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Branstad v. Kinstler7/5/2005
s sustained and is capable of ascertainment....
Damage is capable of ascertainment when it can be discovered or made known, even though the amount of damages is not then ascertainable. Olean, 5 S.W.3d at 522.The phrase "capable of ascertainment" refers to the fact of damage, not the precise amount of damage. Nuspl v. Mo. Med. Ins. Co. , 842 S.W.2d 920, 922 (Mo. App. E.D. 1992).
The Nuspl case is similar to this case and is instructive. In Nuspl , the plaintiffs were the parents of a child whom they claimed suffered injury at birth because of the medical malpractice of the attending obstetrician and that resulted in death approximately seventeen years later.
Plaintiffs obtained judgment against the physician. They, by contract with the physician, became the assignees of the physician's cause of action against his medical malpractice insurance carrier that had denied coverage. The assignees added as a party defendant the agent who sold the policy to the physician, alleging his negligent failure to obtain adequate coverage. 842 S.W.2d at 921 . The agent argued that the statute of limitations of section 516.120 barred the suit. Applying the normal rule of contract law that an assignee "stands in the shoes" of the assignor so that a defense valid against the assignor is also effective against the assignee, Doss v. EPIC Healthcare Mgmt. Co. , 901 S.W.2d 216, 222 (Mo. App. S.D. 1995) , the agent argued that the cause of action accrued either when the policy was delivered to the physician or when the plaintiffs' suit against the physician was filed. Nuspl, 842 S.W.2d at 922 . Plaintiffs contended that the cause accrued when coverage was denied. Id. at 923 . The Eastern District agreed with plaintiffs explaining that the physician could not have been aware of any damage when the policy was delivered because he was entitled to rely on his insurance agent to procure the requested insurance and had no duty to double-check the expert's work. Id. at 922 . For the same reasons, the physician had no way of knowing at the time the suit against him was filed that his personal assets were at stake due to lack of insurance. Id. Therefore, reasoned the court, the physician "had every right to expect he was insured until notified to the contrary," and his cause of action accrued when the carrier denied coverage. Id. at 923.
In reviewing the grant of a motion to dismiss, this court takes as true the facts alleged in the petition. George Ward Builders, Inc. v. City of Lee' s Summit, 157 S.W.3d 644, 646 (Mo. App. W.D. 2004). Unlike Nuspl , the record does not disclose an assignment of a cause of action that RPR Ranch may have had against its insurer. But, like Nuspl , Mr. Branstad's cause of action accrued when he received notice that the carrier denied coverage for the loss and injury to his cattle. This conclusion follows the basic tenet in section 516.100 that a cause of action accrues when damage resulting from a wrong is sustained and is capable of ascertainment. The alleged wrong was Mr. Kinstler, agent for Shelter Mutual Insurance Company, misrepresenting to Mr. Branstad that RPR Ranch's insurance policy provided by Shelter covered him and RPR against the loss of his cattle, which Mr. Branstad relied on to his detriment by placing the cattle on the RPR Ranch property and not obtaining other insurance. The damage sustained by Mr. Branstad in his claim against agent Mr. Kinstler and Shelter for the agent's alleged misrepresentation was not the loss of his cattle, a necessary occurrence precedent, but was the carrier's refusal to cover his loss, contrary to the alleged representation of carrier's agent. Mr. Branstad's damage, his inability to collect the amount of the insurance proceeds for t
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