IN THE CIRCUIT COURT OF CHRISTIAN COUNTY, MISSOURI
LYNN DRIVER
Plaintiff,
vs.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF
MISSOURI, an insurance company, and KEVIN CHEFFEY,
Defendants.
Case No 05CT-CV00085
PETITION COUNT I
COMES NOW Plaintiff and for Count I of his petition against Defendant Farm Bureau Town
& Country Insurance Company, states, alleges, and avers as follows:
1. The parties are as follows:
A. Defendant is and was at all times herein mentioned an insurance corporation
organized under the laws of the State of Missouri and doing business
throughout the State of Missouri. Said Defendant maintains an agent in
Christian County, Missouri for the transaction of its usual and customary
business.
B. Defendant Kevin Cheffey is a licensed insurance agent and is a resident of
the State of Missouri.
C. Plaintiff is an individual residing in Nixa, Christian County, Missouri.
2. That on or about the 15th day of May ,2003 Defendant made and issued its insurance policy number PRO 0234567 02 insuring the named insured therein, Plaintiff, for accidental loss, including loss by fire, to a dwelling located at 792 Rippling Creek Road, Nixa, Missouri in the amount of $1'80,000.00 and the contents and personal property located in said dwelling in the amount of $135,000.00. This property constituted the insured property and was owned or used by Plaintiff on the date the policy was issued and on the date of the loss.
3. That the amount of coverage placed on the dwelling is incorrect and erroneous and is the result of a mutual mistake of fact.
4. That in late April, 2003, Plaintiff contacted Defendant's agent, Ken Cheffey, a captive agent and employee of Defendant Farm Bureau and requested that the then existing policy on the insured structure be converted from a "builder's risk" type policy to a homeowners replacement cost policy.
5. Defendant Cheffey agreed to Plaintiff s request and stated that the new policy would provide replacement cost coverage for the home and contents and that the amount of coverage on the home would be determined by utilizing Defendant Insurance Company's Boeckh residential cost guides and that the contents coverage would be one half of that amount.
6. That Defendant Chef fey thereafter went to the premises to determine the amount of coverage and by mistake and inadvertence miscalculated the number of rooms in the home and misapplied the Boeckh residential cost guide.
7. That Defendant Cheffey mistakenly and inadvertently determined coverage in the amount of $180,000.00 on the dwelling when the proper determination under Defendant Farm Bureau's residential cost guide would have provided replacement cost insurance in the amount of $270,000.00.
8. That on or about May 17, 2003, the insured home and its contents were totally destroyed by fire.
9. That Defendant, on May 15,2003, had issued its new declaration sheet and policy providing coverage for $180,000.00 replacement cost on the dwelling and $135,000.00 on the personal property in the home, but that Plaintiff was not provided with a copy of such policy and declaration sheet until many weeks thereafter nor was Plaintiff notified of the amount of replacement cost insurance on the dwelling prior to the loss.
10. That at the time of the fire Plaintiff and Defendant Farm Bureau had mutually agreed to fully insure Plaintiff s home for the full replacement cost thereof utilizing Defendant's Boeckh residential cost guide but through inadvertence and mistake the cost guide was misapplied resulting in coverage being issued in the amount of
$180,000.00
11. That Plaintiff has no adequate remedy at law.
WHEREFORE, Plaintiff prays the court to reform the insurance policy to insure the dwelling in the amount of $270,000.00.
COUNT II
COMES NOW Plaintiff and for Count II of his cause of action against Defendant Farm
Bureau and states, alleges, and avers as follows:
1. Plaintiff incorporates by reference as if set forth fully hereinafter the allegations of Count I as if set forth fully hereinafter.
2. That the dwelling and the personal property therein were totally destroyed by the fire.
3. That in addition Plaintiff has incurred additional living expenses, debris removal expenses, and loss to trees and shrubbery and Plaintiff requests that such damages be determined by the finder of fact.
