Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Jackson County, Missouri The
Honorable Marco A. Roldan, Judge
Before: Lisa White Hardwick, Presiding Judge, and Karen King
Mitchell and Anthony Rex Gabbert, Judges
King Mitchell, Judge
General Insurance Online, Inc. (Insurer), appeals from the
denial of its motion to intervene as a matter of right in an
underlying personal injury lawsuit filed by Jeffrey
Wunderlich (Husband) against Sharon Wunderlich (Wife).
Insurer argues that the trial court erred in denying its
motion to intervene because, as Wife's insurance carrier,
Insurer had an absolute right to intervene to protect its
interest when it offered to provide Wife a full defense
without a reservation of rights and pursuant to an excess
protection letter (where Insurer agreed to fully indemnify
Wife beyond her policy limits). We affirm.
September 30, 2012, Husband and Wife were travelling in a
2008 BMW insured by Insurer. At some point, Husband exited
the vehicle and was walking along the road when Wife struck
him with the vehicle, causing numerous serious injuries.
January 6, 2015, Husband sent Insurer a settlement demand
letter, seeking payment of the full policy limit of $250, 000
for personal injuries. Attached to the demand letter were
police reports, medical reports, and medical bills totaling
over $200, 000. The demand letter indicated that, if Insurer
did not respond within thirty days, a lawsuit would be filed.
Insurer did not respond. Husband's counsel followed up
with Insurer on February 6, 2015, and again received no
then retained her own counsel who, on April 28, 2015, sent
another demand letter to Insurer, expressing concerns that
Wife's negligence "created a liability well in
excess of her policy limits." The demand letter urged
Insurer to resolve the matter within the policy limits and
not subject Wife to personal liability in excess of the
policy limits. Insurer did not respond.
25, 2015, Wife's counsel sent Insurer a letter,
requesting the claim file related to the incident. Insurer
did not respond. On July 1, 2015, Wife's counsel sent
Insurer a second letter, advising Insurer that if it did not
turn over Wife's underwriting and claim file within
fourteen days, Wife would file a complaint with the
Department of Insurance. On July 28, 2015, having received no
response from Insurer, Wife filed a complaint with the
Department of Insurance.
same day, Husband filed a petition against Wife, seeking
damages resulting from Wife's negligence in striking him
with the vehicle. Shortly thereafter, Insurer retained
counsel to represent Wife in the pending lawsuit. On August
3, 2015, Insurer responded to Wife's counsel advising
that it would provide the claim file for the incident and
reminding Wife that, under the terms of the policy, she had a
duty to cooperate. On August 5, 2015, Wife's counsel
denied consent for Insurer's counsel to enter an
appearance on Wife's behalf. Wife's counsel advised
that she was exploring a settlement agreement with Husband
under § 537.065.
September 2, 2015, counsel retained by Insurer for the
purpose of defending Wife sent a letter to Wife's counsel
expressing Insurer's willingness to "pay any final
judgment entered on the allegations of the current Petition,
" regardless of policy limits and without any
reservation of rights, if Wife would agree to fully cooperate
with Insurer in defense of the lawsuit. The letter advised
that, if Wife pursued a settlement agreement under §
537.065, Insurer would view her actions as a violation of the
cooperation clause of her insurance contract and disclaim
coverage for any resulting judgment. On October 18, 2015,
Wife refused Insurer's offer of defense and sent Insurer
a copy of the proposed § 537.065 settlement agreement.
Wife's counsel urged Insurer to sign the § 537.065
agreement, but Insurer refused.
December 3, 2015, the court set the matter for a one-day
bench trial on February 25, 2016. On January 7, 2016, Wife
filed an answer admitting all allegations of wrongdoing, but
claiming she was without sufficient information regarding the
nature and extent of Husband's injuries and damages and
intended to "require [Husband] to be put to his
proofs." On February 12, 2016, Insurer filed a motion to
intervene, arguing that Wife was in violation of the
cooperation clause of the insurance contract by permitting
the matter to proceed to an uncontested bench trial and
judgment. After hearing arguments on the motion, the trial
court refused to allow Insurer to intervene. Insurer appeals.
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." Kinney v. Schneider Nat'l Carriers,
Inc., 200 S.W.3d 607, 609 (Mo. App. W.D. 2006) (quoting
Moxness v. Hart, 131 S.W.3d 441, 444 (Mo. App. W.D.
2004)). "In reviewing the trial court's denial of
intervention as of right, 'we consider the facts in the
light most ...