*1 Court expressly This has ruled that due
process rights are not denied to a movant
requesting postconviction relief on the basis provision
that Rule 24.035 makes no for late
filing good if cause can be shown. Estes v.
State, 205,
Appellate review is limited a determina-
tion of whether the findings and conclusions
of the motion clearly court are erroneous. 29.15(j).
Rule Review of the record does not
show that the motion court clearly erro- dismissing
neous in Defendant’s motion. in each case is affirmed.
PARRISH, C.J., SHRUM, J., concur.
STATE FARM FIRE & CASUALTY
CO., Appellant,
Eugene C. METCALF and William E.
Metcalf, minors, by their Ad Guardian
Litem, WADE, Cline, Daniel P. and Tom Representative
Personal of the Estate of Metcalf, Deceased,
Lance Respon Lee
dents,
Mary Blood, Defendant.
No. 18424.
Missouri Appeals, Court of District,
Southern
Division One. 19,
Aug. 1993.
Motion for Rehearing Transfer to and/or
Supreme Court Denied
Sept. 1993.
Application to Transfer Denied
Oct. *2 (Counts II) Grove, Leighton, Noble Mountain Edward claimants I and and for claimants Mullen, (Count Cena, Deacy W. Patrick C. and Dea- on a third count of the counterclaim III). cy, City, appellant. Kansas damages The trial court awarded $975,000 Count III in the amount of “because Patton, Turner, Reid, Duncan, Michael J. of State Farm’s bad faith refusal to defend Patton, P.C., Springfield, Loomer & for re- wrongful settle death claims spondents. State Farm’s insured.” This court affirms in part, reverses in and remands. PARRISH, Judge. Chief Metcalf, Lance Lee K. Metcalf and Sharon Casualty Farm Fire & Company parents, claimants’ were killed in an automo- (State Farm) appeals summary judg- from a May bile accident on 1990. The automo- ment that included award of they riding, bile in which were and which was Eugene favor of C. Metcalf and William E. Metcalf, operated by roadway, Mr. left a (clаimants). Metcalf The trial court declared embankment, tq steep went down a and came that State Farm had issued a of auto- approximately away rest 75 feet from the applied mobile insurance that to an automo- roadway. Mr. Metcalf was the named in- bile accident which Sharon K. Metcalf was policies sured in two of automobile insurance liability provided killed and that the limits of issued Fаrm. $25,000 per person, were in- death, $50,000 cluding per following chronology legal occurrence. relates to proceedings The trial court further found for State Farm that occurred after the automo- brought by on of a two counts counterclaim bile accident: *3 appeals part by resulting State Farm from the of caused accident from your ownership, maintenance or use of declaratory judgment action car, and granted summary judgment to claimants against suit an insured for 2. defend on Count III of their counterclaim and damages attorneys such hired and awarded “because of State Farm’s will not defend suit paid us. We bad faith refusal to defend and settle ... paid applicable after we have limit wrongful death claims State Farm’s is the liability our for the accident which insured.” basis of the lawsuit. following prоvision of the of the also in- section applicable section of the insurance exclusion clause” that cluded a “household provided: policy. NO THERE IS COVERAGE:
We will: TO: 2. FOR ANY BODILY INJURY pay damages be- which insured legally pay of: comes liable to because ANY MEMBER c. ANY INSURED OR others, bodily injury
a.
RESID-
OF AN INSURED’S FAMILY
damage
proper-
b.
to or destruction of
IN THE
HOUSE-
ING
INSURED’S
use,
ty including
HOLD.
loss
therein,
policyhold-
insurers and their
Missouri’s Motor
Financial
fled
But for
Vehicle
(as
сontracts
ers are free make insurance
con
Responsibility Act
that act has been
containing household exclusion clauses af-
Family
Mut.
strued in
American
fecting coverage in excess of the amounts
(Mo.
1992),1
banc
required by
303.190.2.
progeny),
and its
the household exclusion
Zumwalt,
State Farm v.
