State ex rel. Automobile Club Inter-Insurance Exchange v. Gaertner

636 S.W.2d 68, 1982 Mo. LEXIS 532
CourtSupreme Court of Missouri
DecidedAugust 2, 1982
DocketNo. 63112
StatusPublished
Cited by6 cases

This text of 636 S.W.2d 68 (State ex rel. Automobile Club Inter-Insurance Exchange v. Gaertner) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Automobile Club Inter-Insurance Exchange v. Gaertner, 636 S.W.2d 68, 1982 Mo. LEXIS 532 (Mo. 1982).

Opinion

BARDGETT, Judge.

This proceeding in prohibition was filed in the Missouri Court of Appeals, Eastern District, by relators, Automobile Club Inter-Insurance Exchange (Exchange), an unincorporated association, and two of its subscribers (policyholders) Federspeil and Todd, seeking to prohibit respondent judge from proceeding in two separate uninsured motorist suits filed in the Circuit Court of the City of St. Louis by one Mary F. Kennedy and one Michael H. Baggot, who are also subscribers (policyholders) to the Exchange. Relators contend the Circuit Court of the City of St. Louis lacks jurisdiction over the person of relators. The court of appeals issued its preliminary writ of prohibition and subsequently, after briefing and argument, quashed the writ. On application of relators, the cause was transferred here by this Court.

In the underlying suits in circuit court, Kennedy, a resident of Marion County, Missouri, alleges that she was involved in an accident in Marion County with an uninsured motorist who also resides in Marion County. Baggot, a resident of the state of Illinois, alleges that he was involved in an accident with a “hit and run driver” in Granite City, Illinois. These suits are for damages arising out of the stated accidents and are brought pursuant to the uninsured motorist clause of the policies issued by relator Exchange.

The amended petitions in the underlying cases are the ones to which relators, as defendants therein, filed motions to dismiss for lack of jurisdiction over their persons. The petitions allege, inter alia, that the Exchange is a corporation and maintains an office in and operates its business in the City of St. Louis. The petitions also allege that the Exchange is an inter-insurance exchange under the laws of Missouri and, as [70]*70such, the individual subscribers thereto are subject to suit as a class and that defendants Federspeil and Todd are subscribers to said Exchange and representative members of the class of subscribers and reside in the City of St. Louis.

The trial court overruled relators’s motions to dismiss, but the record does not reflect specific findings as to the corporate status of the Exchange or whether it maintains an office for business purposes in the City of St. Louis. Nevertheless, the return of respondent judge to the petition for writ of prohibition asserts, inter alia, that he overruled relators’s motions to dismiss because (a) the Exchange is an unincorporated association and under Rule 52.101 may be sued through its members (Federspeil and Todd) and they reside in the City; (b) the Exchange maintains an office for the conduct of its usual business in the City; and (c) that the Club Exchange Corporation is the attorney-in-fact for the Exchange and the Exchange does business by and through the corporate attorney-in-fact and, therefore, venue is proper under § 508.040, RSMo 1969.

The underlying plaintiffs, Kennedy and Baggot, maintain in this proceeding that their right to sue in the City of St. Louis is granted by Rule 52.10. The real issue here is whether §§ 379.650-.800, RSMo 1978, authorizes an insurance reciprocal or exchange to be sued as a jural person or entity and, if so, whether the members of the insurance association remain subject to suit as a class under Rule 52.10.

The first question is whether Missouri law affords entity status to a reciprocal or inter-insurance exchange so as to allow it to be sued as a jural person.

At common law, an unincorporated association possessed no status apart from the persons comprising it and was not an entity. 6 Am.Jur.2d Associations and Clubs § 1, at 429 (1963). As this Court recognized in Morris v. Willis, 338 S.W.2d 777 (Mo.1960):

Voluntary unincorporated associations exist under the common law right of contract and have no existence apart from the contract of association. The general rule is, in the absence of a statute, they cannot sue or be sued in their common or associate name for the reason such an association, absent a statute, has no legal entity distinct from its membership.

Id. at 779 (emphasis added). Therefore, in the absence of statute, an unincorporated association cannot be sued as a jural person.

Although an exchange is technically an unincorporated association simply because it is not a corporation as such, the statutes governing the operation of an exchange — §§ 379.650-.800, RSMo 1978, and related statutes — demonstrate the legislative purpose of both requiring an exchange to be tightly structured in a specific manner and to afford certain rights, and prescribing limitations on the activity and business of such an insurance organization. The legislature was familiar with the almost insurmountable problem one would have in suing an exchange as an unincorporated association if the party were required to sue all the members in order to subject the exchange’s assets to a judgment. Not even the general class action procedure would suffice to meet the problem with efficiency and fairness to a litigant, nor would it make sense to relegate a plaintiff to class action procedure when the organization sued was, in effect, conducting its business as an entity with thousands of individual insureds who, in fact, had no ongoing interest in the exchange except as an insured thereof— [71]*71much the same as an insured of any other insurance company.

The legislature met the problem by the enactment of § 379.680,2 which affords the right to a plaintiff to sue the exchange by simply serving the director of insurance of the state of Missouri and thereby subjecting the exchange’s assets to judgment without suing or serving any individual subscriber. Thus, Missouri has, in essence, afforded entity status to an exchange sued under § 379.680 and it is subject to suit as a jural person.3 The assets of the exchange are subject to the judgment in such a suit. In such a suit the plaintiff need not serve subscribers and therefore has no burden of satisfying the requirements of Rule 52.10 with respect to showing that certain members are representative members of the association and will “fairly and adequately protect the interests of the association and its members.”

The Court holds that in Missouri a reciprocal or inter-insurance exchange is recognized as a jural person and is suable as an entity, pursuant to § 379.680. Thus, the second issue that must be resolved is whether the members of the Exchange in this case remain subject to suit as a class under Rule 52.10.

The first paragraph of Rule 52.10 is a verbatim rescript of Fed.R.Civ.P. 23.2. As the Committee Note to 52.10 recognizes, “This is the same as Rule 23.2 of the Federal Rules of Civil Procedure with the following sentence added: ‘Nothing in this Rule shall be construed to affect the rights or liabilities of labor unions to sue or be sued.’ ” Although federal Rule 23.2 has been adopted by several states,4 the briefs do not cite any state cases involving the issue presented here and this Court has discovered none. Rule 23.2, however, has been construed in a number of federal cases.

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STATE EX REL. AUTO. CLUB ETC. v. Gaertner
636 S.W.2d 68 (Supreme Court of Missouri, 1982)

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Bluebook (online)
636 S.W.2d 68, 1982 Mo. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-automobile-club-inter-insurance-exchange-v-gaertner-mo-1982.