Pediatric Associates Inc. v. Charles L. Crane Agency Co.
| Decision Date | 11 July 2000 |
| Citation | 21 S.W.3d 884 |
| Parties | (Mo.App. E.D. 2000) . Pediatric Associates, Inc., Appellant, v. Charles L. Crane Agency Company, et al., Respondent. Case Number: ED76882 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis, Hon. Evelyn M. Baker
Counsel for Appellant: Matthew J. Padberg
Counsel for Respondent: Edward S. Meyer, Cynthia A. Masterson and Adrian P. Sulser
Opinion Summary: Plaintiff Pediatric Associates, Inc., appeals from the judgment denying plaintiff's motion for pre-judgment interest pursuant to section 408.020, RSMo 1994.
AFFIRMED.
Division One Holds: The trial court did not err in denying plaintiff's motion for pre-judgment interest pursuant to Section 408.020 in that plaintiff prevailed on tort claims and Section 408.040.2 is the only available procedure for obtaining pre-judgment interest in a tort claim.
Opinion Author: PER CURIAM
Appellant, Pediatric Associates, Inc., ("plaintiff"), appeals from the judgment of the Circuit Court of the City of St. Louis denying plaintiff's motion for pre-judgment interest pursuant to Section 408.020 RSMo 1994.1 We affirm.
On February 17, 1995, plaintiff's place of business was flooded and sustained damages. Plaintiff then sought indemnity from its insurance carrier for the loss. The insurance carrier refused to honor the demand on the ground that flood insurance was not provided under its policy.
On June 5, 1996, plaintiff filed a three count petition against the Charles L. Crane Agency Company, ("Crane Agency"), William Wunderlich, ("Wunderlich"), and the Metropolitan St. Louis Sewer District, ("MSD"). MSD was voluntarily dismissed without prejudice by plaintiff, and therefore, only Crane Agency and Wunderlich were left as defendants.
Count I alleged Wunderlich, acting within the scope and course of his employment with Crane Agency, was plaintiff's insurance broker. Based on Wunderlich's recommendations, plaintiff purchased a policy of flood insurance in 1980. Plaintiff also alleged that, unbeknownst to it, the policies procured by Crane Agency, subsequent to 1982, did not contain flood insurance. Plaintiff alleged defendants were negligent and careless for failing to notify plaintiff it was no longer protected of such; failing to conduct a yearly review of plaintiff's policies and needs; failing to provide plaintiff with policies and quotes which included flood insurance protection; and, failing to refer plaintiff to a firm providing flood insurance protection. Count I also alleged plaintiff's place of business had flooded and sustained damages in excess of $65,000. Count I concluded with the assertion that but for the negligence of defendants, plaintiff would have been indemnified by its insurance carrier.
In Count II, plaintiff asserted defendants implicitly agreed to provide plaintiff with insurance policies and insurance quotes that would include flood insurance protection. Further, plaintiff alleged, in breach of the agreement, defendants failed to provide plaintiff with flood protection insurance and as a result, plaintiff was damaged. In both counts, plaintiff sought judgment in excess of $25,000, plus pre-judgment interest.
On May 20, 1999, a jury found in favor of plaintiff on the negligence and breach of fiduciary duty claims, and awarded plaintiff $50,000. The jury found for defendants on the breach of contract claim.
On June 18, 1999, plaintiff filed a motion for pre-judgment interest. Plaintiff's memorandum in support of its motion indicates the motion is based on Section 408.020. Argument on the motion was heard August 4, 1999. The trial court did not rule on plaintiff's motion and it was deemed overruled on September 16, 1999. Plaintiff then filed a timely notice of appeal.
Plaintiff raises one point on appeal. It alleges the trial court erred in failing to order defendants to pay pre-judgment interest to plaintiff, in that plaintiff's damages of $50,000 was a liquidated sum, subject to pre-judgment interest under Section 408.020, because plaintiff had lost use of its property and money on the jury award, and that sum was ascertainable by a recognized standard. We disagree.
Section 408.020 provides:
Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; for money recovered for the use of another, and retained without the owner's knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.
In Union Pacific R. Co. v. Carrier Consul., 973 S.W.2d 500, 503 (Mo.App.E.D.1998), wherein...
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...in Union Pacific R. Co. v. Carrier Consultants, Inc., 973 S.W.2d 500 (Mo.App. E.D.1998) and Pediatric Associates, Inc. v. Charles L. Crane Agency Co., 21 S.W.3d 884 (Mo.App. E.D. 2000). Rois argues both cases support his position that prejudgment interest in a tort case is not recoverable u......
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