Opinion
No. WD 58782
May 28, 2002
Appeal from the Circuit Court of Morgan County, Hon. Peggy D. Richardson.
Harry R. Gaw, Jr., Esq., Tipton, MO, Attorney for Appellant.
Jeffrey O. Parshall, Esq., Columbia, MO, Attorney for Respondent.
Susan F. Robertson, Esq., Columbia, MO, Attorney for Respondent.
Before Court en banc Spinden, C.J., Lowenstein, Ulrich, Breckenridge, Smart, Ellis, Smith, Howard, Newton, Holliger and Hardwick, J.J.
This appeal involves whether a purchaser of a mobile/manufactured home under a contract for purchase had an insurable interest in the mobile home and its contents when she suffered a total loss prior to receiving a certificate of title. The crux of the case concerns Missouri's requirement that in order to have an insurable interest in a motor vehicle or mobile/manufactured home, a person must have received and registered an official certificate of title to the vehicle or home with the Missouri Department of Revenue. Summary judgment was entered in favor of her insurance company.
Factual and Procedural History
The facts of this case can be summarized in a time line:
April of 1997: Jennifer Dimmitt takes possession of a mobile home, purchased by way of contract for deed/title from Wayne Decker. October of 1997: Dimmitt purchased owner's policy from Progressive Casualty Insurance Company insuring her mobile home and possessions therein. October of 1998: Dimmitt renewed her insurance policy. November of 1998: Dimmitt completed payments to Decker. January 1, 1999: An ice storm destroyed Dimmitt's mobile home and some possessions. March of 1999: Progressive inspects Dimmitt's home and concludes that it is technically a manufactured home. April of 1999: Dimmitt receives certificate of title. The sellers are identified as the Schwartzes, and the buyer's name is left blank. June of 1999: Dimmitt filed suit against Progressive for damage to her home, damage to her personal property and living expenses (as provided in the policy). July of 1999: Progressive answered her petition, denying coverage because the damage was not due to sudden occurrence. November of 1999: Progressive deposed Dimmitt and learned that she had not acquired title until April of that year. December of 1999: Progressive amended its answer to now include that Dimmitt never had title and thus never had an insurable interest. That same day, Progressive filed for summary judgment.
The appellant, Jennifer Dimmitt, is a single woman from Versailles, Mo. On April 12, 1997, Dimmitt purchased and took actual physical possession of a 1971 Grant Mobile Home from Wayne Decker, who owns the mobile home park in which Dimmitt resided.
The purchase arrangement between Dimmitt and Decker was by way of a contract for deed/title: Dimmitt made a $1,000 down payment and was to pay the remaining $5,500 in monthly installments by November 30, 1998. Dimmitt's monthly payments ranged from $150 to $450. She never missed a payment. In addition to payments on the contract for purchase, Dimmitt paid Decker rent of $100 a month for her lot in Decker's mobile home park.
In October of 1997, Dimmitt purchased insurance for her mobile home through the respondent, Progressive Casualty Insurance Company. The insurance policy included language throughout referring to Dimmitt as the "owner" and referred to the property as "your mobile home" or "your insured premises." Coverage under Progressive's policy in part included: reimbursement for loss to the mobile home, allowance for living expenses while the insured's mobile home is not habitable because of a covered loss, and damage to personal property.
In October of 1998, Dimmitt renewed her insurance policy. In November of 1998, Dimmitt completed payments to Decker. Fewer than two months later, on January 1, 1999, the mobile home was destroyed by a storm. A rapid accumulation of ice and snow on the roof of the mobile home caused it to collapse, destroying the home and much of Dimmitt's personal property.
In March of 1999, Progressive inspected the mobile home and concluded that it fit the statutory definition of a manufactured home under section 700.010(5). Specifically, an affidavit indicates that Dimmitt's home is more than eight feet in width, more than forty feet in length, and when erected on site contains more than 320 square feet. Dimmitt's home is connected with enough service connections and is readily movable such that it is designed to be used as a dwelling unit with or without a permanent foundation. Again, these factors place Dimmitt's mobile home within Missouri's statutory definition of a manufactured home.
All statutory references are to RSMo. 2000 unless indicated otherwise.
A month after Progressive's inspection and some four months after the loss, Dimmitt finally obtained from the alleged seller a certificate of title to the mobile home, which she put in a safe, without having a new title issued in her name. That certificate of title did not list Decker as the owner but showed Ralph and Shirley Schwartz of Independence, Mo., as owners of the home. The certificate also shows that the Schwartzes had endorsed the back of the title as sellers, but the purchaser's name was left blank. Neither Dimmitt's nor Decker's name was on the title.
At oral argument, Dimmitt's counsel indicated that Dimmitt has since had title transferred into her name.
Dimmitt filed a claim with the insurance company. The claim was denied. Dimmitt then filed a petition against Progressive in June of 1999, alleging that she was entitled to damages under her policy for the covered total loss of the mobile home, loss of her personal belongings and covered living expenses. At oral argument, both parties indicated that Progressive's original answer denied coverage on the grounds that the ice storm was not a covered loss. In November of 1999, Progressive deposed Dimmitt and learned that she did not receive title until the spring of 1999.
In late December of 1999, Progressive amended its answer, stating that it "had now learned that [Dimmitt] never had title to the mobile home and no insurable interest, so said policy was never in force." That same day, the insurance company filed a successful motion for summary judgment, asserting that Dimmitt did not acquire an insurable interest in the mobile home because she did not acquire legal title in accordance with Missouri law. As explained more fully below, Progressive's and the trial court's rationale behind the summary judgment is premised on Missouri's statutory scheme, particularly the motor vehicle titling act, which requires owners to register their vehicles and mobile homes with the Missouri Department of Revenue, and on Missouri common law that does not allow a property loss claim on vehicles and manufactured homes when the insured did not have title at the time of the insurance contract or at the time of loss.
Standard of Review
The standard of review for a summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In reviewing a trial court's order granting summary judgment, this court views the evidence in a light most favorable to the party against whom the judgment was entered. Id. From its inception, summary judgment has been regarded as "an extreme and drastic remedy and great care should be exercised in utilizing the procedure." Id. at 377. Nonetheless, Progressive, as a "defending party" may establish a right to judgment by establishing any of the following means:
[A] "defending party" may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.
Id. at 381 (emphases supplied).
Analysis
Dimmitt argues on appeal that the trial court erred in granting summary judgment because: 1) she had an insurable interest in her mobile home, 2) she had a claim for personal property in which she had an insurable interest that was not addressed by the trial court, and 3) that she had a claim for additional living expenses in which she had an insurable interest that was not addressed by the trial court. However, Dimmitt did not preserve her second and third points because she failed to make arguments in support of either point. Arguments raised in the points relied on that are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate review. Weisenburger v. City of St. Joseph, 51 S.W.3d 119, 124 (Mo.App. 2001). This leaves for review the ultimate issue of Dimmitt having an insurable interest in the insured home.
Does Dimmitt have an insurable interest?
Dimmitt argues in her sole, cognizable point that the trial court erred in granting summary judgment because even though she did not have a certificate of title in her name, she nonetheless had an insurable interest in the mobile home.
