Hardcore Concrete v. Fortner Ins. Services
Decision Date | 28 February 2007 |
Docket Number | No. 27437.,27437. |
Citation | 220 S.W.3d 350 |
Parties | HARDCORE CONCRETE, LLC, Respondent, v. FORTNER INSURANCE SERVICES, INC., Respondent, and Med James, Inc., Appellant. |
Court | Missouri Court of Appeals |
John L. Mullen, Franke, Schulz & Mullen, P.C., Kansas City, for appellant.
W. Tom Norrid, Norrid & Robertson, P.C., Springfield, for respondent.
Before BARNEY, J., BATES, C.J., and LYNCH, J.
Appellant Med James, Inc. ("Med James") appeals the trial court's judgment following a jury trial in favor of Respondent Hardcore Concrete, L.L.C. ("Hardcore"). 1 Hardcore submitted its case to the jury on a theory of negligence in which it asserted Med James was negligent in failing to attach the proper documentation to its commercial insurance policy and in failing to issue the policy agreed upon by the parties. The jury returned a verdict in favor of Hardcore in the amount of $160,000.00 and apportioned 95 percent fault to Med James. Med James asserts six points of trial court error discussed below. Point One is dispositive and only it shall be addressed.
The record reveals that Hardcore, a company that pours concrete foundation walls and other concrete structures, purchased a set of aluminum concrete forms valued at $33,000.00. As part of its financing agreement, Hardcore was required to obtain theft insurance. Hardcore contacted Mr. Fortner, an agent with Fortner Insurance, to aid it in obtaining the necessary insurance. Fortner Insurance contacted Med James, a managing general insurance agency, who in turn contacted Lloyd's of London ("Lloyd's"), an insurance coverage company.
In a telephone call, Mr. Fortner relayed to Robin Kelly ("Ms.Kelly"), an employee at Med James, the details of Hardcore's requirements for the insurance policy.2
Med James then issued a quote for insuring the aluminum forms and Hardcore completed an application for insurance coverage to be provided by Lloyd's. The completed policy was sent from Med James to Fortner Insurance. After review by Fortner Insurance, a series of corrections were made to the attached property schedules through communication with Med James and the policy was corrected. The final corrected policy had an effective date of June 30, 2003, but Med James did not send it to Fortner Insurance until August 29, 2003. Hardcore did not receive a final copy of the policy until September 24, 2003.
The aluminum concrete forms were stolen on or about September 1, 2003. Hardcore filed a claim with Med James under the insurance policy and the claim was denied by Lloyd's based on exclusionary language in the endorsement attached to the policy.
It was discovered at that time that Med James had attached the wrong endorsement to the insurance policy. On the endorsement designation form attached to Hardcore's policy, Med James had incorrectly attached the form entitled "MISCELLANEOUS PROPERTY FLOATER FORM (All Risk Form)," which only provided theft coverage in the event that there was "forcible entry either into such vehicle while all doors and windows thereof are closed and locked into a fully enclosed and locked luggage compartment, of which entry there are visible marks upon the exterior of said vehicle." Per the conversations with Mr. Fortner Med James should have attached an endorsement form entitled "TIRB-810AR CONTRACTORS EQUIPMENT FORM-ALL RISKS" which would have insured the aluminum forms against "[a]ll risks of direct physical loss or damage . . . from any external cause, except . . . loss occasioned by the neglect of the Insured. . . ." Med James admits it erred in making the wrong designation on the endorsement form attached to the policy.3
Hardcore filed suit against Med James on July 27, 2004, for breach of contract, vexatious refusal, negligence, and negligent misrepresentation. Hardcore brought no action against Lloyd's. As stated above, following a two-day jury trial, the jury returned a verdict in favor of Hardcore and against Med James in the amount of $160,000.00 and assessed 95 percent fault against Med James. This appeal by Med James followed.
In its first point, Med James asserts the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict or, in the alternative, motion for new trial. It maintains that in Missouri there is no legal duty "owed by the managing general agent to an insured [because] the managing general agent is not an agent of the insured;" accordingly, Med James as "the managing general agent could not be liable under the negligence theory . . . ." Med James asserts that
as the agent of a disclosed principal, [Lloyd's], [Med James] cannot incur personal liability but rather the liability if any, is that of [Lloyd's] in that Med James was a disclosed managing general agent for [Lloyd's], Med James had no contact, communication or interaction with [Hardcore] and [Hardcore] was represented separately by [Mr. Fortner] of [Fortner Insurance], accordingly [Fortner Insurance] is the only agent of [Hardcore] and thus is the only party to owe [Hardcore] a duty.
