*1 hand, arms, back, facts that a is entitled to plaintiffs left wrist and defendant discover injuries plaintiff puts arm head, plain- a and back assert when chest and further chest-scarring pain or severe of the mind or pain body and mind.” tiff suffered “severe in a at issue lawsuit. is also The defendants’ authorization form prefer admittedly The rule I harsh. But pro- I the quite restrained. read defendants’ plain- it has Its limits are those that limits. limiting form to posed be more than does the places pleadings defendant the tiff “head, majority, plaintiffs relating to I filed. would hold the waiver hands, arms, body, upper back entire [and] privilege complete as patient/physician to any injuries concerning ... or or conditions parts systems body which [plaintiffs] emotional or mental state.” injury longer I recog- is claimed. would no put parts body plaintiff are the These provider nize as to time or limitations By filing by filing legal her at issue action. injuries plaintiff puts to those at issue. action, pa- legal plaintiff her waived course, join majority’s hope Of I tient/physician privilege under Keet. adversary might counsel to be able to scope disputes work out over the of discov- point majority I do To this suspect agree- ery. And I that such while disagree. proposed The authorization commonplace, fairly ments are we do see inju- properly defendants limits itself to the posi- here. see the in which them We cases plaintiff. claimed ries hardened, compromise is tions have where no longer attempted and when courts majority, I must But unlike the waiv- believe dry spittle legal papers before patient/physician privilege to which er of the cases, restoring we order. those have plaintiff by filing complete agreed suit is attempts bring peace little our done with injuries petition. I as to the claimed Indeed, I to fashion rules. fear our agree provider do not the time and only encouraged efforts to have date consis- limitations to which Stecher refers are an are provided excuse for those who inclined discovery process designed to with a tent everything, join fight about the battle previous injuries complaints out ferret or discovery. over body parts systems or majority I concur in remainder of the negligence plaintiff claims a defendant’s but, expressed, opinion for the reasons would opposite is true. And caused. quash writ. seeks to particularly so where defendant plaintiff learn whether a suffered or claimed magnitude injury require sufficient body parts
medical treatment of same systems prior led to the event that plaintiff to suit these defendants. file CO., Respondent- GULF INSURANCE highly relevant Such information Appellant, negli- not on the issue of defendant’s case —if certainly gence question then on the extent of defendant’s contribution BROADCAST, et NOBLE fifty- damages. That a plaintiffs averred al., Respondents, plaintiff surgery for
year-old had neo-natal a Fuller, Angelia Appellant-Respondent. spine, or fell from a congenital defect of birthday No. 78891. bicycle on her and broke her tenth arm, upper a or had tattoo removed from her Missouri, Supreme Court by dermatologist, frequently visit- chest En Banc. chiropractor aching of an ed a for treatment 21, 1997. Jan. years for a that ended ten be- back decade occurred, or con- fore the accident at issue pain psychiatrist with constant
sulted point past highly are all relevant
some her *2 Turner, City, Appel-
John E. Kansas lant-Respondent. grounds Loring, Courtney Koger, On same that Gulf refused to
Martin M. M. suit, pay judg- Respondent-Appellant. it refused to City, Kansas defend the declaratory judg- then ment. Gulf filed in the circuit court of ment action Jackson COVINGTON, Judge. County asking the court to find that state *3 Angelia injured at a Fuller was “Free injuries by the Fuller’s were covered Money” by Noble Broad- parade conducted Policy. CGL Gulf also asked trial court promotion radio station owned cast a a agreement to hold the settlement unenforce- by employee A drove sta- Noble. Noble grounds against able Gulf that it was on parade tion’s studio and tossed mobile unreasonable, collusive, and obtained money pa- to the crowd. The crowd argu- later the fraud fraud. Gulf abandoned vehicles, pushed to parade rade close ment.
