Priesmeyer v. Shelter Mutual Insurance

995 S.W.2d 41, 1999 Mo. App. LEXIS 890, 1999 WL 440408
CourtMissouri Court of Appeals
DecidedJune 30, 1999
DocketNo. WD 55965
StatusPublished
Cited by3 cases

This text of 995 S.W.2d 41 (Priesmeyer v. Shelter 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
Priesmeyer v. Shelter Mutual Insurance, 995 S.W.2d 41, 1999 Mo. App. LEXIS 890, 1999 WL 440408 (Mo. Ct. App. 1999).

Opinion

ALBERT A. RIEDERER, Judge.

Leo and Barbara Priesmeyer appeal from summary judgment entered in favor of Shelter Mutual Insurance Company. Wfe find that there are genuine issues of material fact regarding whether Mr. Pries-meyer made material misrepresentations to Shelter Mutual in his application for insurance, an application completed by an agent of Shelter Mutual. We reverse and remand.

Facts

On February 15, 1994, Appellants visited the office of Respondent’s agent, Thomas Calder, to obtain insurance on a. dwelling they owned in Sedalia, Missouri. Appellant Leo Priesmeyer brought with him a copy of the application for his prior coverage by Farm Bureau Insurance Company for reference. The parties agree that, during this meeting, Appellant signed an application for homeowner’s insurance to be provided by Respondent. They disagree, however, as to precisely how the application was completed.

In his sworn affidavit, Calder stated the following:

5. I completed the application by asking Leo Priesmeyer a series of questions and writing in Leo Priesmeyer’s responses to those questions in the appropriate blanks of the application.
6. I specifically asked Leo Priesmeyer whether there was a mortgage on the property and he responded that there was not a mortgage on the property.
7. I specifically asked Leo Priesmeyer whether he had sustained any prior losses pursuant to question number 5 of the Applicant’s Statement on the back of the application and Leo Priesmeyer reported only the two claims which are identified on the application as a 1991 hail damage claim involving a car and truck and a 1992 claim involving a tractor which caused damage to a bridge.
8. I witnessed Leo Priesmeyer sign the application for insurance and the application was filled out completely when Leo Priesmeyer signed it.

Appellant’s account of how the application was completed, however, is quite different from Calder’s. In Appellant’s sworn affidavit, he states that Calder “did not ask [Appellant] hardly any questions; he just took the information off the Farm Bureau application and was filling in some of the blanks on the Shelter Insurance application.” Appellant further stated under oath, “Tom Calder never asked me if I had a mortgage on the property I wanted to insure.” In any event, Calder, on behalf of Respondent, issued to Appellant an insurance policy of $105,400.00 coverage.

One provision of the application signed by Appellant, entitled “Applicant’s Statement,” asked,

5. Has any applicant or partner had a fire (on real estate or personal property), other property damage, liability, or theft loss (whether insured or [43]*43not)? If yes, advise date and details.

The “Yes” box next to this provision was cheeked, and at the bottom of the page in the “REMARKS” section, the following notes were handwritten:

“HAIL — 1991—CAR & TRUCK 1992 - TRACTOR TORE UP ON BRIDGE — $5,800 (HIT CORNER OF BRIDGE)”

No other instances of fire, property damage, liability or theft loss were reported anywhere else in the application. Appellant states in his sworn affidavit that “The ‘boxes’ on the application were not checked at the time I signed the application” and that “The ‘remarks’ section of the application was blank when I signed the application.”

There is another section in the application entitled “Mortgagee.” That section prompted the applicant to enter certain information concerning mortgages on the property to be insured. No information was provided there, however.

On February 16, 1996, during the term of the policy, the insured dwelling was damaged by fire. Appellant subsequently submitted a claim to Respondent for payment. Respondent, in turn, conducted an investigation of the fire and discovered that Appellant had sustained seven past fire losses. In addition, it learned that Appellant had filed claims with other insurers for hail damage five times and several more times for other property losses. None of the fire losses and only two of the other property damage claims had been disclosed in Appellant’s insurance application. As a result, Respondent denied Appellant’s claim for failure to disclose these prior losses and claims.

On December 10, 1996, Appellant filed a petition in four counts seeking judgment against Respondent for (1) $105,400 for damage to the house, (2) $72,780 for damage to the contents thereof, (3) $21,080 for additional living expenses and (4) a reasonable amount for debris removal. Appellant included in each count a claim for vexatious refusal, for attorney’s fees and for costs. Respondent answered, claiming there was no coverage for Appellant’s claims under the policy because the policy was void ab initio, because Appellant made material misrepresentations and concealed material facts in the application for insurance and Respondent had relied on those misrepresentations to Respondent’s detriment in issuing the policy. Respondent further answered that the claim was excluded from coverage because Respondent believed that Appellant set the fire that caused the damage. Thereafter, Respondent filed a motion for summary judgment. Therein Respondent claimed that, by not disclosing the fires and other property loss/damage claims pre-dating February 15, 1994, Appellant made material misrepresentations in his insurance application and thus rendered Appellant’s policy void ab initio because of the following provision contained in the application:

I hereby make application for an insurance policy on the basis of the statements and answers to questions made on this application and I represent that such statements and answers are true. I understand that if the company discovers information contrary to that which I have provided, this policy may be voided and absolutely no coverage would exist.

Summary judgment was entered against Appellant on June 8, 1998, and this appeal ensued thereafter.

Standard of Review

The propriety of summary judgment is an issue of law which we review de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the light most favorable to the party against whom summary judgment was entered. Id. Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 377.

[44]*44Discussion

Appellant claims that the trial court erred in granting summary judgment, because there is a genuine issue of material fact. Specifically, Appellant argues that there is a genuine issue as to whether it was he or Respondent’s agent, Calder, who supplied the answers to questions asked in the insurance application pertaining to whether there was a mortgage on the property and whether Appellant had sustained any prior damage/losses on the property. Appellant claims that Calder completed the application on his own without asking “hardly any questions.” Respondent disputes this claim.

We examine whether Appellant made material misrepresentations in the application by not informing Respondent about either (a) the existence of a mortgage on the property1

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Employers Fire Ins. Co. v. Power Model Supply Co.
279 F. Supp. 2d 1060 (E.D. Missouri, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
995 S.W.2d 41, 1999 Mo. App. LEXIS 890, 1999 WL 440408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/priesmeyer-v-shelter-mutual-insurance-moctapp-1999.