State ex rel. Liberty Mut. Ins. Co. v. Gum, No. WD

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: ULRICH
• Citation: 904 S.W.2d 447
• Parties: STATE of Missouri, ex rel. LIBERTY MUTUAL INSURANCE COMPANY, Relator, v. The Honorable Carl D. GUM, Respondent. 50086.
• Decision Date: 27 June 1995
• Docket Number: No. WD

Page 447

904 S.W.2d 447 STATE of Missouri, ex rel. LIBERTY MUTUAL INSURANCE COMPANY, Relator,
v.
The Honorable Carl D. GUM, Respondent. No. WD 50086. Missouri Court of Appeals,
Western District. June 27, 1995.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Aug. 1, 1995.
Application to Transfer Denied
Sept. 19, 1995.

Page 448

Paul L. Wickens, Mark E. Harris, Morrison & Hecker, Kansas City, for relator.

Andrew J. Gelbach, Warrensburg, John E. Turner, Kansas City, Robert Harris, Warrensburg, for respondent.

Before BRECKENRIDGE, P.J., and ULRICH and SPINDEN, JJ.

ULRICH, Judge.

Liberty Mutual Insurance Company (Liberty Mutual) seeks this court's writ of prohibition and/or mandamus compelling The Honorable Carl Gum to enter summary judgment in its favor in the underlying action. Liberty Mutual contends that the principles of res judicata, collateral estoppel, and the law of the case required the trial court to deny Plaintiff's Motion for Leave to Amend, and to grant Liberty Mutual's Motions to Dismiss and Motions for Summary Judgment as to Plaintiff's claims for uninsured, underinsured, and medical payments coverages. Additionally, Liberty Mutual argues that the

Page 449

insurance policy clearly and unambiguously did not provide separate underinsured motorist or medical payments coverages and, therefore, summary judgment should have been entered in its favor. Alternatively, Liberty Mutual contends that the trial court erroneously did not require the plaintiffs below to follow the Missouri Rules of Civil Procedure regarding summary judgment. It argues that if prohibition does not lie to relieve Liberty Mutual from further litigation, the circuit court should be directed by this court's writ to compel compliance with Rule 74.04 and order plaintiffs to file a formal response to its motion for summary judgment.

The preliminary rule in prohibition was granted. The preliminary rule in prohibition is now quashed and held for naught, and Liberty Mutual's petition for writ of prohibition is denied.

Procedural History

John and Beverly Frost filed their petition in the Circuit Court of Johnson County, Case No. CV488-548CC, on November 8, 1988, for damages they claimed to have sustained as a result of an automobile accident that occurred on June 15, 1988. Mr. Frost was a passenger in an automobile driven by John Gibson which was struck by the automobile then driven by Hubert White. Mr. Gibson was killed in the accident. Apparently, Mr. White was attempting to pass a third vehicle when the vehicle he was driving struck "head-on" the vehicle then driven by Mr. Gibson. Mr. and Mrs. Frost's petition named Mr. White as the sole defendant.

The automobile driven by Mr. Gibson was owned by Alamo Rent-A-Car, Inc., and insured by a policy of insurance issued by Liberty Mutual. The vehicle driven by Mr. White was not covered by an automobile liability insurance policy. The police accident report reflects that a vehicle driven by Timothy or Patricia Owens was being passed by the vehicle driven by Mr. White immediately prior to the accident. Mr. White testified at trial that the Owens' car interfered with his ability to return to the proper lane of travel by alternately slowing down and speeding up. On December 19, 1988, the Frosts obtained a judgment solely against Mr. White.

On January 17, 1989, after first learning of the December 19, 1988, judgment, Liberty Mutual filed its Motion to Intervene in Case No. CV488-548CC for the purpose of setting aside the judgment. The motion was denied by the trial court, and on August 8, 1989, this court reversed and directed the trial court to allow Liberty Mutual to intervene. Frost v. White, 778 S.W.2d 670 (Mo.App.1989) (hereinafter Frost I ).

On April 16, 1990, Liberty Mutual filed a Motion to Vacate the December 19, 1988, judgment against Mr. White. The trial court granted the motion and the Missouri Supreme Court upheld the trial court's decision on June 23, 1991. Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302 (Mo. banc 1991) (hereinafter Frost II ).

On March 9, 1989, the Frosts filed a separate declaratory judgment action naming Liberty Mutual and others as parties, Case No. CV489-113CC, praying that the court determine the total uninsured motorist coverages applicable to the Frosts' judgment against Mr. White. The petition also sought declaration of the rights and obligations of the parties and the applicable insurance coverages.

On March 15, 1989, Liberty Mutual filed a Petition for Interpleader and Declaratory Judgment, Case No. CV489-124CC, paying into court $50,000 which Liberty Mutual contended was the total amount of uninsured motorist coverage due under the policy. The Frosts' Petition for Declaratory Judgment and Liberty Mutual's Petition for Interpleader and Declaratory Judgment were consolidated on April 10, 1989.

In August 1989, Liberty Mutual filed a Motion for Summary Judgment on its Petition for Interpleader and Declaratory Judgment arguing that its policy provided only $50,000 per accident in uninsured motorist coverage. The Frosts filed a Motion for Summary Judgment in their declaratory judgment action claiming the policy's uninsured motorist coverage limit was $1,000,000.

The trial court ruled on the Frosts' and Liberty Mutual's motions for summary judgment

Page 450

on October 9, 1990. It found that the Liberty Mutual policy was not ambiguous and provided a $50,000 single-limit uninsured motorist coverage of all injuries to all persons. This court affirmed the trial court's ruling on February 25, 1992, holding that "Liberty Mutual's policy accord[ed] single-limit uninsured motorist coverage of $50,000 for all of the injuries of all of the parties arising out of the Gibson-White collision." Frost v. Liberty Mut. Ins. Co., 828 S.W.2d 915, 920 (Mo.App.1992) (hereinafter Frost III ).

In June of 1992, the Frosts filed their Application for Leave to File an Amended Petition in Case No. CV488-548CC, the original automobile accident case in which judgment had been vacated, to add claims against John Gibson, Timothy Owens, Patricia Owens, and Liberty Mutual. The trial court granted the Frosts leave to file their amended petition. Count III of the amended petition alleged that the Liberty Mutual policy contained uninsured/underinsured motor vehicle and medical payment coverages and that the company refused to make full payment under the policy's...