429 S.W.3d 511
Mo. Ct. App.2014Background
- M & M Trucking insured a dump truck with Progressive; the truck was leased to Quinn and sent to New Orleans after Katrina.
- In Sept 2006 M & M increased policy limits from $75,000 to $125,000; in Dec 2006 May reported the truck stolen in Louisiana and filed a claim asserting the loss occurred after the limit increase.
- Progressive investigated as a suspected fraud, limited recovery to $75,000, later located the truck, repaired it for about $14,206 and paid that amount; M & M demanded additional payment and refused Progressive’s $75,000 offer.
- M & M sued for breach of contract and vexatious refusal to pay; Progressive moved for summary judgment supported by an affidavit of Mary Mosely and a statement of uncontroverted facts.
- The circuit court granted summary judgment for Progressive; M & M appealed, arguing Mosely’s affidavit lacked personal knowledge and relied on hearsay, and that genuine factual disputes existed, including on vexatious refusal.
- The appellate court reversed and remanded, holding the Mosely affidavit was inadmissible hearsay, Progressive failed to properly support its uncontroverted facts, and genuine factual disputes remained on reasonableness of the insurer’s conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Progressive’s summary-judgment evidence (Mosely affidavit) was admissible | Mosely lacked personal knowledge and her affidavit relied on hearsay and records, so it is inadmissible | Mosely is a claims representative and her affidavit supports uncontroverted facts | Affidavit inadmissible: it lacked foundation for personal knowledge and recounted hearsay; court erred relying on it |
| Whether Progressive met its burden to show uncontroverted material facts | M & M contested facts with affidavits, claim file excerpts, and police report showing disputes | Progressive relied on its statement of facts supported by Mosely’s affidavit | Progressive failed: without the affidavit its factual statement lacked proper support; genuine disputes exist |
| Whether a vexatious-refusal claim could be decided on summary judgment | M & M: evidence shows insurer acted willfully and unreasonably; factual issues for jury | Progressive: M & M did not properly controvert facts; insurer’s investigation was reasonable | Court: factual disputes exist about reasonableness; vexatious-refusal inappropriate for summary judgment |
| Whether the trial court properly entered summary judgment | M & M: no, because Progressive’s evidence was inadmissible and disputes remain | Progressive: yes, payment or tender and no evidence of vexatious conduct | Court: reversed — summary judgment improper and case remanded |
Key Cases Cited
- Shirkey v. Guarantee Trust & Life Ins. Co., 258 S.W.3d 885 (Mo. App. W.D. 2008) (summary-judgment standard and vexatious-refusal guidance)
- Perry v. Kelsey-Hayes Co., 728 S.W.2d 278 (Mo. App. W.D. 1987) (affidavits must show personal knowledge or be inadmissible)
- Midwest Precision Casting Co. v. Microdyne, Inc., 965 S.W.2d 393 (Mo. App. E.D. 1998) (trial court may not rely on hearsay in summary-judgment rulings)
- Allen v. St. Luke's Hosp. of Kansas City, 532 S.W.2d 505 (Mo. App. 1975) (affidavits relying on inadmissible documents constitute hearsay)
- Morley v. Ward, 726 S.W.2d 799 (Mo. App. E.D. 1987) (Rule 74.04(e) does not require explicit personal-knowledge language; basis must appear)
- Price v. Mo. Pac. R.R. Co., 755 S.W.2d 29 (Mo. App. E.D. 1988) (affidavit statements must indicate a basis for personal knowledge if not expressly stated)
- Rustco Prods. Co. v. Food Corn, Inc., 925 S.W.2d 917 (Mo. App. W.D. 1996) (affiant’s corporate role can supply basis for personal knowledge for certain matters)
- Wilson v. St. Louis Area Council, Boy Scouts of Am., 845 S.W.2d 568 (Mo. App. E.D. 1992) (official role may establish personal knowledge about organizational facts)
- Fitzpatrick v. Hoehn, 746 S.W.2d 652 (Mo. App. E.D. 1988) (inadmissible affidavits should not be considered on summary judgment)
- Hopkins v. Am. Econ. Ins. Co., 896 S.W.2d 933 (Mo. App. W.D. 1995) (investigation and insurer’s conduct can support vexatious-refusal claim)
- Wunsch v. Sun Life Assurance Co. of Canada, 92 S.W.3d 146 (Mo. App. W.D. 2002) (when facts are undisputed, reasonableness can be decided as a matter of law)
- Am. Family Mut. Ins. Co. v. Pettigrew, 916 S.W.2d 893 (Mo. App. W.D. 1996) (court will not search the record for support when movant fails to cite specific record references)