Witty v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 10 June 1993
• Docket Number: No. 18072,18072
• Citation: 854 S.W.2d 836
• Parties: Louise WITTY and Patricia Simonds, Plaintiffs-Respondents, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 836

854 S.W.2d 836

Louise WITTY and Patricia Simonds, Plaintiffs-Respondents, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.

No. 18072.

Missouri Court of Appeals,

Southern District,

Division Two.

June 10, 1993.

Wendell W. Crow, Matthew R. Shetley, Crow, Reynolds & Preyer, Kennett, for defendant-appellant.

Richard D. Whiffen, Sikeston, for plaintiffs-respondents.

FLANIGAN, Judge.

Plaintiffs Louise Witty and Patricia Simonds brought this declaratory judgment action against defendant State Farm Mutual Insurance Company. The petition sought an order declaring the rights of the parties with respect to the liability and uninsured motor vehicle provisions of two insurance policies issued by State Farm. The cause was submitted to the trial court on a stipulation of facts. The trial court found the issues generally in favor of plaintiffs. State Farm appeals.

The court reverses the judgment for two independent reasons: (1) The record fails to disclose the existence of a justiciable controversy; (2) there was a failure to comply with Rule 87.04, ¹ requiring the joinder, in a declaratory judgment action, of all persons who have or claim any interest which would be affected by the declaration. The person who should have been joined as a party, and was not, is Marie Hillis.

The parties stipulated to the following facts: The action arises out of an incident which occurred on May 31, 1988, involving a vehicle owned by Francis Beis and driven by Marie Hillis. Francis Beis, a passenger in the vehicle, was the mother of Marie Hillis. Marie Hillis was operating the vehicle with the permission of Francis Beis. Francis Beis was a resident of the household of Marie Hillis. State Farm issued two insurance policies (Policy 1 and Policy 2) which were in effect at the time of the incident. Both policies contained liability and uninsured motor vehicle coverages. Each policy described a certain vehicle as the "described vehicle." Policy 1 was issued to Marie Hillis and Reuben Hillis as named insureds. The described vehicle under Policy 1 was a 1985 Chevrolet. Policy 2 was issued to Francis Beis as the named insured. The described vehicle under Policy 2 was a 1978 Lincoln. Plaintiffs Louise Witty and Patricia Simonds are sisters of the late Francis Beis. Francis Beis left no surviving spouse or parents, and she was survived by one child, Marie Hillis.

The petition in the declaratory judgment action alleged that the automobile, presumably the Lincoln, "left the roadway, became airborne and crashed, resulting in the death of Francis Beis." The petition also alleged that the negligence of Marie Hillis was the sole and proximate cause of the death of Francis Beis.

Peculiarly, the stipulation contained this statement:

"In a wrongful death action, the plaintiffs have alleged that the negligence of Marie Hillis was the sole and proximate cause of the death of Francis Beis. A copy of the [petition] in said action is attached hereto, marked as an exhibit, and incorporated herein by reference." The attached exhibit was not a petition in a wrongful death action filed by plaintiffs against Marie Hillis. The attached exhibit was merely a copy of the petition filed in the instant declaratory judgment action.

The stipulation requested "that the court determine whether Louise Witty and Patricia Simonds are the proper parties to bring said wrongful death action and this declaratory judgment action, and to declare the rights and duties of the parties under the policies aforesaid and under the pleadings herein."

The petition, in addition to alleging most of the foregoing facts, alleged: Plaintiffs "are the sisters of Francis Beis, and are persons interested, as heirs of Francis Beis, in the applicability of the liability insurance provisions of the policies." State Farm "has denied payment under both policies, claiming that both policies have a valid 'household exclusion' which precludes liability or uninsured motorist coverage for any bodily injury to 'any insured or any member of the insured's family residing in the insured's household.' "

The petition prayed for an order: (a) "declaring the respective rights of the parties in relation to the liability and uninsured motor vehicle provisions of the insurance policies and their applicability to the claim of Louise Witty and Patricia Simonds against Francis Beis (sic) for wrongful death"; (b) "declaring the household exclusion clause of both policies to be null and void as they are contrary to state statute and against public policy"; (c) "declaring that the policy language is ambiguous and that the liability proceeds from both policies are properly payable in the event plaintiffs are successful in securing a judgment against Marie Hillis for the wrongful death of Francis Beis."

