Kastendieck v. Millers Mutual Insurance

946 S.W.2d 35, 1997 Mo. App. LEXIS 982, 1997 WL 292552
CourtMissouri Court of Appeals
DecidedJune 3, 1997
DocketNo. WD52491
StatusPublished
Cited by11 cases

This text of 946 S.W.2d 35 (Kastendieck v. Millers Mutual Insurance) 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
Kastendieck v. Millers Mutual Insurance, 946 S.W.2d 35, 1997 Mo. App. LEXIS 982, 1997 WL 292552 (Mo. Ct. App. 1997).

Opinion

ELLIS, Judge.

On January 28, 1993, Alan Kastendieck’s residence and all personal property contained therein were destroyed by fire.1 At the time, a valid homeowner’s insurance policy issued by Millers Mutual Insurance Company of Alton, Illinois (“Millers”) was in effect. The policy’s declarations page reflected policy limits of $89,500 on the dwelling and $44,750 on the contents. The policy also contained replacement cost endorsements (HO-290 and HO-291), pursuant to which Millers agreed upon stated conditions to replace or repair the house and its contents.

On February 1, 1993, Kastendieck met with Millers claims representative, John Blocher, to give a recorded statement. At that time, Kastendieck indicated that he was unsure whether he was going to rebuild his house. On April 20, 1993, Millers paid Kas-tendieck $90,000 for the loss of his dwelling.2 [37]*37According to Millers, the home’s depreciated value was $85,800 (the estimated cost of repair, $133,695, minus depreciation). Millers also retained a real estate appraiser who placed a reasonable market value of $87,000 on the home. Because these sums were less than the stated policy limit on the dwelling, $89,500, Millers paid Kastendieck the policy limit as required by § 379.140.3 Millers also paid Kastendieck $45,000 for his personal property loss.

On March 4,1993, Kastendieck secured the services of a public adjuster. Through his public adjuster, Kastendieck submitted to Millers a proof of loss reflecting an actual cash value of $181,643.51 for his home and $66,475.09 for his personal property. On June 25, 1993, Kastendieck’s public adjuster made written demand for the unpaid balance of $91,643.51 on the home and $36,092.59 on the contents ($81,092.59 minus the $45,000 payment).4 Pursuant to a November 23, 1993 letter, Millers rejected Kastendieck’s claims on the grounds that:

[n]o additional liability has been sustained by [Millers] ... under the [dwelling] replacement cost endorsement ... because actual repair or replacement has not been completed. In addition, you have not elected to replace the dwelling as evidenced by your decision to retire your mortgage debt, a lack of any action towards replacing and your failure to advise [Millers] of any intent to replace.
‡ Hí ‡ ‡ Hí ♦
[n]o additional liability has been sustained by [Millers] under [the personal property replacement endorsement] because actual replacement has not been completed nor have the limits of coverage increased under [the dwelling endorsement] because you have not, at the present time, satisfied the conditions in that endorsement. Further, you have not provided properly identified receipts evidencing the replacement of the property so that a determination can be made as to any additional liability under the replacement cost endorsement should the limits eventually be increased.

Millers, however, did extend to Kastendieck a period of twenty additional days from receipt of the letter denying his claim in which to elect to replace the dwelling and make a claim for any additional liability on a replacement cost basis based on his deposition testimony that he “intended to rebuild” his dwelling.

Kastendieck did not take advantage of this option, instead he brought this action against Millers to recover the difference between the policy limits and the cost of replacing his dwelling and personal property. The case was tried to the court without a jury. At the close of Kastendieck’s evidence MiUers moved the court for judgment under Rule 73.01(a)(2), claiming Kastendieck was not entitled to relief because he had failed to produce any substantial evidence that he: (1) elected to repair or replace the residence, (2) submitted a replacement cost claim within 180 days, and (3) completed repair on the residence. The court sustained the motion and entered judgment in Millers’ favor.5 Kastendieck appeals.

In a bench-tried case, a motion to dismiss filed at the close of a plaintiff’s case is treat[38]*38ed “as a submission on the merits, requiring the court to determine the credibility of the witness and to weigh the evidence.” Pasta House Co. v. Williams, 833 S.W.2d 460, 461 (Mo.App. E.D.1992) (quoting Wyrozynski v. Nichols, 752 S.W.2d 433, 436-37 (Mo.App. E.D.1988)). Accordingly, we view the evidence in the light most favorable to the judgment. Id. Because neither party requested findings of fact or conclusions of law, we consider all fact issues to have been found in accordance with the result reached, and will affirm the judgment if it is correct on any reasonable theory supported by the evidence. Molasky Enters., Inc. v. Carps, Inc., 615 S.W.2d 83, 86 (Mo.App. E.D.1981). We are mindful that “our primary concern is the correctness of the trial court’s result, not the route taken to reach it.” Heartland Health Sys., Inc. v. Chamberlin, 871 S.W.2d 8, 10 (Mo.App. W.D.1993). We will sustain the court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Patrick v. Koepke Const. Inc., 844 S.W.2d 508, 512 (Mo.App. E.D.1992).

Under Kastendieck’s basic policy of insurance, recovery for property losses to buildings was capped at “the limit of liability under [the] policy that applies to the building,” and losses to personal property were settled “at actual cash value at the time of loss but not more than the amount required to repair or replace.” The dwelling replacement cost endorsement attached to his policy for an additional premium guaranteed unlimited replacement or repair cost protection on his dwelling:

... [W]e agree to amend the present coverage amounts indicated on the Declarations page in accordance with the following provisions:
1. If you have:
a. allowed us to adjust the Coverage A limit of liability and the premium in accordance with:
(1) the property evaluations we make; and
(2) any increases in inflation; and
b. notified us, within thirty (30) days of completion, of any alterations to the dwelling which increase the replacement cost of the dwelling by 5% or more; and e. elected to repair or replace the damaged building;

We will:

a. increase the Coverage A limit of liability to equal the current replacement cost of the dwelling if the amount of loss to the dwelling is more than the limit of liability indicated on the Declarations page;
b. also increase by the same percentage applied to Coverage A the limits of liability for Coverage B, C and D. However, we will do this only if the Coverage A limit of liability is increased under paragraph a. above as a result of a Coverage A loss.
c.

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Bluebook (online)
946 S.W.2d 35, 1997 Mo. App. LEXIS 982, 1997 WL 292552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kastendieck-v-millers-mutual-insurance-moctapp-1997.