Wendt v. General Acc. Ins. Co., s. 63503
| Decision Date | 21 February 1995 |
| Docket Number | Nos. 63503,63510,s. 63503 |
| Citation | 895 S.W.2d 210 |
| Parties | Donald WENDT, Respondent/Cross Appellant, v. GENERAL ACCIDENT INSURANCE COMPANY, Appellant/Cross Respondent. |
| Court | Missouri Court of Appeals |
Eugene K. Buckley, John S. McCollough, Evans & Dixon, St. Louis, for appellant.
Matthew J. Padberg, James P. Leonard, Padberg, McSweeney, Slater & Merz, St. Louis, for respondent.
Donald Wendt (husband) was involved in a collision with an underinsured motorist. Husband's insurance carrier, General Accident Insurance Co., appeals from a decision in favor of husband on his claims for damages and loss of consortium against the underinsured motorist provisions of his insurance policy. It raises, among other issues, the question whether Betty Wendt's (wife's) past suit for her own injuries should estop husband from relitigating issues decided in her case. Husband cross appeals the trial court's reduction of his award by 40% for his comparative fault and by an additional sum for the settlement he received from the underinsured motorist. We modify the judgment and, as modified, affirm.
This case comes before this writer as the result of a rehearing by the Court en banc. With permission, portions of the prior opinion have been incorporated without attribution. Husband was driving, with his wife as passenger, north on Germania Street across Gravois in St. Louis City. South of the intersection, the northbound side of Germania is four lanes wide, consisting of a right turn lane (to turn east on Gravois), two through lanes, and a left turn lane (to turn west on Gravois). Husband was proceeding north in the through lane nearest the center of the road. He was following one car length behind another vehicle. North of the intersection, Germania's name changes to Hampton and makes a noticeable bend to the right.
The underinsured motorist was proceeding southbound on Hampton in the left turn lane, intending to make a left turn onto eastbound Gravois. The underinsured motorist acknowledged his duty to yield to oncoming traffic while making a left turn under the green light. Testimony by the underinsured was by deposition and was read at trial. As he approached the intersection he asserted that he was slowing down, but still rolling, when he looked down to shift. The two vehicles then collided. Neither driver saw the other's vehicle before impact.
However, the wife, who was a passenger in the northbound (husband's) vehicle, testified that she saw the underinsured driver's car, with its headlights on, turning into their car in the middle of the intersection. She screamed, "he's going to hit us." The impact was severe, and caused considerable injuries to husband and wife. A police officer testified that the underinsured driver told him after the accident that the crash happened "as he was turning."
The driver turning left held an insurance policy with liability limits of only $50,000 per person, and $100,000 per occurrence. Husband and wife filed separate suits against their own insurance company, General Accident, to compel them to honor the $500,000 underinsured motorist coverage in their policy. Husband and wife each then settled with this underinsured driver for the liability limits of $50,000 in his policy.
General Accident requested that the trial court consolidate the two suits, but the trial court refused. Wife's cause went to trial first. She sought compensation for her personal injuries and for loss of consortium by reason of her husband's injuries. The jury found against her and for General Accident. The trial court overruled all post-trial motions and she took no appeal.
Shortly after the verdict in the wife's case, General Accident filed an amendment to its answer in husband's case, which was still pending trial, raising the issues of collateral estoppel and comparative fault. Husband's case then went to trial. The trial court refused to apply collateral estoppel to avoid relitigating issues already decided at the wife's trial. Yet, it instructed the jury on comparative fault, based on the theories that husband was on the wrong side of the road, and that husband failed to keep a proper lookout. The jury found for husband, awarding him $217,500 for his personal injuries and $50,000 for his loss of consortium by reason of his wife's injuries. However, it also apportioned 40% of the fault to husband.
