Frost v. White, WD

Decision Date08 August 1989
Docket NumberNo. WD,WD
Citation778 S.W.2d 670
PartiesJohn FROST and Beverly Frost, Respondents, v. Hubert E. WHITE, Jr., Defendant, and American States Insurance Company, and Liberty Mutual Insurance Company, Intervenors-Appellants. 41588.
CourtMissouri Court of Appeals

Thomas H. Davis, Morris and Larson, P.C., Kansas City, for Am. States Ins. Co.

Ronald L. Edelman, Sherman, Wickens, Lysaught & Speck, Kansas City, for Liberty Mut. Ins. Co.

Leonard K. Breon, Breon and Leffler, Warrensburg, for Frost.

Barry W. Finkel, Warrensburg, for White.

Before CLARK, P.J., and LOWENSTEIN and BERREY, JJ.

CLARK, Presiding Judge.

The issue in this case is whether the trial court erred when it denied the motion of appellant, Liberty Mutual Insurance Company, to intervene in a suit brought by respondents, John and Beverly Frost, against an uninsured motorist, Hubert E. White, Jr., for injuries John Frost sustained in an automobile collision. The interest in the cause asserted by Liberty Mutual arose because of the insurance it provided, including uninsured motorist coverage on the rental vehicle in which Frost was a passenger.

On June 15, 1988, John Frost was riding as a passenger in an automobile being driven by John Gibson and rented from Alamo Rent-A-Car. At a point on Missouri Highway 13 in Johnson County, a truck operated by Hubert White collided with the car driven by Gibson. Frost sustained injuries and Gibson died as a result of the accident. White had no liability insurance on his vehicle. The policy written by Liberty Mutual on the Alamo car included uninsured motorist coverage. Liberty Mutual is potentially liable to pay within its policy limits such sums as White may owe in damages to Frost and his wife.

The Frosts filed suit against White November 8, 1988. White was served with suit papers November 12, 1988, but he filed no answer to the petition. On December 19, 1988, the case was called for trial. The legal file provides no indication of how the trial setting was obtained, but it was presumably at the request of plaintiffs' attorney. White was evidently notified because he appeared with his attorney. White testified as a witness called by plaintiffs and he acknowledged that the accident was his fault and that he had been drinking beer and whiskey earlier. Evidence was also presented by the Frosts as to the injuries John Frost sustained in the accident and the expenses which had been incurred. No evidence was offered by White in defense of the suit. The court then entered judgment against White and in favor of John Frost for $600,000 and in favor of Beverly Frost for loss of services in the amount of $150,000. The judgment was formalized by an entry dated December 22, 1988.

Liberty Mutual was aware at all relevant times that White was uninsured. Liberty Mutual also knew that suit had been filed, a copy of the petition having been sent to them by Frosts' attorney on November 16, 1988. That communication, however, did not report the date of service of process on White nor did counsel inform Liberty Mutual of the trial setting. Liberty Mutual learned of the entry of judgment the first week in January, 1989 when a letter from Frosts' attorney dated December 30, 1988 reporting that fact was received. On January 17, 1989, Liberty Mutual moved to intervene in the case for the purpose of filing a motion to set aside the judgment of December 22, 1988. The trial court denied the motion on January 19, 1989 and this appeal followed.

Liberty Mutual contends that the trial judge erred in his ruling because Liberty Mutual has a right as the uninsured motorist carrier to intervene in a suit where the uninsured motorist is a defendant. They say that right of intervening arises because of a potential liability to pay a judgment rendered against White and because Liberty Mutual's interests were not protected by any of the existing parties in the case.

The first matter to be addressed is respondents' motion to dismiss the appeal. They contend the issue of Liberty Mutual's right to intervene has been rendered moot by reason of a second action Liberty Mutual has commenced in the Johnson County Circuit Court. That suit, which also names Ruby Gibson, the widow of John Gibson, as a defendant together with respondents, is in two counts. The first count is an interpleader. Liberty Mutual there alleges that its limit of liability is $50,000, that the claims of respondents and Ruby Gibson greatly exceed that sum and it prays the court to allocate the policy proceeds among respondents and Ruby Gibson. A deposit of $50,000 in the registry of the court was concurrently made.

