Cantor v. Union Mut. Life Ins. Co.

• Decision Date: 08 February 1977
• Docket Number: No. 37658,37658
• Citation: 547 S.W.2d 220
• Parties: Sol F. CANTOR, Plaintiff-Appellant, v. UNION MUTUAL LIFE INSURANCE COMPANY, Defendant-Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 220

547 S.W.2d 220

Sol F. CANTOR, Plaintiff-Appellant, v. UNION MUTUAL LIFE INSURANCE COMPANY, Defendant-Respondent.

No. 37658.

Missouri Court of Appeals, St. Louis District, Division Three.

Feb. 8, 1977.

Cupples, Cooper & Haller, Inc., Irving L. Cooper, Bernard W. Gerdelman, Clayton, for plaintiff-appellant.

Armstrong, Teasdale, Kramer & Vaughan, Kenneth F. Teasdale, Richard B. Scherrer, St. Louis, for defendant-respondent.

SIMEONE, Chief Judge.

This is an appeal by plaintiff-appellant, Dr. Sol F. Cantor, from a judgment of the circuit court of St. Louis County entered on November 25, 1975, sustaining a motion for judgment on the pleadings filed by the defendant-respondent, Union Mutual Life Insurance Company (Union) which in effect disposed of plaintiff's claim for disability insurance, damages for vexatious delay and attorneys' fees. For reasons hereinafter stated, we reverse the order sustaining the motion for judgment on the pleadings and remand the cause for further proceedings.

This proceeding began on October 11, 1974, when the plaintiff, Dr. Sol F. Cantor, filed his petition against Union alleging, inter alia, that (1) on November 8, 1969, Union, for a premium, issued its disability insurance policy insuring him against disability caused by "sickness," (2) on or about December 17, 1973, he became totally disabled as a result of a "septic left ankle joint due to beta-hemolytic strep" and that the total disability continued until about April 12, 1974, (3) conditions precedent had been complied with, and (4) the sum of $6,000.00 was due under the policy. Plaintiff prayed for judgment for the sum due, for damages for vexatious delay and for attorneys' fees.

In due time, Union filed its answer containing an affirmative defense which alleged that the plaintiff, Dr. Cantor, had, on September 14, 1973, some three months prior to the alleged disability, instructed Union to cancel the disability policy, and, in accordance with his "written directions," Union cancelled the policy and so advised him by letter on September 27, 1973. Union further alleged that sometime thereafter ¹ it advised plaintiff as to what steps would be required to reinstate the policy, which steps included a payment of a premium for September 1973 to January 1974 to be remitted by December 18, 1973, "otherwise a reinstatement application would have to be completed." ² Dr. Cantor sent the premium and on January 4, 1974, he was notified by Union's agent that the policy had been reinstated as of that date. The answer further alleged that although plaintiff's illness had begun on December 17 it occurred at a time when the policy was not in force and that under the terms of the reinstatement provisions of the policy the reinstatement was applicable only to those losses due to sickness as "may begin more than ten days after such date (January 4, 1974)." Union therefore urged that there was no coverage for the "illness" set forth in the petition.

On February 3, 1975, Union filed an amended answer which urged as an additional defense that Dr. Cantor "has no right, title or interest in said expired policy or to any of the benefits thereof" because, on June 3, 1971, he "assigned all his right, title and interest in said policy" and all "benefits which may have become payable thereunder" to "Hallet-Ginsburg Realty Company of Ohio." ³

On the same date on which the amended answer was filed, Union filed its motion for judgment on the pleadings. Thereafter, on February 19, 1975, Union filed its "Request For Admissions" under Rule 59.01. Union requested that Dr. Cantor admit that the assignment has not been cancelled by the assignee, Hallet-Ginsburg. Plaintiff answered on March 18, 1975, and one answer to the request was equivocal. ⁴ On September 22, 1975, the motion for judgment on the pleadings was argued.

On November 3, 1975, Dr. Cantor filed his affidavit in opposition to Union's motion for judgment on the pleadings. In that affidavit he stated that (1) he did execute the assignment on June 3, 1971, "for a debt then due and owing to Hallet-Ginsburg Realty Company . . ."; (2) the amount of his claim against Union exceeded the debt owed to Hallet-Ginsburg; and (3) originally in its answer and in earlier correspondence Union denied coverage on the sole ground that the policy had been cancelled but alleged an additional ground the assignment as a defense in its amended answer.

