Opinion
No. WD68945
July 1, 2008
Appeal from Circuit Court of Cole County, The Honorable Richard G. Callahan, Judge.
Nicholas M. Monaco, Jefferson City, MO, for appellant.
Thomas W. McCarthy III, Chesterfield, MO, for respondent.
Before: Paul M. Spinden, Presiding Judge, James E. Welsh, Judge, and Alok Ahuja, Judge.
MSEJ is a Delaware limited liability company that purchased the insurance claims that the defunct Johns-Manville Corporation held against Transit Casualty Company. Transit is a Missouri insurance company that is in a receivership under the circuit court's oversight. MSEJ submitted more than $19 million in claims to the Transit receiver, but, with the circuit court's apparent approval, the receiver rejected them, and MSEJ appeals.
The receiver rejected MSEJ's claims on the ground that MSEJ did not provide sufficient evidence to support them. A referee appointed by the circuit court affirmed the denial and declared that, because an announced deadline for submitting claims had expired, MSEJ was barred from presenting additional evidence to support the claims. MSEJ filed a motion asking for reconsideration. Pursuant to Section 375.1214, RSMo 2000, the referee's findings of fact and conclusions of law became final when the circuit court did not rule on MSEJ's motion.
We must affirm the circuit court's judgment unless it is not supported by substantial evidence viewed in the light most favorable to the judgment or is against the weight of the evidence or erroneously declares or applies the law. Viacom Inc. v. Transit Casualty Company, 138 S.W.3d 723, 724 (Mo. banc 2004). We reverse the circuit court's judgment because it misapplies the applicable law.
Pursuant to the power accorded by Section 375.670.1, RSMo 2000, Transit's receiver and the circuit court established procedures for claims against Transit, including promulgation of Rule 75, for administering Transit's liquidation. Rule 75.6(b) said:
The failure of a Claimant to file a Claim on or before December 31, 1987 will result in one of the following:
(1) The SDR [(Special Deputy Receiver)] may admit the Claim as "timely — filed" (i.e.[,] as if it [were] filed on or before December 31, 1987) by applying Receivership Court and Missouri Appellate Court decisions relating to Post — Bar Date Claims (based on the information available) or issue an interlocutory decision to admit the Claim pending receipt of further information. The SDR may then proceed to determine whether the Claim should be allowed or disallowed, in whole or in part, as provided in paragraph 75.7(b) of this Rule. In making this decision on whether to admit a Post — Bar Date Claim as timely filed, the SDR shall consider the following test:
a. the Claimant did not know of the Claim prior to the December 31, 1987 bar date;
b. the Claimant filed the Claim with the Receivership as promptly as reasonably possible upon learning of the Claim;
c. the Claim is covered by the policy; and
d. allowance of the Claimant's late — filed Claim will not prejudice the orderly administration of the liquidation of the Receivership.
(2) The SDR may, as an interlocutory determination, disallow a Claim as untimely and request the Receivership Court to hear and consider evidence and rule on the reasons for the failure to timely file the Claim prior to making any Determination on the merits of the Claim.
(3) The SDR may disallow the Claim as untimely filed and/or not an allowable claim on the merits in any event.
Rule 75.2(d) defined a "claim" as "any Official Claim Form or any other writing received by the Receivership the content of which would cause an ordinarily and reasonably prudent person to conclude, based upon reasonable and identifiable evidence, that monies may be owed to a Claimant."
Hence, according to Rules 75.2(d) and 75.6, a claimant had to file evidence by December 31, 1987, that would cause a reasonably prudent person to conclude that Transit owed the claimant money. Rule 75.6 allowed the receiver to accept claims after this deadline for an indefinite period as long as the claim satisfied the test set out in Rule 75.6(b)(1). Rule 75 did not set an absolute deadline when the receiver would no longer accept claims. Rule 75.6 vested the receiver with discretion to determine the appropriate option.
Rule 75.32(b) authorized the circuit court to establish administrative orders that it deemed necessary for administering the estate. Pursuant to this authority, the circuit court enacted Administrative Order No. 49, which said:
Rule 75.32(b) said, "The Court shall have authority to issue Administrative Orders from time to time, either upon motion of the SDR orsua sponte, as it deems reasonable and necessary for the administration of the Receivership and the administration of the Disputed Claims office."
Based upon reports from the Special Deputy Receiver, it is apparent that this Receivership is now in its final stages. In order to expedite the closure of the Receivership, this court has determined that it is necessary that all Class III claimants, as defined by Section 375.70 . . . present evidence of all unresolved claims, whether existing or contingent, to the Special Deputy Receiver so that he can make final determination on such claims.