General Accident moved that the trial court further reduce the award by $50,000 for amounts collected by husband in his settlement with the underinsured driver, and by another $50,000 for amounts collected by his wife in her settlement with the underinsured driver. The trial court sustained the reduction of the award by $50,000 for husband's previous settlement with the underinsured driver, but declined to reduce the award by another $50,000 for the wife's settlement. According to our computation, therefore, the final judgment entered by the trial court was for $110,500:
$ 217,500 Husband's personal injuries
k $ 50,000 Loss of consortium
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$ 267,500
- $ Less 40% comparative fault
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$ 160,500
- $ Settlement with underinsured
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$ 110,500 Total award
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General Accident then appealed the judgment. It alleged that the trial court erred in refusing to apply the doctrine of collateral estoppel to avoid relitigating issues already decided in the wife's previous trial. It also alleged that the trial court erred in ruling that husband had introduced enough evidence to make a submissible case on the underinsured's failure to yield, failure to keep a careful lookout, and driving on the wrong side of the road.
Husband cross appealed that the trial court erred in instructing the jury on comparative fault because no substantial evidence supported the theories that he was on the wrong side of the road and that his failure to keep a lookout proximately caused the accident. He also alleged that the trial court erred in reducing his verdict by the $50,000 already paid to him as settlement for his claim against the underinsured motorist.
Upon rehearing, we deem that the trial court was correct in its decision not to collaterally estop husband's claims, both for his own injuries and for his loss of consortium due to his wife's injuries. When considering the appropriateness of applying collateral estoppel in a given case, a court should consider:
(1) whether the issue decided in the prior adjudication is identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; and (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979).
Above all, it should consider whether the party against whom collateral estoppel is asserted had a "full and fair opportunity to litigate the issue in the prior suit," for "fairness is the overriding consideration." Id.
Neither of husband's claims should be barred as the result of his wife's failed suit. Husband, although he was a testifying witness at his wife's trial, was not a party to that proceeding. Nor was he in privity with her. Missouri has long ago eschewed the concept of privity founded solely upon marriage. Wives are not bound to judgments against their husbands, and vice versa. Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 446 (1907). Nor can we infer privity between two people merely because they both have an interest in proving or disproving the same set of facts, share the same attorney, testify for each other, or sustain injuries in the same vehicle. Steinhoff v. Churchill Truck Lines, Inc., 875 S.W.2d 175, 177 (Mo.App.E.D.1994). Husband in this action is not in legal privity with his wife by estate, contract, or otherwise. Thus, barring husband's personal injury and consortium claims would violate the third prong of Oates.
However, General Accident maintains that at least the loss of consortium claim should be barred because husband's claim is derivative of wife's claim. We disagree. While it is often said that a consortium claim is "derivative," see, e.g., Burrow v. Moyer, 519 S.W.2d 568, 572 (Mo.App.1975), it is also said that a claim for loss of consortium is "separate and distinct" from the spouse's claim for her injuries, Marusic v. Union Electric Company, 377 S.W.2d 454, 459 (Mo.1964), and that they are "two independent causes of action," Garland v. American Family Mutual Insurance Co., 458 S.W.2d 889, 891 (Mo.App.1970). We believe that these statements are best reconciled by the view that a consortium claim is a separate, distinct, and personal legal claim, and is derivative only in the sense that it must be occasioned by a spouse's injury. See Peeples v. Sargent, 77 Wis.2d 612, 253 N.W.2d 459, 471 (1977).
In Womach, supra, a case squarely on point with the present facts, the Supreme Court of Missouri held that a wife's failure to prevail in a separate suit for her own personal injuries does not bar a husband's subsequent suit for his loss of consortium by reason of her injuries. When a spouse is injured, the other spouse suffers. Each spouse bears a separate real loss, and each should be afforded an opportunity to seek redress for that loss in the way that he or she sees fit. We note that there is a current trend in some, but by no means all, foreign jurisdictions tending to oppose the result of Womach. See Restatement (Second) of Judgments § 48, cmt. c (1982). However, the pronouncements of foreign courts and commentators carry no precedential value, and we are bound by the long standing Supreme Court precedent of Womach.
The minority opinion argues that Rule 66.01(c), 1 effective July 1, 1965, changes...
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