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09/07/93 STATE EX REL. v. HONORABLE THOMAS C.

September 7, 1993

STATE EX REL., KEVIN C. SHELTON, RELATOR,
v.
THE HONORABLE THOMAS C. MUMMERT, JUDGE OF THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, RESPONDENT.



Writ of Prohibition

Ahrens, Grimm, Gaertner

The opinion of the court was delivered by: Ahrens

This is an action in prohibition seeking to prevent Respondent, the Honorable Thomas C. Mummert, from proceeding in a personal injury suit on the ground that venue in the City of St. Louis is improper. Defendant Kevin Shelton claims that plaintiffs, Drucilla and Jack Nugent, improperly joined their underinsured motorist carrier, defendant American Family Insurance Company (American Family), to obtain venue in the City of St. Louis. We find that plaintiffs' joinder of their underinsured motorist carrier was pretensive and order our preliminary writ be made absolute.

The underlying action arose from an automobile accident which occurred in Miller County between Drucilla Nugent and Kevin Shelton. Shelton is a resident of Miller County; Nugent is a resident of Morgan County. Nugent and her husband filed a three-count petition in the Circuit Court of the City of St. Louis against Shelton and American Family. Venue was based on the fact American Family maintains offices and agents in the City of St. Louis. In Count I, Drucilla Nugent alleges Shelton was negligent in the operation of his automobile, and seeks to recover damages from Shelton for personal injuries. In Counts II and III, Nugent and her husband assert claims against American Family pursuant to the underinsured motor vehicle provision of their automobile insurance policy.

American Family filed a motion to dismiss the Nugents' claims against it, contending that the Nugents failed to state a cause of action against the company, or in the alternative, that the action was premature under the terms of the policy. Shelton filed a separate motion to transfer the case because of improper venue, alleging the joinder of American Family was pretensive and done solely to obtain venue in the City of St. Louis. On April 12, 1993, the trial court granted American Family's motion to dismiss, but denied Shelton's motion to transfer venue. Shelton thereafter filed a motion for rehearing, which was denied. This proceeding in prohibition followed.

The issue before us is whether the Nugents have a present cause of action against American Family. If the Nugents improperly joined American Family, venue as to Shelton is improper. See State ex rel. Toastmaster, Inc. v. Mummert, No. 63703, 1993 Mo. App. LEXIS 1121 slip op. at 3 (Mo. App. July 20, 1993). Venue is pretensive if the petition: (1) on its face fails to state a cause of action against the resident defendant; or (2) states a claim against the resident defendant, but the record, pleadings and facts presented in support of a motion asserting pretensive joinder establish that there is no cause of action against the resident defendant, and that the information available at the time the petition was filed would not support a reasonable legal opinion that a case could be made against the resident defendant. Id. The standard is an objective one, requiring a realistic belief that under the law and the evidence a justiciable claim exists. Id.

Shelton claims the Nugents have no present cause of action against American Family because the language of the insurance policy allows for underinsured motorist coverage only after an insured has obtained a settlement or a judgment against all liability carriers. The underinsured motorist provision of the American Family policy issued to the Nugents contains the following language:

We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of the underinsured motor vehicle.

You must notify us of any suit brought to determine legal liability or damages. Without our written consent we are not bound by any resulting judgment.

WE WILL PAY UNDER THIS COVERAGE ONLY AFTER THE LIMITS OF LIABILITY UNDER ANY BODILY INJURY LIABILITY BONDS OR POLICIES HAVE BEEN EXHAUSTED BY PAYMENT OF JUDGMENTS OR SETTLEMENTS.

(Emphasis added).

The Nugents argue the above policy language does not preclude them from bringing an underinsured motorist claim prior to obtaining a judgment or settlement from Shelton. *fn1 We disagree.

This court recently considered similar language contained in the underinsured motorist provision of an insurance policy in State ex rel. Sago v. O'Brien, 827 S.W.2d 754, 755-56 (Mo. App. 1992). The policy reviewed in Sago stated that there was no underinsured motorist coverage "until the limits of liability of all bodily injury liability bonds and policies that apply have been used up by payment of judgments or settlements." Id. at 755. In Sago, we found that under the terms of the policy, the insurer was obligated to pay damages for underinsured motorist coverage only after an insured had shown that: (1) he or she had received bodily injuries; (2) the injuries occurred as a result of an incident involving an underinsured motor vehicle; and (3) he or she was "legally entitled" to collect from the owner of the underinsured vehicle. Id. We further found that these conditions could be met only if there has been a prior determination of damages and the damages exceeded the limits of existing liability coverages. Id. We recently re-affirmed the Sago decision in Lewis v. State Farm Mut. Auto. Ins. Co., No. 62794, 1993 Mo. App. LEXIS 869, slip op. at 4 (Mo. App. June 15, 1993). Here, there has been no prior determination that the Nugents' damages exceed Shelton's liability coverage. Therefore, the conditions for bringing an underinsured motorist claim have not yet been met.

The Nugents contend they had a good faith belief when the suit was filed that their damages exceed Shelton's liability coverage, so that their joinder of American Family was not pretensive and venue is proper in the City of St. Louis as to Shelton. We find that the fact an insured may eventually establish damages in excess of the limits of all bodily injury liability policies does not in itself create a cause of action against an underinsured motorist carrier when, as here, the policy clearly states there is no coverage until all liability limits have been exhausted by payment of judgments or settlements. An action by an insured against his or her insurer is a contractual claim. It is only after there has been a prior determination of damages and the ...


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