concurring in part and dissenting in part.
I concur in the opinion of Judge Gaertner as it pertains to count I — the contract reformation count. I respectfully dissent from that portion of the opinion dealing with counts II, III, IV — the contract and negligence counts.
The trial court sustained the motions of defendants for judgment on the pleadings *924on the basis that all counts were barred by the statute of limitations. It is well settled that if the petition shows on its face that it is barred by the statute of limitations and if the bar may be obviated by some exception in the statute the facts stated in the petition should show such exception. In short, the exception relieving plaintiff from the bar of the statute should be pleaded by him. Wilbur Waggoner Equipment and Excavating Company v. Clark Equipment Company, 668 S.W.2d 601 (Mo.App.1984) [2]. The petition alleges (1) that in 1979 Dr. Smith requested issuance of a policy of malpractice insurance containing prior acts coverage back to 1971, (2) that in 1979 defendant Missouri Medical issued its policy with prior acts coverage back only to 1976, (3) that in July 1985 suit was filed against Dr. Smith for injury sustained by Keith Nuspl during birth as a result of Dr. Smith’s malpractice, (4) that Dr. Smith was served in November 1985, (5) that judgment was entered against Dr. Smith by consent on January 8, 1991, and (6) on that date the current suit was filed. On its face the petition shows issuance of the policy in 1979 and suit against Dr. Smith in 1985. This case was filed in 1991, more than five years after either of those dates.1 Nothing in the pleading interposes any exception to the statute of limitation. On the face of the pleadings the judgment entered was correct.
Plaintiffs attached to their memorandum in opposition to the motion for judgment on the pleadings certain documents including the insurance policy, interrogatory answers in the suit against Dr. Smith, and correspondence. The record does not indicate that the trial court considered these materials in making its ruling. If we assume that it did so then the order which it entered is more properly a summary judgment than a judgment on the pleadings. In view of the result reached by the majority I will assume that the majority considers that the documents are properly before us and may be considered.
Included in the documents are the Limited Prior Acts Endorsements, one covering the doctor as an individual and one covering his professional corporation. Both specifically provide for coverage commencing in January 1976 through January 1979. In an accompanying letter the insurance company in highlighted type directed that the copy of the endorsement be signed and dated and returned to the company in order to effect the endorsement. Both documents bear a signature purporting to be Dr. Smith’s. There is no suggestion they are not Dr. Smith’s signatures. Both documents also reflect a substantial premium for the coverage provided. The actions before us are premised upon breach of contract in failing to provide prior acts coverage prior to 1976 and for negligence in failing to provide such coverage. In view of the documents referred to above there is considerable merit to defendants’ contention that the statute commenced running in 1979 when Dr. Smith was aware that the coverage he allegedly sought had not been furnished. This is not a situation where the insured was led to believe he was receiving a coverage which he was not. The specific coverage was called to the doctor’s attention, he signed copies of the endorsements acknowledging his acceptance and knowledge of the coverage provided, and he paid a substantial premium for the identified coverage. In the contemplation of the law he was aware at that time that the coverage which it is now alleged was promised was not provided. I do not find Community Title Company v. Safeco Insurance Company of America, 795 S.W.2d 453 (Mo.App.1990) [5] applicable.
Assuming, however, that Community Title is applicable it does not warrant the conclusion arrived at by the majority. The statute there was held to have been triggered by the loss allegedly insured against. *925Here the insurance was to protect Dr. Smith from lawsuits arising from his malpractice. It provided coverage for both defense of the action and liability for an ensuing judgment. When Dr. Smith was served with the suit papers he was made aware that the event against which he had allegedly insured himself had occurred. His insurance policy clearly advised him that it did not provide coverage for events occurring prior to 1976 and the event for which he was being sued predated that time. If the defendants were guilty of breach of contract and/or negligence Dr. Smith was or should have been aware of that when he received the suit papers. The damage resulting from those breaches was at that time sustained and the fact of damage was capable of ascertainment. The suit papers were served more than five years prior to the filing of this suit.
I am unable to conclude, as Judge Black-mar does, that State ex rel General Electric Company v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984) and Rowland v. Skaggs Companies, 666 S.W.2d 770 (Mo. banc 1984) are applicable. Those cases arise in the framework of contribution and indemnity. They held that when one has a right of contribution or indemnity against another the statute of limitations does not begin to run until the party seeking indemnity is obliged to make good on the obligation for which reimbursement is sought. This is not a contribution or indemnity case. Dr. Smith’s rights or obligations under his alleged contract did not need to await the outcome of the underlying lawsuit in order to mature. They were triggered by the lawsuit.
I would affirm the judgment of the trial court.
. The majority opinion does not reach the question of the applicable statute of limitation on the contract claim. The pleading premises recovery on the failure to issue the policy orally agreed upon. The written policy included in the legal file clearly reflects no prior acts coverage prior to 1976. The contract claim is based on the breach of an alleged oral contract and is covered by § 516.120, RSMo 1986, the five year statute.