Where at issue, as a prerequisite to the enforcement of an insurance contract, an insured must prove that he or she has an insurable interest in the covered property both at the time of making the contract and at the time of loss. Travers v. Universal Fire Cas. Ins. Co., 34 S.W.3d 156, 160-61 (Mo.App. 2000) (quoting DeWitt v. Am. Family Mut. Ins. Co., 667 S.W.2d 700, 704 (Mo. banc 1984)). This prerequisite title in the property at the time of the insurance contract applies only to property claims and not to a liability policy. Country Mut. Ins. Co. v. Matney, 25 S.W.3d 651, 656 (Mo.App. 2000) (where the insurance policy provides liability coverage for a specific automobile and does not precondition coverage on ownership, transfer of ownership of the vehicle will not vitiate the policy). An insurable interest exists if the insured party "will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction . . . by the happening of the event insured against." Travers, 34 S.W.3d at 161.
In determining whether an insurable interest exists, the court first considers Progressive's arguments regarding whether Dimmitt is subject to Missouri's motor-vehicle titling laws. Section 301.210.1 requires a seller of a motor vehicle or trailer to endorse its certificate of ownership with a list of liens, etc., and deliver the instrument to the buyer. In 1985, the legislature amended Missouri's titling laws to include that mobile homes (a.k.a. manufactured homes) be treated the same as motor vehicles. Specifically, section 700.320.1 states as follows:
The owner of any new or used manufactured home . . . shall make application to the Department of Revenue for an official certificate of title . . . in the manner prescribed by law for the acquisition of certificates of title to motor vehicles . . . .
Lengthy statutory-construction analysis is unnecessary here. The plain and ordinary meaning of section 700.320.1 indicates that Dimmitt, as owner of a manufacture home, should have applied to the Department of Revenue for an official certificate of title pursuant to Missouri's titling laws. She did not.
As explained above, at the time she acquired insurance, Dimmitt had not received title from the seller, which was in violation of 301.210.1. Instead, after she had paid the balance of her note to Decker, she received a title that listed owners who are not part of this appeal and whose relation to the purported seller, Wayne Decker, is unknown. Instead of applying for a new certificate of title with the Department of Revenue, Dimmitt placed the title in a safe.
Dimmitt's arrangement also runs afoul of section 301.210.4, which states:
It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificates of ownership with an assignment thereof, as provided in this section, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.
Under those statutes, where the cause involves motor vehicles, Missouri courts traditionally have held that failure to register equates to lack of the right to ownership or possession. Okello v. Beebe, 930 S.W.2d 40, 43 (Mo.App. 1996) (buyer of used car had no right to possession or ownership where he had not been given title). Further, the general rule is that where there is no right to ownership or possession under the motor vehicle act at the time of the loss or at the time of the insurance contract, no insurable interest exists. Equity Mut. Ins. Co. v. Creson, 737 S.W.2d 265, 266-67 (Mo.App. 1987) (certificate of title that was signed by seller but not notarized did not give buyer insurable interest); Faygall v. Shelter Ins. Co., 689 S.W.2d 724, 726-27 (Mo.App. 1985) (without a valid certificate of title, insured had no insurable interest in the truck).
The public policy behind Missouri's strict titling statutes motor vehicles has been stated as follows:
Section 301.210 is a special statute, a police regulation 'of the highest type' with which 'absolute technical compliance' is required, the provisions of which are 'rigidly enforced' and as to which there are 'no exceptions to conform to intentions.' (Citation omitted.) The statute is 'drastic, mandatory, and intended as a police regulation in the interest of the public welfare to prevent traffic in stolen automobiles,' (citations omitted); 'to aid in the apprehension of criminals, and to protect the innocent and guileless from the machinations and wiles of the wicked.' (Citation omitted)
State v. Glenn, 423 S.W.2d 770, 774 (Mo. 1968).
Progressive thus argues from analogy of motor-vehicle cases that because Dimmitt never registered her mobile home, she had no insurable interest in it. Such reasoning, of course, is premised on Missouri's age-old principle requiring strict compliance with titling laws. Id.
Missouri's inconsistent treatment of section 301.210.4's "fraudulent and void" language
As noted above, courts have generally taken an absolutist approach, finding no insurable interest without a valid certificate of title. Equity Mut., 737 S.W.2d at 266-67; Okello, 930 S.W.2d at 43. The most needy people are often the easiest prey for those who avoid the titling laws. When such purchasers then seek help from the legal system, the courts impose the weight of Missouri's unguided public policy against them.
Missouri's legal theory concerning transactions with unprincipled dealers or trailer lot managers has been inconsistent.
For instance, Missouri has allowed such aggrieved purchasers to sue for rescission, Cantrell v. Sheppard, 247 S.W.2d 872, 875 (Mo.App. 1952), although a contract cannot be "void" if an action for rescission is allowed. "A void contract is no contract at all; it binds no one and is a mere nullity" No disaffirmance is required to avoid it. "A contract wholly void is void as to everybody whose rights would be affected by it if valid." 17A Am. Jur. 2d Contracts, section 7. Moreover, in allowing the remedy of rescission, the purchaser would be required to return the automobile in as good of a condition as it was when received. Smith v. G.F.C. Corp., 255 S.W.2d 69 (Mo.App. 1959). Further, because a third party injured in a collision with such a purchaser should not be affected by the failure of the seller and the purchaser to properly structure the transactions, we deny the insurer the right to raise the lack of valid title as a defense to the third party's garnishment claim. Hall v. Weston, 323 S.W.2d 673 (Mo. 1959) (ownership not material to question of insured's liability to third party). See also Country Mut., 25 S.W.3d at 656. Also, this court has recognized recently that to treat such transactions as unenforceable for all purposes actually may, in some instances, run contrary to the public policy behind the statutory regulation. Antle v. Reynolds, 15 S.W.3d 762 (Mo.App. 2000) (holding that neither the statute nor public policy preclude a purchaser's action against a dealer under Missouri's Merchandising Practices Act).
Although the statute speaks of such transactions as "void," sometimes, in accordance with the examples cited above, Missouri courts have construed the acts as in effect meaning "voidable." Thus, rather than take an absolutist approach that is consistent neither with equity nor with an efficient public policy, this court explores that possibility of an equitable solution to the public policy aspects.
Based on public policy, does a contract purchaser have a special property interest in equity?
No case in Missouri has decided the question of whether a contract purchaser acquires a special property interest. See Strebler v. Hampton Metro Bank, 686 S.W.2d 28, 30 (Mo.App. 1984) (contract purchaser of vehicle who did not have legal title could assert action against bank to set aside repossession title and sale and to secure return of vehicle). However, the enforceability of a contract to sell an automobile in the future has been recognized. Id. (citing Smith v. G.F.C. Corp., 255 S.W.2d 69, 70 (Mo.App. 1953) and Cantrell, 247 S.W.2d at 875) (holding that the failure to pass certificate of title between the parties at the time of the agreement creates an executory contract)). Thus, whether a contract purchaser has a special property interest or equitable interest so as to meet the insurable interest requirement is a question of first impression.
Regardless of the age of Missouri's titling law and the policy behind it, an even older body of law founded in equity exists to effectuate a remedy where one is not provided by law. Hetzler v. Millard, 153 S.W.2d 355, 359 (Mo. 1941) (a court of equity is a court of conscience and "remand may be made to avoid closing the door to substantial justice"). Moreover, a court exercising its equitable powers will not make a contract between parties, but it will enforce such a contract if it is definite, certain and complete. Sturgis Equip. Co., Inc. v. Falcon Indus. Sales Co., 930 S.W.2d 14, 18 (Mo.App. 1996). As explained below, equity is appropriate here to enforce the insurance policy because the policy repeatedly referred to Dimmitt as the owner, because she could not insure her mobile home under an arrangement other than as owner, and that as a result, Dimmitt had no adequate remedy at law.