In order to effectuate this strategy[,] all claimants, including those that have already filed policyholder protection proof of claim forms, must file the existing evidence of their current unresolved claims and any actuarial evidence . . . at their present value, of future claims that may be covered by a Transit policy or other contract by 3/15/01. After that date no new claims or evidence of claims shall be accepted by the Special Deputy Receiver.
We added the emphasis.
Administrative Order No. 49 set a deadline of March 15, 2001, for submitting claims.
According to well — established law, the circuit court has wide discretion to expedite closure of an estate. Angoff v. Holland — America Insurance Company, 937 S.W.2d 213, 217 (Mo.App. 1996). Transit had been in receivership since 1985, and the original deadline for claims was December 31, 1987. Setting March 15, 2001, as the date to close the estate seems reasonable. We do not discern a basis for concluding that the circuit court abused its discretion in setting the deadline in Administrative Order No. 49.
On March 1, 2001, MSEJ sent the receiver a letter in which it asserted a right to recover for personal injury claims:
I refer to the legal notice of the March 15, 2001 cut off — date for the submission of Class III claims against Transit Casualty Company. This letter and attachment constitutes the submission of a timely proof of claims on behalf of MSEJ, LLC, which holds . . . all rights to collect insurance . . . for asbestos — related property damage and personal injury claims[.]
To date, the claims that have been asserted against Transit for claims against Johns-Manville have included only property damage claims. We now seek to supplement MSEJ's claims against Transit with the personal injury claims that are covered by the same policies as listed above.
Attached to the letter was a one — page summary of the totals that the Johns-Manville Personal Injury Settlement Trust had paid for personal injuries resulting from asbestos exposure. MSEJ also provided a copy of the trust's consolidated financial statements for the quarter ending on September 30, 2000.
On July 13, 2005, the receiver issued notice that it was denying MSEJ's claims on four grounds: (1) MSEJ filed its claims after the "post bar date" of December 31, 1987; (2) MSEJ's claims were not within the terms of Transit's policy; (3) MSEJ's claims were not part of the assignment from the property damage trust of Johns-Manville; and (4) MSEJ filed insufficient evidence to support its claims. In affirming the receiver's denial, the referee said in his findings of facts and conclusions of law:
MSEJ, LLC has failed to meet [its] burden to establish that Administrative Order 49 should not apply and to provide sufficient evidence to establish a claim and therefore the Referee's recommendation is to deny the claims filed on March 1, 2001.
Further, MSEJ, LLC should be estopped from making any further claims in that evidence demonstrates that all of the elements of estoppel as outlined by the Missouri Supreme Court have been met.
Regarding the referee's first basis for denying its claims — that MSEJ presented insufficient evidence to support its claims — MSEJ contends that the circuit court erred for two reasons. First, it had submitted sufficient evidence by March 15, 2001, to support its claims. Second, even if it had not, it should have been allowed to introduce supplemental evidence when it appealed the decision to the referee.
MSEJ concedes that it did not submit certain information by the March 15, 2001, deadline set in Administrative Order No. 49. For example, it did not provide the names of the persons who had made personal injury claims against Johns-Manville, and it did not identify their specific illnesses or injuries. MSEJ contends that, although some details were not explained, it presented sufficient information to establish that Transit owed MSEJ money. Even if MSEJ is correct that it did not need to provide such details as the names and illnesses or injuries of Johns-Manville's employees — a very dubious proposition — the record establishes that it did not provide sufficient evidence by March 15, 2001. MSEJ presented no evidence that the injuries were first diagnosed within the policy period, and it did not submit evidence of any collateral payouts from workers' compensation, unemployment compensation, or disability benefits law. The referee also had the deposition testimony of William Barbagallo, an employee of Navigator Consulting who specialized in insolvency and claims audits. He noted that MSEJ's evidence included only the Transit policy numbers and gross dollars amounts and did not include any actuarial information or any information regarding specific exhaustion information by the underlying carrier.
On appeal, MSEJ does not dispute these findings. We do not discern a sound basis for concluding that the referee erred in concluding that the receiver correctly determined that MSEJ failed to provide sufficient evidence for its claims by March 15, 2001.
Hence, for MSEJ to maintain its claims, it had to establish that the referee wrongfully denied it an opportunity to produce supplemental evidence when he reviewed its claim. MSEJ asserts that Section 375.1214.2 gave it a right to present supplemental evidence. Section 375.1214 required the circuit court or its referee to review the receiver's denial of a claim. If either affirmed the denial, the statute authorized the claimant to file a motion for reconsideration with the circuit court.
