Janet Perea and Mav Mirfasihi v. Progressive Northwestern Insurance Company

CourtMissouri Court of Appeals
DecidedOctober 31, 2023
DocketWD86038
StatusPublished

This text of Janet Perea and Mav Mirfasihi v. Progressive Northwestern Insurance Company (Janet Perea and Mav Mirfasihi v. Progressive Northwestern Insurance Company) 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
Janet Perea and Mav Mirfasihi v. Progressive Northwestern Insurance Company, (Mo. Ct. App. 2023).

Opinion

MISSOURI COURT OF APPEALS WESTERN DISTRICT JANET PEREA AND MAV MIRFASIHI, ) ) Appellants, ) ) v. ) WD86038 ) PROGRESSIVE NORTHWESTERN ) INSURANCE COMPANY, ) Filed: October 31, 2023 ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY THE HONORABLE JON E. BEETEM, JUDGE

BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE, CYNTHIA L. MARTIN, JUDGE, AND ANTHONY REX GABBERT, JUDGE

Janet Perea and Mav Mirfasihi (collectively, “Appellants”) appeal from the

summary judgment entered in favor of Perea’s insurer, Progressive Northwestern

Insurance Company (“Progressive”) on Appellants’ petition for damages. Appellants

contend the circuit court erred in entering summary judgment because Progressive

breached its insurance contract with Perea by failing to timely pay the full amount of

personal injury protection benefits to her, and Progressive should have been required to

pay interest and attorney’s fees as a penalty for its late payments. Appellants further

argue Progressive’s payment of Perea’s benefits to one of her medical providers was not allowed under Missouri law and violated the attorney lien statute. For reasons explained

herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On April 12, 2019, Perea was in an automobile accident with a vehicle driven by

T.H. Perea received medical treatment from Marvin’s Midtown Chiropractic Clinic

(“Marvin’s”) for her injuries. At the time of the accident, Perea, a Kansas resident, was

insured by a Progressive Kansas auto policy. The personal injury protection (“PIP”)

coverage section of the policy stated, in pertinent part:

If you pay the premium for this coverage, we will pay for covered expenses, in accordance with the Kansas Automobile Injury Reparations Act, incurred because of bodily injury:

1. caused by accident; 2. sustained by an insured person; and 3. arising out of the ownership, operation, maintenance or use of a motor vehicle.

The policy included PIP coverage for medical expenses in the amount of $4,500.

On April 15, 2019, Perea and Mirfasihi entered into an attorney-client contract in

which Mirfasihi agreed to represent her with respect to the “rear-end collision and

personal injury of [sic] on or about 4/12/19.” In exchange, Perea agreed to pay Mirfasihi

45% “of all gross proceeds including future payments on any claims.” On April 23,

2019, Perea completed, signed, and sent her application for PIP benefits to Progressive.

On May 9, 2019, Progressive received an assignment of benefits from Marvin’s

Midtown Chiropractic. The document, which was signed by Perea on April 18, 2019,

2 purported to assign to Marvin’s Perea’s right to make a claim for any benefits to which

she was entitled under any insurance policy.

Around the same time, the Progressive employee who was handling Perea’s PIP

claim contacted American Family Insurance, T.H.’s insurance carrier, and confirmed that

American Family had an open liability and bodily injury claim for this accident and that

American Family was handling coverage and payment of Perea’s medical expenses.

Progressive then closed Perea’s PIP claim.

On September 24, 2019, Progressive received a letter from Mirfasihi informing

Progressive of his representation of Perea and demanding payment of Perea’s PIP claim

for $9,255.05, or the policy limits of $4,500, whichever was less. On October 31, 2019,

Progressive issued payment in the amount of $2,102.25 to Marvin’s pursuant to Perea’s

assignment of benefits.

On January 8, 2020, Progressive’s supervisor of medical claims requested that

Progressive issue a draft for $2,397.75, payable to “Janet Perea and Mirfasihi Law

Offices.” According to Progressive’s IT Process Analyst Lead, Progressive issued and

presented the draft the next day, January 9, 2020, to the United States Postal Service for

mailing via first class mail to Mirfasihi’s law office. Mirfasihi, however, never received

this draft.

Appellants filed a petition for damages against Progressive in the Clay County

Circuit Court. Perea asserted claims of breach of contract, tortious interference with a

business expectancy and contract, and vexatious refusal to settle, while Mirfasihi asserted

claims of violation of the attorney lien statute and tortious interference with a contract.

3 On Progressive’s motion, the court ordered that Missouri’s choice of law provisions

required application of Kansas substantive law to Perea’s breach of contract claim. The

court also granted Progressive’s motion for change of venue to the Cole County Circuit

Court pursuant to Sections 375.1800 and 375.1803.1

After the case was transferred to Cole County, Appellants filed an amended

petition for damages asserting the same claims. In her breach of contract claim, Perea

alleged Progressive breached the insurance policy by failing to pay the full amount of the

PIP benefits to her within 30 days after her September 24, 2019 written notice, as

required by K.S.A. 40-3110(b). In her tortious interference with a business expectancy

and contract claim, Perea alleged Progressive intentionally, maliciously, wantonly, and/or

without justification or excuse induced and/or caused a breach in the business expectancy

and/or attorney-client contract by disregarding her demand letter and partially paying

Marvin’s directly. In her vexatious refusal to settle claim, Perea alleged Progressive

refused to compensate her for her full damages or up to its policy limits, and its refusal to

pay was without reasonable cause. For his claims, Mirfasihi alleged Progressive violated

Section 484.140, the attorney lien statute, by paying Marvin’s directly without

compensating him for his attorney lien. Mirfasihi further alleged Progressive’s direct

payment to Marvin’s without paying his attorney lien directly caused Perea to breach her

1 All Missouri statutory references are to the Revised Statutes of Missouri 2016, as updated by the 2020 Cumulative Supplement. Under Section 375.1800.2, when a foreign insurance company such as Progressive does not maintain a registered agent or office in Missouri, it is deemed to reside in Cole County. Venue for actions against an insurer is in the county where the insurer resides, if, as in this this case, the insured was not a resident of Missouri at the time the insurance contract was issued. § 375.1803.1.

4 attorney-client contract, as she had agreed in the contract to pay Mirfasihi 45% of the

gross proceeds of any PIP benefits recovered from Progressive.

Appellants filed a motion for partial summary judgment on Perea’s breach of

contract claim and Mirfasihi’s violation of the attorney lien statute claim. Progressive

filed a cross-motion for summary judgment on all claims. In addition to seeking

summary judgment, Progressive’s prayer for relief in its suggestions in support of its

cross-motion stated, “Based on representations of [Appellants] that the PIP benefits check

issued to Janet Perea and Mirfasihi Law Offices was never received, Defendant

Progressive shall reissue the PIP benefits check in the amount of $2,397.75 to Janet Perea

and Mirfasihi Law Offices and send same to Plaintiff Mirfasihi.” While the parties’

summary judgment motions were pending, Progressive delivered payment of $2,397.75

to Mirfasihi Law Offices on May 16, 2022. On December 27, 2022, the court denied

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Janet Perea and Mav Mirfasihi v. Progressive Northwestern Insurance Company, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janet-perea-and-mav-mirfasihi-v-progressive-northwestern-insurance-company-moctapp-2023.