Ainsworth v. Old Sec. Life Ins. Co., WD

• Decision Date: 23 July 1985
• Docket Number: No. WD,WD
• Citation: 694 S.W.2d 838
• Parties: C. Donald AINSWORTH, Director Division of Insurance, Department of Consumer Affairs, Regulation and Licensing, State of Missouri, and Successor-Receiver, Plaintiff-Respondent, v. OLD SECURITY LIFE INSURANCE COMPANY, Defendant, and ISC Financial Corporation, Intervenor-Appellant. 36341.
• Court: Missouri Court of Appeals

Page 838

694 S.W.2d 838

C. Donald AINSWORTH, Director Division of Insurance Department of Consumer Affairs, Regulation and Licensing, State of Missouri, and Successor-Receiver, Plaintiff-Respondent, v. OLD SECURITY LIFE INSURANCE COMPANY, Defendant and ISC Financial Corporation, Intervenor-Appellant.

No. WD 36341.

Missouri Court of Appeals Western District.

July 23, 1985.

Gene A. DeLeve, Jerald S. Enslein, Solbert M. Wasserstrom, Kansas City, for intervenor-appellant.

Richard H. Brown, Kansas City, for plaintiff-respondent.

Before BERREY, P.J., and DIXON and KENNEDY, JJ.

KENNEDY, Judge.

This is an appeal by ISC Financial Corporation from an order of the Circuit Court of Cole County denying its motion for leave to intervene in a proceeding whereby Robert A. Sniezek sought to establish a right to claim additional compensation for services rendered by him to the receiver for the defunct Old Security Life Insurance Company, and from orders refusing to strike and to dismiss, respectively, respondent Sniezek's "Motion for Declaratory Judgment". A birds-eye history of the receivership may be found in State ex rel. ISC Financial Corp. v. Kinder, 684 S.W.2d 910 (Mo.App.1985), and Ainsworth v. Old Security Life Insurance Co., 685 S.W.2d 583 (Mo.App.1985). ISC Financial Corporation is the sole stockholder of Old Security Life Insurance Company. The legal status of the Old Security Life Insurance Company as a corporate entity is lost in the mists, but the receiver and the trial court have treated ISC as standing in the place and stead of Old Security. The receiver, the trial court and ISC have assumed that ISC is entitled to receive directly the assets of Old Security as and when the same are distributed. This court will do the same.

The history of the Sniezek claim against the receiver for additional compensation is as follows:

The trial court on November 4, 1977, at or near the beginning of the receivership, entered an order approving the appointment of Mr. Sniezek by the receiver as attorney for the receiver, at a rate of $40 per hour plus expenses. The services had apparently commenced on October 14, 1977. Mr. Sniezek's services were rendered from that date until October, 1982, when they were terminated. Mr. Sniezek had been paid $644,661.50 through October 8, 1982. (The hourly compensation rate had been raised from $40 to $50 during this period, and later from $50 to $60.)

On July 27, 1983, Mr. Sniezek filed an "application for final compensation" in which he sought an additional sum of $884,670.88. The receiver appointed Mr. Michael Maher to represent him in defending against the Sniezek application for additional compensation, which appointment was approved by the court. ISC acting under an "interested party" status conferred upon it by an earlier court order, see Ainsworth, 685 S.W.2d at 587, n. 1, entered its appearance in the claim for additional compensation. Sniezek then dismissed the claim for additional compensation and filed what is designated a "Motion for Declaratory Judgment". The motion seeks the court's determination whether there is an "arrangement, contract or understanding" between himself and the Director that would allow Mr. Sniezek to petition for additional compensation.

This was followed on April 26, 1984, by an "application for final compensation". This application sought additional compensation of $926,782.63, which included in addition to the service from October 14, 1977, to October 8, 1982, services as "transition attorney" from the latter date through December 30, 1983.

ISC filed motions to strike Sniezek's "Motion for Declaratory Judgment" and to dismiss the same, and filed an answer and a counterclaim thereto. From the legal file we have before us, there has apparently been no challenge to ISC's standing to file any of such pleadings or motions. ISC, however, served notice to take Mr. Sniezek's deposition. This was resisted by Sniezek on two grounds, one such ground being that "Robert A. Sniezek has already had his deposition taken on October 19, 1983", and the other such ground being that "ISC Financial Corporation is not a party to the above-captioned cause of action". He cited in support of the second ground an earlier order of court which had denied an application of ISC to intervene in the receivership but which had designated it as an "interested party" for certain purposes.

At this point ISC filed its application to intervene in the "Motion for Declaratory Judgment" and the application for additional compensation. After a hearing, the trial court in due time denied the motion for leave to intervene and it is from this order of denial that ISC now appeals. (At the same time the trial court sustained Sniezek's motion to quash deposition notice and for protective order.)

ISC undertakes to appeal also from the trial court's order overruling its motion to dismiss and to strike, respectively, the Sniezek "Motion for Declaratory Judgment". Putting aside ISC's standing to appeal those orders--it is not yet a party to the proceeding--the order is not an appealable order. Section 512.020, RSMo 1978; State ex rel. Shackleford v. McElhinney, 241 Mo. 592, 145 S.W. 1139 (banc 1912); Morrison v. Estate of Martin, 427 S.W.2d 783 (Mo.App.1968). That portion of the appeal must be dismissed.

We hold that the trial court was in error in denying ISC's motion for leave to intervene in the case; ISC was entitled as a matter of right under Rule 52.12(a) ¹ to intervene as a party.

There is no doubt that ISC has a direct and immediate interest in the "property or transaction which is the subject of the action". If Mr. Sniezek is successful in his claim for additional compensation, the fund ultimately coming to ISC will be depleted by that amount.

The respondent Sniezek ² points out that theoretically, if ISC's interest is held to support intervention, an insurance company in receivership, and each of its stockholders, would have an interest in resisting every claim of any sort made against the assets in the hands of the receiver, and that every creditor of an insolvent insurance company would have an interest in resisting every other claim, in order to maximize its own ultimate recovery. Not every such remote interest will support intervention; chaos would result. See, e.g., Weese v. Marengo, 469 S.W.2d 873 (Mo.App.1971). The interest of the applicant for intervention must be immediate and direct. ISC's interest is of that character. It has now become clear that there will be a very substantial sum, in the vicinity of $20,000,000, for distribution after the payment of all claims and administrative expenses. That sum, whatever its amount, will go to ISC. It is the only beneficial owner of the fund....