*1
Respondent
LEE, Plaintiff,
JAMES LEROY
and Cross-
ANDREWS,
v. JAMES R.
Appellant,
Defendant
Appellant.
No. 82-326.
April 25,
Submitted
1983.
July 5,
Decided
1983.
Rehearing
Aug.
Denied
1983.
Worden, argued, & Ronald Thane soula, appellant. for defendant and Lohn, Robinson, argued, & Lohn Sherman
Garlington, Meismer, Missoula, plaintiif, respondent for argued, Paul cross-appellant. and opinion of delivered the
MR. JUSTICE GULBRANDSON the Court. Andrews, defendant, upon a entering judgment
After verdict, the Fourth Judi- District Court of special jury granted plaintiff Lee’s mo- District, County, cial Missoula the new or- appeals from trial trial. Andrews tion for new der, claiming the District cross-appeals, and Lee notwith- judgment or entered verdict should have directed him. standing the verdict for Andrews, defendant,
Plaintiff, James had and James They neighbors, were years. for over ten been friends frequently. Over each other golf together, and saw played minor in several business years, they been involved had deals. State has worked for agent, insurance and
Andrews an twenty-one years. Lee Company about Farm Insurance in the purchased from Andrews had automobile insurance policies lapse after six 1960’s, many of these but had let policies In Lee had two fire months. through Andrews. purchased one life insurance policy claim that controversy upon here is Lee’s based procure car insurance. agreement an oral breached 28, 1977, driving his Oldsmobile Lee was September On motorcycle by Earl a driven with Toronado and collided Wilson. Wilson brought against suit Lee and obtained a judment $152,000. of about
Meanwhile, requested represent Lee had State Farm to him in the action brought Wilson. State Farm refused brought declaratory judgment action federal Dis- Court, trict claiming it had no obligation defend Lee or pay damages trial, the Wilson action. After federal District Court concluded that State Farm had no obligation toward Lee. 27, 1979,
On September complaint Lee filed a the state Court, Andrews, District against alleging breach of an oral tort, contract, general promissory On estoppel. Febru- ary 16, a pre-trial order was reducing filed the claim to breach of contract.
Lee claims an procure oral contract insurance arose from the following circumstances. early June negotiated dealer, Lee car *3 Dolce,
Michael for the lease of an Oldsmobile Toronado. Dolce told Lee he would need insurance and Lee told Dolce to call Andrews’ Insurance Agency. Lee testified that he told Andrews he going was to lease car and would need insurance. to According Andrews had replied that he “would take care of it.” They did not discuss the amount of coverage, the policy, terms the amount of the pre- mium, or the names of the insureds.
Dolce testified that delivery before vehicle financed GMAC, through he required complete to an insurance verification form verify and given the information him by his prospective customer was correct. 15,
On June Dolce called Andrews’ office talked and with Mrs. Andrews verify coverage. the insurance Based Andrews, on information received from Mrs. Dolce com- pleted the insurance He in policy verfication form. wrote $25,000 $100,000/$300,000 bodily limits of and injury, for property He damage. testified that Mrs. Andrews told him “it would be taken of.” care receiving
Mrs. Andrews admitted the call Dolce. She insurance, listing Lee made a note that wanted automobile Al- make, car. model, serial number of the year, and herself, she normally handled car insurance though she she realized on her husband’s desk because placed note ordinary not be handled in the that Lee’s insurance would she Lee would manner. also testified that assumed She complete application insurance come into their office and forms. GMAC, “confirmed Sharp, an wrote
Barbara 6/ completed by form Dolce. 20” on the insurance verification conversation, Although particular she did not recall written would not have Sharp Barbara testified that she Andrews’ insur- form not called “confirmed” on the had she the leased coverage insurance ance and confirmed vehicle. spoke each other saw
While Lee and Andrews completed months, next few Lee never many times over the any premium. application paid form nor an insurance evidence, special returned a Based on the above findings: following with the verdict form the 1977 Oldsmobile request “1. Did Jim Lee insurance for 8, No 4 Yes Toronado from Jim Andrews? ANSWER: for Jim agree procure Jim Andrews “2. Did Lee? ANSWER: Yes No insur- Lee’s regarding there sufficient information
“3. Was have, using reasona- ance needs Jim Andrews could so that assembling inquiries infor- making ble care and skill carry any mation, necessary to the details obtained agreement. ANSWER: Yes No care Jim fail to exercise “4. Did ANSWER: the insurance? diligence procuring reasonable *4 8, 4 Yes No his by or any cooperation, Jim failure
“5. Did procuring inactions, Jim Andrews prevent actions or 0 Yes No insurance? ANSWER: for the procure insurance Jim Andrews fail “6. Did 4 Yes No he ANSWER: agreed? Toronado as “7. Jim any Did Andrews receive consideration from Lee for such AN- undertaking provide coverage? Yes 4” SWER: No - 12, findings jury that Lee found and Andrews agreed contract, specific
had not terms of the such as, insurance, insured, the amount of be who would responsible who would be While premiums. jury insurance, jury found that Lee believed he had also that this jury found belief was unreasonable. The then $80,150 Lee damages. awarded verdict, Several weeks after the and after discussion with parties, counsel for both the District Court judg- entered motions, ment for Andrews. Lee filed post-trial several seeking alternative, in the judgment notwithstanding verdict, judgment, amendment of the or a trial. The new granted District Court trial, Lee’s motion for new didn’t discuss the motions for amended judgment judg- ment notwithstanding the verdict.
