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Powell v. State Farm Mutual Automobile Insurance Co.10/18/2005
olicy 1005; Board of Police Commissioners of Kansas City, Missouri, Resolution 95-5; a summary of Officer Powell's medical bills totaling $5,739.96; and a summary of Officer Powell's regular duty lost wages totaling $4,956.64. State Farm also relied on evidence at trial that Officer Powell's medical bills totaled $5,739.96 and on an offer of proof outside of the hearing of the jury where Officer Powell testified that he believed the City of Kansas City had paid his medical bills.
Thereafter, Officer Powell filed suggestions in opposition to the motion to reduce the verdict. He argued, inter alia , that the trial court should not take judicial notice of or consider the Kansas City Police Department Personnel Policy documents attached as exhibits to State Farm's motion and that State Farm otherwise did not prove the amount of any sums paid or payable by Officer Powell's employer, the Board of Police Commissioners.
The question of application of the offset provision of the insurance policy was tried to the trial court following the jury trial on Officers Powell's personal injury claim. In a court-tried case, the trial court is presumed to consider only properly received evidence. State ex rel. Webster v. Cornelius , 729 S.W.2d 60, 65 (Mo. App. E.D. 1987) . The erroneous admission of evidence requires reversal only when no sufficient competent evidence to support the trial court's judgment was presented. Id. In reviewing a court tried case, the appellate court only considers properly admitted evidence and ignores that which was improperly admitted. Id.
A party seeking to establish coverage under an insurance policy has the burden of proving that the claim is within the coverage afforded by the policy. M.A.B. v. Nicely, 911 S.W.2d 313, 315 (Mo. App. W.D. 1995) . If, however, an insurance company seeks to escape coverage based on a policy exclusion, it has the burden of proving facts that make the exclusion applicable. Id.; Harold S. Schwartz & Assocs., Inc. v. Cont'l Cas. Co. , 705 S.W.2d 494, 498 (Mo. App. E.D. 1985) . State Farm argues that the offset provision of the policy is not an exclusion and that Officer Powell had the burden of proving that his claim was within the coverage of the policy. State Farm's argument is incorrect. By definition, an exclusion provision in an insurance policy excludes risk. Schwartz, 705 S.W.2d at 498 . It does not endow coverage but rather limits the obligation of indemnity. Id. Although not specifically labeled an exclusion, the offset provision in the policy is an exclusion because it does not endow coverage but limits the responsibility of State Farm for Officer Powell's damages. Given State Farm's reliance on the offset provision, it had the burden of proving facts that make the provision applicable.
Rule 78.05 authorizes affidavits, depositions, and oral testimony in connection with after trial motions. Prewitt v. Cofer , 979 S.W.2d 521, 525 (Mo. App. E.D. 1998)(quoting Peth v. Heidbrier , 789 S.W.2d 859, 862 (Mo. App. E.D. 1990)) . Where the issue raised in the after trial motion requires resolution of factual matters not based on facts appearing in the record, the rule authorizes proof by any of the listed methods. Id. (quoting Peth, 789 S.W.2d at 862) .
The issue raised in State Farm's motion to reduce the verdict required resolution of factual matters not appearing in the record, specifically, whether any amount was paid or payable to Officer Powell under workers' compensation laws. Except for evidence at trial that Officer Powell incurred $5,739.96 in medical bills and his testimony in the offer of proof, no other evidence was presented on the issue. No evidentiary hearing was held. Although State Farm attached s
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