Billy R. Richey v. State Farm Mutual Automobile Insurance Company ( 2016 )


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  •              In the Missouri Court of Appeals
    Eastern District
    DIVISION THREE
    BILLY R. RICHEY,                                 )      No. ED101584
    )
    Appellant,                                )      Appeal from the Circuit Court
    )      of the City of St. Louis
    vs.                                       )      1122-CC10729
    )
    STATE FARM MUTUAL AUTOMOBILE                     )      Honorable Michael F. Stelzer
    INSURANCE COMPANY,                               )
    )
    Respondent.                               )      Filed: February 2, 2016
    Billy R. Richey (“Appellant”) appeals the judgment entered upon a jury verdict in favor
    of State Farm Mutual Automobile Insurance Company (“Respondent”) on Appellant’s claim for
    uninsured motorist benefits under a policy issued by Respondent. We reverse and remand.
    I.      BACKGROUND
    On the evening of April 5, 2008, Appellant was riding his motorcycle on a rural highway
    in Dade County, Missouri. Appellant suffered extensive injuries as a result of an accident and
    sought uninsured motorist coverage under his policy issued by Respondent. Respondent denied
    Appellant coverage, and Appellant initiated the instant lawsuit. A jury trial on whether
    Appellant was entitled to uninsured motorist benefits under the policy was held from February
    24-27, 2014.
    A.     Appellant’s evidence and testimony
    Appellant testified that on the day of the accident, he was returning home on his
    motorcycle after visiting a relative. As Appellant approached a bend in the highway, an
    unknown driver (referred to by the parties as the “phantom vehicle”) travelling in the opposite
    direction swerved into Appellant’s lane. Appellant stated he could have either driven off the
    road or hit the oncoming car head-on. Appellant swerved or steered his motorcycle to the right
    to avoid the other vehicle, and upon leaving the road, Appellant crashed into a ditch, sustaining
    serious injuries. The driver of the other vehicle left the scene. The area of the accident was
    about forty to fifty yards past the start of the curve. In addition, Appellant’s motorcycle left tire
    marks where the motorcycle exited the road close to where the curve started.
    Jeremy Jones, a deputy with the Greene County Sheriff’s Department, found Appellant
    lying unconscious partially in the roadway. Deputy Jones called 911, secured Appellant’s neck
    to ensure he did not injure himself further, and waited for paramedics to arrive. Appellant was
    transported from the scene by paramedics, and was then airlifted by helicopter to a hospital in
    Springfield, Missouri. He remained there in a coma for approximately three weeks.
    Appellant was charged with the class A misdemeanor of careless and imprudent driving
    as a result of the accident. The charge specifically stated that Appellant drove off the roadway
    and struck a ditch, thereby endangering the property of another or the life and limb of any
    person. He was also charged with having an improper license. Appellant pleaded guilty to the
    charge of careless and imprudent driving but not guilty to the charge of driving with an improper
    license. Appellant claimed he pleaded guilty to the charge of careless and imprudent driving
    because it would be too expensive to hire an attorney to contest the charge, although he admitted
    he was not afraid to defend himself on the charge having an of improper license.
    2
    Appellant stated he told Respondent he had been run off the road, including during
    communications with his local agent, Jerry Poston, and Kim Sandbothe, an agent who worked
    with Poston. Appellant also testified he called Respondent’s main office twice and stated he
    reported to Respondent that he had been run off the road during both conversations.
    B.     Respondent’s evidence
    Respondent presented an alternative theory of the case, positing there was no other driver
    and Appellant ran off the highway due to his own inattention. Respondent first relied on
    testimony from Corporal Todd Hadlock. At the time of the trial, Corporal Hadlock had been
    with the Missouri Highway Patrol for nineteen years, had taken classes involving the
    investigation of accidents, and had investigated approximately 1,500 accidents. Corporal
    Hadlock was noticed up as an expert witness in accident reconstruction, but did not perform an
    accident reconstruction in this instance.
    Corporal Hadlock testified as to his observations of the scene and as to his opinion
    regarding the circumstances of the accident. He testified as follows. There was a skid mark 177
    feet in length at the scene of the accident in a ditch and a divot that had been taken out by the
    motorcycle. From the skid mark, it appeared Appellant had entered the curve and gradually left
    the road. Had Appellant swerved, Corporal Hadlock stated he would have expected to see a
    “yaw” mark or brake mark on the road, but there was no evidence of this at the scene. From the
    evidence, it appeared the motorcycle had left the roadway in a straight line. Corporal Hadlock
    stated he found no evidence that another vehicle had forced Appellant off the road. It was
    Corporal Hadlock’s opinion Appellant was inattentive at the time of the crash. Corporal
    Hadlock gave Appellant a ticket for careless and imprudent driving as a result of the accident.