The District Court granted a trial on the grounds that Lee been had denied his right to a fair Lee trial. had the right to choose his form of action and chosen to pursue had solely the breach of contract action. Court’s instruction duty described the of an negli- or broker terms of gence, not contract. The District Court reasoned that jury obviously confused because it the to- grant didn’t tal amount of uncontradicted evi- introduced into By dence. apportioning damages, jury seemingly ap- plied comparative principles. thereby Lee was his right denied to a fair granted. trial and new trial was Lee on cross-appeal argues the District Court erred by not him a or granting directed verdict not- judgment withstanding argues the verdict. He evi- there no dence support Lee An- finding that #5.) drews from procuring Absent this (Finding insurance. finding, Lee claims supports that the verdict judgment (See, #3.) him. in particular, findings agree #2 and We Lee’s contention.
532 support
There is evidence in record to no the the prevented finding procuring Andrews jury’s that Lee from estoppel the insurance. the of collateral Applying doctrine action, the in the Dis from State Farm’s federal findings objections any testimony indicating trict Court sustained to to and com that Andrews had told Lee come into his office fact, plete application. only point an In the this on evidence him he testimony was Lee’s own that Andrews denying told have to into an complete would come the office application.
Excluding finding that Lee Andrews insurance, support procuring remaining findings judg- judg- for Lee. Lee be granted ment We therefore order that verdict, for a notwithstanding ment and remand damages only. trial on the of issue limit argues Andrews on remand this Court that should alleged of of the insur- damages the evidence to the limits hand, damages policy. argues ance on the other that 27-1-311, only be of section by operation should limited MCA, for provides damages which the measure compensate breach of “is the amount which will contract proxi- party aggrieved for all the detriment which was things mately or in course of thereby caused likely be result therefrom.” would to Gay State Bank (1921), Lavina Mont. v. 61 202 P. Court stated: this his own or broker agent
“And as between the insured and usual there is the procure authorized him to insurance instruc- carry to out the obligation part of the latter in faithfully reposed him the trust discharge tions given him, damages in breach may and he become liable procure specific he is instructed duty. If damage so, principal liable his do he is fails lia- the want such insurance. by reason suffered that which to the loss is bility respect had the insurance upon company would have fallen (empha- P. been at 755. as contemplated..,.” effected added) sis possibly damages therefore liable for State all paid.
Farm have would State Farm would have been re- sponsible against for the defense of Lee Wilson’s suit responsible him, and for the awarded that ac- policy. tion to the its Further, amount of had Farm State completed obligations, these Lee would not have had to money percent Gay, then, borrow damages at Under interest. attorneys judgment,
from the Wilson fees *6 damages resulting having action, and the from to borrow money percent proper at interest are all evidence of damages. entry judgment notwithstanding
We remand for of the verdict favor of and a new trial to determine damages.
MR. HARRISON, JUSTICES SHEEHY and MORRI- SON concur.
MR. JUSTICE and file a SHEA dissents written dis- will sent later.
