Nelson v. Farm Bureau Town & Country Ins. Co. of Mo.

560 S.W.3d 81
CourtMissouri Court of Appeals
DecidedOctober 9, 2018
DocketWD 80823
StatusPublished
Cited by3 cases

This text of 560 S.W.3d 81 (Nelson v. Farm Bureau Town & Country Ins. Co. of Mo.) 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
Nelson v. Farm Bureau Town & Country Ins. Co. of Mo., 560 S.W.3d 81 (Mo. Ct. App. 2018).

Opinion

VICTOR C. HOWARD, JUDGE

Patti Nelson appeals from the trial court's judgment directing verdict in favor of Farm Bureau Town and Country Insurance Company of Missouri on her claims of breach of contract arising out a claim for partial fire loss of her home. The judgment is affirmed in part and reversed in part, and the case is remanded with directions.

Background

Ms. Nelson owns a home in Weatherby Lake in Platte County, Missouri. Farm Bureau issued a homeowner's policy on the property that was in effect from December 27, 2005, until December 27, 2006. Ms. Nelson also had a separate insurance policy on the property issued by American Security Insurance Company, which provided coverage for the dwelling only.

On February 11, 2006, Ms. Nelson sustained a partial fire loss to the residence and the personal property in it. She notified Farm Bureau of the fire that day. She subsequently presented claims to Farm Bureau to recover insurance proceeds for losses to the structure and personal property and for additional living expenses incurred. Farm Bureau paid Ms. Nelson two *85$2,000 advance payments with a reservation of rights that if it determined that the loss was not covered, she would repay the money.

Beginning in March, the Farm Bureau claims adjuster prepared several adjuster summaries outlining the scope of damage and the cost of repair for the structure claim. The first one dated March 9, 2006, showed an estimate of $26,905.33. After Ms. Nelson and her contractor reviewed the summary, they requested three additional items. The adjuster agreed with the additions and prepared a second summary on March 18 with an estimate of $28,267.12. Ms. Nelson and her contractor continued to request additional repairs. Although the claims adjuster did not agree with the new additions, he prepared two more summaries on April 3 for $38,061.00 and on April 12 for $55,110.77 to reflect Ms. Nelson's additional claims. Ultimately, because of the disagreement between Farm Bureau and Ms. Nelson about the scope of damage and cost of repair on the structure claim, Farm Bureau retained All Service Restoration to prepare an estimate for repairing the damage to the house. All Service's bid was $28,410.95. Believing the All Service bid was an accurate assessment of damages and cost of restoration, Farm Bureau issued a payment to Ms. Nelson in May in the amount of $23,372.99 based on the All Service bid plus $4,962.04 for interior structure cleaning minus a $10,000 deductible.

Toward the end of April, Ms. Nelson prepared and submitted an inventory list of personal property damaged in the fire. The list claimed $24,382.65 for damaged property, which included a claim of $1,609.52 for spoiled food. In May, Farm Bureau issued a payment to Ms. Nelson and ServiceMaster in the amount of $10,871.09 for ServiceMaster's bill of $14,871.09 for laundry and dry cleaning, pack out and storage, and content cleaning less the $4,000 in advance payments already made to Ms. Nelson. In June, after an inspection of Ms. Nelson's personal property, Farm Bureau issued another payment to Ms. Nelson in the amount of $3,134.57 for items on her inventory that were damaged or not cost effective to clean, food, and clothing. In total, Farm Bureau issued $18,005.66 to Ms. Nelson for her claimed personal property damages.

Ms. Nelson also made a claim in the amount of $12,178.33 for additional living expenses as a result of not being able to live in her home after the fire until the beginning of July. Farm Bureau determined that the home was inhabitable on May 13, 2006, after the cleaning by ServiceMaster and issued payments totaling $5,828 for her claimed additional living expenses.

In November 2006, Ms. Nelson informed Farm Bureau that she intended to make additional claims. At that time, Farm Bureau invoked the appraisal process under the policy. That process started at the beginning of February 2007. Farm Bureau selected Brachman Construction as its appraiser, and Ms. Nelson selected French Remodeling. The Brachman bid was $46,947.86; the French bid was $77,568.55. When the process started, Farm Bureau also requested a copy of Ms. Nelson's American Security Policy. In April 2007, Farm Bureau received a copy of the American Security Policy and determined that that policy was the primary policy and the Farm Bureau policy was for any excess over American Security Policy coverage limit. Farm Bureau also learned that Ms. Nelson filed a lawsuit against American Security and settled the claims for less than the policy coverage limit in May 2007. Accordingly, Farm Bureau determined that because the primary insurance coverage was not exhausted, its policy was not *86triggered and stopped the appraisal process. It notified Ms. Nelson in August 2007 that it wasn't moving forward with the appraisal process.

Ms. Nelson filed a lawsuit against Farm Bureau and American Security for breach of contract and vexatious refusal to pay. Her claims against America Security were dismissed with prejudice based on her settlement with them, and her case against Farm Bureau proceeded to trial.

At the close of Ms. Nelson's case, Farm Bureau filed a motion for directed verdict arguing, among other things, that Ms. Nelson failed to make a submissible case on the proper measure of damages for the structure and personal property claims. Specifically, it argued that Ms. Nelson failed to introduce evidence of the actual cash value of the structure and personal property, which is defined under Missouri law as the difference between the reasonable value of the property immediately before and immediately after the loss. It asserted that Ms. Nelson instead merely submitted some evidence of the cost to repair the structure and the replacement value of the personal property, which by itself was insufficient to prove actual cash value. Farm Bureau also argued that Ms. Nelson failed to make a submissible case on the prejudgment interest claim. The trial court sustained the motion on Ms. Nelson's structure, personal property, and prejudgment interest claims.

Ms. Nelson's claims for additional living expenses and vexatious refusal to pay remained and were submitted to the jury. The jury returned a verdict in favor of Ms. Nelson on the policy in the amount of $6,350.33, for penalty in the amount of $785.03, and for attorney's fees in the amount of $35,000. The trial court entered judgment accordingly, and this appeal by Ms. Nelson followed.

Standard of Review

Ms. Nelson raises three points on appeal challenging the trial court's directed verdict on her structure, personal property, and prejudgment interest claims. In reviewing the trial court's granting of a motion for directed verdict, the appellate court determines whether the plaintiff made a submissible case. Investors Title Co., Inc. v. Hammonds , 217 S.W.3d 288, 299 (Mo. banc 2007) ; Payne v. Cunningham , 549 S.W.3d 43, 47 (Mo. App. E.D. 2018). A case is not submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence.

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Bluebook (online)
560 S.W.3d 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-farm-bureau-town-country-ins-co-of-mo-moctapp-2018.