The mandates of section 301.210.4 can be relaxed in appropriate circumstances. Rockwood Bank v. Camp, 984 S.W.2d 868, 872 (Mo.App. 1999). "Missouri courts have invoked equitable principles . . . where the parties to a transaction did not comply with section 301.210.4." Bradley v. K E Invs., Inc., 847 S.W.2d 915, 919 (Mo.App. 1993); Strebler, 686 S.W.2d at 30. See also Manchester Ins. Indem. Co. v. State Farm Mut. Auto. Ins. Co., 460 S.W.2d 305 (Mo.App. 1970); Galemore Mid-West Nat'l Fire and Cas., 443 S.W.2d 194 (Mo.App. 1969).
The unique facts here make this case ripe for recognizing an equitable and sound public policy that is consistent with the mandates of section 301.210. Missouri has a strong policy in favor of encouraging insurance agreements. See, e.g., Weathers v. Royal Indem. Co., 577 S.W.2d 623, 626 (Mo. banc 1979)("An insurance policy, being a contract designated to furnish protection, will, if reasonably possible, be construed so as to accomplish that object and not to defeat it."). And Missouri's public policy behind its titling laws, which is to prevent fraudulent transfers, remains unaffected and intact. Dimmitt took out an owner's policy on the mobile home that she purchased by way of a contract for deed/title. No other type of insurance policy would have accommodated Dimmitt's interest in protecting her investment in her mobile home until after she paid off the title, more than one and a half years after she signed the contract to purchase. Because, as Progressive points out, Dimmitt did not own the mobile home at the inception of the insurance policy and contract for deed/title, she was not entitled to purchase an owner's policy. Because Dimmitt did not lease the mobile home, she could not qualify for renter's insurance. Her purchase arrangement was unusual in that she had no "standard" insurable interest under precedent accompanying titling laws. In other words, under the technical eyes of the law, Dimmitt was not an owner or a lessee and therefore could not insure what appeared to be her property.
Although not required by statute, the company that issued the policy could have protected itself quite easily: to avoid litigating the question of insurable interest, it needed only to ask Dimmitt for her vehicle identification number or request that she mail a copy of her title with her application for insurance coverage. From that easily attainable information, Progressive would have learned that Dimmitt had not complied with Missouri's titling laws. The record is unclear (and after having been questioned at oral argument, the parties could not clarify) whether indeed Progressive had this information and chose to insure Dimmitt nonetheless.
Even if Dimmitt had acquired the correct title when she had paid off the purchase price of the mobile home but before her home and personal belongings were destroyed by a storm, Progressive conceded that it still would have denied coverage on the basis that Dimmitt was not covered at the time that the insurance contract was negotiated. Gorman v. Farm Bureau Town Country Ins. Co. of Mo., 977 S.W.2d 519, 522 (Mo.App. 1998) (insured must have insurable interest at the time of the contract and at the time of loss).
Outside of cases involving motor vehicles, it is Missouri's public policy to hold that equitable owners have an insurable interest. Courts have found that an insurable interest exists if the insured party "will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction . . . by the happening of the event insured against." Travers, 34 S.W.3d at 161; DeWitt, 667 S.W.2d at 705("[a]n insurable interest 'may be a special interest entirely disconnected from any title, lien, or possession' . . . The issue is not what is the insured's title . . . [Rather], an insurable interest 'may be derived from possession, enjoyment, or profits of the property, security or lien resting upon it, or it may be other certain benefits growing out of or dependent upon it.'"). Because the remedy in this case must be fashioned on equitable principles, this court looks to guidance of cases where policyholders with equitable title have been held to have an insurable interest. Aboussie v. Chicago Title Ins. Co., 949 S.W.2d 207, 210 (Mo.App. 1997) (obligor on a promissory note, secured by a deed of trust on the property, has an insurable interest in that property even if the obligor no longer owns the property); Kilpatrick v. Hartford Fire Ins. Co., 701 S.W.2d 755, 758 (Mo.App. 1985) (at the time of loss, insured had an insurable interest both as a mortgagor who remained liable for the payment of the debt after a conveyance, and as one who retained an equitable interest after making a conveyance which was in fact a mortgage); see also 3 Lee R. Russ and Thomas F. Segalla, Couch on Insurance section 42.65 (3d ed. 1997) (regarding insurable interest under a contract for purchase).
Couch states in pertinent part:
Although one under contract for the purchase of property has the equitable title only, he or she is generally treated as the owner of the whole estate, encumbered only by any purchase money remaining to be paid, so that its loss or destruction fall upon him or her and not the seller. Consequently, the vendee or purchaser, particularly when in possession under a contract for purchase, has an insurable interest, even though the contract is subject to rescission for fraud.
The exception created here is quite limited. The decision in this case neither opens the door to fraudulent transfers of motor vehicles or mobile homes, nor advocates legalizing contracts for deed/title under section 301.210.4 (though, again, those statutory mandates can be relaxed in the limited cases where equity so demands). Nor does this opinion in any way affect Missouri's public policy against trafficking in stolen vehicles. Relaxation here from a mechanical application of a rule developed to meet a different problem, where there is no reason to say the parties had any belief the rule should govern their insurance contract, would do nothing to promote ease in transfer of title of stolen vehicles.
The confluence of statutory law on the registration and titling of manufactured homes and the common law of determining an insurable interest should not create an irrebuttable presumption of no insurable interest for this appellant. Dimmitt did everything a responsible person is expected to do — she promptly paid on her contract for purchase and attempted to insure against loss. Equitable principles should be allowed in play to rebut the presumption that she had no legitimate interest to insure in her home. Likewise, under these facts, equity should be invoked to avoid a result where the buyer is out his or her purchase money and the insurer is merely obligated to refund the premium. A rigid adherence to the law on registration and creation of an insurable interest in factual situations where the home is being purchased under a contract for sale or deed leads to a result that penalizes those trying to insure their living quarters by leading them to believe they have insurance when they have a contract that creates nothing for them to insure. It also leads to a win-win situation for the company that writes the insurance. There can never be a claim, the company can keep the premiums (without risk) if there is no loss, and, at worst, is only obligated to return the premium if there is a loss. A trial court should be allowed to consider and factor into its decision such matters as the language of the insurance policy where, as here, it refers to the insured as the owner.
Any notion that this decision will uproot years of legal principles and precedent and reward persons in the limited factual situation presented in the case at bar is overly cautious. This case is not so much about technical compliance with manufactured home registration, but about what is or should be, an insurable interest in living quarters. This decision will not lead to wholesale trafficking in stolen forty-foot manufactured homes. It will not lead to noncompliance with the registration and titling statutes. Dimmitt's reward for not knowing the law and having no means to insure her home has been expenditure of considerable time and money to collect on a policy of insurance. It should be an open question for the courts to determine whether she derived some pecuniary benefit from preservation of the home or suffered financial loss on its destruction. Travers, 34 S.W.3d at 161.
In conclusion, under these limited facts, if Dimmitt can prove to the trial court that she had equitable title to her mobile/manufactured home, purchased under contract for deed and used as her living quarters, then she can defeat the presumption that she has no insurable interest. Summary judgment in favor of Progressive on the issue of lack of insurable interest of the policy holder was inappropriate in this case.
