*1 210 respondent duty to defend or point, appellants
In their first essen Since had indemnify, tially its do so was not vexa- contend that the trial court erred refusal to concluding respondent duty had no Point tious. three denied. indemnify defend or Standard because the Judgment affirmed. provided coverage for vendors endorsement allegations petition obligated KAROHL, J., AHRENS, P.J., concur. respondent indemnify to defend and Stan dard. duty liability of a insurer to pursuant policy
defend to its is determined
by comparing language of insurance petition in allegations
contract and the of the injured brought by person
the action or
damaged. v. Moore Commercial Union Ins. Co., 16, (Mo.App.1988). 754 If 18[1] S.W.2d WENDT, Respondent/Cross Donald alleges complaint facts which state Appellant, coverage, potentially policy’s within the claim v. duty Id. there to defend. INSURANCE GENERAL ACCIDENT duty liability insurer’s COMPANY, Appellant/Cross depend upon the to defend does not alone Respondent. petition against allegations of the filed Cole, 63503, v. insured. Travelers Ins. Co. Nos. 63510. 661, (Mo.App.1982). The in 665[6] S.W.2d Appeals, Missouri Court ignore safely cannot facts known surer actual District, Eastern to it or could known to it or which which En Banc. investiga could be known from reasonable Freeman, 753, Zipkin tion. v. 436 S.W.2d 21, Feb. 1995. (Mo.1968). Further, the facts known 754[1] Rehearing Transfer to Motion for and/or obligation de or ascertainable control the 20, 1995. Supreme Denied March Court Hawkeye-Security fend. Ins. Co. Iowa Co., 719, Application to Transfer Denied Mutual National Ins. 25, (Mo.App.1978). April are Actual facts those 721[3] known, reasonably which facts were apparent
should have been commence proof of the and not the made
ment suit final result reached. Mar
therein or the Maryland Inc. v. Supply,
shall’s U.S. Auto Co., 529,
Casualty Mo. 189 S.W.2d (1945).
531[1,2] are If additional facts ascer not the action is
tained which show coverage policy, the insurer
within the obligated to afford defense. Travel not
ers, at 665[7].
Here, the trial court found that Standard any bonding agent in not use Loctite or
did manufacturer’s
direct contravention requirements. Fur-
recommendations
ther, that this was viola- the court found l.(b)(iii) of the endorse- paragraph
tion of appeal sparse indicates record
ment. weight findings are
that these Point denied.
of the evidence.
212 *2 driver saw Buckley, then collided. Neither Eugene McCollough, K. vehicles John S. Dixon, Louis, appellant. impact. Evans & St. vehicle the other’s before Leonard, Padberg, P. Matthew J. James wife, passenger who Merz, Padberg, McSweeney, & St. Slater (husband’s) vehicle, the northbound testified *3 Louis, respondent. for car, saw the underinsured driver’s that she on, turning into car headlights their with its PUDLOWSKI, Judge. in the middle of the intersection. .She (husband) in a Donald was involved Wendt screamed, impact going to us.” The “he’s hit collision with an underinsured motorist. severe, injuries considerable and caused was carrier, insurance General Acci- Husband’s A testi- police and wife. officer to husband Co., appeals dent Insurance from decision a him driver told fied that the underinsured in favor of husband on his for dam- claims happened the accident that the crash after ages against and the un- loss of consortium turning.” “as he was provisions derinsured motorist of his insur- issues, raises, policy. among It other ance insurance turning The left held an driver (wife’s) Betty question whether Wendt’s $50,000 only per liability policy with limits of past injuries estop her suit for own should $100,000 Hus- per occurrence. person, and relitigating in from issues decided husband separate against suits band and wife filed her appeals case. Husband cross the trial Acci- company, their own insurance General by court’s of his award for his reduction 40% $500,000 dent, compel them to honor the to comparative by an sum fault and additional coverage poli- in their motorist underinsured for the he from the un- settlement received cy. and wife each then settled with Husband modify judg- derinsured motorist. We liability lim- driver for the this underinsured and, modified, ment affirm. $50,000 policy. in its his before writer as the This case comes rehearing by banc. result of a the Court en requested trial General Accident that the prior opin- permission, portions of With suits, trial consolidate the two but the court incorporated ion attribu- have been without cause went to trial court refused. Wife’s driving, his wife as tion. Husband was with sought compensation per- her first. for She passenger, north on Germania Street across by injuries and of consortium sonal for loss City. Gravois in St. Louis South injuries. jury her husband’s reason of intersection, the of Germa- northbound side Accident. found her and General wide, consisting nia of a is four lanes post-trial mo- court all The trial overruled (to Gravois), turn lane turn east on two appeal. and she took tions (to lanes, a turn turn through and left lane case, Shortly in Gravois). after the verdict the wife’s proceeding Husband was west its Accident filed amendment General through in lane nearest the center north case, still which was length answer husband’s following He one car of the road. was trial, raising the of collateral pending North of the inter- issues behind another vehicle. section, changes Hamp- comparative estoppel name fault. Husband’s