United States District Court, E.D. Missouri, Eastern Division
MICHAEL D. WOODS Plaintiff,
NATIONWIDE AFFINITY INS. CO.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.”).
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 even though no formal amendment was made to the
pleadings.” Nor are Plaintiffs 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.
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
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.
FURTHER ORDERED that a Judgment will be entered in this case
in favor of Plaintiff Michael D. ...