Court of Appeals of Missouri, Eastern District, Fourth Division
ELIZABETH A. RUIZ, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARCIA A. PAUL, Appellant,
THE BAR PLAN MUTUAL INSURANCE COMPANY, Respondent.
from the Circuit Court of St. Louis County Honorable David L.
S. ODENWALD, PRESIDING JUDGE
A. Ruiz ("Ruiz") appeals the trial court's
grant of summary judgment in favor of The Bar Plan Mutual
Insurance Company ("The Bar Plan") on her equitable
garnishment claim filed on behalf of the estate of Marcia A.
Paul ("Decedent"). Ruiz brought her claim against
The Bar Plan to collect on a legal malpractice judgment
entered in favor of Decedent against The Bar Plan's
insured, Charles H. Steib ("Steib"). Steib renewed
a claims-based professional liability insurance policy with
The Bar Plan ("the Policy") effective in 2009. In
the Policy, coverage for claims based upon conduct occurring
before the issuance of the Policy was conditioned on Steib
notifying The Bar Plan, at the time of the Policy renewal
application, of any act or omission that he had a basis to
believe might give rise to a claim against him. The trial
court determined that the Policy did not afford coverage for
Ruiz's legal malpractice claims because Steib did not
report Decedent's potential malpractice claims against
Steib to The Bar Plan when he reapplied for insurance
raises several points on appeal, each of which is premised
upon Ruiz's contention that Steib fully complied with the
Policy's notice requirements because he reasonably
believed no malpractice claim could be brought against him on
behalf of Decedent following Decedent's death. It is not
disputed that coverage under the Policy was expressly
conditioned upon Steib reporting any acts or omissions that
could reasonably be expected to form the basis of a legal
malpractice claim against him by Decedent. Because an
objectively reasonable attorney in 2008 would have understood
that claims of legal malpractice survived a client's
death, Steib was obligated to notify The Bar Plan of
Decedent's potential malpractice claim when applying to
renew the Policy in 2008. Because Steib did not notify The
Bar Plan of the potential claim against him, the Policy
affords no coverage for Ruiz's claims. Accordingly, we
affirm the judgment of the trial court.
and Procedural History
The Legal Malpractice Claims Underlying the Equitable
legal malpractice claims against Steib arose from Steib's
representation of Decedent in a declaratory judgment
proceeding stemming from a medical malpractice judgment.
Decedent obtained a $750, 000 settlement against Dr. Enrique
Pastrana ("Dr. Pastrana") in a medical malpractice
case. Decedent and Dr. Pastrana entered into a Section
537.065 settlement agreement, which stipulated
that Decedent could collect on the settlement with Dr.
Pastrana only from Dr. Pastrana's liability insurer,
Intermed Insurance Company ("Intermed"). When
Decedent sought to collect on the settlement, Intermed filed
a declaratory judgment action seeking a ruling that Dr.
Pastrana's liability policy did not cover Decedent's
claims. Intermed moved for summary judgment on its petition
and submitted therewith a statement of uncontroverted facts.
Steib, representing Decedent, did not properly respond to
Intermed's statement of uncontroverted facts.
18, 2007, the trial court granted summary judgment to
Intermed. The trial court explained that Decedent did not
respond to Intermed's statement of uncontroverted facts
as required by Rule 74.04(c)(2),  causing the trial court to
treat each of Intermed's facts as admitted by Decedent.
Included among the admissions was the fact that
Decedent's claims were not covered by Dr. Pastrana's
liability policy with Intermed. The trial court found
Steib's response noncompliant with Rule 74.04. The trial
court admonished that it "acknowledge[d] the difficulty
of [Decedent's] position but [was] nevertheless
constrained by the requirements of Rule 74.04(c)(2) and the
decisions of the appellate courts, which treat as true any
facts alleged in a properly pleaded summary judgment motion
not disputed by the non-movant." Consequently, the trial
court found Intermed's uncontroverted facts admitted and,
as a matter of law, granted summary judgment in favor of
Intermed. Because of Steib's error, Decedent was unable
to continue her efforts to collect on the $750, 000 medical
malpractice judgment against Dr. Pastrana.
appealed the trial court's grant of summary judgment to
Intermed. On March 11, 2008, this Court affirmed the trial
court's grant of summary judgment in a per curiam order.
Intermed Ins. Co. v. Paul, 247 S.W.3d 103, 104 (Mo.
App. E.D. 2008) (per curiam). In the memorandum accompanying
the order, we explained that Rule 74.04(c)(2) set forth the
requirements for Decedent's response to Intermed's
statement of uncontroverted facts. We noted that compliance
with Rule 74.04 is mandatory and that Decedent failed to
comply with Rule 74.04 when Steib did not admit or deny each
factual statement contained in the summary judgment motion.
We held that the trial court properly treated Intermed's
factual assertions as true, given that Decedent-due to
Steib's error-did not dispute them. Because the facts as
asserted by Intermed voided coverage under Dr. Pastrana's
insurance policy, we held the trial court properly granted
summary judgment in favor of Intermed.
then mailed Decedent a copy of the per curiam order. Shortly
thereafter, on July 3, 2008, Decedent died. Ruiz was
appointed the personal representative of Decedent's
The Bar Plan Policy
through his law firm, submitted a Policy renewal application
to The Bar Plan in December 2008. Section II Coverage of the
Policy-effective January 21, 2009-contains the following
A. PROFESSIONAL LIABILITY AND CLAIMS-MADE AND
The Company will pay on behalf of an Insured all sums,
subject to the Limit(s) of Liability, Exclusions and terms
and conditions contained in this Policy, which an Insured
shall become legally obligated to pay as Damages as a result
of CLAIMS (INCLUDING CLAIMS FOR PERSONAL INJURY) FIRST MADE
AGAINST AN INSURED DURING THE POLICY PERIOD OR ANY APPLICABLE
EXTENSION PERIOD COVERAGE AND REPORTED TO THE COMPANY DURING
THE POLICY PERIOD, THE AUTOMATIC EXTENDED CLAIM REPORTING
PERIOD, OR ANY APPLICABLE EXTENSION PERIOD COVERAGE by reason
of any act or omission by an Insured acting in a professional
capacity providing Legal Services.
PROVIDED ALWAYS THAT such act or omission
1. During the Policy Period; or
2. Prior to the Policy Period, provided that prior to the
effective date of this Policy:
a. Such Insured did not give notice to the Company or any
prior insurer of any such act or omission; and
b. Such Insured had no basis to believe that such Insured had
committed such an act or omission.
NOTE: It is a condition precedent to coverage under this
Policy that all Claims be reported in compliance with Section
VII. CLAIMS, Paragraph A.
Section III Exclusions, Exclusion L expressly excludes
coverage for any claim based upon or arising out of "[a]
Claim against an Insured who before the Policy effective
date knew, or should reasonably have known, of any
circumstance, act or omission that might reasonably be
expected to be the basis of that Claim" (emphasis
December 2008 Policy renewal application, Steib affirmatively
denied that his firm or any attorney or employee in the firm
had knowledge of any incident, circumstance, act or ...