(Marsha Koski's Petition) IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT INDEPENDENCE
MARSHA KOSKI, 615 McCabe Street Pender, Nebraska 68047 Filed 10/23/2006
Plaintiff,
VS.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI
Room 630, Truman State Office Building Jefferson City, Missouri 65102
AND
BATTLE CREEK MUTUAL INSURANCE COMPANY
Please serve Registered Agent:
Victoria J. Ashker 603 S. Preece
Battle Creek, Nebraska 68715
Defendants.
Case No. 0616-CV26661
Division 5
FIRST AMENDED PETITION FOR DAMAGES
COMES NOW the Plaintiff, Marsha Koski, by and through undersigned counsel, and for her causes of action against the above-named Defendants states as follows:
1. Plaintiff, Marsha Koski, states that she is a resident of Pender, Nebraska.
2. Defendant, Farm Bureau Town & Country Insurance Company of Missouri (hereinafter "Defendant Farm Bureau") at all times mentioned herein was a foreign corporation doing business in Missouri.
3. Defendant, Battle Creek Mutual Insurance Company (hereinafter "Defendant Battle Creek") at all times mentioned herein was a foreign corporation doing business in Missouri. Its place of incorporation is in Nebraska; therefore, there is no diversity of citizenship and removal is improper.
4. That Defendant Farm Bureau and Defendant Battle Creek both maintain an office or an agent for the transaction of its usual and customary business in Independence, Jackson County, Missouri. As such, jurisdiction and venue are proper in Independence, Jackson County, Missouri.
5. Pursuant to Mo. Rev. Stat. §375.096, Defendants maybe served through the Commissioner of Insurance for the State of Missouri.
COUNT I-BREACH OF CONTRACT
6. Marsha Koski repeats and realleges the general allegations contained in paragraphs 1 through 5 and incorporates them by reference herein.
7. That on or before the 12th day of October, 2002, Defendant Farm Bureau issued a policy of insurance to Theresa Koski, policy number APV026I 06002. See Certificate of Coverage, attached as Exhibit "A."
8. That on or about the 12th day of October, 2002, Plaintiff, Marsha Koski was a passenger in a 2001 Chevy Malibu being operated by Theresa Koski. Said vehicle was traveling north on Broadway in Oak Grove, Jackson County, Missouri.
9. At about said time and place, Juli Marie Chapman was operating a 1994 Chevrolet S10 north on Broadway directly behind the vehicle Marsha Koski was in with such speed that Juli Marie Chapman was unable to take evasive action to avoid a collision between the vehicle Marsha Koski was in and Defendant's vehicle.
10. Specifically, Juli Marie Chapman struck the rear of the car Marsha Koski was riding in.
11. That on or about October 12,2002, Broadway and Interstate 70 were public streets in Oak Grove, Jackson County, Missouri. That at said time and place, Juli Marie Chapman, as the driver of a motor vehicle on a Missouri public highway, owed a duty to exercise the highest degree of care with regard to all other motorists and their passengers.
12. That at said time and place, the Juli Marie Chapman drove her vehicle so carelessly and negligently as to allow the same to come into violent collision with the vehicle being occupied by Plaintiff, Marcia Koski, proximately and directly causing Plaintiff s injuries as hereinafter stated.
13. That Juli Marie Chapman breached her duty of care and was negligent and careless in one or more of the following respects:
(a) In failing to keep a careful and vigilant lookout for other motor vehicles;
(b) In having her vehicle come into collision with the rear of the Plaintiff s vehicle;
(c) In failing to take proper precautions and measures to protect against the possibility of a collision;
(d) In failing to swerve, turn, or take evasive action to avoid said collision once she
knew, or by using the highest degree of care should have known, that there was a reasonable likelihood of a collision;
(e) In driving at an excessive speed under the circumstances then and there existing;
(f) In failing to keep the motor vehicle that she was operating under proper control; and
(g) In following the vehicle in front of her too closely.
14. That as a direct and proximate result ofthe negligence of Juli Marie Chapman, Plaintiff was caused serious, permanent, and progressive injuries to her person, including:
a. her neck;
b. her back and
c. her shoulders & arms.
15. That as a direct and proximate result of the aforementioned careless and negligent acts and omissions on the part of Juli Marie Chapman, Marcia Koski has incurred substantial expenses relating to her medical care and treatment, was unable to work for a period of time and has had loss of income. In addition, Marcia Koski experienced a diminished enjoyment oflife, pain and suffering, and will in the future continue to incur medical and other health care expenses, further loss of wages, great physical pain and
diminished enjoyment of life, all of which Marcia Koski would not have otherwise incurred, lost or experienced but for the injuries she suffered as a result of Juli Marie Chapman's negligence.
16. That Defendant Farm Bureau, in the above-referenced policy of insurance provided certain coverage, including protection against underinsured motorists in the amount of $100,000.00 per a person. That Defendant Farm Bureau agreed in its insurance policy to pay such damages for bodily injury which Plaintiff is entitled to collect and recover from the operator of an underinsured vehicle.