    3
    Respondent also presented evidence from Respondent’s agents who handled the claim.
    Poston, Appellant’s insurance agent, testified that Appellant never said anything about being run
    off the road. Had something like that been said, Poston testified he would have made a note
    regarding how the accident had taken place, and information about a car running Appellant off
    the road would have been noted in Respondent’s master record. Sandbothe, an agent who
    worked with Poston, also stated that Appellant had never indicated there was another vehicle
    involved in the accident. Finally, Cullen Jordan, a claims Team Manager for Respondent at its
    main office, testified that the claim was reported to Respondent as a single-vehicle accident
    leaving the roadway and striking a ditch. The claim file reflects numerous contacts with
    Appellant and his family members and no one mentioned anything about a phantom vehicle until
    November 10, 2010, over two and one-half years after the accident. According to Jordan, the
    first indication that a phantom vehicle may have been involved was when a letter was received
    from Appellant’s counsel on November 10, 2010.
    C.         The trial
    The sequence of argument and testimony presented at trial is relevant to the issues of this
    appeal. Prior to trial, Appellant filed a motion in limine to prevent Corporal Hadlock from
    testifying regarding the cause of the accident or the relative degree of fault of the parties. The
    trial court denied the motion.
    When the trial began, in its opening statement, Respondent asserted Appellant’s account
    of the phantom vehicle was a fabrication created when Appellant retained counsel in the fall of
    2010. Respondent’s counsel was explicit on this point:1
    On November 15, 2010 [Respondent] receives a letter dated November 10 from
    Mr. Patton. In that letter Mr. Patton says my client advises me, something to this
    effect, -- you’re going to see the letter, it is going to be in evidence, -- something
    1
    Respondent’s attorney on appeal was not trial counsel.
    4
    to the effect that my client advises me that he was involved in an accident with a
    phantom vehicle and his property damage claim has not been paid. The lawyer’s
    letter is the first time [Respondent] has ever heard anything about a phantom
    vehicle, and it’s two and a half -- two years and seven months after the accident
    and 23, 24 months after the claim file has been closed. The lawyer’s gotten
    involved now, folks. That’s what the evidence is going to show. When the lawyer
    gets involved the phantom gets created.
    (emphasis added). After opening statements, Appellant’s counsel started the trial by calling
    Appellant’s two children, Tracy Hyatt and Mark Richey (“Tracy” and “Mark”),2 prior to calling
    Appellant himself. Tracy testified regarding Appellant’s hospitalization and rehabilitation. She
    also stated she was present when her father talked to Respondent regarding his claim. Mark
    testified as to his physical observations of the accident scene and the extent of Appellant’s
    injuries. Due to Respondent’s sustained objections, Appellant was not permitted to put on any
    evidence regarding statements Appellant made to Tracy, Mark, or others about the existence of a
    phantom vehicle.3 Subsequently, Appellant put on an offer of proof outside the presence of the
    jury that Tracy and Mark could testify that between March 1 and June 12, 2008, Appellant
    indicated he was run off the road and told Respondent he had been run off the road. Tracy
    testified during the offer of proof she overheard Appellant tell Poston and Sandbothe about the
    phantom vehicle during two separate phone calls. She further stated Appellant told “[a]nybody
    that would listen” about the phantom vehicle. Mark similarly testified during the offer of proof
    that Appellant first told him about the phantom vehicle when Appellant was released from
    rehabilitation, and that Appellant “always told the same story” about being run off the road.
    After the testimony of Tracy and Mark, Appellant presented testimony from Jordan, who
    testified as stated above, and then Appellant finally testified on his own behalf. During cross-
    2
    Because some of the parties involved have the same last name, we refer to them by their first names. No disrespect
    is intended.
    3
    The trial court ruled the testimony was not hearsay but that statements Appellant made to parties other than
    Respondent were not relevant and should therefore be excluded.
    5
    examination, Respondent attacked Appellant’s credibility with evidence of prior inconsistent
    statements. Namely, Respondent presented evidence which emphasized to the jury that
    Appellant pleaded guilty to the careless and imprudent driving charges, but he claimed at trial
    that he had been run off the road by the phantom vehicle. Despite this attack on his credibility,
    Appellant did not seek to recall either Tracy or Mark back to present rebuttal evidence on this
    point.
    Respondent then put on the video depositions of Deputy Jones and Corporal Hadlock.
