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Estate of Nixon v. Government Employees Insurance Co.

United States District Court, W.D. Missouri.

June 19, 2013


For Estate of Nancy L. Nixon, Plaintiff: Jeremy T. Johnston, Rodney A. Ames, LEAD ATTORNEYS, Withers, Brant Igoe & Mullennix, P.C., Liberty, MO.

For Government Employees Insurance Company, Defendant: James Maloney, LEAD ATTORNEY, Foland, Wickens, Eisfelder, Roper, & Hofer, PC, Kansas City, MO; Scott David Hofer, Foland & Wickens, P.C., Kansas City, MO.


SCOTT O. WRIGHT, Senior United States District Judge.

Page 895


Before the court is Defendant's Motion for Application of Texas' Law of Comparative Fault (Doc. #22). For the reasons stated below, the motion is granted.

I. Background

The facts giving rise to plaintiff's claim, as detailed by the parties in their motions, are as follows. On October 15, 2010, Nancy L. Nixon (" Nixon" ) was travelling west on U.S. Highway 54, a two-lane highway, in Hartley County, Texas, when she attempted to pass a vehicle by entering into the lane of oncoming traffic. According to the Complaint, the vehicle Nixon was attempting to pass sped up, preventing Nixon

Page 896

from returning to her original lane. Nixon thereafter collided with a tractor-trailer that had partially pulled onto the highway from a private side road. The injuries Nixon sustained caused her death, and the other vehicle and its driver were never identified. [1]

Nixon was insured by a policy of automobile insurance issued by Government Employee's Insurance Company d/b/a Geico General Insurance Company (" Geico" ). The Estate of Nancy L. Nixon (" plaintiff" ) made a demand on Geico, which Geico denied. Plaintiff then filed a vexatious refusal claim against Geico in state court seeking to recover $200,000 in uninsured motorist coverage for the accident in Texas that resulted in the death of Nixon, a Missouri resident. On February 23, 2012, Geico removed the case to federal court.

II. Discussion

Under Geico's policy, plaintiff may recover damages from Geico if it is " legally entitled to recover from the owner or operator of an uninsured motor vehicle or hit-and-run vehicle arising out of the ownership, maintenance or use of that auto." A hit-and-run vehicle is defined therein as a motor vehicle causing bodily injury to the insured with or without physical contact. The policy's coverage therefore meets the basic requirements of the Missouri statute, which compels automobile liability insurance companies to provide uninsured motorist coverage to persons " legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom." Mo. Rev. Stat § 379.203(1). The statute also requires that insurers cover unidentified vehicles and vehicles causing injury without actual physical contact with the victim. Id. Under the statute, an unidentified motorist is deemed to be an uninsured motorist. [2] Id. ; Preston v. Am. Family Mut. Ins. Co., 325 S.W.3d 485, 486 n.1 (Mo.Ct.App. 2010); see MAI § 12.03 [2012 Revision] (the verdict-director submitted against an insurer where the motorist is unidentified). Although plaintiff's recovery may be limited by tort rules, the insurance contract therefore potentially covers damages caused by unidentified motorists who had no actual physical contact with the insured or the insured's vehicle.

Missouri courts have interpreted the phrase " legally entitled to recover" in insurance contracts as referring to the insured's (Nixon's) right and ability to recover against the unidentified motorist in tort. Reese v. Preferred Risk Mut. Ins. Co., 457 S.W.2d 205, 208 (Mo. Ct. App.1970). This interpretation is based on the understanding that the purpose of uninsured motorist coverage is to provide " the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy." Byrn v. Am. Universal Ins. Co., 548 S.W.2d 186, 188 (Mo.Ct.App. 1977); Webb v. State Farm Mut. Auto. Ins. Co., 479 S.W.2d 148, 151 (Mo.Ct.App. 1972). Underlying plaintiff's claim for coverage, however, is the contract between Nixon and Geico. As Missouri courts have stated, though, " [u]ninsured motorist insurance cases combine tort liability and contract ...

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