Manzella v. Gilbert-Magill Co.
| Decision Date | 03 February 1998 |
| Docket Number | No. WD,GILBERT-MAGILL,WD |
| Citation | 965 S.W.2d 221 |
| Parties | Anthony and Theresa MANZELLA, Appellants, v.COMPANY, Respondent. 53399. |
| Court | Missouri Court of Appeals |
Daniel T. Defeo, David M. Mayer, Monsees, Miller & Defeo, Kansas City, for appellants.
Steven G. Piland, Overland Park, KS, for respondent.
Before LAURA DENVIR STITH, P.J., and BRECKENRIDGE and HANNA, JJ.
Anthony and Theresa Manzella appeal from the trial court's order granting Gilbert-Magill Company's motion for judgment notwithstanding the verdict. The Manzellas obtained a jury verdict in their favor on their action against Gilbert-Magill for negligence resulting from its insurance agent's failure to procure adequate insurance coverage for the Manzellas' business. On appeal, the Manzellas claim that the trial court erred in overturning the jury's verdict because there were material issues as to whether Gilbert-Magill's agent breached a duty of reasonable care to the Manzellas by failing to procure adequate insurance for their losses. The Manzellas also contend that the trial court erred in its order because Gilbert-Magill failed to properly request judgment notwithstanding the verdict by not filing a written motion for a directed verdict at the close of all the evidence.
The judgment of the trial court is affirmed.
In early 1992, the Manzellas decided to open an Italian delicatessen at 13003 State Line Road in Kansas City, Missouri. Before they entered this venture, the Manzellas applied for a Small Business Administration (SBA) loan. Because they needed to include an estimate of insurance costs in the application, they contacted their insurance agent, Bill Johnson, who had provided them with homeowners and automobile insurance in the past. Mr. Manzella informed Mr. Johnson, an employee of Gilbert-Magill Company, that he and his wife wanted to open a delicatessen and described the business to Mr. Johnson in general. Mr. Manzella told Mr. Johnson that he "needed some idea of an insurance cost" for the proposed business. Mr. Johnson asked Mr. Manzella about the size of the property and was told that the lease was for approximately 2,500 to 3,000 square feet. The Manzella's SBA application indicated that they intended to carry contents coverage of $50,000, at the cost Mr. Johnson had estimated of $2,700. 1
When the opening of the Manzella's delicatessen was imminent, Mr. Manzella contacted Mr. Johnson to purchase insurance coverage. Mr. Manzella asked Mr. Johnson to give him the coverage he needed for the delicatessen. Mr. Manzella never told Mr. Johnson how much coverage he wanted for the business because he believed that Mr. Johnson "was supposed to advise [him] on that." Mr. Johnson procured a Hartford Policy for the Manzellas on a 2,000 square foot deli for a premium of $1,048. When that policy was received by the Manzellas, Mr. Manzella and Mr. Johnson reviewed the declarations page of the policy over the phone. Mr. Manzella testified that Mr. Johnson told him that the policy contained $300,000 in fire protection coverage for the Manzellas' business. The declarations page of the policy showed, however, that the $300,000 was fire liability coverage, while the personal property coverage on contents was $35,000 for any loss by fire.
In August of 1993, Mr. Manzella learned that the deductible on the Hartford Policy was going to increase due to a theft loss at the deli and he decided to shop around for new insurance. He met with one of his customers, Dick Fuchs, who represented the Pro Line Insurance Company. Mr. Fuchs reviewed Mr. Manzella's Hartford policy, inspected the premises, and expressed his willingness to write the policy for coverage identical to the Hartford policy at a cost acceptable to Mr. Manzella. Mr. Manzella then contacted Mr. Johnson and asked him if he could match Mr. Fuchs' offer. Several days later, Mr. Johnson notified Mr. Manzella that he could "match it to the T" with a policy from Ohio Casualty. Mr. Manzella decided to accept Mr. Johnson's offer of a policy with Ohio Casualty because he thought it was advantageous to have his home, automobile and business insurance with the same agent. Shortly thereafter, Ohio Casualty issued an Ohio Casualty Business Owner's Policy to the Manzellas for their delicatessen. The policy contained $40,000 in contents coverage and $5,000 spoilage coverage.
