(The Lusters Petition) MISSOURI CIRCUIT COURTS TWENTY-FIRST JUDICIAL CIRCUIT (St. Louis City)
STANLEY LUSTER AND CAROLYN J. LUSTER,
Plaintiff.
vs.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
Serve:
Dan Cassidy, Registered Agent 701 South Country Club Drive Jefferson City, Missouri 65102
Defendant.
PETITION FOR BREACH OF CONTRACT AND VEXATIOUS REFUSAL TO PAY
COUNT I
BREACH OF CONTRACT - FIRE LOSS
COME NOW Plaintiffs, Stanley Luster and Carolyn J. Luster, and for their cause of
action against Defendant Farm Bureau Town & Country Insurance Company of Missouri
(hereinafter "Farm Bureau"), state as follows:
1. Plaintiffs are individuals residing in St. Louis County, Missouri.
2 . Defendant is, and at all times relevant to this cause of action, was Missouri
Insurance Company operating pursuant to the laws ofthe state of Missouri.
3. In consideration of a certain policy premium paid by Plaintiffs, Defendant, Farm
Bureau, issued to Plaintiffs its property insurance policy PRO-024667902 covering the property
commonly known and numbered as 4583 St. Ferdinand Avenue, St. Louis, Missouri 63113,
within the confines of the City of St. Louis.
4. On or about April 26, 2004 the property commonly known and numbered as 4583
St. Ferdinand Avenue, St. Louis, Missouri 63113 was destroyed by fire.
5. Said policy was in full force and effect at the time of the aforementioned fire.
6. Under the terms of the policy, Defendant was required to pay the diminution in
value of the property as a result of the damaged caused by the fire.
7. Pursuant to the terms of the policy, Plaintiffs submitted their proof of loss on or
about August 12,2004, for the amount of Ninety-Five Thousand Dollars ($95,000.00) but Defendant refused to pay fair value, instead agreeing only to pay cash value for the property.
8. Upon information and belief, the diminution in value of said property as a result
ofthe fire totals Forty Two Thousand One Hundred Forty Three and 68/1 00 Dollars ($42,143.68), while the cash value ofthe property subsequent to the fire was in excess of Thirteen Thousand Dollars ($13,000.00).
9. Defendant continued to refuse offer to pay the partial loss diminution in value of
the property until June 23, 2005.
10. During the months of May 2004, the City of St. Louis, including Plaintiffs'
property commonly known and numbered as 4583 St. Ferdinand Avenue was struck by severe hail storms.
11. Said hail storms caused further damage to the property, creating a total loss of the
property, which would not have occurred but for Defendant's failure to pay the partial loss diminution in the value of the property within a reasonable time after Plaintiffs submitted their proof ofloss.
12. If Defendant had paid the partial loss diminution in value of the property as
required by the policy within a reasonable time after Plaintiffs submitted their proof of loss,
Plaintiffs demanded the total amount of the policy for the loss due to the fire in
Plaintiffs would have had sufficient funds to make the necessary repairs to the property and thereby prevent the hail damage and the total loss to the property
13. The combination of the fire damage and hail damage caused a totalloss to the
property commonly known and numbered as 4583 S1. Ferdinand Avenue, St. Louis, Missouri 63113.
14. April 2004 and the hail damage in May 2004, but Defendant has refused to pay any additional sums other than the diminution in value from the fire on April 26, 2004.
15. Defendant has breached its insurance contract with Plaintiffs
16. Because of said denial, Plaintiff has been damaged in the amount of Eighty
Thousand Dollars ($80,000.00), the total value of the property at 4583 St. Ferdinand Avenue, St. Louis, Missouri 63113.
17 . Plaintiffs have further been damaged due to their inability to repair and rehab the
premises and rent said property, losing profits in an amount that cannot be adequately ascertained.
18. Defendant's refusal to pay the amounts due Plaintiff in accordance with the terms
of its insurance policy was and is vexatious and without reasonable cause. Therefore, MO.Rev.Stat. § 375.420 entitles Plaintiffs to recover from Defendant damages in the sum of20% of the first $1,50J.00 of the amount found to be due and owing from the Defendant to Plaintiff, and 10% oftms amount in excess of$1,500.00, plus interest, plus a reasonable attorney's fee herein.
WHEREFORE Plaintiffs, Stanley Luster and Carolyn J. Luster, pray for judgment in their favor and against Defendant, Farm Bureau Insurance Services, on this Petition in the principal sum of Eighty Thousand Dollars ($80,000.00), for vexatious penalty in the amount of 20% of the first
$1,500.00 of Plaintiffs loss and 10% of the amount of the loss in excess of $1,500.00 of Plaintiffs
loss, together with interest at the rate of nine percent (9%) per year; tor a reasonable attorney's fee
herein; for costs of suit; and for any and all other such relief as this COUl1 deems just and proper.
