
| Decision Date | 13 July 1993 |
| Docket Number | No. WD,WD |
| Citation | 859 S.W.2d 831 |
| Parties | Sharon TATE, Respondent, v. GOLDEN RULE INSURANCE CO., Appellant. 46766. |
| Court | Missouri Court of Appeals |
Timothy S. Richards, St. Louis, Guy E. McGaughey, Jr., Lawrenceville, IL, Ted R. Osburn, Kansas City, for appellant.
John R. Loss, Kansas City, for respondent.
Before BERREY, P.J., and BRECKENRIDGE and SPINDEN, JJ.
Golden Rule Insurance Company appeals from the trial court's judgment entered against it and in favor of Sharon Tate for attorney fees in the sum of $20,915.00. On July 23, 1989, Tate applied for health insurance from Golden Rule Insurance Company ("Golden Rule") requesting a four month policy with coverage to begin on July 25, 1989. Golden Rule issued the policy as requested. The policy issued excluded coverage for any pre-existing conditions as defined in the policy. Tate testified that on July 27, 1989, she first experienced pain on the right side of her face. This caused her to make an appointment with her doctor for August 2, 1989. Tate's doctor diagnosed persistent facial pain and right maxillary sinusitis, prescribed medication and ordered a CT scan. The scan revealed a cyst in Tate's right maxillary sinus.
On August 18, 1989, Tate's doctor performed surgery that removed the maxillary sinus cyst and repaired a deviated septum. Following her surgery, Tate made a claim against Golden Rule for payment of medical bills she had incurred in the amount of $5,035.69. Golden Rule timely acknowledged receipt of the claim and advised Tate that the company needed additional information from Tate's doctors. After receiving and reviewing the doctors' medical records, Golden Rule denied Tate's claim based on the pre-existing condition clause of her policy.
Tate challenged Golden Rule's denial. Tate's treating physician wrote to Golden Rule to inform them that, in his opinion, the condition for which Tate received treatment was not pre-existing. Golden Rule requested a opinion from a consulting physician, Dr. Feltt. Dr. Feltt determined that "[e]ven though the exact diagnosis was not made until 8/89, I feel that it was present and causing her symptoms prior to 7/25/89." Golden Rule relayed Dr. Feltt's findings to Tate. Tate again objected to Golden Rule's denial and, during the next several months, at Tate's request, Golden Rule had Tate's case evaluated by two other doctors or medical groups. Each time Golden Rule denied Tate's claim.
On March 21, 1991, Tate filed her petition for breach of contract, claiming compensatory damages of $5,085.69 plus interest, as well as penalties and fees pursuant to § 375.420. 1 The case was tried to a jury May 11 through 13, 1992. During the trial, the parties stipulated that the trial court would decide Tate's entitlement to attorney's fees and the amount thereof. The remainder of the case was submitted to the jury. The jury found for Tate and awarded her $5,035.69 in damages, $750.00 for interest, and no penalty. Pursuant to stipulation of the parties, the trial court determined attorney's fees and awarded Tate $20,915.00. Golden Rule appeals only the award of attorney's fees.
As its first point on appeal, Golden Rule alleges that the trial court erred in awarding Tate attorney's fees under § 375.420 2 because there was no substantial evidence that Golden Rule refused to pay her claim without reasonable cause or excuse. Golden Rule claims that, because the award of attorney's fees was made pursuant to Rule 73.01, which sets forth procedure for trial without a jury or with an advisory jury, the court's standard of review is found in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We disagree. In discussing the stipulation that the court determine attorney's fees, the court stated as follows:
For the record, you've agreed that you'll take away from the jury the issue of attorney's fees, and let me decide? ... With the understanding, I'm not going to do anything about it until I see what the jury does.... If the jury doesn't find you're entitled to vexatious penalty, you're not entitled to attorney fees either.
Instructions No. 7 and 8 to the jury are as follows:
If you find in favor of plaintiff, then you must award the plaintiffs [sic] such sums as you believe will fairly and justly compensate plaintiff for any damages you believe they [sic] sustained as a result of the defendant's refusal to pay policy benefits mentioned in the evidence.
If you find in favor of the Plaintiff on the claim on the insurance policy, and if you believe Defendant insurance company refused to pay without reasonable cause or excuse, then, in addition to any amount you may award on the insurance policy under Instruction No. 7, you may award the Plaintiff an additional amount as a penalty, not to exceed $653.57, and you also may award the Plaintiff an additional amount as interest not to exceed $1,171.76.
The jury found in favor of Tate and assessed her damages as follows:
$5,035.69 on the policy; $750.00 for interest; no monetary amount was awarded as penalty. Pursuant to Instruction No. 8, the jury is allowed to award an amount as interest only if it believes Golden Rule refused to pay without reasonable cause or excuse. The jury made the determination that Golden Rule's refusal to pay was vexatious under § 375.420. The court followed the jury's verdict and, accordingly, determined the amount of attorney's fees to be awarded to Tate.
In determining whether sufficient evidence supports the verdict, this court considers the evidence and all reasonable inferences therefrom in the light most favorable to the verdict. McPherson v. David, 805 S.W.2d 260, 263 (Mo.App.1991); Page v. Hamilton, 329 S.W.2d 758, 762 (Mo.1959). We consider only that which supports the verdict and disregard any contrary evidence and inferences. Roark Motor Lodge Interval Sales Corp. v. Lindner, 779 S.W.2d 684, 686 (Mo.App.1989). " '[A] jury verdict will not be overturned unless there is a complete absence of probative facts to support the verdict.' " Massey-Ferguson Credit Corp. v. Black, 764 S.W.2d 137, 145 (Mo.App.1989) (quoting Treon v. Hayes, 721 S.W.2d 789, 791 (Mo.App.1986)). This court is only obliged to determine whether there was evidence from which such verdict could have been reached by a jury composed of reasonable men and women. Reed v. Sale Memorial Hosp. & Clinic, 698 S.W.2d 931, 936 (Mo.App.1985).
There was considerable testimony from two physicians and one dentist who had treated Tate prior to her surgery. All these doctors had explanations for pain Tate experienced prior to the effective date of her insurance policy that excluded the diagnosis for...
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