author: JOHN E. PARRISH, Presiding Judge.

text:
    GREENPOINT CREDIT, L.L.C., Appellant, v. Vernon REYNOLDS and Mary Nations, Respondents.
    No. 26134.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 9, 2004.
    Motion for Rehearing or Transfer to Supreme Court Denied Nov. 30, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      David G. Wasinger, James S. Cole, Murphy Wasinger, L.C., St. Louis, John Holstein, Shughart Thompson & Kilroy, P.C., Springfield, for appellant.
    Jeffrey L. Dull, Christopher S. Hite, Matthew D. Lowe, Dull, Hite & Lowe, L.L.C., Clinton, for respondents.
   JOHN E. PARRISH, Presiding Judge.

GreenPoint Credit, L.L.C. (GreenPoint) appeals a judgment and order denying a motion to compel arbitration. See § 435.440.1(1). This court affirms in part, reverses in part, and remands with directions.

In December 1999, GreenPoint and Vernon Reynolds entered into a contract by which Reynolds purchased a manufactured home. The contract provided that Reynolds would pay GreenPoint $360.95 per month for a period of 240 months, beginning January 20, 2000. The contract granted GreenPoint a security interest in the property. GreenPoint was given the right to repossess the property if Reynolds defaulted. The contract provided that “default” included failure to make any payment when due. GreenPoint perfected its security interest in the property by recording it on the certificate of title to the manufactured home.

On October 11, 2002, GreenPoint filed a petition for replevin of the manufactured home in the Circuit Court of Hickory County, the county in which the manufactured home was located. The petition named Vernon Reynolds and Mary Nations as defendants. It alleged that Mary Nations was in possession of the property GreenPoint sought to replevy. A replevin bond was filed and approved by the trial court and an order of replevin entered.

Reynolds and Nations answered and counterclaimed. They denied Reynolds had defaulted in making payments under the terms of the contract. They alleged various affirmative defenses and asserted six counterclaims. Reynolds filed counterclaims for “wrongful replevin and conversion” (Count I), “fraud and fraudulent misrepresentations” (Count II), “abuse of process” (Count III), and “defamation” (Count VI). Nations filed counterclaims for “wrongful replevin and conversion” (Count IV) and “invasion of privacy” (Count V).

GreenPoint filed a motion to compel arbitration based on a provision in its contract with Reynolds that provided:

a. Arbitration. You and I agree to arbitrate any and all (1) disputes, torts, counterclaims, or any other matter in question between you and I arising out of, in connection with, or in any way relating to this Agreement (“Claims”) (including whether a Claim must be arbitrated) and (2) any Claims arising out of, in connection with, or relating to a transaction involving you and I and one or more third parties who have not signed this Agreement which a third party elects to arbitrate (“Third Party Claims”). However, neither you or I can require the other to arbitrate (1) any proceeding in which a hen holder may acquire or convey title to or possession of any property which is security under this Agreement, or (2) an application by or on behalf of me for relief under the federal bankruptcy laws or any other similar laws of general application for the relief of debtors. Enforcement of this exception to arbitration at any time will not waive the right to arbitrate any other Claim or Third Party Claim, including those asserted as a counterclaim in a lawsuit under this exception to arbitration.

The trial court denied the motion finding:

First, the contract is a preprinted contract that is adhesive in nature. Second, the contract lacks mutuality in that it allows [GreenPoint] to pursue certain state court remedies, but precludes [Reynolds and Nations] from pursuing their claims in state court. Finally, by bringing this replevin in state court, [GreenPoint] is estopped from asserting the arbitration provision against [Reynolds and Nations].

GreenPoint’s Brief

GreenPoint raises one point on appeal. It states:

The circuit court erred in denying [GreenPoint’s] motion to compel arbitration, because arbitration of [Reynolds’ and Nations’] counterclaims was mandated in that (1) the Federal Arbitration Act governs, and (2) on the record presented, the arbitration agreement is valid and enforceable.

Rule 84.04(d)(1) states requirements for points on appeal directed to decisions of trial courts. A point relied on must (1) identify the trial court ruling being challenged; (2) state concise legal reasons for the claim of error; and (3) explain in summary fashion, in the context of the case, what supports the legal reasons stated. GreenPoint’s point complies with requirements (1) and (2); however, it fails to provide the information required by (3), viz., in what manner, in the context of the case, the record before the trial court failed to support the legal reasons GreenPoint claims resulted in error.

An insufficient point on appeal preserves nothing for appellate review. Tidball v. A.G. Service Center, L.C., 75 S.W.3d 850, 853 (Mo.App.2002). However, “[w]hether to dismiss an appeal for deficiencies in an appellant’s brief is discretionary.” Keeney v. Missouri Highway and Transp. Com’n., 70 S.W.3d 597, 598 n. 1 (Mo.App.2002). “That discretion is generally not exercised unless the deficiency impedes disposition on the merits.” Id. “A brief impedes disposition on the merits where it is so deficient that it fails to give notice to [the court] and to the other parties as to the issue presented on appeal.” Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997). Having considered the argument portion of GreenPoint’s appellant’s brief and having received no objection from respondents, this court concludes the deficiency does not prevent the court or the other parties from identifying the issue presented; that it is appropriate to address GreenPoint’s allegation of error on the merits.

Enforceability of Arbitration Agreements

GreenPoint argues the trial court applied Missouri law; that it did not apply the Federal Arbitration Act. The only reference to applicable law in the order that has been appealed appears in the last sentence of the last paragraph. The printed text of the paragraph (which appears to be a proposed order provided by GreenPoint) states, before editing by the trial court, “This Court hereby orders [GreenPoint’s] Motion to Compel Arbitration is [sic] denied. Pursuant to R.S.Mo § 435.440 and 9 U.S.C. § 16, this constitutes an appealable order.” The trial court modified the proposed order by delineation, drawing a line through the words “and 9 U.S.C. § 16.” GreenPoint seems to suggest that this is a determination by the trial court that the Federal Arbitration Act does not apply.

The Federal Arbitration Act applies to contracts involving interstate commerce. Triarch Industries, Inc. v. Paul A. Crabtree d/b/a Crabtree Painting, Inc., — S.W.3d -, No. 61578, p. 3, 2004 WL 941218 (Mo.App.W.D. filed May 4, 2004). “[I]nvolving [interstate] commerce” is the functional equivalent of “affecting commerce.” MThe contract in this case specifies that arbitration will be governed by the Federal Arbitration Act. Further, the title to the manufactured home identifies GreenPoint’s address as San Diego, California. Antonio Siso, legal department manager for GreenPoint, according to his affidavit in support of replevin, resides in Georgia. The contract was assigned to Bank One National Association. Clearly, the contract that GreenPoint entered into with Reynolds affects interstate commerce.

Before a court may compel arbitration pursuant to the Federal Arbitration Act, it must determine whether a valid agreement to arbitrate exists between the parties and whether the substance of the disputes are issues of the type required to be arbitrated. Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 427-28 (Mo. banc 2003). “A court must compel arbitration if it determines that the parties agreed to arbitrate the dispute.” Id. at 428, citing Houlihan v. Offerman & Co., Inc., 31 F.3d 692, 695 (8th Cir.1994). The issue, therefore, becomes whether the disputes between the parties to this action are within the parameters of the arbitration provision of the contract. Whether a dispute is covered by an arbitration provision is a question of law. Dunn, supra. “An appellate court’s review of the arbitra-bility of a dispute is de novo.” Id.

Who Was Bound by the Contract?

The parties to the contract that contains the arbitration clause are Vernon Reynolds and GreenPoint. Reynolds is identified in the contract as “borrower.” GreenPoint is identified as “lender.” Mary Nations is not a party to the agreement.

Arbitration is a matter of contract and absent an agreement to arbitrate, a person cannot be compelled to do so. Dunn, supra, at 435. See also Greenwood v. Sherfield, 895 S.W.2d 169, 174 (Mo.App.1995). A non-signatory party to an arbitration agreement can, however, be bound by the agreement if he or she is an agent of a signing party or is a third-party beneficiary of the contract. See Byrd v. Sprint Comm. Co., L.P., 931 S.W.2d 810, 813-15 (Mo.App.1996). There is no contention that Mary Nations was an agent of a signing party. GreenPoint contends, however, that it was apparent that acquisition of the manufactured home was for Ms. Nations; that, therefore, she was an intended beneficiary of the contract.

The problem with GreenPoint’s assertion is that “[i]n determining whether [a party] was a third-party beneficiary to the contract, ‘the question of intent is paramount ... [and] is to be gleaned from the four comers of the contract [.]’ ” Wilson v. General Mortgage Co., 638 S.W.2d 821, 823 (Mo.App.1982) (emphasis added), quoting Laclede Inv. Corp. v. Kaiser, 596 S.W.2d 36, 41 (Mo.App.1980). The contract expressed no intent to benefit Ms. Nations individually or as a member of an identifiable class. The record does not support a claim that the parties contracted other than for themselves without regard to others. Mary Nations was not bound by the arbitration clause of the agreement to which she was neither a party nor a third-party beneficiary. The trial court committed no error in denying the motion to enforce arbitration with respect to Mary Nations. Claims she has asserted against GreenPoint are not covered by the arbitration agreement in GreenPoint’s contract with Vernon Reynolds.

Issues Determined by the Trial Court

GreenPoint argues that each of the findings on which the trial court based its decision to deny GreenPoint’s motion to compel arbitration was erroneous. Its first finding was that the contract was adhesive in nature.

“In Missouri, an adhesion contract, as opposed to a negotiated contract, has been described as a form contract created and imposed by a stronger party upon a weaker party on a ‘take this or nothing basis,’ the terms of which unexpectedly or unconscionably limit the obligations of the drafting party.” Hartland Computer Leasing Corp., Inc. v. Insurance Man, Inc., 770 S.W.2d 525, 527 (Mo.App. E.D.1989). Adhesion contracts usually involve the unequal bargaining power of a large corporation versus an individual and are often presented in pre-printed form contracts. See High Life Sales Company v. Brown-Forman Corp., 823 S.W.2d 493, 497 (Mo.banc 1992). But they are not “inherently sinister and automatically unenforceable.” Hartland Computer, 770 S.W.2d at 527. Because the bulk of contracts signed in this country are form contracts — “a natural concomitant of our mass production-mass consumer society” — any rule automatically invalidating adhesion contracts would be “completely unworkable.” Id. Rather, our courts seek to enforce the reasonable expectations of the parties. Id. Only those provisions that fail to comport with those reasonable expectations and are unexpected and unconscionably unfair are unenforceable. Id. at 528. “Because standardized contracts address the mass of users, the test for ‘reasonable expectations’ is objective, addressed to the average member of the public who accepts such a contract, not the subjective expectations of an individual adherent.” Id.