This point is granted.
The cause is reversed and remanded for a determination of whether an insurable interest exists and then, if so found, for the determination of damages within the policy limits on the loss of the manufactured home. The trial court's grant of summary judgment with regard to the loss of personal contents, living expenses and other losses and claims of vexatious refusal to pay is affirmed.
I dissent. I would affirm the trial court's summary judgment for the respondent in that, unlike the majority, I believe that based on the undisputed facts alleged by the respondent in its motion for summary judgment, the appellant did not have an insurable interest as an owner in the manufactured home at the time she purchased or renewed the homeowner's policy in question, such that, as a matter of law, there was no coverage under the policy, as the trial court found in entering summary judgment for the respondent.
In her appeal of the summary judgment of the trial court for the respondent on her claim against it for a loss payment under the homeowner's policy issued by the respondent and her related claim for damages for vexatious refusal to pay, the appellant raises three points. In Point I, she claims that the trial court erred in granting summary judgment to the respondent on her loss claim against it for storm damage to her manufactured home, based upon her having no insurable interest therein as an owner at the time the homeowner's policy, covering the home and under which she sought payment, was issued, due to her failure to receive a certificate of title thereto when the sale of the home was complete, in accordance with § 301.210, because, on the undisputed facts alleged by the respondent in its motion, it was not entitled to judgment as a matter of law in that she was not required by law to receive an assignment and delivery of title to the home in order to have an insurable interest as an owner therein. In Points II and III, she claims on various other grounds that the trial court erred in granting summary judgment in favor of the respondent on her claim against it for payment under the policy.
All references to this section, unless otherwise indicated, will be to the version that was in effect when the manufactured home was sold, § 301.210, RSMo Supp. 1996, which is in all pertinent respects identical to § 301.210, RSMo 2000.
As the majority points out, the appellant failed to preserve Points II and III for review in that she makes no argument in support of her claims of error raised in those points. "Arguments raised in the points relied on which are not supported by argument in the argument portion of the brief are deemed abandoned and present nothing for appellate review." Luft v. Schoenhoff , 935 S.W.2d 685, 687 (Mo.App. 1996) (citations omitted). "An appellant must develop the contention raised in the point relied on in the argument section of the brief." Id . (citations omitted). Hence, only Point I is left for review.
Under Rule 74.04, to be entitled to summary judgment, the respondent, as the movant, was required to show that: (1) there was no genuine dispute as to the material facts on which it relied for summary judgment; and (2) on these undisputed facts, it was entitled to judgment as a matter of law. Rule 74.04(c)(3); ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp . , 854 S.W.2d 371, 380-81 (Mo. banc 1993). If the movant for summary judgment is a defending party, as here, a prima facie case for summary judgment may be established by one or more of the following means: (1) showing undisputed facts that negate any one of the claimant's required proof elements; (2) showing that the claimant, after an adequate period of discovery, has not produced and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's required proof elements; or (3) showing that there is no genuine dispute as to the existence of each of the facts necessary to support an affirmative defense properly pleaded by the movant. ITT Commercial Fin. Corp . , 854 S.W.2d at 381 . "Regardless of which of these three means is employed by the 'defending party,' each establishes a right to judgment as a matter of law. Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper." Id .
All rule references are to the Missouri Rules of Civil Procedure (2001), unless otherwise indicated.
To recover under a policy of insurance, the insured is required to prove: (1) issuance and delivery of the policy; (2) payment of the premium due, such that the policy was in effect at the time of loss; (3) a loss caused by a peril insured against; and (4) notice and proof of loss to the insurer. Valentine-Radford, Inc. v. Am. Motorists Ins. Co . , 990 S.W.2d 47, 51 (Mo.App. 1999) ( citing Kauble v. MFA Mut. Ins. Co . , 637 S.W.2d 831, 832-33 (Mo.App. 1982)) . "In addition, if at issue, the insured must prove that he or she had an insurable interest in the insured property at the time the contract of insurance was made and the loss occurred." Gorman v. Farm Bureau Town Country Ins. Co. of Mo . , 977 S.W.2d 519, 522 (Mo.App. 1998) (citations omitted) . "This insurable-interest public policy requirement or element of proof is to prevent wagering under the guise of insurance and, thus, prevent the temptation to destroy the insured property." Id . (citation omitted) .
As to the elements of her claim for a loss payment under her homeowner's policy, the appellant alleged in her petition, inter alia, that "on or about October 24, 1998," the respondent issued her an owner's policy, insuring the 1971 Grant manufactured home, which she had purchased, and that, under the policy, she was entitled to recover damages of $7,975 for property loss caused by a snow and ice storm that occurred on January 1, 1999. In its answer, the respondent alleged, inter alia, that the appellant "had no insurable interest in the [manufactured] home and, accordingly, her policy [was] void and her claim [was] barred." Referring to this pleading in its motion for summary judgment as an affirmative defense, the respondent, as a defending party, asserted the third means for establishing a prima facie case for summary judgment, by alleging facts which it asserted were undisputed and proved its affirmative defense, entitling it to judgment as a matter of law. As to the appellant's not having an insurable interest as an owner in the manufactured home, when the policy in question was issued, the respondent alleged that it was undisputed that the appellant had not received a certificate and assignment of title to the manufactured home at the time of its delivery, such that, pursuant to § 700.320.1, impliedly referencing § 301.210, the sale of the home to her was void, and she acquired no insurable interest therein as an owner.
The policy defined a covered loss as "direct, sudden and accidental damage."
In its motion for summary judgment, the respondent alleged, inter alia, the following facts, which it claimed were undisputed and which entitled it to judgment as a matter of law:
3. That Plaintiff originally sought insurance on a mobile home from Defendant in October of 1997.
4. That a policy was issued to Plaintiff in October of 1997 on a 1971 Grant Mobile Home.
5. That said policy was renewed effective October 24, 1998.
6. That a copy of the policy in issue is attached to Plaintiff's Petition as Exhibit "A."
7. That a true and accurate copy of the Certificate of Title to the mobile home in question, as it now exists, is attached hereto as Exhibit 1.
. . .
9. That a true and accurate copy of Plaintiff's "Purchase Agreement" concerning the mobile home in question dated April 12, 1997 is attached hereto as Exhibit 2.
10. That Plaintiff alleges damages to the 1971 Grant Mobile Home as a result of a winter storm on or about January 1, 1999 . . . .
11. That Defendant has denied the allegations in Plaintiff's Petition . . . .
12. The 1971 Grant Mobile Home is a manufactured home.
The certificate of title to the appellant's mobile home, which the respondent attached to its motion, showed the original owners to be Ralph and Shirley Schwartz, who purchased the home on 7/15/86. However, the certificate of title did not show an assignment to the appellant.
All references to this section, unless otherwise indicated, will be to the version that was in effect when the manufactured home was sold, § 700.320.1, RSMo Supp. 1996, which is in all pertinent respects identical to § 700.320.1, RSMo 2000.
