Insurance Law Alert: Covered or Excluded

December 18, 2019

Kent Bevan

In Midwest Family Mutual Insurance Company v. Hari Om Rudra Hotel, LLC (hotel) the plaintiff, Midwest Family Mutual Insurance Company (MFM), issued a business owner’s policy to the hotel. During the policy term, water infiltrated several rooms of the hotel and was also discovered in the parking lot area of the hotel. All of the claimed damage was a result of a leak from an underground water pipe underneath the parking lot. Upon discovering the water leakage and resulting damage, the hotel submitted a claim.

MFM investigated and concluded that the water intrusion and “buckled” parking lot were the result of a water main break caused by corrosion, decay, deterioration, hidden or latent defect or a quality in the pipe that caused it to damage or destroy itself. The hotel’s expert, on the other hand, concluded that the corrosion in the underground water pipe appeared to be related to an isolated backfill condition of the soil.

The policy contained exclusions for earth movement and water, among other things. The earth movement exclusion included earth sinking, rising or shifting, including soil conditions causing settling, cracking or other disarrangement of foundations or other parts of the realty. The exclusions for water damage included water that is up or overflows or is otherwise discharged from a sewer, drain, sump pump or related equipment, water under the ground surface pressing on or flowing or seeping through foundations, walls, floors or paved surfaces, basements, whether paved or not or doors, windows or other openings. The exclusions are much more extensive than set out here.

MFM maintained that it is undisputed that all of the damages were the result of water that leaked out of the underground pipe located outside of the hotel. MFM denied the claim and in the resulting lawsuit, both MFM and the hotel filed dispositive motions.

The United District Court for the Western District of Missouri found that all claimed damages of the hotel are excluded under the policy’s underground water exclusion and/or the earth movement exclusion. The court granted MFM’s dispositive motion for declaratory judgment and granted MFM’s summary judgment motion. In so doing, the trial court denied the hotel’s motion for partial summary judgment for lack of coverage. The court noted that the insured bears the burden of proving that there is coverage under a policy (Shelter Mutual Insurance v. Ballew, 203 SW 3d 789 [Mo App 2006]) and, as such, the hotel had to prove that there was direct physical loss or damage to the insured property, that the property damage was “covered property” and that the damage resulted from a covered cause of loss. The hotel failed in its burden.

Insurance Law Alert: To Stack Or Not To Stack

November 20, 2019

Kent Bevan

In Strain v. Safeco Insurance Company, the plaintiff sustained severe injuries in a car accident and sought underinsured-motorist benefits from her family’s insurance carrier, Safeco, since the limits of the adverse driver’s policy were insufficient to fully cover her injuries. Safeco paid the plaintiff the policy maximum of $100,000, but the plaintiff demanded three times that amount since her family had three cars insured under the policy. The District Court found that the policy provisions prohibit that sort of stacking, and the plaintiff appealed.

Missouri law governs the policy interpretation. The Eighth Circuit applied the plain and ordinary meaning of the terms used in the policy, reviewing it as a whole and resolving any ambiguities in favor of the insured. The policy had a “maximum limit” of $100,000 “for all damages … arising out of bodily injuries sustained by any one person in any one accident.” The policy further stated, even if “more than one vehicle is insured under this policy … the limits applicable to the Underinsured Motorist Coverage may not be stacked.”

In reviewing the policy, the court determined that there was no other provision, which overcame the express prohibition on stacking. The plaintiff relied on a provision that stated “any underinsured motorist insurance we provide with respect to a vehicle [the insured does] not own shall be excess over any collectable underinsured motorist insurance providing coverage on a primary basis.” The Eighth Circuit noted that the Missouri Supreme Court has held that this type of language on its own can create an ambiguity on whether coverage can be stacked. Ritchie v. Allied Property & Casualty Insurance, 307 SW 3rd 132 (Mo banc 2009). However, unlike the insurance policy in the Ritchie case, the plaintiff’s policy with Safeco immediately clarified that statement by stating the maximum limit of Safeco’s liability as not exceeding the highest limit applicable to any one auto, which is $100,000. That clarification, coupled with the provision expressly forbidding stacking eliminates any ambiguity.

Therefore, the Eighth Circuit in Strain v. Safeco Insurance Company affirmed the District Court’s finding that stacking was not available.

Insurance Law Alert: A Closer Reading

October 16, 2019

Kent Bevan

In Aguilar v. Geico Casualty Company, Aguilar sustained serious injuries after a U-Haul truck driven by Hollandsworth ran into the motorcycle Aguilar was riding in Jackson County, Missouri.  The claim was reported to Geico and the company disclaimed any liability.  Geico had previously issued an auto liability policy to Mr. and Mrs. Clymens for their vehicle and during the coverage period, Clymens signed paperwork to rent the U-Haul truck involved in the accident so Hollandsworth could move her belongings from the Clymens residence to a new home.

Aguilar sued Hollandsworth for personal injuries and later filed a motion for default Judgment.  Geico’s counsel then entered an appearance on Hollandsworth behalf about the time Geico offered to defend Hollandsworth subject to a reservation of rights, which Hollandsworth rejected.  Hollandsworth and Aguilar then entered into a Section 537.065 agreement under which Hollandsworth assigned Aguilar all of her rights under the Geico policy.  Geico filed a motion to intervene in the action as of right five days later under Section 537.065.2.  Aguilar voluntarily dismissed his lawsuit eight days later, on the same day that Geico filed a declaratory judgment action in Federal Court, which dismissed the declaratory judgment action without prejudice approximately a year later for abstention reasons in light of a State Court garnishment action filed by Aguilar against Hollandsworth and Geico that remains pending.

Aguilar and Hollandsworth entered into an agreement thereafter to submit the dispute to binding arbitration.  The arbitrator conducted a hearing and awarded Aguilar $35 million in compensatory and punitive damages, after which Aguilar filed a motion in Circuit Court to confirm the arbitration award.  Geico filed a Motion and an amended motion to intervene and the Circuit Court denied the motion to intervene without comment.  The Circuit Court also issued a judgment confirming the arbitration award with statutory interest.  Geico timely filed an Appeal from the judgment.  

The matter went up on appeal to the Missouri Court of Appeals, Western District with Geico arguing that the trial court erred in denying its motions to intervene because substantial evidence did not support the ruling and the court misapplied Section 537.065 which it alleged conferred an unconditional right on Geico to intervene in a lawsuit before entry of a judgment where the parties have entered into Section 537.065 Agreement. Geico also alleged the denial of intervention deprived Geico of due process and access to the courts.

The Appellate Court ruled that when a trial court denies a motion to intervene as of right the Appellate Court will affirm unless there is no substantial evidence to support the ruling, it is against the weight of the evidence, or erroneously declares or applies the law.  The court noted that Geico focused on the first part of Section 537.065.2 which it claims gives it the right to intervene before a judgment may be entered.  The Western District disagreed, holding that the unambiguous meaning of the statute requires a tortfeasor and injured party to give notice to the insurance company of a Section 537.065 contract before a judgment may be entered but that there is no requirement that the insurance company must be allowed to intervene before judgment can be entered.

