Arch Ins. Co. v. Progressive Cas. Ins. Co.

• Decision Date: 22 September 2009
• Docket Number: No. WD 69805.,WD 69805.
• Citation: 294 S.W.3d 520
• Parties: ARCH INSURANCE COMPANY, Appellant, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent.
• Court: Missouri Court of Appeals

294 S.W.3d 520

ARCH INSURANCE COMPANY, Appellant, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent.

No. WD 69805.

Missouri Court of Appeals, Western District.

September 22, 2009.

James C. Wirken, Esq., Kansas City, Mo, for appellant.

Daniel N. Allmayer, Esq., Kansas City, MO, for respondent.

Before ALOK AHUJA, P.J., THOMAS H. NEWTON, C.J., and HAROLD L. LOWENSTEIN, SR. J.

ALOK AHUJA, Judge.

Arch Insurance Company appeals the circuit court's grant of summary judgment to Progressive Casualty Insurance Company on Arch's breach of contract claim. We dismiss the appeal.

Factual Background

In 2003, Jermaine Taylor's automobile was damaged. Taylor had financed the purchase of this vehicle through Centrix Financial, which held a lien on Taylor's car.¹

Taylor obtained automobile insurance from Progressive that covered not only Taylor, but also Centrix as a loss payee.² Prior to the accident, Taylor failed to make his required premium payments, and Progressive accordingly sought to cancel the Policy.

The Policy provided that it could be canceled "by mailing at least 10 days notice to the named insured shown in the Declarations at the address shown on this Policy." "Proof of mailing of any notice shall be sufficient proof of notice." Under the Policy, Progressive agreed that it "will give the same advance notice of cancellation to the loss payee as we give to the named insured shown in the declarations."

After the car accident occurred, Centrix made demand on Progressive for payment under the Policy. Progressive refused on the basis that the Policy had been canceled. Centrix also had its own "blanket" insurance with Arch. After Progressive refused Centrix's demand, Arch paid Centrix for its loss on Taylor's car.

On December 3, 2003, Arch filed suit against Progressive, asserting (as Centrix's subrogee) that Progressive had failed to timely notify Centrix of the impending cancellation of the Policy, that the Policy accordingly remained in force at the time of Taylor's accident, and that Progressive was therefore liable for the resulting loss.

Arch and Progressive filed cross-motions for summary judgment. Progressive's motion argued that it had provided notice to Centrix of Progressive's intent to cancel the Policy by mailing notice to Centrix on or about September 13, 2002. Progressive supported its motion for summary judgment with an affidavit of an employee of Electronic Data Systems Corporation ("EDS"), a third party which provided administrative services to Progressive, and with business records; Progressive contended that these documents demonstrated that a cancellation notice was in fact mailed to Centrix ten days prior to the Policy's cancellation. In its summary judgment briefing, Arch submitted its own affidavit stating that Centrix never received any cancellation notice from Progressive.

The circuit court granted Progressive's motion. The court found that "Progressive mailed Notice of Intent to Cancel to Jermaine Taylor's lien holder, Credit Union of Texas, at least ten (10) days before the cancellation date." Therefore, the circuit court concluded that Arch "has no cause of action against" Progressive because Arch only had a "cause of action if its insured, the lien holder on the vehicle, was not provided notice of the intent to cancel as set forth in the terms of the policy."

This appeal follows.

Analysis

We conclude that Arch's opening appellate Brief fails to adequately present any argument that could justify reversal, and that its appeal should accordingly be dismissed.³

I.

"Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made." Bridges v. Am. Family Mut. Ins. Co., 146 S.W.3d 456, 458 (Mo.App. W.D. 2004). "While it is never this court's preference to dismiss an appeal without reaching the merits, enforcing compliance with Rule 84.04 . . . guards against the issuance of precedential decisions on issues which were not subject to a full adversarial presentation." Rainey v. SSPS, Inc., 259 S.W.3d 603, 605 (Mo.App. W.D.2008).

Rule 84.04(d)(1) requires that each Point Relied On shall "(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant's claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error."

Arch's opening Brief asserts two interrelated Points Relied On:

[1] The trial court erred in granting the Respondent Progressive's Motion for Summary Judgment because the Trial Court improperly applied the known and stipulated facts of the case to its ruling, in that the Trial Court refused to consider all known facts and evidence in ruling in favor of the Respondent's Motion for Summary Judgment.