COUNT II
BREACH OF CONTRACT - HAIL DAMAGE
COME NOW Plaintiffs, Stanley Luster and Carolyn J. Luster, and for Count II of their
cause of action against Defendant Farm Bureau state as follows:
19. Plaintiff restates, realleges and incorporates by reference the allegations as set
forth in Paragraphs 1 through 18 of Count 1 above as if fully set forth herein.
20. Throughout May 2004, the City of St. Louis, including property commonly
known and numbered as 4583, was struck by severe hail storms.
21. Said policy was in full force and effect at the time of the aforementioned hail storms.
22. Under the terms of the policy, Defendant was required to pay the diminution in
value of the property as a result of the damaged caused by the hail.
23. Pursuant to the terms of the policy, Plaintiffs submitted their proof of loss for the
hail damage on August 31, 2005, but Defendant refused to pay for the damage caused by the hail.
24. Plaintiffs have made demand for the total loss caused by the hail damage, but
Defendant has failed and refused and continues to fail and refuse to pay for said damages.
25. Defendant has breached its insurance contract with Plaintiffs
26. Because of said denial, Plaintiff has been damaged in the amount of Eighty
Thousand Dollars ($80,000.00), the total value of the property at 4583 St. Ferdinand Avenue, St.
Louis, Missouri 63113.
27 . Plaintiffs have further been damaged due to their inability to repair and rehab the
premises and rent said property, losing profits in an amount that cannot be adequately ascertained.
28. Defendant's refusal to pay the amounts due Plaintiff in accordance with the terms
of its health insurance policy was and is vexatious and without reasonable cause. Therefore,
MO.Rev.Stat. § 375.420 entitles Plaintiffs to recover from Defendant damages in the sum of 20% of
the first $1,500.00 ofthe amount found to be due and owing from the Defendant to Plaintiff, and
10% ofthis amount in excess of$1,500.00, plus interest, plus a reasonable attorney's fee herein.
WHEREFORE Plaintiffs, Stanley Luster and Carolyn J. Luster, pray for judgment in their
favor and against Defendant, Farm Bureau Insurance Services, on this Petition in the principal sum
of Eighty Thousand Dollars ($80,000.00), for vexatious penalty in the amount of 20% of the first
$1,500.00 of Plaintiffs loss and 10% of the amount of the loss in excess of $1,500.00 of Plaintiffs
loss, together with interest at the rate of nine percent (9%) per year; for a reasonable attorney's fee
herein; for costs of suit; and for any and all other such relief as this Court deems just and proper.
FRANKEL, RUBIN, BOND, DUBIN, SIEGEL & KLEIN, P.e.
(Farm Bureaus Answer) IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURI
STANLEY LUSTER AND CAROLYN J. LUSTER,
Plaintiff.
vs.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
Defendant.
Cause No.06CC-4585
ANSWER TO PLAINTIFF'S PETITION
COMES NOW, Defendant Farm Bureau Town & Country Insurance Company of
Missouri., by and through undersigned counsel, and for its Answer to Plaintiff's Petition,
states:
COUNT I - BREACH OF CONTRACT - FIRE LOSS
1. Defendant is without knowledge or information sufficient to form a belief as
to the truth of Paragraph 1, Count I and, therefore, denies the same.
2. Admit.
3. Defendant admits that it issued policy number PRO 024667900 to Stanley
Luster and Carolyn J. Luster, subject to certain conditions and provisions contained in
the policy. Defendant denies each and every remaining allegation contained in
Paragraph 3 of Plaintiffs' Petition.
4. Defendant admits there was a fire on April 26, 2004, which resulted in a
partial loss to Plaintiffs' dwelling. Defendant denies each and every remaining allegation contained in Paragraph 4 of Plaintiffs' Petition.
5. Defendant admits that at all times herein mentioned, Defendant, for and in
exchange for a stipulated premium, insured the residence premises and personal property of Plaintiffs located at 4583 81. Ferdinand Avenue, 81. Louis, Missouri, subject to certain conditions and provisions contained in the policy. Defendant denies each and every remaining allegation contained in Paragraph 5 of Plaintiffs' Petition.
6. Paragraph 6, Count I is not a short and plain statement of fact as required
by the Missouri Rules of Civil Procedure, is a legal conclusion, and requires no response from this Defendant. To the extent Paragraph 6, Count I, is a short and plain statement of fact, it is hereby denied.
