Accurso v. Amco Ins. Co.

• Decision Date: 04 August 2009
• Docket Number: No. WD 70087.,WD 70087.
• Citation: 295 S.W.3d 548
• Parties: Kimberly A. ACCURSO, Respondent, v. AMCO INSURANCE COMPANY and Mount Vernon Fire Insurance Company, Appellants.
• Court: Missouri Court of Appeals

295 S.W.3d 548

Kimberly A. ACCURSO, Respondent, v. AMCO INSURANCE COMPANY and Mount Vernon Fire Insurance Company, Appellants.

No. WD 70087.

Missouri Court of Appeals, Western District.

August 4, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 22, 2009.

Application for Transfer Denied November 17, 2009.

William A. Larson, Topeka, KS, for Appellant AMCO.

John M. Waldeck and Casey P. Murray, Leawood, KS, for Appellant, Mt. Vernon.

Jason M. Pottenger, Kansas City, for Respondent.

Before HAROLD L. LOWENSTEIN, P.J., JAMES EDWARD WELSH, and MARK D. PFEIFFER, JJ.

JAMES EDWARD WELSH, Judge.

Amco Insurance Company and Mount Vernon Fire Insurance Company appeal the circuit court's judgment for Kimberly A. Accurso on her claim for underinsured motorist benefits. Amco and Mount Vernon contend that the circuit court erred in applying Missouri law to determine whether the underinsured limits under the respective policies could be stacked. Mount Vernon also contends that the circuit erred in its order granting Accurso's motion for summary judgment because material facts were in dispute. We affirm the circuit court's judgment.

On August 28, 2004, Accurso went on a bicycle ride with her dogs and a friend near 183rd Street and Holmes Road in Cass County, Missouri. When one of Accurso's dogs was struck by a car, Accurso ran out into the street to help and was struck by another car. As a result of the collision, Accurso suffered significant damages. Accurso sued John Duke, the driver of the vehicle, for negligence and sued Amco and Mount Vernon, claiming underinsured motorist benefits.

Accurso lived in Leawood, Kansas, with her six children. At the time of the accident, she was separated from her husband, Louis Accurso. Both Accurso and her estranged husband were named insureds on the two insurance policies at issue. Their primary personal automotive liability insurance policy from Amco covered five cars and two trailers and had uninsured/underinsured limits of $250,000 per person and $500,000 per accident. Accurso's husband filled out the application for the Amco policy and used the mailing address of 4646 Roanoke Parkway, Kansas City, Missouri 64112, which is the address of Accurso's husband's law office. The Amco policy was delivered to this address, and the insurance identification cards issued by Amco listed this Missouri address. The policy also said that the Leawood, Kansas, address was the alternate garage location for three of the vehicles. The application for the Amco policy showed that all of the vehicles to be insured were registered in Kansas and showed that all of the drivers listed had Kansas driving licenses. However, prior to the accident, Accurso's husband re-titled all of the insured vehicles in Missouri.

Accurso and her husband were also named insureds on an excess policy issued by Mount Vernon. The Mount Vernon policy provided coverage to owned vehicles that were covered by underlying insurance. The policy listed the Accursos' address as the Leawood, Kansas, address and provided uninsured/underinsured limits of $250,000 per person and $500,000 per accident. On January 9, 2004, Accurso's husband requested that Mount Vernon add to the policy a new home at 203 East 126th Street, Kansas City, Missouri, which he had purchased. On January 13, 2004, the Accursos' insurance agent, Kenneth Voorhees, sent a letter to Accurso's husband stating he had "requested cost to add your new home in Missouri." Pursuant to Accurso's request, Mount Vernon issued an endorsement charging an additional $56 premium for the "Addition of the location." On June 21, 2004, the Mount Vernon policy issued an endorsement changing the principal address on the policy to 4646 Roanoke Parkway, Kansas City, MO 64112.

On February 14, 2008, Mount Vernon filed a Motion for Partial Summary Judgment which sought a ruling from the circuit court that Kansas law applies to the determination as to how much the Mount Vernon policy is obligated to pay Accurso for her injuries. Amco joined in Mount Vernon's request for partial summary judgment. In response, Accurso filed a Motion for Partial Summary Judgment on February 27, 2008, seeking a ruling from the circuit court that Missouri law shall apply to this case and that stacking of coverage be allowed under the insurance policies issued by Amco and Mount Vernon. On June 23, 2008, the circuit court granted Accurso's motion for partial summary judgment and denied Mount Vernon's and Amco's motion for partial summary judgment. Based on that ruling and the parties' stipulation to damages, the circuit court issued a Final Judgment on August 27, 2008. Amco and Mount Vernon appeal.

