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Supreme Court rules in favor of parents in climbing wall case

Wednesday, April 27, 2011 | 11:13 a.m. CDT

COLUMBIA — The Missouri Supreme Court ruled Tuesday in favor of the parents of 22-year-old Christine Ewing, who died after falling from a portable climbing wall at a Mid-Missouri Mavericks baseball game on July 14, 2003.

The court said that Great American Insurance Co., an excess insurance provider for the Mavericks, must cover the remaining damages from a $4.58 million settlement awarded to Ewing's parents, Craig Ewing and Kathleen Schmitz. The primary insurance company for the Mavericks, Virginia Surety Co., and Marcus Floyd, the rock wall owner, have already paid the parents $700,000.

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The 13th Circuit Court in Boone County had previously ruled that Great American should not be held accountable for the remaining compensation. The Supreme Court's decision Tuesday reverses that ruling.

It's "as much of a win as something can be when your daughter is killed," David Moen, attorney for Kathleen Schmitz, said.

Christine Ewing fell more than 20 feet from the portable rock wall after the cable supporting her snapped, according to a previous Missourian article. She died from her injuries the next day.

Great American had previously held that it was not liable in the incident because of an exclusion in its policy statement related to "amusement devices." The company said the rock wall operated by Floyd was such a device.

Moen said he and his clients didn't agree. Neither did the Supreme Court.

In its unanimous opinion, the court also said that Virginia Surety, the primary insurer, did not have to exhaust its policy limits for the excess insurer to pay the plaintiffs.

Because the plaintiffs had already settled for about $700,000 with both Floyd and the primary insurer of the Mavericks, Great American argued it was not responsible for the rest. The excess insurance company said a clause in its policy stated that if the primary insurance company didn't pay up to its full limits, then it was not liable for the remaining damages. 

The settlement was $300,000 less than Virginia Surety's $1 million maximum.

"We argued that the language in the policies allowed for what we did — that is settling for less than the policy limits, crediting the excess carrier with the full amount of the primary coverage and requiring the excess carrier to pay the remainder — and the (Supreme Court) agreed," Moen said.  

The company also argued that since the plaintiffs entered into an agreement that it wasn't a part of, it should not have to pay the full amount, Moen said. The Supreme Court disagreed because the plaintiffs did not enter into a settlement with Great American and had actually taken action against it.  

The case will go back to Boone County, Moen said, where Judge Gary Oxenhandler will enter a judgment in accordance with the Supreme Court's decision.


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