*1 eludes, required bodily injuries compensation should because defendant compensate plaintiff damages uninjured claim un- fully for his derivative the “each within accident” limitation. person.- related argument Plaintiffs persuasive. liability injuries is not limit for Because the asking exhausted, Rather than us to hold Karen sustained has been actually language ambiguous, used is damages award urges tiff in effect us to create ambi- against defendant loss consortium guity by adding policies. words to the Ob- This cause is must be reversed reversed. viously, this we cannot do. are not remanded, We with directions to the authorized to rewrite contracts insurance with consistent court to enter interpret must as it is language opinion. Protective Casualty written. Ins. Co. Cook, 734 SMITH, P.J., STEPHAN, J., the limitation de-
While clauses drafted concur. clearly fendant could have draft- been more ed, they permit are not so unclear as to urged by Because plaintiff.
construction
plaintiff’s consortium claim derivative separate
under Missouri law and is not a definition, injury
bodily policy under the it escape the limit
cannot inclusion within bodily injury any per-
“for sustained by exhausted, son.” Since that limit has been Nevin CARLYLE and Denise Kramer, Appellants, the defendant is not dam- liable further arising ages injuries. from Karen’s We are mindful that our construction LAI, M.D., Hsein E. policies impact has a harsh Care, Inc., plaintiff. A reversal effect will Respondents. merge claim with his wife’s and No. 41436. WD non-compensable render his loss under the
policies. however, A contrary ruling, Appeals, Missouri Court of produce unacceptable would results Western District. with liability cases similar limitations but Nov. settings. different factual Rehearing Denied Jan. hypothetical problem
A illustrates the urged plaintiff, construction with the place
which would on an derivative claims
equal footing physi- with claims for actual injuries. policy,
cal Consider an identical recovery $50,000 person
with limited to per $100,000 per accident. In an accident women, an passenger,
two insured and a physical injuries,
sustain with dam- each $50,000.
ages Apparently, of about
policy provides coverage damages. for their
However, suppose that the of one husband injured
of those claim for recovers on a consortium. If is not
loss of his claim limit, per person
included within his wife’s consortium recovery
then his reduce would recovery of the other woman.
other woman would not her full receive *2 Bartimus, Welch, Kansas
James Lantz City, appellants. Meltzer, Boisseau,
Turner and Hal D. Christopher Pickering, City, F. Kansas respondents. C.J., NUGENT, and
Before FENNER, ULRICH, and JJ.
ULRICH, Judge. Carlyle Denise
Nevin and Kramer were Carlyle, 7-year-old David boy died at the John- who County Hospital Memorial in Warrens- burg (hospital), complications a result of appendicitis. While M.D., Lai, was attended Hsein E. David placed emergency physician room hospital through Spectrum Care, corpora- (Spectrum), Inc. a Missouri Spectrum provided emergency room tion. hospital personnel pursuant medical Spectrum. to contract. Dr. Lai worked ap- (parents) Ms. Kramer from a in favor Dr. Lai peal wrongful action for the re- of their death son. versed. August 7,1984, approximately 2:30
On a.m., Mr. took Carlyle and hospital’s 7-year-old son David experienced con- room. David during pain and vomited stant abdominal Dr. previous days. Lai examined four room. at the He ordered fluids the administration of intravenous family x-rays and contacted David’s Dr. Lai and physician, A.L. Folkner. Dr. agreed Folkner discussed laboratory management further fluid you feel that hospital do Folkner, the Court according tests. Dr. taking admitting attending those policy, call He Dr. Lai to physician. authorized *3 surgeon into the case. objected counsel to Plaintiff’s call, surgeon Dr. on and Hanna improper and a bench argument attempted Lai to call him 3:30 Dr. counsel ad- held. Defense conference was Hanna, then a.m. Dr. who intention was that his mitted to finally by telephone, was contact- opinion whether the to elicit the witness’s 5:30 He ar- police around a.m. ed deposition Dr. readings from Lai’s selected hospital twenty minutes later.
