Dement v. Barton County Mutual Insurance Co.

945 S.W.2d 606, 1997 Mo. App. LEXIS 890, 1997 WL 242304
CourtMissouri Court of Appeals
DecidedMay 13, 1997
DocketNo. 21210
StatusPublished
Cited by1 cases

This text of 945 S.W.2d 606 (Dement v. Barton 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
Dement v. Barton County Mutual Insurance Co., 945 S.W.2d 606, 1997 Mo. App. LEXIS 890, 1997 WL 242304 (Mo. Ct. App. 1997).

Opinion

PARRISH, Judge.

Mary B. Dement (plaintiff) appeals a judgment for defendant Barton County Mutual Insurance Co. (Barton County Mutual) in a breach of contract action on an insurance policy. This court reverses and remands.

Barton County Mutual issued a homeowners insurance policy to Mary B. Dement and Willis G. Dement dated March 5, 1992. Plaintiffs property was damaged by fire December 16, 1993. The insurance policy was in force on that date. This lawsuit was filed August 24, 1995. It sought damages in the amount of $10,865.49 for personal property that was damaged or destroyed in the fire.

Paragraph 2 of plaintiffs petition alleged “[t]hat Defendant is and was, at all times herein material, an insurance company organized under the laws of the State of Missouri.” Barton County Mutual answered, “Defendant admits that it is and was at all times relevant hereto a mutual insurance company organized under the laws of the State of Missouri, and specifically Chapter 380 R.S.M.O., 1994.”

The answer admitted issuing a homeowners policy of insurance on plaintiffs property; that the exhibit plaintiff attached to her petition reflected “the policy of insurance issued on Plaintiff and her husband.” It admitted that a fire occurred on plaintiffs premises on or about December 16,1993, and that “damage or destruction” occurred. It admitted that Barton County Mutual had not made payment of plaintiffs claims, but denied plaintiffs allegation that she complied with all terms and conditions of the policy “in that arson by the insured was the cause of the property damage.”

The answer pleaded as an affirmative defense:

1. By Plaintiffs own petition, the fire loss herein occurred on December 16,1993. This cause of action was filed in the Associate Circuit Court of Mississippi County on August 24,1995.
2. Defendant is and was at all times relevant hereto a mutual insurance company duly organized and existing under the laws of the State of Missouri to wit Chapter 380 of the Revised Statutes of Missouri.
3. That Section 380.591 limits the time for commencement of suits under Chapter 380 to one year from the date of loss and this suit is therefore time barred.

Plaintiff presents one point on appeal. It states the trial court erred in finding for Barton County Mutual; that the trial court’s judgment was against the weight of the evidence because the insurance policy in question was in full force and effect at the time of the loss, plaintiffs action was not time barred, and plaintiff provided evidence of her losses and additional living expenses.

Plaintiff presented evidence of the fire and testimony in support of her claimed damages. The insurance policy was admitted in evidence. The policy term is stated as: “EFF: 03/05/92 EXP: 03/05/95.” Its declarations page includes coverage for “personal property” in the amount of $17,500 and coverage for “additional living costs” in the amount of $3,500.

Barton County Mutual made no opening statement or closing argument at trial. The only witness it called was plaintiff — she had previously testified in her case-in-chief. She was asked about the proof of loss she submitted and whether she received a letter from Barton County Mutual that indicated it was not sufficient. She answered, “The only letter I got from the insurance company — every [608]*608time I’d get one from the insurance company, they’d tell me they wasn’t going to pay me nothing. That’s what I’d get from them.” She was then asked about a copy of a letter which was not introduced in evidence. She answered that she did not remember receiving the letter.

Barton County Mutual’s attorney asked plaintiff about the insurance policy. He asked if she was familiar that “on the front it says that you got to bring any lawsuit within a year of — a year of the loss.” She acknowledged she was familiar with the language on the front of the policy. Plaintiff then was asked who applied for the policy of insurance. She answered, “Me.” She was asked the following questions and gave the following answers:'

Q. (by Barton County Mutual’s attorney) All right. And you said that you applied for that insurance policy?
A. Yes, sir.
Q. Did—
A. Willis was with me.
Q. Oh, okay. Willis was with you?
A. Yes.
Q. Okay. You all got divorced January of what year?
A. ’92.
Q. Okay. Willis filled out the form to get the insurance?
A. Yes,, sir. Because I don’t have a high school education.
Q. Uh-huh.
A. And he went with me.
Q. And his name is on the policy?
A. Yes, sir. I guess they put it on there because he paid them the money.

Barton County Mutual then offered its only trial exhibit in evidence, Defendant’s Exhibit A, described in the index of the Transcript on Appeal as “Proof of Loss.”

This case was tried without a jury pursuant to Rule 73.01. No request was made for a statement of grounds for the trial court’s decision, and the trial court made no findings. Fact issues are, therefore, considered as having been found in accordance with the result reached. Rule 73.01(a)(3).

Plaintiff argues:
The only defenses raised by [Barton County Mutual] against [plaintiffs] claim for losses, is that the residential fire was caused by arson committed by [plaintiffs] ex-husband who was named as an insured on the policy, and that this cause of action was time barred. [Barton County Mutual] but briefly attempted to elicit testimony at trial to support the defense of arson and offered no evidence to support such a defense. ... [Page references to record on appeal omitted.]

This court agrees. Although Barton County Mutual asserted the affirmative defense of arson, it offered no evidence in support of that defense. Pleadings are not self-proving. Stewart v. Brown, 546 S.W.2d 204, 207 (Mo. App.1977). The only issue for review is the applicability of the pleaded statute of limitation.

Barton County Mutual is a mutual insurance company. Its activities are governed by chapter 380.1 Section 380.591 is the statute of limitation Barton County Mutual raised as a defense to plaintiffs claim.2 It states:

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

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Bluebook (online)
945 S.W.2d 606, 1997 Mo. App. LEXIS 890, 1997 WL 242304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dement-v-barton-county-mutual-insurance-co-moctapp-1997.