American Economy Ins. Co. v. Ledbetter

• Citation: 903 S.W.2d 272
• Decision Date: 25 July 1995
• Docket Number: No. 20169,20169
• Parties: AMERICAN ECONOMY INSURANCE COMPANY, Plaintiff-Appellant, v. Trena LEDBETTER, Jeremy D. Ledbetter, Stacy Yvonne Ledbetter and Colonial Insurance Co. of California, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 272

903 S.W.2d 272

AMERICAN ECONOMY INSURANCE COMPANY, Plaintiff-Appellant, v. Trena LEDBETTER, Jeremy D. Ledbetter, Stacy Yvonne Ledbetter and Colonial Insurance Co. of California Defendants-Respondents.

No. 20169.

Missouri Court of Appeals,

Southern District,

Division Two.

July 25, 1995.

A.M. Spradling III, Spradling & Spradling, Cape Girardeau, for plaintiff-appellant.

Michael B. Hazel, Hazel & Ford, W. Edward Reeves, Ward & Reeves, Caruthersville, for defendants-respondents Ledbetters.

John M. Beaton, Barbara A. Godley, Welman, Beaton, Hively & Godley, Kennett, for defendant-respondent Colonial Ins.

SHRUM, Chief Judge.

This is an appeal by plaintiff American Economy Insurance Company (Economy) from a declaratory judgment. The dispositive issue is whether Economy had standing to bring the suit. We answer, "No."

Another question is whether the trial court abused its discretion in making an award of attorney fees to some of the defendants-respondents. Again, we answer, "No." We affirm.

On August 9, 1990, Michael Davis was driving a 1984 Mercury Cougar automobile when, in an attempt to pass another vehicle, he crossed the centerline and collided with a vehicle operated by Lanny Ledbetter. Both drivers died from injuries received in the accident. Ledbetter was survived by his spouse, Trena, and children, Jeremy D. and Stacy Yvonne Ledbetter.

Economy insured the vehicle operated by Lanny Ledbetter. That policy contained uninsured/underinsured motorist coverage.

Before the accident, Davis purchased automobile liability from Colonial Insurance Co. of California (Colonial). That policy originally insured a 1982 Chevrolet Camaro and provided a $25,000 bodily injury liability coverage. However, in June 1990, Davis traded the Camaro for the 1984 Mercury involved in the August 1990 accident. Because Davis allegedly failed to notify Colonial about the replacement vehicle, Colonial questioned coverage.

Nevertheless, in the fall of 1990 Colonial paid $1,000 to the estate of Michael Davis on a medical benefit under the policy, paid Trena Ledbetter the value of the Ledbetter vehicle as a property damage liability benefit under Michael Davis's policy, and agreed with the Ledbetters to pay them the $25,000 policy limit for bodily injury, subject to approval of the settlement by the circuit court. However, as the Ledbetters awaited court approval of the settlement via a friendly suit, Colonial withdrew its offer of settlement. ¹

After Colonial withdrew its settlement offer, Economy brought this declaratory judgment action in two counts. It named Colonial and the three surviving members of the Ledbetter family as defendants. No one was named as a party to act in a representative capacity for the decedent Michael Davis.

In Count I, Economy asked the trial court to declare that Colonial's policy did "furnish insurance coverage to ... Davis with reference" to the Ledbetter family's claims. Continuing, Economy sought a declaration that Colonial, by agreeing to settle for their policy limits, "waived any claim it may have had to lack of coverage and should be estopped to deny such coverage."

In Count II, Economy asked the trial court to declare that its liability to the Ledbetters be reduced by $25,000, the amount of coverage it claims should be extended to Davis by Colonial's policy. ²

In part, Colonial answered by a pleading affirmatively that Economy "has no standing to assert any waiver or estoppel between ... Colonial and its insured [Michael Davis]...."

Following a nonjury trial the trial court entered judgment contrary to Economy on all its requests. Included was this finding:

"The Court finds that Economy has no standing to allege waiver and estoppel under these circumstances. St. Paul Fire and Marine v. Med. [Protective] Co., 675 S.W.2d 665 (Mo.App.1984)."

Also, in each of the two counts the trial court ordered Economy to pay $2,500 to the Ledbetters as part of their attorney fees expense. Economy appeals. We affirm.

In Point IV, Economy contends that the trial court erred when it found that Economy lacked "standing" to bring this declaratory judgment action. Economy says--correctly so--that standing for a declaratory judgment action requires a legally protectable interest, Schweig v. City of St. Louis, 569 S.W.2d 215, 223 (Mo.App.1978), which means a " 'pecuniary or personal interest directly in issue or jeopardy which is subject to some consequential relief, either immediate or prospective.' " City of Jackson v. Heritage Savings & Loan Ass'n, 639 S.W.2d 142, 144 (Mo.App.1982). See Absher v. Cooper, 495 S.W.2d 696, 698 (Mo.App.1973). Continuing, Economy argues that it "obviously has a pecuniary interest directly at issue or in jeopardy in this case," i.e., $25,000, the balance of Economy's uninsured motorist coverage that Economy presumably will pay the Ledbetters if Colonial's denial of coverage to Davis is left unchallenged.

"Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court...." Black's Law Dictionary 1405 (6th ed. 1990) (citing State ex rel. Cartwright v. Oklahoma Tax Com'n, 653 P.2d 1230, 1232 (Okla.1982)). A "justiciable controversy" is a necessary element in a declaratory judgment action. Witty v. State Farm Mutual Automobile Insurance Co., 854 S.W.2d 836, 838 (Mo.App.1993).

To support its claim of standing, Economy cites several cases on the subject, each of which is factually distinguishable or, for other reasons, does not support Economy's position. ³ Moreover, Economy has not distinguished this case from the holding and rationale of St. Paul, 675 S.W.2d 665, the case relied on by the trial court. Analysis shows St. Paul to be strikingly similar to this case, so much so that we deem the ruling in St. Paul as controlling this case.

In St. Paul, a physician (Dennis Hite) had in force two separate policies of insurance, one issued by plaintiff St. Paul (Personal Liability Catastrophe Policy) and another by defendant Medical Protective (malpractice policy). Id. at 666-67. When another physician sued Hite for defamation, St. Paul filed a declaratory judgment suit against Medical Protective. By its suit, St. Paul sought an interpretation of Medical Protective's medical malpractice policy. Id. at 666. Specifically, St. Paul alleged that the St. Paul policy was excess insurance over and above coverage afforded by Medical Protective's malpractice policy. Id. at 666-67. Hite was not made a party to the declaratory judgment suit. Id. at 667. The trial court in St. Paul addressed the merits, found no coverage under Medical Protective's policy, and granted summary judgment to Medical Protective. Id. at 666.

On appeal, the Eastern District found that St. Paul lacked standing under the Declaratory Judgment Act to request the court to interpret the contract of insurance purchased by Hite from defendant Medical Protective. The court said:

"Plaintiff St. Paul was not a party to the Medical Protective policy. Nor is it a third-party beneficiary who could enforce defendant's medical malpractice contract. No authority has been cited to this court and we find none which would authorize or grant standing to seek a declaration of rights under a contract to one who is not a party and who has no right to enforce the contract. In Hardware Center, Inc. v. Parkedge Corp., 618 S.W.2d 689, 694-695 (Mo.App.1981) we held that the provisions of our Declaratory Judgment Act do not extend standing to a party nor enlarge the jurisdiction of the court over subject matter or parties. 'It merely opens the doors for the court to certain potential defendants or plaintiffs at a stage prior to that justifying an action for other traditional relief. (citations omitted).' Id. at 694. We there concluded that the Act does not grant standing to a stranger to the contract to be construed."

Id. at 667 (emphasis ours).

In St. Paul, the plaintiff sought a declaration as to whether its insured was entitled to coverage from another company and, if so, which coverage was primary and which excess. Here, Economy seeks a determination of whether there is coverage under a contract to which Economy is a complete stranger, i.e., the Colonial-Davis policy and, if so, whether Economy was entitled to a set-off equal to the Colonial policy limits. The cases are analogous. As in St. Paul, here, Economy is not a party to the Colonial-Davis insurance contract nor is it a third-party beneficiary that can enforce the policy. Moreover, Economy's petition does not allege that Davis or anyone acting on his behalf claimed there was coverage under the Colonial policy or tendered the defense of the underlying action to Colonial. See State Farm Fire and Casualty Co. v. Alberici, 852 S.W.2d 388, 389 (Mo.App.1993). Nor is there an allegation that Davis (or his legal representative) disagrees with Colonial's interpretation of noncoverage. See Id. Without such allegations the petition does not allege facts showing a justiciable controversy between Davis and Colonial; hence, Economy has failed to demonstrate standing. Id. See also Witty, 854 S.W.2d at 838-39.

On the authority of St. Paul, Alberici, and Witty, we agree with the trial court's finding on the standing issue. We hold that under the circumstances, Economy had no standing under the Declaratory Judgment Act to request a declaration of whether coverage existed for Michael Davis under the policy he purchased from defendant Colonial. Point IV is rejected.

Although none of the parties to this appeal has raised the question of nonjoinder of Davis or his legal representative as a party, we raise it on our own motion. ⁴ The petition raises matters in which Davis (or his legal representative) has an interest which would be affected by the declaration. Witty, 854 S.W.2d at 842. It is no answer to say that his rights would not be prejudiced by the declaration. Id. We need not lengthen this opinion...