Jos. A. Bank Clothiers, Inc. v. Brodsky

• Decision Date: 19 August 1997
• Docket Number: No. 71022,71022
• Citation: 950 S.W.2d 297
• Court: Missouri Court of Appeals
• Parties: JOS. A. BANK CLOTHIERS, INC., and Vincent and Theresa Monteleone Individually and t/a Monteleone's Tailoring, Plaintiffs-Appellants, v. Saul and Charlotte BRODSKY, h/w and Winifred Frelich as Personal Representative of the Estate of Bennett Frelich, Defendants-Respondents.

Page 297

950 S.W.2d 297

JOS. A. BANK CLOTHIERS, INC., and Vincent and Theresa

Monteleone Individually and t/a Monteleone's

Tailoring, Plaintiffs-Appellants, v. Saul and Charlotte BRODSKY, h/w and Winifred Frelich as

Personal Representative of the Estate of Bennett

Frelich, Defendants-Respondents.

No. 71022.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 19, 1997.

Kortenhof & Ely, Jack Warner, St. Louis, for plaintiffs-appellants.

Brinker, Doyen & Kovacs, P.C., Jeffrey J. Brinker & Aaron I. Mandel, St. Louis, for defendants-respondents.

KAROHL, Judge.

This appeal involves a subrogation claim brought by Northbrook Insurance (Northbrook) in the name of its insured, Joseph A Bank Clothiers, Inc. (Bank) against the Brodsky's d/b/a B & F Enterprises (B & F), a Missouri partnership. B & F leased commercial property to Bank. On July 10, 1991, there was a flood which caused $1,217,582.69 damage to Bank's personal property. Northbrook covered most of the loss and sued B & F for negligence in failing to maintain an adequate sewer system at the leased premises, thus causing the flood. B & F moved for summary judgment on the basis that all or part of Bank's claim was not enforceable as a subrogation claim. The trial court granted summary judgment for defendants on Bank's subrogation claim. The court denied the motion for Bank's uninsured loss claim. The parties settled Bank's claim. Bank appealed the summary judgment on the claim made by Bank on behalf of Northbrook, a subrogation claim. The issues on appeal involve contractual interpretation of the lease contract and rights to subrogation. We affirm.

In August 1984, B & F Enterprises, a Missouri Partnership, owned LeChateau Village in Frontenac, Missouri. The partners included Saul Brodsky, Charlotte Brodsky, and Bennett Frelich. On August 6, 1984, B & F leased space in LeChateau Village to Bank. The final lease documents, which had been prepared by Bank, provided:

Section 11: INSURANCE.

(a) Tenant's Insurance. Tenant, at its sole expense, shall maintain and keep in effect throughout the Term a policy or policies of general public liability and fire and extended coverage insurance against loss or liability in connection with bodily injury or death or property damage or destruction in or upon the Premises, including all leasehold improvements to the Premises, in such amounts as generally carried by Tenant for Tenant's other stores. Such policies shall name Landlord as an additional insured and shall contain a clause that the insurer shall not cancel such policies without at least ten (10) days' prior written notice to Landlord, and shall be insured by insurers of recognized responsibility licensed to do business in Missouri. Prior to the Commencement Date, a certificate of such policies shall be delivered by Tenant to Landlord, and at least thirty (30) days before any such policy shall expire, Tenant shall deliver a certificate of a replacement policy to Landlord.

Tenant may maintain any or all of the insurance required to be maintained by Tenant under a blanket policy or blanket policies covering the Premises and other property.

(b) Landlord's Insurance. Landlord shall maintain and carry throughout the Term insurance (with a minimum of at least eighty percent (80%) replacement cost) covering the entire Shopping Center against fire, vandalism and other perils such as are from time to time included in a standard extended coverage endorsement or an all-risk policy. Tenant hereby agrees from time to time to pay to Landlord as Additional Rent hereunder, upon demand, the amount, if any, by which Landlord's insurance premium shall be increased solely by reason of Tenant's particular use of the Premises other than as permitted herein.

