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Wunderlich v. Wunderlich

Court of Appeals of Missouri, Western District, Second Division

November 1, 2016


         Appeal 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

          Karen King Mitchell, Judge

         National 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.


         On 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.

         On 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 response.

         Wife 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.

         On June 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.

         That 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.[2]

         On 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.

         On 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.

         Standard of Review

         "The denial of a motion to intervene as of right under Rule 52.12(a)[3] 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 ...

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