West v. Shelter Mut. Ins. Co.

• Decision Date: 10 November 1993
• Docket Number: No. 18142,18142
• Citation: 864 S.W.2d 458
• Parties: David L. WEST and Teri West, Plaintiffs-Appellants, v. SHELTER MUTUAL INSURANCE COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 458

864 S.W.2d 458

David L. WEST and Teri West, Plaintiffs-Appellants, v. SHELTER MUTUAL INSURANCE COMPANY, Defendant-Respondent.

No. 18142.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 10, 1993.

R. Lynn Myers, Richard D. Crites, Springfield, for plaintiffs-appellants.

June Clark, Traci J. Turner, Carlson & Clark, Springfield, for defendant-respondent.

GARRISON, Judge.

This appeal arises from a suit on a homeowner's insurance policy. In May 1985, Appellants David West and Teri West (the "Wests") purchased a lake home, giving the sellers (the "Barbers") a note and deed of trust. At the same time, the Wests obtained a homeowner's policy on the property from Shelter Mutual Insurance Company ("Shelter") insuring the house for $30,000, the contents for $16,500, and naming the Barbers as "Mortgagees."

On June 14, 1987, while Shelter's policy was in force, the house and contents were totally destroyed by fire. As a result of the Wests' claim under the policy, Shelter purchased the note and deed of trust from the Barbers on October 8, 1987 and obtained an assignment of those instruments. After conducting an examination under oath in October 1988, Shelter denied coverage for the loss on November 8, 1988 and this suit followed.

In response to the Wests' suit on the policy, Shelter alleged that the policy was void from its inception because material facts were concealed or misrepresented on the application for insurance. Shelter also requested an offset against any amounts owing to the Wests to the extent of the payments to the Barbers as loss payee under the policy, and also filed a counterclaim seeking a judgment on the note as well as foreclosure of the deed of trust. The counterclaim was severed prior to trial and the parties stipulated that Shelter would be entitled to a credit of $16,210.78 (the amount paid by Shelter to the Barbers for the note and deed of trust) against any judgment obtained by the Wests. ¹ Following a jury verdict for the Wests in the amount of $32,050, the trial court, in its judgment entry, first gave Shelter credit for the $16,210.78. It then calculated interest at the rate of nine percent from November 8, 1988 ² to the date of the verdict only on the net recovery ($15,839.22). The Wests appeal from that judgment.

The Wests raise two issues on this appeal. In the first they complain that the verdict was less than required by the law and the evidence. In the other, they allege error in deducting Shelter's credit before calculating interest on their recovery under the policy.

POINT I

In their first point, the Wests argue that the trial court erred in accepting the verdict and entering judgment for $32,050 because, under the valued policy statutes of Missouri and the evidence presented at trial, the verdict should have been for the full amount of the coverage provided under the policy. They correctly point out that Missouri is a valued policy state whereby an insurance company is not permitted to deny that the insured property was worth, at the time the policy was issued, the full amount for which it was insured. §§ 379.140, 379.145, 379.160. ³

Their argument assumes that of the $32,050 jury verdict, $30,000 was for the loss of the house and $2,050 for the loss of personal property. ⁴ This is based on the fact that under the valued policy statutes the measure of damages is the amount for which the property is insured, less depreciation from the date of the policy to the time of loss. As to the real estate (the house) the burden of proving any depreciation is on the insurer. § 379.140. See Duckworth v. United States Fidelity and Guaranty Co., 452 S.W.2d 280, 285 (Mo.App.1970). Since Shelter admits that it introduced no evidence showing depreciation of the insured house, both parties proceed on the theory that the jury verdict must have represented $30,000 for the loss of the house, leaving $2,050 for the loss of personal property.

Section 379.160 is a valued policy statute applying to personal property, and the measure of damages for total destruction is the value fixed by the policy less depreciation from that date to the time of the fire. Duckworth v. United States Fidelity and Guaranty Co., 452 S.W.2d at 285. Unlike the rule concerning recovery for total loss of real estate improvements, the burden of proof as to loss of personal property is on the insured (in this case, the Wests). Id. In order to recover the full amount of coverage on the personal property, the insured therefore has the burden of proving lack of depreciation from the date of the policy. Id. This burden can be satisfied by proof of value at the time of the loss or the extent of depreciation in value from the date of the insurance policy to the time of the loss. Riccardi v. United States Fidelity & Guaranty Co., 434 S.W.2d 737, 741 (Mo.App.1968).

