Veninga v. Liberty Mut. Ins. Co.

• Decision Date: 16 March 1965
• Docket Number: No. 31794,31794
• Citation: 388 S.W.2d 535
• Parties: Earl VENINGA, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 535

388 S.W.2d 535

Earl VENINGA, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Respondent.

No. 31794.

St. Louis Court of Appeals, Missouri.

March 16, 1965.

Robert T. Ebert, St. Louis, for plaintiff-appellant.

Evans & Dixon, Ralph C. Kleinschmidt, St. Louis, for defendant-respondent.

BRADY, Commissioner.

This is an action to compel the respondent, hereinafter referred to as the defendant, Workmen's Compensation carrier for the plaintiff's employer, to pay to the appellant, hereinafter referred to as the plaintiff, one-half of the trial expenses incurred by plaintiff in the trial of plaintiff's action instituted against a third party. The trial court entered judgment in favor of defendant.

The case was submitted to the trial court on an agreed statement of facts, the material portions of which show that the defendant was the Workmen's Compensation insurance carrier for the Mueller Erection Company. The plaintiff, an employee of the Mueller Erection Company, sustained accidental injuries arising out of his employment for said company while on the premises of the Harbison-Walker Refractories Company, Inc. As a result of this accident, the plaintiff filed a claim for Workmen's Compensation benefits and was paid a total of $5,489.81 by the defendant for medical and disability benefits.

Some three years later the plaintiff instituted a suit against the Harbison-Walker Refractories Company, Inc. to recover damages for the personal injuries he sustained on the occasion heretofore mentioned. Some three months after this suit was filed the defendant's claim supervisor wrote plaintiff's attorneys as follows: 'We have been advised that you have filed suit against Harbison Walker, of Fulton, Missouri, as a result of injuries sustained on or around November 12, 1957. We are the Workmen's Compensation carrier for Mueller Erection Company, Inc. Our attorneys advise that in the event of judgment or settlement in behalf of the employee, we should expect full recovery of all expenditures we have been required to make under the Workmen's Compensation Act of Missouri. We would like to discuss this matter further with you, and if this is possible, please contact this office at your earliest convenience.' Later the defendant's adjuster wrote plaintiff's attorneys a letter wherein he itemized the expenses incurred by defendant with respect to the compensation claim. There is no evidence that the defendant employed or retained plaintiff's attorneys to represent them in regard to the recovery of these itemized expenditures nor that they employed or retained any other counsel to do so.

Prior to the trial of the third party action plaintiff's attorneys inquired of the defendant the amount it would accept in satisfaction of its subrogation claim. The defendant took the position that since no offer of settlement by Harbison-Walker had been made, negotiations with regard to the settlement of the subrogation claim were premature. Plaintiff's attorneys made a formal demand upon Harbison-Walker in the amount of $15,000.00 which was to represent settlement of all claims including the defendant's subrogated interests. Upon rejection of this settlement offer the matter proceeded to trial with the resulting verdict and judgment for the defendant. That judgment has become final.

The amount with which we are here concerned arises from an after-trial demand on behalf of plaintiff that defendant reimburse plaintiff for one-half of the trial expenses incurred by plaintiff in preparation for the trial of the third party action against Harbison-Walker.

The plaintiff contends that the defendant '* * * expressly requested plaintiff to include its interests in the pending litigation * * *' and that the law will therefore imply a promise on the part of the defendant to pay its proportionate share of the trial expenses. This contention is not pertinent to the instant case for the reason that the facts do not show the defendant expressly requested plaintiff to include its interests. We cannot read the letter from the defendant's claim supervisor directed to the plaintiff's attorneys as...