Arnold v. American Family Mut. Ins. Co., WD

CourtCourt of Appeal of Missouri (US)
Citation987 S.W.2d 537
Docket NumberNo. WD,WD
PartiesPatricia ARNOLD Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE CO., et al. Respondent. 55960.
Decision Date31 March 1999

Page 537

987 S.W.2d 537
Patricia ARNOLD Appellant,
No. WD 55960.
Missouri Court of Appeals,
Western District.
March 31, 1999.



Plaintiff-Appellant Patricia Arnold appeals from a judgment of dismissal entered on May 22, 1998, in favor of Defendants-Respondents American Family Mutual Insurance Company

Page 538

("American Family") and American Standard Insurance Company ("American Standard") on her claim for the wrongful death of her daughter based upon an accident involving an uninsured motor vehicle in which her daughter was a passenger.


On December 27, 1995, Jennifer Marie Newman was a passenger in an uninsured 1985 Chevrolet Camaro owned by Macel L. Canterbury, III, and being driven by his sister, Crystal Plowick. At approximately 1:30 a.m., at the intersection of County Road 9690 and U.S. Highway 63 in Howell County, Missouri, the vehicle skidded off of a curve, striking an embankment and overturning the vehicle, ejecting all of the occupants out of the vehicle. Ms. Newman suffered extensive injuries, including a lacerated liver, which resulted in her death.

Plaintiff-Appellant Patricia Arnold is the natural mother of Jennifer Newman. Ms. Arnold brought a wrongful death action against Defendant American Family under Section 537.080, 1 The Wrongful Death Act. Upon notification that there were actually two insurance companies involved in the four insurance contracts at issue, Plaintiff filed a Second Amended Petition naming both American Family and American Standard as Defendants. After a motion to dismiss was filed by the Defendants, Plaintiff then filed a Third Amended Petition, adding the driver of the uninsured motor vehicle, Crystal Plowick, and alleging she was negligent in operating the vehicle and causing the accident which resulted in her daughter's untimely death.

Ms. Arnold sought uninsured motorist coverage totaling $225,000.00 under three policies of insurance with Defendant American Family. She also sought $25,000.00 in uninsured motorist coverage under a policy issued by Defendant American Standard. On March 30, 1998, a hearing was held in which a settlement between the driver of the uninsured motor vehicle, Crystal Plowick, and Plaintiff was approved by the trial court. Ms. Plowick was released from any further liability and was dismissed from the suit. Plaintiff then filed a Fourth Amended Petition against alleging that Ms. Plowick's brother, Macel Canterbury III, who owned the vehicle which Ms. Plowick was driving at the time of the accident, negligently entrusted his car to his sister on the night of the accident, knowing that she was too inebriated to drive.

On April 30, 1998, Defendants each filed motions to dismiss on the grounds that Plaintiff: 1) failed to state a claim because she was barred from maintaining a breach of contract action under Section 537.080; 2) was not the real party in interest and lacked standing to maintain the action; 3) failed to comply with the terms and conditions of the insurance policies; 4) failed to name a necessary and indispensable party by not naming the owner of the vehicle; 5) released Ms. Plowick without the Defendants' consent in violation of the insurance policies; and 6) was not entitled to coverage because the vehicle was not "uninsured."

At the hearing on the motion to dismiss, Plaintiff objected on the basis that factual matters outside the pleadings were argued by each of the Defendants in their motions to dismiss and the procedural rules relating to the presentation of motions for summary judgment had not been met, requiring the motions to be overruled. On May 22, 1998, the trial court sustained Defendants' motions to dismiss, and it is this dismissal from which Plaintiff now appeals.


The trial court granted both Defendants' motions to dismiss without specifying the reasons for its ruling. Ms. Arnold notes that many of the arguments raised in the motions to dismiss actually depended on evidence rather than the pleadings, and hence did not provide a basis for granting a motion to

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dismiss. Defendants counter that many of the grounds alleged were based solely on the pleadings and those grounds fully support the trial court's grant of the motions to dismiss. They further assert that, to the extent their motions relied on matters outside the pleadings, their motions should be treated as motions for summary judgment pursuant to Rule 55.27(b), which states in relevant part:

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.

As is evident, Rule 55.27(b) permits treatment of a motion to dismiss as if it were one for summary judgment only if the evidence outside the record is presented to and not excluded by the trial court, and only if the other parties are given an opportunity to present opposing materials which those parties contend raise a genuine issue of material fact. In addition, in circumstances such as this, the parties are entitled to notice that the court will be treating the motion as one for summary judgment. Baker v. Biancavilla, 961 S.W.2d 123, 125 (Mo.App.1998); Johnson v. Raban, 702 S.W.2d 134, 136 (Mo.App.1985).

Here, the court's order does not state that it is granting summary judgment, but rather that it is granting the Defendants' motions to dismiss, and the trial court did not give any notice to the parties that it was converting the motions to dismiss into motions for summary judgment. Moreover, counsel for Ms. Arnold objected at trial to treating the motions as motions for summary judgment, noting that the requirements for a summary judgment motion had not been met, that Defendants had failed to attach to their pleadings or file with the court the insurance policies at issue or other supporting documents necessary for consideration of many of their arguments, and that Ms. Arnold had not been given sufficient time to obtain and file documents which would refute the grounds for summary judgment alleged by Defendants.

We agree with Ms. Arnold that it would have been improper for the trial court to have considered the grounds set out in Defendants' motions to the extent that they relied on facts outside the pleadings, because she had not been given sufficient time to obtain opposing evidence showing a genuine issue of material fact existed on these matters. We further agree that, even had the trial court considered the motions as motions for summary judgment, because defendants failed to attach the insurance policies at issue to their motions, the trial court would have erred in granting the motions based on Plaintiff's alleged failure to comply with certain provisions of those policies. Here, however, it is evident from the court's judgment that it did not consider the motions as motions for summary judgment, but, rather, as motions to dismiss, and that her ruling was based on a determination that Plaintiff had failed to state a claim on which relief could be granted. We therefore will limit our review to a determination as to whether Plaintiff has stated a claim on which relief could be granted, except to the extent that the other issues raised deal with questions of law which are likely to arise again on remand.

When reviewing the trial court's grant of a motion to dismiss, we look to determine if the facts as pleaded and the reasonable inferences drawn therefrom state any ground for relief. Brandin v. Brandin, 918 S.W.2d 835, 837 (Mo.App.1996), citing Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). "In assessing the sufficiency of a petition, we accept all properly pleaded facts as true, give them a liberal construction, and draw all reasonable inferences which are fairly deducible from the pleaded facts." Thomas v. Evans, 941 S.W.2d 872, 873 (Mo.App.1997), citing Murphy v. A.A. Mathews, 841 S.W.2d 671, 672 (Mo. banc 1992). Where, as here, the trial court does not state a basis for its dismissal, we presume that dismissal was based on the grounds stated in the motion to dismiss and will affirm if dismissal was appropriate on any ground supported by the motion to dismiss. Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo.App.1996).

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The issue for our determination is whether Defendant insurers were required to provide uninsured motorist coverage for Plaintiff's claims against Marcel...

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