    Prior to the depositions being played, Appellant restated his objections to Corporal Hadlock’s
    opinion testimony, which the trial court again overruled. In Corporal Hadlock’s deposition, he
    opined Appellant was in a one-vehicle accident, and the following exchange occurred:
    Q: [D]id you reach any conclusion, to a reasonable degree of certainty, accident
    investigation certainty, as to what occurred out there at the accident scene?
    A: Yes, I did.
    Q: Okay.
    Q: Okay. Based upon what you saw in your investigation, what was your opinion
    you reached that day?
    A: My opinion was that [Appellant] was just inattentive to the roadway condition
    at the time of the crash.
    Finally, Respondent presented additional testimony from Jordan, and finished with testimony
    from Poston and Sandbothe.
    The case was then submitted to the jury, and the jury entered a verdict in favor of
    Respondent. Subsequently, the trial court entered a judgment in accordance with the jury’s
    verdict. This appeal followed.
    6
    II.     DISCUSSION
    Appellant brings two points on appeal. In his first point, Appellant asserts the trial court
    erred by excluding testimony from Tracy and Mark regarding Appellant’s prior consistent
    statements on the existence of the phantom vehicle. In his second point, Appellant claims the
    trial court erred by allowing Corporal Hadlock to testify as to his opinion on the accident’s
    causation.
    A.     Standard of review
    The decision to admit or exclude evidence at trial lies within the sound discretion of the
    trial court, and we will not disturb that decision absent an abuse of discretion. Howard v. City of
    Kansas City, 
    332 S.W.3d 772
    , 785-86 (Mo. banc 2011). An abuse of discretion occurs when the
    ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that it
    shocks the sense of justice and indicates a lack of careful, deliberate consideration. 
    Id. Even if
    an abuse of discretion occurs, we will not reverse the trial court’s decision unless the abuse had a
    material effect on the trial. Stokes v. National Presto Industries, Inc., 
    168 S.W.3d 481
    , 483 (Mo.
    App. W.D. 2005).
    B.     Prior consistent statements
    In his first point on appeal, Appellant claims the trial court erred in excluding testimony
    from Tracy and Mark regarding statements made by Appellant to them and others that he was
    run off the road by another vehicle. Specifically, Appellant asserts the testimony was proper
    evidence of prior consistent statements by Appellant offered to rehabilitate him after Respondent
    posited in its opening statement that the phantom driver theory was a recent fabrication or the
    result of improper influence. We agree.
    7
    Generally, a witness’ duplicitous or corroborative extrajudicial statement is inadmissible.
    Anuhco, Inc. v. Westinghouse Credit Corp., 
    883 S.W.2d 910
    , 927 (Mo. App. W.D. 1994). “The
    rule exists to prevent one party from obtaining unfair advantage [over] another by presenting the
    same testimony in multiple forms.” 
    Id. (quotations omitted).
    However, where a witness is
    impeached by proof of variant acts or statements, relevant evidence of the witness’ prior
    statements consistent with his trial testimony may be admissible for the purpose of rehabilitation.
    State v. Henderson, 
    666 S.W.2d 882
    , 890 (Mo. App. S.D. 1984). Further, a “prior consistent
    statement is not hearsay and is admissible if the statement is offered to rebut an express or
    implied charge against the declarant of recent fabrication or improper influence or motive.”
    Trident Group, LLC v. Mississippi Valley Roofing, Inc., 
    279 S.W.3d 192
    , 199 (Mo. App. E.D.
    2009) (internal quotation marks and citation omitted).
    1.      Respondent’s arguments
    Respondent asserts that the testimony from Tracy and Mark was inadmissible due to the
    order in which the testimony was presented. At trial, Tracy and Mark both testified before
    Appellant. Thus, Respondent argues, the testimony was improper, because Appellant had yet to
    be impeached or have his credibility brought into question. In support of its argument,
    Respondent cites to case law which holds that prior consistent statements are only admissible
    after a witness has been impeached by proof of his prior inconsistencies. 
    Henderson, 666 S.W.2d at 890
    . In other words, according to Respondent, evidence must be introduced tending to
    establish statements made by the witness which statements were inconsistent with the witness’
    testimony at trial. 
    Id. Therefore, Respondent
    asserts, in order to introduce the testimony in
    question, Appellant was required to recall Tracy and Mark to the stand after Appellant testified
    and was impeached.