825 S.W.2d
have
clause
State Farm’s
would
(footnote omitted).
(Mo.App.1992)
precluded recovery from
Farm based
negligent operation
on Mr. Metcalfs
of his
By
appeal,
on
State Farm
point
its first
Family
motor vehicle. See American
Mut.
argues
granting
erred in
that the trial court
Ward,
summary judgment
to Count III of the
Ins. Co. v.
795-96
because
of its
(Mo.
1990).
counterclaim
banc
Lance Lee Metcalf was an
*4
policy, State Farm had no
to defend
policy.
insured under State Farm’s
Sharon
wrongful death action. State Farm contends
family,
of
his
K. Metcаlf was member
his
exclusion clause rendered the
household
They
in the same household.
wife.
resided
liability coverage
have
part of the
that would
injuries
produced
K. Met-
Sharon
required
provide
it to
a defense
otherwise
attributable to Lance Lee
calfs death were
inapplicable.
negligent operation
Metcalfs
of his insured
holding
Finan-
that the Motor Vehicle
vehicle.
Responsibility Law did not avoid the
cial
Halpin held that household exclusion
in
automobile
household exclusion clause
an
coverage required by
clauses cannot exclude
liability
beyond
of
the amounts
cover-
Responsi
Motor
Financial
303.190.2,
Missouri’s
Vehicle
Supreme
§
age mandated
“[Pjublic
Law,
poli
§§
bility
explained:
303.010—.370.2
Court
liability
cy requires that a contract of
insur
out,
pointed
As Ward
our decisions rec
coverage
in
provide
ance
indicated
in
ognize freedom of contract in
303.190[3]
Ward,
§
in
surance.
789
at 795. See
so that
insured will be
S.W.2d
Rodriguez v. General Accident Insurance
§
compliance with
303.025.” 823
at
S.W.2d
(Mo.
Co.,
1991);
[banc]
755
they
expecting
have no
appropriately
basis for
cov
State Farm
calls av-
erage
requirements
purpose
excess of the
tention to the
served
the Motor
Responsibility
§ 303.190.2.
Vehicle Financial
Law.
plain purpose
is to make sure
Halpin, 823
Herpel
S.W.2d at 483.
v. Farm
injured
people
high-
who are
on the
508,
ers Ins.
795
(Mo.App.
awards,
ways may
damage
collect
1990),previously explained
right
of “free
limits, against negligent
op-
motor vehicle
dom of contract” in
policies:
insurance
erators.
contracts,
policies
Insurance
are
and the
Halpin,
Injured parties
One of the circumstances in the which policy proclaims coverage” “there is no is State Farm further asserts fifth person injured when the “any insured or point appeal on that the trial court erred in family residing member of insured’s granting summary judgment respect to in the insured’s policy household.” The con- Count III of claimants’ counterclaim “on a tains no suggеsts this exclu- basis of faith’ ‘bad because the counterclaim applies sion obligation to State Farm’s to pay allege failed to and the evidence failed to bodily injury because of property or show that ever [claimants] offered to settle damage, apply but does not to its contractual within the amount of the limit or obligation to defend a lawsuit “for such dam- opportunity had the [Statе Farm] ages.” sum, settle for pleaded such nor was it or liability policy Supreme
motor vehicle and such excess 5. The Court of Montana reached the or additional shall not be interpreting same conclusion in its Motor Re- provisions chapter. respect of this With sponsibility Co., Mid-Century Law. See Lewis v. Ins. grants a coverage which such or excess additional (1968). 152 Mont. 449 P.2d term, liability pol- "motor vehicle icy” age apply only shall to that of the cover- required by which is this section. a matter of law.” ever made “entitled to as a proved that the insured estate 74.04(c). Point is well-taken. Rule V a demand.” such foregoing dispositive appeal. is of this The Dyer American v. General Life remaining points of State Farm’s is Review (Mo.App.1976), states required. required to recover on a tort the elements summary judgment granted that was fоr bad faith refusal of an insurance claim counterclaim is as to Count III of claimants’ policy limits. company to settle a claim within respects, judg- other reversed. all appear elements of the tort