The Western District went through a detailed analysis of the chronology involved in this action and cited prior Missouri case law litigating the 2017 amendment of Section 537.065 but ultimately held that the trial court did not abuse its discretion or misapply the law in denying Geico’s motions’ to intervene as a matter of right or permissibly in the proceeding.  The judgment of the trial court was affirmed.

Insurance Law Alert: Partial vs. Total

September 4, 2019

Kent Bevan

In Norwood-Redfield Apartments, Limited Partnership v. American Family Mutual Insurance Company, Apartments owned an apartment complex consisting of 32 buildings.  A fire occurring in 2010 destroyed one building and damaged two others of the 32 building complex.  The Apartments were insured under a business owners insurance policy and American Family paid the Apartments approximately $2.9 million for its loss as a result of the fire.  Apartments filed suit alleging breach of contract and vexatious refusal to pay, claiming they were entitled to receive the policy limits of nearly $32 million claiming it had suffered a total loss of the property insured under Missouri’s valued policy statute, Section 379.140 RSMo.  American Family removed the case to Federal District Court which granted American Family’s motion for partial summary judgment and later entered final judgment.

Apartments argued that it suffered a “total loss of the property insured” because one of its buildings was completely destroyed.  It argued that “total loss” refers to how badly the building was damaged, not how many buildings were damaged.  According to Apartments’ reading, the Missouri valued policy statute does not allow the insurance company to dispute the policy’s valuation of each “building” and requires payment of the policy limits of some $32 million for Apartments “total loss”.

On appeal, the court concluded that the “property insured” is the 32 building complex and not each building in the complex.  The policy declarations described the insurance coverage as “blanket insurance at the following described premises”, thereafter describing the 32 premises, each consisting of one building.  The blanket endorsement explains that the limits of insurance in the declarations applies to all the premises described in the declarations, meaning that the insurance company would pay no more than approximately $32 million for loss or damage to the 32 buildings.  Since the fire destroyed only one building of the 32 building complex, Apartments did not suffer a “total loss of the property insured” and therefore the Missouri valued policy statute did not require American Family to pay the full policy amount.  Judgment in favor of the insurance company was affirmed by the Eighth Circuit Court of Appeals.

Insurance Law Alert: Coverage Disputed

August 21, 2019

Kent Bevan

In Adams v. Certain Underwriters at Lloyds of London (Lloyds), et al, Adams, brought a negligence suit again Lights on Broadway and Eric Galloway (Galloway) for allegedly causing the death of Adams’ son, Willis, who was shot and killed outside a nightclub while assisting Galloway with throwing a party.  Adams and Galloway entered into a Section 537.065 Agreement and thereafter, judgment was entered against Galloway and Lights on Broadway in the amount of $5 million.  Adams next brought a garnishment claim against Lloyds, the insurance company of Lights on Broadway, seeking to collect on the judgment.  Following a bench trial, the Garnishment Court entered its judgment on various claims and crossclaims of the parties, from which all parties appealed.

The fourth and final amended petition filed by Adams claimed negligence on the part of Galloway and Lights on Broadway which caused the shooting death of her son.  The fourth amended petition claimed that Lights on Broadway and the related business entities responsible for throwing a party were negligent in that they had a duty to provide security for the party and failed to do so in a reasonable manner.  Exclusions in the Lloyds policy included expected or intended injury and assault or battery.  Lloyds refused to settle for the $1 million policy limit also reserving all other defenses they may discover in connection with additional information provided.  Lloyds in the meantime filed a declaratory judgment action in Federal Court to determine their obligations under the policy with respect to plaintiff’s claims.

The State Court negligence trial consisted of expert testimony offered by plaintiff as well as affidavits from Galloway and other witnesses.  Following evidence and argument, the trial court entered judgment against both Galloway and Lights on Broadway finding them jointly and severally liable for negligently causing the death of Willis, and awarding plaintiff $5 million in damages.  No written findings of fact or conclusions of law were made by the trial court.

The trial court determined that Lloyds had a duty to defend Galloway and Lights on Broadway from plaintiff’s negligence claim.  The trial court’s finding on that point was affirmed by the Missouri Court of Appeals, Eastern District.  As to the assault and battery exclusion in the Lloyds policy the record did not reveal definitively whether the decedent was the victim of an assault or battery.  The petition claims that Willis was shot when an unknown individual “recklessly fired stray bullets” into the crowd outside the nightclub party that took place.  The trial court had determined that a ruling for plaintiff was made because it found that even if an assault and battery had occurred, Galloway and Lights on Broadways’ negligence was a covered concurrent proximate cause of Willis’ injury.  The Appellate Court determined that to be a correct ruling.

There was also an issue of whether Adams claim should be barred based on the trial court interpretation and application of the Classification Limitation in the Policy which essentially provided that the insurance does not apply to bodily injury arising out of operations or premises which are not classified or shown on the CGL coverage part declarations, its endorsements or supplements.  Two mistakes the garnishment court made were determined to be that the shooting did not occur at the Pulse Nightclub but rather outside of the Pulse Nightclub in a parking lot shared by two other businesses.  Secondly, the plain language of the policy does not limit coverage only to injuries that occur at or on covered premises but rather, the policy states it “does not apply to bodily injury arising out of those operations or premises which are not classified or shown on the CGL coverage part declarations”.  The Garnishment Court did not consider whether the fatal injury to Willis arose out of the operations or premises classified or shown on the CGL Coverage Declaration.  The judgment revealed that the Garnishment Courts’ denial of plaintiff’s claim was due to the Garnishment Court concluding that Galloway was promoting a party that night as the agent of a different business.  The Appellate Court determined there was an issue of whether the Garnishment Court was at liberty to decide if Galloway was acting on behalf of another business such that Lights on Broadway would not be liable for his negligence and concluded the trial court was not at liberty to make that decision.

The Eastern District affirmed the Garnishment Courts’ finding that Lloyds had a duty to defend Lights on Broadway from plaintiff’s negligence suit.  The court reversed the trial courts’ judgment finding no payment was due to Adams under the policy because the Garnishment Court erroneously found Lights on Broadway not to be liable for the death, contrary to a finding necessarily reached in the underlying tort case.  Lloyds’ failure to defend constituted a breach of contract.  Though the underlying judgment against Galloway and Lights on Broadway was for $5 million, the policy limits coverage for personal injury is $1 million. Therefore, Lloyds’ liability to plaintiff is for the $1 million policy limit.  The Appellate Court reversed the Garnishment Courts granting of summary judgment on the bad faith failure to defend and remanded that portion of the case for further proceedings.  The Appellate Court could not say that the undisputed facts conclusively established that Lloyds acted in bad faith in refusing to defend Galloway and Lights on Broadway.  The court also determined that whether the death was a result of assault and battery is immaterial since even if it were, the concurrent proximate cause rule applies and the injury is still covered under the policy.  The Eastern District Court of Appeals remanded the case to the Garnishment Court for resolution of all claims and issues remaining unresolved by the appeal.