Germania’s right. a noticeable bend to trial. The trial court ton and makes case then went apply estoppel to avoid refused to collateral proceeding The underinsured motorist relitigating already issues decided at lane, Hampton in left turn southbound Yet, jury on it instructed the trial. wife’s intending a turn to make left onto eastbound fault, on the theories that based motorist ac- Gravois. The underinsured road, wrong side of the husband was on the duty yield oncoming knowledged his keep proper failed to husband making left turn under the traffic while husband, found for award- lookout. by green light. Testimony the underinsured $217,500 personal injuries and ing for his him at trial. As by deposition and was read by $50,000 reason for his loss of consortium he asserted approached the intersection ap- injuries. it also down, rolling, still wife’s slowing that he was but fault to husband. portioned The two 40% he looked down shift. when (1) prior General Accident moved that trial whether issue decided $50,000 by adjudication pre- court further reduce award is identical with the issue (2) action; for amounts collected present his set- sented whether driver, with tlement the underinsured adjudication prior judg- resulted $50,000 another (3) for amounts collected merits; ment on the whether the her wife in settlement with the underinsured party against estoppel whom collateral driver. The trial court sustained reduc- party privity asserted was a with $50,000 tion of the award for husband’s prior party adjudication. Oates previous settlement the underinsured America, Ins. Co. Safeco driver, but declined to reduce award 1979). 713, 719 $50,000 another for the wife’s settlement. all, Above it should consider whether *4 According computation, therefore, to our the party against estoppel whom is as- collateral judgment final entered the trial court was opportunity a “full to serted had and fair $110,500: for suit,” litigate “fair- prior the issue the for 217,500 injuries personal Husband’s overriding ness is Id. the consideration.” 50,000 Loss of consortium Neither husband’s claims should 267.500 <107,000> Less 40% fault barred result of his suit. as the wife’s failed Husband, although a wit testifying he was 160.500 <50,000> Settlement with underinsured trial, party ness at wife’s was not a to proceeding. privity that Nor he in with Total award 110.500 ago long her. has the Missouri eschewed appealed judg- then General Accident concept solely privity upon founded mar alleged It ment. that the trial court erred in riage. are judgments Wives not bound to refusing apply doctrine collateral husbands, against their and vice versa. estoppel relitigating already avoid issues 467, Joseph, City Womach 201 v. St. Mo. previous in the decided wife’s trial. It also 443, (1907). 100 S.W. 446 Nor can we infer alleged ruling that the trial court erred privity people merely between two because enough that husband had introduced evi- they proving both have interest dence make a submissible case facts, disproving same set of share yield, underinsured’s failure to failure to other, attorney, testify same for each or sus lookout, keep driving a careful on the injuries tain in the same v. vehicle. Steinhoff wrong side of the road. Inc., Lines, 175, Churchill 875 Truck S.W.2d appealed Husband cross that the trial (Mo.App.E.D.1994). 177 Husband in ac instructing court erred in on com- legal privity tion with is not his wife parative fault because no substantial evi- estate, contract, Thus, barring or otherwise. supported dence the theories that was on personal injury husband’s and consortium wrong side of road and that his prong claims violate the third Oates. keep proximately failure a lookout caused alleged the accident. He also that the trial General Accident maintains reducing court erred in his verdict that at the loss of consortium claim least $50,000 already paid to him as settlement for is should be barred because husband’s claim his claim the underinsured motorist. disagree. claim. We derivative of wife’s While it is often said that a consortium claim Appeal
General Accident’s “derivative,” see, Moyer, e.g., is Burrow v. 568, also (Mo.App.1975), 519 S.W.2d 572 Upon rehearing, that we deem said for of consortium is that a claim loss trial was correct in its not to court decision spouse’s claims, “separate and distinct” from collaterally estop husband’s both for injuries, claim v. injuries for her Marusic Union and for of consor his own his loss (Mo. 454, 377 injuries. Company, Electric 459 tium to his wife’s consid due When 1964), they independent “two appropriateness and that are ering applying collat action,” case, estoppel in causes Garland v. American given eral a court should Co., Family Insurance consider: Mutual 214 any fact, appeal’s briefs
889, Rule 66.01 never (Mo.App.1970). 891 We believe record, and it is not to this Court or are best reconciled these statements attorney duty as an separate, of this Court act claim is a view that a consortium distinct, King, v. 570 claim, parties. for the Thummel personal legal de- 1978). 679, To our only in it must be S.W.2d rivative the sense has availed injury. knowledge, Accident by spouse’s Peeples General occasioned See 459, 66.01, and the record bears Sargent, 77 itself of Rule Wis.2d N.W.2d (1977). compliance with the notice proper evidence of provision. Womach, supra, squarely In a case facts, Supreme point present ever been co- husband and wife Nor have case, failure to of Missouri held that wife’s parties Court In this each other’s cases. person separate stranger suit for her own prevail complete in a chose to remain a injuries does not bar a husband’s subse al to consolidate wife’s action. Motions of consortium rea quent suit his loss were overruled. injuries. spouse When a in son of her light Supreme pronuncia Court’s spouse