pushing in front of the mobile studio. Fuller Fuller, Pacific, granted court The trial ran One the wheels the mobile studio summary judgment on issue of Noble injuries leg. to over her lower She suffered coverage. Finding leg. her resolving ambiguity ambiguous against Noble
Fuller filed suit Broadcast insured, trial court found favor of the studio, a Noble driver mobile injuries covered under the Fuller’s were alleged was employee. Fuller that Noble conducting a trial on the Policy. CGL After negligent conducting parade a without ad- validity agreement, the trial settlement equate safety precautions negligently and for to be unenforcea- court found the settlement operating the mobile studio. Noble removed ble the amount was unreasonable. to the United District Court case States appealed Fuller parties appealed. Both for the District of Missouri. Western court’s the settle- trial determination appealed had a business auto insurance
Noble unreasonable. Gulf ment was Indemnity Company summary judgment with Pacific Insurance the CGL general liability policy injuries. a court Policy commercial Fuller’s covered (CGL Policy) Company. with Gulf were Insurance held that Policy. The pending federal under the CGL Noble informed Gulf of covered court, therefore, suit not address the issue of case and asked Gulf to defend the did granted trans- against to reasonableness. This Court Fuller. Gulf refused defend af- judgment of the trial court is upon in the fer. The Relying suit. an auto exclusion and remanded in part and reversed inju- firmed Policy, Gulf asserted that Fuller’s CGL part. not covered because mobile ries were parade in the came within the
studio used policy. “auto” Noble and definition of APPEAL GULF’S against Pacific the case defended Policy provides, pertinent The CGL participation without the of Gulf. part: Pacific, Noble, and Fuller entered into in- pay sums that a. will We agreement pursuant the terms settlement obligated pay as legally sured becomes 537.066, agree- RSMo 1994. The section ‘bodily injury’ or damages because of $187,- provided pay would Pacific damage’ which insurance ‘property agreed also have Fuller. Noble applies.... it judgment consent entered $1,000,000, limit of the CGL Exclusions federal court entered district apply to ... does not This insurance negligent claim Noble was damage’ ‘property g. ‘Bodily injury5 or parade. all conducting the Fuller dismissed arising out of the other claims. terms; any provide its coverage
use entrustment to others of does not own merely special operated types ‘auto’ owned or it defines the events may the terms of the sured.” policy. The states that it is endorsement terms, “[sjubjeet limits otherwise all Policy.” example, For and conditions of the Policy special The CGL contains a events just endorsement events provides part: endorsement in relevant limits, subject liability con- IT IS HEREBY UNDERSTOOD AND tends, subject to so is the endorsement all AGREED THAT THE FOLLOWING policy. other terms of the Gulf asserts that BE SHALL AS THE INCLUDED parades are claims covered to *4 TERMS AND CONDITIONS OF THIS covered, any the same claim is extent POLICY: is, subject to all the terms of of the policy. SPECIAL SHALL INCLUDE EVENTS
...PARADES ... responds policy pro- Fuller does (cid:127) coverage
vide under facts of this the case. special The events endorsement states that it Subject terms, all otherwise to the limits is, “Subject terms, otherwise to all limits Policy. and conditions of the Policy.” (emphasis and conditions of the add- ed). “subject distinguishes Fuller to” from language poli Gulf asserts that the of the “subject explains otherwise to.” Fuller cy, exclusion, including policy plain is special if the events endorsement had been unambiguous; therefore, this Court must en “subject policy, to” all terms of then the policy force the as written. Peters v. Em special events would have endorsement been Co., ployers 300, Casualty Mut. 853 S.W.2d terms, modified limits and conditions (Mo. 1993); 302 banc Harrison v. M.F.A. policy. phrase Fuller notes that the Co., (Mo. 137, 142 Mut. Ins. 607 S.W.2d banc “subject way parts to” in is used this other 1980). plain Gulf meaning contends that the contrast, policy. explains, of the Fuller of the auto Policy exclusion in the CGL ex “subject phrase because the otherwise to” empts coverage under used, special was events endorsement is policy. “This apply insurance does not only by modified portions policy bodily injury ... property damage arising super- that the endorsement itself does not out of use or explains sede. Fuller that this is so because any entrustment to others of ‘auto’... “otherwise” means “in different circum- operated by owned or insured.” Al stances.” Webster’s New Third Interna- though special events endorsement states Unabridged (1961). 1598 Dictionary, tional policy provides coverage pa for special Fuller concludes that endorse- rades, policy coverage itself excludes for supersede poli- ment should be read to other bodily injury arising from the use of an auto cy provisions necessary provide where operated by owned or Noble. Since Fuller coverage special for the listed events. studio, injured by submits, was a mobile words, special other events endorsement plain meaning auto exclusion acts subject provisions policy except to all deny coverage. any special those that conflict with event argues the endorsement. Fuller Gulf contends that this Court must read policy provid- that if the CGL is not clear conjunction the endorsement with the ing coverage from the liabilities policy, including terms the entire the auto parade, policy ambiguous. is at exclusion, least plain meaning to determine the Policy. Mfg. the CGL Abco Tank & Co. v. Co., (Mo. 193,
