Economy Preferred Insurance v. Schomaker

900 S.W.2d 249, 1995 Mo. App. LEXIS 1123, 1995 WL 351555
CourtMissouri Court of Appeals
DecidedJune 13, 1995
DocketNo. 67099
StatusPublished
Cited by5 cases

This text of 900 S.W.2d 249 (Economy Preferred Insurance v. Schomaker) 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
Economy Preferred Insurance v. Schomaker, 900 S.W.2d 249, 1995 Mo. App. LEXIS 1123, 1995 WL 351555 (Mo. Ct. App. 1995).

Opinion

KAROHL, Judge.

Defendant Gershman Investment Corporation (Gershman), appeals after summary judgment for plaintiff Economy Preferred Insurance Company (Economy) in a declaratory judgment suit. The trial court found Economy’s insurance policy did not cover fire damage on a house. It also denied counterclaims and requests for summary judgments by defendants Schomaker and Gershman. We review an appeal by Gershman.

Phyllis Schomaker (Schomaker) purchased a house located at 4129 Cleveland, St. Louis, Missouri, 63110, on or about May 18, 1987. Schomaker obtained a loan from Gershman for $39,184 to purchase the house. Her promissory note was secured by a deed of trust with Gershman. On August 8, 1991, Economy issued an insurance policy to Phyllis Schomaker as owner and Gershman as mortgagee. The policy included an agreement by Economy to pay for damages to the property up to a limit of $118,000. The policy named Gershman as loss-payee mortgagee and expressly provided a denial of a claim by the insured would not defeat a claim by the mortgagee.

Sometime in 1991, and continuing into 1992, Schomaker defaulted on the promissory note held by Gershman. Gershman foreclosed on the property. It purchased the house at a trustee’s sale on January 21, 1992. It purchased the property for $43,174. Scho-maker’s mortgage debt on the property was extinguished when Gershman became the sole owner of the house.

On January 22, 1992, Gershman sent a letter to Economy advising it of the foreclosure and requesting Schomaker’s policy be canceled as of January 16, 1992. The letter also asserted that Gershman had been paying the premiums and requested any premium refund be paid directly to Gershman.

On February 7, 1992, the house was damaged by fire. On July 7, 1992, Gershman [251]*251asserted a claim for benefits against Economy under Schomaker’s policy. On July 10, 1992, Economy sent a letter to Gershman denying the claim. It offered several reasons for its denial including the January 22, 1992, letter requesting cancellation of the policy effective January 16, 1992.

Economy filed its petition for declaratory judgment on or about July 16, 1992. The petition requested the court enter a judgment declaring Schomaker had no insurable interest on February 7, 1992, and that any interest Gershman had in the house was not covered by Schomaker’s policy.

On July 21, 1992, Providence Washington Insurance Group (Providence Washington) issued a payment to Gershman for $43,200 for the February 7, 1992, fire loss. Gersh-man had obtained insurance through Providence Washington on the house shortly after the purchase at foreclosure.

Both Schomaker and Gershman filed counterclaims against Economy. In Schomaker’s counterclaim she asserted a settlement was reached between her representative and Economy sometime between April 22, 1992, and May 6, 1992. The settlement amount was an agreed replacement cost of $113,375, less the amount necessary for Schomaker to redeem the house from Gershman. She requested this settlement agreement be enforced by the trial court. Gershman filed a counterclaim for declaratory judgment requesting an order the policy be enforced against Economy in favor of Gershman as issued for the full value of the loss.

Economy, Gershman, and Schomaker all filed motions for summary judgment in addition to their other claims. The court dismissed the counterclaims and requests for summary judgment of both Schomaker and Gershman. It found neither party was entitled to recover from Economy arising out of the fire loss of February 7, 1992. The court sustained Economy’s motions for summary judgment against both Schomaker and Gershman.

Gershman contends the trial court erred in entering a summary judgment in favor of Economy because the policy issued by Economy to Schomaker was still in effect at the time of the loss. Gershman asserts: the policy with Economy was in force because Gershman’s attempt to cancel the policy was not in strict compliance with the terms of the policy and therefore ineffective; the existence of a “union” mortgage clause preserved Gershman’s right to recover as the owner even when Schomaker had no claim; and, Economy was estopped from claiming Gersh-man canceled the policy because it denied coverage on different grounds.

In reviewing appeals from summary judgment, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. Id. We accord the non-movant the benefit of all reasonable inferences from the record. Id.

Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. The propriety of summary judgment is purely an issue of law. Because the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment. Id.

The first point is the trial court erred in finding Gershman’s right to the insurance proceeds under the policy was extinguished. An insurable interest in property may only be maintained if one “will derive pecuniary benefit or advantage from its pecuniary loss or damage from its destruction ... by the happening of the event insured against.” DeWitt v. American Family Mutual Insurance Co., 667 S.W.2d 700, 705 (Mo. banc 1984).

The creditor-debtor relationship between the insured and the mortgagee enables the mortgagee to compel the mortgagor to purchase insurance in order to protect the [252]*252mortgagee’s interest. Northwestern National Insurance Company v. Mildenberger, 359 S.W.2d 380, 386 (Mo.App.1962).

Schomaker purchased her policy from Economy on August 8, 1991. She listed Gershman as mortgagee. At this time both Schomaker and Gershman held an insurable interest in the house. Gershman purchased the house at the foreclosure sale on January 21, 1992. Gershman’s purchase extinguished Schomaker’s indebtedness under the promissory note. Schomaker’s insurable interest in the house was terminated because she was no longer an owner. Gershman’s status changed from mortgagee to sole owner of the property.

Gershman asserts its insurable interest in the property was preserved by a “standard mortgage” or “union” mortgage clause in Schomaker’s policy. The mortgage clause of the insurance policy provided as follows:

The word “mortgagee” includes trustee. If a mortgagee is named in this policy, any loss payable under Coverage A or B will be paid to the mortgagee and you [mortgagor], as interests appear. If more than one mortgagee is named, the order of payment will be the same as the order of precedence of the mortgages. If we deny your claim, that denial will not apply to a vahd claim of the mortgagee, if the mortgagee:
a.

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Bluebook (online)
900 S.W.2d 249, 1995 Mo. App. LEXIS 1123, 1995 WL 351555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/economy-preferred-insurance-v-schomaker-moctapp-1995.