Inman v. Leader National Insurance Co., ED78679

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation58 S.W.3d 590
PartiesPhyllis (Inman) Freeman and Jennifer R. Tobin, Plaintiffs/Appellants v. Leader National Insurance Company, Louis J. Basso, Brown & James, P.C. and Rabbit, Pitzer & Snodgrass, P.C., Defendants/Respondents. ED78679 and ED78716 Missouri Court of Appeals Eastern District 0
Docket NumberED78679
Decision Date07 August 2001

Phyllis (Inman) Freeman and Jennifer R. Tobin, Plaintiffs/Appellants
v.
Leader National Insurance Company, Louis J. Basso, Brown & James, P.C. and Rabbit, Pitzer & Snodgrass, P.C., Defendants/Respondents.

ED78679 and ED78716

Missouri Court of Appeals Eastern District

08/07/2001

Appeal From: Circuit Court of the City of St. Louis, Hon. Robert H. Dierker, Jr., and Hon. Michael R. Calvin

Counsel for Appellant: Lawrence W. Ferguson and Joseph W. Rigler

Counsel for Respondent: Thomas B. Weaver and John Gianoulakis

Opinion Summary:

Phyllis Inman Freeman and Jennifer Tobin Harcrow appeal the court's grant of summary judgment in favor of Brown & James and the dismissal of their petition against Leader National Insurance for failure to state a cause of action.

Division Four holds: (1) The court lacked jurisdiction to grant summary judgment to Brown & James because Freeman and Harcrow had previously voluntarily dismissed their claims against Brown & James; (2) the court did not err in dismissing Freeman's and Harcrow's breach of duty-to-defend and breach of duty-to-settle claims for failure to state a cause of action; and (3) Freeman and Harcrow abandoned their claim that the court erred in dismissing their breach of fiduciary-duty claim.

Simon and Sullivan, J.J., concur.

Lawrence E. Mooney, Presiding Judge

Plaintiffs Phyllis Inman Freeman and Jennifer Tobin Harcrow appeal the trial court's grant of summary judgment to defendant Brown and James, P.C. (Brown & James). Because the Plaintiffs had voluntarily dismissed their petition against Brown & James, the trial court was without jurisdiction to grant summary judgment. Thus, as to the summary judgment, we reverse and remand.

Plaintiffs further appeal the trial court's dismissal of their petition for failure to state a cause of action against Leader National Insurance (Leader). In their petition, Plaintiffs allege that their rights to sue were received by assignment from a party to a prior declaratory judgment. Because the assignor's causes of action preserved for our review were precluded by the prior declaratory judgment, Plaintiffs' petition does not state a cause of action against Leader. We affirm the dismissal.Facts

This lawsuit has its origins in a May 1990 automobile accident, in which Gary Claus's car struck a car containing four persons. Phyllis Freeman's son, Randy Williams, was killed in the accident and Jennifer Tobin was injured. Claus was intoxicated at the time of the accident, and pleaded guilty to two charges of involuntary manslaughter as a result of the accident.

Claus's liability insurance policy, issued by Leader, had policy limits of $25,000 per person and $50,000 per accident. The policy provided as follows:

We will pay damages for bodily injury or property damage for which you become

legally responsible....

The policy also provided:

We [Leader] will pay for the cost of investigating the auto accident and arranging for the settlement of any claim against you. We will also defend you, hire and pay a lawyer and pay all defense costs if you are sued by someone for damages because of an auto accident even if the accusations are not true.... We may investigate and settle any claim or suit as we think appropriate. We will not be obligated to pay for the cost of any further investigation or arrangement for settlement or defend you further after we have paid our entire limit of liability.

This coverage does not apply to anyone if he, or his legal representative, settles a claim without our consent.

Leader hired Brown, James & Rabbitt(FN1) to defend Claus in a lawsuit filed in Dent County by William Tobin, as next friend of Jennifer Tobin. Leader issued a check for $50,000, the limit of liability under Claus's insurance policy. Brown, James & Rabbitt handled the case and filed a counterclaim for interpleader on behalf of Claus, added all parties that might assert claims against Claus, and deposited the $50,000 into the court's registry. In August 1991, the Dent County Court entered its judgment in interpleader apportioning Claus's $50,000 policy limits among the four occupants injured in the accident with Claus. The court stated in its judgment that the claimants were free to proceed against Claus, with the amounts of their recoveries subject to a setoff.

Prior to the court's entry of judgment in interpleader, Leader filed a petition for declaratory judgment against Claus, who was then incarcerated, seeking a declaration that its duty to defend and indemnify Claus under the insurance policy had been fully discharged with the payment of its $50,000 policy limit into the court registry. The court entered declaratory judgment on March 17, 1992, finding that Leader had no further duty to defend Claus. The court, however, did not declare that Leader had no further duty to indemnify. Pursuant to the declaratory judgment, Rabbitt, Pitzer & Snodgrass sought leave to withdraw their representation of Claus, and Brad Eidson was appointed as a trustee to represent Claus in both the Tobin and Freeman lawsuits, pursuant to RSMo. section 460.100.(FN2)

In October 1991, Phyllis Freeman filed suit against Claus in Dent County for the wrongful death of Randy Williams; the Freeman case went to trial...

