Charles Grewell, et al., Appellants, v. State Farm Mutual Automobile Insurance Co., Inc., et al., Respondents.

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: Charles Grewell, et al., Appellants, v. State Farm Mutual Automobile Insurance Co., Inc., et al., Respondents. Case Number: WD60615 Handdown Date: 08/20/2002 Appeal From: Circuit Court of Jackson County, Hon. Jay A. Daugherty Counsel for Appellant: Bruce Brandom Brown Counsel for Respondent: Michael Eugene McCausland Opinion Summary: Charles and Linda Grewell appeal the dismissal of their declaratory judgment action against their own insurer, State Farm Mutual Auto Insurance Company, and Naressa Wilkins, a State Farm employee, for failure to state a cause of action. The Grewells sought a judgment declaring that the insurance company had the duty to produce certain information from the claim file. They also sought attorney's fees, nominal damages and punitive damages. AFFIRMED. Division holds: A declaratory judgment action is available only in limited circumstances to establish the rights, status and duties of parties so as to avoid loss and encourage settlement of disputes before litigation. A petition for a declaratory judgment action must satisfy four specific requirements. Because the circumstances of this case do not fit the requirements for a declaratory judgment action, the judgment of dismissal is affirmed. Citation: Opinion Author: PER CURIAM Opinion Vote: AFFIRMED. Lowenstein, P.J., Smart, Jr., and Newton, JJ., concur. Opinion:

Charles and Linda Grewell appeal the dismissal of their declaratory judgment action against State Farm Mutual Auto Insurance Company ("State Farm") and Naressa Wilkins. In their petition for declaratory judgment, they sought a judgment declaring the relationship between the Grewells and State Farm to be "an insurer-insured relationship" and ordering State Farm and Wilkins, an employee of State Farm, to release documents in its claims file to plaintiffs so that plaintiffs can "support their position that Linda Grewell was not liable, or, if there is liability, that the liability is less than fifty percent." The trial court granted the motion to dismiss filed by defendants. Plaintiffs Grewell appeal. We affirm. Factual Background On about May 1, 2000, Linda Grewell was involved in a collision with James Kephart. Both Grewell and Kephart were insured by State Farm. State Farm thereafter notified Plaintiff Linda Grewell that it had determined that Linda Grewell was fifty percent at fault in connection with the collision in failing to yield to Kephart. The Grewells disagreed with the determination. They sought various items from State Farm's claim file related to the matter, including:

1. Any statements of Charles I. Grewell and Linda Grewell to you or anyone else with State Farm

acting on behalf of Charles I. Grewell and Linda Grewell.

1. Names and addresses of any witnesses to the collision on May 1, 2000.
2. Statements of any witnesses obtained by you and anyone else with State Farm acting on

behalf of Charles I. Grewell and Linda Grewell.

1. Names of all persons with State Farm acting on behalf of Charles I. Grewell and Linda Grewell

who have been involved in conducting the investigation of the collision on May 1, 2000.

1. Pictures of the vehicles and accident scene.
2. Any measurements of the accident scene, particularly as to the point of impact.
3. Transcript of or any of your notes pertaining to any proceeding or meeting whereby State

Farm, acting within the capacity of representing Charles I. Grewell and Linda Grewell, and State Farm, acting within the capacity of representing James Kephart, determined or otherwise agreed to the percentage of fault between Linda Grewell and James Kephart, and the names of all parties to this proceeding or meeting and the position of each person with State Farm. Please also provide the date when this proceeding or meeting occurred.

1. Any other facts upon which you or other representatives of State Farm, acting on behalf of

Charles I. Grewell and Linda Grewell, rely in assessing any percentage of fault as to Linda Grewell. On October 31, 2000, Naressa Wilkins, the adjuster assigned to the claim, responded, providing the following: ·Statement obtained from Linda Grewell. ·Name and address of witness, Robert Weir, 815 N.W. 1911 Road, Lone Jack, Missouri 64078. This

information was obtained from the Missouri State Highway Patrol report number 300640035. ·Names of persons with State Farm acting on behalf of Charles I. Grewell and Linda Grewell, who have been involved in conducting the investigation of the collision on May 1, 2000: Naressa L. Wilkins. ·Pictures of Ms. Grewell's vehicle. Thereafter, plaintiffs sought a declaratory judgment declaring that State Farm has a duty to produce the information in question "as well as all information which defendant may obtain in the future . . . while acting on behalf of plaintiffs." Plaintiffs also sought attorney's fees, nominal damages and punitive damages. State Farm moved to dismiss pursuant to Rule 55.27(a)(6) on the ground that plaintiff failed to state a claim upon which relief may be granted. The trial court issued its order granting the motion on April 11, 2001. The Grewells contend on appeal that the trial court erred in granting the motion to dismiss. In Point I, the Grewells contend that a special relationship exists between the parties which is "similar to" an attorney-client relationship and which involves an "identity of interest," and that the Grewells are entitled to be "fully informed" as to the claim file. Points II, III, and IV are points based on the assumption that plaintiffs pleaded a substantive cause of action, and address additional concerns and rulings of the trial court. Because we hold that the trial court did not err in determining that the Grewells failed to state a cause of action, we affirm. Standard of Review In a case in which the court has granted a motion to dismiss for failure to state a claim upon which relief can be granted, we review the petition to determine whether, as a matter of law, the petition fails to plead a cause of action. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). Our review is a legal question. See Sandy v. Schriro, 39 S.W.3d 853, 855 (Mo. App. 2001). The facts pleaded are presumed to be true for purpose of our analysis. Nazeri, 860 S.W.2d at 306. The petition is reviewed in an "almost academic manner," to determine whether the facts alleged "meet the elements of a recognized cause of action, or of a cause that might be adopted. . . . " Id. Analysis Appellants acknowledge that they have no definitive authority to support their claim that they have a "right of access," but they argue that various principles of law clearly support the proposition that an insured has a legal right of access to the claims file. Appellants assert the following as applicable principles of law:

1. The existence of a reciprocal duty of good faith and fair dealing between an insurer and an

insured.

1. The special relationship between the insurer and the insured is similar to the relationship of an

attorney and client.

1. The relationship between an insured and insurer is one of "identity of interest."

1. The law imputes fiduciary obligations upon the insurer because the insurer has "the power to

act for the insured."

1. Work product immunity applies only to materials gathered by one's adversary in the litigation.

In their brief, the Grewells state that they dispute the insurer's conclusion that Linda Grewell was fifty percent at fault in the collision. Further, the Grewells are concerned that the fault determination could affect their insurance premiums or ability to maintain insurance coverage with State Farm or to obtain coverage from another insurance company. The Grewells desire to protect their interests and to understand the fault analysis. They also believe that any information obtained by Wilkins during her investigation may be useful in developing strategies for bringing a lawsuit or settling claims against Kephart. Similarly, they want to know of any information obtained by Kephart's adjuster from Wilkins. The "legal principles" cited by the Grewells are all applicable in contexts other than in the context of a dispute between the insured and the insurer over the insured's degree of fault. The Grewells fail to recognize the many facets of their relationship with their insurer. For instance, because State Farm insured both Kephart and Grewell, Mrs. Grewell and State Farm do not have "an identity of interest" in the matter. The relationship in this context is not similar to an attorney-client relationship. Their contention that they need access to the entire file to "support their position that Mrs. Grewell was not fifty percent at fault" does not state a cause of action. Moreover, a declaratory judgment action is not a catch-all cause of action for every kind of dispute. It is available only under the proper circumstances. "[T]he Declaratory Judgment Act(FN1) authorizes a party to seek a declaratory judgment to establish the rights, status, and duties of parties so as to avoid loss and encourage settlement of disputes before litigation." Northgate Apartments, L.P. v. City of North Kansas City, 45 S.W.3d 475, 479 (Mo. App. 2001). In order to maintain a declaratory judgment action, the petition must satisfy four requirements: (1) it must demonstrate a justiciable controversy which presents a real, substantial, presently- existing dispute as to which specific relief is sought; (2) it must demonstrate a legally-protected interest, consisting of a pecuniary or personal stake directly at issue and subject to immediate or prospective relief; (3) the question presented by the petition must be ripe for judicial determination; and, finally, (4) a petitioner who satisfies all three of these elements must then demonstrate that he or she also does not have an adequate remedy at law. Wheeler v. Sweezer, 65 S.W.3d 565, 568 (Mo. App. 2002); Northgate Apartments, 45 S.W.3d at 479. Here, the circumstances do not fit the requirements of a declaratory judgment action. For instance, the Grewells do have an adequate remedy at law in that the law will provide them, at the appropriate time, a limited right to discover pertinent items in the possession of their insurer. When and if the Grewells are involved in the

prosecution or defense of a formal claim involving Kephart, they will have the right to conduct formal discovery of the claim file pursuant to a subpoena as to items which may be admissible or which may lead to the discovery of admissible evidence. We understand the Grewells' concern that the fault determination may affect their insurance premiums or ability to maintain coverage. We do not agree, however, that it is a logical conclusion that having access to the claims file will allow them to change their insurer's determination. The insurer is entitled to make its own determination for its own purposes. In their reply brief, the Grewells point out that insurance companies have access to a service which maintains and reports the insurance claims history of individuals. The Grewells argue that their practical legal rights will be affected by their inability to effectively dispute the fault determination of the company. The argument that there is a need to address the public reporting of claims determinations was not a matter that was pleaded, nor was it an argument made to the trial court. It is raised for the first time on appeal -- in fact, in the reply brief. Accordingly, we need not consider the argument that access to the claims file is necessary for that purpose, even if Respondents did not object to our granting such consideration. For the foregoing reasons, the judgment is affirmed. Respondent's motion to strike portions of Appellants' reply brief is granted. Footnotes: FN1. Specifically, section 527.010 RSMo 2000 provides: The circuit courts of this state, within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. .... The declaration may be either affirmative or negative in form and effect; and ... shall have the force and effect of a final judgment or decree. And, section 527.020 of the Act states: Any person interested under a ... written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a ... contract ... may have determined any question of construction or validity arising under the ... contract ... and obtain a declaration of rights, status or other legal relations thereunder. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.