4. That Plaintiff notified Defendant of the loss and has further complied with all conditions under said policy of insurance required by Defendant; further, Plaintiff has demanded payment of all sums due.
5. Defendant is now obligated to pay Plaintiff for the loss sustained; however, Defendant has failed and refused, and still fails and refuses to pay Plaintiff the sums due and owing under the policy; therefore, Plaintiff is entitled to damages in the amount of $270,000.00 for the dwelling, $135,000.00 for personal property, additional living expense, debris removal and damage to trees and shrubs as the jury may determine, interest at the rate of nine (9%) percent per annum, and for consequential damages.
WHEREFORE, Plaintiff prays for judgment against Defendant for $270,000.00 for the dwelling, $135,000.00 for personal property, additional living expense, debris removal and damage to trees and shrubs as the jury may determine, interest at the rate of nine (9 %) percent per annum, and for consequential damages.
COUNT III
COMES NOW Plaintiff, and for Count III of his Petition, states, alleges and avers as follows:
1. Plaintiff incorporates each allegation of Counts I and II hereof as if set forth fully herein.
2. Defendant's refusal to pay the loss sustained by Plaintiff is vexatious and without reasonable cause or excuse; hence, Plaintiff is entitled to damages in the amount of twenty (20%) percent of the first $1,500.00 due and owing Plaintiff and ten (10%) percent of the remaining amount due and owing Plaintiff, plus reasonable attorney's fees.
WHEREFORE, Plaintiff prays for judgment for vexatious penalties in the amount of twenty (20%) percent for the first $1,500.00 amount due and owing Plaintiff, ten (10%) percent of the remaining amount due and owing Plaintiff, for reasonable attorney's fees, and for his costs herein expended.
COUNT IV
COMES NOW Plaintiff, by and through his attorneys, in the alternative to the relief requested in Counts I, II, and III, and for Count IV of his Petition against Defendant Cheffey states, alleges, and avers as follows:
1. Plaintiff incorporates paragraphs 1,2, 4, and 5 of Count I and paragraphs 2,3, and 4, of Count II as if set forth fully herein.
2. Defendant Cheffey is an insurance agent licensed in the State of Missouri who undertook to procure for Plaintiff full replacement cost coverage for Plaintiff's dwelling.
3 Defendant Cheffey was under a duty to act as a reasonable and careful insurance
agent; he breached that duty by failing to properly inspect the Plaintiff's dwelling; by failing to determine the number of rooms contained in the dwelling; by failing to ascertain the entire square footage of the dwelling, improved and unimproved; by improperly and negligently applying the Boeclm residential cost guide factors to determine replacement cost of the dwelling; by failing to include in the coverage calculations all the rooms in the dwelling; by determining the replacement cost value of the dwelling on only part but not all of the structure; by failing to promptly advise Plaintiff of his determinations as to the replacement cost value of the dwelling.
4. As a direct and proximate result of the acts and failures to act of Defendant Cheffey Plaintiff's home was not insured to its full replacement cost value.
5. As a direct and proximate result of the acts and failures to act of Defendant Cheffey, Plaintiff was not advised that Defendant Cheffey had negligently underinsured his home in time thereafter to obtain other insurance to the full replacement cost or to correct the errors and omissions of Defendant Cheffey which resulted in underinsurance.
6. As a direct and proximate result of the acts and failures to act of Defendant Cheffey Plaintiff sustained uninsured and uncovered losses by fire to the extent of the difference between the insurance obtained, $180,000.00 and the true replacement cost value of the home and loss of additional coverage for debris removal.
7. The acts and failures to act of Defendant Cheffey described above constitute
breaches of his duty to Plaintiff and negligence and as a result thereof Plaintiff has been damaged.
8. As a direct and proximate result of the acts and failures to act of Defendant Cheffey described herein, Plaintiff has been forced to hire attorneys to bring the collateral litigation described in Count I and II in an effort to pursue and protect his interests.