On the same date, November 3, 1975, Dr. Cantor also moved to strike the defense of the assignment contained in Union's amended answer. A few days later, Union moved for various reasons to strike Dr. Cantor's affidavit.

It was in this posture that the trial court ruled on Union's motion for judgment on the pleadings. The trial court, in a brief order, sustained the motion and entered judgment in favor of the defendant, Union Mutual. It is from this order of November 25, 1975, the appeal is taken by Dr. Cantor.

On this appeal Dr. Cantor urges several points for reversal. First, he contends the court erred in sustaining the motion for judgment on the pleadings because fact issues were raised. Second, he urges that if the trial court treated the motion as one for summary judgment, the court erred in sustaining it because genuine issues of fact existed. Third, he contends the court erred because he is still "the" real party in interest to maintain an action on the policy although he had executed an assignment to Hallet-Ginsburg. Fourth, he contends the court erred in sustaining the motion for judgment and in denying his motion to strike the defense of assignment because the defendant is estopped from raising this additional defense since Union originally denied coverage on the sole ground that the policy was cancelled.

The respondent, Union Mutual Life Insurance Company, on the other hand, urges that the motion for judgment was in reality one for summary judgment and contends the trial court did not err because (1) there were no genuine issues of fact to be tried, (2) Dr. Cantor was not the real party in interest since he had assigned his rights under the policy and that it did not waive its rights to assert this defense by first relying on the defense that the policy was not in force, and (3) Dr. Cantor failed to join an "indispensable" party under Rule 52.04 the assignee, Hallet-Ginsburg.

We need not enter into an extended discussion as to each contention raised by the appellant, for we are convinced that, under the pleadings, fact issues were actually raised which necessitate a hearing to determine these factual issues.

The trial court, faced with the petition, answer, amended answer, motions, requests for admission and answers thereto, without time for deliberation and reflection, could well have concluded that there was no merit to the plaintiff's claims under the policy. But, after due deliberation, research and study, perhaps not available to the trial court, we are convinced that the cause must be reversed and remanded for a hearing and trial.

Rule 55.27(b) provides that:

"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. 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."

We do not believe that the trial court in this instance treated the motion for judgment on the pleadings as one for summary judgment, and, since the motion was one for judgment on the pleadings and fact issues were raised, the court erred in sustaining the motion.

In Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629 (Mo.App.1975), we held that, while a trial court is authorized to treat a motion to dismiss as a motion for summary judgment some indication by the court to the parties that it is treating the motion as one for summary judgment is necessary. It is important that the court give the parties notice of the changed status of the motion before it should be treated as one for summary judgment. There was no indication from the record before us that Union's motion for judgment on the pleadings was changed from a motion for judgment on the pleadings to one for summary judgment. Furthermore, there was no indication that the trial court considered matters outside the pleadings and there is nothing to indicate that matters presented to the trial court were not excluded. Under these circumstances, we believe that the motion filed by Union for a judgment on the pleadings was treated as such by the trial court and that it had no other status. Laclede Gas Company v. Hampton Speedway Company, supra, 520 S.W.2d at 629.

There are certain well-established principles relating to a motion for judgment on the pleadings. A motion for judgment on the pleadings is not favored. Helmkamp v. American Family Mutual Insurance Co., 407 S.W.2d 559, 565 (Mo.App.1966). Such a motion raises an issue of law only and not an issue of fact. The question is whether the moving party was entitled to judgment as a matter of law on the face of the pleadings. Where an issue of fact is presented by the pleadings a motion for judgment should be denied. Keener v. Black River Electric Co-operative, 443 S.W.2d 216, 218 (Mo.App.1969); Ingle v. City of Fulton, 268 S.W.2d 600, 603 (Mo.App.1954). The motion admits facts well pleaded. The position of a party moving for judgment on the pleadings is similar to that of a movant on a motion to dismiss, i.e., assuming the facts pleaded by the opposite party to be true, these facts are nevertheless insufficient as a matter of law. Keener v. Black River Electric Co-operative, supra, 443 S.W.2d at 218. The allegations of the petition are to be considered as true for purposes of the motion....