Section 375.1214.2 says, "Whenever objections are filed with the liquidator and the liquidator does not alter his denial of the claim as a result of the objections, the liquidator shall ask the court for a hearing as soon as practicable and give notice of the hearing by first class mail to the claimant or his attorney and to any other persons directly affected, not less than ten nor more than thirty days before the date of the hearing. The matter may be heard by the court or by a court — appointed referee. Hearings before court — appointed referees shall be conducted in an informal manner and the formal rules of evidence shall not apply. The referee shall submit written findings of fact and conclusions of law along with his recommendation for disposition which shall become final if a motion for reconsideration before the court is not filed by the liquidator or claimant with the court within fifteen days that notice of such findings and conclusions is mailed to the parties. The motion for reconsideration shall allege either the existence of new facts which could not, with reasonable diligence, have been discovered and presented before the referee, or such erroneous conclusions of law, that would justify reconsideration of the claim by the court. A motion for reconsideration based upon erroneous conclusions of law may be decided by the court, after opportunity for response by the prevailing party, without necessity of hearing. A motion for reconsideration not ruled upon by the court within ninety days after the motion is filed shall be deemed denied for purposes of appeal."
Concerning review by the referee, Section 375.1214 is silent concerning a claimant's right to present additional evidence. It says only, "The matter may be heard by the court or by a court — appointed referee. Hearings before court — appointed referees shall be conducted in an informal manner and the formal rules of evidence shall not apply."
MSEJ contends that Administrative Order No. 49 was not a proper basis for prohibiting it from introducing supplemental evidence. It asserts that the order unambiguously prohibited only the receiver from accepting additional evidence after March 15, 2001, and that nothing in the order limited what evidence a claimant could introduce at a hearing held pursuant to Section 375.1214. It further argues that, because Administrative Order No. 49 did not mention Section 375.1214 and did not refer to the referee, the order did not limit the type of evidence that the referee was required or authorized to examine.
We agree that Administrative Order No. 49 was not the governing instrument. By the order's express language, the March 15, 2001, deadline applied only to the receiver and did not pertain to whether or not a claimant could submit supplemental evidence on appeal to the referee.
The governing instrument was Rule 75. It governed procedures for making claims, including what evidence a claimant had to present in support of a claim. Rule 75.13 said:
Each Disputed Claim shall be adjudicated by the Receivership Court or Referee on the basis of written submissions and oral arguments as set forth in paragraph 75.18 of this Rule, unless either the Claimant whose Claim is currently under consideration or the SDR files a request for an evidentiary hearing with the Receivership Court to be conducted in accordance with the procedures set forth in paragraph 75.22 of this Rule.
MSEJ originally requested an evidentiary hearing but withdrew the request and submitted to an oral argument under Rule 75.18. Rule 75.18 declared that Rule 75.19 governed oral argument, and Rule 75.19 said:
a. Unless the Receivership Court has granted a request for an evidentiary hearing in a Disputed Claim proceeding, the Disputed Claim proceeding will be conducted based on the written submissions and oral argument of the Participants. . . . In preparing the written submissions, the Participants may only rely upon, summarize and quote directly from the documents in the Case File and the documents produced in the mandatory disclosures, as well as any discovery allowed by the Court. . . . No other submissions shall be made by the Participants unless specifically requested by the Receivership Court or Referee.
b. The written submissions shall include: (1) a statement of the contested issues of fact and law to be determined by the Receivership Court or Referee; (2) a list of exhibits relied upon, including affidavits submitted; and (3) a legal brief.
We added the emphasis.
Rule 75.17(a) added:
[T]he Claimant shall provide the SDR and the Clerk . . . with a written submission stating the amount the Claimant asserts is due under the Transit policy or policies, the method of calculation of the amounts owed and the allocation methodology (if applicable), along with any additional documents or other evidentiary material that the Claimant contends support the amount claimed due or are relevant to the subject of the Certified Question. These documents submissions will be considered "mandatory disclosures."
We added the emphasis.
These rules required a claimant to submit a written claim in which it could rely on documents that were in the case file and "documents produced in mandatory disclosure." According to Rule 75.17, these documents would include any additional documents or evidentiary materials that the claimant believed supported his or her position. Hence, although Administrative Order No. 49 prohibited the receiver from examining any evidence after March 15, 2001, Rule 75.19 and Rule 75.17 set out no such limitations. These rules required the referee to examine MSEJ's written submission to determine whether or not it cited to supplemental evidence that would cure the deficiencies in MSEJ's original claims request.
