Essman v. Fire Insurance Exchange

753 S.W.2d 955, 1988 Mo. App. LEXIS 898, 1988 WL 62844
CourtMissouri Court of Appeals
DecidedJune 21, 1988
DocketNo. 52970
StatusPublished
Cited by1 cases

This text of 753 S.W.2d 955 (Essman v. Fire Insurance Exchange) 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
Essman v. Fire Insurance Exchange, 753 S.W.2d 955, 1988 Mo. App. LEXIS 898, 1988 WL 62844 (Mo. Ct. App. 1988).

Opinion

KAROHL, Presiding Judge.

Insured, under fire insurance policy, appeals after judgment was entered in favor of defendant in accord with a defendant’s verdict. Plaintiff claimed damages to real estate and personal property resulting from a fire at his home on March 5, 1982. He also claimed statutory vexatious refusal to pay damages and an attorney’s fee. Defendant relied upon affirmative defenses that plaintiff misrepresented the “nature, description and extent of items damaged, the cause and origin of loss, and the nature, extent and amount of loss.” It also defended on the ground that defendant caused the loss and misrepresented facts on the application for insurance, particularly, that the home was not subject to a mortgage.

The court submitted two defense instructions. The jury found: (1) plaintiff willful[957]*957ly represented the extent and amount of the damage to the dwelling or the extent and the value of the personal property; that either representation [or both] was false; plaintiff knew the representation was false; in making the representation plaintiff intended to deceive defendant and that such representation concerned a material matter relating to the claim [Instruction No. 6]; or, (2) the fire at plaintiffs dwelling was of an incendiary origin and the fire was caused by or at the direction of plaintiff [Instruction No. 7]. In a timely motion for new trial defendant complained about submission of two affirmative defense instructions. That claim has been abandoned.

The background facts describe a relationship between the parties in addition to that of insured and insurance company. Beginning in June, 1976, plaintiff served defendant as an independent insurance agent. Defendant notified plaintiff by letter of July 29, 1981 that it intended to terminate the relationship by November 1, 1981. In August 1981, plaintiff contracted to buy and in October, 1981, bought a house for a total price of $10,000. He paid $2500 cash and obtained $7500 by a loan secured by the property. In September, 1981, the parties reached a settlement regarding the insurance agency relationship. Plaintiff agreed not to appeal termination and the company agreed to terminate the relationship on December 31, 1981.

During the extended period of the business relationship, on November 19, 1981, plaintiff placed insurance on his newly purchased residence. The coverage provided was $48,000 for the real estate [actual value not replacement value was covered], $24,000 on personal property and $9600 for living expenses. The application reflected no mortgages.

For purposes of this civil proceeding the following facts are not disputed. Between April 19, 1981, and December, 1981, plaintiff organized some corporations, GES Construction Company, Michael Construction Company and Midwest Roofing. During that period he submitted repair bids to defendant on behalf of these companies for fictitious losses. He obtained drafts payable to one of the companies. He endorsed them with fictitious names and kept the money. The claims were fraudulent. Subsequently, plaintiff was charged and convicted on four counts of stealing in connection with these transactions. Plaintiff admitted submitting at least twenty-five fraudulent claims to defendant.

The fire at issue occurred on March 5, 1982. Plaintiff filed a report of loss on March 8, 1982. Mr. Bates, representing an adjustor hired by defendant, inspected the premises with plaintiff on March 10, 1982. Mr. Bates concluded the loss to the real estate was in the amount of $8,000, to the contents in the amount of $5,000 and that $1,000 would be proper for living expenses. Within one week thereafter, plaintiff removed all of the personal property and gutted the house. These actions were contrary to the direction of Mr. Bates.

On March 21, 1982, plaintiff filed a formal proof of loss claiming $20,700 real estate damage and $25,997 in personal property loss. Plaintiff supported his claim by an estimate prepared by one of his own companies.

On May 5, 1982, Ivan L. Saunders, an expert in the cause and origin of fires, hired by defendant, visited the property. He concluded the fire started in the southeast bedroom at two points of origin and “pour patterns” indicated the presence of a flammable liquid. Mr. Saunders ruled out the possibility that the fire resulted from a natural or accidental cause.

On November 28,1982, defendant denied plaintiffs claim and informed plaintiff:

“This is to advise that we are denying your fire loss claim of March 5, 1982. We do not believe that a fire loss occurred as you reported. Further, you have provided us with false information in violation of policy conditions. This was an intentional fire, and we have concluded that you are implicated in it.”

We consider plaintiffs four claims of trial court error. The first two contend [958]*958that the court erred in submitting defense Instruction No. 6 because it was based upon a defense of misrepresentation which was waived and because it lacked evidentia-ry support, misled and confused the jury. The third point claims error in excluding rebuttal evidence as to the cause of the fire in the form of expert testimony which was intended to undermine the testimony of defendant’s expert. The fourth and last claim of error is that the court erred in admitting extended evidence in the form of a statement made by plaintiff regarding his theft from defendant because it was not evidence of motive for arson or proper impeachment. In point four plaintiff claims that the court compounded its error made in point three by refusing a cautionary instruction on the use of the evidence admitted consisting of plaintiffs statement.

For two reasons we reject plaintiff’s first claim of error that the affirmative defense Instruction No. 6 relating to misrepresentation was erroneously given. First, the claim of error is not supported by the facts. Waiver of a reason to deny a claim may occur if an insurance company has full knowledge of the facts but denies coverage on specified grounds not including the legal defense raised at trial. See, Stone v. Waters, 483 S.W.2d 639, 645 Mo.App.1972). However, in the present case the ground of misrepresentation submitted in Instruction No. 6 was included in the denial letter. Defendant denied coverage because plaintiff furnished false information and because the fire was intentionally set. Misrepresentation was specified as a reason to refuse the claim.

Second, this issue was not presented to the trial court in plaintiff’s motion for new trial. Accordingly, it was not preserved for appellate review. Rule 70.03, Overfield v. Sharp, 668 S.W.2d 220, 222 (Mo.App.1984); Belter v. Crouch Brothers, Inc., 554 S.W.2d 562, 563 (Mo.App.1977). Although the issue was made in a motion in limine, such motion preserves nothing for appellate review. Anderson v. Rojanasathit, 714 S.W.2d 894, 895 (Mo.App.1986). A claim of error not presented to and decided by the trial court will not support a new trial. Ohlendorf v. Feinstein, 636 S.W.2d 687, 690 (Mo.App.1982).

Plaintiff also claims that the same Instruction No.

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753 S.W.2d 955, 1988 Mo. App. LEXIS 898, 1988 WL 62844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/essman-v-fire-insurance-exchange-moctapp-1988.