(Merseals Petition) STATE OF MISSOURI, COUNTY OF ST. FRANCOIS
IN THE CIRCUIT COURT OF ST. FRANCOIS COUNTY, MISSOURI
BRET MERSEAL and GLENDA MERSEAL,
Plaintiffs
-vs-
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
Defendant
Cause No. 08SF-CC00444
FIRST AMENDED PETITION FOR DAMGES
COME NOW Plaintiffs, by and through counsel, and for Count I of their cause of action against Defendant Farm Bureau Town & Country Insurance Company of Missouri, state as follows:
COUNT I
(Breach of Contract)
1. Plaintiffs Bret and Glenda Mersea1 are now and were at all times herein mentioned citizens of the State of Missouri.
2. Defendant Farm Bureau Town & Country Insurance Company of Missouri is now and was at all times herein mentioned a duly organized and existing Missouri insurance company engaged in the business of issuing insurance policies to the public for consideration, and was registered to do business in the State of Missouri.
3. That at all times herein mentioned, Defendant acted both individually and by and through its agents, servants, and employees, who at all times herein mentioned acted within the course and scope thereof.
4. That at all times herein mentioned Plaintiffs owned, maintained and occupied certain real and personal property, including a one family frame dwelling, located at
509 Pamela Courtin Bonne Terre, Missouri (hereinafter referred to as the "Dwelling"). 5. That on or about the 7th day of April, 2006, an accidental fire totally destroyed the Dwelling.
6. That prior to the date of the aforesaid fire, Defendant issued to Plaintiffs a policy of homeowners insurance, Policy No. PRO 0240943 04 (hereinafter referred to as the "Policy"). A true and accurate copy of the Policy is attached hereto as Exhibit 1 and incorporated herein by this reference.
7. The Policy constitutes a valid and binding contract of insurance between Plaintiffs and Defendants the terms of which are fully set forth in the Policy and its declaration page. A true and accurate copy of the Policy declaration page is attached hereto as Exhibit 2 and incorporated herein by this reference.
8. That the Policy provided coverage such that Defendant must pay to Plaintiffs all sums for damages to the Dwelling incurred as a result of the sudden, accidental and direct loss to the Dwelling, any personal property physically destroyed or to which Plaintiffs lost use as a result of such loss, and all necessary and reasonable increases in living expenses incurred by Plaintiffs as a result of such loss.
9. That the Policy was in full force and effect on the date of the fire.
10. That at all times herein mentioned, Plaintiffs complied with all terms and conditions precedent of the Policy including properly and honestly reporting their claim for the fire with Defendant.
11. That Defendant denied Plaintiffs claim in its entirety and, therefore, refused to perform its obligation under the Policy to pay Plaintiffs for the damages they sustained as a result of the fire as more fully set forth in Paragraph 8.
12. That such denial by Defendant constitutes a breach of the Policy by Defendant.
13. That as a direct result of such denial Plaintiffs have lost the use and enjoyment of the Dwelling and of certain personal property in the dwelling at the time of the fire.
WHEREFORE, Plaintiffs state that they have been damaged, for which damage they pray judgment against Defendant Farm Bureau Town & Country Insurance Company of Missouri in such sum as may be fair and reasonable in the premises, but in excess of Twenty-Five Thousand Dollars ($25,000.00), together with pre-judgment interest, post-judgment interest, attorneys' fees and their costs in this behalf expended.
COUNT II
(Vexatious Refusal to Pay, §375.420 RSMo)
COME NOW Plaintiffs, by and through counsel pursuant to §375.420 RSMo, and for Count II of their cause of action against Defendant Farm Bureau Town & Country Insurance Company of Missouri, state as follows:
14. Plaintiffs re-allege paragraphs 1 through 13 as though fully set forth herein.
15. That at all times herein mentioned Plaintiffs owned, maintained and occupied the Dwelling.
16. That on or about the the 7th day April, 2006, an accidental fire totally destroyed the Dwelling.
17. That prior to the date of the aforesaid fire, Defendant issued to Plaintiffs a policy of homeowners insurance, Policy No. PRO 0240943 04 (hereinafter referred to as the "Policy"). A true and accurate copy of the Policy is attached hereto as Exhibit 1 and incorporated herein by this reference.