7. Deny.
8. Paragraph 8, Count I is not a short and plain statement of fact as required
by the Missouri Rules of Civil Procedure, is a legal conclusion, and requires no response from this Defendant. To the extent Paragraph 8, Count I, is a short and plain statement of fact, it is hereby denied. Without waiving its rights under the policy, Defendant admits that $41,143 represents the difference in fair market value before and after the fire loss, minus the $1,000 deductible to which the claim is subject.
9. Deny.
10. Deny.
11. Deny.
12. Defendant is without knowledge or information sufficient to form a belief as
to the truth of Paragraph 10, Count I and, therefore, denies the same.
13. Deny.
14. Defendant denies that the property sustained any hail damage in May
2004. Defendant admits that it offered the Plaintiff $41,143, which represents the difference in fair market value before and after the fire loss, minus the $1,000 deductible to which the claim is subject.
15. Paragraph 15, Count I is not a short and plain statement of fact as
required by the Missouri Rules of Civil Procedure, is a legal conclusion, and requires no response from this Defendant. To the extent Paragraph 15, Count I, is a short and plain statement of fact, it is hereby denied.
16. Deny.
17. Deny.
18. Paragraph 18, Count I is not a short and plain statement of fact as
required by the Missouri Rules of Civil Procedure, is a legal conclusion, and requires no response from this Defendant. To the extent Paragraph 18, Count I, is a short and plain statement of fact, it is hereby denied.
COUNT 11- BREACH OF CONTRACT - HAIL DAMAGE
COMES NOW Defendant Farm Bureau Town & Country Insurance Company of Missouri., by and through undersigned counsel, and for its Answer to Plaintiff's Petition, Count", states:
19. Defendant restates as if set forth fully herein its Answers to Paragraphs 1
through 18 of Count I of Plaintiff's Petition.
20. Deny
21. Defendant admits that at all times herein mentioned, Defendant, for and in
exchange for a stipulated premium, insured the residence premises and personal property of Plaintiffs located at 4583 St. Ferdinand Avenue, St. Louis, Missouri, subject to certain conditions and provisions contained in the policy. Defendant denies each and every remaining allegation contained in Paragraph 5 of Plaintiffs' Petition.
22. Paragraph 22, Count II is not a short and plain statement of fact as
required by the Missouri Rules of Civil Procedure, is a legal conclusion, and requires no response from this Defendant. To the extent Paragraph 22, Count II, is a short and plain statement of fact, it is hereby denied.
23. Defendant admits that the Plaintiffs submitted a proof of loss on August
31,2005. Defendant denies the property located at 4583 St. Ferdinand Avenue, St. Louis, Missouri has sustained any hail damage. Defendant denies the remainder of Paragraph 23.
24. Defendant admits that Plaintiff made a demand and the property located
at 4583 St. Ferdinand Avenue, St. Louis, Missouri did not sustain any hail damage.
25. Paragraph 25, Count II is not a short and plain statement of fact as
required by the Missouri Rules of Civil Procedure, is a legal conclusion, and requires no response from this Defendant. To the extent Paragraph 25, Count II, is a short and plain statement of fact, it is hereby denied.
26. Deny.
27. Deny
28. Deny
AFFIRMATIVE DEFENSES
COMES NOW, Defendant Farm Bureau Town & Country Insurance Company of
Missouri., by and through undersigned counsel, and for its Affirmative Defenses to
Plaintiff's First Amended Petition, states as follows:
A. For further answer and defendant's first affirmative defense, defendant
states that plaintiff has failed to state a claim for which relief can be granted.
B. For further answer, and defendant's second affirmative defense, the policy
of insurance under which the claim is being made provides as follows:
We cover sudden, accidental, and direct loss to property insured under Level One Protection as shown on the Information Page. Losses caused by the following perils are covered subject to the limitations wit~in the perils and the General Exclusions:
2. Windstorm or hail.
This peril does not include loss to the inside of a dwelling or other structure or property contained in a dwelling or other structure caused by rain, water, snow, sleet, sand, or dust unless the direct force of wind or hail damages the dwelling or other structure causing an opening in a roof or wall and the rain, water, snow, sleet, sand, or dust enters through this opening.
GENERAL EXCLUSIONS-APPLICABLE TO ALL LEVELS OF PROTECTION
We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other causes or events that contribute concurrently or in any other sequence to the loss.
1. Wear and tear, marring or scratching; deterioration; inherent vice; latent or inherent defect; ... ; mold; wet or dry rot; contamination, or the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of ... irritants, contaminants, or pollutants into or upon ... a dwelling or other structure; settling, cracking, shrinkage, bulging, or expansion of pavement, patios, foundations, walls, floors, ceilings.
10. Neglect of any insured to use all reasonable means to protect covered property at and after the time of loss or when property is threatened by an insured peril.