Swain v. Auto Services, Inc., 128 S.W.3d 103, 107 (Mo.App.2003).

An agreement to settle disputes through arbitration instead of litigation is not unconscionably unfair even between parties of unequal bargaining power. Id at 108. Mindful of the public policy favor-mg arbitration, see Dunn, 112 S.W.3d at 427, this court concludes that the average member of the public who accepts a contract such as the one entered into between GreenPoint and Vernon Reynolds would reasonably expect disputes involving whether either party was in default under its terms to be subject to arbitration rather than litigation. An agreement to settle disputes of that nature by arbitration instead of litigation is not unreasonably unfair, even between parties of unequal bargaining power. A provision so requiring is not unenforceable on the basis that it is a contract of adhesion. Additionally, however, the contract provides that neither party can require the other to arbitrate certain issues. This includes “any proceeding in which a lien holder may acquire or convey ... possession of any property which is security under [the] Agreement.”

GreenPoint’s replevin action is a proceeding to recover possession of the manufactured home. The manufactured home is security for the indebtedness created by the terms of the contract. The replevin action is, therefore, an exception to arbitration. GreenPoint, as a lien holder, is permitted by the terms of the contract to pursue replevin in state court.

A person accepting a contract that excepts a lien holder’s action to acquire possession of the manufactured home from arbitration would not reasonably expect to be denied access to the state court in which the lien holder brings such an action in order to challenge the lien holder’s claim and seek appropriate relief for wrongs by the lien holder that arise out of the facts that are at issue. To the extent the contract entered into by GreenPoint and Vernon Reynolds suggests otherwise, it is unconscionable and unenforceable.

The trial court found the contract lacked mutuality. Mutuality of obligation exists when both parties to a contract agree to certain obligations to the other, notwithstanding that the respective obligations need not be equal or commensurate with one another. Warren v. Ray County Coal Co., 200 Mo.App. 442, 207 S.W. 883, 885 (1919). The arbitration provision of the contract requires each party to arbitrate all disputes, torts, counterclaims, or any other matter in question between GreenPoint and Reynolds arising out of, in connection with, or in any way relating to the contract. However, neither party can require the other to arbitrate any proceeding in which a lien holder may acquire or convey title to, or possession of, property that is security by reason of the contract terms. Each party has obligations to the other with respect to disputes of the type specified by the contract. Having found the part of the contract that limited Reynolds’ access to state courts while permitting GreenPoint access to be unconscionable and unenforceable, the contract does not lack mutuality of obligation.

This court further holds that GreenPoint is not estopped from asserting the contract’s arbitration provision by reason of GreenPoint having sought replevin in state court.

Although the right to arbitrate under the [Federal Arbitration Act] can be waived, the facts of each case determine whether waiver has occurred. Berhorst v. J.L. Mason of Missouri, Inc., 764 S.W.2d 659, 662 (Mo.App.1988). A finding that arbitration has been waived is not favored and there is a presumption against waiver. Id. Both Missouri and federal courts have adopted the same three-factor test to establish waiver of the right to arbitrate. The test requires that the party seeking to establish waiver bear the burden of demonstrating that the alleged waiving party: “(1) had knowledge of the existing right to arbitrate; (2) acted inconsistently with that existing right; and (3) prejudiced the party opposing arbitration by such inconsistent acts.” Id.; Stifel, Nicolaus & Co. Inc. v. Freeman, 924 F.2d 157, 158 (8th Cir.1991). In considering this three-factor test, any doubts as to whether waiver has occurred must be resolved in favor of arbitration. Freeman, 924 F.2d at 158. Whether the party opposing arbitration has been prejudiced by acts inconsistent with arbitration is a determination to be made on a case-by-case basis. Id. at 159. “Prejudice may result from lost evidence, duplication of efforts, use of discovery methods unavailable in arbitration, or litigation of substantial issues going to the merits.” Id.

McCarney v. Nearing, Staats, Prelogar and Jones, 866 S.W.2d 881, 890 (Mo.App.1993).

GreenPoint’s conduct in filing the re-plevin action was not inconsistent with its right to arbitrate in that the filing of that particular type of action directed to collateral was permitted by the terms of the arbitration provision. Furthermore, Reynolds was not prejudiced by that act in that, as heretofore discussed, Reynolds may pursue actions of his own, as part of this proceeding, that are related to the claim for possession of the collateral GreenPoint seeks. The trial court’s holding that GreenPoint waived the arbitration rights provided by the contract by proceeding with its replevin claim in state court was error. GreenPoint committed no waiver.

Conclusion

The claims asserted by Mary Nations (Counterclaim Counts IV and V) are not subject to the arbitration provision of the contract between GreenPoint and Vernon Reynolds. Vernon Reynolds’ claims for wrongful replevin and conversion (Counterclaim Count I), fraud and fraudulent misrepresentations (Counterclaim Count II), and abuse of process (Counterclaim Count III) are not subject to the arbitration claim in that the part of the arbitration provision that would deny Reynolds access to a state court in which GreenPoint seeks possession of collateral is unconscionable and unenforceable. Vernon Reynolds’ claim for defamation (Counterclaim Count VI) is within the parameters of the arbitration agreement in that disposition of it requires reference to the contract. The order and judgment denying GreenPoint’s motion to compel arbitration is reversed as to Counterclaim VI, Vernon Reynolds’ defamation claim. In all other respects the order and judgment are affirmed. The case is remanded with directions to enter an order directed to the motion to compel arbitration that is consistent with this opinion.

BATES, C.J., and SHRUM, J., concur.

      . References to statutes are to RSMo 2000 unless stated otherwise.

      . The agreement described the manufactured home as including air conditioning, steps, and skirting. References in this opinion to the manufactured home are intended to include those items.

      . An order denying arbitration is appealable pursuant to both Missouri law, see § 435.440.1, and the Federal Arbitration Act, see 9 U.S.C. § 16(a)(1)(B). State procedural law may be followed so long as the procedure does not defeat the substantive rights of the federal act. See Greenwood v. Sherfield, 895 S.W.2d 169, 172 (Mo.App.1995). “When arbitration is pursuant to the federal act but enforcement is sought in a Missouri court, the substantive law of the Federal Arbitration Act, 9 U.S.C. § 2, is to be given effect. McClellan v. Barrath Construction Co., Inc., 725 S.W.2d 656, 658 (Mo.App.1987). However, 'the procedural provisions of the Federal Arbitration Act are not binding on state courts ..., provided applicable state procedures do not defeat the [substantive] rights granted by Congress.’ Id. See Bunge Corp. v. Perryville Feed & Produce, Inc., 685 S.W.2d 837, 839 [3, 4] (Mo. banc 1985)." Id.

      . The arbitration clause, quoted, supra, permits a third party to elect to arbitrate certain claims. Maty Nations did not elect to submit any claim for arbitration.

      . Reynolds and Nations argue that another provision of the contract, one that limits damages to actual and direct damages and waives rights to consequential, punitive or treble damages, renders the agreement unconscionable. A remedial provision such as this is severable from the other part of the arbitration provision in that it is set out in a subparagraph separate from the arbitration provision. It does not render the agreement unconscionable. See Swain v. Auto Services, Inc., supra, at 109.


source: Caselaw Access Project

author: ROBERT S. BARNEY, Judge.

license: Public Domain

text:
    Melissa GREEN, Appellant, v. MISSOURI DEPARTMENT OF TRANSPORTATION, a/k/a Missouri Highway and Transportation Commission, Donald Weaver and Mark Simpson, Respondent.
    No. 25970.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 12, 2004.
    Motion for Rehearing or Transfer Denied Dec. 6, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      J. Michael Ponder, Kathleen A. Wolz, John M. Albright, Cape Girardeau, for appellant.
    Brill, Moore & Wagoner, P.C., West Plains, for respondent Mark Simpson.
    John L. Oliver, Jr., Cape Girardeau, for respondent Donald Weaver.
    Zachary T. Cartwright, Sen. Lit. Counsel, Rich Tiemeyer, Chief Counsel, Jefferson City, for Amicus Curiae, Mo. Hwys & Transp. Comm’n.
   ROBERT S. BARNEY, Judge.

Melissa Green (“Appellant”) appeals from an “Order and Judgment” entered by the Circuit Court of Shannon County, Missouri, dismissing her second amended petition for damages brought against Respondent Donald Weaver (‘Weaver”) and Respondent Mark Simpson (“Simpson”), (collectively “Respondents”), for acts committed within the scope of their employment with the Missouri Department of Transportation (“MoDoT”).

Appellant’s second amended petition alleged that on October 2, 1998, while driving her vehicle on Highway 19, Appellant lost control of her vehicle due to loose gravel that “created a slick, loose and moving surface” on a curve in the roadway. Appellant’s vehicle left the roadway and overturned. She contended that MoDoT owned and maintained the section of the highway upon which she was injured; that the highway was in a dangerous condition at the site where she was injured; and, that she sustained injuries because of a dangerous condition at that location. In particular, she alleged that her accident was caused by a “dangerous condition” on the roadway which was the result of negligent repair to the surface of the roadway by MoDoT and two of its employees, Weaver and Simpson. Appellant alleged that as a result of her car accident, she suffered personal injuries, including permanent paralysis which has confined her to a wheelchair. She sought damages for lost wages, pain, anxiety, medical bills, and reduced earning capacity.

The record shows that at the time of Appellant’s accident, a MoDoT maintenance crew, which included Weaver and Simpson, had been making a variety of repairs to Highway 19. On September 29 and 30,1998, Weaver operated a truck that had a hydraulic broom attached to it and utilized the broom to sweep away loose gravel remaining on the roadway. Weaver finished his task on September 30, 1998, and moved to another work site. According to Appellant, “through negligence and lack of due care in failing to sweep the gravel from the road, [Weaver] left the road in a condition creating a foreseeable risk of harm” that ultimately led to her injuries. Further, she asserts Weaver, while acting within the scope and course of his employment with MoDoT, “negligently or wrongfully failed to ensure all the loose gravel had been swept from Missouri Highway 19 prior to leaving the job site.”