Transit argues that this interpretation of the rules is at odds with Administrative Order No. 49's stated purpose of closing up the estate. Transit reasons that setting a deadline for submitting evidence but then allowing a claimant to submit that evidence when it appeals the receiver's decision makes little sense. Although this is a reasonable and pragmatic argument, it is contrary to Rule 75, which allows the claimant to cite to additional evidence — beyond "the documents in the case file" — in the claimant's written submissions to the referee. It also is contrary to Administrative Order No. 49, which expressly applied the March 15, 2001, deadline only to the receiver's action. Moreover, we find it plausible that the court would set a deadline for submitting new claims to the receiver but would permit additional evidence for those claims already in the process and to be submitted to the referee. MSEJ met the order's deadline for submitting its claims to the receiver. Having met that deadline, Rule 75 provides that the referee could, on appeal, consider supplemental information. Hence, the referee erred in not examining MSEJ's supplemental evidence to determine whether or not it established that Transit owed MSEJ money.
As the second basis for denying MSEJ's claims, the referee found that MSEJ was equitably estopped from asserting its claims because it had made previous representations to the receiver that it would be making no further claims against the estate.
Estoppel, disfavored by courts, consists of three elements: (1) an admission, statement, or act by the person to be estopped that is inconsistent with the claim that is later asserted and sued upon; (2) an action taken by a second party on the faith of such admission, statement or act; and (3) an injury to the second party which would result if the first party is permitted to contradict or repudiate his admission, statement or act.
Barry Simon Development, Inc. v. Hale, 210 S.W.3d 312, 317 (Mo.App. 2006). Each element must be established by clear and sufficient evidence. Finova Capital Corporation v. Ream, 230 S.W.3d 35, 51 (Mo.App. 2007).
Assuming that MSEJ represented to Transit that it did not intend to pursue additional claims and Transit relied on these representations, MSEJ would not be estopped from pursuing additional claims — on this record — because Transit has suffered no prejudice from its reliance. The only prejudice that would have resulted from MSEJ's pursuing additional claims was to lessen the amount of money available to pay other creditors. Transit has cited no cases — and we have found none — in which harm to a third party is a basis for asserting estoppel. The referee erred in holding, based on this record, that equitable estoppel barred MSEJ's claims.
The referee also found that "[s]ome time prior to 2001," and in reliance on MSEJ's or Johns-Mansville's statements or conduct, "Transit commuted the reinsurance on the Mansville claims" and "did not have anyway to recover reinsurance on the new claims made by MSEJ." As MSEJ points out, however, Transit presented no evidence of any specific reinsurance settlement that it entered in reliance on or how that settlement was impacted by the conduct purportedly establishing estoppel. This issue remains open on remand.
The referee's two grounds for denying MSEJ's claims, therefore, were insufficient. On remand, the referee shall examine the receiver's four grounds for denying MSEJ's claims and make express findings on all four. In reviewing the receiver's fourth reason — that the evidence submitted, by March 15, 2001, was insufficient — the referee must examine MSEJ's written submission to determine whether or not it cited to supplemental evidence that cured the deficiencies in MSEJ's original claims request. The referee may also permit Transit to present additional evidence in support of its estoppel argument.
James E. Welsh, Judge, and Alok Ahuja, Judge, concur.
MSEJ is a Delaware limited liability company that purchased the insurance claims that the defunct Johns-Manville Corporation held against Transit Casualty Company. Transit is a Missouri insurance company that is in a receivership under the circuit court's oversight. MSEJ submitted more than $19 million in claims to the Transit receiver, but, with the circuit court's apparent approval, the receiver rejected them, and MSEJ appeals.*
Reversed and remanded.
Division holds:
As the first basis for denying MSEJ's claims, the referee found that MSEJ did not provide sufficient evidence to the receiver to support them. On appeal, the referee refused to consider any additional evidence. The court should have allowed MSEJ to provide additional information on appeal. Local Rule 75 required a claimant to submit a written claim in which it had, at least, cited the documents that were in the case file. According to Rule 75.17, these documents would include any additional documents or evidentiary materials that the claimant believed supported his or her position. According to these rules, the referee should have examined MSEJ's supplemental evidence to see whether or not it cured the deficiencies in MSEJ's original claims request.
As the second basis for denying MSEJ's claims, the referee found that MSEJ was equitably estopped from asserting its claims because it had made previous representations to the receiver that it would be making no further claims against the estate. Assuming that MSEJ represented to Transit that it did not intend to pursue additional claims and Transit relied on these representations, MSEJ would not be estopped from pursuing additional claims — on this record — because Transit has suffered no prejudice from its reliance. The only prejudice that would have resulted from MSEJ's pursuing additional claims was to lessen the amount of money available to pay other creditors. Transit has cited no cases — and we have found none — in which harm to a third party is a basis for asserting estoppel
This summary is UNOFFICIAL and should not be quoted or cited.