IN THE CIRCUIT COURT OF BARTON COUNTY, MISSOURI
STEVEN EMMERSON,
Plaintiff,
v.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
Defendant.
PETITION
Comes now Steven Emmerson, plaintiff and for the plaintiffs cause of action against defendant states as follows:
1. Plaintiff is a citizen and resident of Barton County, State of Missouri.
2. Defendant is an insurance corporation duly authorized and licensed to do business as an insurance company in the State of Missouri, and maintains an office or agent for the transaction of its usual and customary business in Barton County, State of Missouri. Defendant issues its policies of insurance and has agents for .the conduct of its business, and the loss occurred in Barton County, Missouri. Venue is proper in this circuit/county pursuant to V.A.M.S. § 508.040.
3. At all times relevant hereto, plaintiff was the owner and/or had a special property interest in, and the right to use and possession of a single family residence located in Barton County, known and numbered as 376 North West 90th Road, Sheldon, Missouri 64784.
4. On or about March 23rd, 2005, plaintiff, for money paid, was the named insured ofthe residence known and numbered as 376 North West 90th Road, Sheldon, Missouri 64784, under a policy of insurance No. PRO 0016057 issued by defendant, insuring against theft loss. A copy of the policy is attached hereto as Exhibit A, and incorporated herein by reference.
5. On or about June 8th 2005, while the policy described in paragraph 4 remained in full force and effect, plaintiffs residential premises were broken into, burglarized, and property stolen. Attached hereto and made apart hereof marked as Exhibit "B" is a copy of the proof of loss filed with defendant insurance company listing all items of personal property of
plaintiff that was stolen on or about June 8th, 2005. The damage and loss to plaintiffs
premises is within the coverage of the policy described in paragraph 4
6. As a direct and proximate result of the aforementioned, premise break in, burglary, and property theft plaintiff suffered damages in the sum of $38,033.84 in personal contents theft loss, and other amounts as may be reasonably due and payable to plaintiff under the terms of the policy. Defendant's agent or employee, Rodney Burk, recovered $6,262.99 of Plaintiff's property set out in Exhibit "COO and incorporated herein by reference.
7. Plaintiff made a report of the loss and a proof of loss to defendant, and has complied with all conditions precedent pursuant to the policy described in paragraph 4.
8. On or about, March 2nd, 2006, defendant denied liability for the loss, for the stated reason that plaintiff knew who the thieves were. A copy of the letter denying coverage is attached hereto as Exhibit "D" and incorporated herein by reference.
9. Defendant's denial ofliability was without just cause or excuse, was umeasonable as the facts would appear to a reasonable person at the time, was based on incorrect reasons, and the matters alleged for denial of coverage were immaterial and were not in fact relied on by defendant in denying coverage.
10. Despite repeated demands, defendant has failed and refused to pay plaintiffs covered losses, in breach of the policy and to plaintiffs injury.
11. Defendant's refusal and delay are unreasonable, vexatious, and without reasonable cause and, therefore, pursuant to V.A.M.S. ~ 375.296 and Y.A.M.S. ~ 375.420, as amended, defendant is liable for interest from and after the date of the submission of claim, penalties as provided by statute, costs of suit, and reasonable attorney's fees for vexatious refusal to pay. To date, plaintiff has incurred attorney's fees in the sum of$12,708.34, and will continue to incur such fees until this action is concluded.
WHEREFORE, plaintiff prays for judgment against Insurance Company in the sum of money to fairly and adequately compensate plaintiff for his theft loss, together with prejudgment interest and interest at the legal rate, statutory penalties for vexatious refusal to pay, attorney's fees, the costs of this action, and for such other and further relief as the court shall deem proper.
Nicholas L Swischer
Attorneys for the Plaintiff
110 North Cedar Street
P.O. Box 565
Nevada, MO 64772
Telephone: 417-667-3091 Fax: 417-667-4474
(Farm Bureaus answer)
IN THE CIRCUIT COURT OF THE COUNTY OF STATE OF MISSOURI
STEVEN EMMERSON,
Plaintiff,
v. FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
Defendant.
