399 S.W.3d 68
Mo. Ct. App.2013Background
- MOPERM sued ACC for declaration of ACC’s contribution toward a settlement and recovery for the value of benefits conferred, alleging unjust enrichment, equitable contribution, and equitable subrogation.
- The underlying wrongful death action involved seven defendants; Nurse had primary coverage by ACC and six others by MOPERM, with MOPERM providing excess for Nurse, total limits $2,000,000.
- Joint defense was funded and represented by Joint Counsel; a settlement demand of $450,000 was presented, with evolving views on liability among defendants.
- Settlement negotiations occurred within policy limits; ACC indicated it would not fund or participate fully, while Joint Counsel and MOPERM pressed for a settlement that would limit overall damages.
- Settlement ultimately settled all claims for $350,000; MOPERM demanded ACC pay 50% ($175,000) but ACC disputed its liability and litigation ensued, leading to this suit.
- The trial court granted summary judgment for ACC on all counts; MOPERM appeals, and the court of appeals reverses and remands for factual development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equitable subrogation viability | Subrogation rights exist where equity supports repayment from primary insurer. | Summary judgment appropriate; issues either nonprimary or not properly pled in name of real party in interest. | Summary judgment improper; factual questions remain for subrogation under equity |
| Unjust enrichment sufficiency | ACC’s failure to participate caused MOPERM to bear settlement costs unjustly benefiting ACC. | Unjust enrichment requires unjust retention of a benefit; whether ACC’s retention is unjust is contested. | MOPERM’s unjust enrichment claim survives; damages to be determined by fact-finder |
| Equitable contribution viability | Two insurers share liability for the same loss; MOPERM paid and seeks contribution from ACC. | Contributions limited when policies cover different risks; Executive Risk-type cases apply. | Summary judgment improper; questions on liability apportionment and damages for trial |
| Impact of defense/duty to defend and settlement good faith | ACC breached duties by abandoning Nurse during pivotal settlement negotiations, harming insured and triggering subrogation/contribution rights. | Duty to defend and good-faith settlement not clearly breached; facts are disputed and should be resolved at trial. | Factual questions remain; court remands for resolution of duties and settlement conduct |
Key Cases Cited
- Truck Ins. Exch. v. Prairie Framing, LLC, 162 S.W.3d 64 (Mo.App. W.D.2005) (insurer's duty to defend and good-faith settlement implications)
- McCormack Baron Mgmt. Servs., Inc. v. Am. Guar. & Liab. Ins. Co., 989 S.W.2d 168 (Mo. Banc. 1999) (duty to defend framework)
- American Nursing Res., Inc. v. Forrest T. Jones, Inc., 812 S.W.2d 790 (Mo.App. W.D.1991) (equitable subrogation defined; non-contractual remedy)
- Ethridge v. TierOne Bank, 226 S.W.3d 127 (Mo. banc 2007) (equitable subrogation limits and extremity considerations)
- S & J, Inc. v. McLoud & Co., L.L.C., 108 S.W.3d 765 (Mo.App. S.D.2003) (passive beneficiary concept in unjust enrichment context)
- Keisker v. Farmer, 90 S.W.3d 71 (Mo. banc 2002) (subrogation considerations)
- Farm Bureau Town & Country Ins. Co. of Mo. v. Am. Alt. Ins. Corp., 347 S.W.3d 525 (Mo.App. W.D.2011) (other-insurance clauses in equitable contribution analysis)
- Heartland Payment Sys., L.L.C. v. Utica Mut. Ins. Co., 185 S.W.3d 225 (Mo.App. E.D.2006) (contribution rights when multiple carriers insure same loss)