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Messner v. American Union Insurance Company11/19/2003
Opinion Vote: REVERSED AND REMANDED.
Parrish, J., and Rahmeyer, C.J., P.J., concur.
Opinion:
This is a suit by Siegfried C. Messner ("Plaintiff") against his automobile insurer, American Union Insurance Company ("Defendant"). Plaintiff seeks damages based on the "underinsured" coverage of his policy and Defendant's vexatious refusal to pay. Plaintiff appeals from a judgment on the pleadings favorable to Defendant entered pursuant to Rule 55.27(b).
Plaintiff argues the trial court committed reversible error when it ruled (1) Plaintiff's claim was time-barred, and (2) a judgment for Defendant was mandated by "circular" language in a release given by Plaintiff to the third-party tortfeasor who caused Plaintiff's injuries. We agree. The judgment is reversed and the case is remanded. STANDARD OF REVIEWWhen a party moves for a judgment on the pleadings per Rule 55.27(b), a court will treat the allegations of the petition as true for purposes of the motion. Main v. Skaggs Community Hosp., 812 S.W.2d 185, 186 (Mo.App. 1991). A trial court can properly sustain a motion for judgment on the pleadings only if the facts pleaded by the petitioner, together with the benefit of all reasonable inferences drawn therefrom, show that petitioner could not prevail under any legal theory. A.R.H. v. W.H.S., 876 S.W.2d 687, 688 (Mo.App. 1994). FACTSOn June 22, 1997, Plaintiff sustained injuries when the vehicle he was driving (which was insured by Defendant) collided with a vehicle driven by Anthony Dean ("Tortfeasor"). Tortfeasor's policy had a bodily injury limit of $100,000 for each person. At the time, Defendant's policy afforded Plaintiff underinsured coverage in the amount of $100,000 for bodily injury for each person and $300,000 for each occurrence.
In late 1997, Tortfeasor's insurer offered Plaintiff $100,000 (Tortfeasor's policy limits) to settle Plaintiff's claim. Thereon, Plaintiff contacted Defendant regarding possible recovery based on the underinsured provision of the policy with Defendant. Defendant responded that it would not pay anything per the underinsured provision of its contract because "the limits of the tortfeasor ($100,000) were the same as Plaintiff's limits of liability insurance." After this response, Plaintiff settled his claim with Tortfeasor for $100,000 on December 4, 1997.
On July 22, 2002, Plaintiff brought this suit against Defendant seeking damages for bodily injury sustained in his June 22, 1997, accident with Tortfeasor. In a separate count, Plaintiff sought damages for Defendant's vexatious refusal to pay the underinsured benefit due him under his policy with Defendant.
Defendant's answer admitted, inter alia, that its policy provided $100,000 underinsured motorist coverage for Plaintiff, and Plaintiff sustained "significant injuries" in the accident with Tortfeasor. However, Defendant accompanied its answer with a motion for a judgment on the pleadings. This motion had two prongs, namely, that Plaintiff's suit was time-barred and that the release given by Plaintiff to Tortfeasor barred Plaintiff's claim as a matter of law. The trial judge agreed with both propositions and entered judgment for Defendant. This appeal by Plaintiff followed.
Point I: Statute of Limitations Issue
In part, the trial court entered judgment for Defendant because Plaintiff sued Defendant more than five years after the accident occurred between Plaintiff and Tortfeasor. Relying heavily upon Baumgartel v. Am. Family Mut. Ins. Co., 29 S.W.3d 416 (Mo.App. 2000), the court found "that plaintiff, by his own failure to file an action against the tortfeasor within five years, has destroyed the defendant's ri
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