In claiming that the respondent was not entitled to summary judgment below, the appellant did not dispute the facts alleged by the respondent in its motion. Rather, she asserted that the respondent did not make a prima facie case for summary judgment in that on the facts alleged by the respondent, it was not entitled to judgment as a matter of law, because, contrary to the respondent's contention, § 700.320.1 does not reference § 301.210, expressly or impliedly, so as to require an assignment and delivery of a certificate of title to the purchaser of a new or used manufactured home, as in the case of a motor vehicle or trailer, in order to acquire an insurable interest therein as an owner. It is curious to note that, although she makes this assertion in her reply brief, she admitted in her initial brief that: "Section 700.320 RSMo. states that acquiring title to a new or used manufactured home shall be accomplished in the manner prescribed for obtaining certificates of title to motor vehicles which is contained in Section 301.210 RSMo ." (Emphasis added.) In any event, the appellant argues in her reply brief that, despite her failure to obtain an assignment of title, as required in § 301.210, the law, as she interprets it, recognizes an insurable interest as an owner in the manufactured home she purchased either because: (1) there was "constructive" delivery of the title of the home to her as a result of her purchase and actual possession of the home; or (2) she had a pecuniary interest therein. The issue presented then in this point is strictly a legal one — whether § 700.320 required the appellant to comply with § 301.210 with respect to the manufactured home, which governs the manner in which motor vehicles and trailers are to be titled in this state and the penalties for the failure to do so, in order for her to acquire an insurable interest in the manufactured home as an owner, such that summary judgment for the respondent based on that issue was improper. While the majority asserts that a discussion of the statutes implicated by the appellant's claim of error is not necessary, conceding that they apply, I believe that it is.
There is no dispute that at the time the appellant contracted to purchase the 1971 Grant home, it was considered a "manufactured home," as defined in § 700.010(5), RSMo 1994. Section 700.320.1, governing the certificate of title procedure for such manufactured homes as defined in § 700.010(5), provides, in pertinent part:
The owner of any new or used manufactured home, as defined in section 700.010, shall make application to the director of revenue for an official certificate of title to such manufactured home in the manner prescribed by law for the acquisition of certificates of title to motor vehicles, and the rules promulgated pursuant thereto. All fees required by section 301.190, RSMo, for the titling of motor vehicles and all penalties provided by law for the failure to title motor vehicles shall apply to persons required to make application for an official certificate of title by this subsection.
(Emphasis added.) In support of its motion for summary judgment, the respondent asserted that the language of the first sentence in § 700.320.1 references, without expressly mentioning it, § 301.210, in that that section governs the manner in which certificates of title to motor vehicles are acquired. The majority concedes this point by agreeing that the appellant was required, but failed, to comply with the requirements of § 301.210 in titling the manufactured home. As I discuss, infra, even before the enactment of § 700.320 in 1985, a manufactured or mobile home was subject to the same titling requirements of § 301.210 as a motor vehicle or trailer. That section provides, in pertinent part:
1. In the event of a sale or transfer of ownership of a motor vehicle or trailer for which a certificate of ownership has been issued, the holder of such certificate shall endorse on the same an assignment thereof, with warranty of title in form printed thereon, and prescribed by the director of revenue, with a statement of all liens or encumbrances on such motor vehicle or trailer, and deliver the same to the buyer at the time of the delivery to him of such motor vehicle or trailer.
. . .
4. It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificates of ownership with an assignment thereof, as provided in this section, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.
§ 301.210 (emphasis added) .
The respondent contends that the plain and ordinary meaning of the language used in § 700.320.1 reflects a legislative intent that new and used manufactured homes are to be treated the same as motor vehicles and trailers for purposes of effectuating the transfer of title thereto, in accordance with § 301.210, and for purposes of imposing penalties as provided in that section for failure to comply with its titling provisions. In other words, the respondent contends that § 700.320.1 should be read such that the failure of the appellant to receive an assignment and certificate of title to the manufactured home in accordance with § 301.210, voided the sale, preventing her from having an insurable interest therein as an owner at the time the owner's policy in question was purchased and renewed. I agree.
"Statutory interpretation is a question of law." Wallace v. Van Pelt , 969 S.W.2d 380, 383 (Mo.App. 1998) ( citing Staley v. Mo. Dir. of Revenue , 623 S.W.2d 246, 248 (Mo. banc 1981)) . "When interpreting a statute, our primary role is to ascertain the intent of the legislature from the language used in the statute and, whenever possible, give effect to that intent." Id . ( citing Sullivan v. Carlisle , 851 S.W.2d 510, 512 (Mo. banc 1993)) . "In determining legislative intent, the words used in the statute are to be considered in their plain and ordinary meaning." Id . ( citing Trailiner Corp. v. Dir. of Revenue , 783 S.W.2d 917, 920 (Mo. banc 1990)) . A court of appeals "should use rules of statutory construction to subserve rather than subvert legislative intent." Burch Food Servs., Inc. v. Mo. Div. of Employment Sec . , 945 S.W.2d 478, 480 (Mo.App. 1997). Thus, "where statutory language is clear, unambiguous and admits of [only] one meaning, there is no room for construction." Wallace , 969 S.W.2d at 383 (citation omitted) .
Giving the language of the first sentence of § 700.320.1 its plain and ordinary meaning, I interpret it as providing that the purchaser of a manufactured home, as defined in § 700.010(5): (1) must make an application for a certificate of title thereto; and (2) must do so in the same manner as set forth in § 301.210 for motor vehicles. As to the language in the second sentence of the statute, giving it its plain and ordinary meaning, I interpret it as subjecting the sale of a manufactured home to the same penalties as the sale of a motor vehicle for the failure to title the home in accordance with § 301.210. As such, the penalty provision of § 301.210.4, voiding the sale of a motor vehicle for which there was no delivery of a certificate of title and assignment thereof at the time of delivery, would logically apply to void the sale of a manufactured home, which was not properly titled in accordance with § 301.210.
Here, at the time the appellant was entitled to delivery of the certificate of title of the manufactured home, which, pursuant to her agreement with Decker, was the date she had paid the balance of the purchase price in full, sometime in November of 1998, the certificate of title was not delivered to her. In fact, she did not receive a certificate of title from Decker until sometime in April 1999. However, the certificate of title she received did not reflect that Decker was the certificate of title holder, rather title was shown in the names of Ralph A. and Shirley A. Schwartz, with no assignment from them to Decker or to the appellant, such that at all pertinent times herein, with respect to the issuance of the policy under which the appellant sought payment, she had not received an assignment of title to the manufactured home so as to lawfully pass title to the home to her, in accordance with § 301.210.
In contending that the requirements of § 301.210 are not applicable to manufactured homes, the appellant makes two arguments: (1) while § 700.320.1 specifically references § 301.190, governing, inter alia, the application for and contents of a certificate of ownership for motor vehicles and trailers, it does not specifically reference § 301.210; and (2) § 301.010(56), which defines the term "trailer," as used in Chapter 301, was amended in 1985 to expressly exclude manufactured homes. The appellant's arguments are not persuasive. Although § 700.320.1 does not expressly mention § 301.210, its language is clear and unambiguous that the sale of new and used manufactured homes are subject to the "law for the acquisition of certificates of title to motor vehicles," which necessarily references § 301.210, inasmuch as it is and has been the law in this state since § 700.320 was enacted, with respect to the acquisition of certificates of title to motor vehicles.
Unless otherwise indicated, all references to this section are to the version that was in effect at the time of the sale of the manufactured home, § 301.010(56), RSMo Supp. 1996, which is in all pertinent respects identical to § 301.010(58), RSMo 2000.
Section 301.010(56), provides that "[t]he term 'trailer' shall not include . . . manufactured homes as defined in section 700.010, RSMo[.]"
