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Powell v. State Farm Mutual Automobile Insurance Co.10/18/2005
everal exhibits to its motion, the exhibits were not in the form of affidavits and were never introduced into evidence. Officer Powell did not stipulate to any of the exhibits and, in fact, challenged their consideration. "Exhibits attached to motions filed with the trial court are not evidence and are not self-proving." Kulaga v. Kulaga , 149 S.W.3d 570, 573 n.6 (Mo. App. W.D. 2004).
State Farm requested and the trial court apparently took judicial notice of the personnel policies and resolution of the Board of Police Commissioners attached to State Farm's motion. The Kansas City Board of Police Commissioners is a state agency created by statute and endowed with the power to adopt rules and regulations governing the conduct of the police department. Sections 84.350 and 84.420.2(1), RSMo 2000; State ex rel. Nixon v. Karpierz , 105 S.W.3d 487, 489 n.6 (Mo. banc 2003) . Under section 536.031.5, RSMo Cum. Supp. 2004, Missouri courts take judicial notice, without proof, of the Code of State Regulations. Unless a rule or regulation has been published in the Code of State Regulations, however, a court may not take judicial notice of an administrative rule or regulation. State v. Mullenix, 73 S.W.3d 32, 37 (Mo. App. W.D. 2002) . The personnel policies of the Kansas City Police Department are not published in the Code of State Regulations, and, therefore, the trial court could not take judicial notice of such exhibits attached to State Farm's motion. And even if the trial court could take judicial notice of the policies, no evidence was offered that the policies were in effect at the time of Officer Powell's injury.
Also attached to State Farm's motion were purported summaries of Officer Powell's medical bills and his lost wages. While the summary of Officer Powell's medical bills was supported by evidence offered at trial, the summary of his regular duty lost wages did not coincide with evidence of lost wages offered at trial or in the offer of proof. No explanation was given regarding the discrepancies, yet the trial court apparently accepted the summaries as true although they were not offered into evidence. Also attached to State Farm's motion were purported summaries of Officer Powell's medical bills and his lost wages. While the summary of Officer Powell's medical bills was supported by evidence offered at trial, the summary of his regular duty lost wages did not coincide with evidence of lost wages offered at trial or in the offer of proof. No explanation was given regarding the discrepancies, yet the trial court apparently accepted the summaries as true although they were not offered into evidence.
The only evidence introduced at trial or in the offer of proof regarding Officer Powell's receipt of workers' compensation benefits was the total of Officer Powell's medical bills, $5,739.96, and Officer Powell's testimony that he believed the City of Kansas City had paid his medical bills. This evidence did not constitute sufficient competent evidence that Officer Powell's medical bills were paid or payable by his employer under workers' compensation laws. During the offer of proof, Officer Powell testified as follows:
Q: Now by entering into that agreement, is it true that the full amount of the medical bills that you have identified on Plaintiffs' Exhibit 4 were paid for by the city of Kansas City, Missouri, your employer?
A: I believe so.
Officer Powell's testimony that he believed the City of Kansas City paid his medical bills is of no probative value. Generally, one's belief, feeling, understanding, or thought about a matter does not constitute substantial evidence justifying or permitting a finding to that effect. Dickey Co. v. Kanan, 537 S.
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