This is an underinsured motorist case. The issue is whether the plaintiffs under-insured motor vehicle (“UIM”) insurer has a right to intervene in plaintiffs liability action against the underinsured motorist when the UIM insurer first denied that underinsured motorist coverage applied, but later determined that such coverage may apply, conceding such at the time of the relevant intervention ruling and prior to trial in the liability action against the underinsured motorist. We hold that, under these facts, the UIM insurer does have a right to intervene to contest the underin-sured motorist’s liability and/or damages. Therefore, we reverse.
Facts and Procedural Background
Appellant Consumers Insurance Company (“Consumers”) entered into an insurance contract (“UIM Policy”) with Respondent Bradford Charles. On March 31, 2010, Charles’s attorney informed Consumers via letter that, on September 26, 2009, Charles had been injured in a motor vehicle accident. The letter stated that a
We’ve determined that the motorist that was at fault was insured under a policy issued by Travelers with liability limits of $50,000.00. That is not sufficient to compensate Mr. Charles for his injuries. Therefore, an underinsured motorist claim is presented to Consumers Insurance Company under the policy issued to Brad Charles.
Initially, Consumers denied that there was UIM coverage under the UIM Policy,
On April 30, 2010, Charles filed a petition against Ranum, seeking damages arising from the accident. Ranum filed an answer, admitting that the accident occurred but denying that she was negligent and denying the nature and extent of Charles’s alleged damages. On June 2, 2010, Charles entered into a partial settlement with Ranum whereby Charles agreed to limit his recovery to Ranum’s policy limits without conceding that his damages were limited to that amount. The parties understood that the litigation against Ra-num would continue despite the settlement. At an eventual damages hearing, Ranum did not appear to contest either damages or liability.
Immediately after Charles and Ranum entered into the partial settlement agreement, Consumers moved to intervene in Charles’s liability action against Ranum for the purpose of contesting Ranum’s liability and/or Charles’s damages. The motion asserted that Charles had a UIM policy of insurance with Consumers that was in effect on the date of the accident and that (1) the policy may afford UIM coverage to Charles for the subject motor vehicle accident in that Ranum may qualify as an underinsured motorist; and (2) Consumers may be bound by a determination of liability or damages against Ranum. Charles did not object to the motion to intervene, and, accordingly, the circuit court initially granted the motion. Consumers confirmed in a subsequent letter to Charles that it had determined, contrary to its previous letter, that underinsured motorist coverage may apply under the UIM Policy.
Approximately three months later, after Consumers had initiated discovery, Charles filed a motion for summary judgment, requesting that the circuit court dismiss Consumers from the lawsuit. Charles argued that, since Consumers had initially denied coverage, it forfeited any right that it had to defend against Charles’s allegations against Ranum.
On November 9, 2010, the circuit court held a hearing on Charles’s motion and then granted it. The court found that Consumers had initially denied coverage but then had “changed its position.” The court found that, in denying coverage, Consumers had forfeited its right to intervene.
The circuit court then conducted a hearing (Ranum did not appear to contest Charles’s case) in which Charles presented evidence regarding the accident and his damages. Following this hearing, the court entered judgment, finding that “[Charles] is entitled to judgment against [Ranum] in the sum of $350,000.00, and judgment is hereby entered in favor of
Consumers filed a motion for a new trial, alleging that it did not receive notice of the hearing. The circuit court overruled the motion. Consumers timely appeals.
Standard of Review
Although the circuit court granted Charles “summary judgment” against Consumers, we will treat the court’s action as a reconsideration and denial of Consumers’s motion to intervene. Charles has neither asserted a claim against Consumers, nor is he defending against a claim asserted by Consumers; he is, therefore, not entitled to a “judgment” (summary or otherwise) against Consumers. See Rule 74.04(a), (b) (contemplating summary judgment for parties “seeking to recover upon a claim” or parties “against whom a claim ... is asserted”). What is really at issue is Consumers’s right to intervene in Charles’s lawsuit against Ranum.
“The denial of a motion to intervene as of right under Rule 52.12(a) must be affirmed unless it is against the weight of the evidence, it is unsupported by sufficient evidence, or it either misinterprets the law or misapplies the law.” Moxness v. Hart,
Legal Analysis
In its first point on appeal, Consumers argues that the circuit court erred in entering summary judgment against it (denying its right to intervene) in that an initial denial of coverage in an underinsured motorist case does not automatically defeat a UIM insurance company’s right to intervene in its insured’s lawsuit against an underinsured motorist.
