Jones v. Fireman's Fund Insurance Co.

792 S.W.2d 404, 1990 Mo. App. LEXIS 1009, 1990 WL 90706
CourtMissouri Court of Appeals
DecidedJuly 2, 1990
DocketNo. 16626
StatusPublished
Cited by3 cases

This text of 792 S.W.2d 404 (Jones v. Fireman's Fund 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
Jones v. Fireman's Fund Insurance Co., 792 S.W.2d 404, 1990 Mo. App. LEXIS 1009, 1990 WL 90706 (Mo. Ct. App. 1990).

Opinion

CROW, Presiding Judge.

Leisa Jones (“plaintiff”) brought this action against Fireman’s Fund Insurance Co. (“Fireman’s”) per § 379.200, RSMo 1986, to satisfy a $17,930 judgment against James Darwin Moore and “David Hanson.”1 Fireman’s moved for summary judgment in its favor. The motion was granted. Plaintiff appeals. The following facts are undisputed.

Fireman’s issued insurance policy number 2-84 JUA 435 57 75 (“the policy”) identifying “Marie Speaker & D. Hansen,” doing business as Mule Express, as the named insured. The policy period was from February 11, 1987, to February 11, 1988. The policy provided, among other coverage, “bodily injury liability” of $25,-000 for each person and $50,000 for each accident, together with “property damage liability” of $10,000 for each accident. The policy’s “general declarations” stated the business of the named insured was “taxi service” and its location was Joplin, Missouri.

On February 12, 1987, Marie Speaker and David Hansen signed an agreement with Afeo Credit Corporation (“Afeo”) whereby the latter paid a portion of the premium for the policy. Speaker and Hansen promised to repay Afeo by monthly installments in a specified amount. The agreement provided, among other things:

“9. CANCELLATION: Afeo may cancel the insurance policies and the unpaid balance due to Afeo shall be im[406]*406mediately payable by the insured if any of the following occur: (a) The insured does not pay any installment according to the terms of this Agreement.
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10. POWER OF ATTORNEY: The insured irrevocably appoints Afeo its Attorney-In-Fact with full authority to cancel the insurance policies, receive all sums assigned to Afeo or in which it has granted Afeo a security interest and Afeo may execute and deliver on the insured’s behalf all documents ... forms and notices of any kind relating to the insurance policies in furtherance of this Agreement.”

The agreement showed the address of Speaker and Hansen as 2302 Pennsylvania Ave., Joplin, Mo. 64801.

On or about August 10, 1987, Fireman’s received from Afeo a written notice stating that the policy is cancelled effective August 14, 1987, “by Afeo on behalf of the insured in accordance with the authority given us by the insured to cancel the policies upon default in his payment to Afeo.”

On September 3, 1987, Fireman’s mailed Speaker and Hansen written notice that the policy had been cancelled as of August 14, 1987. The notice was addressed to 2302 Pennsylvania Ave., Joplin, Mo. 64801.

On November 7, 1987, a collision occurred in Joplin between an automobile owned and operated by plaintiff and an automobile owned by David Hansen and operated by James Darwin Moore.

On November 23, 1987, a Fireman’s agent in Joplin sent a letter to Hansen stating that the policy was cancelled by Fireman’s on August 14, 1987, hence the accident of November 7, 1987, involving plaintiff was “not covered.”

On May 18, 1988, plaintiff filed suit (number CV188-435CC) in the Circuit Court of Jasper County against Moore and Hansen seeking money damages for alleged personal injuries and property loss sustained in the collision of November 7, 1987. Plaintiff averred that at the time of the collision Moore was operating Hansen’s automobile “within the scope of [Moore’s] employment with ... [Hansen] d/b/a/ Mules Express Taxi.”

On October 27, 1988, judgment was entered in case number CV188-435CC in favor of plaintiff and against Moore and Hansen for $17,930. Plaintiff commenced the instant case January 12, 1989, attempting to collect that judgment.

Plaintiff’s petition in the instant case pled that the policy was in effect on the date of the accident and that “a certificate of insurance evidencing said policy is attached hereto as Exhibit ‘C.’ ” The exhibit, a copy of a document captioned “EVIDENCE OF PROPERTY INSURANCE,” stated: “This is evidence that insurance as identified below has been issued, is in force, and conveys all the rights and privileges afforded under the policy.” The exhibit (1) named the company as “Fireman’s Fund,” (2) identified the insured as “M. Speaker & D. Hansen dba Mule Express,” (3) showed the effective date as February 11, 1987, and the expiration date as February 11, 1988, (4) set forth the amount of coverage for bodily injury and property damage, and (5) recited that the premium was “to be financed with AFCO.” It then provided:

“CANCELLATION
The policy is subject to the premiums, forms, and rules in effect for each policy period. Should the policy be terminated, the company will give the additional interest identified below 10 written notice, and will send notification of any changes to the policy that would affect that interest, in accordance with the policy provisions or as required by law.
ADDITIONAL INTEREST
City of Joplin
303 E 3rd Street
Joplin, MO 64801”

The exhibit showed the nature of the City’s interest as: “City Requirement for Liability Insurance.”

Fireman’s filed an answer admitting issuance of the policy but averring that it “was cancelled on August 14, 1987 due to premium nonpayment, thus, no coverage [407]*407existed on November 7, 1987, the date of the purported accident.”

Plaintiff filed a reply averring Fireman’s was estopped from asserting its affirmative defense that the policy was cancelled August 14, 1987, in that Fireman’s had failed to give Hansen “and the City of Joplin as [an] additional interest under the policy written notification that the policy was allegedly cancelled.”

Fireman’s thereafter moved for summary judgment. Attached to its motion were sundry documents including an affidavit of a “representative” of Fireman’s. The affidavit stated that Fireman’s cancelled the policy effective August 14, 1987, pursuant to the notice of August 10, 1987, from Afeo.

In opposition to the motion for summary judgment, plaintiff filed an affidavit of David Hansen wherein he avowed that the first notice he received that the policy had been cancelled was the letter of November 23, 1987, advising him that plaintiff’s accident was not covered.

In written suggestions to the trial court plaintiff asserted, among other arguments, that the policy required that the City of Joplin be given notice of any cancellation of the policy and that the City was not notified of any cancellation prior to November 7, 1987.

Fireman’s filed reply suggestions asserting that the policy required Fireman’s to mail notice of cancellation to the named insured at his last known address, that Fireman’s had done so, and that Missouri courts had consistently held that cancellations are effective in such circumstances whether or not the insured receives the notice. Fireman’s added that there was no provision in the policy requiring Fireman’s to give the City of Joplin notice of the cancellation.

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Cite This Page — Counsel Stack

Bluebook (online)
792 S.W.2d 404, 1990 Mo. App. LEXIS 1009, 1990 WL 90706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-firemans-fund-insurance-co-moctapp-1990.