Herring v. Prudential Property & Cas. Ins., WD 60491.
| Decision Date | 24 December 2002 |
| Docket Number | No. WD 60491.,WD 60491. |
| Citation | 96 S.W.3d 893 |
| Parties | C. Patrick HERRING and Clarann Herring, et al, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Respondent. |
| Court | Missouri Court of Appeals |
Kenneth Blair McClain, Independence, H. Kent Desselle, Scott B. Hall, Independence, for Appellants.
Julie Joan Gibson, Kansas City, for Respondent.
This appeal concerns the same issue extensively discussed by our opinion in Dollard v. Depositors Ins. Co., 96 S.W.3d 885, (Mo.App.2002). That issue is whether an insurance policy can condition payment of the full replacement cost of damaged personal property upon the actual repair or replacement of the property where the insured has opted for a money payment rather than repair or replacement under § 379.150, RSMo 2000.
The Herrings purchased "replacement cost" insurance from Prudential Insurance Company. During the term of the policy, their home was burglarized, resulting in loss or damage to various items of personal property. They made a claim against their homeowner's coverage and a dispute arose as to the value of the property. Prudential paid a portion of the loss but withheld $1081.25 claiming that the amount represented depreciation. Prudential represented that, in accordance with the terms of the policy, it would pay the withheld amount once the property had actually been repaired or replaced.
The Herrings brought suit against Prudential, seeking the withheld funds, arguing that Prudential's retention of the funds (essentially requiring the insured to selfinsure that portion of the loss) violated § 379.150, RSMo.1 Cross-motions for summary judgment were filed. Prudential's motion contended that their practice did not violate Missouri law and that the Herrings had failed to comply with the replacement condition of the policy.
The trial court entered summary judgment in favor of Prudential. This appeal follows.
In a single point on appeal, the Herrings claim that the trial court erred in granting Prudential's motion for summary judgment and denying their cross-motion for summary judgment. They contend that policy provisions that permit insurers to withhold depreciation from a valid replacement cost claim are unenforceable under Missouri law.
Prudential's second argument in reply to the Herrings' point on appeal is that the trial court correctly granted judgment in its favor. Prudential contends that § 379.150, RSMo, requires only payment of "an amount equal to the damage done," which is the actual cash value of the property. That actual cash value was paid, and Prudential was willing to pay the difference between that actual cash value and the actual cost to repair or replace the property.
Our review of a grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In conducting that review, we must view the evidence in the light most favorable to the non-movant. Id. Viewed in that light, if there remains a genuine dispute of material fact or if the facts do not entitle the movant to judgment as a matter of law, then we must reverse the judgment below. See id.
Generally, the denial of a motion for summary judgment is not a final judgment that may be reviewed on appeal. See First Nat'l Bank of Annapolis, N.A. v. Jefferson Ins. Co. of New York, 891 S.W.2d 140, 141 (Mo.App.1995). When the merits of that motion, however, are inextricably intertwined with the issues in an appealable summary judgment in favor of another party, then that denial may be reviewable. See id.
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