jured, spouse suffers. Each the other Oates, supra, fairness should be tion in loss, separate real and each should bears estoppel in collateral ultimate consideration *5 redress opportunity seek be afforded apparently never Accident cases. General way in she that loss the that or sees for Rule, gave under the and husband notice fit. We note that there is a current trend voluntarily joined co-parties. as never wife some, all, jurisdic by foreign no but means provision, separate notice By providing tending oppose result of Wom tions the recognizes implicitly that it would Rule 66.01 (Second) Judg ack. See Restatement spouse’s action completely bar a be unfair to However, (1982). 48, '§ ments cmt. c prior her actual notice giving without him or foreign courts and com pronouncements of “ possibility. ‘It is also most of this harsh value, carry precedential no mentators ought justice no man principle of that obvious Supreme by standing long are we bound which he was by proceedings to to be bound precedent of Womack. Court ” Womach, 445, 100 stranger_’ S.W. minority argues Rule opinion that (16th ed.). § 523 quoting 1 on Ev. Greenl. 1965, 66.01(c),1 1, changes July effective properly afford court We deem that trial acknowledge that this result. We WoraacA day in court for his husband his fair ed compel negligence and consortium can Rule in accordance separate and distinct losses together in certain circum- to be tried claims Ac Supreme precedent. Court General with However, circum- none of those stances. respect to col points appeal with cident’s this case. attend are, therefore, stances estoppel denied. lateral 66.01(c) joint filing Rule ... makes next contends that Accident General (1) mandatory in two instances: procedure denying its motion trial court erred (2) spouses if given, or both if notice failed to directed verdict because coparties and in these two have ever been Accident case. General make submissible (Our emphasis). only. instances of the under- no evidence claims that there is Carthage Limestone Com v. Crushed Cline failing negligence motorist’s insured (Mo.1974). 118, 119 pany, S.W.2d 504 keep a yield failing to care- right-of-way, wrong notice,” lookout, driving on side of ful Rule must be “written notice at- Separately, General Accident 66.01(c), personal- the road. either be served and must theories of these the court’s submission officer or tacks by return of the ly proof with disjunctive. We have reviewed affidavit, by mail registered or certified or addressee, transcript that there was substantial and find Rule signed a return specifications 66.01(d).2 support each of the alleged evidence General Accident never as sub- negligence in husband’s instruction In to husband. proper notice gave that 66.01(d) 1, 1995, 1995, January was re- 1, 66.0.1(c) Rule 2. January re- As Rule As of 66.01(e). 66.01(d). as Rule numbered as Rule numbered
215 However, Rather, mitted. extended discussion defendant bears the burden of these producing fact intensive issues be of evidence to the instruc precedential deny points Johnson, 390, value. Finninger We these tion. v. 692 84.16(b). pursuant to Rule (Mo.App.E.D.1985). the instruc While theory may any supported tion be based on General Accident next asserts favorably the evidence as construed most Instruction No. confused misled defendant, it must be based “substan jury by obscuring liability the fact that the evidence,” merely tial and not a “scintilla of General depended Accident on husband be evidence, speculative deductions and con ing legally entitled to recover the un- from clusions.” Id. any derinsured motorist. We hold that am biguity caused Instruction No. 8 was “wrong As to the side road” instruction, cured the converse Instruc theory, General Accident that this is claims 9, tion No. which stated: supported positions relative your you verdict must not assess a vehicles after crash. mere evi percentage of fault to General Accident positions dence of of vehicles after a Company Insurance you unless believe inferences, conflicting crash raises and does Steven Webb’s conduct negligent Bentley not make a submissible case. submitted Instruction No. 8. Crews, (Mo.App.1981). This converse instruction made to the clear Likewise, damage left to the and front they were percent- not to assess a equally conflicting sides of both cars raises age of they fault to General Accident unless case, inferences and therefore carries (the motorist) found neg- Webb underinsured probative no substantial value. ligent. Point denied. *6 evidence No other was introduced from Finally, General Accident contends jury which the could infer that husband was that by the trial court reducing erred not wrong on the side of The the road. other by $50,000 husband’s verdict an additional accident, driver does not remember the nor for by funds received his wife the un- from seeing does he even remember husband and earlier, derinsured motorist. As stated we impact: wife’s car before hold that husband’s cause of action is distinct Any from hers. funds by received wife in Q car you Where the other when settlement for her way cause of action in no it? first saw affects rights