On May 30, 1994, a fire devastated the Manzellas' delicatessen. The Manzellas suffered a loss of the operation of the business, equipment, furnishings, and most of the food in the delicatessen. According to an exhibit filed by the Manzellas at trial, the fire caused $151,050.59 damage to durable goods and $9,700.66 in damage to non-durable goods. After the fire, Mr. Manzella telephoned Gilbert-Magill to inform them that he "had a problem." Mr. Manzella testified that an unidentified Gilbert-Magill employee told him that he only had $50,000 in coverage for the loss of fixtures, equipment, inventory and business interruption. When Mr. Manzella related this conversation to Mr. Johnson, who no longer worked for Gilbert-Magill, Mr. Johnson indicated that the information was wrong and that he would take care of it. However, when Mr. Johnson called Mr. Manzella back, he told Mr. Manzella that he only had $50,000 in total coverage. 2
Subsequently, the Manzellas brought a negligence suit against Gilbert-Magill for Mr. Johnson's conduct as their agent. In their action, the Manzellas claimed that Mr. Johnson negligently failed to advise them of the types of insurance coverage required and the amounts of coverage necessary. The Manzellas also claimed that Gilbert-Magill negligently misrepresented to the Manzellas the amount of coverage required and negligently failed to inspect the business to determine the appropriate amount of coverage. 3 As a result of this negligence, the Manzellas claimed that they suffered the loss of their business operations, income and assets as well as their creditworthiness and goodwill.
At trial on their claim, the Manzellas presented the testimony of several witnesses, including Mr. Manzella and his wife, Theresa. Mr. Manzella testified that he thought the Ohio Casualty policy procured for him by Mr. Johnson provided him with $300,000 in contents coverage for fire, as did the original Hartford policy. He also testified that he left everything in Mr. Johnson's control and depended on him to provide the proper amount of insurance. Furthermore, the Manzellas presented evidence that the $40,000 policy procured by Mr. Johnson did not meet Gilbert-Magill's restaurant policy coverage guidelines, which required 100% coverage and coverage of $40 per square foot of restaurant area. After orally moving for a directed verdict, Gilbert-Magill presented evidence that the Manzellas' deli did not qualify for Gilbert-Magill's restaurant policy because it had not been in business for the requisite two years and that $40,000 in contents coverage was sufficient for the Manzellas' small delicatessen. Gilbert-Magill then moved for a directed verdict at the close of all the evidence, which was denied.
The jury returned a verdict in favor of the Manzellas in the amount of $85,000, assessing twenty-five percent of the fault to Gilbert-Magill and seventy-five percent of the fault to the Manzellas. Gilbert-Magill moved for judgment notwithstanding the verdict, claiming that, as a matter of law, Mr. Johnson did not owe the Manzellas any legal duty regarding the amount of coverage. The trial court sustained Gilbert-Magill's motion for judgment notwithstanding the verdict, noting that Mr. Manzella never requested a specific amount of coverage and left that decision in the hands of Mr. Johnson. Since Missouri law does not impose a duty on an insurance agent to appraise and evaluate customers' businesses, the trial court held that Gilbert-Magill was not negligent with respect to the Manzellas' insurance coverage. The Manzellas filed a timely appeal in this court.
Gilbert-Magill filed a motion to dismiss the Manzellas' appeal. In its motion, Gilbert-Magill contends that this court should dismiss the Manzellas' appeal because the Manzellas failed to pay the court reporter's fees for preparing the transcript within the time allotted by § 512.050, RSMo Cum.Supp.1996. Section 512.050 provides that no "appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final and all charges due to the court reporter for preparation of the transcript of the record of the trial court are paid within ten days of the filing of the notice of appeal." 4 The Manzellas filed their notice of appeal on September 26, 1996. Therefore, because the Manzellas failed to request and pay for the transcript fees by October 7, 1996, ten days after the notice of appeal was filed, Gilbert-Magill argues that this court, under § 512.050, should dismiss the appeal. The version of Supreme Court Rule 81.12(c) in effect at the time the Manzellas filed their notice of appeal granted them thirty days after the notice of appeal in which to request the transcript of the proceedings. 5 Rules promulgated by the Supreme Court pursuant to the Missouri Constitution "supersede all statutes and existing court rules inconsistent therewith." Rule 41.02. Furthermore, "if there is a conflict between [the Supreme Court's] rules and a statute, the rule always prevails if it addresses practice, procedure or pleadings." State ex rel. Union Elec. Co. v. Barnes, 893 S.W.2d 804, 805 (Mo. banc 1995). Rule 81.12(c) addresses the procedure of filing an appeal, therefore, its provisions in effect at the time the appeal was filed control over § 512.050 and the Manzellas had thirty days after filing their notice of...
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