Citizens Ins. Co. of New Jersey v. Kansas City Commercial Cartage, Inc.

• Citation: 543 S.W.2d 532
• Decision Date: 01 November 1976
• Docket Number: No. KCD,KCD
• Parties: CITIZENS INSURANCE COMPANY OF NEW JERSEY, a corporation, Plaintiff-Appellant, v. KANSAS CITY COMMERCIAL CARTAGE, INC., a corporation Defendant-Respondent, and Third-Party Plaintiff, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, a corporation, Third-Party Defendant. 27598.
• Court: Missouri Court of Appeals

Page 532

543 S.W.2d 532

CITIZENS INSURANCE COMPANY OF NEW JERSEY, a corporation, Plaintiff-Appellant, v. KANSAS CITY COMMERCIAL CARTAGE, INC., a corporation Defendant-Respondent, and Third-Party Plaintiff, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, a

corporation, Third-Party Defendant.

No. KCD 27598.

Missouri Court of Appeals, Kansas City District.

Nov. 1, 1976.

William J. Lasley, James, Odegard & Millert, Kansas City, for plaintiff-appellant.

Steven H. Osman, James H. Ensz, Rope, Shanberg & Rope, Kansas City, for defendant-respondent and third-party plaintiff.

Clem W. Fairchild, Kansas City, for third-party defendant.

Before DIXON, P.J., and BRUCE NORMILE, FRANK CONLEY and RONALD M. BELT, Special Judges.

PER CURIAM:

The trial court entered summary judgment against plaintiff in an action on an insurance policy. In the procedural setting of this appeal, the threshold issue to be determined is the finality of the judgment. A short statement of the procedural and factual background will demonstrate the necessity for the initial determination of this court's jurisdiction of the appeal.

Plaintiff insurance company brought an action against defendant Kansas City Commercial Cartage, Inc., based upon a claim by plaintiff that it was entitled to the return of funds paid under an insurance policy. The payment by plaintiff was made under a loss payment agreement which reserved to the plaintiff insurance company the right to contest the validity of the payment. The basic policy of insurance under which the loss was paid was a cargo coverage policy. Excluded from coverage of the policy was loss 'caused by or resulting from infidelity of the insured's employees or persons to whom the property may be entrusted . . . and for loss or damage caused by the dishonesty of any attendant or attendants.' The goods in question were stolen from a shipment and one LaCore, who was a part-time employee before and after the time of the loss, confessed to the theft of the goods.

The dispute between Citizens Insurance as a plaintiff and Commercial Cartage as defendant centers upon the meaning to be ascribed to the quoted policy language. Before trial, Commercial Cartage, with leave of court, brought a third-party action against Commercial Union Insurance Company of New York. The third-party petition was an action upon a fidelity bond coverage issued by Commercial Union covering the employees of Commercial Cartage. Commercial Union filed an answer denying liability upon grounds that Commercial Cartage had failed to comply with the terms and conditions of the insuring agreement, that the loss was not within the insuring agreement, and that no act was committed by any person whose acts could have caused a loss under the insuring agreement.

A stipulation of facts was filed by the parties, and the plaintiff Citizens Insurance and the defendant Commercial Cartage both filed motions for summary judgment. The third-party defendant, Commercial Union, likewise moved for summary judgment against the defendant Commercial Cartage. In that posture of the case, the trial court sustained the defendant Commercial Cartage's motion for summary judgment and denied the motion of plaintiff Citizens Insurance. No ruling was made on the motion of Commercial Union for summary judgment against defendant Commercial Cartage.

In this posture of the case, the face of the record demonstrates that the issues between Commercial Cartage and Commercial Union on Commercial Cartage's third-party claim on the fidelity bond coverage have not been resolved. Finality of judgment is a jurisdictional prerequisite, and it is the duty of this court to look to our jurisdiction sua sponte, and if the judgment is not final to dismiss the appeal. Baumstark v. Jordan, 540 S.W.2d 611 (Mo.App.1976).

During the oral argument, counsel were advised of the court's concern as to the possibility that the appeal was premature and were requested to file supplemental briefing on the issue. All of the parties joined in a single letter brief urging the court to consider the trial court's order as a final appealable order. In support of that position, they cited Hupp v. Murphy Finance Company, 502 S.W.2d 345 (Mo.1973); Capitol Stores, Inc. v. Storms-Green Construction Company, 346 S.W.2d 549 (Mo.App.1961); and Skatoff v. Alfend, 411 S.W.2d 169 (Mo.1966).

The thrust of their argument based upon that authority is that the trial court found by implication against the contention of the defendant Commercial Cartage on its claim against Commercial Union on the fidelity bond, the reason advanced being that if LaCore was not an employee for the purposes of the cargo insurance, he could not be an employee for the purposes of the fidelity coverage. The cases cited by the parties indeed hold that in some circumstances such an implication of finality will arise. Thus, in Hupp, where Count I involved setting aside a judgment and Count II was entirely derivative being an action for wrongful execution, the court held that a determination against the plaintiff on the wrongful execution issue concluded the entire litigation. Likewise, in...