husband’s cause of action or Stopped A mean the acci- after' —You policy. under the policy, Under the husband dent? “legally remains entitled to from recover” (and, underinsured his distinct claims Well, Q you Yes. did see it before ever therefore, Accident) from General after even the accident? the underinsured’s settlement with his wife seen, A I nothing, No. never heard for her distinct claims. Point denied. [sic] Appeal Cross position As far as of his own car before points We now address husband’s crash, cross deposition the underinsured’s does First, appeal. alleges forward, husband say that moving that he was not to the a comparative Yet, error to submit fault instruc- regard left. we do not evidence to this tion because there was no evi- support substantial sufficient the instruction. support theory dence to that husband light, most Even favorable statements wrong road, was on the side of the by or his position about his do driver road alleged keep failure a careful lookout was carry weight not substantial that driv- where a contributing cause to the looking accident. We er that he admits was not even at the agree point. with this road:
A Q you putting fault instruction is And last remember in every not negligence your warranted suit. in neutral? car left, Yes, straight, through a curved looking A I not or sir. remember down intersection, him The my taking out his lane. pushing stick shift into neutral and semantic majority persuaded I not this thing then the last remember. that’s “straight” “right or play on the terms opinion minority suggests that even The jury to find that left.” No should be allowed not though the underinsured driver was look- “right not by “straight Hampton” and onto accident, ing at the time of at road went abso- or left” husband meant that he his statement about where he was is reliable shape lutely straight, heedless of expected because “a can be to know driver lane, he said he was when the same breath steering whether has turned the wheel traffic, following going a line of also quite change often di- and can sense “straight,” varying lane. and never from the peripheral vision.” rection sensation only make reasonable A entitled to disagree. We evidence. inferences based substantial No introduced General evidence was its simply not meet Accident did General position steering Accident produce evidence burden to substantial sensations, wheel, periph- driver’s- or his “wrong side of road” trial to above, instruc- eral vision. As mentioned instruction. upon tion must be based substantial evi- keep por- The careful lookout” “failure to dence, merely a scintilla of evidence or unsupported of the instruction was also tion Finninger, supra. speculative deductions. seeking party evidence. substantial underin- minority’s account of how the burden show this instruction bears the precise position in the sured driver knew his keeping party, had he been other “glancing road down” is an when he was lookout, in time to could have reacted careful Furthermore, speculation. pure exercise Anderson, Thurman v. the accident. avoid driver had testified even if the underinsured 1985). 806, 807-08 visions, peripheral about his sensations Although husband there was evidence that unlikely to consider them sub- we would be right, Acci- open General had lane an instruction is stantial evidence. Whether nothing to that there was prove averred dent ques- supported is a substantial evidence moment react between the sufficient time to law, therefore, analysis does not tion of realized the dan- when should have jury. province invade the ger, This time and the moment collision. *7 by minority does Other evidence cited in- propriety of an factor is crucial to not the substantial evidence standard. meet keep to Id. failure lookout. struction on The was curved raises no fact that road to did not meet its burden General Accident the car on the in- substantial inference that that husband supply substantial evidence line. side of the curve crossed center had avoid the collision have time to Otherwise, every every curve in road would a careful lookout. We keeping he been had in of the driver support an instruction favor minority’s argu- by persuaded not are lane. in the outside m.p.h. over travelling a car 20-25 ment that length “ample car’s shows the distance one on direct ex- Nor do husband’s statements action. Since neither time” take evasive “following” line he amination that comparative fault instruction branch Hampton” “straight and not traffic onto evidence, by we supported substantial left, inference that he or create a substantial point. in on this favor husband find answering negotiate the turn. failed to question, or husband also said “right left” ap on cross Husband also contends from his lane of travel: that he never varied reducing the peal court erred in that the trial vary lane “Q you [of] from that Did ever $50,000 from the by he received verdict No, travel, A sir.” He go ever or left? such reduc motorist because underinsured he line of cars which was also that the said language of the insur conflicts with the tion “straight ahead.” following went to infer that policy. wishes us ance Husband effect, against is, his settlement in it was error offset argument minority’s says the contract damages actual because absolutely went husband meant only policy language pur- that there should be a or the set-off with the upper liability. disagree. pose coverage. limit of We of underinsured motorist Point denied. provision by cited pertains