As to the appellant's argument with respect to the amendment to the definition of "trailer," the legislative history as to that section would reflect that in 1985, as part of S.B. No. 152, the legislature amended the definition of "trailer." Prior to the amendment, the definition read:
'Trailer', any vehicle without motive power designed for carrying property or passengers on its own structure and for being drawn by self-propelled vehicle, except those running exclusively on tracks, including a semitrailer or vehicle of the trailer type so designed and used in conjunction with a self-propelled vehicle that a considerable part of its own weight rests upon and is carried by the towing vehicle.
§ 301.010(33), RSMo Supp. 1984. After its amendment in 1985, the definition remained the same, except for the addition of the second sentence: "The term 'trailer' shall not include cotton trailers as defined in subdivision (8) of this section and shall not include manufactured homes as defined in section 700.010, RSMo." § 301.010(56), RSMo Supp. 1986. Thus, prior to the 1985 amendment, the definition of "trailer" would have necessarily included a manufactured home, as defined in § 700.010(5), which reads:
'Manufactured home' means a factory-built structure or structures which, in the traveling mode, is eight body feet or more in width or forty body feet or more in length, or, when erected on site, contains three hundred twenty or more square feet, equipped with the necessary service connections and made so as to be readily movable as a unit or units on its or their own running gear and designed to be used as a dwelling unit or units with or without a permanent foundation. The phrase 'without a permanent foundation' indicates that the support system is constructed with the intent that the manufactured home placed thereon may be moved from time to time at the convenience of the owner[.]
Prior to being amended in 1982 by S.B. No. 648, § 700.010 referred to "mobile" homes rather than "manufactured" homes. Thus, prior to the 1985 amendment of the definition of "trailer" and the 1985 enactment of § 700.320, for which there was no predecessor, manufactured or mobile homes, as defined in § 700.010(5), were subject to the same titling requirements as motor vehicles as provided in § 301.210.
The appellant contends that the 1985 amendment to the definition of "trailer," expressly excluding manufactured homes, evinced a legislative intent that manufactured homes were no longer to be subject to the titling requirements of § 301.210. However, this contention ignores the fact that in the same senate bill, S.B. No. 152, in which the definition of trailer was amended, § 700.320, RSMo Supp. 1986, was enacted, which is identical in all pertinent respects to the version of the section in effect at the time the appellant purchased her manufactured home, which by its language, as we discussed, supra, clearly and unambiguously requires that manufactured homes are to be titled the same as motor vehicles and subject to the same penalties for failing to do so. Thus, contrary to the appellant's contention, the 1985 amendment to the definition of trailer did nothing to alter the application of § 301.210 to manufactured homes. By amending the definition of trailer in § 301.010 and enacting § 700.320.1 at the same time, the legislature was simply doing what was logical and reasonable, moving the titling section of manufactured homes to Chapter 700, which specifically governs "MANUFACTURED HOMES (MOBILE HOMES)." Having done so, it was only common sense for the legislature to remove manufactured homes from the definition of "trailer" in Chapter 301, given their specific treatment in Chapter 700. Otherwise, § 301.210 would have applied to manufactured homes by reason of their inclusion in the definition of trailer, as well as applying via the language of § 700.320.1.
Even if we were to accept for the moment the appellant's argument that § 301.210 no longer applies to the titling of manufactured homes because of the amendment to the definition of trailer in § 301.010, the question would logically arise as to what law would govern inasmuch as § 700.320.1 expressly provides that the titling of manufactured homes is to be done in accordance with the "law for the acquisition of certificates of title to motor vehicles." Although urging us to adopt an interpretation of the law that would exclude the application of § 301.210 in the titling of manufactured homes, the appellant does not favor us with any argument as to what law was intended by the legislature in § 700.320.1 to apply in lieu thereof. This void in the appellant's argument logically supports my interpretation of the statutes.
Applying the foregoing interpretation of § 700.320.1 to the case at bar, I would agree with the majority that there is no dispute that the appellant failed to comply with § 301.210 with respect to her purchase of the manufactured home such that she had not acquired legal title thereto at the time she purchased or renewed the homeowner's policy issued by the respondent. The question is whether this prevented her from otherwise acquiring an insurable interest in the manufactured home as an owner such that there was no coverage under the policy. In this regard, as noted, supra, the appellant contends that although she did not acquire legal title to the manufactured home in accordance with § 700.320.1 and § 301.210, she nonetheless acquired an insurable interest as an owner therein based on: (1) the constructive delivery of title to her; or (2) her having a pecuniary interest in the home. I disagree.
As the majority states, there is case authority to support the proposition that "any title or interest in property legal or equitable will support an insurable interest," Puritan Ins. Co. v. Yarber , 723 S.W.2d 98, 100 (Mo.App. 1987), or an insurable interest will be found "where he has such a relation or concern in such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction, termination, or injury by happening of the event insured against." Gorman , 977 S.W.2d at 526 (citation omitted) . However, unlike other property, as to motor vehicles and trailers, our appellate courts have held that strict compliance with § 301.210 is required in order to acquire an insurable interest therein as an owner. Specifically, as to motor vehicles, in Faygal v. Shelter Ins. Co . , 689 S.W.2d 724, 726 (Mo.App. 1985), the court stated:
Missouri courts have consistently held by reason of § 301.210, that even if accompanied by full payment or physical delivery of possession, the attempted sale of an automobile is fraudulent and void, passing neither legal nor equitable title, unless as a reasonably contemporaneous part of the transaction, the previously issued certificate of ownership with a properly completed and acknowledged assignment by the seller delivered to the buyer.
(Citation omitted.) The court further stated:
[g]enerally any title or interest in property legal or equitable will support an insurable interest. However, the question of an "insurable interest" as it relates to loss coverage of an automobile is not controlled by the general principles or cases relating to other forms of property. A purchaser of a vehicle who does not comply with the strict requirement of § 301.210, has no insurable interest in the vehicle.
Id . at 726-27 (citations omitted) (emphasis added) . See also Equity Mut. Ins. Co. v. Creson , 737 S.W.2d 265, 266-67 (Mo.App. 1987); Geller v. Gen. Agents Ins. Co. of Am. Inc . , 841 S.W.2d 205, 206 (Mo.App. 1992); Am. Econ. Ins. Co. v. Paul , 872 S.W.2d 496, 497-98 (Mo.App. 1994).
While recognizing the motor vehicle/trailer exception discussed in Faygal to the general rule that title or interest in property, legal or equitable, will support a finding of an insurable interest, the majority asserts that this exception has not been extended by our appellate courts to manufactured homes and that from an equity standpoint should not be extended here under the facts of our case. I disagree. While not expressly holding that the exception applies to "manufactured homes," the court in Puritan held that the exception applied not only to motor vehicles, but mobile homes, which I believe, for purposes of the titling requirements of § 301.210, are the statutory and logical equivalent of manufactured homes.