Fed. Ins. ambiguous 550 S.W.2d 198 banc Whether a is a 1977). question The events endorsement Am. itself law. General Ins. Co. Life
814 Barrett, 125, (Mo.App. they girl party v. 847 131 at a hosted. The crashed and S.W.2d 1993). injured. parents ambiguity was The sued insureds An exists when there is alleging indistinctness, negligent supervision negligent duplicity, uncertainty in the moped. entrustment of The insureds meaning language policy. in the Lan- pay. did confessed but guage ambiguous reasonably open if it is in parents attempted collect under May- different constructions. Krombach policy. sureds’ Farm State homeowner’s Co., (Mo. Ins. 827 S.W.2d flower coverage. State Farm denied S.W.2d 1992). banc The use of the word “otherwise” coverage bodily 217. The allowed uncertainty or creates such an indistinctness injury off caused accident the insured’s case; reasonably open this property was “caused activities par to both constructions advocated argued the insured.” Id. The Killians argument appears ties. Gulfs to be While hosting party allowing to ride a child initially, persuasive focus moped “activity was an insured” ambiguity highlights word “otherwise” daughter’s injuries. led their “Subject policy. arguably otherwise to” however, policy, sureds’ homeowner also had to,” something means than different an exclusion similar to the auto exclusion every word a contract is the CGL cover excluded given meaning possible. if Nichols v. Pend *5 “arising age “bodily injury” for out 673, ley, (Mo.App.1960). 331 676 S.W.2d motor use of a fact used in that to” was elsewhere by operated any vehicle owned policy strengthens argument 218. sured.” Id. at The Missouri Court that different the word “otherwise” has a District, Appeals, ambigui found Western no simply meaning. policy not While the does policy ty policy and held the did not state that events endorsement appeals stat provide coverage. The court exception, pol supersedes the automobile that auto disallowed cover ed exclusion icy regard. ambiguous is at least age for it an the accident because involved auto. Id. language ambiguous, When against it must insurer. be construed Similarly, Porterfield, a trailer broke Krombach, at 210. 827 S.W.2d Because the loose a truck and collided with from Policy ambiguous, language must 14. Scarborough’s CGL 844 at vehicle. S.W.2d Full into Scarboroughs be construed favor of the insured. entered a settlement injuries by agreement Porterfield had er’s are covered with Porterfield. CGL Policy Insur a CGL with American States that if finds ambi- Gulf asserts the Court an Company. ance contained attempt guity, Court must to harmonize pres the one in the auto exclusion similar to ambiguous Haggard Hauling sections. pay refused to ent case. Id. American Co., Rigging Co. v. Ins. 852 & Stonewall judg petitioned the court for a and 396, (Mo.App.1993). Reading 401 S.W.2d not cov stating ment that the accident was whole, as and the endorsement Gulf policy. ered American The Scarbor any possible ambiguity can contends that oughs argued that the accident was away. argument disre- harmonized Gulfs training negligent supervision and due interpretation gards validity employees. Id. 15. The at Porterfield’s urges. plausibility Its at least Fuller District, of Appeals, Missouri Court Western interpretation. great as that Gulfs injuries the use found “the arose out of su negligent from the of the truck and not argues that this case is similar to Gulf coverage there is no pervision and therefore Co., Casualty Killian Farm Fire & v. State any injuries automobile for out (Mo.App.1995), 903 215 and Ameri S.W.2d 16. accident.” Id. at Porterfield, 844 S.W.2d can States Ins. Co. v. Killian, find (Mo.App.1992). argues 13 the insureds Court should Gulf this because, like moped injuries young girl are not covered allowed a to ride their
815
injuries in Killian
Porterfield,
and
her
a method of settlement that is valid if free
844
480
arose
the use of an auto owned
collusion or fraud.”
S.W.2d
argu
interprets
lan
operated
(Mo.App.1992).
the insured. Gulfs
this
respect
in this
supported
guage
requiring
that a settlement be
insur
Although
Killian or
free from fraud
collusion.
Porterfield.
policies in both
exclu
ance
contained an auto
Cologna
proposition
Gulf cites
for the
case,
sion
to the
present
similar
one
unjustified
“an
refusal to
insurer’s
defend
language
policies
ambigu
was not
upon
ground
that the claim is not covered
Killian,
218; Porterfield,
ous.
S.W.2d at
policy relieves the
his
insured from
at 15.
S.W.2d
Because the Killian
obligation not to
contractual
settle and
policies
ambiguous,
were not
Porterfield
liberty to
insured is at
make a reasonable
no need for
there was
construction
_”
compromise
(emphasis
settlement or
reason,
cases. For this
Killian
Porter-
added).
at 701. See
785 S.W.2d
also White-
persuasive.
are
field
head,
at 480.
argues-
844 S.W.2d
imposes a
reasonableness stan-
FULLER’S APPEAL
enforcing
dard on
when
courts
section
argues
537.065 settlements. Gulf also
provides
537.065
in relevant
Section
good
must be
settlement
made
faith.
part:
Cologna,
785 S.W.2d
701.