Appellant premises Simpson’s liability on the fact that, as Weaver’s supervisor, he “was required to check and ensure that the other employees at the scene had performed their ministerial functions” and “to make a final pass ensuring that all the loose gravel had been removed from the roadway.” Appellant asserts that it was Simpson’s negligence in “failing] to perform this check” that “amounted to the failure to perform a ministerial act” and resulted in Appellant’s being injured by loose gravel on the roadway.

Respondents filed a joint motion for summary judgment in which they maintained that, as employees of MoDoT, a branch of the executive department of the State of Missouri, they were entitled to judgment as a matter of law based on either “the public duty doctrine” or “the official immunity doctrine.” Respondents, likewise, filed separate motions to dismiss Appellant’s second amended petition, replicating their pleadings made in their joint motion for summary judgment.

The trial court seasonably entered an “Order and Judgment” granting Respondents’ joint motion for summary judgment and their separate motions to dismiss Appellant’s second amended petition.

With regard to the summary judgment motion, the trial court determined “that on the claim of ‘official immunity’ there are no genuine issues of material facts and that [Respondents] are entitled to judgment as a matter of law.” Further, the trial court stated:

the acts and conduct which [Appellant] pleads against said [Respondents] and as described in the evidence are discretionary and not ministerial and that as to each [Respondent], the uncontested evidence establishes that each exercised discretion as to their conduct. There is no prescribed manner under which each should have acted, and there are neither rules, regulations, nor legal mandate which dictate or regulate their respective conduct. The [c]ourt finds that although both operated motor vehicles in the general area of the accident on the 29th or 30th of September, [Appellant’s] accident which happened on October 2 did not arise out of the operation of such trucks by [Respondents] three or four days earlier.

In sustaining Respondents’ motions to dismiss, the trial court found Appellant’s second amended petition “[did] not plead facts which state or from which it can be reasonably inferred, that the individual [Respondents], severally, have a duty to [Appellant] which is ‘separate and distinct’ from the duty to the general public.” The trial court found “that under the ‘public duty doctrine’ [Appellant] has no cause of action against [Respondents].”

On appeal, Appellant’s first point of trial court error focuses on the trial court’s granting of Respondents’ motion for summary judgment. Appellant maintains the trial court’s ruling that Respondents were entitled to assert official immunity was contrary to Missouri law. However, as the public duty doctrine operates as a complete bar to Appellant’s action, it is not necessary to engage in a lengthy discussion of official immunity in this matter. See Spotts v. City of Kansas City, 728 S.W.2d 242, 248 (Mo.App.1987). We determine Appellant’s second point on appeal is dispositive and it, alone, will be addressed.

Appellant’s second point on appeal consists of four sub-points of trial court error in sustaining Respondents’ motions to dismiss. As best we discern, Appellant essentially maintains the trial court erred: (a) in applying the public duty doctrine to shield Respondents from their negligent acts because the trial court’s determination renders section 537.600 meaningless, in that “relieving the negligent employee of liability [thereby negates] any liability of the sovereign which, by its nature, is vicarious”; (b) in incorrectly determining that Appellant failed to state a cause of action based on the public duty doctrine, because the doctrine is an affirmative defense, and plays no role in determining whether a petition should be dismissed for failure to state a cause of action; (c) by not recognizing Appellant set out facts showing Respondents violated section 304.160, thereby violating a duty owed to a discrete class, which included Appellant, as opposed to violating a duty owed to the public at large and removing their acts from the shield of the public duty doctrine; and, (d) by incorrectly determining Respondents were shielded by the public duty doctrine, although they were acting in a ministerial capacity at the time of their negligent acts.

“ ‘A motion to dismiss is an attack on the petition and is solely a test of the adequacy of that pleading.’ ” Freeman Health Sys. v. Wass, 124 S.W.3d 504, 506 (Mo.App.2004) (quoting Clement v. St. Charles Nissan, Inc., 103 S.W.3d 898, 899 (Mo.App.2003)). “ ‘A petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Hartford Accident and Indem. Co. v. M.J. Smith Sawmill, Inc., 883 S.W.2d 91, 93 (Mo.App.1994) (quoting Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977)). “ ‘The ruling on a motion to dismiss is ordinarily confined to the face of the petition which is construed in a light favorable to plaintiff.’ ” Id. (quoting Am. Drilling v. City of Springfield, 614 S.W.2d 266, 271 (Mo.App.1981)). “A pleading which states no cause of action confers no subject matter jurisdiction on a court and is subject to dismissal.” Phillips v. Bradshaw, 859 S.W.2d 232, 234 (Mo.App.1993).

In examining Appellant’s first sub-point, as best we can discern, Appellant appears to assert that in shielding Respondents through the use of the public duty doctrine, the trial court has rendered section 537.600 meaningless, because any liability of the sovereign is necessarily vicarious, and the trial court’s action would have the effect of shielding the sovereign from its employees’ negligent actions. We disagree.

We note that “[t]he public duty doctrine along with the official immunity doctrine are two distinct yet related common law doctrines, firmly entrenched in Missouri law, which impose obstacles to civil recovery against public officials.” Cooper v. Planthold, 857 S.W.2d 477, 479 (Mo.App.1993).

The public duty doctrine shields public officers, and the governmental bodies that employ them, from liability for injuries or damages resulting from the officers’ breach of a duty owed to the general public and does not shield public officials from liability resulting from the breach of a duty owed to particular individuals. Kinder v. Missouri Dept. of Corr., 43 S.W.3d 369, 372 (Mo.App.2001); see also Green v. Denison, 738 S.W.2d 861, 865 (Mo. banc 1987). “By the public duty doctrine, a public employee is not civilly liable — even for breach of a ministerial duty — if that duty is owed to the general public rather than to a particular individual.” Jungerman v. City of Raytown, 925 S.W.2d 202, 205 (Mo. banc 1996).

“Official immunity, on the other hand, protects public officials acting within the scope of their authority from liability for injuries arising from their discretionary acts or omissions.” Heins Implement Co. v. Missouri Highway & Transp. Comm’n, 859 S.W.2d 681, 694 (Mo. banc 1993).

The policy behind these doctrines is the promotion of “effective administration of public affairs by removing the threat of personal liability from those officials who must exercise their best judgment in conducting the public’s business.” Id. at 695; see also Brown v. Tate, 888 S.W.2d 413, 416 (Mo.App.1994).

As previously related, as a branch of an executive department of state government, MoDoT is a public entity that, except under certain circumstances, is shielded from suit by sovereign immunity. Dierker, 961 S.W.2d at 59.

As explained in Beaver v. Gosney, 825 S.W.2d 870 (Mo.App.1992),

In 1978, the legislature re-established sovereign immunity in response to the Supreme Court’s abrogation of the common law doctrine ... Section 537.600 expressly waives immunity only in two instances: (1) where injuries result from the negligent acts or omissions by public employees in connection with the operation of motor vehicles; and (2) where injuries are caused by a dangerous condition of public property created by the acts or omissions of an employee of the public entity within the course of his employment or when a public entity had notice of such condition and had sufficient time to take measures to protect the public.

Id. at 872 (internal citation omitted); see also McNeill Trucking Co. v. Missouri Highway and Transp. Comm’n, 35 S.W.3d 846, 848 (Mo. banc 2001).

It should be recalled that the doctrine of sovereign immunity is uniquely applicable to a governmental entity and is not applicable to an individual public official who acts as an agent of the state. Rustici v. Weidemeyer, 673 S.W.2d 762, 768 (Mo. banc 1984). It has been held that “[t]he abrogation of sovereign immunity [in 1977] in no way impliedly abrogated the public duty doctrine. Long beyond the time that sovereign immunity was abrogated in regard to those two situations, the public duty doctrine remained strong and viable. Missouri case law has consistently reaffirmed the doctrine.” Beaver, 825 S.W.2d at 873; see also Jackson v. City of Wentzville, 844 S.W.2d 585, 587 (Mo.App.1993).

Saliently, the court in Warren v. State, 939 S.W.2d 950, 957 (Mo.App.1997), held that the public duty doctrine does not protect the state when sovereign immunity has been waived under section 537.600. In making its ruling, the Warren court noted that it was relying on cases that involved public officers and employees and not governmental entities. Id. Citing to Heins, 859 S.W.2d at 694, and Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 921 (Mo. banc 1992), the court determined that,

[n]one of these cases has held that the [public duty] doctrine would protect the State from suit for a tort where Section 537.600 states that sovereign immunity for that tort has been completely waived by the State ... and we find that to apply the [public duty] doctrine in that circumstance would be contrary to the express wording and intent of the statute.

Warren, 939 S.W.2d at 957.

Accordingly, “[t]he sovereign immunity doctrine is a different legal concept than the public duty doctrine which is the focus of this case.” Beaver, 825 S.W.2d at 872. As, “[sovereign immunity is ‘uniquely applicable to governmental entities and is not transferable to an agent of that entity,’” id. (quoting Rustici, 673 S.W.2d at 768), we find the public duty doctrine does not render section 537.600 meaningless, as argued by Appellant.

In the next prong of her point relied on, Appellant asserts the public duty doctrine is an affirmative defense and, in the instant matter, has no bearing on whether a petition states a cause of action. We again disagree.

The public duty doctrine is not an affirmative defense, but rather serves “to delineate the legal duty which the defendant official owes to the plaintiff.” Scher v. Purkett, 847 S.W.2d 76, 78 (Mo.App.1992). Here, Appellant bore the burden of pleading facts in her petition which were sufficient to support the existence of a legal duty. Claxton v. City of Rolla, 900 S.W.2d 635, 636 (Mo.App.1995) (holding that “[t]o establish tort liability in a negligence action, there must be a legal duty on the part of the defendant to plaintiff.”). In our review of Appellant’s amended petition, nowhere is there a single assertion that Respondents owed a particularized, individual duty to Appellant, nor is there even a mention of any such “duty.” Appellant was required to not only plead facts establishing that Simpson and Weaver failed to perform a duty, but she was also required to plead facts establishing they owed an individual duty to her. See Spotts, 728 S.W.2d at 248. Appellant has failed to establish there was a legal duty on the part of Respondents to Appellant. Claxton, 900 S.W.2d at 636. Given that it was Appellant’s burden to prove a legal duty, we find that her petition was inadequate to support her claim and we find nothing in her petition which would remove this matter from the long established applicability of the public duty doctrine. Appellant has failed to allege facts sufficient to support her cause of action. See Freeman v. Leader Nat’l. Ins. Co., 58 S.W.3d 590, 597 (Mo.App.2001).

