Pannell v. Missouri Ins. Guaranty Ass'n

• Decision Date: 04 February 1980
• Docket Number: No. KCD,KCD
• Citation: 595 S.W.2d 339
• Parties: William H. PANNELL, Respondent, v. MISSOURI INSURANCE GUARANTY ASSOCIATION, Appellant. 29455.
• Court: Missouri Court of Appeals

Page 339

595 S.W.2d 339

9 A.L.R.4th 378

William H. PANNELL, Respondent, v. MISSOURI INSURANCE GUARANTY ASSOCIATION, Appellant.

No. KCD 29455.

Missouri Court of Appeals, Western District.

Feb. 4, 1980.

Motion for Rehearing and/or Transfer Denied March 3, 1980.

J. Michael Cronan, Jackson & Sherman, P. C., Kansas City, for appellant.

William C. Partin, Kansas City, for respondent.

Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.

SOMERVILLE, Presiding Judge.

William H. Pannell (insured) sued Missouri Insurance Guaranty Association (association) for damages arising from theft of his automobile under the comprehensive coverage of a "Family Combination Automobile Policy" issued by Missouri General Insurance Company (company), the latter having become insolvent and placed in receivership. In addition to damages claimed under the policy, insured also sought damages and reasonable attorney's fees against the association for vexatious delay pursuant to Section 375.420, RSMo 1969.

Commencing on January 31, 1977, and concluding on February 3, 1977, the case was tried to a jury which, by its verdict, found for the insured and assessed damages in his favor in the amount of $3,850.00 under the policy plus $577.50 as prejudgment interest, and the further sums of $385.00 as a penalty and $4,000.00 as an attorney's fee pursuant to Section 375.420, supra. The court entered judgment in favor of the insured and against the association in the amount of $8,812.50, the aggregate sum assessed by the jury in its verdict. The association, after its motions for judgment notwithstanding the verdict and new trial were overruled, timely appealed.

Setting forth the points relied on by the association on appeal will be deferred until a factual background against which they must be measured has been laid. Until then, it is impossible to intelligibly relate to them because at this juncture they rest in an academic, abstract context.

On July 18, 1972, the insured purchased a 1971 Cadillac Coupe DeVille from B & G Motor Co. of K.C., Inc., Kansas City, Missouri. The purchase price was $5,400.00. Insured paid $1,000.00 down and financed the remainder through the seller, B & G Motor Co. of K.C., Inc., who shortly thereafter endorsed the note and assigned the security agreement concerning the unpaid balance to the Southside Bank of Kansas City (bank). At the time of the sale the automobile was titled in the name of B & G Motor Co. of K.C., Inc., and it assigned the certificate of title (Missouri) to the insured. The insured was living at 1327 Waverly, Kansas City, Kansas, at the time. Consequently, insured undertook to have the automobile registered in Kansas, and to obtain Kansas license plates for it. Insured was unsuccessful in doing so because he lacked the funds necessary for registering and licensing the automobile in Kansas. Not to be thwarted by a lack of funds, the insured borrowed some license plates from his brother which had been obtained for another automobile and placed them on the automobile purchased from B & G Motor Co. of K.C., Inc. The record fails to disclose how long the borrowed license plates were used on the automobile.

At some undisclosed point of time the insured moved from Kansas to Missouri and on July 9, 1974, was living at 5323 Myrtle, Kansas City, Missouri. On July 9, 1974, at approximately 10:00 A.M., the insured went to visit a girl friend who was living in a two bedroom apartment at 3241 McGee, Kansas City, Missouri. The girl friend shared the two bedroom apartment with her brother, and at the time the brother shared his bedroom with a male friend named Michael White. The insured's girl friend was totally lacking in knowledge as to whether or not Michael White had a "criminal record" or had ever been in any kind of trouble.

When the insured arrived at the apartment he parked his automobile (the 1971 Cadillac Coupe DeVille) and locked it. Upon entering the apartment the insured and his girl friend drank some coffee in the kitchen of the apartment, at which time insured placed the keys to his automobile on a kitchen table. A short time later both went into the girl friend's bedroom where they fell asleep. The keys to the automobile were left on the kitchen table. When the two entered the bedroom the brother of the female acquaintance was away at work and Michael White was in the brother's bedroom with the door closed. Sometime between 12:00 noon and 1:00 P.M. insured's girl friend awakened, left the bedroom, and looked out a balcony window of the apartment in the direction of where the insured usually parked his automobile. Failing to see the insured's automobile, she awakened the insured and he confirmed that he had parked his automobile in the usual place. Upon receipt of this information she again looked out the balcony window and confirmed her suspicion that the insured's automobile was gone. She then went to her brother's bedroom to ask Michael White "about it" and discovered that he had left and taken all his clothes with him. A check of the kitchen table revealed that the keys to the insured's automobile were missing.