husband solely to upper liability limit of does and For the aforementioned reasons we hold not obligation address General Accident’s that it was error to have submitted the com Rather, pay. obligation pay is set parative jury. fault instruction to Pursu separate provision: forth in a judgment 84.14 is ant to Rule modified to provide damages for husband in the damages pay We will which covered $267,500 $50,000 person by amount of for legally reduced entitled to recover from with underinsured but with no operator the owner his settlement or of an underinsured comparative reduction for fault. See Robin injury: motor bodily vehicle because of Weinstein, (Mo. son v. person; Sustained a covered and App.E.D.1993). judgment affirm the We accident_ 2. Caused an respects. court in all trial other pay only We will coverage under this after liability any applicable Judgment limits of under affirmed modified. bodily injury liability policies bonds or
have payment judg- REINHARD, been exhausted SIMON, KAROHL, GARY ments or GAERTNER, settlements. WHITE, DOWD, JJ., M. and concur. terms, only Under these General Accident is pay “damages
bound to which [husband] CRAHAN, J., part in and concurs dissents legally entitled to recover.” (emphasis add- separate joined in part, opinion, ed). GRIMM, C.J., SMITH, CRANE, We find that husband is “legally not enti- AHRENS, JJ. tled to recover” from the underinsured mo- GAERTNER, J., R. part CARL concurs in any already torist funds him in received part, separate opinion. and dissents Therefore, settlement. General Accident is pay not bound to corresponding sum CRAHAN, Judge, concurring part the settlement. General obli- Accident’s dissenting part. gation pay does arise until exhaustion opinion majority except I concur policy by judgment tortfeasor’s plaintiffs disposition its consortium claim Accordingly, settlement. at the time when fault defendant’s claim. obligation determined, General Accident’s longer “legally the insured is no entitled to Consortium Claim already Thus,
recover” amounts received. Plaintiffs improper would be to award Although they lumped together are amount from General Accident which he is no majority’s analysis of defendant’s collateral *8 longer entitled to recover from the tortfea- contentions, estoppel key are there differ- sor. plaintiffs ences between for his own claim injuries and his loss
Any claim for of his wife’s other construction with would conflict compel consortium different results. underlying purpose the of mo- underinsured place coverage torist the insureds the —to injuries Plaintiffs claim for his own cannot they position would have been in had the by estoppel by be barred collateral reason of adequately tortfeasor been insured. See judgment prior in his the adverse wife’s suit Widiss, Alan I. Uninsured and Underinsured required two of the because elements 41.7, (2d § Motorist ed. Insurance at 95 estoppel missing. collateral are Defendant 1992). plaintiff party a concedes that was not to his and, interpretation majority correctly Husband’s a would result wife’s suit as the holds, by permitting him recovery windfall to of the the mere fact that he is married to a policy plus party privity. full amount of the tortfeasor’s Ma- is insufficient to establish 213; damages jority generally full amount of Opn. his from his own see 18 Charles Miller, Wright, carrier. Such a result cannot be reconciled A. Arthur R. Edward H. 218 66.01(c) trial,
Cooper, the time of Rule Federal Practice and Procedure 1965. At (1981). 4459, provided:1 § at 522-24 Nor was the issue negligence necessarily of other driver’s (c) Injury Spouse. to Consolidation — prior Although in wife’s decided suit. injury resulting an in death is inflict- If not jury may have determined that Webb was upon spouse, and person of one ed finding negligent, not such not essential was to the of action therefor accrue causes jury may to the verdict. have deter- injured spouse spouse to other and also (Webb) neg- mined that the other driver or services or medi- for loss of consortium ligent negligence proxi- not but expenses, they enforced in one cal shall be any injury mate of cause wife. Collateral they by spouses both if have ever action estoppel may only applied be to those issues if is co-parties in such action or notice been necessarily unambiguously that were de- given. prior King v. cided suit. Gen. Contr. a any party If whom claim Church, 495, Reorganized 501 S.W.2d pen- gives notice of the asserted written 1991). Accordingly, collateral es- necessity to dency and of the of action toppel properly applied be cannot bar spouse join to the whose claim was therein injuries. plaintiffs claim for his own joined, spouse claim of such shall not contrast, the elements of collateral es- appli- spouse makes be barred unless toppel respect plaintiffs are satisfied party be as a therein with- cation to added loss consortium. claim for of wife’s Privi- days thirty after notice. such ty not exists as this claim reason join have an spouse required so shall relationship marital reason of the fact but party as right unconditional be added a plaintiffs claim derives from wife’s pursuant to Rule 52.06. injuries. for her own recover Just 66.01(c), cases adoption of Rule With privity grantee assignee or is considered in Joseph, City such as St. Womach may properly with and be held bound 467, 100 (1907), Mo. S.W. 443 dicta grantor adverse to his or as- determination Company, 377 Marusic v. Union Electric derived, rights signor from whom