WHEREFORE, Plaintiff prays for judgment against Defendant Cheffey for actual damages in a fair and reasonable amount, including reimbursement for reasonable attorney's fees, for Plaintiff's costs incurred herein, and for such other and further relief in favor of Plaintiff as the Court may deem appropriate.
COUNT V
COMES NOW Plaintiff, by and through his attorneys, in the alternative to the relief requested in Counts I, II, III and IV of his Petition, and for Count V thereof against Defendant Farm Bureau states, alleges, and avers as follows:
1. Plaintiff incorporates paragraphs 1,2, 4, and 5 of Count I, paragraphs 2,3, and 4, of Count II, and paragraphs 3, 4, 5, 6, 7 and 8 of Count IV as if set forth fully herein.
2. Defendant Cheffey is an insurance agent licensed by the state of Missouri who undertook to procure full replacement cost insurance on Plaintiff s home. At all times mentioned herein Defendant Cheffey was an employee and captive agent of Defendant Farm Bureau and all acts described herein were within the scope and course of such agency and undertaken with the knowledge of and for the financial benefit of Defendant Farm Bureau and were ratified by Defendant Farm Bureau.
WHEREFORE, Plaintiff prays for judgment against Defendant Farm Bureau for actual
damages in a fair and reasonable amount, including reimbursement for reasonable attorney's fees,
for Plaintiff's costs incurred herein, and for such other and further relief in favor of Plaintiff as
the Court may deem appropriate. HEARNE & PIVAC
By:
THOMAS H. HEARNE Missouri Bar No. 27596 HEARNE & PIV AC
2101 W. Chesterfield Blvd., Bldg. C PMB-91
Springfield, MO 65807 Telephone (417) 883-3399
Fax (417) 883-3996 ATTORNEY FOR PLAINTIFF

(Farm Bureaus answer)
IN THE CIRCUIT COURT OF CHRISTIAN COUNTY, MISSOURI
LYNN DRIVER,
Plaintiff,
vs.
FARM BUREAU TOWN AND COUNTRY INSURANCE COMPANY OF MISSOURI and KEVIN CHEFFEY
Defendant. 
Cause No.: 05CT-CV00085
DEFENDANT FARM BUREAU TOWN AND COUNTRY INSURANCE COMP ANY OF MISSOURI'S ANSWER TO PLAINTIFF'S PETITION
COMES NOW Defendant, Farm Bureau Town and Country Insurance Company of
Missouri ("Farm Bureau"), and for its Answer to Plaintiffs Petition, states the following:
COUNT I
1. A. Admit.
    B. Admit.
    C. Defendant Farm Bureau is without sufficient information to either admit
    or deny the allegation of Paragraph l, Subpart C of Plaintiff s Count I, and
    therefore denies the same.
2. Deny.
3. Deny.
4. Defendant Farm Bureau admits that Plaintiff contacted Ken Chef fey and
requested that the policy be converted from a builder's risk policy to a homeowner's policy.
Farm Bureau is without sufficient information to establish the exact date of said request, and
therefore denies the remaining allegations of Paragraph 4 of Plaintiff s Petition.
5. Deny.
6. Deny.
7. Deny.
8. Admit.
9. Deny.
10. Deny.
11. Deny.
AFFIRMATIVE DEFENSES
A. For further Answer and for its first Affirmative Defense, Defendant Farm Bureau
states that Plaintiff s Petition fails to state a claim against this Defendant upon which relief can be granted.
B. For further Answer and for its second Affirmative Defense, Defendant Farm
Bureau states that it issued full and final payment for all damages sustained as a result of the fire described in Plaintiff s Petition, and Plaintiff accepted and negotiated said payment, said tender of payment and negotiation of same thereby constituting an accord and satisfaction, and Plaintiff has otherwise waived any further claim for policy proceeds arising out of the claimed loss incident.