[2] The Trial Court erred in refusing to grant Appellant Arch's Motion for Summary Judgment and instead granting the Respondent Progressive's Motion for Summary Judgment, resulting in the Plaintiff's case being dismissed with prejudice, because the Respondent Progressive, as stated in their own Policy of Insurance, had a clear duty to notify the insured as well as the coinsureds, or loss payee, of any cancellation or termination of the insured's policy.

A strong argument could be made that the deficiencies in Arch's Points Relied On, standing alone, justify dismissal. Neither Point Relied On "identif[ies] or explain[s] the specific legal reasons that support the claim of reversible error," and therefore they arguably "preserve[] nothing for appellate review." White v. White, 293 S.W.3d 1, 13 (Mo.App. W.D.2009)(citing Landwehr v. Landwehr, 129 S.W.3d 395, 398 (Mo.App. W.D.2004)). The dispositive issue here is whether Centrix received proper notice of Progressive's intent to cancel the Policy. However, neither of Arch's Points Relied On challenges the basis on which the circuit court ruled in Progressive's favor on this issue. Point One says virtually nothing of substance when it argues that the circuit court "improperly applied" and "refused to consider" "all known facts and evidence" in ruling in Progressive's favor; and Point Two merely refers to Progressive's general duty to notify any loss payee of the Policy's cancellation, a duty which does not even appear to be in issue.

From our perspective, however, the more significant defect in Arch's Brief is that its Argument section, which consists of four double-spaced pages addressing both Points, fails to acknowledge the evidence on which the trial court relied in making its adverse ruling. Arch's Argument proceeds on the assumption that "while Respondent Progressive was able to provide proof of mailing to the primary insured, absolutely no proof of mailing to the loss payee has ever been provided by Respondent Progressive." (Emphasis added.) Arch repeats this claim multiple times in its short Argument, claiming that Progressive "has no proof of any attempt to notify the co-insured of such cancellation," and that "[i]t is undisputed that Respondent Progressive only provided notice of cancellation to the insured Borrower . . ., and did not provide any notice of any kind of cancellation to the loss payee Bank." (Emphasis added.)

These assertions are simply not accurate. As previously stated, Progressive did in fact submit an affidavit and supporting documents to show that timely notice had been provided to the lien-holder. Arch's Brief does not even acknowledge Progressive's summary judgment proof, much less set forth any argument that a genuine issue exists despite Progressive's evidentiary showing (by arguing, for example, that Progressive's evidence was inadequate or insufficient as a matter of law, or that Centrix's claimed non-receipt of Progressive's notice created a fact issue even if Progressive had adequately proven mailing).

Ignoring the evidence on which the trial court relied is not an argument that such reliance constituted reversible error.⁴ "While it may not be stated explicitly in Rule 84.04, the fundamental requirement for an appellate argument is that it demonstrate the erroneousness of the basis upon which a lower court or agency issued an adverse ruling." Rainey, 259 S.W.3d at 606. "Unless an appellant challenges the grounds on which an adverse ruling depends, he has shown no entitlement to appellate relief." Id.⁵

Because of the patent deficiencies in Arch's Points Relied On and Argument, we dismiss its appeal.

II.

The dissent suggests that Progressive's summary-judgment evidence was insufficient to establish that Progressive provided Centrix with notice of its intent to cancel Taylor's policy. As we have explained above, however, Arch failed to present these arguments in compliance with Rule 84.04; indeed, its opening Brief did not even acknowledge the existence of Progressive's summary judgment proof. If the resolution of this issue were free from doubt, it is conceivable that the defects in Arch's briefing could be ignored, consistent with our long-stated preference for resolving appeals on their merits. This is not such a case, however.

First, the EDS affidavit on which Progressive relied would appear to be sufficient to establish mailing of notice of cancellation to the lienholder, since it states that the lienholder notice in this case was "mailed by first class mail . . . on or about September 13, 2002," and attached and authenticated business records which support the assertion that a particular notice, to this particular lienholder, was in fact mailed on either September 13 or 14, 2002. Even if that affidavit merely established Progressive/EDS's policy and practice to mail notices of cancellation to lienholders simultaneously with mailing such notices to its insureds, it might nevertheless be sufficient. In Shelter Mutual Insurance Co. v. Flint, 837 S.W.2d 524 (Mo.App. W.D.1992), this Court explained that

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