Kissel v. Aetna Cas. & Sur. Co.

• Decision Date: 15 June 1964
• Docket Number: No. 31339,31339
• Citation: 380 S.W.2d 497
• Parties: Hubert J. KISSEL, Alloys A. Kissel, and Hubert W. Kissel, Co-Partners, d/b/a H. Kissel's Sons, (Plaintiffs) Respondents, v. The AETNA CASUALTY AND SURETY COMPANY, (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 497

380 S.W.2d 497

Hubert J. KISSEL, Alloys A. Kissel, and Hubert W. Kissel Co-Partners, d/b/a H. Kissel's Sons, (Plaintiffs) Respondents, v. The AETNA CASUALTY AND SURETY COMPANY, (Defendant) Appellant.

No. 31339.

St. Louis Court of Appeals, Missouri.

June 15, 1964.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 21, 1964.

G. W. Marsalek, Joseph H. Mueller, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.

Kappel & Neill, John C. Kappel, Robert E. Staed, St. Louis, for respondents.

RUDDY, Presiding Judge.

This action was instituted by Hubert J. Kissel, Alloys Kissel and Hubert W. Kissel, co-partners, doing business as H. Kissel's Sons against the Aetna Casualty and Surety Company on a Comprehensive General Liability policy issued by the defendant to the plaintiffs. Plaintiffs are in the general contracting business and are primarily engaged in the erection of schools and churches. Five suits were filed by individual property owners against the plaintiffs herein for damage to their property alleged to have been caused by reason of careless and negligent excavation by the plaintiffs herein and their failure to give a notice of excavation. Each of the suits was for a substantial sum of money. Plaintiffs herein, feeling that the suits were within the coverage of the aforementioned policy, called upon defendant to defend and handle the aforesaid suits. The defendant, shortly after assuming control of said suits, withdrew from the defense of said suits because it claimed the policy did not afford coverage. Plaintiffs were able to compromise all of these claims and in settlement thereof and for litigation expense, court costs and attorneys' fees, expended the sum of $8,443.55. Plaintiffs received judgment for this amount, plus interest thereon in the amount of $2195.25, together with damages for vexatious delay in the amount of $3344.35, aggregating a total judgment of $13,983.15. From this judgment defendant has appealed.

As stated, plaintiffs were primarily engaged in the building of schools and churches. When a building job was procured they would usually estimate the carpentry work and the concrete work in the building and would normally sublet the balance of the work to be done to subcontractors.

On April 30, 1952, plaintiffs signed a contract to build a school for Our Lady of Good Counsel's parish. On this job plaintiffs did the carpentry work and the balance of the work was sublet to subcontractors. The subcontract for the excavation work was let to D. E. Murphy. Plaintiffs commenced the erection of the building about the middle of May, 1952. D. E. Murphy, the excavation subcontractor, in addition to digging the foundations of the building, was to grade the site of the school premises which was about 12 or 13 acres, change the contour of the site and after the foundation of the school building was completed, his job was to backfill and shape up the entire area. The area included an athletic field. All of the excavating work was completed by June of 1953, having been started about the middle of May, 1952.

The first part of October 1952, shortly after the playground excavation was started, a series of cracks developed in the ground at the rear or south of the playground area. Hubert J. Kissel, one of the plaintiffs, testified that 'Suddenly the ground opened up.' The cracks in the ground referred to developed at the toe of a slope or incline. When these cracks developed Hubert J. Kissel called the architect who, in turn, called an engineer, and the three of them determined to put into the cracks and openings a large fill of earth to hold the slope. The witness said the object of bringing in the dirt was to stabilize the hill, to keep it from moving further, stating that the crack developed at the toe of the slope when the earth began to move. This witness testified that the dirt fill was done 'beginning with November 7th and then November 9th, 10th, 11th, and so on.' The plaintiffs completed the work under the contract by November of 1953.

Five suits were filed against plaintiffs by the owners of five separate pieces of property situated generally to the south of and contiguous to the area where the series of cracks developed in the ground at the toe of the slope and incline heretofore described. One of these suits was filed in May 1957 and four in July 1957. After the original petitions had been filed and served upon the plaintiffs herein, the property owners, plaintiffs in said suits, filed amended petitions, each and all of which contained similar allegations. The pertinent parts of these petitions are as follows:

'3. That the defendants are contractors engaged in the business of general contracting, building and excavating work and as such entered into a contract to, and did, excavate property lying generally to the north of and contiguous to plaintiffs' above described property; that such work was started in approximately August, 1952 and continued until a few days prior to November 11, 1952.