(c) Waiver of Subrogation. Landlord and Tenant shall cause each insurance policy carried by them to be written in such a manner so as to provide that the insurer waives all right of recovery by way of subrogation against Tenant or Landlord, as the case may be, in connection with any loss or damage to property actually paid for under such policy. Neither party hereto shall be liable to the other for any loss or damage caused by fire or any of the casualties covered by all-risk insurance, to the extent of the releasing party's actual recovery under his insurance policy or policies. In the event either party shall fail to obtain such waiver of subrogation, or shall fail to supply the other party with evidence thereof, then such other party shall have the right to procure such waiver, if available, on behalf of, and at the sole cost and expense of, the party failing to obtain the waiver or to supply evidence thereof. If a waiver of subrogation is unavailable to either Landlord or Tenant, the other party shall not be obligated to obtain any waiver of subrogation. This provision shall not apply to loss or damage due to death or bodily injury, but shall only apply to property damage. (Emphasis Added)

From the commencement of the lease through July 1, 1989, Bank obtained property insurance required under Section 11(a) of the lease, first with Transportation Insurance Company, and then, with Arkwright-Boston Insurance. B & F was an insured as required by the lease agreement on both of those policies. In 1989, Bank purchased new insurance with Northbrook Insurance, but failed to list B & F as an insured.

On or about July 10, 1991, the storm sewer system that serviced Le Chateau Village backed up during a rainstorm. Bank alleged that as a result of the sewer problem, several feet of water accumulated in its store, causing extensive property damage. Northbrook, Bank's insurance carrier at the time of the loss, paid Bank on its claim. Bank filed a petition against B & F alleging a flood occurred at Le Chateau Village on or about July 10, 1991. Bank further alleged the flooding was caused due to the carelessness, negligence, gross negligence, and recklessness of B & F, consisting of, but not limited to, the failure of B & F to design, build, and install a larger sewer system for the property. Bank asked for both actual and punitive damages for losses in the amount of $1,217,582.69.

B & F filed a motion for summary judgment. It alleged part or all of Bank's petition was a subrogation claim of its insurance carrier, Northbrook Insurance. Bank did not file an evidentiary response to B & F's motion for summary judgment, but did file a memorandum in opposition. On September 11, 1995, the court sustained B & F's motion for summary judgment on the subrogation claim for Bank's damages covered and paid by Northbrook. It denied the motion on damages not covered by insurance. We review the Bank appeal from the adverse judgment on the subrogation claim.

Summary judgment may be entered when a movant demonstrates, through the pleadings, depositions, answer to interrogatories, and admissions on file, together with any affidavits, that there is no genuine issue as to any material fact and that movant is entitled to judgment as a matter of law. Rule 74.04. Our standard of review of summary judgment is "essentially de novo. " ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment." Id. When reviewing an appeal of summary judgment, "the court will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. We accord the nonmovant the benefit of all reasonable inferences. Id. The review of a grant of summary judgment is equivalent to reviewing a court-tried proceeding; if the judgment is sustainable under any theory, it must be sustained. Chancellor Development Company v. Brand, 896 S.W.2d 672, 675 (Mo.App. E.D.1995). A summary judgment movant who is the "defending party" need not controvert each element of a non-movant's cause of action to establish a right to summary judgment. Id. at 674. The "defending party" may establish a right to summary judgment by showing: (1) facts that negate any one of the claimant's element facts; (2) that non-movant does not have sufficient evidence to support a finding of the existence of any one of the claimant's elements; or (3) no genuine dispute exists as to each of the facts necessary to support the movant's properly-pleaded affirmative defense. Id. at 675.

We first consider B & F's request that the appeal be dismissed for Bank's failure to comply with the requirements of Rule 84.04 of the Missouri Rules of Civil Procedure. B & F argues Bank's statement of facts section: (1) does not provide a fair and concise statement of the facts relevant to the questions presented for determination; and (2) asserts facts not presented to the trial court. B & F also alleges Bank's points relied on fails to properly set forth wherein and why the trial court erred, but instead, sets forth abstract statements of law.

Rule 84.04(c) requires a fair and concise statement of the facts relevant to the questions presented for determination, without argument. The primary purpose of the statement of facts section is to afford an immediate, accurate, complete and unbiased understanding of the facts of the case. Amparan v. Martinez, 862 S.W.2d 497, 498 (Mo.App. E.D.1993). We have been hesitant in the past to dismiss an appeal because the appellant's statement of facts was inadequate, despite holding the authority to do so. Thompson v. Thompson, 786 S.W.2d 891, 892 (Mo.App.1990). We do not expect perfection; however, we do expect reasonable compliance with the briefing rules. State ex rel. Missouri Highway and Transportation Commission v. Pipkin, ...