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28 practice notes
  • Liability Insurance and Contractual Aspects of Settlement.
    • United States
    • Missouri Law Review Vol. 87 Nbr. 1, January 2022
    • 1 janvier 2022
    ...there was no meeting of the minds and thus no settlement agreement on these facts). (19) Id. (20) See Freeman v. Leader Nat'l Ins. Co., 58 S.W.3d 590, 598 (Mo. Ct. App. (21) See id. at 598 ("An insurer's right to control settlement and litigation... creates a fiduciary relationship between ......
  • Golden Valley Disposal v. Jenkins Diesel, No. 27112.
    • United States
    • Court of Appeal of Missouri (US)
    • 17 février 2006
    ...Consequently, any action taken by a trial court after a case is voluntarily dismissed is a nullity. Freeman v. Leader Nat'l Ins. Co., 58 S.W.3d 590, 595 (Mo.App.2001). If a plaintiff attempts to voluntarily dismiss a case in a way not authorized by the rules of civil procedure, however, the......
  • Ideker v. PPG Indus., Inc., No. 14–1331.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 11 juin 2015
    ...conclusive of the matters adjudicated, and cannot be challenged in a separate proceeding.” 788 F.3d 855Freeman v. Leader Nat'l Ins. Co., 58 S.W.3d 590, 598 (Mo.Ct.App.2001) ; see also In re Scarborough, 171 F.3d at 642 (deciding a plaintiff who did not appeal alleged legal mistakes in a pri......
  • Zurich Am. Ins. Co. v. Fluor Corp., No. 4:16CV00429 ERW
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • 30 septembre 2019
    ...and is not dependent on the probable liability to pay based on the facts ascertained through trial.'" Freeman v. Leader Nat. Ins. Co., 58 S.W.3d 590, 597Page 14 (Mo. Ct. App. 2001) (quoting McCormack Baron Management Serv., Inc. v. Am. Guarantee and Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. ......
  • Request a trial to view additional results
27 cases
  • Golden Valley Disposal v. Jenkins Diesel, No. 27112.
    • United States
    • Court of Appeal of Missouri (US)
    • 17 février 2006
    ...Consequently, any action taken by a trial court after a case is voluntarily dismissed is a nullity. Freeman v. Leader Nat'l Ins. Co., 58 S.W.3d 590, 595 (Mo.App.2001). If a plaintiff attempts to voluntarily dismiss a case in a way not authorized by the rules of civil procedure, however, the......
  • Ideker v. PPG Indus., Inc., No. 14–1331.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 11 juin 2015
    ...conclusive of the matters adjudicated, and cannot be challenged in a separate proceeding.” 788 F.3d 855Freeman v. Leader Nat'l Ins. Co., 58 S.W.3d 590, 598 (Mo.Ct.App.2001) ; see also In re Scarborough, 171 F.3d at 642 (deciding a plaintiff who did not appeal alleged legal mistakes in a pri......
  • Zurich Am. Ins. Co. v. Fluor Corp., No. 4:16CV00429 ERW
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • 30 septembre 2019
    ...and is not dependent on the probable liability to pay based on the facts ascertained through trial.'" Freeman v. Leader Nat. Ins. Co., 58 S.W.3d 590, 597Page 14 (Mo. Ct. App. 2001) (quoting McCormack Baron Management Serv., Inc. v. Am. Guarantee and Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. ......
  • Ethridge v. Tierone Bank, No. 27016 (MO 5/11/2006), No. 27016.
    • United States
    • Missouri Supreme Court
    • 11 mai 2006
    ...that First Fidelity, as the original contracting party, would have under these circumstances. Freeman v. Leader Nat'l Ins. Co., 58 S.W.3d 590, 597 (Mo. App. 2001); Doss v. EPIC Healthcare Management Co., 901 S.W.2d 216, 222 (Mo. App. 1995); Stavrides v. Zerjav, 848 S.W.2d 523, 528 (Mo. App.......
  • Request a trial to view additional results
1 books & journal articles
  • Liability Insurance and Contractual Aspects of Settlement.
    • United States
    • Missouri Law Review Vol. 87 Nbr. 1, January 2022
    • 1 janvier 2022
    ...there was no meeting of the minds and thus no settlement agreement on these facts). (19) Id. (20) See Freeman v. Leader Nat'l Ins. Co., 58 S.W.3d 590, 598 (Mo. Ct. App. (21) See id. at 598 ("An insurer's right to control settlement and litigation... creates a fiduciary relationship between ......

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