United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) DENYING DEFENDANT'S MOTION
FOR PARTIAL SUMMARY JUDGMENT, AND (2) DENYING PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT.
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT.
are New Hampshire Insurance Company's
(“NHIC”) Motion for Partial Summary Judgment
(Doc. #108), and AXIS Specialty Insurance Company's
(“AXIS”) Motion for Partial Summary Judgment
(Doc. #116). Both motions are denied.
moving party is entitled to summary judgment on a claim only
if there is a showing that “there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Williams v. City
of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986).
“[W]hile the materiality determination rests on the
substantive law, it is the substantive law's
identification of which facts are critical and which facts
are irrelevant that governs.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Wierman v.
Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir.
2011) (quotation omitted). In applying this standard, the
Court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of all
inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744
F.2d 653, 655 (8th Cir. 1984). However, a party opposing a
motion for summary judgment “may not rest upon the mere
allegations or denials of the… pleadings, but…
by affidavits or as otherwise provided in [Rule 56], must set
forth specific facts showing that there is a genuine issue
for trial.” Fed.R.Civ.P. 56(e).
in this case, NHIC sought summary judgment on AXIS's
vexatious refusal claim (Count III). NHIC argued AXIS could
not bring a vexatious refusal claim and a bad faith failure
to settle claim based upon the same facts. The Court denied
the motion, finding there were disputed material facts
pertaining to both claims. Doc. #81. NHIC renews its motion
and argument. Doc. #108. The cases cited by NHIC do not
explicitly prohibit a party from bringing both a vexatious
refusal claim and a bad faith failure to settle claim when
the claims are based on the same facts.
relies on this Court's decision to grant a motion to
dismiss a vexatious refusal claim. See W. Am. Ins. Co. v.
RLI Ins. Co., Case No. 07-CV-0566, 2001 WL 3376878 (W.D.
Mo. Nov. 6, 2007). This Court dismissed that claim because
the plaintiff was not the insured and only alleged a
third-party claim. Id. at 2. There were no facts
establishing the plaintiff was assigned the insured's
claims. Here, the insured assigned AXIS all causes of action
arising out of the claims alleged against and judgment
entered against the insured in the Rider lawsuit. Doc. #81,
at 2, 4. The Court's previous dismissal order
does not shed light on this particular situation.
relies on another decision issued by the Western District of
Missouri wherein the plaintiff alleged claims of bad faith
failure to settle, negligent failure to settle, breach of
fiduciary duty, and breach of contract. See Purscell v.
Tico Ins. Co., Case No. 12-CV-4039, 2012 WL 1934015, at
*1 (W.D. Mo. May 29, 2012). In Purscell, Judge
Laughrey did not find, and was not asked to find, whether
claims for vexatious refusal and bad faith failure to settle
could be brought when based upon the same facts.
also relies on a decision issued by Eastern District of
Missouri. See Elec. Power Sys. Int'l, Inc. v. Zurich
Am. Ins. Co., Case No. 15CV1171, 2016 WL 147096 (E.D.
Mo. Jan. 13, 2016). In Electric Power Systems
International, the Court denied a motion for judgment on
the pleadings because a party's vexatious refusal claim
and bad faith failure to settle claim were not based upon the
same set of facts. Id. at *3. The Court did not find
a party could not bring both a vexatious refusal claim and a
bad faith failure to settle claim based upon the same facts.
NHIC's reliance on Zumwalt v. Utilities Insurance
Co., 228 S.W.2d 750 (Mo. banc 1950), is misplaced. In
Zumwalt, the Missouri Supreme Court addressed, for
the first time, whether insurer liability is based upon bad
faith or negligence. Id. at 753. The remainder of
the decision examined alleged instructional errors.
Id. at 754-56. The Court did not state a party was
not permitted to bring claims of vexatious refusal and bad
faith failure to settle if the claims were based upon the
has not cited - and the Court has been unable to find - a
case explicitly prohibiting a party from bringing claims for
vexatious refusal and bad faith failure to settle based upon
the same facts. Instead, the Missouri Supreme Court held the
vexatious refusal statute “does not displace or preempt
any remedies nor does it provide an immunity from
liability….There is not one word in the statute to
support the notion that [it] ‘preempts' any
claim.” Overcast v. Billings Mut. Ins. Co., 11
S.W.3d 62, 69 (Mo. banc 2000) (citing Mo. Rev. Stat. §
375.420). Without an unambiguous prohibition against bringing
these two claims based on the same facts, the Court is not
persuaded to decree such a prohibition.
NHIC argues AXIS's vexatious refusal claim fails as a
matter of law. To establish a vexatious refusal claim, the
plaintiff must show (1) the claimant made a demand, (2) the
insurer failed or refused to pay for a period of thirty days
after the demand, and (3) the refusal to pay was vexatious
and without reasonable cause. Tauvar v. Am. Family Mut.
Ins. Co., 269 S.W.3d 436, 439 (Mo.Ct.App. 2008)
(citation omitted). The Court finds disputed issues of
material fact exist regarding this claim; therefore, NHIC is
not entitled to summary judgment on AXIS's vexatious