to be that: ment is affirmed. The case is remanded for (1) has assumed con- insurer proceedings III of the further as to Count settlement, negotiation, legal trol over counterclaim. insured; brought against the proceedings (2) insured has demanded that CROW, P.J., concurs. brought against the claim insurer settle (3) insured; refuses to the insurer SHRUM, J., separate opinion concurs in claim limits of settle the filed. (4) refusing, in so policy; SHRUM, Judge, concurring. faith, negli- than acts in bad rather insurer gently. State Farm’s Point III relied Because of on, in the result. I concur Id. at 704. correctly In Point III State Farm states that Count III of State Farm’s assertion summary judgment party seeking thаt the evi- allege, did not and the the counterclaim demonstrating has the affirmative burden of show, did not that claimants offered dence *6 genuine issue of material fact exists. that no policy nor that applicable settle within limits 74.04(c). See Earl v. State Farm Mut. Rule opportunity to for State Farm had the settle (Mo. Co., 623, 624[1] 820 Auto. Ins. S.W.2d by supported the record on such sum is App.1991). Farm is also correct in State however, thаt be- appeal. argue, Claimants observing purportedly the resolved that issue personal the cause State Farm had notified judgment, by summary that the trial court’s policy representative of the estate of the is, in bad or not State Farm acted whether gave the exclu- provisions that State Farm failing wrong or settle the faith in to defend right to determine whether or not settle- sive ordi against its is ful death action accomplished, and that State
ment should be nature, Thus, narily, by very a fact issue. its not for the Farm would assume Co., 795 Ganaway in v. Shelter Mut. made, a to settle was claim that was demand Judge Hogan, (Mo.App.1990), S.W.2d 554 a not required; not that such demand was writing for court said: this necessary require “because the law does not are precedent which we bound [T]he doing and futile act.” This the of a useless the existence of “bad faith” is holds that argument unpersuasive. court finds that “good usually question [T]he a of fact.... Indemnity Century 390 Landie v. faith” action is an action which involves (Mo.App.1965), states that an S.W.2d 558 ... 228 at state of mind. Zumwalt S.W.2d judgment may be liable for an excess insurer consistently held that 754. It has been refusing [a] acts in bad faith “in to settle if it underlying in issue is one cases which the policy against its insured within its claim motivation, intent, subjec- other of or some to so.” Id. аt limits when it has a chance do particularly inappropriate tive fact are Farm showing There is no that State summary judgment. against the claim opportunity had an to settle Bentrup, 840 Id. at 562. See Moore v. policy its limits. Not hav the estate within 298[7] S.W.2d the claim ing opportunity had an to settle argu- limits, Point III Farm continues its State Farm could not State there were by suggesting that here do were not ment have refused to sо. Claimants
757
of
disputed
concerning
purpose”
fact
of the Motor
Financial Re
issues
its state
Vehicle
Law,
faith,
§§
sponsibility
and whether it
in
mind
acted
bad
303.010-303.370 RSMo
and,
material,
obviously
require
liability poli
fact
“motor
such
issues were
to
vehicle
therefore, application
foregoing
provide coverage
of the
to
with
princi-
cies
coextensive
lia
limits,”
statutory
ples
summary judg-
bility,
mandate
of the
to thе
reversal
record,
Upon reviewing
Halpin
partial invalidity
ment.
I find
court effected a
of
argument
in
merit
State Farm’s
in
re-
exclusion clause.
Id. at 480-
this
household
invalidity”
gard.
my
“partial
In
to
in
view the claimants failed
482. The
says
their
demonstrating
Halpin
meet
burden of
the ab-
that household exclusion clauses
genuine
only
of a
to
of the
respect
sence
fact issue with
are invalid
to the extent
limits
required
Responsibility
сlaim of
on the
State
their
bad faith
Financial
Law
25/50/10).