18. That the Policy provided coverage such that Defendant must pay to Plaintiffs all sums for damages to the Dwelling incurred as a result of the sudden, accidental and direct loss to the Dwelling, any personal property physically destroyed or to which Plaintiffs lost use as a result of such loss, and all necessary and reasonable increases in living expenses incurred by Plaintiffs as a result of such loss.
19. That the Policy was in full force and effect on the date of the fire.
20. That at all times herein mentioned, Plaintiffs complied with all terms and conditions precedent of the Policy including properly and honestly reporting their claim for the fire with Defendant.
21. That Defendant denied Plaintiffs claim in its entirety and, therefore, refused to perform its obligation under the Policy to pay Plaintiffs for the damages they sustained as a result of the fire as more fully set forth in Paragraph 18.
22. That the denial of Plaintiffs claim by Defendant was willful and without reasonable cause or excuse.
WHEREFORE, Plaintiffs state that they have been damaged, for which damage they pray judgment against Defendant Farm Bureau Town & Country Insurance Company of Missouri in such sum as may be fair and reasonable in the premises, but in excess of Twenty-Five Thousand Dollars ($25,000.00), together with pre-judgment interest, post-judgment interest, attorneys' fees, punitive damages and their costs in this behalf expended.
CASEY & DEVOTI, P.C.
Matthevf J. Devoti #47751
Attorneys for Plaintiffs
100 North Broadway, Suite 1000 St. Louis, Missouri 63102
(314) 421-0763 Fax (314) 421-5059
A true copy of the foregoing has been served upon Defendant by depositing the same in the United States mail, postage pre-paid, this 21st day of April, 2008, addressed to the attorney of record herein, Mr. Robert L. Brady, Attorney at Law,
1010 Market Street , 20th Floor, St. Louis, Missouri, 63101.
(Farm Bureaus answer to the Merseals Petition)
IN THE CIRCUIT COURT OF THE COUNTY OF ST. FRANCOIS STATE OF MISSOURI
BRET MERSEAL and GLENDA MERSEAL,
Plaintiffs,
v.
FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI,
Defendant.
cause No. 08SF-CC00444
DEFENDANT'S ANSWER TO PLAINTIFFS' FIRST AMENDED PETITION COMES NOW Defendant, Farm Bureau Town & Country Insurance Company of
Missouri, by and through the undersigned counsel, and for its Answer to Plaintiffs' First
Amended Petition, states as follows:
COUNT I
1. Defendant is without sufficient information to form a belief as to the truth or
falsity of the allegation contained in Paragraph 1 and, therefore, denies the same.
2. Admit.
3. Deny.
4. Deny.
5. Deny.
6. Defendant admits that it issued a policy of insurance to Plaintiffs having Policy
Number PRO 0240943 04; and having a policy period of April 1, 2006 to April 1 2007. Defendant denies each and every remaining allegation contained in Paragraph 6 of Plaintiffs Amended Petition.
7. Defendant admits that it issued a policy of insurance to Plaintiffs having Policy
Number PRO 0240943 04; and having a policy period of April 1, 2006 to April 1, 2007.
Defendant denies each and every remaining allegation contained in Paragraph 7 of Plaintiffs'
Amended Petition.
8. Deny
9. Admit
10. Deny
11. Deny
12. Deny
13. Deny
AFFIRMATIVE DEFENSES
A. For further answer and Defendant's first affirmative defense, Defendant states
that Count I of Plaintiffs' Petition fails to state a claim upon which relief can be granted.
