Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

The View Home Owners Association v. The Burlington Insurance Co.

Court of Appeals of Missouri, Western District

May 1, 2018

THE VIEW HOME OWNERS ASSOCIATION, Appellant,
v.
THE BURLINGTON INSURANCE COMPANY, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE SANDRA MIDKIFF, JUDGE

          Before Division Two: Karen King Mitchell, Presiding Judge, Alok Ahuja, Judge and Edward R. Ardini, Jr., Judge.

          EDWARD R. ARDINI, JR., JUDGE.

         The View Home Owner's Association ("the VHOA") appeals from the grant of summary judgment in favor of The Burlington Insurance Company ("TBIC") on the VHOA's claims for breach of contract and bad faith failure to defend relating to a commercial general liability insurance policy. Finding no error, we affirm.

         Factual and Procedural Background

         The View, LLC ("The View") is a Missouri Limited Liability Company, formed in June of 2003, which owned a building situated on a parcel of property at 600 East Admiral Boulevard in Kansas City ("the property"). The building had been originally designed and built for use as residential living during the 1960s, but had been vacant for many years and had been partially demolished by the time of its acquisition by The View. In July of 2004, The View entered into a contract with the Planned Industrial Expansion Authority of Kansas City ("the PIEA contract"), the latter having previously found the property to be a "blighted area." Under the terms of the PIEA contract, The View agreed to ameliorate the blighted condition of the property by redeveloping it into condominium units. Construction on the project began in 2005.

         In June of 2005, The View filed Declarations of Restrictions with the Jackson County Office of the Register of Deeds relating to the proposed condominium units. Under the terms of these declarations, the property became subject to the provisions of Missouri's Uniform Condominium Act ("MUCA"), which sets forth certain implied warranties regarding the fitness for use and freedom from defective materials or construction relating to the individual units. The View later began selling condominium units for residential use. All condominium purchasers became members of the VHOA as require under both the MUCA and the filed declarations.

         In September of 2008, the View commenced an action against the VHOA and others seeking a declaratory judgment and injunctive relief concerning matters that are not relevant to this appeal. The VHOA responded by asserting a counterclaim alleging that The View's renovation of the property had been negligent and that there remained numerous issues concerning the property's construction. For example, the VHOA alleged that the concrete balconies showed signs of delaminating, deteriorating, cracking, and spalling among other issues. The VHOA further alleged that the defects constituted a failure by The View to perform its material duties under the terms of the condominium sales contracts as well as the PIEA contract.

         The View tendered the defense of the VHOA's counterclaim to TBIC, who had previously issued The View a commercial general liability insurance policy on the property ("the policy"). TBIC reviewed the counterclaim and the terms of the policy, concluded that the policy did not cover the claimed defects being raised by the VHOA, and communicated this decision to The View. After receiving TBIC's reply, The View entered into a release agreement with the VHOA pursuant to Missouri Revised Statute section 537.065.

         Under the terms of the release, The View agreed not to contest the VHOA's request for judgment on its counterclaim or otherwise object to evidence, cross-examine witnesses, call its own witnesses, introduce evidence, or offer an opening statement or closing argument. The View also assigned its claims against TBIC for breach of contract and bad faith failure to defend regarding the policy to the VHOA. In exchange, the VHOA agreed to limit the execution of any judgment it received against The View to assets recovered from TBIC. Once the release was entered into, the trial court heard evidence on the VHOA's counterclaim, entered judgment against The View, and awarded the VHOA $3, 964, 209.00 in damages relating to the costs to repair the construction deficiencies that had been alleged.

         Having obtained a judgment against The View, the VHOA exercised the rights that had been assigned to it by The View and commenced the underlying suit against TBIC.[1] TBIC responded by filing a motion for summary judgment, and the VHOA countered with its own motion for partial summary judgment. A hearing was held on the cross motions for summary judgment, after which the trial court granted TBIC's motion and entered judgment in its favor and against the VHOA on each count. The VHOA now appeals.

         Standard of Review

         "Summary judgment is appropriate when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law." Doe Run Resources Corp. v. AmericanGuarantee & Liability Insurance, 531 S.W.3d 508, 511 (Mo. banc 2017). "The propriety of summary judgment is purely an issue of law" and our review of a trial court's granting of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In performing this review, we evaluate the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.