Urban Expansion, Inc. v. Fireman's Fund Insurance Co.

592 S.W.2d 239, 1979 Mo. App. LEXIS 2668
CourtMissouri Court of Appeals
DecidedDecember 3, 1979
DocketNo. KCD 30253
StatusPublished
Cited by9 cases

This text of 592 S.W.2d 239 (Urban Expansion, Inc. v. Fireman's Fund 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
Urban Expansion, Inc. v. Fireman's Fund Insurance Co., 592 S.W.2d 239, 1979 Mo. App. LEXIS 2668 (Mo. Ct. App. 1979).

Opinion

DIXON, Presiding Judge.

Defendant appeals from a trial court judgment denying defendant’s counterclaim asserting a right to equitable reformation of an insurance contract. The underlying and substantial dispute is between General Accident Fire and Life Assurance Corporation and Fireman’s Fund Insurance Company as to coverage for fire loss in an uncompleted apartment complex.

The issue presented is whether the trial court erred in finding that the defendant had failed to carry its burden of proving the mutual mistake necessary to support a claim for equitable reformation of its contract of insurance.

The plaintiffs in the case, other than General Accident Fire and Life Assurance Corporation, Ltd., are a group of entrepreneurs involved in the construction and operation of an apartment complex, utilizing as a vehicle a limited partnership. For convenience, these plaintiffs will be referred to as “Westowne.” Fireman’s Fund Insurance Company is the defendant and counter-claimant.

The plaintiffs brought suit against Fireman’s Fund to declare its liability on a fire insurance contract. Fireman’s Fund answered and counterclaimed for reformation of its policy. The plaintiffs then dismissed without prejudice the declaratory judgment action, and the case went to trial on the counterclaim for reformation. The reformation sought was to eliminate from the Fireman’s Fund coverage the loss by fire to a portion of the Westowne complex.

Some of the factual background is completely without dispute. On October 23, 1972, a fire at the apartment construction site occurred. Eleven major buildings were involved in the whole complex. Three of these had been completed. As a result of the fire, several buildings were destroyed or damaged with a total agreed loss of $233,-270.72. The buildings damaged in the fire were neither completed nor occupied. At the time of the loss, two insurance policies had been issued and were outstanding, ostensibly affording protection to the policy [241]*241owners for loss by fire. The limits of both of the policies were adequate to cover the loss. It is without dispute that the policy written by General Accident was a builder’s risk or course of construction policy which, in effect, provided that the insurance would lapse upon completion of the construction and occupation of the premises unless prior consent had been obtained from the insurance company. No issue of prior consent is involved in this case.

The Fireman’s Fund policy as written was on standard forms applicable to permanent insurance by the use of Apartment Form 11, a form used for insuring apartment buildings on a permanent basis. Apartment Form 11 does not purport to exclude coverage in the event the building is still under construction. When the policy was originally issued by Fireman’s Fund, it contained a Form 17c, which provided builder’s risk insurance. There is no question but what everyone involved in the Fireman’s Fund policy, whether as agent or underwriter, was aware that most of the buildings in the project were not complete. After the policy was issued containing both the builder’s risk coverage and the permanent coverage, the builder’s risk insurance was removed from the Fireman’s Fund policy by an endorsement. The endorsement removing the builder’s risk coverage deleted from 17c and contained the following language:

“On apartment project (Blanket over all buildings)-600'N." of 152 Hwy., 71 Bypass and 152 Hwy., Liberty, Missouri.”

After this endorsement, which was well before the fire, the Fireman’s Fund policy thus read as a permanent form of insurance (Apartment Form 11), without exclusion respecting construction, and over all the buildings.

It is the position of Fireman’s Fund that this coverage was a mutual mistake by Fireman’s Fund and Westowne, and that the policy should be reformed to provide permanent coverage only as to completed buildings.

The trial court, by a written opinion, made findings of fact and conclusions of law contrary to the positions of Fireman’s Fund. It found factually that the proof by Fireman’s Fund was insufficient to show that there was a mistake common to both parties and a prior agreement between the parties different from the written agreement evidenced by the contract of insurance. Based on those factual findings, the trial court determined as a matter of law that Fireman’s Fund was not entitled to reformation.

Initially, the respondent’s brief moves to dismiss the appeal for violation of Rule 84.04(c) and 84.04(d). The respondent’s brief contains extensive suggestions in support. By reply brief, Fireman’s Fund has provided counter suggestions. Little purpose would be served in reviewing the alleged deficiencies of the statement of facts and the points on appeal since the reply brief has set forth in a single point the precise issue which could be gathered from the original brief by reading the points and the argument of Fireman’s Fund together. Insofar as the complaint of the General Accident relates to the factual statement, the posture of this case has required a review of the entire transcript. The determination of the motion has therefore required the same review as that on the merits, and the motion will be overruled.

The thrust of the appeal centers upon the point set forth in Fireman’s Fund’s reply brief, that the trial court erred in denying reformation because there was substantial evidence of a mutual mistake and that, under the particular circumstances of the case, this court should make a separate determination of that evidentiary issue despite the ruling of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).1

The first matter to be resolved is the appellant’s claim that this court should make separate findings of fact and conclu[242]*242sions of law. Fireman’s Fund asserts this should be done because there was a substantial delay between the taking of the evidence of Fireman’s Fund and the taking of the evidence of General Accident and, further, a delay between the final taking of evidence and the trial court’s opinion. Fireman’s Fund says that this delay eliminates any need for deference to the trial court’s findings of fact or the credibility issue involved in the case. What is suggested is a de novo review. By this argument, Fireman’s Fund mistakes the thrust of Murphy v. Carron, supra. Murphy v. Carron, does not prohibit this court from making independent findings of fact and conclusions of law. It declares and announces the policy of this state with respect to the manner in which an appellate court should approach the question of whether or not independent findings of fact should be made. The duty of appellate courts in reviewing court tried cases always requires the appellate court to examine the transcript of the evidence and to determine whether the trial court’s findings are supported by substantial evidence and are correct. What Murphy v. Carrón provides is a standard for determination of those issues and, until the appellate court is convinced that the trial court findings of fact are wrong or not supported by substantial evidence, no duty or right to make independent findings arises. If, on the contrary, the appellate court determines that the findings are not supported by substantial evidence or is convinced that a wrong factual result has been reached, then the application of Murphy v. Carron requires independent findings of fact by the appellate court.2

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Bluebook (online)
592 S.W.2d 239, 1979 Mo. App. LEXIS 2668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urban-expansion-inc-v-firemans-fund-insurance-co-moctapp-1979.