    8
    However, the cases relied on by Respondent for its assertion that prior consistent
    statements may only be offered following evidence of a prior inconsistent statement are not
    factually on point, and therefore do not control the outcome here. Specifically, those cases
    address only the use of prior consistent statements in the context of inconsistencies in the
    witness’s testimony, not in light of charges of recent fabrication or improper motive. See
    Stratton v. Kansas City, 
    337 S.W.2d 927
    , 931 (Mo. 1961); 
    Anuhco, 883 S.W.2d at 927
    ; Broome
    v. Bi-State Development Agency, 
    795 S.W.2d 514
    , 518-19 (Mo. App. E.D. 1990); and
    
    Henderson, 666 S.W.2d at 889
    . As recognized in Henderson, impeachment with a prior
    inconsistent statement and a charge of fabrication or improper influence or motive represent two
    separate and independent grounds for admission of a prior consistent 
    statement. 666 S.W.2d at 889
    . The cases cited by Respondent concern only the former ground, which is not at issue here.
    As such, Respondent’s reliance on these cases is misplaced, and they do not control the outcome
    in the case at bar. Rather, the circumstances here address the second ground, a charge of
    fabrication or improper influence or motive.
    2.      Applicable case law
    Recent case law from our Court in Trident, 
    279 S.W.3d 192
    , and the Southern District in
    State v. Campbell, 
    254 S.W.3d 203
    (Mo. App. S.D. 2008) addresses this issue. As discussed
    below, these cases demonstrate that a charge of recent fabrication in an opening statement is
    sufficient to warrant the introduction of evidence otherwise classified as hearsay.
    Trident involved the admission of an expert witness’s report on a defective roof the
    defendant asserted was 
    hearsay. 279 S.W.3d at 196
    , 198-99. In its opening statement, the
    defendant charged the witness with improper influence and attacked his credibility and motive as
    follows:
    9
    For their expert . . . they paid him thousands and thousands of dollars to prepare
    a report, but they don’t give them the business to repair their buildings. He’s a
    very interesting fellow because we know that he doesn’t know basic physics and
    boils [sic] law. He didn’t know it . . .. He had a little trouble with fundamental
    science.
    
    Id. at 199.
    Later, while cross-examining another of plaintiff’s witnesses, the defendant asked
    questions attempting to show the plaintiff hired the expert to “begin fraudulent litigation.” 
    Id. The expert’s
    report did not contain any new information, and the expert testified at length as to
    the contents of the report. 
    Id. We held
    the trial court did not err in admitting the report because
    it was admissible to “rebut an express or implied charge . . . of recent fabrication or improper
    influence or motive.” 
    Id. The Southern
    District reached a similar result in Campbell, 
    254 S.W.3d 203
    . In that case,
    a prosecution witness received a plea bargain in exchange for his testimony at trial. 
    Id. at 205.
    In his opening statement, defense counsel insinuated to the jury that the witness fabricated his
    testimony to protect himself from prosecution and that his testimony was influenced by the plea
    deal. 
    Id. To rebut
    the fabrication claims, the State was allowed to play the witness’s videotaped
    statement to police made prior to the plea deal. 
    Id. The Southern
    District held the statement was
    admissible: “[t]he suggestion that a witness’s testimony is recently fabricated opens the door to
    introduction of the witness’s consistent statement made prior to the suggested fabrication.” 
    Id. (emphasis added).
    In Trident, the witness was not impeached at trial nor was there any suggestion or proof
    he had made any prior inconsistent 
    statement. 279 S.W.3d at 199
    . The report in that case was
    properly admitted due to the charge of fabrication and improper influence made against the
    witness in the defendant’s opening statement and its examination of another plaintiff’s witness.
    
    Id. “During its
    opening statement, [d]efendant charged [the witness] with improper influence
    10
    and attacked his credibility and motive” due to the “thousands and thousands of dollars” plaintiff
    paid him to prepare his report. 
    Id. In its
    examination of the plaintiff’s vice president, the
    defendant attempted to show the plaintiff hired the witness “to begin fraudulent litigation.” 
    Id. This was
    sufficient to open the door to admission of the witness’s prior consistent statements as
    set forth in his report. See 
    id. Similarly, in
    Campbell, the witness was not impeached and there
    is no indication in the opinion he had made any prior inconsistent statement. See 
    Campbell, 254 S.W.3d at 205-06
    . As such, his statement was properly admitted based on the attacks contained
    solely in the defense counsel’s opening statement. 
    Id. 3. The
    circumstances of this case
    The circumstances are substantially similar here. Like the opening statement concerning
    the witness’s paid report in Trident and the plea bargain in Campbell, Respondent’s opening
    statement here expressly charged Appellant with recent fabrication and his attorney with
    improper influence and motive, stating that the phantom vehicle was first “created” when
    Appellant contacted his attorney and counsel became involved in the case. Respondent’s
    opening statement included the following assertion: “The lawyer’s gotten involved now, folks.
