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Insurance Bad Faith and Section 537.065

6/24/2005 -

Claims Handling and Section 537.065, R.S.Mo. 2000

            Lawyers representing insurers are often called upon to give advice in cases involving Section 537.065, R.S.Mo. 2000.  Under Section 537.065, one claiming damages for personal injury or death and a tortfeasor can, in advance of a judgment against the tortfeasor, limit satisfaction of the claim to specified assets of the tortfeasor as well as liability insurance policies insuring the tortfeasor against the damages claimed.

            Section 537.065 has the legal effect of authorizing collusion between claimants and insureds.  The statute supplants the insured’s duty to cooperate with their insurers.  The statute also nullifies the policy prohibition against voluntary payments and the assumption of obligations by insureds without their insurers’ consent.

            Settlements and judgments entered as concomitants of Section 537.065 agreements sometimes expose insurers to liability under their policies far in excess of the reasonable value of the claimant’s damages.  These settlements and judgments are often entered for the insurers’ policy limits without consideration of the true nature and extent of the claimant’s damages or the insured’s liability.  Sometimes, these judgments are entered for sums in excess of the insurer’s policy limits.  These judgments, in turn, expose insurers to substantial interest liability under the supplementary payments provisions of their policies.

            The recent decision of the Western District of the Missouri Court of Appeals in Truck Ins. Exchange v. Prairie Framing, LLC[1] adds a new dimension to the risks that Section 537.065 poses to liability insurers, namely, bad faith.  In Truck Ins. Exchange, the court permitted a judgment creditor to maintain a bad faith refusal to settle claim against an insurer where the insurer was not in control of the insured’s defense when the underlying judgment was entered and the insured’s out-of-pocket liability for the judgment was nominal because the insured had previously entered into a Section 537.065 agreement with the claimants.

            A discussion of Section 537.065 and the Truck Ins. Exchange case follows.

A.        The Predicate for Section 537.065

            Section 537.065 agreements generally occur in cases in which insurers elect to defend their insureds under a reservation of rights.  An insurer has three options when asked to defend an insured in cases presenting coverage questions:

1.         The insurer can defend its insured without qualification.

2.         The insurer can defend the insured under a reservation of rights.

3.         The insurer can refuse to defend.[2]

Each alternative has consequences.  If the insurer chooses the first option, the insurer waives its coverage defenses.  An insurer defending its insured with knowledge of non-coverage under the policy and without a reservation of rights waives the right to later disclaim coverage.[3]

If the insurer chooses the third option and denies coverage, the insurer loses the right to control the defense of the claim against the insured.  Intervention is unavailable in this setting to provide the insurer a remedy.

Under Missouri law, an insurer does not have the right to intervene in a tort action against the insured for the purpose of defending the action on the merits or to seek a stay of the action during the pendency of a declaratory judgment action filed to determine the insurer’s coverage obligations.[4]  The fact the insured has entered into a Section 537.065 agreement and has agreed to suffer a default judgment does not alter the rule against intervention.[5]  Similarly, the fact a Section 537.065 agreement is subject to a reasonableness requirement does not authorize a right of intervention in favor of the insurer to contest the amount of the claimant’s damages.[6] 

Moreover, there are risks if the insurer denies a defense and is proven wrong on coverage.  As a general rule, “where one is bound to protect another from liability, he is bound by the result of litigation to which the other is a party, provided he had notice of the litigation, and an opportunity to control and manage it, and that the judgment rendered therein is conclusive in the subsequent action upon the indemnity contract as to all questions and issues necessarily determined therein.”[7]

If the insurer chooses the second option, namely, a defense under a reservation of rights, the insured may elect to accept the insurer’s defense.[8]  The insured may also reject the insurer’s defense.[9]  Under Missouri law, an insurer cannot force an insured to accept a reservation of rights defense.[10]

An insured has the right to reject a reservation of rights defense because of the potential conflict of interest between the insurer and the insured.


[T]here are good reasons for allowing the insured the election.  A reservation of rights may chill a zealous defense based on the insurer’s assessment of the liability and it presents a possible conflict of interest because the insurer may be more concerned with developing facts showing non-coverage than facts defeating liability.[11]

Once the insured rejects the reservation of rights defense, a Section 537.065 agreement between the plaintiff and the insured often follows.