Next, Appellant premises trial court error on the fact that in her amended petition she set out facts showing Respondents violated section 304.160, which thereby abrogated their duties owed to a discrete class, in this case Appellant, as opposed to abrogating a duty owed to the public at large. According to Appellant, this breach of a duty owed specifically to her removed Respondents’ negligent acts from the shield of the public duty doctrine.

It has been held that when a statute, regulation, or common law rule places limitations upon an officer of the State, the officer must first be in compliance with a particular statute as a pre-requisite to the application of the public duty doctrine. See Pace v. Pacific Fire Protection Dist., 945 S.W.2d 7, 10 (Mo.App.1997). However, the cases that Appellant cites in support of her proposition are cases chiefly involving instances in which officers of the State failed to comply with “rules of the road” in the operation of vehicles; failed to obey traffic rules and regulations; or, failed to abide by other police power measures.

Here, the statute Appellant claims Respondents were required to comply with as a pre-requisite to the assertion of their immunity under the public duty doctrine is a general statute which criminalizes the intentional placement of such objects as “tacks, nails, wire, scrap metal, glass, crockery, [and] sharp stones ...” on the highways of Missouri. See § 304.160. We are not convinced that the items Respondents placed on the highway in question would meet that category of objects proscribed by section 304.160. In either event, we determine that any threat of harm presented by any gravel or oils er-rantly left on the roadway was to the public in general and not to Appellant as an individual.

Appellant has failed to state in her second amended petition how Respondents owed a personal duty to her to either comply with section 304.160 or to personally make “reasonable efforts to clear the highway of the substances.” § 304.160. Appellant, in an attempt to avoid the public duty doctrine, suggests that she is a member of a “discrete class— persons utilizing Missouri’s public roads” and, without citation to authority, argues that “[a] duty owed to motorists using Missouri’s public highways is not a duty ‘owed to the public at large.’ ” However, because it has been held that “[t]he duty of MHTC and its employees to properly design and construct highways runs to the public at large,” Heins, 859 S.W.2d at 695, we believe the duty to properly repair highways also runs to the public at large. Further, “[o]ur courts have broadly construed the meaning of public duties.... ” Cooper, 857 S.W.2d at 479. The public duty doctrine “ ‘recognizes that the duties of public officers are normally owed only to the general public and that a breach of such a duty will not support a cause of action by an individual injured thereby.’ ” State ex rel. Southers v. Stuckey, 867 S.W.2d 579, 582 (Mo.App.1993) (quoting State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 445 (Mo. banc 1986)). Here, Appellant has not demonstrated that section 304.160 serves the “special, direct, and distinctive interests” of individual members of the public. See Twiehaus, 706 S.W.2d at 445. Sub-point denied.

Lastly, Appellant asserts trial court error on the basis that the trial court incorrectly determined Respondents were shielded by the public duty doctrine, even though they were acting in a ministerial capacity. Suffice to say, under the “public duty doctrine, a public employee is not civilly hable — even for a breach of a ministerial duty — if that duty is owed to the general public rather than to a particular individual.” Jungerman, 925 S.W.2d at 205. Sub-point denied. “ ‘A citizen has no cause of action for injuries sustained as the result of an alleged breach of public duty to the community as a whole.’” Spotts, 728 S.W.2d at 248 (quoting Christine H. v. Derby Liquor Store, 703 S.W.2d 87, 89 (Mo.App.1985)). “Failure to state a cause of action is a jurisdictional issue which may be raised any time, even on appeal.” Id. Point denied.

The “Order and Judgment” of the trial court dismissing Appellant’s second amended petition is affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      . Appellant also brought suit against MoDoT, a branch of the Missouri Highway and Transportation Commission ("MHTC”). The MHTC, is an executive department of state government and is a public entity that, with certain exceptions, is shielded from suit by sovereign immunity. State ex rel. Missouri Highway and Transp. Comm’n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998); see also § 537.600. MoDoT was not dismissed from this action by the Order and Judgment challenged in this appeal. While not a party to this appeal, MoDoT filed an amicus brief. Statutory references are to RSMo 2000, unless otherwise set out.

      . In this particular project, MoDoT was using a "chip and seal” process as a way to "maintain, restore and repair road surfaces....” In this process, hot oil is sprayed on the surface of the roadway and then chips of gravel are spread on top of the oily surface. Thereafter, a roller is used to "push” the chips into the oil. After the roadway is "cured”, a process that takes between two and five hours, a hydraulic broom is used to sweep those pieces of gravel off of the roadway that did not adhere to the hot oil.

      . Simpson argues he was only a "nominal supervisor” on that project for a period of an hour.

      . The trial court denominated the order as "final for purposes of appeal.”

      . Section 304.160 states:
      1. Any person who has purposely, accidentally, or by reason of an accident, dropped any tacks, nails, wire, scrap metal, glass, crockery, sharp stones, or other substances injurious to the feet of persons or animals, or to the tires or wheels of vehicles, including motor vehicles, upon any highway shall immediately make all reasonable efforts to clear the highway of the substances.
      2. Violation of this section shall be deemed a class C misdemeanor.

      . For example, in McGuckin v. City of St. Louis, until the fire crew at issue activated their emergency lights "in compliance with [section 304.022.4, they were] bound by the same rules of the road as other drivers, and [were] afforded no special immunity for negligent acts or omissions committed by [them].” McGuckin v. City of St. Louis, 910 S.W.2d 842, 845 (Mo.App.1995). The McGuckin court further stated that section 304.022.4 "places limitations on an officer's ability to operate his vehicle in whatever manner he deems necessary” and, therefore, he was required to comply with the statute before he could disregard the traffic rules. Id.

      . Appellant also argues the "[u]se of the public highways is limited to a discrete class, persons who have passed certain tests and are licensed by the state....” However, she fails to cite authority for any such proposition.

      . Respondent's "Motion to Dismiss Appeal or, in the Alternative, to Strike Portions of the Legal File, Supplemental Legal File and Appendix” was ordered taken with the case, and is hereby denied.


author: JAMES K. PREWITT, Judge.

text:
    In the Interest of a child under seventeen years of age. Greene County Juvenile Office, Petitioner-Respondent, v. J.M.D., Respondent-Appellant.
    No. 26031.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 18, 2004.
    Petition for Rehearing and Transfer Denied Dec. 10, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      John E. Kelly, Springfield, MO, for Appellant.
    William C. Prince, Springfield, MO, for Respondent.
   JAMES K. PREWITT, Judge.

J.M.D. (“Father”), as the alleged biological father of J.B.D. (“Child”), appeals the termination of his parental rights to Child. On appeal, Father .claims that the trial court erred in terminating his parental rights because there was not clear, cogent, and convincing evidence to support the termination on the basis of abandonment under § 211.447.4(l)(b), RSMo 2000; repeated or continuous failure to provide necessary items for the care and control of Child under § 211.447.4(2)(d), RSMo 2000; or jurisdiction for one year and continuation of conditions that led to assumption of jurisdiction under § 211.447.4(3), RSMo 2000. The three bases noted were the three statutory grounds indicated by the trial court for the termination of Father’s parental rights to Child.

Child was born on August 15, 2001, and taken into protective custody on or about August 16, 2001. At that time, Child was placed in the temporary legal and physical custody of the Missouri Department of Social Services, Division of Family Services, (now known as the Children’s Division) pursuant to an order of the Juvenile Division of the Circuit Court of Greene County, which also adjudicated Child neglected and abused.

The petition to terminate Father’s parental rights was filed on November 21, 2002. Following a hearing on the matter, the trial court entered judgment terminating Father’s parental rights to Child on December 30, 2003. The trial court, based on clear, cogent, and convincing evidence, found three statutory grounds for the termination of Father’s parental rights: (1) Child was abandoned by Father; (2) Child was neglected by Father, specifically that there was a repeated or continuous failure by Father to provide Child with adequate food, clothing, shelter, education, or other care and control necessary for Child’s physical, mental, or emotional health and development, and that Father had failed, until after the petition was filed, to maintain a parental relationship with Child and to provide assistance for Child’s food, clothing, and shelter needs; and (3) Child had been under the jurisdiction of the court for more than one year, and conditions leading to the assumption of that jurisdiction continued to exist.

In this appeal, Father raises three points, each focused on one of the statutory grounds on which the trial court based the termination of his parental rights. Father claims that there was not clear, cogent, and convincing evidence to terminate his parental rights on any of the three statutory grounds indicated by the trial court. According to Father, the trial court’s findings on each of the statutory grounds were against the weight of the evidence.

The judgment in a termination of parental rights case will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the' law. In re R.J.B., 30 S.W.3d 868, 870 (Mo.App.2000). We view the evidence in the light most favorable to the trial court’s judgment and defer to the trial court’s determinations regarding the credibility of witnesses. In re A.R., 52 S.W.3d 625, 633 (Mo.App.2001). It is only necessary to reverse or remand if this Court is left with a firm impression that the judgment is wrong. In re J.M.S., 83 S.W.3d 76, 82 (Mo.App.2002).

Where multiple statutory bases for the termination of parental rights are found, to affirm the judgment, we need only find that one of the statutory grounds was proven and that termination is in the best interests of the child. In re M.J. v. Greene County Juvenile Office, 66 S.W.3d 745, 747 (Mo.App.2001). Where there is no contention made in a point relied on or in argument that the trial court erred in concluding that the termination of parental rights was in the best interests of the child, it is only necessary to consider whether any one of the statutory grounds is supported by the evidence. In re S.L.J., 3 S.W.3d 902, 907 (Mo.App.1999).

Father makes no such contention here regarding the trial court’s determination that the termination of his parental rights to Child was in Child’s best interests. Therefore, because it is dispositive, we need only discuss Father’s first point, that the trial court erred in terminating his parental rights because there was not clear, cogent, and convincing evidence that he abandoned Child.

