O'Connor v. State Farm Mutual Automobile Insurance Co.

831 S.W.2d 748, 1992 Mo. App. LEXIS 818, 1992 WL 103086
CourtMissouri Court of Appeals
DecidedMay 18, 1992
DocketNo. 17854
StatusPublished
Cited by4 cases

This text of 831 S.W.2d 748 (O'Connor v. State Farm Mutual Automobile 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
O'Connor v. State Farm Mutual Automobile Insurance Co., 831 S.W.2d 748, 1992 Mo. App. LEXIS 818, 1992 WL 103086 (Mo. Ct. App. 1992).

Opinion

CROW, Judge.

Plaintiff, Michael O’Connor, sued Defendant, State Farm Mutual Automobile Insurance Company, for indemnity under the collision and medical payments coverages in an insurance policy issued to Plaintiff by Defendant. The trial court heard the case without a jury and entered judgment for Plaintiff and against Defendant for $9,000 “property damage” and $5,000 “medical payments coverage.”

Defendant appeals. The sole question presented is whether a cancellation notice, mailed by Defendant to Plaintiff almost 15 weeks before the incident that caused the losses, cancelled the policy.

In our review, we accept as true the evidence and inferences from it favorable to the trial court’s judgment and disregard contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654[2] (Mo. banc 1989). Any fact issue on which no finding was made is considered as having been found in accordance with the judgment. Id. at 654[3]. Credibility of the witnesses and the weight to be given their testimony was a matter for the trial court, which was free to believe none, part or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587[1] (Mo. banc 1988).

So viewed, the evidence establishes that on January 7, 1989, Defendant issued the subject policy to Kenneth Counts1 insuring a GMC pickup for a six-month period.

In February, 1989, Mr. Counts sold the pickup to Plaintiff, notified an agent of Defendant about the sale, and asked the agent to transfer the insurance coverage to Plaintiff. In its answer to Plaintiff’s petition, Defendant admits that when the policy was “transferred,” Defendant’s agent was asked to send any correspondence regarding it to Plaintiff at 115 East Main, East Prairie, Missouri.

At all times pertinent herein, Plaintiff resided at 410 Wilbur, East Prairie, Missouri. However, Plaintiff testified he had received his mail at the East Main address (the residence of his parents) the past five years.

At trial, Plaintiff identified Plaintiff’s Exhibit 1 as a “declaration page” he received from Defendant by mail showing coverage from February 13, 1989, to July 7, 1989. This was evidently addressed to him at the East Main address.2

[750]*750Because Plaintiff was younger than Mr. Counts, Defendant determined Plaintiff owed a premium exceeding the sum Counts had already paid.

Defendant’s evidence tended to show it mailed Plaintiff a “balance due notice” for the additional premium March 10, 1990, addressed to the East Main address. Plaintiff denied receiving any notice or bill for additional premium.

Defendant received no premium from Plaintiff, so on April 10, 1989, Defendant mailed a cancellation notice to Plaintiff, addressed to 410 Wilbur, East Prairie, Missouri. The notice stated the policy is can-celled effective April 23, 1989, due to nonpayment of premium.

Plaintiff testified he never received the notice.

On July 23, 1989, Plaintiff “had an accident.” The pickup was destroyed, and Plaintiff was severely injured, resulting in medical bills.

The “Conditions” portion of the policy contains a section captioned: “5. Cancellation.” It reads, in pertinent part:

How and When We May Cancel. We may cancel your policy by written notice, mailed to your last known address. The notice shall give the date cancellation is effective.
It will be mailed to you at least:
a. 10 days before the cancellation effective date:
(1) if the cancellation is because you did not pay the premium; or
(2) if the policy has been in force for 59 days or less.
The mailing of it shall be sufficient proof of notice.
b. 30 days before the cancellation effective date if:
(1) the cancellation is because of any other reason; and
(2) the policy has been in force for more than 59 days.
We will use certified mail.

We henceforth refer to the above excerpt as “the cancellation provision.”

Defendant concedes it did not send the cancellation notice by certified mail.

At trial, Plaintiff maintained the purported cancellation was a nullity because Defendant failed to send the cancellation notice by certified mail.

The trial court’s judgment was unaccompanied by findings of fact or conclusions of law, none having been requested.

Defendant’s sole point relied on reads:

The trial court erred in ruling that the policy covered the loss of July 23, 1989 for the reason that a notice of cancellation does not have to be sent by certified mail under either state law or under the State Farm policy.

Because our review is limited to the claims of error presented in the points relied on, Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405[3] (Mo.1964); Gover v. Empire Bank, 574 S.W.2d 464, 468[1] (Mo.App.1978), we need not consider whether the judgment might be vulnerable to any other attack.

Cancellation of automobile insurance policies is governed by §§ 379.110-.120, RSMo 1986, as amended. Section 379.114, RSMo 1986, reads:

1. Except as provided in sections 379.-110 to 379.120, no insurer shall exercise its right to cancel a policy except for the following reasons:
(1) Nonpayment of premium; or
[[Image here]]
Section 379.118, RSMo 1986,3 reads:
If any insurer proposes to cancel ... a policy of automobile insurance deliv-ered_ in this state except at the request of the named insured or for nonpayment of premium, it shall, on or before thirty days prior to the proposed effective date of the action, send written notice by certified mail of its intended action to the named insured at his last known address....

Defendant asserts it is clear from the above statutes that the requirement that notice of cancellation be sent by certified [751]*751mail does not apply where cancellation is for nonpayment of premium. Defendant argues the cancellation provision in its policy (quoted earlier) “is set up essentially the same way.” According to Defendant:

Essentially, under the cancellation provision of the policy there are two different mailing provisions; one is headed “a” and one is headed “b”. The “a” provision deals with cancellation for non-payment of premium and states “the mailing of it shall be sufficient proof of notice”.
The “b” provision has to do with cancellation for any other reason and states “we will use Certified Mail”.
Plaintiffs position is premised on the notion that a cancellation for non-payment of premium must be mailed by Certified Mail.

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Bluebook (online)
831 S.W.2d 748, 1992 Mo. App. LEXIS 818, 1992 WL 103086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-state-farm-mutual-automobile-insurance-co-moctapp-1992.