his are so (Mo.1964), upon relied a spouse’s too claim for loss of consortium is longer majority, be deemed should in nature and cannot exist derivative principal rationale for the controlling. The part absence of viable claim on the Womach, i.e., that articulated in rule injured inju- spouse to recover for her own injuries personal and loss causes action for Although independent, ries. the claims are they could not were so distinct consortium they separate and in the sense that distinct action2, joined squarely properly in one separate types and distinct seek redress for grant unconditional overturned necessarily damage, claims are de- both 66.01(c). joinder in Rule upon injured spouse’s right to pendent inju- her recover from the defendant for own Accident has not cited Although General Thus, already deter- ries. where has 66.01(e) brief, in its it has Rule discussed injured spouse has no viable mined that the from both urged, the minute entries claim, permit sensible to the other reflect, that motions to consolidate cases spouse to recover for loss of consortium. by the filed in both cases and overruled were Contrary majority opinion, in unique to the Explicit recognition and de- court. *9 66.01(c), a provisions Rule justify- of of consortium claims view rivative nature longer “af- require- claimant be ing privity that the consortium the conclusion opportunity to seek redress for in forded an can be found Rule ment is satisfied 1, fit.” 66.01(c), July way the that he or she sees on that loss in which became effective claims, 1, January proposition ac first tive nature Rule was amended effective 1. This 1994, changes any Supreme the are not material in knowledged but Missouri Court the appeal. 493, (Mo. in this issue involved Trowbridge, 439 S.W.2d 498 Huff 1969). 448, Further, Womach, 449. 100 S.W. at or discuss the deriva- Womach did not consider
219 Majority Rather, Opn. at 214. upon properly analyze notice support- To the evidence by the necessity submission, defendant of the joining ing comparative of defendant’s fault personal suit, in injury spouse the assert physical is essential to understand the ing join the consortium claim in layout must of the intersection. The oc- accident action or be barred pursuing from claim. Germania/Hampton curred where Avenue Family Garland v. American convenience, Mutual Insur crosses Gravois. For most of Co., 889, ance 458 S.W.2d (Mo.App. 892-93 the witnesses characterized Gravois as an 1970). Hampton joining street with east/west join- intersection on the north and Germania Even in the absence of express provi- such ing the intersection on the south.4 barring separate sion assertion of the consor- photographs from the introduced at trial it is tium regardless claim of the outcome of the Hampton clear that intersects with Gravois personal suit, injury a consortium claimant fact, appreciable angle. plaintiffs at an actively who resists consolidation should not 4, exhibits no. a view from the west side of complain heard to of the bar of collateral Hampton looking directly south down Ger- estoppel by reason judgment of an adverse in mania, 5, and no. a view from the west side of spouse’s suit. Given the unconditional looking Germania Hampton, north down joinder provided 66.01(c), of by Rule clearly traveling shows that a car north on the consortium claimant unquestionably has Germania in by plaintiff the lane used had a “full and fair opportunity litigate directly run into the southbound left turn prior suit,” issue contemplated as Hampton lane on where Mr. Webb was locat- application for the estoppel. of collateral ed unless the driver veered to the as he America, Oates v. Ins. Co. 583 Safeco exited the intersection northbound onto 713, 1979) (emphasis Hampton. Copies added). of these two exhibits are (Second) See also Restatement attached. 48, Judgments § Reporter’s c, Note to cmt. (1982)3. Accordingly, I would reverse Significantly, throughout testimony, judgment plaintiffs favor on Count II plaintiff consistently maintained that he was
for loss of consortium. following the line of traffic in front himof “straight through Gravois.” Plaintiff was Comparative Submission Fault asked, specifically you vary “Did ever from In reviewing the submissibility of a com- travel, go right lane ever ever [sic] parative instruction, fault obliged we are “No, left?” replied, to which he sir.” Al- consider all of the light evidence in the most though plaintiff any neither nor his wife had favorable to the give instruction and to impact recollection of the precise and the defendant any the benefit of favorable infer- point impact established, was never both Co., ences. Berra v. Union Elec. they testified halfway were more than (Mo.App.1991). plaintiffs evi- through the intersection when wife called out disregarded dence must be unless it tends to warning her and the accident occurred. grounds fault submitted evidence, instruction. Id. The ma- photographs From the it is jority’s analysis comport does not just with these clear point halfway that it is at a over requirements. well-established through pronounced the intersection that a (Second) intersection, Judgments 3. The Restatement 4. At this the streets involved do not 48(2) (1982) and, fact, provides: precisely § align with these directions record, although there is no confusion in the Mr. person family relationship When a with a deposition testimony predicated Webb’s suffering personal injury one has claim for assumption that Gravois ran north/south