C. For further Answer and for its third Affirmative Defense, Defendant Farm Bureau
states that reformation of the insurance contract in this matter is improper because there was no mutual mistake regarding the amount or type of coverage specified in the insurance policy in this matter, that the Plaintiff negotiated for, and was informed regarding, the amount and type of coverage in the insurance policy, and therefore accepted said coverage, the policy limits of which have been paid by Defendant in this matter.
SET-OFF
As the result of the fire set out in Plaintiffs Petition, Defendant Farm Bureau has made payments to the Plaintiff on the property, and its contents, in the amount of two hundred fifty five thousand, nine hundred seventy four dollars and fifty two cents ($255,974.52), and may become obligated to make payment to third parties such as mortgages or lienholders. As such, Defendant Farm Bureau is entitled to, and specifically pleads for a set-off against any judgment in favor of Plaintiff in the amount of its payment to Plaintiff of two hundred fifty five thousand, nine hundred seventy four dollars and fifty two cents ($255,974.52), and of any payments to third parties such as mortgages or lienholders which may become necessary.
Further pleading, Defendant Farm Bureau states that if this Court allows reformation of the insurance contract, that under said reformed contract Farm Bureau would be owed amounts comprising additional insurance premium payments, and Farm Bureau would be entitled to, and specifically pleads for a set-of against any judgment in favor of Plaintiff in the amount of such additional premiums.
WHEREFORE, Defendant Farm Bureau prays to this court to dismiss Plaintiffs Petition with prejudice, for its costs herein expended, and for such other and further relief as the Court deems just and proper under the circumstances.
COUNT II
1. Defendant Farm Bureau restates and incorporates by reference herein each of its
Answers to the allegation contained in Count I of Plaintiff s Petition.
2. Deny.
3. Defendant Farm Bureau has insufficient information to either confirm or deny the
allegations contained in Paragraph 3 of Plaintiff s Count II, and therefore denies same.
4. Deny.
5. Deny.
AFFIRMATIVE DEFENSES
A. For further Answer and for its first Affirmative Defense, Defendant Farm Bureau
states that Plaintiff s Petition fails to state a claim against this Defendant upon which relief can be granted.
B. For further Answer and for its second Affirmative Defense, Defendant Farm
Bureau states that it issued full and final payment for all damages sustained as a result of the fire described in Plaintiff s Petition, and Plaintiff accepted and negotiated said payment, said tender of payment and negotiation of same thereby constituting an accord and satisfaction, and Plaintiff has otherwise waived any further claim for policy proceeds arising out of the claimed loss incident.
C. For further Answer and for its third Affirmative Defense, Defendant Farm Bureau
states that reformation of the insurance contract in this matter is improper because there was no mutual mistake regarding the amount or type of coverage specified in the insurance policy in this matter, that the Plaintiff negotiated for, and was informed regarding, the amount and type of coverage in the insurance policy, and therefore accepted said coverage, the policy limits of which have been paid by Defendant in this matter.
SET-OFF
As the result of the fire set out in Plaintiffs Petition, Defendant Farm Bureau has made payments to the Plaintiff on the property, and its contents, in the amount of two hundred fifty five thousand, nine hundred seventy four dollars and fifty two cents ($255,974.52), and may become obligated to make payment to third parties such as mortgages or lienholders. As such, Defendant Farm Bureau is entitled to, and specifically pleads for a set-off against any judgment in favor of Plaintiff in the amount of its payment to Plaintiff of two hundred fifty five thousand, nine hundred seventy four dollars and fifty two cents ($255,974.52), and of any payments to third parties such as mortgages or lienholders which may become necessary.
WHEREFORE, Defendant Farm Bureau prays to this court to dismiss Plaintiffs Petition with prejudice, for its costs herein expended, and for such other and further relief as the Court deems just and proper under the circumstances.
COUNT III
1. Defendant restates and incorporates by reference herein each of its Answers to the
allegations contained in Counts I and II of Plaintiff s Petition.