B. For further answer, and Defendant's second affirmative defense, Defendant states
that there is no coverage and Plaintiffs are barred from recovery under the insurance policy
because Plaintiffs intentionally misrepresented the extent and amount of their personal property
claim. As such, coverage for the claimed loss is specifically precluded pursuant to the following
provisions contained in the policy:
GENERAL POLICY CONDITIONS APPLYING
TO SECTION I AND SECTION II
5. CONCEALMENT, FRAUD, OR MISREPRESENTATION
We do not provide coverage for any insured who has concealed any fact, made fraudulent statements, misrepresentations, or engaged in fraud in connection with any application for insurance, accident, or loss for which coverage is sought under this policy.
* * *
C. For further answer and Defendant's third affirmative defense, Defendant
states that Plaintiffs are judicially estopped from recovering insurance proceeds for any personal
property allegedly damaged by the fire which was not disclosed to the United States Bankruptcy
Court in Plaintiffs' Voluntary Petition for Chapter 7 Bankruptcy dated October 13,2007.
SET-OFF
As a result of Plaintiffs' intentional act and fraud, Farm Bureau has made payment to the
mortgage holders on the insured dwelling in the amount of $134,262.51. Farm Bureau is
specifically requesting that any judgment in favor of Plaintiffs in this matter be reduced by the
amount of Farm Bureau's payment to the mortgage holder ($134,262.51.)
COUNT II
14. Defendant restates and incorporates herein by reference Paragraphs 1 through 13
of Defendant's Answer to Plaintiffs' Amended Petition.
15. Admit.
16. Deny.
17. Defendant admits that it issued a policy of insurance to Plaintiffs having policy
Number PRO 0240943 04; and havmg a policy peroid of April 1, 2006 to April 1 2007.
Defendant denies each and every remaining allegation contained in Paragraph 17 of Plaintiffs'
Amended Petition.
18. Deny.
19. Admit.
20. Deny.
21. Deny.
22. Deny.
AFFIRMATIVE DEFENSES
A. For further answer and Defendant's first affirmative defense, Defendant states
that Count II of Plaintiffs' Petition fails to state a claim upon which relief can be granted.
B. For further answer, and Defendant's second affirmative defense, Defendant states
that there is no coverage and Plaintiffs are barred from recovery under the insurance policy
because Plaintiffs intentionally misrepresented the extent and amount of their personal property
claim. As such, coverage for the claimed loss is specifically precluded pursuant to the following
provisions contained in the policy:
* * *
GENERAL POLICY CONDITIONS APPLYING TO SECTION I AND SECTION II
* * *
5. CONCEALMENT, FRAUD, OR MISREPRESENTATION
We do not provide coverage for any insured who has concealed any fact, made fraudulent statements, misrepresentations, or engaged in fraud in connection with any application for insurance, accident, or loss for which coverage is sought under this policy.
* * *
C. For further answer and Defendant's third affirmative defense, Defendant
states that Plaintiffs are judicially estopped from recovering insurance proceeds for any personal
property allegedly damaged by the fire which was not disclosed to the United States Bankruptcy
Court in Plaintiffs' Voluntary Petition for Chapter 7 Bankruptcy dated October 13, 2007.
SET-OFF
As a result of Plaintiffs' intentional act and fraud, Farm Bureau has made payment to the
mortgage holders on the insured dwelling in the amount of $134,262.51. Farm Bureau is
specifically requesting that any judgment in favor of Plaintiffs in this matter be reduced by the
amount of Farm Bureau's payment to the mortgage holder ($134,262.51).
WHEREFORE, having fully answered Plaintiffs' First Amended Petition, Defendant
prays for this dismissal with prejudice, for its costs, and for any further relief this court deems
just and proper under the circumstances.
Jonathan B. Morrow #58661
BROWN & JAMES, P.c. 1010 Market Street, 20th Floor St. Louis, MO 63101-2000 (314) 421-3400
(314) 421-3128 Facsimile rbrady @bjpc.com jmorrow@bjpc.com Attorneys for Defendant
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