Any person having
unliquidated
claim
damages
tort-feasor,
appellate
yet
No Missouri
court has
on ac-
direct
bodily injuries
death,
ly
may
requirement
count
the reasonableness
en-
addressed
ter into a contract
Cologna,
with such tort-feasor or
section 537.065 settlements.
both,
stated,
whereby,
insured
his behalf or
the court of
with little discus
*6
sion,
in
payment
speci-
unjustified
consideration
aof
that “an insurer’s
to
refusal
amount,
person
asserting
ground
fied
the claim
upon
defend
that the
not
claim is
agrees
in
judgment
event of a
reheves the insured
tortfeasor,
against the
nor
obligation
neither he
from his contractual
not to settle
person, firm corporation claiming by
or
liberty
and the insured is
to make a
through
levy
him will
except
execution ...
reasonable settlement....
It
is also said
against
specific
in
assets listed
that to
insurer
bind the
the settlement must
reasonable_”
except
against any
contract
insurer
be
tion 537.065 settlements be reasonable. It now to decide whether rea- sonableness, collusion, Cologna, Appeals, along the Missouri Court of with fraud and District, analysis stating part Southern after that the should of the be a determin- enforceability to ing sured is free make a settle Reasonable section 537.065 set- ment,” say fairly on to ar- considering went that “it could not tlement contracts. After wrongful parties guments authority be said that the of the jurisdictions, death action was collusive or fraudulent....” other this Court determines Ass’n, Hosp. appropri- Id. v. Whitehead Lakeside a reasonableness standard is pursuant determining parties enforceability settled to section ate in of sec- 537.065, “is Requiring which the western district stated tion 537.065 settlements. a settle-
816 has, however, proving appropriate be reasonable strikes an met its burden of balance of the insured between interests the settlement amount was unreason- and the interests of the insurer. In eases medical able. The evidence was case, present such as the the insurer has $12,072.79, ap- wages lost totaled bills and n defend, leaving refused the insured to fend proximately amount the settle- insured, however, although for itself. The per- regarding ment. Fuller testified some engaging in collusive conduct for fraudu- manency injury of the to her effects purpose, may lent or act in deceitful a self- conference, leg and ankle. At the settlement way attempt protect in an him- interested attorney $295,000 made a demand. personal liability. self from In Steil v. Flori- $50,000 attorney to settle. Pacific’s offered Physicians’ da Ins. Reciprocal, District $50,000 punitive Fuller also demanded Appeals explained why Court of of Florida attorney hired Pacific to damages. require courts should rea- settlements be represent probable Noble verdict estimated sonable: $50,000 $65,000. range between He esti- top jury mated the verdict would be between hardly conduct insured can be $75,000. $65,000 Upon ad- the evidence simply characterized fraudulent because duced, say trial this Court cannot stipulates large figure he to a settlement court abused its discretion in liability. order his to obtain release to be settlement this case unreasonable. nothing He has to lose he little obligated pay. will As a never conse- argues that this Court should not quence, liability the settlement of and dam- unaccepted offers and consider demands very ages may relationship have little Fuller, of a evidence of value case. strength plaintiffs Due claim. however, object to did not the evidence problem, ordinary to this standard Failing during the offers and demands trial. Thus, is inappropriate. collusion or fraud objection to an at trial make an issue may we hold ... a settlement not be en- . appeal. waives the issue on Johnson forced if it is the carrier unreason- 191, Moore, (Mo.App.1996). 931 S.W.2d able amount or tainted bad faith. fact, during Fuller mentioned offers (ci (Fla.Dist.Ct.App.1984) 448 So.2d complain her opening statement. She cannot omitted). tation failed appeal first time on when she *7 object to the of the at trial. use evidence The. test of whether the settlement amount reasonably prudent is is what a reasonable Finally, must an this Court determine person position of defendant would disposition appropriate process of a case plain- have settled for on the merits of the agreement judged in which the settlement is Shugart, tiffs claim. Miller v. 316 N.W.2d possibili There are two be unreasonable. (Minn.1982). 729, 735 The determination in- First, court, holding agree ties. after bearing volves a of the facts consideration unenforceable, insur ment could release the damage plaintiffs liability aspects any liability. Alternatively, the trial er from claim, going as well as the risks of to trial. fact, court, acting as the finder of could proving The Id. burden of the reasonable- a settlement amount determine reasonable ness of the settlement contract on the insurer, in for should held liable. participate has which insurer who elected not of the underlying among case. This distributes This Court concludes second parties requires possibilities the risks attendant settlement. more fair. This question case be The remanded. what constitutes a reasonable settlement analysis