MR. JUSTICE WEBER dissents as follows: majority opinion The the of overruled order the District granting plaintiff’s the motion for new on a trial all requires entry judgment plaintiff issues the of for the Lee, with a new trial be limited a determination of plaintiff’s damages. respectfully I dissent. Opinion granting
In its trial, and Order the new the Dis- pointed plaintiff initially sought trict Court that out dam- ages on the contract, basis of a breach of an oral tort and general promissory estoppel; pursuant change but part plaintiff, plaintiff contentions of the re- single duced “his cause of action for trial to the claim of breach oral contract.” The District Court therefore con- only plaintiff cluded that the cause of action on which proceed was entitled to of an recover was the breach oral contract. issues,
Notwithstanding request limitations of at the defendant, in- gave following the District Court jury: struction No. 10 on to the “Negligence of an or is the failure agent on behalf broker skill, pru- diligence to exercise care and reasonable and or dent broker under the circumstances.” motions, Upon post-trial the District consideration of necessary. Dis- a new trial was Court concluded that 25-11-102(1), MCA, which trict Court to section referred provides: may
“The former verdict or other decision be vacated any following new ... of the causes mate- granted trial party: rially affecting rights the substantial such “(1) any of the court... or irregularity proceedings party order of which either the court... trial; a fair having
“(6) or insufficiency justify of the evidence to verdict is against other decision or that the law.” was warranted reaching its conclusion that trial the District Court stated: solely a new trial grants plaintiff’s
“This Court Motion for re defendant’s instruction ground giving on the its *7 agent or broker as well garding negligence on behalf of an at testimony of directed into witnesses allowing as evidence care exercise of reasonable demonstrating the defendant’s this re concepts; error improperly interjected negligence hav plaintiff which sulted in confusion jury justice. with substantial a fair trial and is inconsistent ing 25-11-102(1) (1981); 61. For these Mont.R.Civ.P. M.C.A. § plain reasons, nor discuss Court will neither consider this support is insufficient evidence argument tiff’s that there of the findings jury.” the the irregularity, such an
Having there was concluded that ir- the whether then addressed the issue of District Court plaintiff’s substantial materially the regularity affected v. Sibert Rasmussen by him of fair trial. rights depriving
535 (1969), 153 Mont. 456 P.2d The 835. District Court an- alyzed instructions, the including the instruction above No. 10 and the part conclusions of the to the jury as awarded, to be and concluded by confused the negligence instruction erroneously ap- plied negligence concepts comparative negligence prin- ciples. In conclusion the District Court stated:
The giving of the negligence materially instruction af- fected a right plaintiff substantial and this court’s refusal reject the instruction was inconsistent with sub- justice. MCA, (1981).” stantial 25-11-102(1), § The District Court has set forth a comprehensive analysis problems and of upon conclusions which the its award a new trial was based.
The standard which is to be applied by this in re viewing that order granting a new trial is long standing set forth Moen v. and is Peter Kiewit & Sons’ Co. (1982), 425, 655 482, 487, Mont. St.Rep. 2209, P.2d 2215 as follows: .
“. . This decades-old
by
standard has been
out
fleshed
caselaw establishing decision
grant
or deny new trial
is within
court,
the sound discretion of the trial
Fredericksen v. Fredericksen,
(1980),
Mont. 605 P.2d
1137
The majority opinion has not set forth any showing which can be construed as a “manifest abuse of discretion” trial court. addition, I agree analysis the District Court
in concluding that instruction No. 10 was of necessity confusing to jury. special verdict form cited in majority opinion was confusing. also Verdict question No. 4 stated: Jim
“Did fail to exercise [defendant] care and diligence reasonable procuring the insurance? *8 Yes-8,
Answer: No-4” standard than question injected rather That of oral contract. relating to the breach standard order, in law to sustain the Finding ample facts and discretion, of of manifest abuse any showing the absence trial. granting affirm the new I would order HASWELL, dissenting: MR. CHIEF JUSTICE I I Justice Weber. foregoing dissent Mr. concur Instruc- confused arguably would add was The District interrogatories. the special tion No. 10 and grant- found, abuse of there no discretion so circumstances. ing a trial under such be limited retrial, damages should not plaintiff’s On pro- policy. law supposed Montana liability limits of contract breach the measure vides that party aggrieved compensate “is the amount which will thereby caused proximately for all the detriment which likely result things would be or course 27-1-311, MCA. Section therefrom.”