Erslon v. Vee-Jay Cement Contracting Co., Inc., VEE-JAY

• Decision Date: 28 April 1987
• Docket Number: No. 51324,VEE-JAY,51324
• Citation: 728 S.W.2d 711
• Parties: George V. ERSLON, et al., Plaintiffs-Appellants, v.CEMENT CONTRACTING COMPANY, INC., and Maryland Casualty Company, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 711

728 S.W.2d 711

George V. ERSLON, et al., Plaintiffs-Appellants, v. VEE-JAY CEMENT CONTRACTING COMPANY, INC., and Maryland

Casualty Company, Defendants-Respondents.

No. 51324.

Missouri Court of Appeals,

Eastern District,

Division One.

April 28, 1987.

Jesse W. Ullom, Clayton, for plaintiffs-appellants.

Ben Ely, Jr., St. Louis, for defendants-respondents.

KELLY, Judge.

Appellants are both the individual trustees of Cement Masons' Local 527 Health and Welfare Trust Fund which administers benefit plans providing weekly disability and medical care expenses for its participants and also General American Life Insurance Company, the insurer of the union fund. They appeal from the trial court's order sustaining the joint motion of Vee-Jay Cement Contracting Company, Inc., and its insurer Maryland Casualty Company, respondents herein, to dismiss the appellants' petition seeking restitution for failure to state a claim upon which relief can be granted. We affirm.

In reviewing the trial court's dismissal of appellants' petition for failure to state a claim upon which relief can be granted, the sole issue to be decided is, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to appellants, whether the averments invoke principles of substantive law entitling appellants to relief. Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985). Thus, a pleading will not be adjudged insufficient if the allegations of the petition, accorded a reasonable and fair intendment, state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief. Green Quarries, Inc. v. Raasch, 676 S.W.2d 261, 263 (Mo.App.1984). But a motion to dismiss on the ground that the petition failed to state a cause of action is well taken where the petition wholly fails to state a cause of action, that is, where the facts essential to a recovery are not pleaded. Id. .

Appellants filed a single count petition against both respondents and also Frank J. Cusumano, an employee of Vee-Jay Cement Contracting Company. In the petition appellants alleged that Cusumano, a participant in the union disability and medical care expense plan, made a claim on October 1, 1980, to the trust fund for benefits following injuries to his neck and back which he represented were not work-related. Under the trust fund's plan and its insurer's policy, these benefits were not payable where coverage was provided under the workers' compensation law. Appellants paid Cusumano $6,258.65 for medical expenses and $2,000.00 in disability benefits for a total of $8,258.65, the last payment being made on February 17, 1981.

However, Cusumano also filed a workers' compensation claim against respondents stating that these same injuries were an occupational injury. The date he filed this claim is not set out in the petition. Appellants further alleged that this claim was resolved on July 22, 1981, by respondents' payment to Cusumano of $13,577.35 "based upon an approximate disability of 32 1/2% of the body referable to the cervical area, plus $877.35 for outstanding medical expense which has not been paid through employee's union, plus $1,000 for temporary total disability."

Appellants averred that their payments of $8,258.65 to Cusumano "were made in error under the mistake of fact" that his injuries were not "work related"; accordingly, "Cusumano was not entitled to receive any part of said monies." Appellants then alleged that respondents had separate and joint obligations both under Chapter 287, the Workers' Compensation law, and also under Maryland Casualty's insurance contract with Vee-Jay, to pay the occupationally-related injury disability and medical expense benefits represented by appellants' payment to Cusumano. The petition concluded that respondents and Cusumano were unjustly enriched at appellants' expense and that appellants' demand for restitution of the $8,258.65 was refused.

Respondents filed a joint motion to dismiss which the trial court granted, designated as final, and an appeal ensued. This court held the failure to dispose of defendant Cusumano precluded the finality of the judgment for purposes of appeal and dismissed the appeal in Erslon v. Cusumano, 691 S.W.2d 310, 311 (Mo.App.1985).

Despite clear dicta suggesting to appellants the better course of action on remand, Id. at 312, appellants instead elected to dismiss without prejudice their claim against defendant Cusumano. After appellants' voluntary dismissal of Cusumano, the trial court reinstated its previous order sustaining the joint motion to dismiss. In this posture the case has resurfaced here for our reconsideration of appellants' challenge to the trial court's dismissal of their petition against respondents Vee-Jay and Maryland Casualty.

Appellants' sole point relied on contends that the trial court erred in dismissing their petition for failure to state a claim. Appellants assert that the petition alleges sufficient facts to show that respondents were unjustly enriched at appellants' expense because appellants erroneously paid to a third person (Cusumano) a sum of money that was an obligation actually owed him by respondents under a statutory and contractual duty. Appellants argue that their averments that they made payments to a third party when those payments were not their obligation, but were respondents', present a claim for restitution based on the theory of unjust enrichment.

Unjust enrichment occurs where a benefit is conferred upon a person in circumstances in which retention by him of that benefit without paying its reasonable value would be unjust. Green Quarries, Inc. v. Raasch, 676 S.W.2d at 264 . The principle of unjust enrichment has given rise to the doctrine of...