17. That Juli Marie Chapman has paid her $25,000.00 policy limit to Marcia Koski.
18. That Plaintiff Marcia Koski has made demand upon Defendant Farm Bureau for payment of the policy limits of$100,000.00.
19. That Defendant Farm Bureau has failed and refused to pay said sum.
20. That the refusal of Defendant Farm Bureau to pay such claim is without reasonable cause or excuse.
WHEREFORE, Plaintiff Marcia Koski respectfully prays that this Court enter a judgment in her favor and against Defendant Farm Bureau in an amount that is fair and reasonable. In addition, Plaintiff respectfully prays that this Court further order costs, other expenses incurred in connection with this cause and any other and further relief this Court deems just and proper.
COUNT II - VEXATIOUS REFUSAL TO PAY
21. Marcia Koski repeats and realleges the allegations contained in paragraphs 1 through 20 and incorporates them by reference herein.
22. That Defendant Farm Bureau has failed and refused to satisfy the claim made under the above-referenced policy, and that Defendant Farm Bureau has refused to pay the loss of Plaintiff without reasonable cause and excuse and that, pursuant to the terms of Mo. Rev. Stat. §375.420, Plaintiff is entitled to additional damages equal to 20% of the first One Thousand Five Hundred and Noll 00 Dollars ($1,500.00) of her loss, 10% of the amount of her loss in excess of One Thousand Five Hundred and Noll 00 Dollars ($1,500.00), and reasonable attorney's fees.
WHEREFORE, Plaintiff Marcia Koski prays for additional damages against Defendant Farm Bureau pursuant to the terms of Mo. Rev. Stat. §375.420 for an amount equal to 20% of the first One Thousand Five Hundred and No/100 Dollars ($1,500.00) of damages, additional damages equal to 10% of her loss in excess of One Thousand Five Hundred and No/100 Dollars ($1,500.00), and reasonable attorney's fees; Plaintiff further prays that the cost of this action be assessed against Defendant Farm Bureau, and for such further relief as the Court deems just and proper.
DOUGLAS R. HORN, LAURIE DEL PERCIO
19049 East Valley View Parkway, Suite J Independence, Missouri 64055 Telephone: (816) 795-7500
Facsimile: (816) 795-7881 ATTORNEYS FOR PLAINTIFF
(Farm Bureaus Answer)
Not yet filed, a good example of only one of Farm Bureaus many delaying tactics. (It's now been filed as of 1/18/2007)
IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT INDEPENDENCE
MARSHA KOSKI
Plaintiff, )
v.
FARM BUREAU TOWN AND COUNTRY INSURANCE COMP ANY
Defendants.
Case No. 0616-CV26661
ANSWER OF DEFENDANT FARM BUREAU TOWN AND COUNTRY INSURANCE COMPANY OF MISSOURI TO PLAINTIFF'S FIRST AMENDED PETITION FOR DAMAGES
COMES NOW Defendant Farm Bureau Town and Country Insurance Company
of Missouri ("Farm Bureau"), by and through its attorneys of record, and for its Answer
to Plaintiff's First Amended Petition for Damages states as follows:
General Allegations
I. Defendant Farm Bureau is without sufficient knowledge or information to
admit or deny the allegations and averments made and contained in ~~ 1, 3, 4, and 5 of
Plaintiff s First Amended Petition for Damages and therefore denies same.
2. Defendant Farm Bureau denies the allegations and averments made and
contained in ~ 2 of Plaintiffs First Amended Petition for Damages.
Count I - Breach of Contract
3. With regard to ~ 6 of Plaintiff s First Amended Petition for Damages,
Defendant Farm Bureau incorporates herein by reference its previous responses as if fully
set forth herein.
4. Defendant Farm Bureau admits ~ 7 of Plaintiffs First Amended Petition
for Damages.
5. Defendant Farm Bureau is without sufficient knowledge or information to
admit or deny the allegations and averments made and contained in ~~ 8, 9, 10, 11, 12,
13, 14, 15, and 17 ofPlaintitT's First Amended Petition for Damages and therefore denies
same.
6. Defendant Farm Bureau denies the allegations and averments made and
contained in ~~ 16, 18, 19, and 20 of Plaintiffs First Amended Petition for Damages.
Count II - Vexatious Refusal to Pay
7. With regard to ~ 21 of Plaintiff s First Amended Petition for Damages,
Defendant Farm Bureau incorporates herein by reference its previous responses as if fully
set forth herein.
8. Defendant Farm Bureau denies the allegations and averments made and
contained in ~ 22 of Plaintiffs First Amended Petition for Damages.
Counts ill & IV - Breach of Contract and Vexatious Refusal to Pay as to Defendant Battle Creek Mutual Insurance Company
9. The allegations and averments contained in ~~ 23, 24, 25, 26, 27, 28, 29,
30, 31, 32, 33, 34, 35, 36, 37 and 38 of Plaintiffs First Amended Petition for Damages do
not purport to relate to or make a claim against Defendant Farm Bureau, and thus no
response is required. To the extent a response could be required, all of these allegations
are denied.
