Miller v. Farm Bureau Town & Country Insurance Co. of Missouri

6 S.W.3d 432, 1999 Mo. App. LEXIS 2454, 1999 WL 1211621
CourtMissouri Court of Appeals
DecidedDecember 17, 1999
DocketNos. 22373, 22444
StatusPublished
Cited by9 cases

This text of 6 S.W.3d 432 (Miller v. Farm Bureau Town & Country Insurance Co. of Missouri) 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
Miller v. Farm Bureau Town & Country Insurance Co. of Missouri, 6 S.W.3d 432, 1999 Mo. App. LEXIS 2454, 1999 WL 1211621 (Mo. Ct. App. 1999).

Opinion

JOHN E. PARRISH, Judge.

In No. 22373 Farm Bureau Town and Country Insurance Company of Missouri (Farm Bureau) appeals a judgment construing a policy of insurance it issued on property owned by Glen Miller and Bonnie Miller (collectively referred to in this opinion as plaintiffs) and awarding damages to plaintiffs on an action for breach of contract. No. 22444 is plaintiffs’ cross-appeal. The cross-appeal is directed to the trial court’s failure to include a line for pretrial interest on the form of verdict used at trial and the trial court’s failure to amend its judgment to include pretrial interest. Plaintiffs are deemed appellants and Farm Bureau respondent in accordance with Rule 84.04(k). This court reverses and remands with directions and for new trial as to damages on plaintiffs’ breach of contract action.

Plaintiffs owned a residence in Mountain View, Missouri. The property was insured by Farm Bureau. The residence and its contents were damaged by fire during the evening of October 16 and early morning of October 17, 1995. A fire occurred shortly before 8:00 p.m. October 16. It was extinguished. Plaintiffs, their son and other family members removed a number of personal items from the residence after the fire was extinguished. Another fire occurred at the residence about 2:00 a.m. The dwelling sustained substantial damage.

“Coverage A” of plaintiffs’ policy is the coverage provided on their dwelling. The information page of the policy identifies what the policy includes. It states, with respect to Coverage “A”:

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The part of the policy that explains optional coverage states, as to “Option A”:

The following Optional Coverages apply only when shown on the Information Page. All provisions of this policy apply to each Option in this section unless otherwise modified by the terms within the specific option.
OPTION A
GUARANTEED BUILDING REPLACEMENT COVERAGE. We will settle covered losses to the dwelling under Coverage A at replacement cost without regard to the limit of liability. However, this guarantee does not apply:
1. to a loss which occurs within 59 days of the initial effective date of this policy, or
2. if you fail to notify us within 90 days of any additions to or remodeling of the dwelling which increases its re[435]*435placement cost value by $5,000 or more. You must also pay any additional premium due for the increase in value.
When this guarantee does not apply (as described in 1 and 2 above), or you decide not to replace the dwelling at the same insured premises, our payment will not exceed the amount of insurance applying to the dwelling shown on the Information Page. The insurance policy includes a section entitled “CONDITIONS - SECTION I.” It includes in its paragraph 3 a provision entitled “SETTLEMENT AND VALUATION” that states:
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Two valuation methods are available. The Information Page will show ACV meaning Actual Cash Value or RC meaning Replacement Cost as described in the following paragraphs:
ACV (Actual Cash Value): meaning the replacement cost of property less depreciation. However, the actual cash value shall not include:
1. that portion of any items [sic] value derived through age, history, rarity, or sentimental value. Including but not limited to antiques, memorabilia, souvenirs, collectors items, painting, etchings, pictures, tapestries, statuary, articles made of marble, bronzes, rare books and papers, porcelains or rare glassware;
2. that portion of value for tapes, records, films, or other magnetic recordings in excess of the original cost of the blank or commercially recorded or programmed item.
RC (Replacement Cost): meaning the cost to replace the destroyed or damaged property without deduction for depreciation, using material of equal quality but not necessarily identical materials. The type of material will be agreed upon by you and us.
However, this replacement cost does not apply and actual cash value settlement will be used:
1. if you and we cannot agree on the type of materials;
2. if property which because of age or condition has become obsolete or unusable for its originally intended purpose;
3. paintings, etchings, pictures, tapestries, statuary, articles made of marble, bronzes, antiques, rare books and papers, porcelains, rare glassware or any other articles which, because of their nature, cannot be replaced with new articles.
4. articles whose age or history contributes substantially to their value including, but not limited to, memorabilia, souvenirs and collectors items.
5. business property and property of others; on or off the insured premises.
6. records, films, tapes or other magnetic recordings.
7. until the actual repair or restoration or replacement is completed. In the event you do not decide to repair or replace the damaged, destroyed or stolen property, payment unll be then made on an actual cash value basis. However, you may make a further claim within 180 days after the date of the loss for any additional payments. [Emphasis in original.]

Plaintiffs filed a proof of loss with Farm Bureau and a claim under their insurance policy. Farm Bureau denied plaintiffs’ claim. Plaintiffs then brought the breach of contract action that is the subject of these appeals. Farm Bureau counterclaimed seeking a declaration of plaintiffs’ rights under the terms of the insurance policy in question. The respective actions were not severed. The trial court submitted plaintiffs’ claim against Farm Bureau to a jury. Following a verdict on plaintiffs’ claim, the trial court determined the issues presented in Farm Bureau’s declaratory judgment action and entered judgment. At the time of trial, plaintiffs’ resi[436]*436dence had not been repaired, restored or replaced.

The trial court gave the following instruction to the jury regarding damages that could be awarded plaintiffs if the jury found for plaintiffs on their claim against Farm Bureau.

INSTRUCTION NO. 9
If you find in favor of Plaintiffs on their claim for damages, then you must award Plaintiffs the replacement cost but not less than the sum of $98,000.00 for the loss of plaintiffs’ house and you must award Plaintiffs the sum of $73,-500.00 less depreciation, if any, for the loss of plaintiffs’ personal property and you must award Plaintiffs such sum as you may find from the evidence that will fairly and justly compensate Plaintiffs for additional living expense.
The phrase “depreciation” as used in this instruction means and includes any reduction or lessening in value.
The jury was also instructed:
INSTRUCTION NO. 10

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Cite This Page — Counsel Stack

Bluebook (online)
6 S.W.3d 432, 1999 Mo. App. LEXIS 2454, 1999 WL 1211621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-farm-bureau-town-country-insurance-co-of-missouri-moctapp-1999.