            B.        Section 537.065

Section 537.065 permits the claimant and the tortfeasor, in advance of a judgment against the tortfeasor, to limit satisfaction of a claim to specified assets, including the tortfeasor’s applicable liability insurance policies.  Section 537.065 provides:

Any person having an unliquidated claim for damages against a tort-feasor, on account of bodily injuries or death, may enter into a contract with such tort-feasor or any insurer in his behalf or both, whereby, in consideration of the payment of a specified amount, the person asserting the claim agrees that in the event of a judgment against the tort-feasor, neither he nor any person, firm or corporation claiming by or through him will levy execution, by garnishment or as otherwise provided by law, except against the specific assets listed in the contract and except against any insurer which insures the legal liability of the tort-feasor for such damage and which insurer is not excepted from execution, garnishment or other legal procedure by such contract. . . .

            The statutory settlement procedure authorized by Section 537.065 allows defendants in tort litigation to buy their peace.  The procedure also imposes risks on both the plaintiff and the defendant’s insurer.

Such a settlement places the plaintiff at risk that if no coverage exists no recovery of the judgment will occur.  It places the insurer at risk that if coverage is found it will have no opportunity to defend on the issue of liability of the tort-feasor.[12]

            The statute contemplates the agreement will be entered into before a judgment is rendered.[13]  There is no requirement that the insured first give notice to the insurer of the insured’s intent to enter into such an agreement.

            The execution of a Section 537.065 agreement by the insured is not per se a breach of the insured’s obligation to cooperate with his or her insurer.[14]  Absent fraud or collusion between the claimant and the insured, a Section 537.065 agreement does not provide the insurer with a defense to liability on the policy.[15]

            On the interplay between Section 537.065 and the insured’s duty to cooperate, the statute’s legislative history bears noting.  The Supreme Court of Missouri noted the statute’s history in Farmers Mut. Auto. Ins. Co. v. Drane.[16] According to the supreme court, the Missouri General Assembly enacted the statute to permit an insured to settle with a claimant, notwithstanding the non-waiver agreement the insured had signed with his insurer, which gave the insurer control over the insured’s defense, while preserving the insurer’s coverage defenses.  The legislator sponsoring the bill that became Section 537.065 was the attorney for the claimant in question.

            The decision of the Supreme Court of Missouri in Butters v. City of Independence[17] addresses the insured’s duty to cooperate in the context of a Section 537.065 agreement.  There, the insurer agreed to defend its insured under a reservation of rights, but refused to advise the insured of the basis for its reservation.  The supreme court held this fact supported the trial court’s finding that the insurer’s conduct was the “equivalent to a refusal of a defense.”[18]  In consequence, the court held the insured was released from the policy prohibition against negotiating and settling claims, including the negotiation of a Section 537.065 agreement.[19] 

            The court’s decision in Butters makes sense in context of the general rule concerning an insurer’s breach of the contract obligation to defend its insureds against potentially covered claims.  An insurer’s unjustified refusal to defend its insured relieves the insured of its contractual obligation not to settle so that the insured is free to go its own way, and to make a reasonable settlement or compromise without the loss of the right to recover on the policy.[20]  Therefore, the Butters[21] Otherwise, the supreme court’s holding that the insurer’s conduct was “the equivalent to a refusal of a defense” would be meaningless.[22] decision can be read to suggest that insureds violate their duty to cooperate when they enter into Section 537.065 agreements in cases in which their insurers afford them a defense under a proper reservation of rights letter, one specifying the terms and basis of the reservation.

