Reeves v. Allstate Ins. Co.

• Decision Date: 14 December 2010
• Docket Number: No. SD 30246.,SD 30246.
• Citation: 327 S.W.3d 592
• Parties: James E. REEVES, Plaintiff–Respondent,v.ALLSTATE INSURANCE COMPANY, Defendant–Appellant.
• Court: Missouri Court of Appeals

327 S.W.3d 592

James E. REEVES, Plaintiff–Respondent,

v.ALLSTATE INSURANCE COMPANY, Defendant–Appellant.

No. SD 30246.

Missouri Court of Appeals, Southern District, Division One.

Dec. 14, 2010.

Beth C. Boggs, H. Edward Ryals, Boggs, Avellino, Lach & Boggs, L.L.C., St. Louis, MO, for appellant.James E. Reeves, Ward & Reeves, Caruthersville, MO, and Joseph C. Blanton, Jr., Blanton, Rice, Nickell, Cozean & Collins, LLC, Sikeston, MO, for respondent.Before BARNEY, P.J., LYNCH, J., and BURRELL, J.PER CURIAM.

Allstate Insurance Company appeals the trial court's grant of summary judgment in favor of James E. Reeves and the denial of its motion for summary judgment, both arising from a homeowner's insurance policy claim that resulted from tornado damage to Reeves's property. The trial court sustained Reeves's motion for summary judgment as to Count I of Reeves's First Amended Petition (“the Petition”) and awarded $55,752.82 to Reeves, together with interest and costs for the loss of nine trees on his property. The trial court also sustained that part of Reeves's motion for summary judgment pertaining to Count III of the Petition, confirmed payments made to Reeves by Allstate for repairs to his dwelling and other structures in the amounts of $18,128.39 and $7,474.50,¹ and awarded an additional sum of $18,613.33 for such repairs.² Because Reeves did not have the undisputed right to judgment as a matter of law on either count and the denial of Allstate's motion for summary judgment is not subject to appellate review, we reverse the trial court's judgment on each count and remand the case for further proceedings.

Factual Background

As mandated by Rule 74.04, Reeves attached a statement of uncontroverted material facts to his motion for summary judgment.³ Rule 74.04(c)(1). That rule also requires that “[t]he statement shall state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue[.]” Id. Thus, by filing this statement, Reeves represented to the trial court that there was no genuine issue as to the following material facts.⁴

At all relevant times Reeves was the owner of the “residence premises” located in Caruthersville, Pemiscot County, Missouri. Allstate issued and delivered to Reeves its “Deluxe Plus Homeowners Insurance Policy” No. 95052534 (“the Policy”), insuring Reeves against loss and damage to the “residence premises” caused by tornado and other perils. On April 2, 2006, the “residence premises” sustained loss and damage caused by a tornado. Allstate assigned Reeves's loss and damage to its “National Catastrophe Team” Claim No. 8580400607, Michael E. Warner, Adjuster. On May 7, 2006, Warner prepared an Adjuster Summary showing that Reeves's loss was $18,128.39.

Allstate's policy defines the coverage as follows:

7. Residence premises—means the dwelling, other structures and land located at the address stated on the Policy Declarations.

8. Insured premises—means:

a) the residence premises; and

. . . . .

10. Property damage—means physical injury to or destruction of tangible property, including loss of its use resulting from such physical injury or destruction.

On May 9, 2007, Allstate denied coverage for the loss of the nine trees relying on page 13, paragraph 7 of its policy as follows:

7. Trees, Shrubs, Plants and Lawns

We will pay up to an additional 5% of the limit of liability shown on the Policy Declarations under Coverage A—Dwelling Protection for loss to trees, shrubs, plants and lawns at the address of the residence premises. We will not pay more than $500 for any one tree, shrub, or plant including expenses incurred for removing debris. This coverage applies only to direct physical loss caused by fire or lightning, explosion, riot or civil commotion, aircraft, vehicles not owned by an occupant of the residence premises,vandalism or malicious mischief, theft or collapse of a

building structure

or any part of a

building structure. ( [Allstate's] denial of coverage used the italics.)

We will pay up to $500 for reasonable expenses you incur for the removal of debris of trees at the address of the residence premises for direct physical loss caused by windstorm, hail, or weight of ice, snow or sleet. The fallen trees must have caused damage to property covered under Coverage A—Dwelling Protection.

We do not cover trees, shrubs, plants, or lawns grown for business purposes.