2. Deny.
AFFIRMATIVE DEFENSES
A. For further Answer and for its first Affirmative Defense, Defendant Farm Bureau
states that Plaintiff s Petition fails to state a claim against this Defendant upon which relief can be granted.
B. For further Answer and for its second Affirmative Defense, Defendant Farm
Bureau states that it issued full and final payment for all damages sustained as a result of the fire described in Plaintiffs Petition, and Plaintiff accepted and negotiated said payment, said tender of payment and negotiation of same thereby constituting an accord and satisfaction, and Plaintiff has otherwise waived any further claim for policy proceeds arising out of the claimed loss incident
C. For further Answer and for its third Affirmative Defense, Defendant Farm Bureau
states that reformation of the insurance contract in this matter is improper because there was no mutual mistake regarding the amount or type of coverage specified in the insurance policy in this matter, that the Plaintiff negotiated for, and was informed regarding, the amount and type of coverage in the insurance policy, and therefore accepted said coverage, the policy limits of which have been paid by Defendant in this matter.
SET-OFF
As the result of the fire set out in Plaintiffs Petition, Defendant Farm Bureau has made payments to the Plaintiff on the property, and its contents, in the amount of two hundred fifty five thousand, nine hundred seventy four dollars and fifty two cents ($255,974.52), and may become obligated to make payment to third parties such as mortgages or lienholders. As such, Defendant Farm Bureau is entitled to, and specifically pleads for a set-off against any judgment in favor of Plaintiff in the amount of its payment to Plaintiff of two hundred fifty five thousand, nine hundred seventy four dollars and fifty two cents ($255,974.52), and of any payments to third parties such as mortgages or lienholders which may become necessary.
WHEREFORE, Defendant Farm Bureau prays to this court to dismiss Plaintiffs Petition with prejudice, for its costs herein expended, and for such other and further relief as the Court deems just and proper under the circumstances.
COUNT IV
1. Defendant restates and incorporates by reference herein each of its Answers to the
allegations contained in Counts I, II and III of Plaintiff s Petition.
2. Defendant Farm Bureau makes no Answer to Count IV of Plaintiffs Petition, as
said Count IV pleads allegations against Defendant Kevin Cheffey only, and Defendant Farm
Bureau notes that Defendant Kevin Chef fey has responded separately to Plaintiffs Petition with his Motion to Dismiss Individual Defendant, Kevin Chef fey. To the extent that Count IV of Plaintiffs Petition makes any allegations against Defendant Farm Bureau, those allegations are denied.
3. Defendant Farm Bureau makes no Answer to Count IV of Plaintiffs Petition, as
said Count IV pleads allegations against Defendant Kevin Cheffey only, and Defendant Farm Bureau notes that Defendant Kevin Cheffey has responded separately to Plaintiff s Petition with his Motion to Dismiss Individual Defendant, Kevin Cheffey. To the extent that Count IV of Plaintiffs Petition makes any allegations against Defendant Farm Bureau, those allegations are denied.
4. Defendant Farm Bureau makes no Answer to Count IV of Plaintiffs Petition, as
said Count IV pleads allegations against Defendant Kevin Cheffey only, and Defendant Farm Bureau notes that Defendant Kevin Cheffey has responded separately to Plaintiff s Petition with his Motion to Dismiss Individual Defendant, Kevin Cheffey. To the extent that Count IV of Plaintiffs Petition makes any allegations against Defendant Farm Bureau, those allegations are denied.
5. Defendant Farm Bureau makes no Answer to Count IV of Plaintiffs Petition, as
said Count IV pleads allegations against Defendant Kevin Chef fey only, and Defendant Farm Bureau notes that Defendant Kevin Cheffey has responded separately to Plaintiffs Petition with his Motion to Dismiss Individual Defendant, Kevin Chef fey. To the extent that Count IV of Plaintiffs Petition makes any allegations against Defendant Farm Bureau, those allegations are denied.