            Under a liability policy, two distinct duties are imposed, a duty to defend and a duty to indemnify.[23]  An insurer that defends under a reservation of rights fulfills its defense obligation.  Moreover, an insurer’s reservation of its right to contest coverage does not automatically constitute a denial of coverage.[24]

            However, Missouri’s appellate courts have not read the Butters decision this way.  Subsequent appellate decisions have relied on Butters in approving Section 537.065 agreements although the insurers in those cases had undertaken the insured’s defense under a reservation of rights and with the insured’s consent.[25]  Consider, for example, the decision in Cologna v. Farmers & Merchants Ins. Co.[26] where the insurer defended its insured under a reservation of rights.  When the insured later entered into a Section 537.065 agreement with the plaintiff (while still represented by defense counsel appointed by the insurer) and requested the insurer to withdraw its reservation of rights and provide an unqualified defense, the insurer filed a declaratory judgment action.  Despite these facts, the court of appeals held the insured’s conduct under Section 537.065 was proper.  The court explained: “[The insurer’s] institution of the declaratory judgment action wherein it specifically repudiated liability was the equivalent of an unconditional denial of liability.”[27]

            C.        Defenses to a Judgment under Section 537.065

                        1.         Fraud and Collusion              

            An insurer has the right to raise the issue of fraud and collusion in a proceeding brought by the judgment creditor to recover under the policy.[28]  What constitutes fraud and collusion in the context of a Section 537.065 agreement is ill defined.

            An early discussion of these defenses occurs in U.S. Fidelity & Guar. Co. v. Safeco Ins. Co. of Am.[29] There, the parties entered into a Section 537.065 agreement in which the insured admitted liability and the plaintiffs agreed that execution would not be levied against the insured but against the insured’s insurers only.  Thereafter, the insured’s counsel watched without objection while the plaintiffs’ attorney made “improper and censurable” arguments.[30] The plaintiffs’ lawyer told the jury not to consider where the money was going to come from to pay the verdict, that there were substantial sources from which the money would come, and not to take into consideration the source of payment at all.  Subsequently, the jury returned a larger verdict than the one requested by the plaintiffs.

            The insurer in U.S. Fidelity & Guar. Co. challenged the judgment on the ground it was tainted by collusion and fraud because the judgment was based on the insured’s admission of liability under the Section 537.065 agreement.  The insurer also argued the proceedings were not adversarial in nature because the insured’s counsel sat silent why the plaintiffs’ counsel made improper statements in argument.

            On appeal, the Supreme Court of Missouri rejected the insurer’s arguments and upheld the Section 537.065 agreement.  The court concluded the insured’s counsel, “in sitting silent, was not guilty of fraud under the facts because . . . there was no claim or evidence that he agreed in advance as to the improper closing argument or that he knew it was coming.”[31]  The court explained the Section 537.065 agreement was enforceable, despite the insured’s agreement to admit liability, because the agreement was “specifically authorized by the statute and followed the language and purposes thereof.”[32]

            The Southern District of the Missouri Court of Appeals addressed the defenses of fraud and collusion in Cologna v. Farmers & Merchants Ins. Co.[33] In Cologna, the insured admitted liability and agreed to submit to a default judgment after entering into a Section 537.065 agreement with the plaintiff.  After the judgment’s entry, the insurer argued the insured had colluded and conspired to expose the insurer to a substantial loss by permitting the trial court to make extensive findings of fact in connection with the plaintiff’s damage claim.[34]  The court rejected the insurer’s argument, holding the agreement was enforceable because it was “statutorily authorized.”[35]  Id.  The court explained:

[I]t could not fairly be said that the judgment in the wrongful death action was collusive or fraudulent. . . .  [T]he execution and performance . . . pursuant to section 537.065 was in effect a statutorily authorized settlement of the Plaintiff’s claim. . . . Similar agreements have been approved by our courts in varying circumstances.[36]

            Consider also the Southern District’s decision on the enforceability of a judgment entered under Section 537.065 in Vaughan v. Tharp.[37]  In Vaughan, the insurer argued the underlying judgment was the product of fraud and collusion for the following reasons, amongst others: (1) The insured had not been served when the claimant’s attorney met with the insured and suggested to the insured that he hire another lawyer mentioned by the claimant’s attorney and enter into a Section 537.065 agreement; (2) the claimant’s attorney paid $500 to the insured’s mother as a gift and supplied the insured with postage stamps before the Section 537.065 agreement was signed; and (3) the insured maintained that he was not at fault for the underlying car accident.