To terminate under § 211.447.4(l)(b), RSMo 2000, the statutory ground for abandonment, the juvenile officer must prove that Father, without good cause, left Child without any provision for parental support and failed to make arrangements to visit or communicate with Child, although able to do so. 83 S.W.3d at 82. By definition, abandonment is the “voluntary and intentional relinquishment of custody of a child with the intention that the severance be of a permanent nature or as the intentional withholding by a parent of his [or her] care, love, protection and presence without just cause or excuse.” Id.

In determining whether abandonment has occurred, the court considers the parent’s intent, which may be inferred by considering all of the evidence of that parent’s conduct, both before and after the requisite six-month period. Id. Only the parent’s conduct prior to the filing of the petition for termination may be considered to establish the six-month period. Id.

Father’s last visit with Child was on January 3, 2002. On January 25, 2002, Father was arrested on two counts of sale of a controlled substance. Father remained at the Greene County Jail until he was transported to the Department of Corrections on July 18, 2002, to serve the seven-year sentence he received on the charges.

According to his testimony, upon his arrest, Father contacted Child’s mother (“Mother”) and instructed her to contact Father’s attorney and the Children’s Division (“CD”) to inform them of his incarceration. Father testified that Mother told him that she had contacted CD and that Child also would be allowed to come home in two weeks.

Father did not directly contact his attorney or CD and testified that after the initial contact with Mother, he lost touch with her, and also had no luck in his attempts to call CD offices collect from prison. According to Father, he tried calling CD four or five times until 2003, and also made a request to go to the prison library so that he could find the address. Once he obtained the address, Father, who was incarcerated at three different facilities, maintained that he wrote letters to CD, including one in February of 2003, after he was served with the termination petition. Father testified that he wrote the letter in February, 2003, in response to the petition, to the address provided on the petition. Father also testified that he asked his own mother to get the address for him, or for someone to help her get it to him, because she was unable to read or write.

Liz Sayers, an alternative care worker at CD, handled the case involving Child from the time Child was taken into protective custody until February, 2002. Sayers testified that CD’s original goal was to return Child to the parents. During the time Sayers handled the case, Father attended, or at least began participation in, individual and family counseling, the domestic violence program Hit No More, and parenting classes. Father also maintained a stable residence, to the extent that he stayed with Mother. Father agreed to a psychological or psychiatric evaluation and signed all release of information forms requested by CD.

Regarding supervised visitation with Child, both Father and Mother generally visited Child together, but toward the end of Sayers’ tenure on the case, such visitation “fell off[.]” Father attended family meetings and provided in-kind items to Child, although he never paid child support, but there was not any formal order for him to do so. The only program that Father did not attend or complete to any extent was an infant CPR and care program.

In February, 2002, the case was transferred to Luann McKee, also an alternative care worker at CD. During the time she handled the case, McKee had no involvement with or contact from Father until, according to her recollection, April, 2003. Within that 2003 communication, Father informed McKee of his incarceration.

From February, 2002 until April, 2003, Father had no visitation with Child and also no communication with Child, in terms of cards, letters, etc. Since April, 2003, Father consistently sent cards, letters, and tapes on which he would read books. Other than those items, Father sent no gifts or monetary support for Child. Subsequent to April, 2003, Father provided McKee certificates for programs that he had completed during his incarceration, including programs for anger management, self-improvement, relationships, and substance abuse.

According to a document provided by the Department of Corrections, Father’s scheduled release date was May 24, 2004. Among the conditions of his release, Father must obtain a GED, not drink alcohol, and participate in a substance abuse program. Father’s plans upon release were to secure employment and a place to live, and “do what [CD] want[s] me to do to get [Child] back.” Upon his release Father hoped to either live with his mother in Springfield or participate in a 90-day transitional program and live at Harbor House while he looked for a job and his own place to live.

On the statutory ground of abandonment, within its judgment terminating Father’s parental rights, the trial court stated the following:

[Child] has been abandoned by ... [Father] ... in that said minor child who is over the age one year has been without contact from ... [Father] ... for the six month period immediately prior to the filing of the Petition. McKee testified that [Father] had not visited the minor child or had contact with the Children’s Division since January of 2002. The evidence indicated that [Father], who was incarcerated for his own volitional criminal acts, did not reestablish contact with the Division until April of 2003 upon being served with the Petition to Terminate Parental Rights herein. Subsequent to that date, [Father] has sent some letters and provided books on tape. Court does not find credible [Father’s] testimony that from January of 2002 until April of 2003, he was unable to determine the address of the Division of Family Services in order to contact them regarding the well being of his child. Court finds that [Father] had attended meetings a[t] the Division and had relatives in this area he maintained contact with, who could have assisted him in ascertaining this information.

Section 211.447, RSMo 2000, addresses incarceration of a parent and notes that “incarceration in and of itself shall not be grounds for termination of parental rights[.]” § 211.447.6(6). Incarceration, however, does not excuse a parent’s obligation to provide the child with a continuing relationship. In re N.L.M., 101 S.W.3d 376, 381 (Mo.App.2003). Nor does incarceration excuse a parent’s obligation to make monetary contributions toward the child’s support, as financial contributions that assist with the child’s needs evidence intent that a parent wishes to continue the parent-child relationship. Id. A parent’s incarceration will undoubtedly limit the parent’s ability to maintain contact with his or her children, but confinement does not preclude a finding of abandonment. In re Adoption of R, 31 S.W.3d 551, 556 (Mo.App.2000).

Father draws our attention to the J.M.S. case in which the termination of a father’s rights was reversed because the evidence was insufficient to terminate the father’s right on the statutory ground of abandonment. 83 S.W.3d at 85. Within that case the father, who was incarcerated, sent letters, pictures, poems, and Christmas presents to his child. Id. at 84. We agree that Father in the case before us sent similar items. The distinction, however, is that in J.M.S., the incarcerated parent sent such items throughout his incarceration, not only after the termination petition was filed. Id.

There was clear, cogent, and convincing evidence in the case before us to support the termination of Father’s parental rights to Child based on the statutory ground of abandonment. Father’s Point I is denied. As one of the statutory grounds was proven, we need not consider Father’s remaining points in which he challenges the other two statutory grounds. M.J., 66 S.W.3d at 747.

The judgment is affirmed.

GARRISON, P.J., and RAHMEYER, J., concur.

      . In the same judgment, the trial court also terminated the parental rights of Child’s mother and the person described as Child's legal father. Those parties have not appealed; their rights are not at issue here and will not be discussed.


author: PER CURIAM.

text:
    Carol Marie MURRAY, Appellant, v. Harlan Milo MURRAY, Sr., Respondent.
    No. WD 62788.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    David A. Lunceford, Independence, for appellant.
    Ronald E. Finley, Kansas City, for respondent.
    Before SPINDEN, P.J., HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

Carol Murray appeals the property division in the judgment dissolving her marriage to Harlan Murray. Upon review of the record, we find no error and affirm the trial court’s judgment. Because a published opinion would have no jurisprudential value, we have provided the parties with a Memorandum explaining the reasons for our decision.

Respondent’s motion for attorney’s fees on appeal is denied.

Judgment affirmed. Rule 84.16(b).


author: JEFFREY W. BATES, Chief Judge.

text:
    Thomas Brandon ROBERTS and Cara Lee Roberts, Plaintiffs-Respondents, v. PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Defendant-Appellant.
    Nos. 25960, 25961.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 21, 2004.

      John L. Mullen, Nikki Cannezzaro, Kansas City, MO, for appellant.
    Robert W. Stillings, Springfield, MO, for respondents.
   JEFFREY W. BATES, Chief Judge.

On July 21, 1997, Thomas Roberts (“Thomas”) and Cara Roberts (“Cara”) were passengers in a 1997 Camero being driven by Chad Campbell (“Campbell”) on Highway 65 north of Branson, Missouri. The car was involved in a high-speed automobile crash, killing Campbell and causing serious injuries to Thomas and Cara.

The Camero was owned by Reliable Chevrolet, Inc. (“Reliable”). Reliable had obtained liability, uninsured motorist and other insurance coverages on the Camero through a policy issued by Universal Underwriters Insurance Company (“Universal”). At the time the automobile accident occurred, Thomas and Cara resided with their mother, Patricia Roberts. She had a policy of automobile insurance issued by Progressive Northwestern Insurance Company (“Progressive”) that covered the three vehicles she owned. The policy included uninsured motorist coverage on each vehicle with limits of $25,000 per person and $50,000 per accident.

Thomas and Cara submitted claims to Universal alleging their personal injuries had been caused by Campbell’s negligent operation of the Camero. Universal issued a written denial of liability coverage for these claims. Thereafter, Thomas and Cara submitted claims for uninsured motorist benefits to Progressive. Progressive denied it owed Thomas or Cara any uninsured motorist benefits, which resulted in separate lawsuits being filed by each claimant against Progressive.

While the Progressive lawsuits were pending, Thomas and Cara settled claims for uninsured motorist benefits they had asserted against Universal. As a part of these settlements, Thomas and Cara each signed a document releasing Universal, Rehable, Campbell and others from any further liability. These releases, however, preserved Thomas’ and Cara’s uninsured motorist claims against Progressive.

After a consolidated trial in July 2003, Thomas and Cara each obtained a judgment against Progressive in the amount of $75,000 on their uninsured motorist claims. Progressive appealed from both judgments, and the appeals have been consolidated in this Court. Progressive challenges the judgments against it on two grounds. First, Progressive argues each judgment is against the weight of the “admissible” evidence because “there is insufficient evidence from which the court could conclude that Chad Campbell had implied permission of Reliable Chevrolet to use the vehicle as any such evidence was improperly considered by the court....” Second, Progressive argues Thomas’ and Cara’s uninsured motorist claims were void as a matter of law because the releases they signed did not preserve Progressive’s right of subrogation. Additional facts necessary to our analysis of the case are included below as we address Progressive’s two points on appeal.

Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d). We must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Ridgway v. TTnT Development Corp., 126 S.W.3d 807, 812 (Mo.App.2004). The trial court’s judgments are presumed correct, and Progressive has the burden of proving them erroneous. See Wingate v. Griffin, 610 S.W.2d 417, 419 (Mo.App.1980). We review the evidence and all reasonable inferences in the light most favorable to the judgments and disregard all contrary evidence and inferences. Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses. Savannah Place, Ltd. v. Heidelberg, 122 S.W.3d 74, 86 (Mo.App.2003). We defer to the trial judge’s superior opportunity to assess the witnesses’ credibility. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App.1997).

