Bowen v. Buchanan County Mutual Insurance Co.

834 S.W.2d 203, 1992 Mo. App. LEXIS 645, 1992 WL 214261
CourtMissouri Court of Appeals
DecidedApril 14, 1992
DocketNo. WD 44379
StatusPublished
Cited by2 cases

This text of 834 S.W.2d 203 (Bowen v. Buchanan County Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowen v. Buchanan County Mutual Insurance Co., 834 S.W.2d 203, 1992 Mo. App. LEXIS 645, 1992 WL 214261 (Mo. Ct. App. 1992).

Opinion

BRECKENRIDGE, Judge.

Randy D. Bowen appeals from the dismissal of his petition for damages on a fire insurance policy. He contends that the trial court erred in granting Buchanan County Mutual’s motion to dismiss because: (1) in order for the one-year statute of limitations to apply, the language of limitation must be prominent on the face page of an assessable policy and such was not the case in the instant action; (2) the question of whether the language was clearly and prominently displayed was a jury question and not a question of law subject to a motion to dismiss; and (3) the statutory one-year limitation applies only to assessable policies and the policy jacket does not inform the reader whether the coverage is assessable or not. The order of the trial court is affirmed.

Randy D. Bowen, a policyholder with Buchanan County Mutual Insurance Company, filed suit on October 11, 1988, against that company for damages resulting from a fire that occurred at his home on December 31, 1986. Buchanan County Mutual raised the statute of limitations as one of its defenses, claiming that the action was barred by § 380.591, RSMo 1986,1 which prohibits such suits for loss under an assessable policy if not commenced within twelve months after the loss. It filed a motion to dismiss the same day, March 20, 1989, based upon this same ground. After a hearing on the matter, the trial court granted the motion to dismiss. Mr. Bowen appeals from this dismissal.

In Mr. Bowen’s sole point, he claims that the trial court erred in granting the motion to dismiss because the language of limitation was not prominently displayed upon the face page of the policy and this [205]*205presents a question for a jury. He also claims that the language on the jacket does not inform the reader as to whether the policy is assessable or not.

The motion to dismiss filed by Buchanan County Mutual is the functional equivalent of a motion for summary judgment as it allows for a final adjudication on the pleadings alone where no material issue of fact is presented and where, as a matter of law, the moving party is entitled to judgment. See Schwartz v. Lawson, 797 S.W.2d 828, 833 (Mo.App.1990). “The presentation of evidence beyond the pleadings converts a motion to dismiss or for judgment on the pleadings into a motion for summary judgment.” Id. Review is done in the light most favorable to the non-moving party and the burden is on the party who moves for summary judgment to show that no genuine issue of material fact exists. Kansas City v. W.R. Grace & Co., 778 S.W.2d 264, 268 (Mo.App.1989).

Section 380.591 provides:
1. No suit or action for any loss under an assessable policy shall be commenced until such loss becomes due in accordance with the policy, and in no event until sixty days have elapsed after proof of loss has been given the company. No such suit or action shall be sustainable in any court unless all the requirements of the policy have been complied with, nor unless commenced within twelve months next after the loss. The limitations permitted under the provisions of this section shall be clearly and prominently declared on the face page of any assessable policy.
2. Any action based upon a policy issued on a nonassessable basis shall be subject to the statutes of limitations applicable to a similar cause of action.

Mr. Bowen claims that the language of limitation was not contained on the face page of the policy as is required by § 380.-591.1. He contends that because the policy index makes no reference to the face sheet (or the jacket)2 of the policy, the face page is not a part of the policy. The face page contains a section entitled “SPECIAL LIMITATIONS” which sets out the twelvemonth statute of limitation stating, in pertinent part, “No such suit or action shall be sustainable in any court unless all the requirements of the policy have been complied with, nor unless commenced within twelve (12) months next after the loss.” Form RC 92 MO 1-85, the form constituting the face page of the policy under review, was approved by the Division of Insurance on February 6, 1985.

Furthermore Mr. Bowen’s assertion, that the page in question falls outside of the policy, is illogical and ignores the plain meaning of what a policy purports to be. The face page clearly identifies itself as a part of the policy with language reading: “THIS POLICY IS A LEGAL CONTRACT BETWEEN YOU AND US. READ YOUR POLICY CAREFULLY.” Mr. Bowen’s interpretation would exclude any jacket or face page or anything not mentioned in the index. Thus the “face page” language required by § 380.591, would never appear on the face page of a policy if that page was not indexed. The statute does not require that a page be listed in a policy index to be part of a policy; it requires that the “face page” contain the language of limitation.

Exactly what a face page consists of is not clear in Missouri law. No definition for the term is given either in the statutes or in the cases. Black defines “face” as:

The surface of anything, especially the front, upper, or outer part or surface. That which particularly offers itself to the view of a spectator. The words of a written paper in their apparent or obvious meaning, as, the face of a note, bill, bond, check, draft, judgment record, or contract.

Black’s Law Dictionary 530 (5th ed. 1979).

“The primary rule of statutory construction is to ascertain the intent of the legisla[206]*206ture from language used, to give effect to that intent, if possible, and to consider words used in their plain and ordinary meaning.” Updegraff v. Farmer’s Mut. Ins. Co., 782 S.W.2d 700, 702 (Mo.App.1989) (citing Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988)). It is obvious from a reading of the statute that the legislature intended that the language of limitations be placed at the front of a policy and not buried within the policy provisions. The statute of limitations on assessable policies is a shorter statute than what might be expected when examining insurance contracts in general. The policy in the instant case fulfills the legislative intention by placing the language of limitation on the very front of the policy. To read “face page” more restrictively, as urged by Mr. Bowen, is not reasonable. The face page in the instant case was a part of the policy and contained language of limitations in compliance with the statute.

Mr. Bowen contends that the question of whether the language was “clearly and prominently” declared is also a question of fact and thus a jury issue. He relies upon W.R. Grace & Co., 778 S.W.2d at 268, to support his contention as the case states that, “[w]hen issues of fact are present, statute of limitations issues must be submitted to the jury.”

In W.R. Grace & Co. there existed genuine issues of material fact as to when the causes of action accrued and when the statute of limitations began to run. Id. This question of fact is a different question than that presented by Mr. Bowen in the instant case. The policy is an assessable policy with a twelve-month limitations period beginning at the time of the loss, December 31,1986.

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Cite This Page — Counsel Stack

Bluebook (online)
834 S.W.2d 203, 1992 Mo. App. LEXIS 645, 1992 WL 214261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowen-v-buchanan-county-mutual-insurance-co-moctapp-1992.