(presently
Farm.
If
“contract
lan
clear ...
guage
[§]
is
303.190.7manifests to
agree,
argue,
I do
as the claimants
they
expect
basis for
insureds that
have no
the “intent” or
of mind” of
“state
State Farm
coverage
requirements
ing
excess of the
dispute.
agree
was not in
Nor do I
with
Halpin,
303.190.2.”
The focus of was the “household limits, require liability nor does it defense commonly found in minimum exclusion clause” Rather, “plain once the insured was cov- policies.' coverage. Because of the insurance 1990, 8, you policy Rogers, ... which ... [the] November Jim I to states 1. On clаims refer Farm, cooperate with us.... manager insured shall [t]he for State wrote to W. Thomas not, costs, except Cline, shall his ... vol- insured at personal representative of Met- Lance L. untarily: noting estate. After Cline’s earlier refusal calf's any any payment assume obli- a. Make or rights, accept to a defense reservation of gation others; to ... Rogers advised: foregoing, hereby you are nоti- of the view you as an any "[W]e must consider insured under fied State Farm ... will assume policy in- to the duties of an ... as a result of the loss sustained for original; policy (Underlining in in italics as described the issued to the loss....” added.) sured L. Metcalf. Lance 758 costs, not, voluntarily to own except at his bodily injury to a member of
ered for
amount,
any obligation
or assume
any payment
the con- make
household in
insured’s
given
foregoing
Hаving
provide
Farm would
to the claimants.
tract stated that State
insured,
Farm should
to its
coverage.
instructions
defense
upon
estopped
relying
from
the insured
be
clearly
If
exclude
State Farm wanted
settled
the claim be
make a demand
providing
itself from
defense
for
limits.
by household
insured when a claim is made
Freight
member it could have said so in the exclusion
v. Truck Ins.
In H & S Motor
(W.D.Mo.
so,
766,
having
F.Supp.
I believe
provisiоns.
Exchange,
769[1]
Not
done
540
1982),
duty,
upon
analysis of the
following
that State Farm had a
based
an extensive
contract,
issue,
him
Judge John Oliver found
to defend this insured.
Senior
payment
that a demand
self convinced
Finally, I am unconvinced in this case that
not an essential element
the insured was
payment by the insured is an
a demand for
upon Missouri law
bad
an action based
faith
element of an action for bad
essential
Ganaway,
a claim. See
faith refusal to settle
The bad faith refusal
refusal to settle.
Appleman,
Quoting from
795
at 564.
S.W.2d
against an insurance
settle cause of action
4711,
§
he ob
Law & Practice
Insurance
“
a breach of con
company
upon
is not based
only one
of an offer is
served that
‘absence
principles;
theory
upon negligence
nor
tract
insurer
considering
whether an
factor
rather,
wrong
it is an action in tort for
failing
a claim
guilty
faith in
to settle
of bad
”
it fails to act
an insurer when
committed
H & S Motor
against
the insured.’
determining
or not
good
faith in
whether
Freight,
F.Supp.
540
at 768.
against
a claim
accept
an offer to settle
“And on
Continuing, Judge
Lan
Oliver wrote:
policy.
the limits of its
insured within
4711,
‘an
Indemnity Company,
Appleman
states that
Century
page 398 of
die v.
a defense to the
may
up,
insurer
not set
insured’s action
developed in
of action
Because the cause
accep-
demand
insured did not
fact that the
assumed
insurer
cases where
offer of settlement
by the insurer of an
tance
settlement, and le
negotiation,
control over
by reserving to itself
the insurer
because
insurer,
proceedings brought against the
gal
estopped from
settlements was
right to make
Co.,
Utilities Ins.
360 Mo.
e.g., Zumwalt v.
make a demand
relying upon the insured to
(1950);
Dyer v.
ty loss out of cooperate
the insured was and, asked," was to assist
Farm “when (d) settlements,
making the insured