AFFIRMA TIVE DEFENSES TO ALL COUNTS
10. In answer to Plaintiffs First Amended Petition for Damages and by way
of affirmative defense, Defendant Farm Bureau states Plaintiff s First Amended Petition
for Damages fails to state a cause of action upon which relief can be granted and fails to state facts sufficient to constitute a cause of action against Defendant Farm Bureau, so the same should be dismissed.
Drop Down / Set-ofT Provisions of Farm Bureau Policy
11. For further answer to Plaintiff s First Amended Petition for Damages, and
by way of affirmative defense, Defendant Farm Bureau states Plaintiff's First Amended Petition for Damages should be dismissed and/or any recovery limited based on the provisions of the contract of insurance with Defendant Farm Bureau, specifically, the "drop down limit" provision in the policy which, because Plaintiff is not a "named insured" or "family member" as defined in the policy (see "Definitions" section), provides underinsured motorist coverage limited at $50,000.00 per person (see "Limit of Liability" in the "Underinsured Motorists" section, subparagraph G) and further subject to the "set-off' provision in the policy which provides Defendant Farm Bureau a credit or "set-off' from the $50,000 per person limit of underinsured motorists coverage for the $25,000.00 in insurance coverage paid on behalf of the tortfeasor, Juli Marie Chapman (see "Limit of Liability" in the "Underinsured Motorists" section, subparagraphs D and E). Thus, as set forth above in 11, the maximum limit of potential underinsured motorist insurance from Defendant Farm Bureau would be $25,000.00.
Vexatious Refusal to Pay
12. In further answer to Plaintiff's First Amended Petition for Damages and
by way of affirmative defense, Defendant Farm Bureau states that a good faith controversy exists between Plaintiff and Defendant as to the nature and extent of Plai ntiff s alleged damages and Plaintiff s interpretation of the contracts of insurance at
issue in this matter and, therefore, Plaintiff is not entitled to vexatious delay penalties or attorney's fees.
13. For further answer to Plaintiffs First Amended Petition for Damages,
Defendant Farm Bureau states that Defendant Farm Bureau did not act willfully and without reasonable cause, as the facts would appear to a reasonable and prudent person, with regard to Plaintiff's alleged damages as they relate to the contract of insurance at
issue.
14. For further answer to Plaintiffs First Amended Petition for Damages,
Defendant Farm Bureau states that Defendant Farm Bureau did not act in contravention
ofR.S.Mo. §§ 375.296 and 375.420.
Other Defenses and Matters of Avoidance
15. In further answer to Plaintiff's First Amended Petition for Damages and
by way of affirmative defense, Defendant Farm Bureau alleges and states that Plaintiff s injuries and/or damages, if any, said injuries and/or damages being specifically denied, were the direct and/or proximate result of the acts and/or omissions of third parties over which Defendant Farm Bureau had no control such that the principles of comparative and/or contributory fault and/or negligence should be applied to deny or diminish any recovery by Plaintiff against Defendant Farm Bureau.
16. In further answer to Plaintiffs First Amended Petition for Damages and by
way of affirmative defense, Defendant Farm Bureau alleges and states Plaintiffs damages, all such damages being denied, should be reduced based on Plaintiffs failure to mitigate damages.
17. In further answer to Plaintiff's First Amended Petition for Damages and
by way of affirmative defense, Defendant Farm Bureau states Plaintiff's First Amended Petition for Damages should be dismissed and/or any recovery limited based on the provisions of the contract of insurance and/or Plaintiff's failure to comply with the declaration, deductibles, definitions, terms, conditions and exclusions contained in the contract of insurance at issue in this case.
18. For further answer to Plaintiffs First Amended Petition for Damages,
Defendant Farm Bureau states that Defendant Farm Bureau has complied with all requirements under the contract of insurance at issue in this case.
19. Defendant Farm Bureau reserves the right to assert any additional
affirmative defenses and matters of avoidance which may be identified through the course of discovery.
20. For other and further answer and defense to Plaintiff's First Amended
Petition for Damages, Defendant Farm Bureau incorporates by reference the affirmative defenses of any other defendant.
WHEREFORE, based upon the above and foregoing, Defendant Farm Bureau respectfully prays to be henceforth dismissed, awarded its costs and expenses herein incurred and expended, together with such other relief as this Court deems just and appropriate.
Respectfully submitted,
SHERMAN TAFF BANGERT HOMAS & CORONAOO, P.C.
JACK T. BANGERT, KEVIN D. BROOKS 2890 City Center Square
1100 Main Street
P.O. Box 26530
Kansas City, Missouri 64196
Telephone: (816) 471-6900
Facsimile: (816) 474-6642
ATTORNEYS FOR DEFENDANT FARM BUREAU TOWN AND COUNTRY INSURANCE COMPANY OF MISSOURI
CERTIFICA TE OF SERVICE
I hereby certify that a copy of the foregoing was served, via first-class mail, this 18th day of January, 2007, to the following:
DOUGLAS R. HORN LAURIE DEL PERCIO
19049 East Valley View Parkway, Suite J Independence, Missouri 64055 Telephone: (816) 795-7500
Facsimile: (816) 795-7881 ATTORNEYS FOR PLAINTIFF
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