Hubbard v. U.S. Fidelity & Guaranty Co., 24853

• Decision Date: 01 April 1968
• Docket Number: No. 24853,24853
• Parties: Ruth E. HUBBARD, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Respondent.
• Court: Missouri Court of Appeals

Page 607

430 S.W.2d 607

Ruth E. HUBBARD, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Respondent.

No. 24853.

Kansas City Court of Appeals, Missouri.

April 1, 1968.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 3, 1968.

Application to Transfer Denied Sept. 9, 1968.

Charles W. Hess, Kansas City, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, of counsel, for appellant.

Gordon N. Myerson, Kansas City, Sprinkle, Carter, Sprinkle, Larson & Hanna, Kansas City, of counsel, for respondent.

HOWARD, Presiding Judge.

This is a suit by appellant against her insurance carrier, the respondent, under the collision coverage of an insurance policy issued by respondent. The suit prayed for judgment in the amount of $549.15 for property damage, plus interest, together with damages for vexatious refusal to pay and reasonable attorney's fees. We shall refer to the parties as they appeared below.

The defendant company filed what was denominated as a motion to dismiss. The trial court and the parties treated the defendant's motion to dismiss as being a motion for summary judgment and we shall accord it the same treatment. The trial court granted summary judgment in favor of defendant.

Plaintiff was involved in an automobile wreck with a car driven by one Byron F. Jordan on February 8, 1965. Plaintiff filed suit against Jordan seeking damages for personal injury in the amount of $35,000.00 and a recovery for property damage to her automobile in the amount of $875.00. This suit was compromised for a gross amount of $7,500.00. In connection with this compromise plaintiff gave to Jordan (and presumably his insurance carrier) a release wherein it is recited that Ruth E. Hubbard does 'hereby release, acquit and forever discharge Byron F. Jordan and all other persons, firms and corporations from and on account of any and all claims, demands and causes of action in any way growing out of an accident * * * more particularly described in the petition in a suit now pending * * *.' Through her attorneys plaintiff also entered into a stipulation reciting that her suit against Jordan had been fully compromised and that the same 'shall be forthwith dismissed with prejudice to plaintiff's further right of action and at the cost of the defendant.' Pursuant to this stipulation the court entered its order that said cause 'be and the same (is) hereby dismissed with prejudice.' Prior to the institution of the suit against Jordan plaintiff made claim against her insurance carrier, the defendant herein, for property damage in the amount of $549.15 which is alleged to be the amount of damage to her car, less the $100.00 deductible provided in the policy. This claim was never paid and no reason for this nonpayment appears in the record. After her suit against Jordan was settled and that cause dismissed, plaintiff brought the present action against her insurance carrier, the defendant United States Fidelity and Guaranty Company.

Plaintiff contends that her settlement with Jordan was only for personal injury and the $100.00 deductible part of her property damage. She insists that she did not recover from Jordan for the balance of the property damage to her car and is therefore entitled to recover such balance from the defendant. She argues that the release should be limited to the $100.00 actually paid for property damage and should be held not to affect her right to the remaining $549.15 of her property damage. To support this contention, plaintiff relies on the draft from the Maryland American General Group to her in the gross amount of $7,500.00 in settlement of her suit against Jordan. This draft indicates that $7,400.00 was paid for bodily injury and $100.00 for property damage. The loss covered is described as 'partial' as to property damage, and as 'other' concerning bodily injury. This is evidence by x's placed in appropriate boxes on the face of the draft.

Defendant contends that, by the general release given to Jordan and by stipulating to the dismissal of her cause of action against Jordan with prejudice, the plaintiff has destroyed defendant's right of subrogation in violation of the provisions of the policy and, consequently, plaintiff cannot recover under the policy in the present suit.

The insurance policy is in evidence and the subrogation provisions thereof read as follows: 'In the event of any payment under this policy, the Company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.'

The trial court granted summary judgment to defendant on the basis that by stipulating for the dismissal of the suit against Jordan with prejudice, plaintiff destroyed defendant's right of subrogation and consequently plaintiff's rights under the policy are barred as a matter of law. The trial court also held that by giving a complete release of all of her claims growing out of the accident, plaintiff destroyed defendant's right of subrogation and consequently she is barred from recovery under the policy as a matter of law. Judgment was entered for defendant for both of these reasons. After motion to set aside the judgment or to amended the judgment or for new trial...