    That’s what the evidence is going to show. When the lawyer gets involved the phantom gets
    created.” This was plainly a charge Appellant falsified his testimony after he consulted with his
    trial counsel, and that his testimony was thereby the result of improper influence or motive.4
    Whether Appellant was impeached with inconsistent statements is irrelevant, as neither witness
    4
    There is also an argument that Respondent’s counsel’s statements were improper accusations of attorney
    misconduct against Appellant’s counsel. When Respondent’s counsel made this statement during opening
    argument, Appellant’s counsel objected that the statement was “attacking [his] credibility” and “injecting [him] as a
    witness in this case.” The trial court instructed Respondent’s counsel to move on. Statements asserting an opposing
    counsel, an officer of the court, suborned perjury or aided in fabricating a client’s testimony are improper and may
    be grounds for a mistrial. See State v. Johnson, 
    804 S.W.2d 753
    , 755 (Mo. App. E.D. 1990); State v. Harris, 
    662 S.W.2d 276
    , 277 (Mo. App. E.D. 1983). However, that argument is not before us on appeal. We caution counsel in
    future cases against such inflammatory accusations.
    11
    was impeached at all in Trident or Campbell. See 
    Trident, 279 S.W.3d at 199
    ; 
    Campbell, 254 S.W.3d at 205-06
    .
    Based on the foregoing, the trial court abused its discretion in excluding testimony from
    Tracy and Mark regarding statements made by Appellant to them and others that he was run off
    the road by another vehicle. The exclusion had a material effect on the trial, as it would have
    functioned as a substantial affirmation of Appellant’s version of events. Point one is granted.
    C.     Hadlock’s opinion testimony
    In his second point and final on appeal, Appellant claims the trial court erred by
    admitting the portion of Corporal Hadlock’s testimony in which he opined the accident was
    caused solely by Appellant’s inattentive driving. We agree.
    “Missouri courts have uniformly held that a police officer, especially if he or she did not
    witness the accident, cannot offer an opinion as to the fault of a party to the accident.” Khan v.
    Gutsgell, 
    55 S.W.3d 440
    , 443 (Mo. App. E.D. 2001). This is because a jury will likely give
    undue weight to an officer’s assessment of fault in a traffic accident. 
    Id. This rule
    applies
    regardless of whether the officer is testifying as an expert witness or not. Stucker v. Chitwood,
    
    841 S.W.2d 816
    , 819-20 (Mo. App. S.D. 1992).
    Here, Corporal Hadlock was noticed up as an expert in accident reconstruction, though he
    did not perform a reconstruction in this case. In his videotaped deposition, which was played to
    the jury at trial, the following exchange occurred:
    Q: [D]id you reach any conclusion, to a reasonable degree of certainty, accident
    investigation certainty, as to what occurred out there at the accident scene?
    A: Yes, I did.
    Q: Okay.
    12
    Q: Okay. Based upon what you saw in your investigation, what was your opinion
    you reached that day?
    A: My opinion was that [Appellant] was just inattentive to the roadway condition
    at the time of the crash.
    This line of questioning amounted to improper opinion evidence that there was no other
    vehicle that ran Appellant off the road, that this was a one-vehicle crash that involved only
    Appellant’s motorcycle, and that the sole cause of the crash was Appellant’s inattentive driving.
    Corporal Hadlock’s opinions and conclusions were not fact testimony of what he personally
    observed at the scene. An expert witness’s testimony should not be admitted unless it is clear
    that the jurors themselves are not capable of drawing correct conclusions from the facts. 
    Id. at 819.
    “In this era of widespread highway travel and numerous highway collisions, a jury, usually
    composed of adult drivers for the most part, is capable of reaching its own conclusions with
    regard to fault and degree of fault in a case of this type.” 
    Id. at 820.
    Based on the foregoing, Corporal Hadlock’s testimony in which he opined the accident
    was caused solely by Appellant’s inattentive driving was inadmissible, and the trial court abused
    its discretion in admitting it. Moreover, the testimony materially affected the outcome of the
    trial, as the case law recognizes an officer’s opinion testimony on fault in an accident will likely
    be given undue weight and significantly influence the jury’s resolution on the issue of liability.
    
    Khan, 55 S.W.3d at 443
    ; 
    Stucker, 841 S.W.2d at 820
    . Point two is granted.
    13
    III.    CONCLUSION
    The trial court’s judgment entered in accordance with the jury verdict in favor of
    Respondent is reversed and remanded for proceedings in accordance with this opinion.
    ROBERT M. CLAYTON III, Presiding Judge
    Lawrence E. Mooney, J., and
    James M. Dowd, J., concur.
    14