Krenski v. Continental Casualty Co.

908 S.W.2d 917, 1995 Mo. App. LEXIS 1834, 1995 WL 653101
CourtMissouri Court of Appeals
DecidedNovember 7, 1995
DocketNo. 67809
StatusPublished
Cited by1 cases

This text of 908 S.W.2d 917 (Krenski v. Continental Casualty 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
Krenski v. Continental Casualty Co., 908 S.W.2d 917, 1995 Mo. App. LEXIS 1834, 1995 WL 653101 (Mo. Ct. App. 1995).

Opinion

SMITH, Presiding Judge.

Plaintiff, Amy Krenski, appeals from the trial court’s grant of defendant Continental [918]*918Casualty’s motion for summary judgment on plaintiffs claim against a supersedeas bond issued by defendant. We affirm.

KrensM sued Richard Aubuchon for personal injuries arising from an automobile accident. She was awarded a judgment of $108,266.63, which included interest, against Aubuchon. Aubuchon appealed the judgment to this court. Aubuchon had a liability insurance policy for $25,000 through Atlanta Casualty Company. Atlanta filed, and this court granted, an application for leave to file an appeal bond. We set the amount of bond at $45,000, and stayed execution only against Atlanta. The bond was posted by Atlanta in the prescribed amount with Continental Casualty Company as the surety. We affirmed the judgment in favor of KrensM. Krenski v. Aubuchon, 841 S.W.2d 721 (Mo.App.1992). Atlanta tendered the limits of its liability policy, plus post-judgment interest (a total of $27,995.89) to the trial court. The court entered an order of partial satisfaction of judgment but noted that issues remained in the case concerning the amount of additional pre-judgment and post-judgment interest.

Plaintiff sought a summary judgment on the appeal bond which was denied by the court and from which denial KrensM appealed. That summary judgment was to recover an additional amount for pre- and post-judgment interest. While that appeal was pending, KrensM initiated an equitable garnishment action against Atlanta. Atlanta then deposited an additional $17,553.55, representing pre- and post-judgment interest plus costs for the equitable garnishment. The parties signed a consent judgment stipulating that the $17,553.55 was in satisfaction of the judgment between plaintiff and Atlanta. Thereafter plaintiffs appeal was dismissed by tMs court because there was no final appealable judgment. Krenski v. Aubuchon, 868 S.W.2d 526 (Mo.App.1993). In the opinion dismissing plaintiffs appeal this court noted that “It is agreed Atlanta Casualty has paid plaintiff all that it owed on the policy it issued to defendant Aubuchon.”

Plaintiff then filed tMs action against Continental Casualty, the surety on Atlanta’s bond. Both parties filed motions for summary judgment. The trial court demed plaintiffs motion and granted defendant’s. This appeal followed.

Plaintiff acknowledges the general rule that if a principal is discharged from its bonded obligation, the surety’s obligation also terminates. State ex rel. Missouri Highway and Transportation Commission v. Morganstein, 703 S.W.2d 894 (Mo. banc 1986) [1-3]; Continental Bank & Trust Co. v. American Bonding Co., 605 F.2d 1049 (8th Cir.1979) [1]. If the principal performs the underlying promise, the surety is not liable. In general, the obligation of a surety is both measured and limited by the principal’s obligation. Morganstein, supra. There is no dispute that Atlanta has been discharged from its bonded obligation, to wMch Continental was the surety. Plaintiff contends that there is an exception to the general rule when a surety, by the terms of its contract, takes on greater and different obligations than the principal. She relies upon certain language of the bond and the ease of School District No. 37 In Butler County v. Aetna Accident & Liability Co., 234 S.W. 1017 (Mo.App.1921) (hereinafter Aetna).

The conditions for payment of the bond relied upon by plaintiff are:

“WHEREFORE, if appellant, Richard D. Aubuchon, should himself satisfy the judgment in full, if appellant’s insurer, the Atlanta Casualty Company, should satisfy the judgment in full, or if the judgment is reversed in part or in full, then the obligation of the surety, Continental Casualty Company, shall be void; otherwise the obligation of the surety, Continental Casualty Company, remains in full'force and effect to be executed at the order and direction of the Eastern District Court of Appeals, State of Missouri.”

The judgment against Aubuchon has never been satisfied in full by Aubuchon or by Atlanta, and the judgment has not been reversed. Atlanta has satisfied in full its obligation under its insurance policy in an [919]*919amount exceeding the amount of Continental’s bond. The bond did not stay execution against Aubuchon and was not posted for his benefit. Under the general rule, upon the discharge of the principal, Atlanta, the obligation of the surety, Continental, terminated. The bond specifically provides that the principal and surety “are held and firmly bound in the sum of Forty-Five Thousand Dollars ... for which ... we bind ourselves ... jointly and severally .... ” (Emphasis supplied)

The Aetna case relied upon by plaintiff recognized the general rale but added an exception when the surety, by the terms of its contract, casts upon itself a greater and different obligation than the principal. Defendant seeks to distinguish Aetna on the basis that Aetna’s obligations under the bond were substantially different than Continental’s under this bond and that in Aetna the principal had never paid any part of the debt involved. Whatever the merits of those distinctions we believe a more substantial distinction exists because Aetna was required to satisfy the very debt for which its bond was executed. Some further discussion of Aetna is required.

The Poplar Bluff School District entered into a contract with Lewis and Kitchen to have them furnish all materials and perform all the work for the installation of a heating and ventilating system in the new high school building. Aetna furnished a bond for the project which provided that if Lewis and Kitchen performed and fulfilled all obligations of its contract the bond obligation would be void. One of the conditions of the bond was that Lewis and Kitchen “shall repay the said school district, all sums of money which they may pay to other persons on account of work and labor done or materials furnished on or for said buildings.... ” The contract between the District and Lewis and Kitchen provided for the contractor to furnish all material and labor for the heating project but did not provide that the contractor pay the suppliers of those items. Lewis and Kitchen went bankrupt leaving suppliers unpaid for materials used in the school building.

One of those suppliers sued the members of the school board on the basis that the board had failed to require the bond required by statute for work done on public buildings and the members were personally liable for the unpaid money. In C.A. Burton Machinery Co. v. Ruth, 194 Mo.App. 194, 186 S.W. 737 (1916) and C.A. Burton Machinery Co. v. Ruth, 196 Mo.App. 459, 194 S.W. 526 (1917) the Springfield Court of Appeals ruled in favor of plaintiff-supplier. The basis of the latter decision was that the contract between the school board and Lewis and Kitchen did not require the contractor to pay the supplier, only that the contractor furnish the materials.

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Bluebook (online)
908 S.W.2d 917, 1995 Mo. App. LEXIS 1834, 1995 WL 653101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krenski-v-continental-casualty-co-moctapp-1995.