By Paul Fletcher
BridgeTower Media Newswires
DETROIT—The estate of a woman killed when she was run over in a parking lot has failed in its efforts to get underinsured motorist coverage for death.
The underlying case was tried to jury verdict, and the estate’s effort to pursue the UIM benefits in a trial on that policy has been rejected by a Court of Appeals panel applying the doctrine of collateral estoppel.
The case is Estate of Parks v. Sandy. Members of the panel for the per curiam unpublished opinion were Judges Colleen A. O’Brien, Michael J. Kelly and James Robert Redford.
Janet Parks, a retired school bus driver, was struck by a car driven by Joe Sandy in the parking lot of a Mt. Pleasant restaurant in 2016, according to local news reports. She died from her injuries.
Her husband Dowayne filed a wrongful death suit against Sandy. He also sued Pioneer State Mutual Insurance Company, under the terms of an underinsured motorist policy he and his wife had.
Sandy’s policy limits with State Farm were $100,000. The Pioneer policy has $250,000 in UIM coverage available.
Before the trial, Dowayne and Pioneer stipulated to dismiss without prejudice the UIM claim.
In a footnote, the court said that Dowayne argued that Pioneer would not consent to a settlement with State Farm, a requirement under its policy. The implication seemed to be, the court noted, was Pioneer was engaging in gamesmanship to force Dowayne to try the underlying claim.
The judges were not sympathetic: They said that Dowayne had several options short of dismissal without prejudice. He could have sued to force consent, or depending upon Pioneer’s actions, he could have sued for bad faith.
At trial, the Isabella County jury found that Sandy was negligent, but that Janet was 50% comparatively negligent. Her damages, they found, were $200,000, so her recovery was $100,000.
Dowayne moved the court to reinstate the UIM claim, seeking the additional $100,000.
Pioneer argued collateral estoppel, that the issues had been fairly litigated.
The trial court, in what might be characterized as a mixed metaphor, ruled that Pioneer “sought two bites at the apple in this case, using the law as both a sword and a shield.”
Pioneer always contemplated two trials, the trial judge said. If the jury had come back with a final verdict for Dowayne of more than limits, Pioneer would have used its policy language as a shield and forced a second trial.
Now, Pioneer was trying to use the verdict as a sword to force Dowayne to be bound by the verdict, he said. The trial judge granted the motion to reinstate.
But the appeals court would have none of it.
The court said it was not clear exactly what Dowayne sought procedurally, choosing parts of the first trial or conducting a whole new trial against a new defendant, Pioneer.
Pioneer argued that collateral estoppel put the kibosh on a new trial. The issue of what damages the estate was entitled to recover already had been tried and the estate had its day in court then, it argued.
The recovery was the exact amount of the coverage available from Sandy’s carrier.
The court agreed. It said, “In the earlier action, the amount of compensatory damages that plaintiff was legally entitled to recover from Sandy was actually litigated and determined by a valid and final judgment.” That satisfied the first two elements of a successful collateral
estoppel defense.
The third element, that there was mutuality, was not required under a 2004 Michigan Supreme Court case, Monat v. State Farm Ins. Co., 469 Mich. 679 (2004). That case indicated mutuality was not needed where there had been a “full and fair opportunity” to try the issue.
The appeals court sent the case back to Isabella County with instructions to enter judgment for Pioneer.
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