The standard for review of a trial court's denial of a motion for directed verdict is "whether plaintiff presented substantial evidence to prove the facts essential to the claim." Benoit v. Missouri Hwy. and Transp. Comm'n, 33 S.W.3d 663, 667 (Mo.App.2000). "The standard of review for the denial of a motion for judgment notwithstanding the verdict is the same as for review of a denial of a motion for directed verdict." Gill Const., Inc. v. 18th & Vine Authority, 157 S.W.3d 699, 717 (Mo.App.2004). We review the denial of such motions "`as . . . question[s] of law, viewed in the evidentiary light most favorable to the non-moving party. . . .'" Damon Pursell Const. Co. v. Missouri Hwy. and Transp. Comm'n, 192 S.W.3d 461, 474-5 (Mo.App.2006) (quoting Clark v. Belfonte Distrib., Inc., 163 S.W.3d 581, 584 (Mo.App.2005)). When the denial is based upon a conclusion of law, as in the present matter, "we review the trial court's decision de novo." Boggs v. Lay, 164 S.W.3d 4, 15 (Mo.App.2005) (emphasis added).
"Each element that is required to establish liability on the part of Respondent must be supported by substantial evidence, which is `competent evidence from which a trier of fact can reasonably decide the case.'" Gulley v. Werth, 61 S.W.3d 293, 296 (Mo.App.2001) (quoting McNear v. Rhoades, 992 S.W.2d 877, 884 (Mo.App. 1999)). "A directed verdict is proper if there is not substantial evidence to support one of the elements of a cause of action." Gulley, 61 S.W.3d at 296.
"`[A]gency is the fiduciary relation which results from the manifestation of consent by one person[,] a principal[,] to another[,] an agent[,] that the agent shall act on the principal's behalf and subject to the principal's control, and consent by the agent so to act.'" Parshall v. Buetzer, 195 S.W.3d 515, 519 (Mo.App.2006) (quoting Restatement (Second) of Agency § 1 (1958)). "Actual `authority is the power of the agent to affect the legal relations of the principal by acts done in accordance with the principal's manifestations of consent to him.'" Id. (quoting Restatement (Second) of Agency § 1 (1958)). "Actual authority may be express or implied." Nichols v. Prudential Ins. Co. of America, 851 S.W.2d 657, 661 (Mo.App.1993). "Express authority is created when the principal explicitly tells the agent what to do" and "[i]mplied authority consists of those powers incidental and necessary to carry out the express authority." Id. "Absent an express grant of authority, the relationship may result from implied or apparent agency." K & G Farms v. Monroe Cty. Serv. Co., 134 S.W.3d 40, 43 (Mo.App.2003).4 "[A]n agent for a disclosed principal is not a party to a contract and is not liable for its nonperformance." State ex rel William Ranni Associates, Inc. v. Hartenbach, 742 S.W.2d 134, 140 (Mo. banc 1987).
"In an action for negligence, plaintiff must establish that defendant had a duty to plaintiff, that defendant failed to perform that duty, and that defendant's breach was the proximate cause of plaintiff's injury." Hecker v. Missouri Prop. Ins. Placement Facility, 891 S.W.2d 813, 816 (Mo. banc 1995). "It is universally agreed (or at least held) that the question of whether a duty exists is a question of law and, therefore, a question for the court alone." Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259, 266 (Mo.App. 2002). "Similarly, it is agreed that whether the duty that exists has been breached is a question of fact for exclusive resolution by the jury" or fact finder. Id.
In our review of the facts in this case we find Gauert v. Chris-Leef Gen. Agency, Inc., 123 S.W.3d 270, 271 (Mo.App.2003) is particularly persuasive. In Gauert, Mrs. Gauert's ("Gauert") husband was working in a convenience store owned by Kansas City Oil Company ("KCO") when he was killed during a robbery. Id. Gauert brought a wrongful death suit against the owners of KCO, the Collinses, "alleging that their negligence as landowners caused her husband's death." Id. Gauert and the Collinses "entered into an agreement . . . wherein the Collins[es] agreed to allow judgment to be taken against them in an amount to be determined by the trial court with recovery from them limited to their insurance coverage." Id. This settlement was approved by the trial court. Id.
Thereafter, Gauert, "in her capacity as assignee of the Collinses," sued Chris-Leef General Agency, Inc. ("Chris-Leef") alleging that Chris-Leef, as the agent of KCO, "negligently failed to have the Collinses named as additional insureds on the KCO commercial liability policy." Gauert, 123 S.W.3d at 271. Chris-Leef subsequently filed a motion for summary judgment. Id.
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