No. 60001.Missouri Court of Appeals, Eastern District, Division Four.
March 10, 1992.
Joseph Mueller, Robyn Fox, Greg Mueller, Moser Maesalek, St. Louis, for plaintiff/appellant.
Page 65
Richard A. Wunderlich, Kelle A. Koncki, Lewis, Rice
Fingersh, Clayton, for defendants/respondents.
AHRENS, Judge.
[1] Aetna Casualty Surety Company (Aetna) appeals from the trial court’s judgment on Aetna’s petition for declaratory judgment. [2] Aetna filed the declaratory judgment action seeking a determination of its rights and obligations under a comprehensive general liability insurance policy issued to J.R. Green Properties, Inc., and J.R. Green Construction Company with respect to a wrongful death action brought by Suzanne Kibbons. In an appeal from that underlying wrongful death action, the Missouri Supreme Court reversed the judgment against J.R. Green, finding Kibbons failed to make a submissible case. Kibbons v. Union Electric Co. and J.R. Green Properties, Inc., 823 S.W.2d 485(Mo. banc 1992), reh’g denied, February 25, 1992. [3] At oral argument before this court, respondents asserted that a reversal of the underlying action would not render the present appeal moot, because J.R. Green had filed a counterclaim against Aetna. The trial court, however, severed the counterclaim from the declaratory judgment action; that counterclaim is not part of the record on appeal. [4] Accordingly, on the record before us, we dismiss Aetna’s appeal as moot in light of the supreme court’s reversal of the judgment against J.R. Green in the underlying action. [5] SMITH, P.J., and CRANE, J., concur.