Olson v. Auto Owners Ins. Co., 49777
| Decision Date | 19 November 1985 |
| Docket Number | No. 49777,49777 |
| Citation | 700 S.W.2d 882 |
| Parties | Dayle OLSON and Henrietta Olson, Respondents, v. AUTO OWNERS INSURANCE COMPANY, an insurance corporation, and Western Auto Insurance Company, (Western Casualty Insurance Co.) an insurance company, Appellants. |
| Court | Missouri Court of Appeals |
Dale L. Davis, E. Mitchell Hough, Bussell, Hough, O'Neal, Crouch & Hall, Springfield, for appellants.
Robert L. Hyder, Hyder & Prenger, Jefferson City, for respondents.
This is a civil action seeking recovery of proceeds under two fire insurance policies. This appeal followed the entry of summary judgment. The judgment is reversed and the cause remanded.
While appellants, Auto-Owners Insurance Company and Western Casualty and Surety Company present five points on this appeal, due to the disposition herein, only one point is taken up and ruled upon and there is no necessity to address the remaining points. In summary, appellants charge the trial court erred in entering summary judgment because the affidavits and exhibits filed by appellants raised or presented genuine issues of material facts.
The record reveals the following pertinent facts:
Respondents Dayle and Henrietta Olson, original plaintiffs at trial, filed their second amended petition on April 29, 1982, seeking recovery of the proceeds of two fire insurance policies. The alleged loss occurred on May 4, 1980. Respondents had filed two previous petitions, to which both appellants filed pre-answer motions, to which respondents filed motions for summary judgment. Related to the original and first amended petition, the trial court overruled respondents' motion for summary judgment and sustained appellants' motion to dismiss. Under the second amended petition, the trial court entered summary judgment for respondents and this appeal followed.
Under their second amended petition, respondents allege that they were the owners of a building which was destroyed by fire; that appellants had issued policies to respondents insuring said property against loss or damage by fire; that said policies were in full force and effect at the time of the loss; and that, therefore, appellants are liable to respondents in the amounts of the policies. Respondents also claimed amounts for vexatious refusal to pay, attorney's fees, and interest. These claims were dismissed by respondents after the trial court sustained their motion for summary judgment on the policies.
On May 6, 1982, appellants filed their pre-answer motions to dismiss, to strike and for more definite statement. These motions were never ruled upon by the trial court.
Respondents filed their motion for summary judgment on September 10, 1982, which, in summary, alleged that there existed no issue of fact between respondents and appellants in all the pleadings before the court; that respondents owned policies of insurance issued by appellants insuring aforementioned property against loss or damage by fire; that said property was destroyed by fire; that said policies were in full force and effect at the time of the loss; that respondents had filed appropriate statements with appellants' adjusters and furnished all information required by appellants' adjusters; and that therefore, appellants were liable to respondents in the amount of the policies. Attached to respondents' motion for summary judgment was the affidavit of respondent Dayle Olson which stated that the facts set forth in said motion for summary judgment were true to the best of his information, knowledge and belief.
Appellants filed suggestions in opposition to respondents' motion for summary judgment on September 20, 1982, in which they asserted, among other things, that there remained genuine issues of fact between the parties. In support of this assertion, appellants attached to and incorporated into their suggestions copies of three letters (dated December of 1980) which had been sent to respondents by appellants' attorneys. The letters informed the respondents that appellants were refusing their (respondents') claims for the reason that respondents had fraudulently concealed or misrepresented certain material facts or circumstances relating to the policies and that, therefore, pursuant to clauses contained in the policies, the policies were void. In these letters, appellants' attorneys set out specific instances in support of their allegations.
On January 3, 1983, appellants filed additional suggestions in opposition with affidavits from witnesses whose sworn statements further supported appellants' first and additional suggestions in opposition.
Finally, on January 5, 1983, appellants filed their second additional suggestions in opposition with affidavit asserting that the policies in question were not in full force and effect at the time of the loss due to respondents breach of the "fraudulent concealment" provisions, and that the appellants were also asserting the affirmative defense of "incendiarism by the insured." (An earlier-filed affidavit by Paul E. Woods, investigator for the Missouri State Fire Marshal's Office, stated that the affiant had investigated the fire in question and that based upon his examination and observation, he was of the opinion that the fire was incendiary.)
On January 17, 1983, respondents filed their suggestions in support of their motion for summary judgment. Thereafter, the case was inadvertently placed back in the general file to await the filing of appellants' response to respondents' brief, and when no response was filed the case was not pulled out for ruling. Therefore, the next activity on the docket was the notice on December 26, 1984, that the case was being removed to the dismissal docket.
Subsequently, the trial court entered its order on January 11, 1985, granting summary judgment in favor of respondents. When the appellants were notified of the order granting summary judgment, the court had dated the order January 11, 1985. However, the appellants filed a written motion for reconsideration in which they complained that they were not given a hearing on respondents' motion for summary judgment. The trial court subsequently granted appellants a hearing during which the court ruled in favor of respondents on their motion for summary judgment, and declared that the judgment would be entered as of the date of the hearing (February 7, 1985) instead of the...
To continue reading
Request your trial
-
Y.G. v. Jewish Hosp. of St. Louis
...must be exercised in granting a motion for summary judgment because it "borders on denial of due process." Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 884 (Mo.App.1985). Summary judgment may be granted only when the pleadings, depositions, admissions and affidavits on file show that ther......
-
ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., MID-AMERICA
...that the procedure "borders on denial of due process in that it denies the opposing party his day in court." Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 884 (Mo.App.1985). Accord Miller v. United Security Ins. Co., 496 S.W.2d 871, 875 (Mo.App.1973); Kroger Co. v. Roy Crosby Co., 393 S.W.......
-
Mems v. Labruyere
...borders on the denial of due process in that it denies the opposing party their day in court. Id. (citing Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 884 (Mo.App.E.D. 1985). Although it is useful and beneficial in many situations, it cannot replace a conventional trial of factual issues ......
-
State ex rel. Trans World Airlines v. David
...matters do not constitute "pleadings." Rule 55.01; Wulff v. Kakadiaris, 856 S.W.2d 128, 130 (Mo.App.1993); Olson v. Auto Owners Ins. Co., 700 S.W.2d 882, 885 (Mo.App.1985); State v. James, 347 S.W.2d 211 (Mo.1961); Smith v. Smith, 327 Mo. 632, 37 S.W.2d 902, 904 (1931); Graff v. Dougherty, ......