rived at called such court were out of context. interim, Lai and nurse Mike In the Dr. it, self-serving testimony but allowed signs David. His vital Nishikawa attended testified, my just read- opinion “In Dr. Lai minutes, fifteen every al- were monitored totally unfair.” ing out of context and time, he though not recorded each testimony that Dr. Lai’s Appellants assert unit at to the intensive care transferred criticism, factually wrong, prejudicial operate did Dr. Hanna not 5:15 a.m. ex- subject matter for impermissible his at the David arrival testimony. pert surgery on an- performed instead elective 57.07(a)(2) litigants grants Rule patient. other “for party’s deposition to use a At a.m. condition worsened. 9:00 David’s permissible to read any It is purpose.” Dr. Hanna and Dr. Folkner were notified. deposition to parts opponent’s of an experienced respiratory distress See, Realty Meyer Dubinsky 10:50 a.m. and died. Af (Mo.App.1939). and Ms. Kramer sued both Dr. part read Lai’s plaintiff’s ter Spectrum allegedly causing Lai Dr. attempted to deposition, defense counsel Dr. Lai worked David’s death. Because by asking opinion his his client rehabilitate Spectrum, sued reading. selective counsel’s agency theory. on an rendered a opinion Lai's Respondents that Dr. assert Dr. five-day trial for Lai both deposi from his readings that selected Spectrum. parents, seeking unfair avoided out of context and trial, allege the the trial reversal and new pages hundred having to read all two their 1) by allowing Dr. Lai to state court erred: general deposition. It is of Dr. Lai’s opinion by plain- that admissions read portion party reads rule that when one attorney deposition tiff’s from his were un- may read opposing party deposition context; 2) permit- fair and out explanation. some all of the remainder or ting Kramer on defense counsel ask Ms. Airlines, Inc., 639 Burrous v. American she first retained cross-examination when Eliciting prosecute this action. reading portions of opinion Dr. Lai’s presented de unfairly deposition permissible The first issue involves the improp testimony of context was posed out party deposition reading of a into However, Lai’s comments er. because Dr. 57.07(a)(2). Plaintiffs, in pursuant to Rule self-serving and because obviously were so case-in-chief, read certain admissions opportunity plaintiff’s counsel deposi- Dr. Lai in his defendant of the witness redirect examination conduct deposition portions of Dr. Lai’s tion. After deposition, prejudice utilizing Dr. Lai’s Lai’s were read not meriting reversal did occur. following question: asked him the Mr. Turner: claims error second permitted court when the Now, sir, resulted Q. right. yesterday I All on cross-examination Kramer to be asked they pulled think attorney to her when she first contacted pages cross-ex- maybe 20 following her son’s sue the defendants you. you I want tell amination applicable death. The cross-examination an irrelevant does merit rever- follows: sal.
Q. Ma’am, your son died on 7th relevancy The test applied he not? did Missouri whether an offered fact tends did. disprove a fact issue or just you And after he other corroborates relevant evidence. matter, hired Mr. Rahm to sue in this Lawson Schumacher Blum& Chevro did not? let, Inc., (Mo.App. Honor, object MR. RAHM: Your 1985). The *4 proof required amount of to that, and I think entirely improp- that’s relevancy meet the is threshold attained obviously— er and when the truth of the offered fact makes speaking MR. TURNER: That’s a probable the existence of the fact in issue. objection. subjective Id. Because of the obvious na ques- MR. RAHM: move that the determination, ture of such a the trial court tion stricken. be granted broad discretion which will be Overruled, THE proceed. COURT: by only disturbed this court an abuse of Turner) (By Ma’am, Mr. that’s a that discretion. fact, isn’t it? Just 15 prose- hired Mr. Rahm to court, overruling The in coun case, cute an in you? action this didn’t objection grounds relevancy, sel’s on object. MR. RAHM: Your implicitly question held the relevant. This That’s irrelevant and immaterial. disagrees. parents court When the THE COURT: Overruled. legal their counsel after their Q. (By Turner) you, Didn’t ma’am? son’s death is not an issue nor I did. response question can the reason contend that the defen- expected ably prove to be tend or dis questions irrelevant, dant’s improper, fact in a issue. An answer to the prejudicial. They argue ques- that the expected cannot reasonably be appear tions were intended make them other relevant evidence. Re corroborate litigious and avaricious. There is no estab- spondents argue plaintiffs that when ob lished specifically law in Missouri address- appel tained counsel was relevant because ing propriety inquiring on cross-ex- lants’ commented twice in his party amination when hired counsel.1 opening statement that the case had been years pending four trial.2 These before