In Puritan , the court addressed the issue of whether the respondent, who had leased a mobile home from the certificate of title holder thereof, with an option to purchase, had an insurable interest in the home as an owner to support coverage with respect to an owner's policy of insurance under which the respondent sought recovery for the loss of the home due to a fire. 723 S.W.2d at 99. The lease was entered into on September 1, 1979; the policy was purchased on April 6, 1983; and the home was destroyed on December 5, 1983. Id . Relying on the rationale in Faygal , the court held that because the respondent did not hold a certificate of title to the mobile home, in accordance with § 301.210, he did not have an insurable interest therein as an owner and as a matter of law could not assert a claim for coverage under the owner's policy in question. Id . at 100-01. In so holding, the court stated:
The requirements of § 301.210 are an attempt to prevent fraud and deceit in the re-sale of cars and trailers thereby hampering traffic in stolen vehicles. This police regulation must be strictly enforced in order to accomplish the legislative purpose. To allow an individual to secure ownership without a certificate of ownership will allow the same individual to insure an automobile or trailer obtained through fraudulent means, even if the means was unknown to the possessor. This would certainly frustrate the purpose of the statute. We also note that if a lessee can insure as an 'owner' then sub-lessees could also insure as 'owner.' This would open the door to coverage of the same value or loss by multiple claimants. Generally any title or interest in property legal or equitable will support an insurable interest. However, the question of an 'insurable interest' as it relates to loss coverage of an automobile [or trailer] is not controlled by the general principles or cases relating to other forms of property. A purchaser of a vehicle who does not comply with the strict requirements of § 301.210 has no insurable interest in the vehicle.
Id . at 100 (citations omitted) . At the time the policy in Puritan was purchased, the definition of a trailer would have necessarily included a manufactured home. As discussed, supra, the definition of trailer was not amended until 1985. While I cannot be sure that the mobile home in Puritan would have fallen under the definition of a manufactured home, § 700.010(5), it is clear that the Puritan court recognized that the legislative purpose of § 301.210 would be thwarted if our courts were to recognize a legal or equitable interest in not only a motor vehicle, but a mobile home, as supporting an insurable interest therein as an owner where title had not passed in accordance with § 301.210.
Further support for the rule that a party does not have an insurable interest as an owner in a manufactured home based on a legal or equitable interest claimed therein without obtaining a certificate of title in accordance with § 301.210 can be found in the fact that the legislature has consistently treated mobile homes or manufactured homes, for purposes of obtaining title thereto and the penalties for failing to do so, the same as motor vehicles and trailers. Given this equal treatment, it is only logical to assume that the legislature has the same concerns about manufactured homes as it does for motor vehicles and trailers, such that the public policy considerations discussed in Faygal and similar cases for not supporting an insurable interest, where there is a failure to comply with § 301.210, would apply. This is borne out by what has occurred in this case — a manufactured home ending up in the possession of a party who, based on the record we are allowed to consider, did not have legal title thereto, as a result of a sale from a seller who did not have legal title to pass. Such a state of confusion with respect to who has legal title to property covered by § 301.210 or § 700.320, whether it be title to a motor vehicle, trailer, mobile home, or manufactured home, which has not been converted to real property, pursuant to § 700.111, as here, is in my opinion what § 301.210 is designed, at least in part, to avoid.
Lending further support for why the policy considerations that drove the evolvement of both the statutory and common law with respect to treating motor vehicles, trailers and mobile homes differently than other property for purposes of titling and acquiring an insurable interest, should also apply to manufactured homes, can be found in the enactment of § 700.111. That section, governing the method by which a manufactured home can be converted to real property, reads:
1. The owner of a manufactured home may convert the manufactured home to real property by:
(1) Attaching the manufactured home to a permanent foundation situated on real estate owned by the manufactured home owner; and
(2) The removal or modification of the transporting apparatus including but not limited to wheels, axles and hitches rendering it impractical to reconvert the real property thus created to a manufactured home.
2. The conversion of a manufactured home to real property by the method provided in subsection 1 of this section shall prohibit any political subdivision of this state from declaring or treating that manufactured home as other than real property.
§ 700.111. In enacting this section, it is obvious to me that the legislature understood that purchasers of manufactured homes should have a choice in how they want their home to be treated for titling and other matters, such as the assessment of property taxes. However, there is an obvious tradeoff reflected in this statute. In return for being treated as realty, the homeowner must disable the manufactured home such that it loses the transient nature associated with trailers and mobile homes. This then impliedly recognizes that the public policy concerns that underpin why such vehicles should be held to a different standard than realty, with respect to titling thereof and acquiring an insurable interest therein, would extend to a manufactured home unless it is disabled so those concerns disappear. In my mind, this is just another clear example of why no distinction should be drawn between a manufactured home not converted to realty and mobile homes, trailers, and motor vehicles, and why in the law's eyes they are to be and should be treated equally with respect to titling and acquiring an insurable interest.
In arguing that the mandates of § 301.210 should be relaxed here to find the insurable interest in the manufactured home claimed by the appellant, the majority cites Rockwood Bank v. Camp , 984 S.W.2d 868, 872 (Mo.App. 1999); Bradley v. K E Invs., Inc . , 847 S.W.2d 915, 919 (Mo.App. 1993); and Strebler v. Hampton Metro Bank , 686 S.W.2d 28, 30 (Mo.App. 1984). All three cases are distinguishable. In fact, Bradley and Strebler actually support my dissent.
In Rockwood , the issue was whether equitable estoppel would apply to estop Rockwood Bank from asserting strict compliance with § 301.210 so as to void the sale to innocent third parties of a R.V. financed by the bank. Rockwood , 984 S.W.2d at 871 . The bank had sought the replevin of the R.V. from the purchasers in the trial court, which was denied. Id . In reversing the trial court, the Rockwood court found that the bank had not done anything to "set the stage" for the purported purchasers' believing that they had received title thereto and the loss that would be occasioned by them from the court's strict enforcement of the requirements of and effects of § 301.210. Id . at 873. In this regard, the court pointed out that the bank had retained the original title to the R.V. pending its sale by the dealer and the payment of the loan such that the bank "did not relinquish the primary indicia of ownership of the vehicle to [the dealer] thereby enabling [the dealer] to commit fraud" on the purchasers. Id . Obviously, our case does not involve a claim of equitable estoppel based on an allegation that the respondent "set the stage" for Decker's sale of the manufactured home to the appellant without her receiving title thereto, in accordance with § 301.210.1, causing her loss.
As to Bradley and Strebler , the courts there both recognized the fact that absolute technical compliance with § 301.210 is required, without which the purported sale of a vehicle is fraudulent and void, with the purported buyer acquiring no ownership interest therein. Bradley , 847 S.W.2d at 919; Strebler , 686 S.W.2d at 29-30 . Both cases involved the sale of motor vehicles, based on agreements between the sellers and buyers whereby title would pass at a future date upon completion of the sale agreements. Bradley , 847 S.W.2d at 919-20; Strebler , 686 S.W.2d at 30 . The buyers were seeking to compel the delivery of the titles, having satisfied the terms of the agreements. Both courts found that the requirement of § 301.210.4, that there is to be an assignment of title at the time of delivery of the vehicle, does not prevent a seller from transferring physical possession of the vehicle, pending completion of the sale, without delivering a properly assigned certificate of title. Bradley , 847 S.W.2d at 919; Strebler , 686 S.W.2d at 30 . Essentially what both courts found was that "delivery," for purposes of § 301.210.4, occurred at the time that the respective sales agreement was completed, entitling the buyer to delivery of the title.
In our case, it is undisputed, that pursuant to the purchase agreement between the appellant and Decker, although she was to receive immediate possession of the manufactured home, she was not to receive title to it until after all the required payments were made in satisfaction of the note securing the balance due thereon and given by the appellant in purchasing the home, which did not occur until after the insurance contract in question was purchased and renewed. As such, although the appellant would apparently be entitled to invoke both Bradley and Strebler in a suit to force Decker to assign her the title to the manufactured home, after she had made the required note payments, neither would help her in her attempt to claim an ownership interest in the home for purposes of establishing an insurable interest therein as an owner under the homeowner's policy issued by the respondent.