Insurance Law Alert: UIM Coverage At Issue

July 17, 2019

Kent Bevan

In Seaton v. Shelter Mutual Insurance Company, Shelter appealed from an entry of summary judgment in favor of Seaton after the Circuit Court found Seaton was entitled to underinsured motorist (UIM) coverage under three separate insurance policies Seaton maintained with Shelter after the death of her daughter, Chelsea Seaton (hereinafter decedent).

The driver of a vehicle lost control of that vehicle she was driving and crashed, causing her passenger, decedent, to sustained fatal injuries.  Following decedent’s death, Seaton asserted a wrongful death claim against the driver which was settled for driver’s insurance policy limits.  Seaton then sought UIM coverage from Shelter under the three auto policies she maintained.  Shelter provided UIM coverage pursuant to one of the policies but denied UIM coverage under the other two policies, asserting that decedent was not a defined insured for UIM coverage. 

Seaton filed a declaratory judgment action against Shelter asking the court to determine that UIM coverage existed for decedent and also alleging breach of contract.  Cross motions for summary judgment were filed by Seaton and Shelter.  The trial court entered judgment in Seaton’s favor and following an opinion issued by the Court of Appeals, the Missouri Supreme Court granted transfer.  The Missouri Organization of Defense Lawyers (MODL) and the Missouri Association of Trial Attorneys (MATA) both filed amicas briefs in support of the respective parties to the appeal. 

Shelter set out two reasons it believes the Circuit Court erred in granting summary judgment in Seaton’s favor: first, Shelter claimed the trial court erred because decedent is not an “insured” under the insurance policys’ unambiguous language.  Second, Shelter claims the trial court erred in finding the insurance policies were internally inconsistent.  The endorsements on Shelter’s UIM policies provide that Shelter will pay uncompensated damages subject to stated limits, when an insured sustains bodily injury as a result of an accident involving the use of an underinsured motor vehicle.  The Shelter policies define “insured” to be:

  1. You;
  2. any relative; and
  3. any individual occupying the described auto who is listed in the Declarations as an ‘additional listed insured’, if:
  1. that individual does not own a motor vehicle; and
  2. that individual’s spouse does not own a motor vehicle.

(Emphasis in original).

The Shelter policy states that “You” means any person listed as a named insured in the Declarations.  The policy also defines a “named insured” as “any person” listed in the Declarations under the heading “named insured”.  It does not include persons listed under other headings unless they are also listed under the heading “named insured”. 

Decedent was not an insured entitled to UIM coverage because decedent did not meet the definition of “you” when applying the plain language of the insurance policy’s terms.  Decedent was not listed as a named insured on either insurance policy for which Shelter denied coverage.  While the decedent was listed as an “additional listed insured”, the Shelter policies plain language indicates an “additional listed insured” is not the same as a “named insured”.  Because decedent was not listed as a named insured, she did not meet the policy definition of “you”.  Second, the Shelter policies provide UIM coverage for a “relative”.  While Seaton argued that the average lay person would believe decedent to be an insured because she was Seaton’s daughter, the Supreme Court disagreed.  In the Shelter policies, the term “relative” appears in bold letters.  Policy holders are told in the policy that words appearing in bold typeface have specific defined meanings within the terms of the policy and conversely, words not appearing in bold typeface have their common dictionary meaning.  The word “relative” appears in bold type indicating it has a specific defined meaning as “an individual related to you by blood, marriage or adoption, who is primarily a resident and actually living in your household… relative does not mean any individual who owns a motor vehicle…”.  The policy also defines “owns” to mean “that the person referred to holds the legally recognized title to or is a leaseholder of an item of real or personal property, even if there are other owners”. 

Decedent had admitted that decedent was listed as a title owner on the certificate of title to a motor vehicle.  The plain language of the policy indicates UIM coverage is not provided for a relative who owns a motor vehicle and Seaton admitted that decedent was the owner of a motor vehicle.  Therefore, decedent did not meet the definition of a “relative” to receive UIM coverage.  Further, decedent did not meet the final definition of “insured” which provides coverage for an “individual occupying the described auto”.  In this case, decedent was without question a passenger in driver’s vehicle at the time of her injuries.  She was not an occupant of either vehicle insured by the Shelter policies.  Therefore, decedent was not an insured and not entitled to UIM coverage.  The Missouri Supreme Court en banc ruled that even if the limits of liability or other insurance provisions would render the policies ambiguous, since decedent does not meet the definition of an insured, the court need not determine whether the limits of liability or other provisions render the policies ambiguous because the policies only extend coverage to insured individuals. 

The Missouri Supreme Court reversed the Trial Court’s judgment and remanded the case.

Insurance Law Alert: Shots Fired Does Not Invoke UM Coverage

June 19, 2019

Kent Bevan 

In Patel v. LM General Insurance Company, Patel was killed by gunfire while he was stopped in traffic in St. Louis, when the occupants of an unknown vehicle fired several shots from the unknown vehicle hitting Patel.  After the first shots were fired Patel exited his vehicle and was shot again outside of the vehicle.

The uninsured motorist (UM) coverage provision of the defendant’s policy issued to Patel provided UM coverage limits of $250,000 for each person, naming Patel and his widow as insureds. The insuring agreement of the policy provided in essence that the insurer will pay compensatory damages the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an insured and caused by an accident.  The owner or operator’s liability for damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle. 

The term “arising out of the… use” of an automobile has been the subject of many Missouri cases over the years addressing coverage.  A number of those cases have turned on the issue of whether the insured liability to a third party was covered by an auto liability policy because the third party’s injuries arose out of the insured’s use of an insured automobile.  Missouri cases hold that “arising out of” requires proof of a causal connection though the standard of causation is broader than just proximate cause. 

The issue in Patel raises the question of whether intentionally inflicted injury by the occupants of an uninsured automobile was covered because the uninsured motorist liability arose out of the use of an uninsured auto.  The Eighth Circuit Court of Appeals cited existing case law nearly on all fours with the facts of Patel.  In Ward v. International Indemnity, the decedent, while driving his car was shot and killed by a passenger in another unidentified vehicle. The Plaintiff’s mother argued that the other vehicle was an instrumentality of the shooting that aided and abetted the shooter, but that argument was rejected by the court in Ward, when the court determined that injuries inflicted on a victim of a drive by shooting by the occupant of a motor vehicle are not injuries which arise out of the use of the motor vehicle, since the motor vehicle was merely the situs or locus of the cause of the victim’s injuries; the discharge of the gun is unconnected to the inherent use of the motor vehicle.  In other words, the fact that the shots were fired from a motor vehicle is merely coincidental with the facts of the cause of decedent’s death.  Human conduct that is wholly independent of the operation or use of a motor vehicle is what caused the death.  The Eighth Circuit determined that the Missouri Court of Appeals has consistently cited Schmidt v. Utilities Insurance Company, a 1944 Missouri Supreme Court case as being the seminal Missouri case construing the phrase “arising out of” in an auto liability policy. 