In addressing the issue of Consumers’s right to intervene, it is important to point out the distinction between first party claims and third party liability claims, as this distinction is critical to our analysis. When a policyholder asserts a claim against his own insurance company for underinsured or uninsured motorist benefits, he is making a first party claim. In contrast, when a policyholder is sued by a third party and seeks a defense or coverage in the event of a judgment against him, he is asserting a third party liability claim against his liability insurer.
In the third party liability claim context, the insurance carrier has no right to intervene in litigation between its policyholder and the third party; the carrier can participate in the litigation only pursuant to its contractual obligation to defend the policyholder. Ballmer v. Ballmer,
In contrast, Missouri appellate opinions have consistently held that an uninsured or underinsured motorist carrier has an absolute right to intervene in a lawsuit brought by its policyholder against an uninsured or underinsured motorist. Nervig v. Workman,
A. Rule 52.12
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Rule 52.12(a) (emphasis added).
Thus, a party seeking intervention under this rule must show “1) an interest relating to the property or transaction which is the subject of the action; 2) that the applicant’s ability to protect such interest is impaired or impeded; and 3) that the existing parties are inadequately representing the applicant’s interest.” Stafford v. Kite,
Generally, when an insured files suit against an uninsured motorist or an underinsured motorist, there is no debate under Missouri law that the insured’s uninsured motor vehicle (“UM”)/UIM insurance carrier has an interest that may be impaired or impeded if the UM/UIM carrier is not allowed to intervene to contest the issues of liability and/or damages. Pollock v. Searcy,
The three requirements for intervention, as they have been applied to UM/ UIM cases, support Consumers’s intervention. The parties agree that (1) Consumers issued an insurance policy to Charles that includes an underinsured motorist provision; (2) Charles was injured in a motor vehicle accident; and (3) Consumers may be liable to Charles pursuant to the underinsured motorist provision of their insurance contract in that Ranum may have been negligent and underinsured. Further, Consumers has no ability to protect against its potential liability (i.e., it has no way of contesting that Ranum is liable to Charles and/or that Ranum is liable to the full extent that Charles claims) absent intervention. Moreover, the third element of intervention as of right—that the existing parties are inadequately representing Consumers’s interest—is also met, given that Ranum did not contest liability or damages and Charles agreed to execute the judgment against her for only the limit of her insurance policy.
Charles argues, however, that this case is different. He contends that Consumers’s initial denial of coverage voided any interest Consumers had in the litigation, even though (1) intervention was initially granted by the trial court with no objection by Charles; and (2) at the time the trial court reconsidered its previous ruling on intervention, Consumers had retracted its previous denial of coverage and admitted that Charles may, in fact, be entitled to UIM coverage under the UIM Policy. We disagree. Rule 52.12(a) provides that “anyone shall be permitted to intervene in an action ... when the applicant claims an interest ... [and] the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.” (Emphasis added.) As the terms of the rule make clear, an intervenor, at the time of its intervention, need not concede that it will be bound by the judgment. Beard,
Here, even though Consumers initially denied coverage under the underin-surance provision of its contract with Charles, it subsequently determined that coverage may apply,
Indeed, we have specifically stated that a “carrier need not admit liability ... in order to have an interest in the action” for the purposes of intervening in an uninsured motorist case. Stafford,
In his motion, Charles did not argue that, even though Consumers meets the elements of Rule 52.12, it should be equitably estopped from relying upon the rule due to its previous denial of coverage, combined with justified reliance by Charles. Charles did argue below, and continues to argue here, that he settled with Ranum in reliance on Consumers’s denial of coverage. But that bare allegation is insufficient to bring an equitable estoppel argument before us. See Laciny Bros. Inc. v. Dir. of Revenue,
B. Breach of Contract
Charles cites us to numerous third party liability claim cases where courts have held that, by denying coverage, an insurer loses its own right to insist on the insured’s compliance with the terms of the
But Consumers is not attempting to assert any contractual right. Its right to intervene in this situation springs — not from the insurance contract — but from Rule 52.12(a). In the third party liability context, the insurer has no interest in the lawsuit, because, until judgment against its insured is actually rendered, it is not adverse to anyone in the case. Ballmer,
By contrast, in the uninsured-un-derinsured motorist first party claim context, the insurer immediately steps into the shoes of the alleged uninsured/underin-sured tortfeasor, and thus its interests are adverse to those of its insured at the time it seeks intervention. Kinney,
Thus, in the third party liability claim context, the fact that an insurer has breached its contract by denying coverage is dispositive, for the insurer has no interest in the litigation under Rule 52.12(a) and can participate in the litigation only pursuant to its contractual right to do so, which evaporated the moment the insurer breached the contract.
