Stotts v. Progressive Classic Ins. Co.
| Decision Date | 04 November 2003 |
| Docket Number | No. WD 61738.,WD 61738. |
| Citation | 118 S.W.3d 655 |
| Parties | Linda STOTTS and Rhonda Knouse, Respondents, v. PROGRESSIVE CLASSIC INSURANCE COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
Dana M. Harris, Kansas City, MO, for Appellant.
George S. Miller, Gladstone, MO, for Respondents.
Before LOWENSTEIN, P.J., and SMART and EDWIN H. SMITH, JJ.
Progressive Classic Insurance Company appeals from the circuit court's denial of its motion for summary judgment and the grant of summary judgment to the respondents, Linda Stotts and Rhonda Knouse, on their petition for breach of contract and for vexatious refusal to pay with respect to their claim for uninsured motorist benefits under a motor vehicle policy purchased by Stotts (Stotts policy) from the appellant. The respondents' claim against the appellant arose out of a motor vehicle accident involving Stotts' vehicle and a vehicle driven by Christopher J. Schlosser and owned by Matthew T. James, which resulted in the death of the respondents' mother. The respondents filed a wrongful death suit in the Circuit Court of Clay County against Schlosser, which was settled for $225,000. In addition to seeking damages in their wrongful death action, the respondents also sought payment of benefits under the uninsured motorist coverage provided in the Stotts policy. The appellant denied coverage, resulting in the present action.
The appellant raises two points on appeal. In Point I, it claims that the trial court erred in overruling its motion for summary judgment on the respondents' petition for breach of contract and vexatious refusal to pay, seeking the payment of benefits under the uninsured motorist coverage of the policy, because the summary judgment record shows that the respondents, after an adequate period of discovery, had not produced and would not be able to produce evidence establishing the requisite proof element of its claims that there was coverage under the policy for their claimed loss. The appellant makes the same claim in Point II, except in the context that the trial court erred in sustaining the respondents' motion for summary judgment. In Point I, the appellant claims that to the extent the respondents were relying on a theory of negligent entrustment to establish uninsured motorist coverage, it was entitled to judgment as a matter of law in that it was undisputed from the summary judgment record that the respondents could not show that James, the owner of the vehicle Schlosser was driving in the accident, knew or should have known that Schlosser was an incompetent or careless driver. In Point II, the appellant claims that the respondents were not entitled to summary judgment in that to make a prima facie case for summary judgment on their petition, the respondents were required, but failed, to allege, inter alia, uncontroverted facts demonstrating that the motor vehicle driven by Schlosser was an "uninsured motor vehicle" for purposes of the policy and § 379.203,1 governing uninsured motor vehicle coverage.
We reverse and remand.
On September 14, 2000, Stotts was operating her vehicle near the intersection of Main Street and N.W. 81st Street in Kansas City, Clay County, Missouri, when it was struck by James' vehicle, which at the time was driven by Schlosser. Stotts' mother, Norma Knouse, who was a passenger in the vehicle, died as a result of the injuries she sustained in the accident. Although Schlosser had a liability policy covering the accident, James did not.
A wrongful death suit was filed by the respondents in the Circuit Court of Clay County against Schlosser for his alleged negligence in operating the James' vehicle. The respondents' claims against Schlosser arising out of the accident were settled by his insurance carrier for $225,000.
At the time of the accident, Stotts had a motor vehicle liability insurance policy issued by the appellant. This policy contained an "uninsured motorist" provision which provided coverage for damages "which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle." The respondents filed a claim with the appellant seeking payment of uninsured motorist benefits under the policy for the wrongful death of their mother, which was denied.
On February 7, 2001, the respondents filed a petition in the Circuit Court of Clay County against the appellant for breach of contract and vexatious refusal to pay for failing to pay the respondents' claim. In their petition, they alleged that their claim was covered under the uninsured motorist provision of the policy in that Schlosser negligently operated the James' vehicle causing the death of the respondents' mother and that, at the time of the accident, the vehicle was uninsured. They also alleged that James negligently entrusted his vehicle to Schlosser, contributing to cause the death of the respondents' mother.