The Eight Circuit determined that the drive by shooters’ use of firearms to kill Patel was not directly connected and necessarily incident to the operation and use of the uninsured motor vehicle and that human conduct wholly independent of the operation or use of the motor vehicle was the cause of the death.  The Eighth Circuit affirmed the judgment of the District Court in granting summary judgment for defendant LM Insurance Company.

Insurance Law Alert: Is It Covered?

May 15, 2019

Kent Bevan

In Country Preferred Insurance Company vs. Lee, Christopher Lee suffered bodily injuries in a car accident in 2016.  The at-fault driver’s insurance company paid Lee the full amount of the Driver’s Policy, $100,000, but Lee had accrued more than $400,000 in medical bills so he looked to his carrier, Country Preferred Insurance Company, where he and his wife had three auto policies, one for each of their three vehicles.  The Lees sought $300,000 from Country Preferred as each of their polices included $100,000 in underinsured motorist (UIM coverage).  Country Preferred refused to pay citing the policies’ definition of an underinsured motorist, which limited UIM coverage to situations in which the at-fault driver’s policy limit is less than the insured’s UIM coverage limit and also, to the policies’ anti-stacking provision which provides that an insured’s UIM coverage limit is the highest applicable limit of liability under any one policy.  In the Lee’s case, that was $100,000.  Country Preferred filed suit against the Lees’ seeking a declaratory judgment to that effect and the Lees’ counterclaimed for fraudulent misrepresentation and unjust enrichment.  The trial court granted Country Preferred’s motion for judgment on the pleadings and the Lees’ appealed challenging only the dismissal of their fraudulent misrepresentation and unjust enrichment counterclaims. 

On appeal, the parties agree that the anti-stacking provision bars the Lees’ from recovering any money from Country Preferred for the car accident.  The Lees contend that as a result, Country Preferred  has committed fraud and has been unjustly enriched by collecting three separate premiums for UIM coverage when the anti-stacking provision renders the UIM coverage in the Lees’ second and third policies worthless in every circumstance or to use the language of Missouri courts “illusory”.

Midwestern Indemnity, Co. v. Brooks (8th Circuit 2015) precludes the Lees’ claims however.  In Midwestern, the 8th Circuit explained that anti-stacking provisions did not render UIM coverage in multiple policies illusory because the premium paid for coverage under each policy corresponded with an increase in coverage.  The terms of the policy at issue in Midwestern provided UIM coverage not only to the named insured and their family members but also to any other person occupying your covered auto.  Therefore, the premiums paid for each additional covered auto buys UIM coverage for non-named, non-family passengers and drivers in that vehicle.  This is also true of the Lees’ policy with Country Preferred, which defines any insured vehicle as the vehicle described in the declarations page.  The court found that the payment for UIM coverage under the Lees’ second and third policies buys coverage for non-named, non-family passengers and drivers of the Lees’ second and third vehicles and therefore such coverage is not illusory.

The 8th Circuit affirmed the District Court judgment.

Insurance Law Alert: Section 537.065 Revisited

April 17, 2019

Kent Bevan

In Britt v. Otto, Britt was injured in an accident involving her vehicle and a vehicle driven by Otto, who was insured by American Family Mutual Insurance Company (AFI). Britt extended a time limited demand to settle to AFI providing that Britt would unconditionally release Otto from all liability in exchange for all applicable policy limits and payments.  AFI sent a letter purporting to accept Britt’s settlement demand for all policy limits applicable to Otto, in the sum of $100,000. Britt sent an email disagreeing that all applicable policy limits was limited to $100,000 since the policy provided that AFI would pay, in addition to its limits of liability, expenses Britt incurred for her emergency first aid. AFI thereafter sent a letter repeating that Otto’s policy had bodily injury liability limits of $100,000 and stating that it had accepted Britt’s settlement demand by agreeing to pay that policy limit.

AFI filed suit against Britt in federal district court seeking to enforce the settlement agreement with Britt. The federal suit did not name Otto as a party nor did it seek a declaratory judgment to resolve whether the first aid clause in Otto’s policy afforded Britt additional coverage. Otto sent an email to AFI expressing his belief that as a result of the federal action, AFI was refusing to afford him a defense without reservation of rights. Otto’s email advised AFI that he and Britt had entered into a 537.065 agreement. 

Britt and Otto entered into an agreement to resolve all issues arising out of the accident by binding arbitration pursuant to the Federal Arbitration Act and Missouri’s Uniform Arbitration Act. AFI stated it would not participate in the arbitration because if it agreed to do so, it would have to dismiss its earlier filed federal action to enforce the settlement. AFI further took the position that 537.065.2 expressly provides that the insurer has an opportunity to intervene in a lawsuit between the parties and that Britt and Otto were apparently seeking to avoid this by operation of an arbitration agreement.

An arbitration hearing was conducted and the award issued concluded that Otto was the sole and only tortfeasor who caused the accident and that there was no evidence to support a finding of comparative fault. The arbitration award concluded that the first aid provision afforded coverage for Britt’s emergency medical treatment and, as a result, AFI’s response to Britt’s settlement demand, which limited payment of all applicable policy limits to the $100,000 bodily injury policy limit, was a counter offer and not an acceptance of Britt’s demand. The arbitration award thereby rejected the affirmative defense of settlement and release finding that Britt had been damaged in an amount of over $5,900,000.

Britt filed an application to confirm the arbitration award and to enter judgment against Otto and sent a copy of the arbitration award to AFI by email, demanding that AFI pay the award.

AFI filed a motion to intervene in the action to confirm the arbitration award, stating that it was entitled to intervene as a matter of right under the statute and also under Rule 52.12(a) because AFI had an interest in the subject action and other arguments which it made. The trial court denied AFI’s motion to intervene and also issued a judgment which confirmed the arbitration award, incorporated the arbitration award by reference, and entered judgment in favor of Britt and against Otto in the amount determined in the arbitration award. AFI appealed.