The police were immediately called and they arrived at the apartment around 3:00 P.M. and interviewed both the insured and his girl friend. In addition to certain basic information regarding the automobile and attendant circumstances surrounding its disappearance, the insured informed the investigating police officers that Michael White did not have permission to drive the 1971 Cadillac Coupe DeVille and that Michael White had apparently removed the keys from the kitchen table and taken the automobile. The officer in charge prepared a stolen vehicle report which the insured signed. Contained therein was an affirmation that insured was "aware of the fact that it was unlawful to make a false report to a Police Officer", that the information set forth was "true and correct", and that he (insured) would "assist in the prosecution of any person or persons responsible for the theft" of the "described motor vehicle". In addition, the insured orally reaffirmed to the investigating officers that he would assist in the prosecution of the person responsible for the theft of his automobile.

On the same day, to wit, July 9, 1974, insured contacted the company by phone and reported that his automobile had been stolen. In addition, on July 9, 1974, the insured reported the theft to his insurance agent, and the latter completed "a proof of claim form" ¹ and mailed the same to the company (apparently on July 9, 1974) advising that insured's 1971 Cadillac Coupe DeVille had been stolen on July 9, 1974.

On or about July 10, 1974, insured's girl friend called Michael White's sister in Baton Rouge, Louisiana, and was informed that Michael White was in Burlington, Kansas. Other evidence revealed that Michael White was in custody of the police in Burlington, Kansas, for failing to pay for some gasoline obtained at a service station in Burlington, Kansas. Michael White's whereabouts was conveyed to the insured and he made a trip to Burlington, Kansas, in an effort to recover his stolen automobile. Through some unexplained mix-up Michael White and the stolen automobile were released before the insured arrived in Burlington, Kansas.

On August 2, 1974, Miss Gray, an adjuster for the company, contacted the insured by phone and took a recorded statement from him concerning the theft loss. A transcript of the recorded statement was offered and admitted into evidence as an exhibit upon the stipulation of both parties that it was "a transcript of the telephone call" and "conversation" that ensued between the insured and Miss Gray on August 2, 1974. By way of a general summarization, the "transcript" disclosed the following: the insured was the owner of a 1971 Cadillac Coupe DeVille, tudor hardtop with a black top and a white bottom, which was stolen on July 9, 1974, while parked at his girl friend's apartment; details surrounding the circumstances of the theft and insured's attempt to recover the automobile in Burlington, Kansas, corresponded to those previously set forth in this opinion; the stolen automobile was equipped with air-conditioning, power steering, power brakes, automatic door locks and windows, AM-FM radio, built in tape, and General tires, purchased the previous year at a cost of approximately $80.00 per tire, with roughly 10,000 miles on them at the time the automobile was stolen; there was a dent in the front left fender of the automobile which the company had previously reimbursed the insured for in the amount of $322.00; and the odometer reading on the automobile at the time it was stolen was approximately 60,000 miles.

On August 13, 1974, a loan officer for the bank which had purchased the dealer paper on the 1971 Cadillac Coupe DeVille called the company and made inquiry of Miss Gray as to when the theft loss claim was going to be paid. She informed the bank's loan officer that the company needed more information and that the claim would then have to be presented to their claims committee to determine any loss. Miss Gray did not explicate as to what additional information was needed.

The insured had three or four additional conversations with Miss Gray, the dates of which are not revealed by the record, and during the course of the last conversation Miss Gray informed the insured that he didn't have a claim because his automobile had not been stolen.

On October 17, 1974, the FBI notified the bank's loan officer that the 1971 Cadillac Coupe DeVille had been located at Dealers Wrecker Service in Baton Rouge, Louisiana. This information was passed on to the insured who, in turn, passed the information on to Miss Gray, the company's adjuster. On November 5, 1974, the insured, at the direction of the bank's loan officer, sent a letter to Dealers Wrecker Service in Baton Rouge, Louisiana, advising that the 1971 Cadillac which they were holding belonged to him and had been stolen in ...