Tresner v. State Farm Ins. Co.

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Tresner v. State Farm Ins. Co., 913 S.W.2d 7 (Mo. 1995)
• Decision Date: 19 December 1995
• Docket Number: No. 78173,78173
• Parties: Leland TRESNER, Appellant, v. STATE FARM INSURANCE COMPANY, Respondent.

Page 7

913 S.W.2d 7

Leland TRESNER, Appellant, v. STATE FARM INSURANCE COMPANY, Respondent.

No. 78173.

Supreme Court of Missouri En Banc.

Dec. 19, 1995.

Joseph A. Hamilton, Pleasant Hill, Missouri, for Appellant.

Norman I. Reichel, Arlen L. Tanner, Pat McGrath, Kansas City, Missouri, for Respondent.

PER CURIAM ¹.

After being injured in an automobile accident, Leland Tresner filed suit to recover damages based upon the uninsured motorist coverage in his automobile insurance policy issued by State Farm Insurance Company. The trial court entered summary judgment in favor of State Farm because Tresner failed to comply with the notice provisions in the policy. Tresner now appeals, claiming that the trial court erred in granting summary judgment because there are genuine issues of material fact concerning whether Tresner was physically incapable of providing notice after the accident, whether State Farm was actually prejudiced by the late notice, and whether Tresner was in substantial compliance with the policy's notice provisions.

The judgment is reversed and the cause remanded.

On September 14, 1991, Tresner was driving an automobile in the inside eastbound lane of Interstate 70, which is a four-lane divided highway. According to the report filed by the Missouri Highway Patrol, Tresner lost control of his vehicle in the heavy rain. The Tresner vehicle crossed the median strip in the center of the highway, vaulted into the air and collided with another vehicle, which was traveling in the outside westbound lane.

Tresner's wife, who was a passenger in his vehicle, died in the accident, as did both occupants of the other vehicle. Tresner was transported by helicopter from the scene of the accident to the hospital where, on the night of the accident, he underwent the first of a number of surgeries for his injuries. Those injuries included a broken pelvis, a broken knee, compound fractures in both ankles, a crushed foot, a broken femur, collapsed lungs, broken ribs, a bruised heart, a severed artery and internal bleeding.

During the three to four weeks that followed, Tresner underwent approximately a dozen surgeries, including operations to put steel plates in his leg and left foot and bolts in his knee and both feet. In addition, upon his arrival at the hospital Tresner had a tracheotomy and was on a ventilator to facilitate his breathing. The tracheotomy tube remained in place until its removal on October 16, 1991. Tresner also was given morphine for approximately thirty days after his arrival at the hospital.

Tresner was released from the hospital on October 24, 1991, having spent his entire time there in the intensive care unit. From the hospital, Tresner was transported to Garden City, Kansas, where he stayed at his mother's house to recuperate. Four days later, on October 28, 1991, Tresner telephoned James Hager, a State Farm claims representative, and made a tape-recorded statement describing the accident. The telephone call was his first contact with State Farm after the accident.

During the conversation, Hager asked Tresner if any other vehicle had contributed to the accident. Tresner replied that a pickup truck had pulled up alongside his vehicle in traffic and began edging sideways into his lane of the highway, causing Tresner to swerve onto the road shoulder in order to avoid hitting it. According to Tresner, he lost control of his vehicle as a result of this evasive maneuver.

Hager had first been informed of the accident on September 16, 1991, and communicated with Tresner's family while Tresner was in the hospital. However, this communication included no mention of a phantom vehicle. Law enforcement authorities were first informed of the phantom vehicle on November 19, 1991. On that date, Tresner's attorney communicated the assertion that a phantom vehicle caused the accident to Missouri Highway Patrol Trooper Steven L. Robinson, who had performed the initial investigation at the time of the accident.

The automobile insurance policy issued to Tresner by State Farm defined the policyholder's duty to report an accident. The policy stated, in general, that "[t]he insured must give us or one of our agents written notice of the accident or loss as soon as reasonably possible." The policy further provided that, in the case of a claim involving an uninsured motor vehicle, the insured shall "report a 'phantom vehicle' accident to the police within 24 hours and to us within 30 days."