But when an insurer actually has an interest under Rule 52.12(a), which, as discussed, is typically the case in the uninsured-underinsured motorist first party claim context, its right to intervene is ab
Moreover, if Consumers were deemed to have breached its contract by initially denying coverage — while that would be of the greatest importance when an insurer’s right to be in the litigation itself depends on the contract — such an initial denial would not be dispositive when Consumers’s right to intervene is based on Rule 52.12(a).
The only issues are whether Consumers has an interest in the subject of Charles’s lawsuit; whether that interest may be impeded or impaired by the litigation’s outcome; and whether Ranum adequately represents the interest. As explained above, each of those issues are resolved in a manner that requires that Consumers be permitted to intervene. Since the circuit court denied Consumers the right to intervene, the judgment must be reversed.
Consumers had a right to intervene in Charles’s suit against Ranum, and therefore the circuit court lacked the discretion to deny Consumers’s motion to intervene. An intervenor as of right under Rule 52.12(a) closely parallels an indispensable party under Rule 52.04(b). Our Supreme Court has noted that the “interest” sufficient to satisfy the standards of a necessary party under Rule 52.04 is substantially the same as that required to satisfy the “interest” standard of intervention under Rule 52.12. See Bunting v. McDonnell Aircraft Corp.,
VICTOR C. HOWARD, Presiding Judge, and ALOK AHUJA, Judge, concur.
Notes
. On appeal from a denial of a motion to intervene, we review the facts in the light most favorable to the circuit court’s judgment. Lawrence F. Behymer, Sr. Marital Trust v. City of Ballwin,
. Consumers maintains that it did not deny coverage, even initially. Since we find in Consumers’s favor on other grounds, we need not decide that issue, and we assume in this opinion, for the sake of argument only, that Consumers did deny coverage initially.
. Ordinarily, a denial of a motion to intervene as of right is immediately appealable, Lodigensky v. Amer. States Preferred Ins. Co.,
. Consumers raises three other points on appeal. Because we find in favor of Consumers on Point I, we need not address the remaining issues.
. Although most of these cases involved uninsured motorist claims, our Supreme Court
. As explained in more detail infra, the Missouri cases permitting intervention by uninsured or underinsured motorist carriers contrast with decisions that have held that, where an insurer provides coverage to an insured against third party liability claims, it generally has no right to intervene in the underlying action in which the insured's liability will be determined. See, e.g., Borgard v. Integrated Nat’l Life Ins. Co.,
. Charles acknowledges, and the trial court found, that Consumers abandoned its initial denial of coverage argument. In fact, Charles argues that “[t]he issue, in this case, is whether a party can breach a contract, by refusing to perform its obligation under the contract, and then later retract its breach and attempt to act as if it had never breached the contract.”
. Since the question is not properly before us, we express no opinion as to whether a party can be equitably estopped from intervening as of right under Rule 52.12(a), nor do we express an opinion as to whether estoppel, if available, would apply to the facts of this case.
. That principle would be at play here if Consumers contested Charles’s right to enter into the settlement agreement with Ranum. However, Consumers makes no such claim.
. We note that nothing in this opinion speaks to whether Consumers’s initial denial of coverage (if it was a denial, which we do not decide here) would support a cause of action for vexatious refusal. See Dhyne v. State Farm Fire & Cas. Co.,
. Charles's argument could be interpreted as alleging that Consumers's motion to intervene was not timely. While our courts have recognized that delay may be the basis for denying intervention, they have been restrained in finding that delay justifies denying intervention. Netvig,
.Charles also argues that the motion to intervene should have been denied for not complying with the procedural requirements of Rule 52.12 in that Consumers did not file an answer along with its motion. It is true that Rule 52.12(c) requires a pleading; however, it is not mandatory that the ''pleading” be filed separately from the motion itself. See Moxness,
. Obviously, the same result would not apply if an interested party were given notice but failed to exercise its right to intervene.