Shelter General Ins. Co. v. Siegler

• Decision Date: 29 April 1997
• Docket Number: 70435,Nos. 70358,s. 70358
• Parties: SHELTER GENERAL INSURANCE CO., Plaintiff/Respondent/Cross-Appellant, v. William SIEGLER, William Phegley, Melvin C. Keeven and Laclede Gas Co., Defendants/Appellants/Cross-Respondents.
• Court: Missouri Court of Appeals

Page 24

945 S.W.2d 24

SHELTER GENERAL INSURANCE CO., Plaintiff/Respondent/Cross-Appellant, v. William SIEGLER, William Phegley, Melvin C. Keeven and Laclede Gas Co., Defendants/Appellants/Cross-Respondents.

Nos. 70358, 70435.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 29, 1997.

Amelung, Wulff & Willenbrock, P.C., Timothy J. Gallagher, Robert A. Wulff, Bryce M. Boswell, St. Louis, for Melvin C. Keeven.

Law Offices of Thomas R. Green, Patrick, H. Gadell, St. Louis, for William Siegler.

Joseph H. Mueller, Robyn G. Fox, St. Louis, for Respondent.

PUDLOWSKI, Judge.

This appeal arises from a judgment entered in a declaratory judgment action filed by Shelter General Insurance Company (Shelter). In the declaratory judgment action, Shelter sought a declaration of its rights, duties and obligations under a general liability policy issued to Kenneth J. Siegler and Henry Siegler d/b/a Siegler Brothers Contractors for claims and lawsuits against William Siegler arising out of an accident that occurred July 11, 1989.

Sometime prior to July 11, 1989, William Phegley contracted with Dorothy Pressman to construct a new addition to her home located in Creve Coeur, Missouri. Phegley contracted with appellant Melvin Keevan (Keevan) to perform the excavation and trenching work for the footings of the new addition and to pour the concrete floor. Keevan, in turn, sub-contracted with William Siegler (Siegler) to perform the necessary excavation and trenching work. The excavation and trenching work was to be performed on the Pressman property in an area where underground gas lines were located. The underground gas lines were owned and/or supplied by Laclede Gas Company and located in an easement and/or "right of way" which had been granted to Laclede Gas.

On July 11, 1989, Siegler struck, pulled and broke an underground natural gas line while performing excavation and trenching work on the Pressman's residential property. Siegler was using a backhoe at the time of the accident. Shortly thereafter, a flash fire ignited resulting in substantial damage to real and personal property in the Pressman household, as well as personal injury to Ngoc Muoi Hua, Pressman's domestic employee.

Dorothy Pressman filed suit in the Circuit Court of St. Louis County seeking compensation for damages against Phegley, Keevan and Siegler. Pressman settled with Keevan and executed a release of her claims against Phegley, Keevan and Siegler. Keevan then filed a suit in St. Louis City against Laclede Gas Company, Phegley and Siegler seeking contribution and apportionment of fault for the damages sustained by Pressman. Laclede Gas Company also filed suit against Siegler in the Circuit Court of St. Louis County, but the case was dismissed without prejudice. Keevan's claim for contribution is the only viable claim remaining.

Respondent/Cross-Appellant, Shelter, then filed a declaratory judgment action on July 14, 1993 in the Circuit Court of St. Louis County to determine its rights and liabilities to William Siegler under a contract of insurance issued to Kenneth J. Siegler (Siegler's father) and Henry Siegler d/b/a Siegler Brothers Contractors as named insureds. Shelter issued a general liability policy of insurance to Siegler Brothers Contractors, bearing policy number 24-31-C-1313248-0001. The policy was effective from October 28, 1988 to August 16, 1989. Neither William Siegler nor an entity known as K.J. Siegler and Son Concrete is listed as an insured on the Shelter policy in effect from October 28, 1988 to August 16, 1989. Kenneth Siegler died in 1986 at which time his wife, Kathleen "Kate" Siegler, mother of appellant Siegler, assumed the partnership vacated by her husband.

Shelter and appellants/cross-respondents, Keevan and Siegler (appellants), filed Cross Motions for Summary Judgment in the Circuit Court. Shelter later filed its Amended Motion for Summary Judgment. In its motion, Shelter claimed that Siegler was not an insured under the policy at the time of the accident. Shelter also alleged that, even if Siegler were insured, the damages which accrued on July 11, 1989 were excluded from coverage pursuant to the "Underground Property Damage Hazard" exclusion contained in the insurance policy.

On December 8, 1995, Shelter filed a motion requesting leave to amend its petition and a memorandum amending by interlineation its petition clarifying that Siegler was not insured under the policy until it was rewritten in 1990. Shelter's original petition did not contest the fact that Siegler was insured under the policy at the time of the accident. Appellants, in their joint motion for summary judgment, alleged that Shelter admitted that Siegler was an insured in its petition. They also alleged that the property damage was covered, because the cause of the damage was Siegler's failure to ascertain the location of the underground gas lines prior to excavation and not the use of the backhoe. The trial court denied Shelter's motion for leave to amend the petition by interlineation.

On March 6, 1996, the trial court partially sustained and otherwise overruled Shelter's motion for summary judgment. The trial court also partially sustained and otherwise overruled appellants' joint motion for summary judgment. The trial court found and declared that Siegler was an insured under the contract. The trial court found that the property damage was caused by Siegler's use of mechanical equipment and as such was excluded from coverage under the underground property damage hazard exclusion.

Appellants appeal the grant of summary judgment excluding coverage for the property damage. Shelter cross-appeals the grant of summary judgment declaring that Siegler was insured under the policy. Shelter also appeals the denial of its motion to amend its petition to include its claim that Siegler was not insured under the policy at the time of the accident.

Because the resolution of the first of Shelter's two cross-appeal points renders its second point and appellants' one point moot, we will address only the first point. Shelter claims that Siegler was not an insured under the policy at the time of the accident, and that the trial court, therefore, erred in granting summary judgment to the appellants on the issue. Appellants claim that Shelter admitted that Siegler was an insured in its petition for declaratory judgment and was thereby estopped from contesting the issue in its summary judgment action. In the alternative, appellants argue that Siegler was an insured because he had assumed the business in lieu of his deceased father and, as such, became an insured.

Summary judgment permits the trial court to enter a judgment where the moving party has demonstrated, on the basis of the facts to which there is no genuine dispute, a right to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The propriety of summary judgment is purely a matter of law and the standard of review, therefore, is de novo. Id. We view the record in the light most favorable to the party against whom judgment was entered. Id.

In its petition for declaratory judgment, Shelter refers to two insurance policies. The petition asserts, in part, that:

13. Shelter General Insurance Company issued a general liability policy of insurance to Kenneth J. Siegler and Henry Siegler, d/b/a Siegler Brothers Contractors, bearing the policy number 24-31-C-131248-1. A copy of the policy is attached and incorporated by reference as Exhibit A. Said policy was effective from October 28, 1988 to October 16, 1989.

14. On August 16, 1990, the policy was rewritten and the insureds were...