In an attempt to bolster its claim that equity should interfere here to protect the appellant from what it perceives as an injustice, the majority suggests that the respondent was somehow at fault for this litigation and, therefore, the appellant should prevail. In that regard, the majority opines:
Although not required by statute, the company that issued the policy could have protected itself quite easily: to avoid litigating the question of insurable interest, it needed only to ask Dimmitt for her vehicle identification number or request that she mail a copy of her title with her application for insurance coverage. From that easily attainable information, Progressive would have learned that Dimmitt had not complied with Missouri's titling laws.
Essentially what the majority suggests is that the respondent was in the best position to avoid this litigation and, therefore, equitably speaking, should shoulder the loss. In my eyes, it stands for the unreasonable proposition that a purchaser of an insurance contract should not be denied coverage, under the contract, based on his or her legal status with respect to the insured property, where the insurer could have prevented the resulting litigation by ferreting out the purchaser's legal status with respect to the property, which was known or should have been known to the purchaser. This approach would completely relieve the purchaser of any responsibility to understand the nature of the policy being purchased and its terms, and any laws governing the situation, in this case, the laws governing the ownership and titling of a manufactured home. Other than its view of fairness, the majority cites no authority for this proposition.
In maintaining that the respondent was in a better position than the appellant to avoid the appellant's predicament and, therefore, equity should intervene to save her, the majority clearly overlooks the fact that the appellant herself could have easily avoided this situation. As discussed above, the appellant had it within her power to convert the manufactured home to realty by following the mandates of § 700.111. In doing so, she could have easily avoided the pitfalls faced by purchasers of motor vehicles, trailers, and mobile homes with respect to the strict statutory requirements for titling and acquiring an insurable interest. She chose not to. Why? We do not know. Taking a page out of the majority's playbook, I could speculate that she considered doing so, but chose not to, opting instead to remain mobile so that the home could be easily moved, for whatever reason, at a moment's notice. I will, however, resist the temptation to engage in such speculation, recognizing that it is not within our judicial prerogative to do so. Besides, such course of action would probably only invite the majority to suggest that we could not expect the appellant to be sufficiently conversant with the law to have considered this choice. At some point, however, I would expect us to hold the appellant, like any other citizen, to the requirements of the law and require her to suffer the consequences for not abiding by them.
In a further attempt to bolster its assertion that the respondent somehow was responsible for this litigation and should not prevail as a result, the majority also opines: "The record is unclear (and after having been questioned at oral argument, the parties could not clarify) whether indeed Progressive had this information and chose to insure Dimmitt nonetheless." This appears to be a not so subtle attempt by the majority to suggest that the respondent may have taken the appellant's premiums, knowing full well that she was not the owner of the manufactured home such that it had a built-in defense to any subsequent claims filed by her under her policy. There is nothing in the record that would justify the majority's insinuation that there may have been something sinister afoot, in that regard, that favors the appellant's prevailing. More importantly, an "unclear record" is not evidence of anything. Surely the majority would not suggest that the lack of clarification at oral argument concerning what the respondent knew or did not know about the appellant's ownership interest in the manufactured home is "evidence" that it can rely upon to infer that the respondent was not dealing with clean hands. If inclined to do so, I suppose, in response to the majority's reliance on speculation with respect to what the respondent knew about the appellant's ownership of the manufactured home, I could opine, "The record is unclear (and at oral argument the parties could not clarify) whether indeed the appellant knew she was not the owner of the manufactured home and chose to purchase the owner's policy nonetheless, without telling the respondent." This, of course, would suggest that the appellant was not dealing with clean hands. I will resist the temptation, recognizing that references to unsupported possibilities adds nothing legitimate to a legal discussion.
While the majority laments the fact that the result I would reach, and the law requires, works an unfair hardship on the appellant, who they essentially assert was between a rock and a hard place in trying to insure the manufactured home, given her status of not being the legal owner of the home, the very same could be said of one who purchased a motor vehicle, trailer, or mobile home (as discussed in Puritan ), without complying with the requirements of § 301.210. However, the majority does not suggest that this court should thwart the purposes of the statute in the case of motor vehicles and trailers and upend years of precedent concerning the same by finding an insurable interest as an owner in the same based on some equitable interest, without the benefit of a proper assignment of title in accordance with § 301.210. Rather, the majority suggests that public policy should be invoked here to avoid the well recognized legislatively intended effects of § 301.210 with respect to acquiring title to and an insurable interest in manufactured homes. In that regard, the majority asserts that the effects of the statute should be directed solely at the real culprits envisioned by the statute — the dealers who set the table for what has occurred to the appellant here. That situation, of course, has already been dealt with in Rockwood in the context of the purchaser versus the dealer, which is the proper context for what the majority is asserting. What the majority would have us do here, however, is pit one innocent third party against another, in our case the appellant against the respondent. I am not sure on what recognized basis the majority would have us do that. I can only assume that the majority is arbitrarily choosing the respondent to lose since it is in a better financial situation to absorb the loss. This, of course, raises the constitutional issue of whether the law or equity can pick and choose between litigants on the basis of one's financial position, ignoring well recognized principles for determining fault or liability. In its misguided attempt to do what it perceives to be equity in this case, the majority appears to forget the obvious — that equity must be done for all, not just for those whom the court views as sympathetic.
It goes without saying that this court is not to be result-oriented. In other words, we cannot, as a court, rule simply because we believe that it would be the fair or equitable thing to do given the circumstances. It is well settled that equity cannot work to destroy that which the law requires. Place v. P.M. Place Stores Co . , 950 S.W.2d 862, 866 (Mo.App. 1996). Legal principles based on statutes, rules, and precedent cannot be ignored in order to do equity. Id . As the Rockwood court stated: "We are mindful that, given the inability of equity to intervene, the results dictated by Section 301.210.4 [ sic] may be harsh. However, to seek redress for any grievance, petition must be made to the legislature, rather than the courts." Rockwood , 984 S.W.2d at 873 . Likewise, here, unlike the majority, I believe that any redress with respect to the perceived unjust result mandated by the law in this case should be left to the legislature.
Interpreting the law as I do, there is no question that the respondent made a prima facie case for summary judgment based on the appellant's not having an insurable interest in the manufactured home as an owner. In that regard, the only attempt by the appellant to rebut the respondent's case was to argue that the respondent's interpretation of the controlling law was in error, choosing not to place in dispute any of the facts on which the respondent relied for summary judgment. As such, because it is undisputed that at the time of the purchase and renewal of the homeowner's policy in question the appellant had not received and was not entitled to receive a certificate and assignment of title thereto, she did not have an insurable interest therein as an owner; and, therefore, as a matter of law, could not make a claim of loss under her owner's policy with the respondent covering the manufactured home or a claim for vexatious refusal to pay predicated on such a loss.
In this regard, the record reflects that the appellant did not file a response to the respondent's motion placing in dispute the facts alleged, as provided in Rule 74.04(c)(2), but chose simply to file suggestions in opposition to the respondent's motion. As such, the factual allegations in the respondent's motion are taken as true. Birdsong v. Christians , 6 S.W.3d 218, 222-23 (Mo.App. 1999); Peck v. Alliance Gen. Ins. Co . , 998 S.W.2d 71, 75 (Mo.App. 1999).
For the reasons stated, the summary judgment of the circuit court for the respondent on the appellant's claims against it should be affirmed.