Sondra Samuels, Respondent/Cross-Appellant v. American Family Insurance Company, Appellant/Cross-Respondent.

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: Sondra Samuels, Respondent/Cross-Appellant v. American Family Insurance Company, Appellant/Cross-Respondent. Case Number: WD63776 & WD63785 Handdown Date: 04/12/2005 Appeal From: Circuit Court of Jackson County, Hon. Vernon E. Scoville, III Counsel for Appellant: Larry D. Coleman Counsel for Respondent: Nikki Cannezzaro Opinion Summary: Samuels rented a car from Avis Rent A Car and subsequently was involved in an accident. Avis demanded payment from Samuels, and Samuels looked to American Family, her insurer, for payment. American Family refused to pay, and Samuels sued. Prior to trial, American Family paid Avis, but Samuels continued her suit for vexatious refusal to pay. The circuit court awarded Samuels $9155 but found that American Family was not liable for vexatious damages. American Family appealed, and Samuels cross-appealed. REVERSED. Division holds: Damages for an insurer's vexatious refusal to pay an insurance claim are available under section 375.420 RSMo. The statute expressly does not apply, however, to claims made under "automobile liability insurance. "Here, the parties did not dispute that coverage existed. However, Samuels claim was based on her liability to Avis that she incurred by crashing its rental car. As this situation is expressly excluded from the statute, Samuels could not pursue a claim against American Family for vexatious refusal to pay under section 375.420. The circuit court's judgment is reversed. Citation:

Opinion Author: Paul M. Spinden, Presiding Judge Opinion Vote: REVERSED. Howard and Newton, J.J., concur. Opinion: American Family Insurance Company appeals the circuit court's judgment awarding $9155 to Sondra Samuels, American Family's insured, and Samuels cross appeals. Because Samuels' cause of action was purely a creature of statute and because the statute does not support Samuels' cause of action, the court lacked subject matter jurisdiction to rule on Samuels' claim. We, therefore, vacate the circuit court's judgment. This dispute stems from an automobile collision involving a car that Samuels rented from Avis Rent A Car. Avis sued Samuels after she and American Family refused to pay Avis for the car's damage. Samuels, in turn, sued American Family for vexatious refusal to pay. Several months before trial, American Family paid Avis, and Avis dismissed its lawsuit against Samuels. Samuels, however, persisted in her vexatious refusal to pay claim against American Family. The parties stipulated that the only issue to be resolved by the circuit court was Samuels' claim for vexatious refusal to pay. The circuit court ruled for Samuels but also determined that American Family's refusal to pay was not vexatious and did not support an award of punitive damages. American Family appealed, and Samuels cross-appealed. We vacate the circuit court's judgment because it lacked subject matter jurisdiction. The vexatious refusal to pay statute, Section 375.420, RSMo 2000, does not apply to Samuels' case. In authorizing a vexatious refusal to pay claim, the General Assembly made an exception for claims made under "automobile liability insurance" policies: In any action against any insurance company to recover the amount of any loss under a policy of automobile, fire, cyclone, lightning, life, health, accident, employers' liability, burglary, theft, embezzlement, fidelity, indemnity, marine or other insurance except automobile liability insurance, if it appears from the evidence that such company has refused to pay such loss without reasonable cause or excuse, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not to exceed twenty percent of the first fifteen hundred dollars of the loss, and ten percent of the amount of the loss in excess of fifteen hundred dollars and a reasonable attorney's fee; and the court shall enter judgment for the aggregate sum found in the verdict. (FN1) Samuels made her claim under her insurance policy's liability coverage, and American Family agreed that coverage was available under the policy's liability coverage. In describing its "liability coverage," the policy said, "[American Family] will pay damages an insured person is legally liable for because of bodily injury or property damage due to the use of a

car or utility trailer." The policy defined a car as an "insured auto, a passenger car, and a utility car," and it defined a passenger car as "a four-wheel car of the private passenger type." Thus, American Family was obligated under its liability coverage to pay for property damage that Samuels caused while operating the Chevrolet Lumina that she had rented from Avis. Although Section 375.420 includes claims made "under a policy of automobile . . . insurance," it excludes specifically claims made under "automobile liability insurance." Samuels' statutory claim for vexatious refusal to pay, therefore, was not authorized, and the circuit court should have dismissed her claim. We, therefore, vacate the circuit court's judgment, and we deny Samuels' motion for attorney fees.

Footnote: FN1. We added the emphasis. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.