Jeffrey Wunderlich v. Sharon Wunderlich

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JEFFREY WUNDERLICH, )
)
Respondent, )
)
v. )
)
WD79467
)
SHARON WUNDERLICH, )
OPINION FILED:
)
December 13, 2016
Respondent, )
)
)
NATIONAL GENERAL INSURANCE )
ONLINE, INC., )
)
Appellant/Proposed Intervenor. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Marco A. Roldan, Judge
Before Division Two: Lisa White Hardwick, Presiding Judge, and
Karen King Mitchell and Anthony Rex Gabbert, Judges
National 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.
Background1
On 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.
On 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
response.
Wife 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.
On June 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.
1
“In reviewing the trial court’s denial of intervention as of right, ‘we consider the facts in the light most
favorable to the court’s judgment.’” Kinney v. Schneider Nat’l Carriers, Inc., 200 S.W.3d 607, 610 (Mo. App. W.D.
2006) (quoting In the Interest of M.B., 91 S.W.3d 122, 125 (Mo. App. E.D. 2002)).
2
That 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 § 537.065.2
On 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.
On 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
2
All statutory citations are to the Revised Statutes of Missouri 2000, as updated through the most recent
Cumulative Supplement.
3
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.
Jurisdiction
Though 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 appeal must be dismissed.” Id. (quoting
Fannie Mae v. Truong, 361 S.W.3d 400, 403 (Mo. banc 2012)).
“In Missouri, the right to appeal is purely statutory, and where a statute does not give a
right to appeal, no right exists.” Id. (quoting Fannie Mae, 361 S.W.3d at 403). “An appeal without
statutory sanction confers no authority upon an appellate court except to enter an order dismissing
the appeal.” Id. (quoting Fannie Mae, 361 S.W.3d at 405).
On June 28, 2016, approximately three months after Insurer filed its notice of appeal in this
court,3 the Missouri Supreme Court handed down its decision in State ex rel. Koster v.
ConocoPhillips Co., 493 S.W.3d 397 (Mo. banc 2016). In ConocoPhillips, a would-be intervenor
waited to appeal an order denying his motion to intervene until the case reached a final judgment.
Id. at 399. The respondents argued that the appeal should be dismissed because in appealing the
final judgment rather than the interlocutory order denying intervention, the would-be intervenor
appealed from the wrong judgment because he was not a “party” who was aggrieved by the final
3
This was also ten days after Insurer filed its initial appellant’s brief.
4
judgment, and the would-be intervenor failed to timely appeal the denial of intervention. Id. The
Missouri Supreme Court rejected both arguments, noting that “none of th[e] provisions” of
§ 512.020, which grants an interlocutory right of appeal in certain situations, “applies to the order
overruling [a] motion to intervene as a matter of right.” Id. at 400. The Court therefore rejected
the “assertion that [a would-be intervenor] [i]s entitled to an immediate appeal from that
interlocutory order.” Id. The Court held that, “[b]ecause [a would-be intervenor] has no statutory
right to an immediate appeal of the interlocutory order overruling his motion to intervene as a
matter of right, his only opportunity for appellate review of that decision is to appeal from the trial
court’s final judgment.” Id. at 400-01.
Here, the judgment from which Insurer has appealed is not final insofar as it is a mere
denial of a motion to intervene as a matter of right.4 Accordingly, we dismiss this appeal.
Conclusion
Insurer’s appeal is dismissed due to the lack of a final appealable judgment.
Karen King Mitchell, Judge
Lisa White Hardwick, Presiding Judge, and Anthony Rex Gabbert, Judge, concur.
4
The court below initially denied Insurer’s motion in an “order,” but the court later included the ruling in a
“judgment” upon Insurer’s request. In doing so, the court cited Rule 74.01 and State ex rel. Strohm v. Bd. of Zoning
Adjustment of Kansas City, 869 S.W.2d 302 (Mo. App. W.D. 1994). (All rule citations are to the Missouri Supreme
Court Rules (2016).) Strohm, decided well before ConocoPhillips, held that would-be intervenors “had a right to
appeal the denial of their motion to intervene,” once the motion was denied. Id. at 303. In so holding, the court in
Strohm cited State ex rel. Reser v. Martin, 576 S.W.2d 289, 291 (Mo. banc 1978), which was widely regarded as
providing for an immediate right of appeal upon the denial of a motion to intervene as a matter of right. But the
Missouri Supreme Court subsequently clarified that “Reser does not hold that a proposed intervenor has a right to an
immediate appeal from an interlocutory order denying intervention.” State ex rel. Koster v. ConocoPhillips Co., 493
S.W.3d 397, 400 (Mo. banc 2016). Rather, a would-be intervenor’s “only opportunity for appellate review of that
decision is to appeal from the trial court’s final judgment.” Id. at 401.
We note that in ConocoPhillips the denial of the motion to intervene was done by an “interlocutory order.”
Rule 74.01(b) grants a trial court the authority to certify an interlocutory ruling as appealable. However, it may do so
only if certain requirements are met, including “an express determination that there is no just reason for delay.”
Rule 74.01(b). There is no such determination in the judgment before us; thus, we do not decide whether a judgment
properly entered under Rule 74.01(b) might constitute an exception to the holding of ConocoPhillips.
5