resulting injury, loss to himself from the Hampton/Germania ran For the sake east/west. determination of issues in an action clarity, opinion testimony treats all if as injured person injuries to recover for his had witnesses all used the same directional member, preclusive against family unless orientation, treating running Gravois as east/west judgment was based north/south, defense that is Hampton/Germania running *10 family unavailable the member in the majority which are also the directions used in the opinion. second action. begin moving away in to will from the center- turn to the must be initiated order tion Thus, in proper remain the lane of travel. A turn right. to if the of line the movement any the align sooner would vehicle with the it, as he the Webb’s vehicle was described Delaying turn northbound lane. the plaintiff if only accident could have occurred present crossing the of the center- risk Accordingly, this crossed the centerline. line into turn occu- the southbound left lane sup- specification of fault was pied by in point Mr. At no Webb’s vehicle. ported by properly and the evidence was testimony plaintiff did that his ever indicate jury. submitted to the necessity initiating a he was aware of the of Rather, majority testimony dismisses Webb’s right. the testimony turn to his was which, coupled ground above the as insubstantial on the that Webb as recounted with accident,” photographs in in the proposi- evidence and viewed the a “does not remember submission, light sup- most the testimony favorable to tion refuted the recounted ports the he to inference that failed turn above, pronouncement, unsup- with the required by physical of layout vehicle as the any authority, ported by to that citation intersection, centerline, the crossed the “[ejven light, state- in the most favorable the struck vehicle. Webb position in ments a driver about his the carry weight where road does not substantial Mr. foregoing, In addition to the Webb’s that driver admits that he was not even deposition testimony concerning move- the looking Majority Opn. at up point impact to of at the road.” ments his vehicle the plaintiff, supports reasoning clearly province further the inference that the invades Such Webb, not crossed the centerline. jury. proper It not function of testimony, jury part plain- to read views about the this court to substitute our case, ap- as he tiffs Webb stated that and un- proper weight to be accorded clear proached he the north the intersection from testimony by eyewitness. equivocal slowed, the left turn lane and turned entered impression Contrary to the created Although signal. on his turn he also had testimony does not majority opinion, Webb’s specific impact, he recollection of actual suggest staring fixedly he at his that was quite of his specific about movements lever, gearshift oblivious to the movement of up point impact. vehicle to Webb “glanced” at the his vehicle. Webb down point testified that he slowed vehicle traveling it neutral while lever to shift into rolling speed it at a of no more where was per miles hour. hour, than five to ten glanced no more per than five to ten miles down neutral, experience suggests at it that drivers his stick shift shift into Common impact. frequently glance felt As to the direction move- controls of their just prior impact, losing ment his vehicle of their without track di- vehicles Webb testified: eyes may Even while the rection of travel.
Q. you moving And for- Okay. roadway, were can diverted from the driver be ward? expected to know whether has turned steering quite A. Yes. and can often sense wheel periph- moving change in Q. you the left? direction sensation Or were suf- vision. That a driver could become eral moving No. A. I was forward. ficiently track of direction distracted lose conjunction again, viewed Once jury certainly possibility the would be photographs of the intersection evidence determining entitled to consider plaintiff, jury, that the inference before weight should be accorded Webb’s testi- that Webb, crossed the centerline caused not mony, properly be said as a it cannot but photographs From accident is clear. ability perceive matter of law that Webb’s apparent that a vehicle south- it is impaired was so his direction travel Hampton left bound turn lane not accord his obser- entitled to not will proceeding forward and left weight arriving at a and, vations substantial any point centerline at cross the fact, the intersec- verdict. from moment enters *11 true, observes,
It is as majority plaintiff that that would have had time to avoid positions mere evidence of the of vehicles keeping the collision had he been a careful after a crash conflicting however, raises inferences and majority’s analysis, lookout. The not, alone, standing does make a submissible necessary assumes that it would have been not, however, rely case. Defendant did sole- plaintiff change open lanes to the ly post-accident position on the of the vehi- right traffic lane on his in order to avoid the cles, either at trial or in this court. Defen- If, foregoing sug- collision. as the evidence urged dant photographic evidence gests, plaintiff, the accident occurred because showing jog right, plain- the obvious to the Webb, line, plaintiff crossed the center tiffs statements proceeding that he was change did not need to lanes in order to straight through the intersection and Webb’s only avoid the accident. He need have testimony that he inwas the left turn lane right stay veered to the