Meeker v. Shelter Mut. Ins. Co.

• Decision Date: 10 February 1989
• Docket Number: No. 15421,15421
• Parties: David J. MEEKER and Barbara A. Meeker, Plaintiffs-Appellants, v. SHELTER MUTUAL INSURANCE CO., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 733

766 S.W.2d 733

David J. MEEKER and Barbara A. Meeker, Plaintiffs-Appellants, v. SHELTER MUTUAL INSURANCE CO., Defendant-Respondent.

No. 15421.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 10, 1989.

Motion for Rehearing or to Transfer to

Supreme Court Denied March 9, 1989.

Application to Transfer Denied April 18, 1989.

Jerry L. Reynolds and Ronald A. Conway, Springfield, for plaintiffs-appellants.

E.C. Curtis, Phillip R. Garrison, Farrinton and Curtis, Springfield, for defendant-respondent.

PER CURIAM.

Plaintiffs, David and Barbara Meeker, appeal from the trial court's judgment affirming jury verdicts in favor of defendant, Shelter Mutual Insurance Company (Shelter), in the Meekers' lawsuit against Shelter, and in favor of Shelter and against the Meekers on Shelter's counterclaims.

In 1983, the Meekers had a homeowners insurance policy issued by Shelter providing coverage for damage to, or loss by fire of, their dwelling in Branson, Missouri, plus coverage for loss of their personal property, additional living expenses caused by the fire loss, debris removal and other items of damage. On July 18, 1983, the Meeker home and all of its contents were destroyed by fire. The Meekers made a demand on Shelter to pay the proceeds of the insurance policy. Shelter denied coverage The Meekers then sued Shelter and its sales agent, Pat Bishop, who had obtained the information on the application for insurance from the Meekers which resulted in the issuance of the policy in question. Their first amended petition was in nine counts. Count I claimed dwelling coverage in the amount of $84,000, and requested $8,550 statutory fees and $42,000 attorney's fees. Count II claimed personal property coverage in the amount of $46,200, and requested $4,770 statutory penalty and $23,100 attorney's fees. Count III claimed additional living expense coverage in the amount of $16,800 (the Meekers had already received an advance from Shelter in the amount of $1,500, so they sued for $15,300, i.e. the balance of the $16,800 coverage), and requested $7,650 attorney's fees. Count IV claimed removal of debris coverage in the amount of $2,500, and requested $400 statutory penalty and $1,250 attorney's fees. Count V, against Shelter and Bishop, alleged the defendants unlawfully conspired together to deprive Meekers of payment under the insurance policy, and requested damages in the sum of $750,000 in actual damages, plus $2,000,000 in punitive damages, plus reasonable attorney's fees. Count VI claimed Shelter was negligent in its conduct in denying Meekers' claims, and prayed for damages of $750,000 actual damages and $2,000,000 punitive damages, plus reasonable attorney's fees. Count VII, also against Shelter and Bishop, alleged Bishop was negligent in his completion of the application for insurance in January, 1981, requesting $750,000 in actual damages and $2,000,000 as punitive damages, plus reasonable attorney's fees. Count VIII claimed against Shelter for other structures coverage in the sum of $1,000, plus $200 statutory penalty, and $400 attorney's fees. Count IX claimed insurance coverage for loss of trees, shrubs, plants and lawns in the sum of $1,500, $300 statutory penalty, and $600 attorney's fees. Counts I, II, IV, VIII and IX requested 9 percent interest from and after September 9, 1983, on the amounts claimed.

contending that the policy was void because when the Meekers applied for the homeowners policy, they made false representations regarding their prior fire losses, and that Shelter would not have issued the policy if the Meekers had truthfully stated the facts at the time they made application for insurance coverage.

Prior to the fire loss in question, David and Barbara Meeker had taken out two loans on which their real estate and various items of personal property were used as collateral. After the fire, Shelter purchased the promissory notes--one from Great Southern Savings and Loan Association, and the other from Boatmen's Bank of Taney County. These two promissory notes are the basis of Counts I and II of Shelter's three-count counterclaim against the Meekers. Count I was on the note purchased from Great Southern Savings and Loan Association having a principal and interest balance of $36,994.16 with interest at 9 1/4 percent per annum. Count II was on the note purchased from Boatmen's Bank of Taney County having a principal and interest balance of $37,842.27 with interest at the rate of 14 percent per annum. In Count III, Shelter sued the Meekers for $1,500 advance money paid to the Meekers by Shelter after the fire loss. Count III was not submitted to the jury by Shelter. However, the trial court, in response to Shelter's after-trial motion, entered judgment in favor of Shelter on Count III for $1,500.

