Hawkeye-Security Ins. Co. v. Iowa Nat. Mut. Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: DIXON
• Citation: Hawkeye-Security Ins. Co. v. Iowa Nat. Mut. Ins. Co., 567 S.W.2d 719 (Mo. App. 1978)
• Decision Date: 12 June 1978
• Docket Number: HAWKEYE-SECURITY,No. KCD,KCD
• Parties: INSURANCE COMPANY, Plaintiff-Appellant, v. IOWA NATIONAL MUTUAL INSURANCE COMPANY, Defendant-Respondent. 29299.

Page 719

567 S.W.2d 719

HAWKEYE-SECURITY INSURANCE COMPANY, Plaintiff-Appellant, v. IOWA NATIONAL MUTUAL INSURANCE COMPANY, Defendant-Respondent.

No. KCD 29299.

Missouri Court of Appeals,Kansas City District.

June 12, 1978.

Gordon N. Myerson, Steven G. Emerson, Kansas City, for plaintiff-appellant.

Thomas A. Sweeny, Kansas City, for defendant-respondent; Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, of counsel.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

DIXON, Judge.

Hawkeye-Security Insurance Company appeals a trial court order granting summary judgment for the defendant. The issue to be determined is whether Hawkeye has any claim based upon Iowa National Mutual Insurance Company's failure to defend under a policy with its insured Jurgeson.

In 1967, plaintiffs Romine filed an action for damages against Jurgeson which they claimed arose out of the acts of Jurgeson in blocking the channel of a creek. The petition alleged generally that the acts were done in the fall and winter of 1966 and 1967. Iowa National's policy was in effect from October 14, 1966 to March 12, 1967, and Hawkeye assumed the coverage on March 14, 1967. Hawkeye assumed the defense of the claims after the first trial of the Romine suit. The first trial of the Romine suit resulted in a judgment for plaintiff which was reversed on appeal. Jurgeson v. Romine, 442 S.W.2d 176 (Mo.App.1969).

Thereafter, Hawkeye appeared and defended in the subsequent trial of the Romine case, effected settlements of two other claims, and satisfied the judgment resulting from the second trial of the Romine case. Iowa National had no notice of any claim under its policy until June of 1968, by which time it was clear that the damage claimed occurred during the period when Hawkeye was on the coverage.

It is Hawkeye's position that the court erred in granting summary judgment in favor of Iowa National because Hawkeye claims that the uncontroverted evidence establishes that Iowa National did not defend and that Hawkeye is subrogated as a matter of law to the insured's cause of action against Iowa National for the breach of its contract to defend contained in its policy.

Preliminarily, it is to be noted that Iowa National is not responsible on its coverage for any liability imposed on Jurgeson. This for the reason that the issue of liability under a policy insuring against "loss" or "damage" occurring during the policy period is determined by the time when the loss or damage occurs and not by the time of the negligent act. Kirchner v. Hartford Accident & Indemnity Co., 440 S.W.2d 751 (Mo.App.1969); Kirchner cites with approval the rule set forth in, Annot., 57 A.L.R.2d 1389 (1958). Hawkeye, in its brief, impliedly assumes that Iowa National had no coverage based on all the facts and makes no assertion of such coverage, but argues that a duty to defend arose because the petition asserted that the acts of negligence occurred during the Iowa National policy period.

Iowa National concedes that the general rule is that the duty to defend depends upon the facts known at the time the action is commenced. It disputes, and properly so, the assertion that the duty depends upon the petition alone. The proper statement of the rule respecting the duty to defend is that the actual facts known tothe insurer or which should have been reasonably known to the insurer determine its liability to defend, not what the ultimate facts are found to be. Marshall's U. S. Auto Supply v. Maryland Casualty Co., 354 Mo. 455, 189 S.W.2d 529 (1945).

Upon the basis of that statement of the rule, Iowa National might possibly have...