in his own lane. supported plaintiff the inference that failed proceeding Plaintiff testified that he was appreciate necessity veering to the straight through the intersection at least one travel, proper remain lane of length speed car behind another car at a and, physical layout due to the of the inter- per Although given 20 or 25 miles hour. section, proceeded straight path on a across layout of the intersection it is conceivable the center line and into the southbound left directly that his view of Webb’s vehicle ahead lane, turn where he collided with Webb. As may initially pre- have been blocked above, discussed awas reasonable infer- vehicle, ceding keeping if he was a careful ence from the evidence. lookout he should have been able to see pertaining The evidence post-acci- to the directly Webb’s vehicle ahead of him with its position dent and condition of the vehicles headlights shortly illuminated after the car argued to the corroborating began proceed ahead to veer to the foregoing evidence plaintiff crossed the Hampton. northbound on This have would center line. The fact principal that the dam- length straight been at least a car before the age to both vehicles was to the left front does path by plaintiff travelled would have taken logically tend corroborate defendant’s the- him across the center line and have ory. Likewise, the fact that all of Webb’s ample plaintiff left time for to initiate the plaintiffs vehicle and half of up vehicle ended required partial proper turn to remain in the southbound left turn Hampton lane on Indeed, lane of travel. the fact that theory. consistent with defendant’s Al- preceding proceeded proper vehicles though post-accident position vehi- traffic lane without incident is itself evidence not, alone, standing cles would support the supporting submission of the instruction. submission, such evidence was admissible Harris, See Wellhausen v. properly could jury. considered (evidence (Mo.App.1983) that other vehi- The evidence support was also sufficient to open cles were able to swerve into lanes defendant’s submission based on failure to instruction). supportive of lookout keep a careful lookout. Plaintiff conceded he never prior impact. saw Webb’s vehicle specifications compar- Because both majority concludes that the evidence supported by ative fault submission were evidence, nonetheless insufficient to I judg- submis- substantial would affirm the sion plaintiffs because there was no evidence to show ment as to fault. *13 GAERTNER, Judge, concurring support contributory negligence
CARL R. [T]o keep a instruction on failure to careful dissenting. lookout, find- the evidence must majority opinion I in that concur with the ability ing that a had means and driver injuries it holds husband’s claim for own to have avoided a collision. Means and estoppel not barred collateral ability include sufficient time distance also, $50,000 that his settlement must be speed considering the movement judgment. deducted from the vehicles. There was no evidence party saw the other. show that either minority opinion I concur with the in that expert how far a There was no evidence on would rule husband’s derivative claim speeds car will travel various before for loss of consortium is barred because of *14 stopping. Nor was there evidence show primary the defeat of the claim for wife’s at vehicles mate- the distance between the injuries. adopt I believe Missouri should rial times. (Second) Judgements, of Restatement Id. at 807. 48(2) (1982). § Weinstein, Similarly, in Robinson v. part I opinion. dissent from each (Mo.App.E.D.1993) this court comparative fault based on held a instruction deposition Despite testimony, Webb plaintiffs keep a lookout was failure police the told the collision occurred as he of evidence erroneous because absence turning was and wife testified she saw Webb early have aware that “she should been turning into them car in the middle of the enough for take action that her to defensive supports This a sub- intersection. evidence yield right way, of would not defendant way yield right mission of failure to required he was do.” Id. being wrong and of on the side the road. argued It is that because driving straight Husband testified he was length car front ear behind northbound through turning the intersection without him he have seen turned should Webb Hamp- right or left. Because offset empty right. lane to into south, ton the north and Germania between this does not indicate the distance driving straight through the intersection to turn. the vehicles when Webb started necessity him to would cause be on Moreover, if continued to turn he Webb wrong I point. of the road at some side car as it would still collide husbands argument accept majority’s cannot passed right lane. “straight” “not or left” the terms “straight” Accordingly, do not mean “not I the submissions of believe keep failure to a lookout were erroneous left”. There was evidence for a I would remand to Circuit Court comparative fault submission of husband’s new trial. wrong road. being on the side of the However, the record is devoid of evidence could
tending to show when either driver approaching in a
have the other vehicle seen danger
position collision and whether ability to had the means and
either driver evasive action.
thereafter take successful
Anderson,
Thurman 1985) Supreme the ab- Court held party could have
sence of evidence that he or she could
avoided the accident after danger fatal lookout
have to a seen
submission.