            Despite these grounds, the court affirmed the judgment.  The court deferred to the trial court’s findings and rejected the insurer’s fraud and collusion arguments.  The court found no impropriety although the claimant’s attorney met with the insured before suit was filed.  The court explained:

Even if it is true that [the insured] had not been served with the lawsuit [when the claimant’s lawyer met with him], we fail to grasp the significance of this fact as it pertains to evidence of fraud or collusion.  [The insured] was in fact sued by [the claimant] and brought into the lawsuit.  It is certainly arguable that [the insured] needed personal representation in view of the fact [the insurer] was refusing to defend without a reservation of rights.  Keeping in mind that collusion must be for the promotion of a fraudulent purpose, [the insurer’s] argument rings hollow.[38]

            Finally, the fact a Section 537.065 settlement involves a large sum is not indicative of fraud or collusion.  In Gulf Ins. Co. v. Noble Broadcast, the Supreme Court of Missouri observed as follows: “The conduct of the insured can hardly be characterized as fraudulent simply because he stipulates to a large settlement figure in order to obtain his release from liability.”[39]

            2.         Reasonableness

In addition to fraud and collusion, an insurer has the right to challenge a Section 537.065 agreement and a resulting judgment on reasonableness grounds.[40]  Fraud and collusion have not been fruitful defenses.  Reasonableness provides a more viable defense.

  A Section 537.065 agreement against a liability insurer is subject to the standard of reasonableness.[41]  The insurer has the burden to show the agreement and judgment are unreasonable.[42]  “The test of whether the settlement amount is reasonable is what a reasonably prudent person in the position of the defendant would have settled for on the merits of the plaintiff’s claim.”[43]  This determination “involves a consideration of the facts bearing on the liability and damage aspects of plaintiff’s claim, as well as the risks of going to trial.”[44]

Reasonableness remains a defense in cases where the trial court decides the amount of the plaintiff’s damages.  In Rinehart v. Anderson, the insured allowed a default judgment to be taken against him as part of a Section 537.065 settlement.[45]  Although the parties did not agree on a specific dollar amount before the default hearing, the reasonableness standard was still held appropriate.[46]

                        3.         Coverage

            The final defense available to insurers against a judgment entered under Section 537.065 is coverage.  The insurer’s right to be heard on the question of coverage survives the insured’s decision to enter into a Section 537.065 agreement.[47]

            D.        The Truck Ins. Exchange Case 

                        1.         Factual Background

            The Truck Ins. Exchange[48] case arises from the death of Eugene Rolfe in an auto accident.  A drunk driver hit Rolfe’s car from behind.  His car caught fire and he died when he could not be extricated from the burning vehicle.

            Rolfe’s family, in turn, brought a wrongful-death action against the drunk driver and the driver’s employer.  The employer’s insurer, Truck Insurance Exchange (TIE), defended the employer initially without a reservation of rights.  Seven months after assuming the defense, TIE issued a reservation of rights letter, expressly reserving the right to disclaim any indemnity obligation.  TIE’s policy had a liability limit of $1 million.

            After TIE’s reservation of rights, the insured demanded that TIE settle the claim within policy limits.  TIE did not do so.  Instead, TIE filed a declaratory judgment action to determine its rights and obligations.  Thereafter, the insured entered into a Section 537.065 agreement with the Rolfe family.

            Under the Section 537.065 agreement, the insured consented to the filing of a second amended petition, which included a covered cause of action for negligent supervision.  In addition, the insured stipulated to liability for that cause of action.  The Rolfe family then tried the issue of their damages in a bench trial.  At the trial, the liability stipulation was introduced into evidence.  The insured put on no evidence of its own. 

            On the damage issue, the Rolfe family offered evidence and requested an award of $11.5 million.  The drunk driver’s counsel suggested an award of $5 million.  The insured’s counsel did not suggest a dollar amount, but acknowledged the Rolfe family had actual damages of $1,801,732.  Thereafter, the trial court entered judgment for the Rolfe family for $5,775,000.  After applying various credits and advance payments, the trial court reduced the insured’s liability under the judgment to $4 million, which was $3 million in excess of TIE’s policy limit.

            TIE litigated its coverage issues and lost in both the trial court and on appeal.  The Western District of the Missouri Court of Appeals concluded that TIE had a duty to defend as well as a duty to indemnify.