When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the circuit court's granting of a summary judgment de novo. Id. "The propriety of summary judgment is purely an issue of law." Id. Because the circuit court's judgment is based on the record submitted and the law, we need not defer to the circuit court's order granting summary judgment. Id. We will affirm the circuit court's grant of summary judgment if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. at 380.

Both Amco and Mount Vernon contend that the circuit court erred in granting summary judgment and applying Missouri law in determining whether the underinsured limits under the respective policies could be stacked. Under Missouri law, the stacking¹ of underinsured motorist benefits is permitted when an insurance policy treats underinsured and uninsured coverage the same.² Krombach v. Mayflower Ins. Co., 827 S.W.2d 208, 212 (Mo. banc 1992); Bauer v. Farmers Ins. Co., 270 S.W.3d 491, 494 (Mo.App.2008). Indeed, in this case the uninsured and underinsured motorist coverages are combined within the same section, and the premiums for these coverages are combined into a single premium. Thus, if Missouri law applies, the coverages should be stacked. Krombach, 827 S.W.2d at 212. Amco and Mount Vernon assert, however, that Kansas law, which prohibits stacking of underinsured motorist benefits, should apply. See K.S.A. 40-284(d); Eidemiller v. State Farm Mut. Auto. Ins. Co., 261 Kan. 711, 933 P.2d 748, 756 (1997). We disagree.

Missouri has adopted sections 188 and 193 of the Restatement (Second) Conflict of Laws (1971) for determining choice of law issues as they relate to insurance contracts. Hartzler v. Am. Family Mut. Ins. Co., 881 S.W.2d 653, 655 (Mo. App.1994). Under section 193, "the principal location of the insured risk is given greater weight than any other single contact in determining the state of applicable law provided that the risk can be located in a particular state." Sheehan v. Nw. Mut. Life Ins. Co., 44 S.W.3d 389, 397 (Mo.App.2000). "Comment b to section 193 describes the principal location of the insured risk as `the state where it will be during at least the major portion of the insurance period'" and states further that in the case of an automobile liability policy, "it is where the vehicle will be garaged during most of the period." Superior Equip. Co., Inc. v. Md. Cas. Co., 986 S.W.2d 477, 481 (Mo.App.1998).

In this case, at the time of Accurso's accident on August 28, 2004, the five insured motor vehicles had a primary or "principal" location in Missouri according to the Amco policy. The Amco policy contained a Missouri address and was sent to a Missouri address. Moreover, the policy's declarations page identified the Kansas address as an "alternate garaging location" for three of the vehicles. We agree with Accurso and the circuit court that "alternate" does not mean primary; it means in addition to the primary location.

As for the Mount Vernon policy, on June 21, 2004, the principal address for the policy was changed to a Missouri address.³ Comment d to section 193 of the Restatement says:

There may also be occasions when following the issuance of the policy the principal location of the risk is shifted to some other state. In such a situation, this other state will have a natural interest in the insurance of the risk and it may be that its local law should be applied to determine at least some issues arising under the policy. In any event, application of the local law of the other state would hardly be unfair to the insurance company, at least with respect to some issues, if the company had reason to foresee when it issued the policy that there might be a shift to another state of the principal location of the risk.

We believe that when Mount Vernon received notice that the Accursos' principal address had changed, Mount Vernon had reason to foresee that the principal location of the risk had shifted to Missouri. Moreover, before Accurso's accident, the vehicles were registered and licensed in Missouri. The principal location of the insured risk, therefore, was Missouri.

Because the location of the insured risk is given greater weight than any other single contact, we believe that section 193 of the Restatement resolves this case. However, we nevertheless look to section 188 of the Restatement to examine which state has the most significant relationship and confirm our conclusion that Missouri law applies. Section 188 provides:

(2) In the absence of an effective choice of law by the parties . . . the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(1) the place of the contracting,

(2) the place of negotiation of the contract,

(3) the place of performance,

(4) the location of the subject matter of the contract, and

(5) the domicile, residence, nationality, place of incorporation and place of business of the parties.

RESTATE...