Point I — Admission of Hearsay Statements Concerning Implied Permission

Progressive’s first point on appeal attempts to present a challenge to the admission of “evidence” — otherwise unde-scribed — on the issue of implied permission that Progressive says the trial court improperly considered. This point relied on states:

The trial court erred in entering judgment in favor of Cara and Thomas Roberts because the judgment was against the weight of the admissible evidence in that the unequivocal evidence established that it was Reliable Chevrolet’s express policy to forbid employees such as Chad Campbell from using company vehicles and there is insufficient evidence from which the court could conclude that Chad Campbell had implied permission of Reliable Chevrolet to use the vehicle as any such evidence was improperly considered by the court and therefore Cara Roberts and Thomas Roberts’ uninsured motorist claims are excluded from coverage by operation of Progressive’s permissive-use exclusion.

In the argument following this point, Progressive states that “[d]uring the trial of this matter, the Roberts presented testimony from Cara Roberts regarding hearsay statements of Chad Campbell.... It is clear from review of the Trial Court’s Findings and Order that the Court took into consideration these hearsay statements .... Therefore, the issue of the admissibility of these hearsay statements must be addressed.” We are unable to determine from Progressive’s brief what statements by Campbell were actually admitted during Cara’s testimony. The statements were not set out in Progressive’s statement of facts or argument, and no specific page references were provided to identify where such statements could be found in the transcript. See Rule 84.04(i). After reviewing Progressive’s point relied on and corresponding argument, we conclude this evidentiary issue has not been preserved for appellate review.

The disposition of this point is controlled by Rule 84.04, which states, in pertinent part, as follows:

Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: ‘The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].’

Rule 84.04(d)(1). Progressive’s first point relied on meets none of these requirements.

First, the point fails to identify the ruling challenged on appeal: the trial court’s admission of Cara’s testimony concerning statements made to her by Campbell. See Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210, 221 (Mo.App.1990); State v. Hulsey, 557 S.W.2d 715, 716-17 (Mo.App.1977); Beasley v. Hull, 400 S.W.2d 423, 425 (Mo.App.1966); Jennings v. Jennings, 379 S.W.2d 159, 163 (Mo.App.1964).

Second, the point fails to state the legal reason for the claim of reversible error: that such testimony was inadmissible hearsay. Richmond v. Springfield Rehab & Healthcare, 138 S.W.3d 151, 154 (Mo.App. 2004); In Interest of T.B., 963 S.W.2d 252, 256 (Mo.App.1997); Hulsey, 557 S.W.2d at 716-17.

Third, the point fails to explain why, in the context of this case, the legal reasons that support the claim of reversible error: e.g., Cara’s testimony concerning what she was told by Campbell is hearsay because it was offered for the truth of the matter asserted, it was not within any allowable exception to the hearsay rule, and it was prejudicial because the trial court relied upon this testimony in finding that Campbell had Reliable’s implied permission to use the Camero. Warren v. State, 2 S.W.3d 128, 130 (Mo.App.1999); Tripp v. Harryman, 613 S.W.2d 943, 950 (Mo.App.1981); State v. Davis, 556 S.W.2d 745, 747-48 (Mo.App.1977).

The Western District of this Court addressed this same issue in the case of In Interest of T.B., 963 S.W.2d 252 (Mo.App.1997), which we find to be directly on point:

In her third Point Relied On, Mother attacks the sufficiency of the evidence, claiming that the Juvenile Officer failed to show by clear, cogent, and convincing evidence that the alleged abuse or neglect had occurred. She appears to be arguing that, considering all of the evidence, the evidence just did not support the judgment. Review of the argument portion of the brief reveals, however, that Mother is really arguing that the trial court erroneously admitted hearsay evidence and that without this evidence, there would not have been sufficient evidence to support the judgment. Because this argument was not made in the Point Relied On — the latter does not even mention hearsay — it is not preserved for review.

Id. at 256.

Progressive did raise the hearsay issue in the argument portion of its brief, but that was not sufficient to preserve the matter for review. The only issues required to be determined on appeal are those raised in the points relied on. State v. Henderson, 954 S.W.2d 581, 586 (Mo.App.1997); State v. Talbert, 873 S.W.2d 321, 323 (Mo.App.1994). Issues first raised in the argument portion of the brief are not preserved for review. Murphy v. Director of Revenue, 136 S.W.3d 141, 145 n. 3 (Mo.App.2004); American Family Mut. Ins. Co. v. Nigl, 123 S.W.3d 297, 303 n. 2 (Mo.App.2003).

Although Progressive’s first point is not preserved for review, Rule 84.13(c) allows this Court, in its discretion, to consider plain errors affecting substantial rights if manifest injustice or miscarriage of justice resulted therefrom. Skalecki v. Small, 976 S.W.2d 566, 569 (Mo.App.1998). Ex gratia review under the plain error standard reveals no basis for appellate relief.

In State Farm Mut. Auto. Ins. Co. v. Foley, 624 S.W.2d 853 (Mo.App.1981), Randy Blew was driving a Chevrolet in which Paula Blew was riding as a passenger. When the Chevrolet collided with another vehicle, Randy was killed; Paula was injured. The Chevrolet was owned by Mike Buck and was insured by State Farm. Id. at 854. Randy owned another vehicle which was insured by Cameron Mutual. The Cameron Mutual policy covered Randy’s use of any automobile which he operated with the owner’s permission. Id. A declaratory judgment action was filed after the accident. In that lawsuit, Cameron Mutual took the position that there was no coverage because Randy was not operating the Chevrolet with the Mike’s permission. Id. at 855. At trial, Paula was allowed to testify, over Cameron Mutual’s hearsay objection, about statements Randy made to her before and during their ride in the Chevrolet that tended to show Randy had Mike’s implied permission to operate the vehicle. Id. at 858. The trial court concluded that Randy did have implied permission from Mike to operate the Chevrolet. On appeal, Cameron Mutual argued the trial court committed reversible error in admitting Paula’s testimony. The Western District held Randy’s statements were admissible under the “state of mind” exception to the hearsay rule:

In the instant case the statements made by Randy show a design or plan to drive the car with Mike’s permission. They demonstrate Randy’s existing state of mind during the ride. They were made to his sister “in a natural manner and not under circumstances of suspicion.” In his findings of fact and conclusions of law, the trial judge does not indicate that he relied on Paula’s testimony in finding that Randy had Mike’s “tacit” permission to drive the Chevrolet. He was, nevertheless, entitled to do so.

Id. at 858.

In the case at bar, whether Campbell had Reliable’s implied permission to operate the Camero was one of the central issues to be determined. As Foley demonstrates, this presents a question as to Campbell’s state of mind. Based on our independent review of the transcript, Campbell’s statements to Cara tended to show a plan or design to operate the Camero (as well as numerous other cars belonging to Rehable) with the dealership’s implied permission. Since the statements were relevant to Campbell’s existing state of mind when the collision occurred on July 21, 1997, the trial court did not commit plain error by admitting them in evidence. Progressive’s first point is denied.

Point II — Effect of the Releases on Thomas’ and Cara’s Uninsured Motorist Claims Against Progressive

In Progressive’s second point on appeal, it argues the releases Thomas and Cara gave to Universal when they settled their uninsured motorist claims against that carrier voided their uninsured motorist claims against Progressive as a matter of law. Further factual explication is required to resolve this point.

As noted above, Universal provided automobile insurance for the Camero. The policy issued to Reliable included liability and uninsured motorist coverages, among others. The uninsured motorist coverage had limits of $2,000,000 per occurrence. When Thomas and Cara initially submitted their personal injury claims to Universal, the carrier denied in writing that it provided any liability coverage or owed any duty to defend Reliable and/or Campbell. Thereafter, Thomas and Cara resubmitted their claims for consideration under Universal’s uninsured motorist coverage. In an August 1999 letter to counsel for Thomas and Cara, Universal’s attorney stated:

Universal Underwriters, in conjunction with Progressive Insurance Company and Grinnell Mutual Insurance Company, has previously tendered to your clients a joint settlement offer. This was done in an effort to accomplish a global settlement and because Universal Underwriters recognized there might be coverage under the uninsured motorist portion of the policy. Universal Underwriters has steadfastly maintained that there is no liability coverage for your clients’ claims pursuant to their policy of insurance. You have now agreed that there is no liability coverage, but have made a claim for uninsured motorist coverage. Grinnell and Progressive have now withdrawn their contribution to the overall settlement offer and are apparently resolving your clients’ claims independent of a global settlement. Universal Underwriters hereby withdraws any joint settlement offer previously made and will negotiate independently with you with respect to your claims for uninsured motorist coverage.

A copy of this letter was sent to Progressive’s attorney.

These negotiations resulted in a settlement of Thomas’ and Cara’s uninsured motorist claims against Universal on November 9, 1999. On that date, each claimant signed a document entitled, “RELEASE, TRUST AND SETTLEMENT AGREEMENT.” Since both settlement agreements appear to be identical except as to the amount of the settlement and the name of the claimant, we draw further information solely from Cara’s settlement agreement. After reciting that Cara had made a claim for uninsured motorist benefits against Universal, Progressive and Superior Insurance, her settlement agreement stated, in pertinent part, as follows:

NOW, THEREFORE, in consideration of the compromise of the matters recited above, and for the sum of TWO HUNDRED THIRTEEN THOUSAND SEVEN HUNDRED AND NO/100 DOLLARS ($213,700.00) in uninsured motorist benefits, receipt of which sum is hereby acknowledged, Roberts hereby RELEASES AND FOREVER DISCHARGES Chad Campbell, Van Enterprises, Inc., Reliable Chevrolet, Inc., Universal Underwriters Insurance Company and Superior Insurance Company (hereinafter the “Released Parties”), their officers, directors, agents, servants, predecessors, successors, assigns, insurers, attorneys and all other persons, firms and corporations whomsoever, of and from any and all past, present or future claims, demands, obligations, actions, causes of action, personal injury claims, property damage claims, contractual claims, claims for bad faith or vexatious refusal, third party claims, loss of services claims, loss of consortium claims, survival actions and claims for expenses and/or compensation of any nature whatsoever, whether based on a tort, contract, agency, vicarious liability or any other theory of recovery which Roberts now has or which may in any way arise out of or relate to (1) Roberts’ Petition in the matter styled Cara Lee Roberts v. Universal Underwriters Insurance Company, Case No. 199CC2401, pending in the Circuit Court of Greene County, Missouri, and all related pleadings, (2) [Universal’s] Petition for declaratory judgment in the matter styled Universal Underwriters Insurance Company v. Van Enterprises, Inc., et al., Case Nol98CC4175, pending in the Circuit Court of Greene County, Missouri, and all related pleadings, or (3) any and all known or unknown claims in any way arising out of or relating to bodily and personal injuries or contractual claims, which have resulted or may result from any alleged acts or omissions of any of the Released Parties arising out of or in any way related to an automobile accident that occurred on or about July 21, 1997, in Christian County, Missouri, involving Roberts and Campbell. The parties acknowledge that this is a full and final release as to the Released Parties, but that Roberts specifically reserve all claims they may have as to Progressive Insurance Company or any others determined to be legally liable for the injuries sustained by Roberts.