The Wests acknowledge that they had the burden to prove the value of the personal property at the time of the fire. They argue that the only evidence concerning value of the personal property was that which they presented by way of the proof of loss and oral testimony, none of which indicated depreciation had occurred. The proof of loss contained an itemized list of the contents of the house and listed the cost of each item as well as its value at the time of the loss. ⁵ Mr. West also testified that the only change made to the contents following issuance of the policy in 1985 was the placing of additional items in the home, as well as the purchase of new items to replace older ones. Since the evidence did not indicate any depreciation, the Wests argue that the jury was required to award them the full amount of the personal property coverage.

They cite the Duckworth case, supra, for the proposition that "[e]vidence of repairs and improvements to personal property after date of the policy and before loss, with no suggestion of any depreciation in value during this time, may sustain a finding that the property was reasonably worth the amount of the insurance at the time of loss." Duckworth v. United States Fidelity and Guaranty Co., 452 S.W.2d at 285. Unlike the instant case, however, the Duckworth case involved a judgment for the insured in the full amount of the coverage on the building contents. We agree with the quoted language from Duckworth that such evidence would sustain a finding of no depreciation, but we do not agree with the interpretation urged by the Wests, i.e., that such evidence requires that finding.

The jury was not required to believe the evidence of value of the personal property, as of the time of the loss, presented by the Wests. This is true even though that evidence was uncontradicted and unimpeached. Nichols v. Blake, 418 S.W.2d 188, 189-190 (Mo.1967); Greenwood v. Wiseman, 305 S.W.2d 474, 478 (Mo.1957). As the court said in Hogsett v. Smith, 229 S.W.2d 20 (Mo.App.1950):

... The jury did not have to find for the plaintiff merely because his testimony was uncontradicted. The general rule is that when either party submits oral testimony to sustain his burden of proof, the other party, though offering no evidence to contradict it, is entitled to have the jury determine the credibility of the witnesses and the weight to be given to their testimony. The court has no right to instruct the jury that it must believe the witnesses. If, in such a case, the jury returns a verdict in favor of the party not having the burden of proof, it is within the exclusive province of the trial court to determine whether or not a new trial should be granted on the ground that the verdict was against the weight of the evidence. This court has no authority to interfere with the trial court's ruling.

Id. at 21; Rutledge v. Baldi, 392 S.W.2d 244, 246 (Mo.1965). A jury is free to accept or reject all or a part of the party's damage evidence, including expenses. See Havel v. Diebler, 836 S.W.2d 501, 504 (Mo.App.1992).

The Wests contend that the policy was renewed on May 19, 1987, less than one month before the fire, and that is the date of the policy's issuance for the purpose of the valued policy statute, § 379.160, rather than May 1985 when it was initially issued. Under this theory, Shelter would be prevented from denying that less than one month before the fire, the contents were worth $16,500. The Wests argue that it is unreasonable for the jury to find that the property had lost $14,450 in value in less than one month.

It is true that a renewal of an insurance policy is a separate and distinct contract for the period of time covered by the renewal, unless it is apparent that the parties intended the renewal to constitute a continuation of the original policy. DeWitt v. American Family Mut. Ins. Co., 667 S.W.2d 700, 705 (Mo. banc 1984); Hammond v. Mo. Prop. Ins. Placement Fac., 731 S.W.2d 360, 364 (Mo.App.1987). It is also true that, in the instant case, the Shelter agent who sold the policy to the Wests testified on cross-examination that each time the instant policy was reissued, including the renewal in May 1987, it constituted a new policy. Several other factors in the instant case, however, militate against the Wests' argument on this issue. Their petition alleged that the policy providing the coverage was issued in May 1985. Significantly, the evidence presented by the Wests concerning the changes and additions to the contents covered the entire period from the time of the initial policy in May 1985 until the loss, rather than the period from the renewal in May 1987 until the fire. The Wests therefore presented the case as if the date of the issuance of the policy for the purpose of the valued policy statutes was the date of the original policy. ⁶ This is inconsistent with the position they now take. A party is bound by the theory advanced at trial and is not permitted to change that theory on appeal. Brinkerhoff Land & Livestock Co. v. Doyle, 778 S.W.2d 336, 339 (Mo.App.1989).

It should also be noted that the only policy...