The Missouri Court of Appeals, Western District, discussed the implications of §537.065, including a new subsection enacted by the General Assembly, effective August 28, 2017, describing when a judgment can be entered against a tortfeasor who has entered into a §537.065.1 contract. The unambiguous language of the amended statute afforded AFI the right to intervene as a matter of right within 30 days after receipt of Otto’s written notice of the execution of a § 537.065.1 contract.  AFI claimed the statutory right to intervene applied to the action to confirm the arbitration award; however, the action to confirm the arbitration award was filed more than 30 days after AFI’s receipt of Otto’s written notice of the § 537.065.1 contract.  AFI did not file a motion to intervene within 30 days of receipt of the written notice of the § 537.065.1 contract. The appellate court expressed no opinion about whether or not the arbitration proceeding qualifies as a “pending lawsuit” for purposes of § 537.065.2 except to note that in arguing to the contrary, neither party engaged in the required analysis.

The court went on to discuss intervention as a matter of right under Rule 52.12 at some length. Ultimately, the court ruled that the trial court did not err in denying AFI’s motion to intervene as a matter of right pursuant to Rule 52.12 since AFI did not establish that it had the requisite interest relating to the property or transaction, which is the subject matter of the action to confirm the arbitration award.  The court also determined that the trial court did not abuse its discretion in denying AFI’s motion to permissibly intervene in the action to confirm the arbitration award. The trial court’s authority in that action was strictly limited by statute and would not have extended to permitting AFI to litigate whether it was liable to pay the arbitration award. Furthermore, the trial court was entitled to consider that AFI declined the invitation to participate in the arbitration proceeding.

As a result, the trial court’s judgment was affirmed.

Insurance Law Alert: You Have Mail

March 5, 2019

Kent Bevan

In American Family Mutual Insurance Company v. Vein Centers for Excellence, Inc., et al, St. Louis Heart Center, Inc. filed a class action petition against Vein Centers for Excellence, Inc. claiming a violation of the Telephone Consumer Protection Act (TCPA).  American Family Mutual Insurance Company filed a complaint for declaratory judgment against its insured, Vein Centers, disputing American Family’s duty under various policy provisions to defend and indemnify Vein Centers in that class action suit.  The issue on appeal is whether the insurance policies issued to Vein Centers obligated American Family to defend and indemnify its insured.

Vein Centers tendered the lawsuit to American Family for defense and indemnity under two separate insurance policies: a business owner’s policy and a commercial liability umbrella policy.  American Family agreed to provide a defense to Vein Centers, under a full reservation of rights.  Both policies contained an exclusion for the “distribution of material in violation of statutes”.  The pertinent portion of the exclusion barred coverage for “. . .  personal and advertising injury arising directly or indirectly out of any action or omission that violates or is alleged to violate the Telephone Consumer Protection Act.”

American Family filed a complaint for declaratory judgment asking the Court to determine that coverage did not exist for the alleged claims set out in the underlying lawsuit.  St. Louis Heart was added in an amended complaint as an additional defendant.  The parties filed cross motions for summary judgment.  St. Louis Heart alleged that the exclusion in the business owner’s policy never took effect because American Family failed to properly notify Vein Centers of the provision’s addition when the policy was renewed.  The trial court granted summary judgment to American Family and St. Louis Heart appealed.

The 8th Circuit initially dealt with issues involving subject matter jurisdiction concerning the amount in controversy and the anti-aggregation rule in the class action.

St. Louis Heart argued that the “distribution of materials in violation of statutes” exclusion in the policy constituted a constructive non-renewal of the business owner’s policy and that American Family had failed to provide adequate notice to its insured of the non-renewal.  American Family did not dispute their obligation to provide notice of a constructive non-renewal but maintained that they sufficiently demonstrated compliance with the notice obligation.

Missouri law acknowledges a presumption as to the receipt of mailed materials, though that is a rebuttable presumption.  The Court determined that American Family is entitled to the presumption that Vein Centers received notice of the policy exclusion.  American Family offered deposition testimony of one of its corporate representatives who testified that American Family mailed a coverage summary letter (CSL) to Vein Centers more than sixty days prior to the business owner’s policy renewal date and that American Family’s standard business practice was to include with the CSL a policyholder communication (PLC) which is a notification of changes made to an insurance policy.  The American Family witness deposition went on to identify an internal communication sent to American Family agents and staff indicating that current holders of business owner’s policies would be sent a PLC notification setting forth a newly instituted “distribution of material in violation of statutes” exclusion.  Though the witness could not produce an actual copy of the PLC addressed to Vein Centers, her testimony established that it was likely mailed to Vein Centers as part of American Family’s custom and practice.  The Court found that this evidence creates a presumption that Vein Centers received notice of the exclusion. 

When a sender presents evidence that a letter was mailed, the presumption of receipt can be rebutted by evidence that it was not in fact received.  If the presumption is rebutted with evidence of non-receipt, then it is a jury question under all the facts and circumstances of the case as to whether or not the letter was received.  St. Louis Heart made no such rebuttal.  St. Louis Heart failed to submit any evidence indicating that Vein Centers did not in fact receive the CSL and the PLC.  Instead, they argued that the American Family witness testimony was insufficient to establish the presumption of receipt in the first place.  Missouri law however does not require direct proof or personal knowledge of mailing; only “evidence of the settled custom and usage of the sender in the regular and systematic transaction of its business.”  Speculation that American Family’s normal business procedures were not followed is not the same as affirmative evidence that Vein Centers did not receive the documents.  Therefore, there was no sufficient evidentiary basis to rebut the presumption of receipt.  The 8th Circuit Court of Appeals affirmed the trial court’s finding of jurisdiction and summary judgment in favor of American Family.

Insurance Law Alert: No Defense or Indemnity

February 14, 2019

Kent Bevan

In Mary Spencer, et al. v. Hartford Casualty, et al., Spencer and thirteen of her classmates (Appellants) in the Applied Sciences of Practical Nursing Program at St. Louis College of Health Careers (SLCHC) sued SLCHC under the Missouri Merchandising Practices Act (MMPA), alleging unfair and deceptive practices in the representation of its program. 

Appellants’ Petition alleges that SLCHC sold a program as a sixty-hour degree program for practical nursing at SLCHC.  The petition alleges that SLCHC lacked approval to award a degree and could only provide a lesser diploma despite claims to the contrary.  Appellants sought recovery of their tuition, attorney fees and punitive damages.  SLCHC demanded coverage from Hartford but Hartford denied both coverage and a defense on the basis that the petition did not allege any property damage or any covered claim under the insurance policy.  Appellants and SLCHC entered into a Section 537.065 agreement seeking to levy execution only against Hartford.  A bench trial ensued, and the trial court found SLCHC did practice deception and fraud in the inducement and entered a judgment for each Appellant in the aggregate amount of over $1,200,000, with post-judgment interest of 5.13% per annum.

Appellants then brought an equitable garnishment action against Hartford to recover the judgment.  Appellants argued that the award of a diploma rather a degree was a property loss which Hartford denied.  The trial court granted Hartford’s motion for summary judgment which was appealed.