Her settlement agreement also contains the following provision:

Roberts further stipulates and agrees that, to the extent of the payment of $213,700.00 made hereunder, she agrees to hold in trust and for the benefit of [Universal] all rights of recovery which she may have against any person or organization legally liable for her injuries. Roberts specifically assigns to [Universal] all proceeds of any settlement or judgment against such persons or organizations, up to the amount of $213,700.00. The amount held in trust and the specific assignment will be made to [Universal] from any judgment or settlement proceeds and will be paid over before any reduction or deduction for attorney’s fees, costs or expenses.

Just prior to commencement of the trial, Progressive was given leave to file an amended answer asserting the following defense: “In further answer, defendant states that plaintiff waived his right to claim under defendant’s policy by settling his claims with the responsible party without preserving defendant’s right to subro-gate.” The trial court concluded that the specific reservation of the pending uninsured motorist claims against Progressive in the releases prevented Thomas’ and Cara’s uninsured motorist claims from being discharged as a matter of law.

On appeal, Progressive concedes that the releases signed by Thomas and Cara specifically and adequately preserved their uninsured motorist claims against it. Progressive argues, however, that “because Cara and Thomas Roberts did not preserve Progressive’s right to subrogate, their uninsured motorist claims are void as a matter of law.” This two-pronged argument is based solely on what Progressive describes as “the legal effect of the releases executed by Cara and Thomas Roberts.” We address each prong of the argument separately.

Progressive first contends Thomas’ and Cara’s settlement with Universal voided their uninsured motorist coverage with Progressive as a matter of law because Universal’s policy included liability coverage, and liability claims were included within the scope of the releases. To support this contention, Progressive relies upon Rister v. State Farm Mut. Ins. Co., 668 S.W.2d 132 (Mo.App.1984). In our view, Rister is factually distinguishable and does not support Progressive’s position.

Ricky Rister, Bill Rister and George Rutledge were employed by Delta Paint and Drywall Company and were on their way to work in a pickup owned by Delta. Rutledge was driving the pickup, and Ricky was one of the two passengers. The pickup collided with a gasoline transport owned by Wisdom Oil Company, and both Rutledge and Ricky were killed. Rickey’s wife and children instituted a wrongful death action against Wisdom, the driver of its transport truck and a defendant ad litem for Rutledge. Id. at 133.

Delta had obtained liability insurance coverage on the pickup through American Casualty Company. American denied its liability coverage applied to the collision because of a fellow employee exclusion in that coverage, but it did assume the defense of the tort action under a reservation of rights. Ricky Rister had two policies of personal automobile insurance with State Farm that provided uninsured motorist coverage. The State Farm policies defined an uninsured motor vehicle to include “a motor vehicle insured for bodily injury, but the insuring company denies coverage.” Id. at 135. By amendment, the plaintiffs added State Farm as a defendant in the lawsuit in order to recover uninsured motorist benefits. Id. at 133-34.

On the morning of trial, the plaintiffs settled with Wisdom Oil Company. The case proceeded only against the defendant ad litem and State Farm. Near the end of the testimony, the plaintiffs reached a settlement with the defendant ad litem. American paid $35,000 from its liability coverage to settle the claim against Rutledge. Thereafter, plaintiffs obtained a judgment against State Farm for uninsured motorist benefits in the amount of $40,000. On appeal, State Farm argued that the pickup no longer qualified as an uninsured motor vehicle under the terms of State Farm’s policy because American had unconditionally withdrawn its denial of coverage by paying $35,000 from its liability coverage to settle the claim against Rutledge. Id. at 134. This Court agreed with State Farm’s argument:

When a liability insurer, after an initial denial of coverage, extends an offer in settlement, it may be said it has only conditionally withdrawn its denial. However, when such an offer is accepted, the liability insurer no longer denies coverage. In this case, when the $35,000 was offered and accepted, American Casualty no longer denied liability coverage. It paid $35,000 by reason of that coverage. The plaintiffs were not entitled to recover upon the uninsured motor vehicle insurance in the State Farm policies.

Id. at 136 (emphasis added). Thus, it is clear in Rister that the settlement payment was made from American’s liability coverage. This payment constituted an unconditional withdrawal of American’s earlier denial that it provided liability coverage for the accident in which Ricky Ris-ter was killed.

Rister does not aid Progressive because Universal’s payments to Thomas and Cara were made from Universal’s uninsured motorist coverage. The August 1999 letter from Universal’s counsel to the attorney for Thomas and Cara demonstrates that the parties were negotiating a settlement of uninsured motorist claims. The settlement agreements reflect that Thomas and Cara were paid uninsured motorist benefits, and the total amount paid on their claims ($388,000) was well within the $2,000,000 uninsured motorist limit provided by Universal’s policy. Moreover, each agreement included a provision requiring Thomas and Cara “to hold in trust and for the benefit of [Universal] all rights of recovery which either may have against any person or organization legally liable for [the claimant’s] injuries. The Roberts specifically assign to [Universal] all proceeds of any settlement or judgment against such persons or organizations, up to the amount of [uninsured motorist benefits paid].”

A “trust” provision of the foregoing type is typically included in an agreement settling an uninsured motorist claim because § 879.203.4 gives an insurer a right of subrogation upon payment of’ uninsured motorist benefits to its insured. See State ex rel. Manchester Ins. & Indem. Co. v. Moss, 522 S.W.2d 772, 775 (Mo. banc 1975); Messner v. American Union Ins. Co., 119 S.W.3d 642, 646 n. 4 (Mo.App.2003); Schaeffer v. American Motorists Ins. Co., 973 S.W.2d 180, 182 (Mo.App.1998); Schreiner v. Omaha Indem. Co., 854 S.W.2d 542, 544 (Mo.App.1993); Kroeker v. State Farm Mut. Auto. Ins. Co., 466 S.W.2d 105, 110-11 (Mo.App. 1971). The inclusion of such a trust provision would be inappropriate in a settlement agreement releasing a liability claim, on the other hand, because of Missouri’s public policy prohibiting the assignment, in whole or in part, of a personal injury claim. See Marvin’s Midtown Chiropractic Clinic, L.L.C. v. State Farm Mut. Auto. Ins. Co., 142 S.W.3d 751, 754 (Mo.App.2004); Hays v. Mo. Highways & Transp. Comm’n, 62 S.W.3d 538, 540 (Mo.App.2001). The fact that the releases were broad enough to encompass other potential claims does not change the essential purpose of the settlement agreements: resolution of Thomas’ and Cara’s uninsured motorist claims with the settlement proceeds being paid from that coverage of Universal’s policy. Rister simply has no application here because Thomas’ and Cara’s claims were not paid from the liability coverage of Universal’s policy.

Progressive next contends Thomas’ and Cara’s settlements with Universal voided their uninsured motorist coverage with Progressive as a matter of law because it has been denied its right of subro-gation. We begin our analysis by noting that in an action to enforce subrogation rights, the subrogee is neither a proper nor a necessary party; instead, he or she must sue in the name of the subrogor. Kroeker, 466 S.W.2d at 111; see Manchester Ins. & Indem. Co., 522 S.W.2d at 775; American Family Ins. Group v. Wilcoxson, 572 S.W.2d 222, 224 (Mo.App.1978). “It is also well established that in such an action a party makes a claim through a derivative right acquiring no greater rights in law or equity than the party for whom it was substituted and therefore, cannot make a claim its subrogor could not make.” Stoverink v. Morgan, 660 S.W.2d 743, 745 (Mo.App.1983). We agree that the settlement agreements executed by Thomas and Cara are broad enough to release their claims against the uninsured motorist, Campbell. Citing Dickhans v. Missouri Property Ins. Placement Facility, 705 S.W.2d 104 (Mo.App.1986), Progressive argues that “a release of the tort-feasor by the insured which destroys the insurers’ subrogation rights bars the insured from recovering under the policy as a matter of law.”

Under the circumstances presented here, we believe Dickhans is on point. The holding in this case, however, does not support Progressive’s assertion that it is relieved as a matter of law of the obligation to pay Thomas and Cara uninsured motorist benefits. Instead, Dickhans stands for the proposition that, if Progressive does pay uninsured motorist benefits to Thomas and Cara in the future, it will retain whatever subrogation rights it may have against Campbell and Universal as his putative liability insurer.

In Dickhans, the Missouri Property Placement Insurance Facility (“MPPIF”) provided casualty insurance for Dickhans’ residence. The limit of coverage was $8,500. A car driven by Sanford collided with Dickhans’ house and caused approximately $18,500 in damages. Dickhans reported the incident, which was covered by his casualty policy, to MPPIF. Sanford’s auto was insured by Integrity, which provided property damage coverage up to a limit of $10,000. Id. at 105. In a letter to Integrity, an MPPIF adjustor told Integrity that MPPIF would pursue its right of subrogation against Sanford if called upon to pay Dickhans from the MPPIF policy. A few months later, Dickhans settled his claim against Integrity and Sanford for $9,750. As a part of the settlement, Dick-hans signed an agreement releasing all of his claims against Integrity and Sanford. MPPIF then refused to pay the remainder of the loss. It argued, inter alia, that Dickhans had violated the conditions of his policy because his settlement destroyed MPPIF’s right of subrogation. Id. at 105-06. After the trial court granted summary judgment for MPPIF, Dickhans appealed. The Eastern District of this Court summarized the controlling legal principles in the following fashion:

As a general rule when an insured, without the insurer’s knowledge or consent, settles with and fully releases the tort-feasor so as to foreclose the insurer’s right of subrogation, the insured violates his agreement with the insurer thereby precluding his right of recovery under the policy. However, this rule has no application where the third party tort-feasor is aware of the interest of the insurer and consents to a settlement with the insured for that amount over and above the amount which the insurer has paid or become obligated to pay. In such a case, the third party tortfeasor is held to have consented to the splitting of the cause of action against him and the potential of an unjust double recovery by the insured does not exist. On the other hand, it would be patently unjust to permit a third party tortfeasor, with knowledge of an insurer’s subrogation interest, to settle with the insured for less than the wrongdoer’s full liability, and become thereby insulated against the insurer’s right of action against the tortfeasor.

