KAREN KING MITCHELL, Judge.

National General Insurance Online, Inc. (Insurer), appeals from the denial of its motion to intervene as a matter of right in an underlying personal injury lawsuit filed by Jeffrey Wunderlich (Husband) against Sharon Wunderlich (Wife). Insurer argues that the trial court erred in denying its motion to intervene because, as Wife's insurance carrier, Insurer had an absolute right to intervene to protect its interest when it offered to provide Wife a full defense without a reservation of rights and pursuant to an excess protection letter (where Insurer agreed to fully indemnify Wife beyond her policy limits). We affirm.

Background1

On September 30, 2012, Husband and Wife were travelling in a 2008 BMW insured by Insurer. At some point, Husband exited the vehicle and was walking along the road when Wife struck him with the vehicle, causing numerous serious injuries.

On January 6, 2015, Husband sent Insurer a settlement demand letter, seeking payment of the full policy limit of $250,000 for personal injuries. Attached to the demand letter were police reports, medical reports, and medical bills totaling over $200,000. The demand letter indicated that, if Insurer did not respond within thirty days, a lawsuit would be filed. Insurer did not respond. Husband's counsel followed up with Insurer on February 6, 2015, and again received no response.

Wife then retained her own counsel who, on April 28, 2015, sent another demand letter to Insurer, expressing concerns that Wife's negligence "created a liability well in excess of her policy limits." The demand letter urged Insurer to resolve the matter within the policy limits and not subject Wife to personal liability in excess of the policy limits. Insurer did not respond.

On June 25, 2015, Wife's counsel sent Insurer a letter, requesting the claim file related to the incident. Insurer did not respond. On July 1, 2015, Wife's counsel sent Insurer a second letter, advising Insurer that if it did not turn over Wife's underwriting and claim file within fourteen days, Wife would file a complaint with the Department of Insurance. On July 28, 2015, having received no response from Insurer, Wife filed a complaint with the Department of Insurance.

That same day, Husband filed a petition against Wife, seeking damages resulting from Wife's negligence in striking him with the vehicle. Shortly thereafter, Insurer retained counsel to represent Wife in the pending lawsuit. On August 3, 2015, Insurer responded to Wife's counsel advising that it would provide the claim file for the incident and reminding Wife that, under the terms of the policy, she had a duty to cooperate. On August 5, 2015, Wife's counsel denied consent for Insurer's counsel to enter an appearance on Wife's behalf. Wife's counsel advised that she was exploring a settlement agreement with Husband under § 537.065.2

On September 2, 2015, counsel retained by Insurer for the purpose of defending Wife sent a letter to Wife's counsel expressing Insurer's willingness to "pay any final judgment entered on the allegations of the current Petition," regardless of policy limits and without any reservation of rights, if Wife would agree to fully cooperate with Insurer in defense of the lawsuit. The letter advised that, if Wife pursued a settlement agreement under § 537.065, Insurer would view her actions as a violation of the cooperation clause of her insurance contract and disclaim coverage for any resulting judgment. On October 18, 2015, Wife refused Insurer's offer of defense and sent Insurer a copy of the proposed § 537.065 settlement agreement. Wife's counsel urged Insurer to sign the § 537.065 agreement, but Insurer refused.

On December 3, 2015, the court set the matter for a one-day bench trial on February 25, 2016. On January 7, 2016, Wife filed an answer admitting all allegations of wrongdoing, but claiming she was without sufficient information regarding the nature and extent of Husband's injuries and damages and intended to "require [Husband] to be put to his proofs." On February 12, 2016, Insurer filed a motion to intervene, arguing that Wife was in violation of the cooperation clause of the insurance contract by permitting the matter to proceed to an uncontested bench trial and judgment. After hearing arguments on the motion, the trial court refused to allow Insurer to intervene. Insurer appeals.

Standard of Review

"The denial of a motion to intervene as of right under Rule 52.12(a)3 must be affirmed unless it is against the weight of the evidence, it is unsupported by sufficient evidence, or it either misinterprets the law or misapplies the law." Kinney v. Schneider Nat'l Carriers, Inc., 200 S.W.3d 607, 609 (Mo. App. W.D. 2006) (quoting Moxness v. Hart, 131 S.W.3d 441, 444 (Mo. App. W.D. 2004)). "In reviewing the trial court's denial of intervention as of right, `we consider the facts in the light most favorable to the court's judgment.'" Id. (quoting In the Interest of M.B., 91 S.W.3d 122, 125 (Mo. App. E.D. 2002)).

Analysis

Insurer raises a single claim on appeal, challenging the trial court's denial of its motion to intervene as a matter of right under Rule 52.12(a).4

Rule 52.12(a). Insurer does not claim that there is any statute conferring upon it an unconditional right to intervene; instead, Insurer argues that it was entitled to intervene under subsection (2).