                        2.         The Court’s Discussion of Section 537.065

            In opposition to the indemnity claim against it, TIE argued it owed no coverage because the insured had breached both its obligation to allow TIE control over its defense and to cooperate with TIE.  TIE pointed to the insured’s decision to enter into a Section 537.065 agreement with the Rolfe family and to stipulate to liability, amongst other grounds.  TIE further argued it had discharged its defense obligation by defending the insured under a reservation of rights.

            The Western District rejected TIE’s arguments, holding TIE breached its defense obligation, and that by its breach, TIE relieved the insured of all of its obligations under the policy.  The court explained:

[T]he posture of case was this: TIE was defending under a reservation of rights and actively pursuing a declaratory judgment action against [the insured].  [The insured] unequivocally rejected TIE’s continued defense under the reservation of rights and chose to instead assume responsibility for its own defense.  TIE’s continued pursuance of the declaratory judgment and its refusal to remove its reservation of rights at [the insured’s] insistence constituted a refusal to defend.[49]


            The Western District next held:  “Having breached the contract, TIE is “treated as if it waived any control of the defense of the underlying tort action. . . . TIE’s breach also ‘relieved [the insured] from [the] contract[ual] obligation not to settle’ so that it was free to go its own way, and ‘to make a reasonable settlement or compromise without losing [the] right to recover on the policy.’”[50]

                        3.         Bad Faith

            The Rolfe family also brought a bad faith claim against TIE.  On this claim, the trial court entered summary judgment for the Rolfe family, finding TIE liable for the entire $4 million judgment.  In urging reversal of the trial court’s bad faith judgment, TIE argued it should be held liable only for those sums the insured was “forced to pay,” which was a nominal sum under the Section 537.065 agreement.

            The Western District rejected TIE’s argument.  The court first noted the insured’s opposing argument:  “[The insured] responds that because TIE refused to settle, [the insured] was denied the benefit of obligations it was entitled to under the policy and now has an unsatisfied $4,000,000 judgment recorded against it – a judgment that [the insured] has not been released from by the Rolfes.”[51]  Next, the court explained:

Inherent in a policy of insurance is the insurer’s obligation to act in good faith regarding settlement of a claim.  This obligation is part of what the insured pays for.  We find no attraction to a rule that rewards bad faith by relieving the insurer of excess liability if it forces harsh choices onto an insured facing a huge judgment.  When the insurer refuses to settle, the insured loses the benefit of an important obligation owed by the insurer.  An insurer’s ‘mere payment’ of a judgment up to the policy limits does not make the insured whole or put the insured into the same position as if the company had performed its obligations under the policy. . . . The insurer has no incentive to act in good faith.  In fact, if we were to hold as TIE suggests, the insurer could receive a windfall if, to its good fortune, the insured is indigent or is forced into the protection of a bankruptcy or a section 537.065 agreement so that the insured cannot be held legally liable on the judgment.  Likewise, requiring a business or individual to pay the judgment before the insurer is held to its obligations due to its bad faith refusal to settle imposes the very burden on the insured that the requirement of good faith seeks to avoid.[52]

            Finally, the Western District did afford TIE limited relief from the trial court’s bad faith judgment.  The trial court found that TIE had engaged in bad faith as a matter of law.  However, the Western District reversed and remanded for further proceedings, explaining the existence of bad faith is generally a fact question.[53]


                        4.         Reasonableness

            The Western District in Truck Ins. Exchange also addressed the reasonableness of the underlying judgment.  In so doing, the court essentially deferred to the trial court’s findings, explaining:  “The record does not reflect that the trial judge ‘did anything more than view the evidence as an impartial judicial officer and make his own best judgment as to the amount of damages.’’’[54]

            E.         Conclusion

            The Western District’s Truck Ins. Exchange decision may have a significant impact on Missouri insurance law.  The decision upheld a bad-faith-refusal-to-settle judgment against an insurer in a case where the insurer was not in control of the insured’s defense at the time the excess judgment was entered and where the insured had limited or no personal liability for the judgment because of its Section 537.065 agreement with the plaintiff.  It is an open question whether Missouri’s other appellate courts will follow the Western District’s decision.

