Farmers Ins. Co., Inc. v. Effertz
| Decision Date | 03 July 1990 |
| Docket Number | No. WD,WD |
| Citation | 795 S.W.2d 424 |
| Parties | FARMERS INSURANCE COMPANY, INC., Respondent, v. Mike R. EFFERTZ and Effertz Brothers Farms, Inc., Appellants. |
| Court | Missouri Court of Appeals |
F. Allen Speck, Steven H. Mustoe, Kansas City, for appellants.
Lance W. Lefevre, Kansas City, for respondent.
Before MANFORD, P.J., and KENNEDY and ULRICH, JJ.
This is an appeal by Mike Effertz and Effertz Brothers Farms, Inc., from a judgment against them and in favor of Farmers Insurance Company in a court tried case upon a subrogation claim (as we shall call it for convenience, although one of the issues is whether the claim was a subrogation claim or was based instead upon an assignment) by Farmers against Mike Effertz and Effertz Brothers for property damage growing out of an automobile collision. (We will hereafter refer to Mike Effertz and the corporation collectively as "Effertz".)
Farmers had a policy of insurance insuring Marion Davis against collision loss on his 1981 Oldsmobile automobile. On July 24, 1982, Davis was involved in a collision between his insured automobile and an automobile operated by David Spindle. The Spindle automobile was in the act of passing a farm tractor operated by defendant/appellant Mike Effertz, who was in the employ of defendant/appellant Effertz Brothers Farms. The Davis automobile was damaged and Davis suffered personal injuries. Farmers paid Davis $9137 for his property damage. After deducting the salvage value of the Davis car, Farmers demanded reimbursement from the Spindle insurance company of $7342.50. This figure included $120 deductible, a part of the collision loss which had been borne by Davis under the terms of the policy.
Davis sued Spindle and Effertz for his personal injuries, but not for his property damage. While the litigation was pending, Farmers made repeated inquiries of the Spindle insurance company about its subrogation claim. The insurance company declined to consider the claim while the litigation was pending. At one point Farmers' lawyer, Sylvester Powell, proposed to Robert Graeff, who was representing the Davises on their personal injuries claims, that he add a property damage count to the personal injuries petition. Graeff declined to do so, on the ground that the Davises would be making a claim against Farmers on the underinsured motorist coverage of Davis's insurance policy, and to assert Farmers' subrogation claim in the personal injuries lawsuit would place himself and Farmers respectively in inconsistent positions.
Davis's personal injuries claim was tried, resulting in a judgment in Davis's favor for $135,000, with fault allocated 40% to Spindle and 60% to Effertz. Effertz appealed. During the pendency of the appeal, the parties reached a compromise and the personal injuries judgment was satisfied. Spindle's insurance company then paid to Farmers its 40% of Farmers' subrogation claim, but the Effertz insurance company refused payment of its 60% portion thereof. This lawsuit followed, with the result described above.
Farmers in its petition alleged that Davis had "assigned" his property damage claim to Farmers. There was no written assignment, however, and Farmers for its claim that there was an assignment relies upon a conversation between Farmers' lawyer, Sylvester Powell, and Davis's lawyer, Robert Graeff, while the personal injuries case was pending.
Effertz says the conversation did not amount to an assignment, and we must agree. Graeff testified about the conversation: No particular form of words is necessary to accomplish an assignment, so long as there appears from the circumstances an intention...
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