To warrant a new trial Mr. Turner’s “open innocuous statements did not question to Ms. must be irrelevant permit inquiry door” to when prejudicial. Roque about Transport v. Kaw attorney. 697 254 contacted her The infor (Mo.App.1985); Dent Co., Mo.App. 283, sought by v. ques Monarch Ins. 231 mation defense counsel’s Life (1936). asking Simply irrelevant. See, Smiley, Following plaintiffs But are Chailland. 363 S.W.2d from coun- statement; (Mo. 1963). (Defense banc asked opening sel's plaintiff on cross-examination if he contacted David, David, got “Now I never to know incident; his date on the of the him, got to I’ve never meet learned a lot objected grounds relevancy. tiffs counsel here, years get him in taken about the 4 it's objection The trial court sustained the and made friends, parents, and his from mother. injury a comment the issue was whether had occurred whether it was due defen- facts; We, we’ve had a start. head negligence. appeal propriety dant's On lawyers, years, for these 4 we’ve read the voluntary the court’s ruling statement than its rather records, sheet, seen the Room objection alleged on the error. depositions that were in this taken The court’s failed comment to include comment investigations, coming all before here.” plaintiffs alleged contributory negligence about along as an issue with the issue of negligence.) inquire ruling that he cases and one court’s Appellants offer Missouri under support from and circumstances directly Texas the time about inquiry was He engaged that defendant’s his counsel. premise plaintiff Supreme Court prejudicial. The Missouri to attack asked Hudson, Mo. Hungate the case him to “claims credibility showing (1945), reversed the McCormick quoted The court minded.” judgment because defendant’s cross-exami (2nd Ed.), p. “where Ray 375: Vol. about choice nation to show that merely the defendant seeks prejudicial. plain venue was deemed personal injury plaintiff is a chronic injury brought personal caused tiff suit on the litigant the will be excluded driving he was was struck when the vehicle slight probative theory its value is truck de owned behind unfairly prej- outweighed by danger employ defendant’s fendant driven litigant.” udicing the claim of an innocent plain filed in St. Louis. The ee. Suit holding was affirmed with tiff, filed apparently, could have suit probative value of the slight that the chosen. The court stated Illinois had so knowing what circum- under *5 wholly inquiries “if are immateri such lawyer the hired stances al can no effect other than their have danger outweighed by prejudice. of unfair general tendency prejudice the Id. at 752.3 against party they or not the witness are attempts to dis These cases address legitimate interrogation and subjects the exercising rights credit funda permissible.” at The are not system. granted by legal mental or stated, hardly logically “It court also could normally Accessing legal system is taking advantage any be stated that and, exercising discouraged one’s to be right gives the law would be discred system right legal to utilize the within es (quoting itable.” Id. at 650 Kal Shull v. procedures should nor tablished rules 64, launer, Mo.App. 300 S.W. attempt mally not used to to discredit to be (1927)). legisla litigant a The Missouri with Monarch, 98 In the case of Dent v. Supreme have established ture Court plaintiff’s objections, S.W.2d at over per govern a statutes and rules which the plaintiff defendant cross-examined The access to courts. son’s personal injury about numerous unrelated fundamen the advice so seek claims she filed with the defen- that, justifiable reason and tal absent company. dant insurance No effort was evidence, supporting counsel risk reversal plain- the defendant to show that litigant by attempting discredit a being litigated tiff’s claim was fraudulent cross-examining him time and about the by the except criticized cross-examination. having of his consulted an circumstances questioning The court held the legal exercise his to discuss and attempt tiff unrelated in an about claims rights. litigated her claim fraudulent was show irrelevant, prejudicial and an abuse of the com questions asked at the The Dent, 98 trial court’s discretion. of Ms. Kramer’s cross-examina mencement 124, 125. during argued summation hired regarding when Williams, Turner S.W.2d 742
Martinez attorney injected into the plaintiffs’ personal injury (Tex.App.1958),is Texas asked questions were improper issue. The point. The verdict was for case plaintiffs be- avaricious plaintiff. appealed Defendant the trial to discredit delay, of undue balancing parallels considerations test Federal Rule This time, presentation or needless Evidence 403: waste of relevant, cumulative evidence. Although may be exclud- balancing essentially the same as substantially Such a test is probative its value is out- ed if preju- inquiry relevancy and weighed by danger prejudice, the two-tier into unfair issues, misleading applied dice in Missouri. confusion of the they sought cause lawyer the services of a respiratory went into distress and died. soon after their death. son’s Both Mar- experts The who testified on behalf of Dr. Hungate tinez and held that the exercise Lai stated that David could have been party’s rights proper of a is not a issue for if saved Dr. Hanna had acted properly in grounds examination and is for reversal. performing surgery upon on David posed to Ms. Kramer and the Hanna’s hospital. arrival at the subsequent argument injected improper majority bases its reversal materially issue into the trial that affected testimony, mother, of David’s Mrs. the outcome of the action and constituted Kramer, regard to when she re- prejudice. Faulkner, See Coffman tained an subsequent ar- gument on this issue. The is reversed and the case is applicable testimony was as follows: remanded for a trial. new Q. Ma’am, son died on 7th did he not? NUGENT, C.J., concurs. he did. FENNER, J., separate dissents in dis- just And you after he senting opinion. hired Mr. Rahm matter, to sue in this did not? FENNER, Judge, dissenting. MR. object RAHM: Your Dr. Lai physi- room that, entirely and think that’s improp- cian. David was transferred from er and obviously— room to the intensive care *6 speaking MR. TURNER: That’s a approximately August
