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). Due to the lack of a final,
appealable judgment, we dismiss.
September 30, 2012, Husband and Wife were traveling 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 Husband
would file a lawsuit if Insurer did not respond within thirty
days. 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 settlement
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 as a matter of right, 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. The
trial court initially denied Insurer's motion in an
"order, " but the court later denominated the
ruling a "judgment" upon Insurer's request.
Insurer filed a notice of appeal on March 2, 2016.
neither party has challenged our jurisdiction, "before
we can address the merits of an appeal, [we] ha[ve] a duty to
determine sua sponte whether we have jurisdiction to
review the appeal." Boeving v. Kander, 493
S.W.3d 865, 872 (Mo. App. W.D. 2016) (internal quotation
omitted) (quoting Capital Fin. Loans, LLC v. Read,
476 S.W.3d 925, 927 (Mo. App. W.D. 2015)). "If this
[c]ourt lacks jurisdiction to entertain an appeal, the ...