Cause No. 06B4CV00298
DEFENDANT FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI'S ANSWER TO PLAINTIFF'S PETITION
COMES NOW Defendant, Farm Bureau Town & Country Insurance Company of
Missouri, and for its Answer to Plaintiffs Petition, states the following:
1. Defendant is without sufficient information to admit or deny the allegations in
paragraph 1 of plaintiff s Petition and therefore denies the same.
2. Defendant admits that it is an insurance company duly authorized to do business
in the State of Missouri. Defendant denies each and every remaining allegation in paragraph 2 of
plaintiff s Petition.
3. Defendant is without sufficient information to admit or deny the allegations
contained in paragraph 3 of plaintiffs Petition and therefore denies the same.
4. Defendant admits that it issued a policy of insurance to plaintiff having policy
number PRO 0016057 and a policy period of March 23, 2005 to March 23, 2006. Defendant
denies each and every remaining allegation in paragraph 4 of plaintiff s Petition.
5. Denied.
6. Defendant admits that Mr. Burk recovered certain personal property items.
Defendant denies each and every remaining allegation contained in paragraph 6 of plaintiff's Petition.
7. Denied.
8. Denied.
9. Denied.
10. Denied.
II. Denied.
AFFIRMATIVE DEFENSES
A. For further answer and for its first affirmative defense, defendant 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 states that the
plaintiff has failed to serve defendant Farm Bureau with proper service of process. Service was made by the sheriff upon Pam Kruse, who is the wife of Farm Bureau President Charles Kruse. The plaintiff's attempt at service is invalid both as to the sufficiency of process and improper service of process.
C. For further answer and for its third affirmative defense, defendant states there is
no coverage and plaintiff is barred from recovery under the policy because there was no "theft" of personal property as contemplated by the policy of insurance. Specifically, the claimed personal property was removed from the home by individuals who were either plaintiff's friends and/or individuals with whom he was engaged in illegal drug activity. Much of the personal property was retuned to plaintiff by these individuals. In addition, these individuals claim that
the remainder of the personal property is rightfully theirs. Thus, this would constitute a civil
dispute between plaintiff and these individuals, not a theft as contemplated by the policy.
D. For further answer and for its fourth affirmative defense, defendant states there is
no coverage and plaintiff is barred from recovery under the policy because the plaintiff refused
to cooperate with defendant during the claim investigation. Specifically, plaintiff refused to
answer all of defendant's questions during his examination under oath. As such, plaintiff
breached the following conditions contained in the policy of insurance:
CONDITIONS - SECTION I
1. WHAT YOU MUST DO IN CASE OF LOSS If a covered loss occurs, the insured must:
f. Submit to examinations under oath by any person named by us and sign the transcript of the examinations.
GENERAL POLICY CONDITIONS APPLYING TO SECTION I AND SECTION II
10. COOPERATION
You must cooperate with us in performing all acts required by this policy.
WHEREFORE, having answered Plaintiffs Petition, defendant prays to be dismissed
with prejudice, for its costs herein expended, and for such other and further relief as this Court
deems just and proper under the circumstances.
Robert L. Brady, #47522 BROWN & JAMES, 1010 Market Street, 20th Floor St. Louis, Missouri 63101 (314) 421-0000
(314) 421-0000 Facsimile
rbrady@bjpc.com Attorneys for Defendant
CERTIFICATE OF SERVICE
A copy of the foregoing was sent, via first-class mail, postage prepaid, this SIXTH day of March 2007 to: Nicholas L. Swischer, SWISCHER LAW OFFICE, 110 N Cedar Street, P.O. Box 565, Nevada, Missouri 64772-0565, Attorney for Insured/Plaintiff Steve Emmerson; Chris Hoberock, EWING & HOBEROCK, 123 North Main Street, Nevada, MO 64772, Co-counselfor Defendant Farm Bureau.
(court actions filed in this case)
28th Judicial Circuit (Barton, Cedar, Dade & Vernon Counties)
06B4-CV00298 - STEVEN EMMERSON V FARM BUREAU TOWN & COUNTRY
This information is provided as a service and is not considered an official court record.