            The tort of bad faith rests on the insurer’s fiduciary duty to the insured that arises from the insurer’s assumption of control over the insured’s defense in the underlying litigation.  In Truck Ins. Exchange, the insurer had no control over the insured’s defense when the excess judgment was entered.  Therefore, the decision calls into question the accepted elements for a bad faith claim under Missouri law: (1) the liability insurer has assumed control over the negotiation, settlement, and legal proceedings brought against the insured; (2) the insured has demanded that the insurer settle the claim brought against the insured; (3) the insurer refuses to settle the claim within the policy limits; and (4) in so refusing, the insurer acts in bad faith, rather than negligently.[55]

            Moreover, the decision raises the specter of claimants and insureds “setting up” their insurers for bad faith.  Judgments entered after Section 537.065 agreements have exposed insurers to substantial interest liability under their supplementary payments provisions.  These provisions require insurers to pay all interest on a judgment until such time as an insurer pays the judgment or tenders its applicable insurance limit.[56]  Now, in addition to interest liability, insurers may be exposed to bad faith liability in excess of their policy limits for judgments entered in cases in which they had no control over their insureds’ defense when the judgments were entered and for which their insureds have no personal liability because of their Section 537.065 agreements with the plaintiffs.

            The Truck Ins. Exchange decision illustrates the risks to which an insurer may be exposed if the insurer elects to defend its insured under a reservation of rights.  These risks chill an insurer’s right to litigate meritorious coverage defenses.  The insured may reject the insurer’s defense and enter into a Section 537.065 agreement with the plaintiff.  Thereafter, the insurer may be called upon to satisfy a judgment that bears little relationship to the plaintiff’s actual damages, the liability issues, or the insurer’s policy limits.  At the same time, the insurer may be exposed to substantial interest liability as well as possible liability for bad faith in the event the insurer is unsuccessful in litigating its coverage defenses.

            Unless and until there is a change in the law, counsel representing insurers in Missouri must be mindful of the risks presented by Section 537.065.  These risks include liability for judgments that sometimes bear little relationship to the claimant’s damages and the insured’s liability, substantial interest liability under supplementary payments provisions, and now, under the Western District’s Truck Ins. Exchange decision, extra-contractual liability based on bad faith principles.


[1] 162 S.W.3d 64 (Mo. App. 2005).

[2] State ex rel. Rimco, Inc. v. Dowd, 858 S.W.2d 307, 308 (Mo. App. E.D. 1993).

[3] Mistele v. Ogle, 293 S.W.2d 300 (Mo. 1956).

[4] Ballmer v. Ballmer, 923 S.W.2d 365, 368 (Mo. App. W.D. 1996); Whitehead v. Lakeside Hosp. Ass’n, 844 S.W.2d 475, 480 (Mo. App. W.D. 1992).

[5] Whitehead, 844 S.W.2d at 480.

[6] Borgard v. Integrated Nat’l Life Ins. Co., 954 S.W.2d 532, 536-37 (Mo. App. E.D. 1997).  See also Flippin v. Coleman Trucking, Inc., 18 S.W.3d 17, 20-21 (Mo. App. E.D. 2000) (an insurer has no right to intervene to set aside a judgment that has been entered following a Section 537.065 agreement between the plaintiff and the insured).

[7] Whitehead v. Lakeside Hosp. Ass’n, 844 S.W.2d 475, 482 (Mo. App. W.D. 1992) (citation omitted) (emphasis added).

[8] State ex rel. Rimco, Inc., 858 S.W.2d at 308. 

[9] Id.

[10] Ballmer, 923 S.W.2d at 369; State ex rel. Mid-Century Ins. Co., Inc. v. McKelvey, 666 S.W.2d 457, 458 (Mo. App. W.D. 1984). 

[11] State ex rel. Rimco, Inc., 858 S.W.2d at 308.

[12] State ex rel. Rimco, Inc., 858 S.W.2d at 308-09. 

[13] Farmers Mut. Auto. Ins. Co. v. Drane, 383 S.W.2d 714 (Mo. 1964). 

[14] Almon Maus, Missouri Practice, Insurance Law and Practice § 7.46 (1997). 

