Edwards v. State Farm Ins. Co.

• Decision Date: 27 November 1978
• Docket Number: No. KCD,KCD
• Citation: 574 S.W.2d 505
• Parties: Barbara EDWARDS, Appellant, v. STATE FARM INSURANCE COMPANY, Respondent. 29724.
• Court: Missouri Court of Appeals

Page 505

574 S.W.2d 505

Barbara EDWARDS, Appellant, v. STATE FARM INSURANCE COMPANY, Respondent.

No. KCD 29724.

Missouri Court of Appeals, Kansas City District.

Nov. 27, 1978.

H. George Lafferty, Jr., Kansas City, for appellant; Lafferty, Horowitz & Shurin, Kansas City, of counsel.

Sheridan, Sanders & Simpson, P. C., G. Michael Fatall, Paul L. Redfearn, III, Kansas City, for respondent.

Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.

ANDREW JACKSON HIGGINS, Special Judge, Presiding.

Appeal from summary judgment of dismissal of plaintiff's petition on contract of uninsured motorist insurance, filed five years and twenty-six days after the cause of action arose. The question is whether the tort action limitation of five years applies to bar this suit by an insured against her insurer for injuries received in a collision with an uninsured motorist. Reversed.

On December 16, 1971, Barbara Edwards was injured and damaged when her automobile was struck from the rear by an automobile driven by one Robert Rich Gardner at Interstate Highway 70 and 13th Street entry ramp in Kansas City, Missouri.

On January 11, 1977, she filed suit against State Farm Insurance Company under her policy of uninsured motorist coverage. She alleged: The collision of December 16, 1971, was caused by the negligence of Robert Rich Gardner, and she was injured as a result of his negligence. Robert Rich Gardner was an uninsured motorist who removed to Illinois and hid himself so that normal service of process could not be had upon him despite due diligence to locate him. She possessed a valid automobile insurance policy issued by State Farm which afforded her uninsured motorist coverage, and she was in compliance with all conditions precedent of the policy. Her insurance company, without reasonable cause, refused her demand under the contract for compensation for her injuries, and she was thus entitled to recover actual damages, damages for wrongful refusal of compensation, and attorneys' fees.

On February 18, 1977, State Farm Insurance Company filed answer. It denied the allegations of plaintiff's petition and raised a defense of contributory negligence. It also moved for summary judgment on ground plaintiff's action was barred by the statute of limitations.

The court sustained defendant's motion for summary judgment, found plaintiff's action barred by the five-year statute of limitations, and entered judgment for defendant and against plaintiff.

Under the uninsured motor vehicle coverage of plaintiff's policy of automobile insurance, defendant, in standard form, agreed:

"To pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by the accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle provided, for the purposes of this coverage, determination as to whether the insured * * * is legally entitled to recover such damages, and if so, the amount thereof shall be made by agreement between the insured * * * and the company or, if they fail to agree, and the insured so demands, by arbitration."

Section 516.120 RSMo requires that an action for injury to the person, not arising on contract, shall be commenced within five years. Section 516.110 provides that an action on a written contract for payment of money shall be commenced within ten years.

An action on the uninsured motorist provision of an automobile insurance policy is an action in contract, Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d 606 (Mo.App.1963); Reese v. Preferred Risk Mutual Ins. Co., 457 S.W.2d 205 (Mo.App.1970); and is governed by the ten-year statute of limitations, Section 516.110, RSMo 1969; Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1, 4 (Mo.App.1975).

Appellant thus contends that her action against her insurance company was timely filed January 11, 1977, because it arose December 16, 1971, and she had ten years from that date in which to file.

Respondent, to escape effect of the foregoing, relies principally on Crenshaw v. Great Central Ins. Co., supra, and argues that plaintiff did not file suit against the uninsured motorist within five years from the date of the collision with him; that her tort claim against him was thus barred; that she was thus unable to establish she was "legally entitled" to recover damages against the uninsured motorist at the time she filed suit against her insurer and was, therefore, precluded from recovery from her insurance company.

Missouri has recognized that it is not necessary for an insured to obtain a judgment against or to sue the uninsured motorist prior to enforcement of rights against his own insurance company, Hill v. Seaboard Fire & Marine Ins. Co., supra; Reese v. Preferred Risk Mutual Ins. Co., supra. The insured must, however, show that the uninsured motorist would have been liable to the insured. Byrn v. American Universal Ins. Co., 548 S.W.2d 186, 188(2) (Mo.App.1977).

While there have been cases ¹ in Missouri dealing, in their circumstances, with whether the insured is "legally entitled to recover," the precise question in this case is one of first impression in Missouri. Accordingly, it is appropriate to consider cases from other jurisdictions which hold, as found in Crenshaw v. Great Central Ins. Co., supra, l.c. 5, "that in a suit (for personal injuries) against the insurer under a policy of automobile insurance containing an uninsured motorist provision the statute of limitations applicable to contract actions applies, and that the general statute of limitations relating to tort actions is inapplicable." ²

In Detroit Automobile Inter-Insurance Exch. v. Hafendorfer, 38 Mich.App. 709, 197 N.W.2d 155 (1972), the insurer brought a declaratory judgment action, contending that defendant-insured's claim under uninsured motorist coverage was barred by the three-year tort statute of limitations. The trial court agreed and barred insured's action. The court of appeals, faced with the same question of first impression, considered cases ³ from other jurisdictions and determined that insured's action was timely filed within the six-year contract statute of limitations. The court's rationale was that "whatever claim that defendant insured may validly possess against plaintiff insurer arises solely out of a breach of a specific provision of a contract issued by plaintiff (insurer) to defendant (insured). It was not the tortious action of plaintiff insurer that gave rise to the claim based on the uninsured motorist clause of the insurance policy in this case. While it is true that a claim by defendant (insured) against the uninsured motorist in this case would be barred by the three-year statute of limitations, plaintiff insurer is not representing the uninsured motorist in this case, as pointed out in Sahloff, but rather itself, On its own contract. Moreover, defendant insured has not fabricated a contract claim, here, in order to accomplish indirectly what he could not do directly. Just as we must look to the real nature of the claim to determine whether a contractual action is, at base, an action for injury to person or property, we must also look to the real nature of this claim to determine whether a claim possessing personal injury aspects is, at root, an action for breach of contract." 197 N.W.2d l.c. 159.

Schulz v. Allstate Insurance Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968), an action for damages arising from an automobile collision by an insured against his insurer on uninsured motorist coverage, was dismissed by the trial court on the bar of two-year statute of limitations for actions for bodily injury. The appellate court, in agreement with New York courts and Booth v. Fireman's Fund Ins. Co., 253 La. 521, 218 So.2d 580 (1968), in reversal, rejected an argument "that since the tortfeasor himself could now raise the two-year statute of limitations, the injured party no longer could legally recover damages from such tortfeasor, and this being true, not by virtue of any statute of limitations but by...