Applying the settle necessarily ad would have been case, this case at issue in this this Court contract dressed, by implication in the part, at least in is not at issue and has notes that fraud amount the settlement proving determination carried its burden of may, question how- through unreasonable. The settlement was obtained collusion. was policy contains ever, par- trary). But argument by the require further events endorsement. argument helpful in such ties. Whether of the case is left to the sound discretion this AND HEREBY UNDERSTOOD IT IS before trial court to determine on remand THAT THE FOLLOWING AGREED maMng finding of a reasonable settlement THE BE INCLUDED AS SHALL insurer should be held amount for which the OF THIS TERMS AND CONDITIONS liable. POLICY: summary, Policy provides cov- the CGL SHALL INCLUDE SPECIAL EVENTS it is am- erage for Fuller’s ... PARADES its biguous. trial court did not abuse discretion the settlement amount [******] million dollars to be unreasonable. of one terms, limits Subject to all the otherwise requires proceedings further
The matter and conditions amount a reasonable settlement determine insured should be held liable. for which the majority, the addition of the word For the of the trial court is affirmed “subject” and “to” cre- “otherwise” between part part and reversed and remanded because, ma- ambiguity. This is ates an opin- proceedings consistent with this further reasons, “in dif- jority “otherwise” can mean ion. ferent circumstances.” majority’s finding that disagree I with HOLSTEIN, C.J., and PRICE circum- ambiguous. this WHITE, JJ., concur. ways.” stance, “in other “otherwise” means (1988). Dictionary 1472 The World Book ROBERTSON, J., separate dissents with in a manner consistent When defined opinion filed. meaning considering the this common a whole while read as intent LIMBAUGH, JJ., BENTON and concur context, reading it is clear the words ROBERTSON, opinion of J. to” is intended phrase otherwise exceptions policy previ- to the invoke ROBERTSON, Judge, dissenting. ously unambiguously set out. The use of does not void the word “otherwise” respectfully I dissent. meaning poli- exceptions or render the majority opinion says ambigu- that an cy uncertain. ous of insurance is construed through a diligent searching dic- It takes beyond That is true serious the insurer. English word tionary to a non-scientific find dispute. *8 simple meaning. The word carrying single majority opinion says policy The nearly thousand words devoted “the” has two ambiguous. policy under our review meanings, Third Webster’s possible to its following exception gener- contains the to its (1976), Dictionary 2368-9 New International liability coverage provisions. al five hun- single letter “a” has over possible to its uses and dred words devoted apply insurance does not This Id. at 1. definitions. “Bodily injury” “property damage” g. ambiguity, the For one intent out ample basis for ren- dictionary provides an any ... to others of use or entrustment meaningless every contract dering insurance any in- operated ‘auto’ owned or simple injury or in the face of need. sured. “subject all terms of the otherwise to phrase person under the major- mean “the ambiguous. policy” could language This is not (to [subject] in circum- king different con- rule of the ity claim otherwise does not [otherwise] [all] stances included [to] during
court’s sessions [terms] [of] [the] public [policy].”
conduct of affairs But we better, understanding innately
know Witt-
genstein’s teaching meaning that “the of a language.” Wittgen-
word is its use L.
stein, Philosophical Investigations, 43. respect, phrase
With other- (in
wise to” does not render this otherwise respects) unambiguous
other con- insurance ambiguous.
tract If this Court wishes policy
read the words of the context
assign the words used the mean-
ing normally poli- with associated insurance
cies, it will as did the court of discover ambiguous. is not all,
After communication in a English dependent
rich in nuance as is ever
on the context in which words are used. (or else)
Otherwise we could not communi-
cate at all. policy unambiguous
I would declare the
a matter of law and reverse the my reading trial court. law Under contract, I
and this insurance would not appeal
reach the conclu- ap-
sion that the is clear denies that necessity.
peal of Joy
James R. WEAVER and Weaver, Appellants,
F. FARM
STATE MUTUAL AUTOMOBILE al., COMPANY, et
INSURANCE
Respondents.
No. 78853. *9 Missouri,
Supreme Court of En Banc. Passanante, Tanner, M. Paul J. St. Joan Louis, appellants. Jan. 1997. Callis, Ball, H. W.
Cheryl A. Dan James Schaeffer, Louis, Erwin, T. St. for re- Evan spondents.