On March 2, 1992, Tresner filed suit against State Farm, seeking damages pursuant to the uninsured motorist provisions of his automobile insurance policy. State Farm denied coverage on the basis that Tresner had failed to comply with the notice provisions set forth in the policy. State Farm filed a motion for summary judgment, claiming that Tresner had breached a material condition of the policy by failing to provide timely notice of the accident and, therefore, no coverage existed for Tresner's damages.

State Farm's motion for summary judgment was not decided by the trial court before the case went to trial. The trial resulted in a hung jury. Subsequently, on January 18, 1994, the trial court entered an order sustaining State Farm's motion for summary judgment. In its order, the trial court concluded that State Farm was entitled to summary judgment if Tresner had failed to comply with either the twenty-four hour or the thirty-day deadline, and that Tresner had failed to comply with them both. Tresner appeals the judgment.

This Court, in reviewing the trial court's order of summary judgment, will consider the record in the light most favorable to the party against whom judgment was entered and afford that party all reasonable inferences that may be drawn from the evidence. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). The moving party bears the burden of proving that it is entitled to summary judgment as a matter of law and that no genuine issues of material fact exist. Id. at 378. Where the movant is a "defending party," the movant "may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense." Id. at 381.

In an action to recover on an insurance policy, an insured must prove that he complied with the policy provisions that require some kind of performance on his part, or he must show a sufficient excuse for his nonperformance. Miles v. Iowa Nat. Mut Ins. Co., 690 S.W.2d 138, 142 (Mo.App.1984). When an insured fails to comply with a policy provision requiring timely notice of the accident insured against, Missouri case law offers two alternative doctrines under which an insured's failure to provide timely notice might be excused under circumstances like those in the case at bar. First, there is the excuse of incapacity, where the very accident insured against leaves the insured incapacitated to the extent that it is impossible for him to provide timely notice. Roseberry v. American Benevolent Ass'n, 142 Mo.App. 552, 121 S.W. 785 (1909). Alternatively, the insured may show substantial compliance with the timely notice provision, "thus excusing literal performance." Miles, 690 S.W.2d at 142.

The Missouri cases dealing with late notice by the insured appear to suggest that these two doctrines are interchangeable factors in a single analysis to determine whether an insured's late notice constitutes a material breach of the insurance contract justifying the insurer's avoidance of liability. See, e.g., Greer v. Zurich Insurance Company, 441 S.W.2d 15, 30-31 (Mo.1969); Brown v. Highway and Transp. Com'n, 805 S.W.2d 274, 279 (Mo.App.1991). Nevertheless, as this Court indicated in Moskowitz v. Equitable Life Assur. Soc. of U.S., 544 S.W.2d 13, 18 (Mo. banc 1976), the excuse of incapacity or impossibility of performance and the excuse of substantial performance are two entirely separate analyses to apply to an insured's failure to comply with the literal provisions of a notice requirement. These two distinct doctrines are raised in separate points on appeal in the case at bar.

The seminal Missouri decision applying the excuse of incapacity to the notification provisions in an insurance policy is a case that rests on facts strikingly similar to those in the case at bar. In Roseberry, 121 S.W. 785, the plaintiff was a railroad pumpman who was issued an accident policy by the defendant. The policy included a provision that the plaintiff was required to notify the defendant within ten days of any accidental injury, and this requirement was a condition precedent to recovery under the policy. Id. at 786.

The plaintiff was injured on the job when he spilled some gasoline on his trousers and the fluid was ignited by a nearby lantern. Because of the severity of his burns and the administration of opiates to ease his pain, the plaintiff was essentially unconscious for three weeks after the accident. The insurance company received its first notice of the accident nineteen days after the incident occurred.

The defendant denied coverage because the plaintiff failed to provide notice of the accident within the ten-day period established by the policy. The plaintiff obtained a judgment against the defendant on the ground that he was excused from compliance with the notice provisions since he had been rendered unconscious from the burns and medication.

In affirming the judgment, the court of appeals held that the plaintiff was excused from complying with the policy's ten-day notice requirement; it explained that "notice given within a reasonable time after plaintiff...