unit at 5:15 a.m. on 7,1984. objection. approximately This was two hours forty-five after minutes his admission MR. ques- RAHM: I move that the emergency room. was trans- tion be stricken. ferred from Dr. Lai’s care on orders from Overruled, THE proceed. COURT: Dr. Folkner who his family was doctor as Q. (By Turner) Ma’am, Mr. that’s a admitting attending physi- well as the fact, days isn’t it? Just 15 cian. Dr. Folkner also authorized Dr. Lai died, you prose- hired Mr. Rahm to surgeon to call a in on the case. cute an action in you? this didn’t When David was taken to the intensive MR. object. RAHM: Your stable, care signs unit his vital That’s irrelevant and immaterial. hydration skin was indicative of and his THE COURT: Overruled. improved orientation was from the time of Q. (By Turner) Didn’t ma’am? admission to the room. On Yes, I did. admission to the intensive care unit David alert, cooperative. was coherent and majority correctly states that to war rant a new the to Ms. Kram surgeon Dr. Hanna the on call at the prejudicial. er must be irrelevant and Ro time of admission. Dr. Lai at- que Transport v. Kaw Company, 697 tempted to contact Dr. Hanna at 3:30 a.m. (Mo.App.1985); S.W.2d 254 Dent v. Mon contacted, Dr. Hanna could not then be but 283, Mo.App. arch Ins. 98 finally he was by police the Life (1936). Simply asking 5:30 a.m. Dr. hospi- Hanna arrived at the irrelevant does not merit reversal. twenty tal minutes later. Dr. Hanna did operate on David his arrival at the relevancy applied test for in Mis- performed surgery elective on souri is whether an offered fact tends to patient. another disprove a fact in issue corrob- At 9:00 a.m. orates other relevant changed; David’s condition evidence. Lawson v. Chevrolet, Inc., he became restless and confused. At 10:50 Schumacher & Blum a.m., approximately five and one-half hours S.W.2d room,
after he left the proof David amount required to meet the rele- ap- counsel referenced when respondent’s the truth vancy is attained when threshold However, it should hired counsel. pellants the probable fact makes of the offered to, objection no that there was Id. Because be noted existence of the fact issue. objection is made at no subjective argument. nature of such Where of the obvious argument of determination, granted opponent’s trial court is the time of an appeal, the complaint be disturbed is made on broad discretion which will only of that discre- objection this court for an abuse is waived. Blevins Cushman (Mo. Non-prejudicial Motors, error will not tion. banc appel- of a justify 1969). reversal Com- Roque Transport v. Kaw late court. This trial lengthy and involved
pany, 697 S.W.2d recorded that lasted five and is throughout many instances There were transcript. Testimony was pages challenged Dr. appellants the trial that twenty-three presented from memory Lai’s events witnesses, fifteen whom were different questions asked of many 1984. There were in a far physicians. The trial he stated he Dr. Lai to which this court to deter- superior position than he did not remember respond because effect, any, if mine inquired. that counsel details to the extent lines, twenty-one in- question which covers might expected in a case of this As objections, page on one clusive of nature, by oppos- there were efforts record, subject in reference to a that was Lai, discredit Dr. to show ing counsel to initially brought up by appellants. something to hide and that that he respondents prejudice against find To jury. was not truthful with the finding matter is tantamount on this clearly The facts this case were appellants prejudice against because credibility of the witnesses issue argued op- appellants’ counsel that when matter to be decided was a came to court on the posing counsel There were matters before lawyers day all the “with point in time that could make relevant the briefcases, offices, all those other and with *7 parties began prepare respective they they then that knew knew resulting their side of the case and the trouble, going to big in that this was ability effect on their to recall the facts. coming here big him over to have be Furthermore, opening appel- statement Bend, he’ll back Kansas ... from Great lant’s counsel advised the thing next doing in Kansas the same years. with the case for four been involved week.” statement, By thé virtue of lawyers sometimes be- is that already appellants aware that the had ob- con- always do not come overzealous shortly their son’s tained appropriate in the most duct themselves September 1988 and death. Trial was judge the trial possible, but it is for fashion died effect of such conduct to determine the being approve do not they hired their asked in this cause when There was substantial this case I attorney, but under the facts of support jury’s record to it an abuse of do not believe that finding by this support record does discretion, prejudice, resulted in error. I would affirm court of objec- the trial to overrule counsel’s of the trial court. There cannot tion to the at issue. finding prejudice the informa- be a complain al- appellants
tion which appel-
ready placed jury by before
lants themselves. places signifi- majority opinion also that, argument, closing
cance on the fact