MFA Mut. Ins. Co. v. Thost

• Decision Date: 03 January 1978
• Docket Number: No. 38107,38107
• Parties: MFA MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. Helen THOST et al., Defendants, and Hartford Accident & Indemnity Company, a corporation, Intervenor-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 431

561 S.W.2d 431

MFA MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. Helen THOST et al., Defendants, and Hartford Accident & Indemnity Company, a corporation,

Intervenor-Appellant.

No. 38107.

Missouri Court of Appeals, St. Louis District, Division One.

Jan. 3, 1978.

Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

Application to Transfer Denied March 13, 1978.

Godfrey, Vanover & Burns, Inc., James E. Godfrey, St. Louis, for intervenor-appellant.

Kortenhof & Ely, St. Louis, Robert Lee Smith, Hillsboro, for Crews.

William L. Pannell, Festus, for Harry Clark.

SMITH, Judge.

Intervenor, Hartford Accident and Indemnity Company, appeals from a declaratory judgment following a trial to the court. The judgment entered declared that plaintiff, MFA Mutual Insurance Company, was relieved of all liability to defend any suit or to pay any judgment arising from a specified automobile accident involving an automobile insured by MFA and operated by either Helen Thost or Harry Clark, defendants. Thost and Clark had been sued in a separate action by defendants Lloyd and Carol Crews for damages sustained as a result of injuries to Lloyd Crews incurred in the accident. The trial court's judgment was based upon its finding that Thost and Clark had breached a condition of the policy by failing to cooperate with MFA in not disclosing all pertinent facts known to them. Hartford is the carrier of Crews' uninsured motorist coverage.

The accident occurred in the early morning hours of December 8, 1973, near DeSoto, Missouri. At the scene of the accident approximately 20 minutes after it occurred, Miss Thost told a highway patrolman she was the operator of the insured vehicle and that Harry Clark was a passenger in the vehicle. On the same day as the accident, Miss Thost filled out a claim form for MFA and four days later gave a recorded statement to its claim agent. In each she stated she was the operator of the insured vehicle, that Harry Clark was a passenger in that vehicle and that she did not know or remember how the accident happened. On Form SR 21 prepared in January 1974 for filing with the State of Missouri pursuant to the Safety Responsibility Law, she also indicated that she was the operator of the vehicle. On January 10, 1975, Miss Thost gave a deposition in the Crews' suit, wherein she testified that Harry Clark was the driver of the insured vehicle at the time of the accident and that she was asleep in the front passenger seat when the accident occurred. She advised an MFA representative of the change in her story immediately before giving the deposition.

Following Miss Thost's deposition testimony, MFA stopped all further investigation of the accident, changed lawyers and filed its declaratory judgment action.

At trial certain additional information was elicited from Miss Thost. She admitted she had been drinking heavily prior to the accident which she stated was the reason Mr. Clark was driving the vehicle. Prior to the accident Clark had stopped at a service station and the attendant there had seen and recognized Miss Thost and had indicated his recognition to her. There was no evidence that any attempt to locate this witness was made by MFA and the witness was not produced at the hearing. Miss Thost "ran around with" Mr. Clark, the father of a school friend. The damage to the Thost car was such that the driver's door could not be opened. The vehicle was owned and insured by Miss Thost's father, but she was a "part owner", the primary operator, and was allowed to let other people drive it.

Harry Clark denied throughout the investigation and at the trial that he was driving the vehicle, that he was a passenger therein, or that he was at the scene of the accident. He testified he had seen Miss Thost shortly before the accident at a tavern in DeSoto. He testified that he saw her sitting in the passenger seat of the car, asked her how she felt and upon being told "I'll be alright after I rest a while" he got in his car and drove directly home.

The testimony of the highway patrolman was that Miss Thost stated to him she was the operator of the insured car and Harry Clark was a passenger. The patrolman further testified that Miss Thost was coherent and not "too upset", that there was no indication anyone other than Miss Thost was driving the car; and that the patrolman did not observe Harry Clark at the scene.

An independent witness testified that he did not see the collision but did see the dust from it and the headlights go out. He parked his car and arrived on foot at the accident scene within 60 seconds of the collision. He saw only Miss Thost in the insured vehicle. She was on the passenger side. He saw no one get out of her vehicle, heard no footsteps or doors close, and saw and heard nothing to indicate anyone else was in the vehicle.

MFA's claim's manager stated as a conclusion that he relied upon the original statements of Miss Thost, but did not specify in what way. He admitted that her change in story in no way affected the company's ability to locate witnesses.

The trial court found that the original story of Miss Thost was false and that the false statements prejudiced MFA and that MFA relied upon the false statements of both Thost and Clark "to its detriment in the acceptance and preparation of the defense in cause No. 45376." (Emphasis supplied).

Under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) our standard of review is to sustain the decree unless (1) there is no substantial evidence to support it, (2) it is against the weight of the evidence, (3) unless it erroneously declares the law or (4) unless it erroneously applies the law.

The insurance policy in question contains the following provision: "Assistance and Cooperation of the Insured The Insured shall cooperate, with the Company, disclosing all pertinent facts known or available to him . . . ." There is no forfeiture provision in the policy for breach of this condition. Cooperation agreements are valid and enforceable in this state. Quisenberry v. Kartsonis, 297 S.W.2d 450 (Mo.1956) (1-4); Meyers v. Smith, 375 S.W.2d 9 (Mo.1964) (6, 7). The cases in this state are not in agreement whether such a provision is a condition precedent or condition subsequent to recovery on the contract. The label is of little consequence. Under Missouri law,...