Appellants sole point on appeal is that the trial court erred in granting Hartford’s motion for summary judgment because Hartford had a duty to defend SLCHC.  Appellants argued that SLCHC’s failure to deliver the degree as promised was “property damage” and that the petition related to tuition, which included books and supplies.  Appellants claimed that books and supplies are known or reasonably ascertainable as being necessary to pursue a degree and that the books and supplies were rendered “useless” when SLCHC did not deliver its promised degree to Appellants.  Hartford claimed that there was no property to be damaged since the degree never existed and was never in Appellants’ possession.

The court noted that an insurance company’s duty to defend is broader than its duty to indemnify and that the issue of indemnification must await final resolution in court.

The Missouri Court of Appeals Eastern District determined that the Petition did not allege physical injury to tangible property or the loss of use of tangible property.  The court noted that a monetary loss is not tangible property.  Appellants asserted at oral argument and in their brief that the loss of use of the books and supplies constituted property damage but the record on appeal revealed that such argument was first made on appeal and was not preserved for review.  The policy’s property definition defined “property damage” as physical injury to tangible property, including all resulting loss of use of that property.

In affirming summary judgment for Hartford, the Appellate Court held that the actions of SLCHC, selling and collecting tuition for a non-existent degree are abhorrent but nevertheless, the allegations in Appellants’ petition do not expose Hartford to potential liability under the terms of the insurance policy.  Hartford did not owe a duty to defend SLCHC and the trial court’s granting of summary judgment to Hartford was affirmed.

Insurance Law Alert: It Isn’t Over Until It’s Over

January 4, 2019

Kent Bevan

In Brancati v. Bi-State Development Agency, plaintiff Brancati was injured in 2015 when a metro bus struck her while she was riding her bicycle, breaking both legs and causing permanent pain. Plaintiff filed suit and the trial judge in St. Louis County Circuit Court allowed plaintiff to introduce both her “charged” medical bills of about $77,500 and the “paid or owed” amount of about $40,800. The jury returned a verdict in favor of plaintiff in the amount of $625,000 against Bi-State Development.

In 2005, the Missouri legislature added a provision to the collateral source rule stating that there was a “rebuttable presumption” that the amount plaintiff actually paid for medical care represents the value of that treatment. A 2010 decision from the Missouri Supreme Court however held that both the amount billed, and the amount paid could be submitted to the jury who could then make a decision. A new law went into effect in August 2017, doing away with the “rebuttable presumption” and instead saying that plaintiffs can recover only the “actual cost” of medical care. The Eastern District Court of Appeals however in Brancati noted that there was nothing in the new language that actually bars the amount billed from going to the jury. In Brancati, the Eastern District, Missouri Court of Appeals held that an amendment to the so-called “collateral source” rule does not bar the plaintiffs from introducing the full amount they were billed for medical care, thereby appearing to undermine the purpose of the 2017 bill enacted by the legislature. Counsel for defendant Bi-State Development Agency stated he plans to seek transfer to the Missouri Supreme Court.

Insurance Law Alert: Binder Results in Ambiguity

In Loomis v. State Farm Fire & Casualty Company, Loomis appeals the trial court’s grant of State Farm’s motion for summary judgment, on appellant’s claim that he was entitled to motor vehicle insurance coverage under a temporary binder of insurance issued by State Farm. While residing in Wyoming, appellant submitted a motor vehicle insurance application for his motorcycle with State Farm in 2014, specifically requesting underinsured (UIM) motor vehicle coverage in the amount of $50,000 per person and $100,000 per accident. State Farm stipulated that it issued a temporary binder of insurance coverage subject to its review of the application. While the application was still under review by State Farm, appellant was injured in a motor vehicle accident in Wyoming when another vehicle struck appellant’s motorcycle, causing appellant to sustain injuries.

Insurance Law Alert: When Following Instructions Intersects with Warnings

In Brock v. Dunne, Defendant Ad Litem for Mark Edwards, Deceased, plaintiff filed a petition against his supervisor claiming that the supervisor’s actions of removing a safety guard from a laminating machine and ordering Brock to clean the machine while it was still running without the safety guard, constituted negligence injuring Brock. Brock filed suit but prior to trial, Edwards passed away and the Court substituted a defendant ad litem (“DAL”). A jury found in favor of Brock and an appeal was filed by the DAL.

Insurance Law Alert: Applicability of UIM Coverage

In Seaton v. Shelter Mutual Ins. Co., plaintiffs’ daughter, Chelsea Seaton, was killed in an accident while riding as a passenger driven by Seaton. Plaintiffs settled a wrongful death claim with Seaton’s carrier, American Family Insurance, for policy limits and then sought underinsured motorist coverage from Shelter pursuant to three separate endorsements to her own auto insurance policies. Shelter paid the claim under one policy but denied coverage pursuant to the endorsements to the remaining two policies. Plaintiff filed for declaratory judgment.

Insurance Law Alert: Points on Appeal

In Holdeman, et al v. Stratman, et al, Defendant Stratman’s car died, causing him to come to a complete stop in the center lane of I-435 late at night. He did not turn on his hazard lights. Plaintiff Holdeman was driving behind Mr. Stratman and was able to come to a complete stop behind Stratman’s stalled car. Behind Mr. Holdeman was Defendant Brown, a commercial truck driver hauling a load for C&G Express. Brown saw the tail lights of the Holdeman and Stratman vehicles in front of him but thought that they were in normal traffic. Mr. Brown braked but was unable to stop and collided with Mr. Holdeman’s car causing him to suffer injuries to his spine and rendering him a paraplegic. Following a jury trial, Plaintiff Holdeman was found 1% at fault, Stratman 99% at fault, and Brown and C&G Express, where vicarious liability was claimed, 0% at fault. There were five issues on appeal to the Missouri Court of Appeals Western District.

Insurance Law Alert: Distinguishing “Use” and “Operation”

In Griffitts v. Old Republic Ins. Co., et al, Appellant Griffitts was rear-ended by Campbell, an employee of BNSF Railway Company (“BNSF”) in Springfield, Missouri. Campbell was driving a BNSF company vehicle and was intoxicated at the time of the collision. Numerous lawsuits followed, including one which is the focus of the Missouri Supreme Court’s en banc opinion. That particular case involved an equitable garnishment action that Griffitts filed against BNSF and its insurer, Old Republic, to collect an unsatisfied $1.4 million judgment entered against Campbell in an earlier action. Griffitts filed the equitable garnishment suit claiming Campbell to be a permissive user under the omnibus clause of the Old Republic policy issued to BNSF.

Insurance Law Alert: Insurer Intervention Under Section 537.065 Agreements

In 2014, Dr. Neil Desai alleged that he sustained personal injury while being escorted from a Garcia Empire establishment by a Garcia Empire employee. Seneca Specialty Insurance Company (“Seneca”) offered to defend the club’s operator, Garcia Empire, LLC (“Garcia”) but would not commit to paying any resulting judgment.

