Shelter Mut. Ins. Co. v. Kramer, 15051

• Decision Date: 15 December 1987
• Docket Number: No. 15051,15051
• Citation: 741 S.W.2d 302
• Parties: SHELTER MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. David L. KRAMER and Sherry Kramer, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 302

741 S.W.2d 302

SHELTER MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. David L. KRAMER and Sherry Kramer, Defendants-Appellants.

No. 15051.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 15, 1987.

Winston V. Buford, R. Randall Turley, David G. Neal Law Firm, Eminence, for defendants-appellants.

Kenneth H. Reid, M. Sean McGinnis, Sherry A. Rozell, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, Don Henry, West Plains, for plaintiff-respondent.

FLANIGAN, Judge.

This appeal must be dismissed as premature for lack of a final judgment.

This is a declaratory judgment action filed by plaintiff-respondent Shelter Mutual Insurance Company, ("Shelter"), against defendants-appellants David L. Kramer and Sherry Kramer. On June 18, 1981 Shelter, then MFA Mutual Insurance Company, issued a policy of insurance to the Kramers. The policy, which had a term of three years, contained fire coverage with respect to a two-story frame house and household goods "in above-described building," owned by the Kramers near Birch Tree, Missouri. On March 21, 1982, the house and its contents were destroyed by fire.

The policy contained a "loss payable" clause in favor of Winona Savings Bank as mortgagee of the premises on which the house was located. In 1979 the Kramers executed a promissory note in the principal sum of $56,000 in favor of the bank and secured the note with a deed of trust on the land on which the house was located. In 1980 the Kramers executed another note in the principal sum of $7,500 in favor of the bank and again gave a deed of trust on the land as security.

On April 21, 1982, Shelter wrote the Kramers and informed them that Shelter denied any liability to the Kramers under the policy. On April 27, 1982, Shelter paid the bank $42,648.95, representing the unpaid balances on the two notes and the bank assigned the two notes to Shelter. In 1984 Shelter commenced foreclosure proceedings but "cancelled" them after the attorney for the Kramers informed Shelter that the Kramers did not believe Shelter had the right to foreclose and that Shelter was liable to the Kramers for the fire loss.

On September 4, 1984, Shelter filed the declaratory judgment action against the Kramers. The petition, in addition to alleging the foregoing facts, alleged that the policy was void because defendants had committed "fraud and false swearing in the Proof of Loss." The petition also alleged "that the policy was suspended at the time of the fire because the dwelling had been vacant and unoccupied for a period of at least 60 consecutive days prior to the fire loss." The petition cited respective provisions of the policy in connection with each basis for denying coverage.

The petition further alleged that a controversy existed between Shelter and the Kramers and that the Kramers had asserted that Shelter may be liable for damages or penalty for vexatious delay and refusal to pay.

The petition further alleged that Shelter "desires the Court to determine whether the policy is void by reason of Defendants' alleged fraud or false swearing in making the Proof of Loss as alleged hereinabove, or whether the policy was suspended by reason of the fact that the dwelling was unoccupied for more than sixty (60) consecutive days prior to the loss, whether [Shelter] has the right to enforce payment of the promissory notes and foreclose pursuant to the terms of the deeds of trust, and whether [Shelter], if liable to Defendants under the policy, is liable for damages or penalty for vexatious delay and refusal to pay." (Emphasis added.)

The prayer of the petition was that the court determine the rights and liabilities of the parties under the policy, including a declaration of whether the policy was void or suspended at the time of the fire, "whether [Shelter] has the right to enforce payment of the note (sic) and foreclose on the real estate ... and whether [Shelter], if liable to the defendants for loss to the contents in the house at the time of the loss, is liable for damages or penalty for vexatious delay and refusal to pay."

Defendants filed an answer in which they admitted many of the allegations of the petition but denied that they had committed fraud or false swearing in the proof of loss and also denied that the policy was suspended at the time of the fire.

Defendants also filed a...