In March 2007, Allstate employed Steve Denton of Cullen & Associates, Belleville, Illinois, an independent adjuster, to inspect and determine the tornado losses, except trees, to the insured premises. Undisclosed to Reeves until Allstate's interrogatory responses, filed in May 2009, Denton prepared a second report that Reeves's actual loss was $44,319.22. The report contained a handwritten note, “Comparison Est Do Not Pay[.]” Denton's undisclosed “Comparison Est Do Not Pay” confirms that Allstate is indebted to Reeves for the underpayment of $18,613.33 ($44,319.22 adjuster's loss less $25,605.89 paid Reeves).

Standard of Review

A motion for summary judgment can be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); see Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006). Appellate review of the grant of a motion for summary judgment is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App.2008). This Court uses the same criteria the trial court should have used in initially deciding whether to grant such a motion. Harris v. Smith, 250 S.W.3d 804, 806 (Mo.App.2008). Appellate review is based upon the record submitted to the trial court. Sexton v. Omaha Prop. & Cas. Ins. Co., 231 S.W.3d 844, 845 (Mo.App.2007). That record is viewed in the light most favorable to the party against whom judgment was entered, and the nonmoving party is accorded the benefit of all inferences which may reasonably be drawn from the record. ITT Comm Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). As summary judgment is “an extreme and drastic remedy,” we exercise great caution in affirming it because the procedure cuts off the opposing party's day in court. Id. at 377. Summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question. Id. at 380.

Discussion

We first consider Allstate's Points 3, 4 and 5, which, as best as we can discern, assert that on the summary judgment record before the trial court, Reeves did not have an undisputed right to judgment as a matter of law on Count I of the Petition.⁵ We agree.

In Count I of the Petition, Reeves maintained that the Policy insured him “against loss and damage to the ‘residence premises' caused by tornado and other perils” and that his “ ‘residence premises' sustained loss and damage caused by a tornado” on April 2, 2006. Referencing the language of the Policy and its definitional provisions,⁶ Reeves maintained he “sustained an insured loss and damage to growing trees, Pecan, Elm, and Oak.” Reeves then asserted that while Allstate made “partial payment” for his loss, he alleged Allstate had “refused to make any payment for loss and damage to growing trees.” Without specifically designating where in the Policy he was accorded coverage for damages to the growing trees, Reeves sought judgment against Allstate for $55,752.82 for the trees plus interest and costs.

On this count, Reeves has the burden of proving that his claim is within the coverage afforded by Allstate's policy. M.A.B. v. Nicely, 911 S.W.2d 313, 315 (Mo.App.1995). Carrying this burden necessarily requires proof of the nature and extent of his claim such that a determination can be made that the claim comes within the coverage provided by the policy. This burden, in the context of his motion for summary judgment as a claimant, required Reeves to identify all material facts upon which he relied to prove the nature and extent of his claim and to demonstrate that “there is no genuine dispute about those material facts.” ITT Comm. Fin. Corp., 854 S.W.2d at 380–81. Reeves's Statement of Uncontroverted Material Facts does not include any facts demonstrating the nature and extent of his claim.

While Reeves, in his Statement of Uncontroverted Material Facts, states that the “ ‘residence premises' sustained loss and damage caused by a tornado,” nowhere in his statement does he state as a fact that this loss and damage included trees, growing or otherwise. Moreover, his factual statement that Allstate “denied coverage for loss of the trees” does not identify that trees were in fact lost, but rather only that Allstate denied coverage for Reeves's claim that trees were lost.

Even if, contrary to our standard of review requiring that we resolve inferences in favor of the non-moving party, we drew from this statement an inference favorable to Reeves that some trees were in fact lost, there are, nevertheless, no facts stated as to the number, kind, size or value of such trees or the location of the trees upon the “residence premises.” ⁷ Were the trees gnarly hedge-apple trees located on the far reaches of the premises or were they stately elms, pecans, or oaks that had been architecturally and structurally incorporated into a building structure on the premises ? Without a factual basis to answer these questions, or to support one of an infinite number of other possible scenarios, any attempt by either the trial court or this Court to apply the policy provisions to determine coverage would be based upon conjecture and speculation, not upon uncontroverted facts. Thus, the trial court's entry of summary judgment as a matter of law on Count I of the Petition in Reeves's favor, finding policy coverage for loss of trees in the amount of $55,752.82, was in error.

In the absence of any uncontroverted factual foundation supporting the nature and extent of his claim, Reeves failed to establish his...