Displaying 1 thru 20 of 20 dockets returned for case 06B4-CV00298.
06/22/2006 Docket Entry: Pet Filed in Circuit Ct
Docket Entry: Mot for Production of Docs
Text: to Dft. gs
06/28/2006 Docket Entry: Summons Issued-Circuit
Text: Document ID: 06-SMCC-311, for FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI; Sent to Cole Cty SO for service of Dft. gs
07/18/2006 Docket Entry: Serv Upon St Dept Insurance
Text: Document ID - 06-SMCC-311; Served To - FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI; Server - SO COLE COUNTY-JEFFERSON CITY; Served Date - 12-JUL-06; Served Time - 00:00:00; Service Type - Sheriff Department; Reason Description - Served
07/20/2006 Docket Entry: Request for Alias Summons
Text: Notice of Rejection and request for alias summons received from Atty Swischer. gs
07/25/2006 Docket Entry: Summons Issued-Circuit
Text: Document ID: 06-SMCC-371, for FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI; Sent to Stoddard Cty SO for service of Dft.. gs
08/24/2006 Docket Entry: Member of Family Served
Text: Document ID - 06-SMCC-371; Served To - FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI; Server - SO STODDARD COUNTY-BLOOMFIELD; Served Date - 11-AUG-06; Served Time - 00:00:00; Service Type - Sheriff Department; Reason Description - Served
03/07/2007 Docket Entry: Notice of Dismissal
Text: Copies sent to Atty Swischer and Mr. Kruse, President, for Dft. ans
Docket Entry: Case Review Scheduled
Associated Docket Entries: 03/12/2007 - Hearing/Trial Cancelled
Associated Events: 05/21/2007 , 16:30:00 - Case Review
Docket Entry: Entry of Appearance Filed
Filing Party: BRADY, ROBERT L
Docket Entry: Answer Filed
Filing Party: BRADY, ROBERT L
03/09/2007 Docket Entry: Motion to Shorten Time
Filing Party: SWISCHER, NICHOLAS L
Docket Entry: Motion to Reinstate
Filing Party: SWISCHER, NICHOLAS L
Docket Entry: Notice
Text: on Plaintiff's Motion To Shorten Time and Plaintiff's Motion to reinstate Case, filed. Case set for hearing March 12, 2007, at 1:00 p.m. Court notes Attorney Brady and Hoberock notified. jbm
Filing Party: SWISCHER, NICHOLAS L
Docket Entry: Hearing Scheduled
Associated Docket Entries: 03/12/2007 - Hearing Held
Plaintiff appears by Atty Nick Swischer, Defendant appears by Atty Hoberock. Case reinstated to active docket. Defendant's answer shown filed with leave to file out of time. JRB ans
Associated Events: 03/12/2007 , 13:00:00 - Hearing
03/12/2007 Docket Entry: Hearing Held
Text: Plaintiff appears by Atty Nick Swischer, Defendant appears by Atty Hoberock. Case reinstated to active docket. Defendant's answer shown filed with leave to file out of time. JRB ans
Associated Docket Entries: 03/09/2007 - Hearing Scheduled
Associated Events: 03/12/2007 , 13:00:00 - Hearing
Docket Entry: Hearing/Trial Cancelled
Associated Docket Entries: 03/07/2007 - Case Review Scheduled
Associated Events: 05/21/2007 , 16:30:00 - Case Review
Docket Entry: Entry of Appearance Filed
Text: Chris Hoberock's Entry of Appearance as Co-Counsel on behalf of Defendant, filed. jbm
Filing Party: HOBEROCK, CHRISTOPHER
04/03/2007 Docket Entry: Judge/Clerk - Note
Text: Notice of Placement on Dismissal Docket to Dft returned by USPS for additional address information. Information obtained and notice placed in mail for delivery to Dft 4-16-07. gs
04/24/2007 Docket Entry: Certificate of Service
Filing Party: SWISCHER, NICHOLAS L
Displaying 1 thru 20 of 20 dockets returned for case 06B4-CV00298.
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