'4. That the defendants negligently removed earth from property contiguous to plaintiffs' and thereby withdrew the lateral support of the earth in its natural state of plaintiffs' property, causing it to sink and slide in a northwardly direction.

'5. That said action on the part of defendants violated plaintiffs' rights of lateral support for the earth on plaintiffs' said property.

'6. That defendants gave plaintiffs no notice of their intention to excavate.

* * *

* * *

'9. That defendants did such excavation in a negligent and careless manner in that defendants excavated below the water table level and excavated without putting in foundations, piling and footings to prevent the earth on plaintiffs' land from sinking and sliding away.'

After the summonses and petitions were served on the plaintiffs, Hubert Kissel, one of the plaintiffs herein, turned all of the papers over to the agent who had written the insurance through the defendant company. The defendant then turned over the defense of these suits to its attorneys, the same attorneys now representing them in this action. Thereafter, plaintiffs cooperated at all times with the attorneys for the defendant. After defendant's attorneys took the deposition of Mr. and Mrs. Greimann, plaintiffs in one of the five pending suits, they wrote to the plaintiffs, in the instant case, under date of August 30, 1957, informing them that the deposition casts some doubt upon the insurance coverage, and informed said plaintiffs that the defendant was willing to have the attorneys continue the active defense of the cases, provided it was understood and agreed that by so doing the Aetna Casualty and Surety Company waived none of its rights under its policy issued to the plaintiffs and that all of its rights thereunder were fully reserved. Plaintiffs were further informed that if they were willing to have defendant's attorneys defend the suits on that basis and with that understanding that each of the plaintiffs insured under the policy may so indicate by signing a copy of a letter enclosed for that purpose and were requested to return the signed copy to the attorneys for their records. All of the plaintiffs accepted this reservation and signed the letter enclosed for that purpose and returned the letter to the attorneys for the defendant.

Thereafter, further depositions of the claimants against the plaintiffs were taken by defendant's attorneys. Parts of the depositions of these claimants were read into evidence in the instant case. Mr. William Matthews said that the first thing he saw was some of Mr. Greimann's land crack and open up. Mr. Greimann's land adjoined that of the witness Matthews. Matthews then testified 'that crack continued in my yard, into my property.' He then testified that he first saw the original crack in February of 1957. Upon further questioning he testified that when he moved into his house there had been a crack in the ground and at the time he moved in the crack was filled and, as he put it, 'were resodding it.' He said this took place in 'all the yards involved in it. I don't know how many at that time.' He then stated that this took place in May of 1953. Mr. Bosch, another claimant, testified that the first damage to his property was April or May of 1957. When he was asked to fix the date more accurately, he answered, 'Well, in this respect, referring to Mr. and Mrs. Greimann, that was the original, and this cracking was a progressive thing. My damage didn't occur at the same time, just kept breaking away.' Following the taking of these depositions defendant's attorneys notified the plaintiffs herein on December 6, 1957, that they were withdrawing from the defense of the aforesaid suits 'because the Aetna Casualty & Surety Company policy issued to you does not afford coverage to your organization or its members for the losses and damages mentioned in the petition.' All of the depositions and photographs taken and the reports of investigations made were made available to the plaintiffs and their attorneys. Before this date defendant's attorneys had filed answers in all of the cases filed against plaintiffs and had filed a motion to consolidate all of the cases for trial. This motion was still pending at the time defendant's attorneys withdrew from the defense of the suits against plaintiffs.

The plaintiffs herein engaged the attorneys who now represent them in this instant action to defend them in the five suits that were pending when defendant's attorneys withdrew from the defense of the five suits. Thereafter, plaintiffs' attorneys made a demand on the defendant herein to resume the defense of the five suits and this demand was refused by defendant.

As heretofore stated, the suits were settled before trial and the amounts paid in settlement, the litigation expense, the court costs and the reasonableness of the plaintiffs' attorneys' fees for the handling of the five suits are not here in...