[15] U.S. Fidelity & Guar. Co. v. Safeco Ins. Co. of Am., 522 S.W.2d 809 (Mo. 1975).

[16] 383 S.W.2d 714 (Mo. 1964).

[17] 513 S.W.2d 418 (Mo. 1974).

[18] Id. at 425.

[19] Id.

[20] Whitehead v. Lakeside Hosp. Ass’n, 844 S.W.2d 475, 480 (Mo. App. W.D. 1992); Cologna v. Farmers & Merchants Ins. Co., 785 S.W.2d 691, 701 (Mo. App. S.D. 1990).

[21] Steve Becker, Comment, The Refusal of Reservation of Rights Defenses and Statutory Settlement Agreements in Missouri, 64 UMKC L. Rev. 787, 808-09 (Summer 1996). 

[22] Id. at 808.  See also Brooner & Assocs. Constr., Inc. v. Western Cas. & Sur. Co., 760 S.W.2d 445 (Mo. App. W.D. 1988) (“Butters is clearly distinguishable from the present case.  Here, Western provided a timely notice of reservation of rights and expressed reasons therefore.”).

[23] McCormack Baron Mgm’t Servs., Inc. v. American Guarantee & Liability Ins. Co., 989 S.W.2d 168, 170 (Mo. banc 1999).

[24] Pink v. Knoche, 103 S.W.3d 221, 227-28 (Mo. App. W.D. 2003).

[25] Whitehead, 844 S.W.2d at 477.

[26] 785 S.W.2d 691 (Mo. App. S.D. 1990).

[27] Id. at 700.

[28] Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 815 (Mo. banc 1997); Butters v. City of Independence, 513 S.W.2d 418 (Mo. 1974).

[29] 522 S.W.2d 809 (Mo. 1975).

[30] Id. at 819. 

[31] Id. at 820. 

[32]  Id. at 820.

[33] 785 S.W.2d 691 (Mo. App. S.D. 1990).

[34] 785 S.W.2d at 699, 701.

[35] Id.

[36] Id. at 701.

[37] 90 S.W.3d 220 (Mo. App. S.D. 2002).

[38] Id. at 225.  See also Houston Gen. Ins. Co. v. Lackey, 907 S.W.2d 177 (Mo. App. W.D. 1995), and Rinehart v. Anderson, 985 S.W.2d 363 (Mo. App. W.D. 1998).

[39] Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 816 (Mo. banc 1997), quoting Steil v. Florida Physicians’ Ins. Reciprocal, 448 So.2d 589, 592 (Fla. Dist. Ct. App. 1984).

[40] Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 816 (Mo. banc 1997); Borgard Integrated Nat’l Life Ins. Co., 954 S.W.2d 532, 537 (Mo. App. E.D. 1997).

[41] Gulf Ins. Co., 936 S.W.2d at 816. 

[42] Id.

[43] Id.

[44] Id.

[45] 985 S.W.2d 363 (Mo. App. W.D. 1998).

[46] Id. at 372.

[47] Butters v. City of Independence, 513 S.W.2d 418 (Mo. banc 1974).

[48] 2005 WL 350340 (Mo. App. W.D.)

[49] Truck Ins. Exchange, 2005 WL 350340 at *21 (Mo. App. W.D.) (citations omitted)(emphasis added).

[50] Id. at *22 (citations omitted).

[51] Id. at *25.

[52] Id.

[53] Id. at *28.

[54] Id.

[55] Bonner v. Auto. Club Inter-Ins. Exchange, 899 S.W.2d 925, 928 (Mo. App. E.D. 1995); State Farm Fire & Cas. Co. v. Metcalf, by Wade, 861 S.W.2d 751, (Mo. App. S.D.1993); Dyer v. General American Life Ins. Co., 541 S.W.2d 702 (Mo. App.1976).

[56] Levin v. State Farm Mut. Auto. Ins. Co., 510 S.W.2d 455 (Mo. banc 1974); Welhoff v. Farm Bureau Town & Country Ins. Co., 54 S.W.3d 589 (Mo. App. W.D. 2001); and White v. Auto Club Inter-Ins. Exchange, 984 S.W.2d 156 (Mo. App. W.D. 1998). 

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