C. Patrick Herring and Clarann Herring, on hehalf of themselves as individuals and on behalf of the class consisting of all aggrieved claimants who have file claims against the defandant, Appellants

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: C. Patrick Herring and Clarann Herring, on hehalf of themselves as individuals and on behalf of the class consisting of all aggrieved claimants who have file claims against the defandant, Appellants Case Number: WD60491 Handdown Date: 12/24/2002 Appeal From: Circuit Court of Jackson County, Hon. Michael W. Manners, Judge Counsel for Appellant: Kenneth Blair McClain Counsel for Respondent: Julie Joan Gibson Opinion Summary: Patrick Herring and Clarann Herring suffered a partial loss to personal property due to a burglary that was covered by a homeowner's insurance policy issued by Prudential Property and Casualty Insurance Company that included a "replacement cost coverage" provision. Prudential partially paid the Herrings' claim but withheld a portion of the claim on the basis that it represented depreciation. Prudential refused to tender the unpaid amount to the Herrings until the personal property was actually repaired or replaced. The Herrings brought suit against Prudential, seeking payment of the unpaid portion of their insurance claim, on the basis that Prudential's withholding of those funds violated section 379.150, RSMo 2000. Cross-motions for summary judgment were filed by the parties, and the court entered summary judgment in favor of Prudential. The Herrings appeal that judgment. AFFIRMED. Division holds: The case is not distinguishable from Dollard v. Depositors Ins. Co., WD 60492 (Mo. App., W.D., December ___ 2002). As discussed in that opinion, the insurance policy at issue does not violate section 379.150, RSMo. Citation: Opinion Author: Ronald R. Holliger, Judge Opinion Vote: AFFIRMED. Breckenridge, P.J. and Howard, J., concur Opinion:

This appeal concerns the same issue extensively discussed by our opinion in Dollard v. Depositors Ins. Co., WD 60492, (Mo. App., W.D., December 24, 2002). That issue is whether an insurance policy can condition payment of the full replacement cost of damaged personal property upon the actual repair or replacement of the property where the insured has opted for a money payment rather than repair or replacement under section 379.150, RSMo 2000. The Herrings purchased "replacement cost" insurance from Prudential Insurance Company. During the term of the policy, their home was burglarized, resulting in loss or damage to various items of personal property. They made a claim against their homeowner's coverage and a dispute arose as to the value of the property. Prudential paid a portion of the loss but withheld $1081.25 claiming that the amount represented depreciation. Prudential represented that, in accordance with the terms of the policy, it would pay the withheld amount once the property had actually been repaired or replaced. The Herrings brought suit against Prudential, seeking the withheld funds, arguing that Prudential's retention of the funds (essentially requiring the insured to self-insure that portion of the loss) violated section 379.150, RSMo.(FN1) Cross-motions for summary judgment were filed. Prudential's motion contended that their practice did not violate Missouri law and that the Herrings had failed to comply with the replacement condition of the policy. The trial court entered summary judgment in favor of Prudential. This appeal follows. Point on Appeal In a single point on appeal, the Herrings claim that the trial court erred in granting Prudential's motion for summary judgment and denying their cross-motion for summary judgment. They contend that policy provisions that permit insurers to withhold depreciation from a valid replacement cost claim are unenforceable under Missouri law. Prudential's second argument in reply to the Herrings' point on appeal is that the trial court correctly granted judgment in its favor. Prudential contends that section 379.150, RSMo, requires only payment of "an amount equal to the damage done," which is the actual cash value of the property. That actual cash value was paid, and Prudential was willing to pay the difference between that actual cash value and the actual cost to repair or replace the property. Standard of Review Our review of a grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In conducting that review, we must view the evidence in the light most favorable to the non-movant. Id. Viewed in that light, if there remains a genuine dispute of material fact or if the facts do

not entitle the movant to judgment as a matter of law, then we must reverse the judgment below. See id. Generally, the denial of a motion for summary judgment is not a final judgment that may be reviewed on appeal. See First Nat'l Bank of Annapolis, N.A., v. Jefferson Ins. Co. of New York, 891 S.W.2d 140, 141 (Mo. App. 1995). When the merits of that motion, however, are inextricably intertwined with the issues in an appealable summary judgment in favor of another party, then that denial may be reviewable. See id. Here, the sole issue appears to be an issue of law, and the Herrings' motion for summary judgment is intertwined with Prudential's. Indeed, the denial of one motion leads directly to the conclusion that the other should be granted. As such, we should reach the merits of the denial of the Herrings' motion. Discussion We have discussed this precise issue in Dollard v. Depositors Ins. Co., WD. 60492 (Mo. App. WD., December 24, 2002). There are no distinguishing facts or legal arguments in this case. The Herrings admit that there is no ambiguity in the insurance policy and that the sole question is whether section379.150 prohibits the withholding of depreciation amounts in a replacement cost policy until property is actually repaired or replaced. We have held that the statute does not bar enforcement of that policy provision. The judgment is affirmed. Footnotes: FN1.This statutory section contains language that deals with insurance coverage against fire loss. Prudential, in its brief states: "Prudential does not concede that section 379.150, RSMo, applies to this theft loss. The statute specifically refers to losses by fire. For purposes of the motion for summary judgment only, Prudential (and apparently the trial court) assumed that it applies." At least one decision, however, has apparently considered that section 379.150 might potentially apply to situations other than losses due to fire. See, e.g., Cady v. Hartford Fire Ins. Co, 554 S.W.2d 499, 503 (Mo. App. 1977). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.