6. Defendant Farm Bureau makes no Answer to Count IV of Plaintiff's Petition, as
said Count pleads allegations against Defendant Kevin Chef fey only, and Defendant Farm Bureau notes that Defendant Kevin Cheffey has responded separately to Plaintiff's Petition with his Motion to Dismiss Individual Defendant, Kevin Cheffey. To the extent that Count IV of Plaintiff's Petition makes any allegations against Defendant Farm Bureau, those allegations are denied.
7. Defendant Farm Bureau makes no Answer to Count IV of Plaintiff's Petition, as
said Count pleads allegations against Defendant Kevin Cheffey only, and Defendant Farm Bureau notes that Defendant Kevin Cheffey has responded separately to Plaintiff's Petition with his Motion to Dismiss Individual Defendant, Kevin Cheffey. To the extent that Count IV of Plaintiffs Petition makes any allegations against Defendant Farm Bureau, those allegations are denied.
8. Defendant Farm Bureau makes no Answer to Count IV of Plaintiff's Petition, as
said Count pleads allegations against Defendant Kevin Cheffey only, and Defendant Farm Bureau notes that Defendant Kevin Cheffey has responded separately to Plaintiff's Petition with his Motion to Dismiss Individual Defendant, Kevin Cheffey. To the extent that Count N of Plaintiffs Petition makes any allegations against Defendant Farm Bureau, those allegations are denied.
COUNT V
1. Defendant Farm Bureau restates and incorporates by reference herein each of its
Answers to the allegations contained in Counts I, II, III and IV of Plaintiff's Petition.
2. Defendant admits that Kevin Cheffey is an insurance agent licensed by the State
of Missouri who undertook to procure insurance coverage for Plaintiff's dwelling, and that
Cheffey was an employee and captive agent of Defendant Farm Bureau during all relevant times herein, Defendant denies the remaining allegations of Paragraph 2, Count V of Plaintiff s Petition.
AFFIRMATIVE DEFENSES
A. For further Answer and for its first Affirmative Defense, Defendant Farm Bureau
states that Plaintiff s Petition fails to state a claim against this Defendant upon which relief can be granted.
B. For further Answer and for its second Affirmative Defense, Defendant Farm
Bureau states that it issued full and final payment for all damages sustained as a result of the fire described in Plaintiff s Petition, and Plaintiff accepted and negotiated said payment, said tender of payment and negotiation of same thereby constituting an accord and satisfaction, and Plaintiff has otherwise waived any further claim for policy proceeds arising out of the claimed loss incident.
C. For further Answer and for its third Affirmative Defense, Defendant Farm Bureau
states that reformation of the insurance contract in this matter is improper because there was no mutual mistake regarding the amount or type of coverage specified in the insurance policy in this matter, that the Plaintiff negotiated for, and was informed regarding, the amount and type of coverage in the insurance policy, and therefore accepted said coverage, the policy limits of which have been paid by Defendant in this matter.
SET-OFF
As the result of the fire set out in Plaintiffs Petition, Defendant Farm Bureau has made payments to the Plaintiff on the property, and its contents, in the amount of two hundred fifty five thousand, nine hundred seventy four dollars and fifty two cents ($255,974.52), and may
become obligated to make payment to third parties such as mortgages or lienholders. As such,
Defendant Farm Bureau is entitled to, and specifically pleads for a set-off against any judgment
in favor of Plaintiff in the amount of its payment to Plaintiff of two hundred fifty five thousand,
nine hundred seventy four dollars and fifty two cents ($255,974.52), and of any payments to
third parties such as mortgages or lienholders which may become necessary.
WHEREFORE, Defendant Farm Bureau prays to this court to dismiss Plaintiff's Petition
with prejudice, for its costs herein expended, and for such other and further relief as the Court
deems just and proper under the circumstances.
Robert L. Brady, #47522 BROWN & JAMES, P.C. 1010 Market St., 20th Floor St. Louis, MO 63101 314-421-3400* 314-421-3128-Fax