Williams v. MFA Mut. Ins. Co., 46194

• Decision Date: 25 October 1983
• Docket Number: No. 46194,46194
• Citation: 660 S.W.2d 437
• Parties: Geneva WILLIAMS, a/k/a Geneva Schnick, Appellant, v. MFA MUTUAL INSURANCE COMPANY, A Corp., Protective National Insurance Company, A Corp., Respondent.
• Court: Missouri Court of Appeals

Page 437

660 S.W.2d 437

Geneva WILLIAMS, a/k/a Geneva Schnick, Appellant, v. MFA MUTUAL INSURANCE COMPANY, A Corp., Protective National Insurance Company, A Corp., Respondent.

No. 46194.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 25, 1983.

Gordon Neilson, St. Louis, for appellant.

James E. Godfrey, Godfrey, Vandover & Burns, St. Louis, for MFA Mutual.

Anthony Vaiana, Clayton, for Protective Nat. Ins. Co.

DOWD, Chief Judge.

Plaintiff, Geneva Williams, appeals from summary judgments granted in favor of defendants, Protective National Insurance Company of Omaha (hereinafter Protective) and MFA Mutual Insurance Company (hereinafter MFA) arising out of plaintiff's suit for injuries sustained in a one vehicle accident.

The accident occurred while plaintiff was a passenger on a motorcycle being driven by Charles Schnick (hereinafter Schnick). In her petition, plaintiff alleged she was entitled to recover for her personal injuries under the uninsured motor vehicle provisions contained in policies issued to plaintiff by defendant, MFA, and to Schnick by defendant, Protective. Protective and MFA made separate motions for summary judgment both of which were sustained and plaintiff's petition was dismissed. Plaintiff now appeals contending the trial court erred in sustaining both motions for summary judgment since there was evidence she was covered by both policies. The judgment is affirmed in all respects.

First we note that Protective contends plaintiff has failed to perfect her appeal by failing to include the notice of appeal in the legal file and by not specifying the exact judgment from which the appeal is taken both in violation of Rules 81.12 and 81.08 V.A.M.R. Protective has already filed a motion to dismiss this appeal for plaintiff's failure to specify the judgment appealed from. This motion was denied. Protective neglected to make any such motion for plaintiff's failure to include the notice of appeal in the legal file and is now attempting to raise it for the first time in its brief. We decline to dismiss plaintiff's appeal for several reasons. First, as to plaintiff's failure to include the notice in the legal file, we fail to see how respondent could have been prejudiced when it obviously knew of the appeal, said notice is in the court file and properly before this court, and entries indicating the notice was received by this court are included in the legal file. Secondly, we cannot see how plaintiff's failure to specify that this appeal is taken from a summary judgment in favor of respondents could be prejudicial to Protective. Plaintiff stated this appeal is from "an appealable order and judgment." Undoubtedly, the rules require plaintiff to specify exactly from what judgment the appeal is being taken. Protective, however, was very well aware from what judgment the appeal was taken and there was no confusion between judgments or parties that would cause us to dismiss plaintiff's appeal.

We do not condone plaintiff-appellant's failure to comply with the rules and we may in certain cases dismiss an appeal for violation of the rules or take such other action as justice requires. Rule 84.08 V.A.M.R. As a matter of discretion, however, we will usually undertake a review on the merits where the disposition of the merits is not hampered by the rule violation. This discretion arises from the principle that the law favors a disposition on the merits and the common sense view that the litigants should not be punished for the dereliction of lawyers. Rules should be construed liberally in favor of allowing appeals to proceed. Sherrill v. Wilson, 653 S.W.2d 661 (Mo.1983). Plaintiff's failure to comply with these rules clearly does not hamper our review of the merits and as such we decline to dismiss the appeal.

The standards by which we review a motion for summary judgment are firmly established. We must scrutinize the record in the light most favorable to the parties against whom the motion was filed and to accord such parties the benefit of every doubt. The burden rests upon the movant to show by unassailable proof that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Groppel Company, Inc. v. U.S. Gypsum Company, 616 S.W.2d 49, 54 (Mo.App.1981). Dunlop v. Howard, 629 S.W.2d 664, 666 (Mo.App.1982). Rule 74.04(c), (h) V.A.M.R.

Plaintiff first contends she was entitled to recover under the uninsured motor vehicle provision of the policy issued to Schnick by Protective. Protective in its motion for summary judgment contended it was entitled to judgment as a matter of law since plaintiff was not a named insured in the policy and therefore, had no contractual right to recover from it. In support of this, Protective filed an affidavit and the policy issued to Schnick. Based on this...