Insurance Law Alert – Poor Construction Does Not an Occurrence Make

In The View Homeowner’s Association v. The Burlington Ins. Co., The View, LLC (“View”) is an LLC, which owned a building in Kansas City, Missouri originally built for use as residential living during the 1960s but which had been vacant for many years. The View entered into a contract with Planned Industrial Expansion Authority of Kansas City (“PIEA”) to remedy the blighted condition of the property by developing it into condominium units. In 2005, the View filed declarations of restrictions under the provisions of the Missouri Uniform Condominium Act (“MUCA”), and began selling condominium units for residential use.

Insurance Law Alert: Choice of Laws Conundrum

In Forsman v. Burgess and Empire Fire & Marine Ins. Co., Forsman and Burgess appealed from a summary judgment entered in favor of Empire Fire & Marine Insurance Company (“Empire”), contending that the circuit court in Missouri erred in applying Kansas law to deny their claim under an auto insurance policy.

Insurance Law Alert: To Stack or Not to Stack – That is the Question

In Marrs v. American Family Mutual Ins. Company, plaintiff (Marrs) appealed from a summary judgment granted to American Family Mutual Insurance Company (“AFI”) that denied plaintiff’s request to stack underinsured motorist (“UIM”) coverage in five AFI policies. Plaintiff requested to stack the UIM coverages based on alleged ambiguities in the anti-stacking provisions and the definition of a UIM motor vehicle.

Insurance Law Alert: Examining the Nuts and Bolts of the Case

In Electric Power Systems International, Inc. v. Zurich American Ins. Co., Electric Powers Systems Int’l (“EPS”) appealed the district court’s grant of summary judgment to Zurich, asserting that the trial court erred in concluding that the CGL policy issued by Zurich did not provide coverage for damage EPS caused to an electrical transformer while working on it.

Insurance Law Alert: Reverse Retroactive Date Exclusion Applied

In Hazelwood Logistics Center, LLC v. Illinois Union Insurance Company, Hazelwood appealed a decision on a claim under a premises pollution liability (PPL) policy with respondent Illinois Union for payment of remediation costs for methane contamination at a landfill site. The PPL policy had a “reverse retroactive date provision” contained in an endorsement to the policy which provided, in part, that respondent insurer’s agreement to pay for remediation costs arising out of pollution conditions only applies to pollution conditions that first commence on or before a certain date, June 7, 2006.

Insurance Law Alert: Supreme Court Clears the Air

In Doe Run Resources Corp. v. American Guarantee & Liability Ins. and Lexington Ins. Co., et al, the insured, Doe Run, was sued by several minors alleging injuries caused by toxic pollution released from Doe Run’s smelting facility in Peru. Doe Run sued its insurance company for reimbursement of defense costs incurred during the litigation of these claims. The insurer denied it had any duty to defend Doe Run, claiming coverage was barred under the insurance policy’s pollution exclusion. The trial court entered summary judgment in favor of Doe Run finding the exclusion to be ambiguous and unenforceable. The insurer appealed.

Insurance Law Alert: Documentation Held Lacking

In Aziz v. Allstate Insurance Company, a fire damaged the house of Azim and Kina Aziz (“Insureds” or “Plaintiffs”). Allstate denied their homeowner’s insurance claim and the Plaintiffs sued for coverage. The case was tried in federal district court in Missouri and at the close of Plaintiffs’ evidence, the district court granted Allstate’s Motion for Judgment as a matter of law.

Transportation Law Alert: FMCSA Expands its Drug Testing Panel Effective Jan. 1, 2018

Beginning on January 1, 2018, the Federal Motor Carrier Safety Administration will add opioids to its 5-panel drug test. This new rule comes during a U.S. Opioid Epidemic.

Insurance Law Alert: Water Woes

In Davies v. Barton Mutual Ins. Co., the homeowners purchased and moved into a new house. Shortly after moving in, they noticed water accumulating in the lower level.

Insurance Law Alert: Insurer Acts Reasonably & In Good Time

In Olga Despotis Trust v. The Cincinnati Insurance Company, a tornado destroyed a building leased as a medical imaging facility in Missouri, owned by the Trust and insured by The Cincinnati Insurance Company (CIC).

Insurance Law Alert: Football Practice

In Elias v. Davis & Edwards, Elias, a 16-year-old high school student in the North Kansas City Missouri School District played varsity football. Edwards and Davis were coaches. In October, 2010, the two coaches decided to have a full-grown adult dress out in full football gear including helmet and padding to engage in a full contact live scrimmage with the teenaged members of the high school football team.

Insurance Law Alert: Medical Malpractice Case of First Impression – Withdrawal Instruction

In Wilson v. P.B. Patel, MD., P. C., et al, Plaintiff Wilson brought a medical malpractice lawsuit a doctor and his practice group. Plaintiff appealed a verdict in favor of the Defendants alleging that the trial court abused its discretion by refusing to give a proposed withdrawal jury instruction regarding her alleged informed consent to the medical procedure.

Insurance Law Alert: “Acceptance” Means Exactly That

In Wilson v. Dura-Seal and Stripe, Inc., a school district hired Dura-Seal on an oral contract to construct an asphalt overlay of a drive lane near the auditorium of one of the district’s schools.

Insurance Law Alert: Ambiguous Terms Favor the Insured

In Maher Brothers, Inc. (Appellant) v. Quinn Pork, LLC (Quinn) and State Farm Insurance Company (State Farm), Appellant contracted with Quinn for daily care and management of Appellant’s pigs placed in Quinn’s facility.

Insurance Law Alert: Status Check

In Clayborne v. Enterprise Leasing Co. of St. Louis, et al, Carlus Parker (Appellant) rented a Ford Escape from Enterprise under a written rental agreement, declining to purchase insurance coverage from Enterprise and declining an option to purchase supplemental liability protection, which would have included excess insurance from a third party insurance company.

Insurance Law Alert: New Law on Expert Witness Testimony in Missouri

Missouri Governor Eric Greitens signed into law in late March a bill which will take effect August 28th in Missouri state courts.

Insurance Law Alert: Read Carefully Before Applying

In Owners Insurance Company v. Parkinson, et al., a car dealership provided a Ford Taurus as a loner car to an individual for use as a temporary vehicle while his vehicle was undergoing repairs. Later, the son of the individual to whom the car was loaned was driving the Taurus and was involved in a wreck. Several people in the other vehicle were injured and one individual died as a result of injuries sustained. The driver of the loaner car was determined to be at fault. Two passengers in the Taurus were also injured.

Insurance Law Alert: Can Labor Costs be Depreciated? Round II

The issue in Riggins v. American Family Mutual Ins. Co. centered around the carrier’s decision to depreciate labor costs to a covered claim for storm damage to the insured’s residence.

Insurance Law Alert: Garnishment Under Analysis

In Franklin Allen v. Wayne Bryers, plaintiff Allen was injured in 2012 when defendant Bryers’ handgun discharged while removing Allen from an apartment complex. The gunshot severed Allen’s spinal cord, rendering him paraplegic. Bryers was never charged with any crime in connection with this incident. Allen sued Bryers and the apartment building for negligence in Circuit Court.

