Woods v. Automobile Club Inter-Insurance Exchange et al

Filing 102

MEMORANDUM AND ORDER re: 99 IT IS HEREBY ORDERED that Defendant Nationwide Affinity Insurance Company's post-trial motion for a reduction of the jury's verdict (Doc. 99 ) is GRANTED. IT IS FURTHER ORDERED that a Judgment will be entered in this case in favor of Plaintiff Michael D. Woods in the amount of $125,000. Signed by Magistrate Judge Shirley Padmore Mensah on 2/14/17. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL D. WOODS
Plaintiff,
v.

NATIONWIDE AFFINITY INS. CO.
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 4:15CV1029 SPM

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Defendant Nationwide Affinity Insurance Co.
(“Nationwide”) to reduce the jury’s verdict of $225,000 by $100,000 to deduct the amount paid to
Plaintiff Michael D. Woods by the underlying tortfeasor in this underinsured motorist suit. (Doc. 99).
Plaintiff has filed a response opposing the motion. (Doc. 101). For the reasons set out below, I find that
Nationwide’s motion should be granted.
On April 17, 2011, Plaintiff Michael Woods was injured in a car accident while a passenger in a
vehicle operated by his daughter. It is undisputed that the other driver was at fault. Plaintiff sued the
tortfeasor and ultimately settled with her insurance carrier for policy limits of $100,000. Alleging that his
injuries exceeded the tortfeasor’s policy limits of $100,000, Plaintiff filed suit against Nationwide, which
insured his daughter’s vehicle, and Travelers Home and Marine Insurance Company (“Travelers”), which
insured Plaintiff’s vehicle. Plaintiff dismissed Traveler’s without prejudice shortly before the case went to
trial and proceeded solely against Nationwide on his claim for underinsured motorist coverage.
At trial, the parties stipulated and, by agreement, advised the jury that Plaintiff had previously
settled with the tortfeasor and had received payment of $100,000. The agreed-upon verdict director
submitted by Plaintiff instructed the jury to find in favor of Plaintiff only if the jury believed that “the
collision mentioned in the evidence directly caused or directly contributed to cause damage to plaintiff in
excess of $100,000.” See Instruction No. 18. The agreed-upon damages instruction submitted by Plaintiff

further instructed the jury “not to consider any evidence of prior payment made to plaintiff” in
determining the amount of plaintiff’s damages. Rather, the instruction explained “[t]he judge will
consider any such payment and adjust your award as required by law.” See Instruction No. 19.
The instructions submitted to the jury were consistent with Missouri law regarding the proper
method for calculating damages in an underinsured motorist case such as this. See Ritchie v. Allied
Property & Casualty Insurance, 307 S.W.3d 132, 141 (Mo. 2009) (construing language similar to the
underinsured motorist language in the Nationwide policy to mean that “in determining the total damages
to which the underinsured motorist coverage will be applied, the amount of money already received from
the tortfeasor must be deducted. In this way, it avoids a double recovery.”). See also Jones v. Mid-Century
Insurance, 287 S.W.3d 687, 693 (Mo. 2009) (holding that “if the plaintiffs here had suffered only
$125,000 in damages, and had received $50,000 from the tortfeasor, then the $50,000 received would be
deducted from the total of $125,000 in damages and the underinsured motorist coverage would supply the
remaining $75,000.”).
Plaintiff’s after-the-fact arguments suggesting that this Court disregard the $100,000 prior
settlement payment are disingenuous and inconsistent with Missouri law. As Nationwide correctly points
out, under Missouri law, application of the $100,000 settlement is part and parcel of the proper measure of
damages in an underinsured motorist case. It is not, as Plaintiff suggests, an issue Nationwide was
required to raise an affirmative defense. Even if there were any merit to Plaintiff’s argument that
Nationwide should have raised setoff as an affirmative defense, that argument would fail. Having been the
proponent of a stipulation and instructions that advised the jury that the Court would adjust the verdict to
account for the $100,000 prior settlement, Plaintiff cannot now be heard to complain that Nationwide
through some technicality failed to properly raise the issue. See Bone v. Director of Revenue, 404 S.W.3d
883, 886 (Mo. 2013) (en banc) (“Trial by informed consent allows for issues not raised in the pleadings to
be determined by the trial court when the party raising the issue offers evidence without objection by
another party . . . . Issues raised by implied consent are determined as if they were part of the pleadings
2

even though no formal amendment was made to the pleadings.” Nor are Plaintiff’s after-the-fact attacks
on the clarity of Nationwide’s policy language availing. The time to raise issues regarding alleged
ambiguities in Nationwide’s policy has long passed.
In sum, Nationwide’s motion should be granted because reducing the jury’s verdict by $100,000 is
consistent with the language of Nationwide’s policy, Missouri law, the evidence presented to the jury, and
the agreed-upon instructions which were submitted without objection to the jury.
Accordingly,
IT IS HEREBY ORDERED that Defendant Nationwide Affinity Insurance Company’s post-trial
motion for a reduction of the jury’s verdict (Doc. 99) is GRANTED.
IT IS FURTHER ORDERED that a Judgment will be entered in this case in favor of Plaintiff
Michael D. Woods in the amount of $125,000.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of February, 2017.

3