Prior to trial, the court dismissed Counts V, VI, and Count VII of the Meekers' first amended petition pursuant to the motions to dismiss filed by Shelter and Bishop. In their motions to dismiss, Shelter and Bishop claimed that Meekers' claims asserted in these counts were preempted by the vexatious delay penalty statute § 375.420. ¹

The case was tried before a jury. After evidence was heard, Shelter's motion for directed verdict on Count III of the Meekers' petition, which was the claim for additional living expenses, was sustained by the In their brief filed here, the Meekers allege 13 claims of trial court error. We affirm the trial court's judgment, as none of the points relied on have merit, and many of them border on the frivolous. The facts and legal issues of the case are quite simple, although the Meekers' attorney uses 761 pages of legal file, 1,098 pages of transcript, and 111 pages of appellate brief to try to convince us that they are not.

trial court. The jury then found for Shelter on the remaining counts of the Meekers' petition, and found for Shelter and against the Meekers on Counts I and II of Shelter's counterclaim, but neglected to compute interest on the amounts due which had been requested on those claims. The trial court then entered judgment, conforming to the jury's verdict, in favor of Shelter on Counts I, II, IV, VIII and IX of the Meekers' first amended petition. In response to Shelter's after-trial motion regarding its counterclaim in which it requested that the trial court compute the interest due on Counts I and II, and to enter judgment on Count III of its counterclaim, the trial court entered judgment in favor of Shelter for $36,071.96 plus $13,149.22 interest on Count I, $37,130.19 plus $19,722.68 interest on Count II, and $1,500 on Count III of the counterclaim. This appeal followed.

Viewed in the light most favorable to support the jury verdicts and the trial court's judgment, the facts are as follows. In January of 1981, Pat Bishop, a Shelter insurance agent in Branson, Missouri, was contacted by Barbara Meeker about the possibility of writing a homeowners policy to cover the Meekers' home and its contents. Bishop went to the Meeker home on January 26, 1981, to take an application for a homeowners policy. Barbara and David were present at all times when the application was being discussed. The Meekers wanted dwelling coverage for fire loss in the amount of $80,000, $8,000 for other structures, $40,000 personal property, and $16,800 additional living expense. From the printed questions required to be answered by the applicant on the application for a homeowners policy, Bishop read to David and Barbara the question, "Have you or any member of your household had any fire, property, theft or liability losses; (whether insured or not)?" In response to information he received from the Meekers, Bishop wrote the following in the answer space: "1976-2X mobile home faulty wiring cause of fire." Bishop testified he used "2X" as meaning a double-wide mobile home. David J. Meeker signed the application under date of "1/26/81," and gave Bishop a check in the amount of $297.60 for the first year's premium, after which Bishop completed the binder portion of the application placing coverage in effect as of January 30, 1981, and continuing for 12 months thereafter. Bishop testified that he was not aware that the Meekers had had numerous prior fire losses, and that he would not have issued the binder had he known of them. Based on the information contained in the Meekers' application, Shelter's underwriter approved the application and a policy for a period of one year from January 30, 1981, was issued. The policy thereafter was renewed for an additional one year, ending January 30, 1983.

The Meekers did not pay the renewal premium which was due on January 30, 1983, until February 15, 1983. ² Shelter then reissued the policy, and a new declaration sheet was issued, reissuing insurance coverage for 12 months beginning February 15, 1983. The new declaration sheet reads:

REISSUE OF

POLICY NUMBER 24-71-000877832-0001

ATTACHED TO POLICY FORM NO: HO-3 (01-82)

ATTACH THIS TO THE POLICY SHOWN ABOVE REPLACING DECLARATIONS ON THAT POLICY

The policy number referred to in the declaration is the number of the policy issued effective January 30, 1981, and insured the same property as listed in the application which the Meekers submitted on January 26, 1981.

General policy condition 3 on page 16 of the policy provides:

3. CONCEALMENT OR FRAUD. This entire policy is void as to all insureds if any insured has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.

After the fire in question, which the evidence indicates was of incendiary origin, the Meekers were contacted by Robert Barnett, an adjuster for Shelter, who took recorded statements from them regarding the fire. Mrs. Meeker admitted not one, but five prior structure fire losses, as well as various vehicle losses due to fires. The first structure fire occurred in Dewitt, Iowa, around 1965, where the Meekers were living at that time. Their home burned, and their...