Insurance Law Alert: Did the Insureds Misrepresent the Claim?

In Neidenbach v. Amica Mutual Ins. Co., the Neidenbachs alleged that a fire caused significant damage to their house and personal property. They contend the insurance company refused to pay the claim whereas Amica concluded that the policy was void because of material misrepresentations made during the claim process.

Insurance Law Alert: Duty to Defend – Proceed with Caution

In the Doe Run Resources Corporation v. St. Paul Fire & Marine, et al., St. Paul appealed a trial court judgment which found that St. Paul had the duty to defend Doe Run in toxic tort lawsuits that underlie the appeal.

Insurance Law Alert: Prompt Notice of Loss

In the case of Church Mutual Insurance Company v. Pleasant Green Missionary Baptist Church, Pleasant Green owned a building located in St. Louis, and had an insurance policy on the building through Church Mutual which contained a cancellation and non-renewal clause as well as exclusions for concealment, misrepresentation or fraud. The policy also contained an exclusion for “wear and tear,” continuous or repeated seepage or leakage of water that occur over a period of 14 days or more, and exclusions for faulty, inadequate or defective design or construction.

Insurance Law Alert: Can Labor Costs Be Depreciated?

In Boss v. Traveler’s Home & Marine Insurance Co., the policy holder filed a claim with his homeowner’s insurance company for hail damage to the roof, gutters and deck of his house. Coverage was not in dispute.

FURTHER UPDATE: Major Changes to the Uniform Straight Bill of Lading under the NMFC

As we noted in our Transportation Law News Alerts on August 1 and 2, the National Motor Freight Traffic Association (NMFTA) made major changes to the Uniform Straight Bill of Lading (USBOL) terms and conditions as published in the National Motor Freight Classification (NMFC) and the related rules in NMFC Item 360-B. The changes are contained in Supplement 2 to NMFC 100-AP effective August 13, 2016.

Insurance Law Alert: Condominium Association Prevails in Suit for Breach of Contract and Negligence

In Hazelcrest III Condominium Association v. Bent, Hazelcrest obtained a judgment for breach of contract and negligence against the defendant in a case stemming from sewage backup that damaged two condominium units within the plaintiff’s complex.

UPDATE: Major Changes to the Uniform Straight Bill of Lading Effective Aug. 13, 2016

In addition to the changes to the NMFC Uniform Straight Bill of Lading noted in our Transportation Law News Alert on August 1, 2016, the NMFTA has also revised other provisions of the bill of lading terms and conditions.

Transportation Law News Alert: Major Changes to the Uniform Straight Bill of Lading Effective Aug. 13, 2016

The National Motor Freight Traffic Association has just made substantial changes to the terms and conditions of the Uniform Straight Bill of Lading to be effective on August 13, 2016. On July 14, 2016 the NMFTA issued Supplement 2 to the National Motor Freight Classification NMFC 100-AP. The key changes directly affect claims against trucking companies for lost or damaged cargo.

Insurance Law Alert: Property Damage Occurred at Time of Purchase and Installation – Not When Damages Made Manifest

In Kretsinger Real Estate Co. et al. v. Amerisure Ins. Co., American Central Transport Inc. (ACT) planned to build a parking lot in Clay County, Missouri. Kretsinger and ACT hired Triad Construction to construct the parking lot. Triad subcontracted with City Cement to supply labor and material. City Cement purchased concrete from Fordyce Concrete. Construction was completed in February 2007. In May 2008, Kretsinger and ACT became aware that the parking lot was beginning to crumble, crack and deteriorate.

Insurance Law Alert: Misrepresentations Void Coverage

In Neidenbach v. Amica Mutual Insurance Company, Dale and Kim Neidenbach filed a claim with their insurance company arising out of a fire in 2012. They that alleged they sustained a total loss to their home and personal belongings. The claim sought damages of approximately $375,000.00 to the dwelling and garage and personal property losses of approximately $262,500.00. Following this fire, Amica advanced the insureds a prepaid Visa card with $10,000.00 credit and also a check for $5,000.00, both for emergency expenses. Amica also expended money and resources for the investigation, adjustment, and evaluation of the insureds’ claim.

Insurance Law Alert: No Renovation Equates To No Payment Due By Insurer

In Park Reserve, LLC vs. Peerless Insurance Company, Peerless filed a motion for partial summary judgment arguing that a builder’s risk insurance policy issued to plaintiff did not provide coverage based on its clear and unambiguous terms.

Insurance Law Alert: Spring Has Sprung (Almost)

In Great Plains Ventures, Inc. v. Liberty Mutual Insurance, the plaintiff owned several manufacturing companies. Liberty Mutual issued an insurance policy on Great Plains Ventures (GPV)’s covered buildings and other property located in Wichita, Kansas.

Insurance Law Alert: MO Court of Appeals Addresses Coverage in Multiple Policies in Death and Injury Claims

In Shelter Insurance Company v. Vasseur, et al, Shelter appealed from the trial court’s judgment against Shelter in a declaratory judgment matter, raising six points on appeal.

Insurance Law Alert: Declaratory Judgment Denying Coverage in Suicide Attempt Following Fire

In Roller v. American Modern Home Insurance Company, the insureds appealed the trial court’s declaratory judgment denying coverage for property damage to the Rollers’ garage caused by a fire started by Mr. Roller in a suicide attempt.

Insurance Law Alert: Duty to Defend in Missouri Regarding Negligent Supervision Allegations

In American Family Mutual Insurance Company v. Parnell, et al., the insurer appealed the Circuit Court’s grant of summary judgment in favor of M.S., a minor, by and through her next friend and mother. The trial court determined that two homeowner insurance policies issued to the Parnells provided coverage for M.S.’s claim of negligent supervision against the Parnells. On appeal, the insurer contended that the two exclusions applied to bar coverage and the concurrent proximate cause rule was not applicable.

Insurance Law Alert: Kansas Supreme Court Rules on Children’s Disinheritance, Suspicious Circumstances

Here is a case recently decided by the Kansas Supreme Court regarding two adult children’s disinheritance from their father’s will. They claimed that they were disinherited as a result of the inappropriate machinations of their stepmother and her daughter’s boyfriend, and that this meant they should keep their inheritance. The district court agreed, the Court of Appeals reversed that decision, and then the Supreme Court reversed the Court of Appeals.

Transportation Alert: SAFE HAUL

On Friday, July 19, 2013, Representative Matt Cartwright (D-Penn) introduced House Bill 2730 which would raise the required insurance minimum for motor carriers.

Transportation Alert: Flying J Class Action Settlement

Please be aware that if you purchased fuel from a Pilot Flying J Travel Center, you may be eligible to participate in a class action lawsuit.


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