"To intervene as a matter of right under Rule 52.12(a)(2), the [would-be] intervenor must show: (1) an interest in the subject matter; (2) disposition of the action may impede its ability to protect that interest; and (3) the applicant's interest is not adequately represented by the existing parties."5 Griffitts v. Campbell, 426 S.W.3d 684, 687 (Mo. App. S.D. 2014) (quoting In re Clarkson Kehrs Mill Transp. Dev. Dist., 308 S.W.3d 748, 752 (Mo. App. E.D. 2010)). "The trial court may deny the applicant's motion to intervene if any one of these requirements is not met." Id. at 688 (quoting Clarkson, 308 S.W.3d at 753). Here, because Insurer failed to establish an interest in the subject matter, the trial court committed no error in denying intervention.

"A liability insurer whose . . . insured is an alleged tortfeasor does not have an `interest' in an action by an injured person against the . . . insured-tortfeasor," supporting "the insurer's intervention . . . as a matter of right under Rule 52.12(a)(2), unless the injured person's `potential' claim against the insurer for indemnity has become an `actual' claim for indemnity." Id. Before a potential claim for indemnity can become an actual claim for indemnity, "any judicially pending `question of coverage' [must be] resolved, . . . the injured person [must have] obtained a judgment against the tortfeasor," and the injured person must have "demanded the insurer pay the judgment." Id. (quoting Augspurger v. MFA Oil Co., 940 S.W.2d 934, 937 (Mo. App. W.D. 1997)).

Setting aside whether there is a pending "question of coverage" here,6 Insurer cannot demonstrate an interest because Husband has neither obtained a judgment against Wife nor demanded that Insurer pay that non-existent judgment. "The [alleged] interest must be a `direct and immediate claim to, and having its origin in, the demand made or proceeds sought or prayed by one of the parties to the original action.'" Borgard v. Integrated Nat'l Life Ins. Co., 954 S.W.2d 532, 535 (Mo. App. E.D. 1997) (quoting Whitehead v. Lakeside Hosp. Ass'n, 844 S.W.2d 475, 479 (Mo. App. W.D. 1992)). To be sufficiently "direct and immediate," the would-be intervenor must show that he or she "will either gain or lose by the direct operation of the judgment that may be rendered therein." Id. (emphasis added).

Here, the direct operation of any judgment against Wife would establish only her liability for Husband's injuries and the amount of damages to which Husband is entitled. Unless and until Insurer is called upon to make indemnity on such a judgment, Insurer lacks the direct interest required by Rule 52.12(a)(2). See Flippin v. Coleman Trucking, Inc., 18 S.W.3d 17, 21 (Mo. App. E.D. 2000) (before potential indemnity transforms to actual indemnity, "a demand for payment on the judgment must be made."); Whitehead, 844 S.W.2d at 479 ("An insurer does not have an interest that implicates the rule until the insurer is called upon to make indemnity as to the judgment.").7

Insurer argues that, because Wife is allegedly in breach of the cooperation clause of the insurance contract, it must be allowed to intervene to protect its right to control the defense. But coverage. Thus, it appears that there may very well be a pending question of coverage that would also preclude Insurer's claimed interest under Rule 52.12(a)(2). But this is not a question we need to resolve. Insurer ignores the fact that any right it has (or had) to participate in the litigation is "a contractual right, not a right based on Rule 52.12(a)." Charles v. Consumers Ins., 371 S.W.3d 892, 898 (Mo. App. W.D. 2012). If Insurer's claim is meritorious, it can assert it in defense of any future demand for payment on a judgment in favor of Husband against Wife. And, contrary to Insurer's claim, Wife disputes the alleged breach, claiming that it was Insurer who first breached the contract by failing to consider or convey Husband's allegedly reasonable settlement demand. If Wife's claim is accurate, "Rule 52.12 . . . is not available to restore an insurance carrier to control of the defense . . . when the carrier forfeited control by [breaching the agreement]." Id. "Nor can the insurer's breach and the insured's settlement in reliance thereon . . . create an interest where one does not otherwise exist." Id.

In short, regardless of whether the insurance contract has been breached, or by whom, unless and until a judgment is entered against Wife and a demand for payment of that judgment is made upon Insurer, Insurer lacks a direct interest sufficient to entitle Insurer to intervention under Rule 52.12(a)(2). Insurer's claim is denied.

Conclusion

The trial court committed no error in denying Insurer's motion to intervene. Its judgment is affirmed.

Lisa White Hardwick, Presiding Judge, and Anthony Rex Gabbert, Judge, concur.