State ex rel. MFA Insurance Co. v. Murphy

MORGAN, Judge. Mary Boyer, plaintiff in the underlying cause, sustained injuries in a two-car collision with an uninsured motorist on February 6,1978. In November of that year Mrs. Boyer sued her insurer, MFA, to recover for those injuries under the uninsured motorist [662] provisions of her policy; which, as a condition thereto, provided in part that: After notice of claim under Coverage E (Uninsured Motorists Insurance) the Company may require the insured to take such action as may be necessary or appropriate to preserve his right to recover damages from any person or organization alleged to be legally responsible for the bodily injury and in any action against the Company, the Company may require the insured to join such person or organization as a party defendant. On December 29, 1978, relator made demand upon Mrs. Boyer to join the alleged tortfeasor-uninsured motorist, Cecil Gibson, as a party defendant in the cause below. Her attorney acknowledged the demand in a letter1 dated January 11,1979, and stated Mrs. Boyer’s position essentially as follows: (1) that she viewed the pertinent policy provision as unenforceable as a matter of public policy, but that she wanted to cooperate “in every reasonable way ... in order to perfect her claim” and would file the requested pleadings if relator agreed to pay the costs incurred; (2) that she would resist tying litigation against Mr. Gibson to her claim against MPA.2 Relator did not respond to the request for expenses but later in January filed its Motion for Summary Judgment, or in the alternative, to dismiss for failure to join the alleged tortfeasor. After a hearing on March 5, respondent overruled the motion. On July 5 relator filed its petition in this Court and a preliminary rule in prohibition was ordered to issue. Although the scope of the “uninsured motorist” statute, § 379.203, RSMo 1978, has been explored several times in this Court, the particular question before us has not. Moreover, the parties have not cited any cases from foreign jurisdictions which directly rule the same.3 Nevertheless, the obvious issue as posed is not cognizable in the present posture of this ease by reason of a long-standing rule of law recently recognized in Harding v. State Farm Mutual Automobile Ins. Co., 448 S.W.2d 5 (Mo. banc 1969) and applicable to the underlying petition. Therein, at 7, we said: [663] Looking now to the merits of the appeal, we first consider defendant’s contention the original petition failed to state a cause of action because performance of the conditions precedent was not alleged. The foundation for this argument has been established for many years. This court in Bayse v. Ambrose, 32 Mo. 484, 485 (1862), said: “In declaring on a contract containing stipulations to be performed by the plaintiff precedent to the performance of the agreement of defendant, the plaintiff must show the performance of such stipulations, or a sufficient excuse for their non-performance.” As declared in Streib v. Local Lodge No. 27 of I. B. of Boiler Makers, Etc., Mo.App., 40 S.W.2d 519, 521, “The doctrine seems to be settled in this state that performance of a condition precedent must be alleged or an excuse given for its nonperformance to make the pleading a good one." Mo.Dig., Insurance, Key No. 634(2), Pleading, Key No. 59; 71 C.J.S. pleading § 80, p. 193; 44 Am.Jur.2d, Sec. 1939, p. 877. Specific application of this rule to an action based on a contract of insurance was made in Propst v. Capital Mut. Ass’n, 233 Mo.App. 612, 124 S.W.2d 515, 520, wherein the court said, “The petition does not allege that plaintiff furnished proofs of loss, or any fact showing waiver thereof or estop-pel, nor, does it allege, generally, that plaintiff has performed all of the conditions precedent. It is, therefore, defective.” Relative to this rule, Section 509.-170, RSMo 1959, V.A.M.S., and Rule 55.-18, [now 55.16] provide that compliance with conditions precedent may be alleged generally. (Emphasis added.) The petition in the original cause is vulnerable for the same reason. Relator has raised the issue at least three times and we quote briefly from three of its pleadings: 1. Answer in underlying case)-“. . . plaintiff has failed to state a cause of action or plead facts entitling plaintiff to relief . .. 2. (Petition for Prohibition)-“Plamtiff’s refusal to join the uninsured motorist as required by the terms of her insurance policy is a breach of a condition precedent to recovery”; 3. (Reply to Return) — “The requested joinder of the tortfeasor is not conditioned upon any payment by the insurance company but is a condition precedent to recovery.” When a petition wholly fails to state a cause of action, the defect is jurisdictional. It would gain Mary Boyer, plaintiff in the underlying cause, very little to be an apparent indirect beneficiary of a ruling in favor of respondent in this cause only to fail in her own action by failure to state a cause of action. Such a discrepancy should be corrected at this stage of the proceeding. The writ of prohibition heretofore issued is made absolute; and, respondent is to dismiss the underlying action unless plaintiff therein files an amended petition stating a cause of action within such time as respondent may declare. HIGGINS, J., concurs. DONNELLY and WELLIVER, JJ., concur in result. BARDGETT, C. J., dissents in separate dissenting opinion filed. RENDLEN and SEILER, JJ., dissent and concur in separate dissenting opinion of BARDGETT, C. J. Footnotes [1] Text of letter: “I am writing to you on behalf of my client, Mary Faye Boyer, concerning your letter to her of December 29, 1978, wherein you request her to join Cecil Robert Gibson as a party defendant in the matter of Boyer v. MFA Insurance Company. “In my opinion the policy provision you cite is unenforceable as a matter of public policy. On the other hand, my client wants to cooperate in every reasonable way with the insurance company in order to perfect her claim. “Mrs. Boyer is obviously not a lawyer and would have to retain counsel to file proper pleadings to bring Mr. Gibson as a party defendant. Under the circumstances any judgment against Mr. Gibson would have to be collected by execution on his property and because of that we would only choose to represent Mrs. Boyer on that claim on an hourly basis. We would anticipate our expenditure of time in this regard to be approximately $1,000 and would ask that you pay to Mrs. Boyer a retainer in this amount for our services in joining Mr. Gibson as a defendant. “On the other hand, this action inures only to the benefit of the company and not to Mrs. Boyer directly as MFA is of course the primary defendant. Mrs. Boyer reserves the right to retain counsel of her choice to institute any action by her personally against Mr. Gibson. She does not authorize MFA to institute an action in her name against Mr. Gibson. Any action asserted directly against Mr. Gibson by MFA is of course MFA’s private concern and Mrs. Boyer will adamantly resist tying any such litigation to the claim that she has against the MFA. “Mrs. Boyer wishes to make it clear that she will cooperate in any other reasonable way with the MFA in connection with this claim.” [2] The meaning of this assertion was clarified in respondent’s Return in the immediate proceeding, wherein it was stated that if joinder was required Mrs. Boyer intended to move for a separate trial “as relator’s claim against Mr. Gibson involves separate issues of law and fact that would prejudice plaintiff’s cause and as a matter of law plaintiff should not as a contractual matter be caused to prejudice her cause against this defendant (MFA).” [3] Three cases do deal with the enforceability of a “compulsory joinder” clause but under circumstances different from those here: Lawrence v. Continental Ins. Co., 199 So.2d 398 (La.App.1967); Puckett v. Liberty Mut. Ins. Co., 477 S.W.2d 811 (Ky.App.1971); and, Dildy v. Southeastern Fire Ins. Co., 185 S.E.2d 272 (N.C.App.1971).