The appellant filed a motion for summary judgment and suggestions in support thereof on June 27, 2001, alleging, inter alia, that there was no coverage for the respondents' claim under the policy because, at the time of the accident, the James' vehicle was not an uninsured vehicle in that Schlosser maintained a liability policy covering the accident. On August 3, 2001, the respondents filed their response to the appellant's motion for summary judgment and a motion for partial summary judgment.
The parties' competing motions for summary judgment were taken up and heard on August 29, 2001. On August 30, 2001, the trial court entered its order denying the appellant's motion and granting the respondents'. On February 27, 2002, the parties appeared before the court and stipulated and agreed for the record that the appellant intended to appeal the trial court's rulings on the parties' motions and that those rulings should be certified by the court for early appeal, there being no just reason for delay, and in the event the respondents prevailed on appeal, judgment would be entered by the trial court for the respondents in the amount of $25,000, policy limits, with interest of 9% per annum from March 5, 2002. On March 11, 2002, the trial court entered its "order," which reads:
Parties represented by counsel. Stipulation read into record. There is an agreement that there is no just reason for delay regarding the court's granting of Partial Summary Judgment in favor of [the respondents] on August 30, 2001 and denying [the appellant's] Motion for Summary Judgment; the parties further agree that portion of the Judgment is final for purposes of appeal; and further that in the event [the respondents] prevail on appeal, then judgment in the sum of $25,000 plus interest at the rate of 9% from March 5, 2002 shall be entered in favor of [the respondents] and against [the appellant].
The appeal of this order to this court was dismissed, without opinion, in WD 61123, on June 20, 2002, the court finding that the appeal was taken "from an order that [was] neither final nor otherwise appealable pursuant to section 512.020 RSMo. 2000 and Rule 74.01(a), `[a] judgment is entered when a writing signed by the judge and denominated "judgment" is filed.'"
The trial court, on July 2, 2002, entered its "judgment," which reads:
Parties represented by counsel. There is no just reason for delay regarding the court's granting of Partial Summary Judgment in favor of [the respondents] on August 30, 2001 and denying [the appellant's] Motion for Summary Judgment; this portion of the Judgment is final for purposes of appeal, and in the event [the respondents] prevail on appeal, then judgment in the sum of $25,000 plus interest at the rate of 9% from March 5, 2002 shall be entered in favor of [the respondents] and against [the appellant].
This appeal followed.
Our review of the trial court's grant of summary judgment is essentially de novo. Sloss v. Gerstner, 98 S.W.3d 893, 895 (Mo. App.2003) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We employ the same criteria used by the trial court in determining the propriety of sustaining the motion initially. Id. Because summary judgment is founded on the record submitted and the law, the propriety of summary judgment is purely an issue of law such that we do not defer to the trial court's grant of summary judgment. Id.
We will affirm the trial court's grant of summary judgment if we find that: (1) there is no genuine dispute of material fact; and (2) that on those facts, the movant is entitled to judgment as a matter of law. Id. In considering whether that standard has been met, we review the record in the light most favorable to the non-movant and accord the non-movant the benefit of all reasonable inferences from the record. Id.
As in every case, before addressing the merits of the appellant's claim, we first must determine, sua sponte, our jurisdiction. Bituminous Cas. Corp. v. Moore, 64 S.W.3d 356, 357 (Mo.App.2002).
This appeal is from the trial court's "judgment" of July 2, 2002. By its express terms, it was not a final and appealable judgment in that it only disposed of the liability issues concerning the respondents' claims and left the entry of judgment as to the issue of damages for a later date if the respondents' prevailed on appeal. Partial summary judgment for the plaintiff on the issue of liability alone is interlocutory in character, Rule 74.04(c)(6),2 and is not a final judgment subject to appellate review, Shelter Mut. Ins. Co. v. Vulgamott, 96 S.W.3d 96, 105 (Mo.App.2003). And, the attempt by the trial court to certify the case for early appeal under Rule 74.01(b), by stating that "[t]here is no just reason for delay regarding the court's granting of Partial Summary Judgment in favor of [the respondents]," was ineffective in that the rule has no application unless one complete claim is resolved, Robinson v. Mo. State Highway & Transp....
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