Medallion Ins. Co. v. Wartenbee
| Decision Date | 03 July 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 568 S.W.2d 599 |
| Parties | MEDALLION INSURANCE COMPANY et al., Plaintiffs-Respondents, v. Ernest J. WARTENBEE, d/b/a Y Insurance Agency, Defendant-Appellant. 29635. |
| Court | Missouri Court of Appeals |
Von Erdmannsdorff, Zimmerman, Gunn & Werner, Max Von Erdmannsdorff, Kansas City, for defendant-appellant.
John C. Craft, William C. Jolley, Jr., Kansas City, for plaintiffs-respondents.
Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
Action by Medallion Insurance Company and Missouri General Insurance Company against their agent, Ernest J. Wartenbee, d/b/a Y Insurance Agency, on account and for an accounting; counterclaim (as amended) by defendant for "direct bill" premiums and for actual and punitive damages.
Plaintiffs, through their receiver, voluntarily dismissed the petition and the court sustained a motion to dismiss defendant's counterclaim and dismissed same "for the reason that Chapter 375 (the Missouri Insurance Code), RSMo 1969 provides the exclusive statutory remedy available to defendant and that the proper venue is in the Circuit Court of Jackson County, Missouri, Division 13."
Appellant charges the court erred in its order of dismissal on grounds that plaintiffs selected Clay County as the forum for their suit and defendant is thus entitled to have his compulsory counterclaim tried in Clay County; that nothing in Chapter 375, RSMo 1969, required dismissal of the counterclaim, and that the result is a denial of his right to jury trial. The question is whether, in the facts and circumstances, defendant's recourse against plaintiffs is under the provisions of Chapter 375, RSMo. Affirmed.
On February 20, 1974, plaintiffs filed their suit against defendant in Clay County. Defendant duly answered and counterclaimed and, on January 31, 1977, filed the counterclaim in issue. In the interim, the following transpired: On September 12, 1975, Division 13 of the Jackson County Circuit Court, on petition of the Director, Division of Insurance of Missouri, and after determination that Medallion Insurance Company and Missouri General Insurance Company were insolvent, enjoined those companies from further prosecution of their business and enjoined all persons from prosecuting any action against them, ordered their liquidation, appointed the Director as their receiver, and directed him to liquidate the affairs of the companies and to compromise actions now pending, all as provided in Sections 375.012-375.916, RSMo 1969. On October 21, 1975, Division 13 of the Jackson County Circuit Court appointed a commissioner of claims to receive and decide all claims against Medallion Insurance Company and Missouri General Insurance Company. 1
On February 10, 1977, plaintiffs, through the receiver, entered the voluntary dismissal of the petition in the Clay County Circuit Court; and, on February 22, 1977, the receiver filed the motion to dismiss defendant's amended counterclaim on the ground that Chapter 375, RSMo., and the Jackson County injunction required such action to be pursued in the receivership proceeding in Jackson County. 2
On June 20, 1977, the court entered the order of dismissal which gave rise to this appeal.
A plaintiff's voluntary dismissal of his lawsuit does not operate to dismiss or discontinue a mandatory counterclaim, Rules 55.32(a) and 67.05; and ordinarily the court in which it was filed would remain the forum for its prosecution free from interference by a court of concurrent jurisdiction. See, e. g., Hartvedt v. Harpst, 216 S.W.2d 539 (Mo.App.1948); Stark v. Moffit, 352 S.W.2d 165 (Mo.App.1961); Davis v. Morgan Foundry Co., 224 Mo.App. 162, 23 S.W.2d 231 (1929); Mott Store Co. v. St. Louis & S. F. R. Co., 173 Mo.App. 189, 158 S.W. 108 (1913); Mott Store Co. v. St. Louis & S. F. R. Co., 254 Mo. 654, 163 S.W. 929 (1913); State ex rel. McDowell v. Libby, 238 Mo.App. 36, 175 S.W.2d 171 (1943).
The circumstances of this case are not the ordinary, however, and in the circumstances, defendant's counterclaim is for hearing only as provided in Chapter 375, RSMo.
The legislature, in enactment of the insurance laws, now Chapter 375, RSMo., "has evidenced an intention to provide an exclusive code for the insurance business, including the course to be followed in the distribution of the assets of a dissolved company among claimants and others entitled thereto, and excluding the application of statutes which might seem * * * to be in conflict with any section of the Insurance Code." O'Malley v. Prudential Casualty & Surety Co., 230 Mo.App. 935, 80 S.W.2d 896, 897(1) (1935). "It is a valid exercise of the police power (with) intention to regulate the business from beginning to end, thereby protecting individual and public interests." State ex rel. Missouri State Life Ins. Co. v. Hall, 330 Mo. 1107, 52 S.W.2d 174, 177 (banc 1932). Note also the full faith and credit accorded such codes. Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947); Relfe v. Rundle, 103 U.S. 222, 26 L.Ed. 337 (1880).
The Director's petition for the liquidation of Medallion Insurance Company and Missouri General Insurance Company upon his belief of their insolvency, and the court's action thereon, are authorized by Section 375.560 RSMo 1969, which provides:
" * * * the superintendent (now director) may institute a suit or proceedings in the circuit court in the county or city in which the company was organized or in which it has or last had its principal or chief office or place of business or in the county of Cole, to enjoin the company from further prosecution of its business, * * * and * * * the court * * * may order the liquidation, settlement and winding up of the affairs of such company * * * as provided in sections 375.010 to 375.920, together with such other decrees and orders in connection therewith as the court shall deem advisable." See also Section 375.570, RSMo.
Appointment of a commissioner to decide on claims, limitations on time for presentation of claims, and...
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