Id. at 106 (citations omitted). The Eastern District reversed the summary judgment in favor of MPPIF because Integrity and Sanford were aware of MPPIF’s sub-rogation interest and consented to the splitting of Dickhans’ cause of action against Sanford by settling with him separately. Id. at 106. Since the settlement did not extinguish MPPIF’s right of subro-gation, Dickhans’ right to recover benefits under his MPPIF policy was preserved.

Dickhans was followed by the Western District of this Court in Marshall v. Northern Assur. Co. of America, 854 S.W.2d 608 (Mo.App.1993). There, Carolyn Marshall was injured in an automobile accident caused by William VanDruff. He was insured by Farmers and only had liability coverage in the amount of $25,000 per person. The Marshalls had underin-sured motorist coverage with Northern Assurance Company of America (“NACA”), and VanDruff qualified as an underinsured motorist under the terms of NACA’s policy. The Marshalls obtained a judgment against VanDruff in the amount of $45,000. On the same day the judgment was entered, the Marshalls entered into a covenant not to garnish or execute on the assets of VanDruff in exchange for payment of his $25,000 limits. Id. at 609. Thereafter, NACA refused to pay, and the Marshalls filed suit to recover their under-insured motorist benefits. NACA contended the covenant not to garnish or execute against VanDruffs assets prejudiced NACA’s subrogation rights so as to reheve the carrier of its duty to pay. The trial court entered summary judgment in favor of the Marshalls, and NACA appealed. The Western District affirmed the judgment in favor of the Marshalls. Relying upon Dickhans, the appellate court held as follows:

It is obvious from the language of the covenant entered into between the Mar-shalls and VanDruff that VanDruff knew of NACA’s interest. Therefore, we find that it would be “patently unjust” to allow VanDruff to enter into a covenant with the Marshalls limiting his own liability and thereby insulating himself against NACA’s right of subrogation against him. Accordingly, we find that the covenant entered into between the Marshalls and VanDruff is not binding on NACA. Therefore, the Marshalls did not breach their contractual obligation to protect NACA’s subrogation right because that right still exists. Because the Marshalls have not breached their contract, NACA must perform under the contract. When NACA has paid the Marshalls pursuant to the underinsured provision of the insurance policy, NACA then will be entitled to attempt to recover from VanDruff any monies NACA has paid to the Marshalls because of the automobile accident that was the subject of the tort action.

Id. at 612. Thus, the settlement between the Marshalls and VanDruff did not destroy NACA’s right of subrogation because the covenant not to execute was not binding on NACA. Consequently, the Mar-shalls’ right to recover underinsured motorist benefits from NACA was not affected by the settlement.

We reach the same conclusion here. Prior to August 1999, there had been a joint effort by Universal, Progressive and Grinnell to settle Thomas’ and Cara’s uninsured motorist claims. On April 22, 1999, the attorney who jointly represented Progressive and Grinnell sent a letter to Universal’s attorney. The letter stated:

On behalf of Grinnell and Progressive, I am withdrawing our previous offer to contribute $10,000 from each carrier to settle all outstanding claims. Since your client has made little or no effort to get these cases settled, we will litigate the declaratory judgment action and defend the three UM eases which have been filed. If either of my clients are forced to pay any amounts on the underinsured [sic] motorist claims, I will fully pursue the subrogation claims.

In August 1999, Universal proceeded to negotiate an independent settlement of Thomas’ and Cara’s uninsured motorist claims, and it apprised Progressive of the fact that such negotiations were being undertaken.

Once the negotiations were successfully concluded, settlement documents were prepared. Both settlement agreements note the Roberts have made or are making “claims for uninsured motorist insurance benefits from Superior Insurance and Progressive Insurance Company for damages as a result of the July 21, 1997, accident” and specifically reserve “all claims they may have as to Progressive Insurance Company....” These agreements, however, did not just release Thomas’ and Cara’s claims for uninsured motorist coverage against Universal. Instead, the documents also purported to release Thomas’ and Cara’s liability claims against Campbell. Universal was aware of Progressive’s potential subrogation interest when the releases were signed, and the releases were broader than necessary to accomplish the goal of settling Thomas’ and Cara’s uninsured motorist claims against Universal. See Schaeffer, 973 S.W.2d at 182 (holding that an uninsured motorist carrier is only entitled to a release which makes it clear that the insured will make no further claim for uninsured motorist coverage relating to the accident giving rise to the claim).

Based on the holdings in Dickhans and Marshall, we conclude that it would be patently unjust to permit Universal, acting with knowledge of Progressive’s potential subrogation interest, to purportedly extinguish that interest by settling Thomas’ and Cara’s uninsured motorist claims using release documents drafted so broadly as to discharge any liability claim against Campbell, the uninsured motorist. Based on the specific facts presented in the case at bar, we hold that the settlement documents signed by Thomas and Cara were ineffective to extinguish Progressive’s potential right of subrogation against Campbell.

Since Campbell was killed in the collision that occurred on July 21, 1997, we also must address the collateral question of whether any effective procedural means exist by which Progressive can enforce any right of subrogation that will arise upon payment of uninsured motorist benefits to Thomas and Cara. We believe there is. Section 537.020.1 provides that a cause of action for personal injuries survives the death of the wrongdoer and may be asserted against his legal representatives. Section 537.021 states, in pertinent part, as follows:

1. The existence of a cause of action for an injury to property, for a personal injury not resulting in death, or for wrongful death, which action survives the death of the wrongdoer or the person injured, or both, shall authorize and require the appointment by a probate division of the circuit court of:
(2) A personal representative of the estate of a wrongdoer upon the death of such wrongdoer; provided that, if a deceased wrongdoer was insured against liability for damages for wrongdoing and damages may be recovered from the wrongdoer’s liability insurer, then the court in which any such cause of action is brought shall appoint at the request of the plaintiff or other interested party a qualified person to be known as a defendant ad litem. The defendant ad litem when so appointed shall serve and act as the named party defendant in such actions in the capacity of legal representative of the deceased wrongdoer and such appointment and any proceedings had or judgment rendered in such cause after such appointment shall be binding on the insurer of such deceased wrongdoer to the same extent as if a personal representative had acted as the legal representative of such deceased wrongdoer in such cause of action. Should the plaintiff in such cause of action desire to satisfy any portion of a judgment rendered thereon out of the assets of the estate of such deceased wrongdoer, such action shall be maintained against a personal representative appointed by the probate division of the circuit court and the plaintiff shall comply with the provisions of the probate code with respect to claims against decedents’ estates. Nothing in this section shall be construed to permit a plaintiff in such cause of action to pursue other assets of a decedent’s estate after the expiration of the time provided in section 473.444, RSMo.

Subject to exceptions not relevant here, § 478.444 provides that all claims against the estate of a deceased person which are not filed in the probate division or paid by the personal representative become unenforceable and time-barred one year following the date of the decedent’s death, whether or not administration of the decedent’s estate is had or commenced within such one-year period.

Our review of the record reveals no indication that a decedent’s estate was opened after Campbell died. Neither do we find any indication that Thomas’ and Cara’s personal injury claims were filed with the probate division of the circuit court within one year after his death. Therefore, no judgment could be satisfied from any assets of Campbell’s estate. See § 473.444; § 537.021.1(2). The latter statute, however, does authorize the appointment of a defendant ad litem “if a deceased wrongdoer was insured against liability for damages for wrongdoing and damages may be recovered from the wrongdoer’s liability insurer_” This issue appears to remain unresolved since Universal dismissed without prejudice the declaratory judgment action it brought against Thomas, Cara, Progressive and others seeking an adjudication that its policy did not provide any liability coverage for the accident of July 21, 1997. Accordingly, there is a procedural mechanism by which Progressive can seek to recover any sums paid as uninsured motorist benefits to the extent, if any, that Universal’s policy provides liability coverage.

In conclusion, the settlement agreements are not binding on Progressive insofar as these documents purport to release Thomas’ and Cara’s liability claims against Campbell. Dickhans, 705 S.W.2d at 106; Marshall, 854 S.W.2d at 612. Since the settlements did not impair Progressive’s subrogation rights, it must comply with its contractual duty to pay uninsured motorist benefits to Thomas and Cara pursuant to the judgments entered below. Once those payments occur, Progressive will acquire the subrogation rights granted by § 379.203.4 and the terms and conditions of its policy. That will permit Progressive to pursue its subrogation claim by bringing suit in the names of Thomas and Cara against a defendant ad litem for Campbell. Any recovery in such a lawsuit, however, will be limited to the amount Progressive paid as uninsured motorist benefits. The releases executed by Thomas and Cara are binding on them as to any claim they might have had for damages in excess of the amounts paid to them by Progressive. See Dickhans, 705 S.W.2d at 106; Marshall, 854 S.W.2d at 612.

The judgments of the trial court are affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      . Because Thomas and Cara are siblings and share the same surname, we refer to them by their first names for purposes of clarity and convenience. We intend no disrespect.

      . All references to rules are to the Missouri Rules of Civil Procedure (2004).

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . In Progressive’s brief, it makes no argument that Thomas’ and Cara’s release of Campbell, Reliable and Universal as a part of the settlement of their uninsured motorist claims against that insurer violated any provision in Progressive's policy or that there is any contractual basis for avoiding its duty to pay uninsured motorist benefits to Thomas and Cara.

      . All references to statutes are to RSMo (2000).

        . An insurer’s right of subrogation extends only to the insured’s claim against the uninsured motorist. Schaeffer, 973 S.W.2d at 182; Craig v. Iowa Kemper Mut. Ins. Co., 565 S.W.2d 716, 726 (Mo.App.1978); Kroeker, 466 S.W.2d at 110-11.