State Farm's answer alleged: Francis Beis was the mother of Marie Hillis; "consequently the alleged decedent Francis Beis was ... survived by a child, who, under § 537.080.1(1), ² is the only person who may institute and maintain any alleged wrongful death action relating to Francis Beis, and therefore plaintiffs have no standing to institute or maintain this action....; plaintiffs have no standing relative to maintaining any action [for the wrongful death of Francis Beis]" or "the application of the household exclusion."

The answer requested the court "to determine the rights of the parties herein under those issues joined relative to standing, rights, and duties under any such policies, and applicability of any exclusion thereunder."

In addition to finding the facts as set forth in the stipulation, the trial court made the following findings and declarations: Louise Witty and Patricia Simonds are proper parties to bring a wrongful death action against the alleged tort-feasor Marie Hillis; both liability policies are applicable to the driver of the vehicle, Marie Hillis, as she is an insured under her own policy and under the policy issued to Francis Beis because Francis Beis allowed Marie Hillis to drive her car; the household exclusion clauses in Policy 1 and Policy 2 are void to the extent of coverage mandated by Section 303.190 RSMo.

On this appeal, State Farm contends that the trial court erred: (a) in finding that plaintiffs are proper parties to maintain a wrongful death action seeking damages for the death of Francis Beis because Francis Beis was survived by a daughter, Marie Hillis, in whom any such action is vested by § 537.080.1(1) to the exclusion of any others, and (2) in finding that the household exclusion clause of Policy 1 was void to the extent of coverage mandated by § 303.190 "in that to partially nullify the family insurance clause in both [Policy 1 and Policy 2] would provide coverage in twice the amount required by § 303.190.2 and § 303.025.1, and same is incorrect."

A declaratory judgment is not available to adjudicate hypothetical or speculative situations which may never come to pass. Tintera v. Planned Industrial Expansion Authority, 459 S.W.2d 356, 358 (Mo.1970). The Declaratory Judgment Act does not authorize the issuance of advisory opinions. Carpenter-Vulquartz v. Doyle Dane Bernbach, 777 S.W.2d 305, 309 (Mo.App.1989). The existence of a "justiciable controversy" is essential before a court may exercise its jurisdiction in response to a petition for declaratory judgment. Commonwealth Ins. Agency, Inc. v. Arnold, 389 S.W.2d 803, 806 (Mo.1965). There must be a sufficiently complete state of facts presenting issues ripe for determination. A mere difference of opinion or disagreement or argument on a legal question does not afford adequate ground for invoking the judicial power. Id. Arnold contains a review of declaratory judgment actions involving insurance policies. Some of the actions met the requirement for a justiciable controversy and some did not.

In County Court of Washington County v. Murphy, 658 S.W.2d 14, 16 (Mo.banc 1983), the court said:

No justiciable controversy exists and no justiciable question is presented unless an actual controversy exists between persons whose interests are adverse in fact. Plaintiff must have a legally protectable interest at stake and the question presented must be appropriate and ready for judicial decision.... Plaintiff's petition must present a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from a decree which is merely advisory as to the state of the law upon purely hypothetical facts.... Actions are merely advisory when there is an insufficient interest in either plaintiff or defendant to justify judicial determination, i.e., where the judgment sought would not constitute a specific relief to one party or the other. They are merely advisory when the judgment would not settle actual rights. If actual rights cannot be settled the decree would be a pronouncement of only academic interest. Plaintiff must have a legal interest in the relief he seeks. The question is justiciable only where the judgment will declare a fixed legal right and accomplish a useful purpose. Plaintiff must present a state of facts from which he has present legal rights against those he names as defendants with respect to which he may be entitled to some consequential relief immediate or prospective. If it appears plaintiff can have no relief against defendant, defendant should not be forced into litigation which can have no possible final result in favor of plaintiff. (Emphasis in original.)

In Local Union 1287 v. Transp. Authority, 848 S.W.2d 462, 463-464 (Mo.banc 1993), the court said:

It is premature to render a judgment or opinion on a situation that may never occur. A question is justiciable only where the judgment will declare a fixed right and accomplish a useful purpose. The question presented must be ready for judicial decision. If it is not, the judgment is a nullity.

There are at least two sound reasons that courts decline to render advisory, or...