This policy does not cover any loss otherwise excluded regardless of whether one or more of the following directly or indirectly cause, contribute to, or aggravate the loss; or occur before, at the same time, or after the loss of any other cause of the loss:
2. Defect, weakness, inadequacy, fault, or unsoundness in:
d. Maintenance of any property (including land, structures, or improvements
of any kind) whether on or off the insured premises.
CONDITIONS - SECTION I
1. WHAT YOU SHALL DO IN CASE OF LOSS
If a covered loss occurs, the insured, or any insured person, at our request, must:
a. Give us a immediate written notice.
b. Use all reasonable means to protect the property from further damage, including but not limited to making necessary and reasonable repairs to protect the property and keep records if the cost of repairs
There is no coverage under the policy issued because there was no sudden and
direct loss to the property. Coverage, if any would be excluded under the above-
referenced general exclusions. Moreover, the policy excludes coverage for neglect of
any insured to use all reasonable means to protect covered property.
There is no coverage under the policy issued because there was no sudden and
direct loss to property insured under the Level One Protection. Coverage, if any, would
16.
be excluded under one or more of the general exclusions set forth hereinabove.
Moreover, coverage would be excluded because plaintiffs neglected to use all
reasonable means to protect covered property at and after the time of loss or when the
property was threatened by an insured peril. Additionally, the Defendants had a duty
under the policy to protect their property from further damage after the initial fire loss.
The Defendants failed to properly protect their property after the fire, and if any
additional damage was sustained, which this defendant denies, the additional damage
was caused by plaintiffs' neglect. The Defendants also failed to immediately report the
alleged hail loss to Defendant, prejudicing defendant in its investigation. Due to the
aforesaid exclusions, conditions and negligence on the part of Defendants, Defendants
are not entitled to additional coverage under the policy of insurance.
WHEREFORE, having fully answered and responded to Plaintiff's Petition,
Defendant prays for dismissal with prejudice, for its costs, and any further relief this
court deems just and proper under the circumstances.
BROWN & JAMES
Robert L. Brady #47522 Bradley R. Hansmann, #53160
1010 Market Street, 20th Floor St. Louis, MO 63101
(314) 421-3400 .
(314) 421-3128 Facsimile Attorneys for Defendant
Farm Bureau Town & Country Insurance
(Court actions filed in this case)
22nd Judicial Circuit (City of St. Louis)
0622-CC05287 - STANLEY LUSTER V FARM BUREAU TOWN & COUNTRY
This information is provided as a service and is not considered an official court record.
Displaying 1 thru 15 of 15 dockets returned for case 0622-CC05287.
07/26/2006 Docket Entry: Pet Filed in Circuit Ct
07/31/2006 Docket Entry: Summons Issued-Circuit
Text: Document ID: 06-SMCC-4758, for FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI;
09/08/2006 Docket Entry: Motion to Transfer
Filing Party: FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
Docket Entry: Notice of Hearing Filed
Text: NOTICE OF HEARING ON DEFENDANT'S MOTION TO TRANSFER VENUE SET FOR OCTOBER 16,2006 AT 10:00 A.M. IN DIVISION 2.
Filing Party: FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
09/21/2006 Docket Entry: Response Filed
Text: RESPONSE TO DEFENDANT'S MOTION TO TRANSFER VENUE.
Filing Party: LUSTER, STANLEY
10/03/2006 Docket Entry: Reply
Text: REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO TRANSFER VENUE.
Filing Party: FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
10/16/2006 Docket Entry: Judge/Clerk - Note
Text: Defendant's motion to transfer for improper venue is called. Plaintiff appears by counsel, defendant appear not, cause submitted on the pleadings.
10/25/2006 Docket Entry: Notice of Hearing Filed
Text: AMENDED NOTICE OF HEARING ON DEFENDANT'S MOTIN TO TRANSFER VENUE SET FOR NOVEMBER 13,2006 AT 9:30 A.M. IN DIVISION 2.
Filing Party: FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
10/26/2006 Docket Entry: Motion Granted/Sustained
Text: It is ordered and decreed that defendant's motion to transfer is granted. Case is ordered transferred to St.Louis County pursuant to 476.410. So Ordered: Judge John Riley
Docket Entry: Change of Venue
11/03/2006 Docket Entry: Judge/Clerk - Note
Text: Upon approval by the court of Motion of Change of Venue Entire file contents has been sent to ST.LOUIS COUNTY #7004-1350-0004-0630-0012
01/25/2007 Docket Entry: Notice to Take Deposition
Docket Entry: Notice to Take Deposition
02/08/2007 Docket Entry: Notice to Take Deposition
Text: amended
Docket Entry: Notice to Take Deposition
Text: amended
Displaying 1 thru 15 of 15 dockets returned for case 0622-CC05287.
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