In the second count of the interpleader suit, Liberty Mutual presents for adjudication the dispute over its policy limit. For reasons not material to the present appeal, it appears that respondents, and perhaps Ruby Gibson as well, do not agree that the limit of Liberty Mutual's uninsured motorist coverage is $50,000. Respondents apparently claim a greater amount is at risk under the coverage, perhaps equaling as much as $1,000,000. In the second count of the interpleader suit, Liberty Mutual seeks a determination that the $50,000 deposited in the registry of the court will satisfy its policy obligation.

Respondents base their motion to dismiss on the theory that once Liberty Mutual paid its policy limit into court, it could not retain any viable interest in the question of how much damages were awarded against White. If that be so, then no purpose would be served by allowing intervention and considering a motion to set aside the 1988 judgment.

This argument ignores the fact that the amount of Liberty Mutual's coverage has yet to be determined. If respondents' contention in the interpleader suit is upheld, then to whatever extent the Liberty Mutual policy be determined to afford uninsured motorist benefits above $50,000, the company has a direct financial stake in any judgment rendered against White. Unless or until respondents concede the limit of Liberty Mutual's liability is $50,000, or until that amount be judicially determined to be the limit of the policy coverage, the appeal in this case does not present a moot question. The motion to dismiss the appeal is overruled.

Turning to the merits of the appeal, Liberty Mutual contends the trial court erred because Liberty Mutual was entitled to intervene in the Frosts' damage suit as a matter of right. This claim is based on Rule 52.12(a) which provides, in effect, that intervention is available as a matter of right, upon timely application, when the applicant claims an interest in the subject matter of the litigation, that interest is inadequately represented by the existing parties and the ability of the applicant to protect his interest will be impaired if he is not permitted to intervene.

In the case of a claim upon the coverage of an uninsured motorist carrier, the insurer must intervene...

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18 cases
  • Empire Dist. Elec. Co. v. Coverdell, SD 35226
    • United States
    • Court of Appeal of Missouri (US)
    • 5 Diciembre 2019
    ...in the litigation." It is within a trial court’s discretion to determine whether a motion to intervene is timely. Frost v. White , 778 S.W.2d 670, 673 (Mo. App. 1989). When considering the issue of timeliness, the trial court must determine both "whether substantial justice mandates the all......
  • Nervig v. Workman, SD 28848.
    • United States
    • Court of Appeal of Missouri (US)
    • 6 Febrero 2009
    ...1975); Wells v. Hartford Accident & Indemnity Co., 459 S.W.2d 253, 259 (Mo. banc 1970); Baker, 252 S.W.3d at 269-70; Frost v. White, 778 S.W.2d 670, 672 (Mo.App.1989); Beard v. Jackson, 502 S.W.2d 416, 418-19 (Mo.App. 1973); State ex rel. State Farm Mutual Automobile Insurance Co. v. Craig,......
  • Whitehead v. Lakeside Hosp. Ass'n, s. WD
    • United States
    • Court of Appeal of Missouri (US)
    • 10 Noviembre 1992
    ...its insured against an uninsured motorist. See Oates v. Safeco Ins. Co. of Am., 583 S.W.2d 713, 719-20 (Mo. banc 1979); Frost v. White, 778 S.W.2d 670, 672 (Mo.App.1989); Alsbach v. Bader, 616 S.W.2d 147, 150 (Mo.App.1981). The rationale that sustains the right of the insurer to intervene i......
  • Frost v. Liberty Mut. Ins. Co., WD
    • United States
    • Court of Appeal of Missouri (US)
    • 25 Febrero 1992
    ...against White on November 8, 1988. A judgment was had against White in favor of the Frosts. This judgment was reversed in Frost v. White, 778 S.W.2d 670 (Mo.App.1989), where this court held that Liberty Mutual's motion to intervene had been wrongly denied by the trial court. After remand, t......
  • Request a trial to view additional results

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