American Motorists Ins. Co. v. Moore

• Citation: 970 S.W.2d 876
• Decision Date: 23 June 1998
• Docket Number: No. 73871,73871
• Parties: AMERICAN MOTORISTS INSURANCE COMPANY, Respondent, v. T. Donald MOORE, Jason T. Grass, Jacob A. Grass and Betty J. Downey, Appellants.
• Court: Court of Appeal of Missouri (US)

Page 876

970 S.W.2d 876

AMERICAN MOTORISTS INSURANCE COMPANY, Respondent, v. T. Donald MOORE, Jason T. Grass, Jacob A. Grass and Betty J.

Downey, Appellants.

No. 73871.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 23, 1998.

Mary Coffey, St. Louis, for appellants.

Jeffrey L. Cramer, Christina E. Dubis, Brown & James, St. Louis, for respondent.

HOFF, Judge.

Jason T. Grass, Jacob A. Grass, and Betty J. Downey (collectively Claimants) appeal from the judgment entered after the grant of summary judgment in favor of American Motorists Insurance Company (Insurer) in this declaratory judgment action. We affirm.

The undisputed record discloses the following: Insurer issued a homeowner's insurance policy (policy) to Lloyd Grass (Lloyd) and his wife, Sherry Grass (Sherry). During the policy period, Lloyd killed Sherry. Thereafter Claimants, who are Sherry's sons and mother, filed a wrongful death action pursuant to Section 537.080 RSMo Cum.Supp.1992 against T. Donald Moore (Moore), in his capacity as conservator of Lloyd's estate. The allegations in Claimants' Second Amended Petition for Wrongful Death reveal that Claimants seek damages for the loss of Sherry's "support, income, earnings, wages, companionship, wisdom, training, counsel, and guidance."

After Moore made a demand on Insurer that it defend and indemnify him, in his representative capacity, with respect to the wrongful death action, Insurer filed this declaratory judgment action. Through an Amended Petition for Declaratory Judgment (Amended Petition), Insurer sought a declaration that the policy provided no coverage for and Insurer had no obligation or duty to defend against the wrongful death claims. Specifically, Insurer alleged: Sherry was an insured under the policy and therefore there is no coverage due to policy Exclusion 2.f (Count I); the wrongful death claims do not allege an "occurrence" as defined in the policy (Count II); and bodily injury to Sherry The policy contains the following relevant provisions:

was intended or expected by Lloyd and therefore there is no coverage due to policy Exclusion 1.a (Count III).

DEFINITIONS

In this policy, "you" and "your" refer to the "named insured" shown in the Declarations and the spouse if a resident of the same household.... In addition, certain words and phrases are defined as follows:

1. "bodily injury" means bodily harm, sickness or disease, including required care, loss of services and death that results.

* * *

3. "Insured" means you and residents of your household who are:

a. your relatives; or

b. other persons under the age of 21 and in the care of any person named above.

* * *

SECTION II - LIABILITY COVERAGES

COVERAGE E--Personal Liability

If a claim is made or a suit is brought against an Insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the Insured is legally liable; and

2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.

* * *

SECTION II - EXCLUSIONS

* * *

2. Coverage E - Personal Liability, does not apply to:

* * *

f. bodily injury to you or an Insured within the meaning of part a. or b. of "Insured" as defined.

* * *

SECTION II - CONDITIONS

* * *

2. Severability of Insurance. This insurance applies separately to each Insured. This condition will not increase our limit of liability for any one occurrence.

Both Lloyd and Sherry were named as insureds in the policy's Declarations.

In this declaratory judgment action, Claimants and Insurer filed motions for summary judgment directed only to Insurer's claim there was no coverage due to Exclusion 2.f and Sherry's status as an insured (Count I of the Amended Petition). In granting Insurer's motion, the trial court first determined Sherry was an insured for purposes of the policy because she was a named insured and because she was a resident of the household and a relative of the other named insured, Lloyd. The trial court then found the wrongful death claims arose out of and are derived from bodily injury to an insured and bodily injury to an insured is expressly excluded from the policy's personal liability coverage. The trial court specifically stated the policy's personal liability coverage excludes "personal liability for bodily injury" to Sherry as well as Claimants' "claims for loss of services as a result of the death" of Sherry. The trial court found the policy did not provide coverage for and does not impose either a duty or an obligation on Insurer to defend and indemnify Moore, in his representative capacity, with respect to the wrongful death claims. After the trial court's decision on the summary judgment motions, Insurer dismissed its other pending claims.

We dismissed an earlier appeal in this case due to the absence of a judgment complying with Rule 74.01(a). American Motorists Ins. Co. v. Moore, 958 S.W.2d 94 (Mo.App.E.D.1997). On January 12, 1998, the trial court filed a document denominated "Judgment," which states in full:

Pursuant to this Court's Memorandum and Order dated 2/26/97 granting summary judgment to plaintiff on Count 1, and the plaintiff's 3/10/97 voluntary dismissal of the remaining Counts 2 and 3, judgment is hereby entered in favor of plaintiff and against defendants, at defendants' costs.

This appeal followed entry of that judgment. ¹

In their sole point, Claimants argue the trial court erred in granting summary judgment in favor of Insurer on Count I because policy Exclusion 2.f either (1) by its express terms does not apply to derivative claims, such as those presented by Claimants, or (2) is ambiguous regarding its application to derivative claims and the ambiguity must be construed in favor of coverage.

In appeals from summary judgment, we "review the record in the light most favorable to the party against whom judgment was entered" and our review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Whether to grant summary judgment is purely an issue of law. Id. Because the trial court's judgment is based upon the record submitted and the law, we "need not defer to the trial court's order granting summary judgment." Id.

"The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute." Id. at 378. The record reveals there is no genuine dispute as to the material facts. Insurer, the successful movant, is entitled to judgment if it establishes a policy exclusion bars coverage. American Family Mut. Ins. Co. v. Pacchetti, 808 S.W.2d 369, 370 (Mo. banc 1991); State Farm Fire and Casualty Co. v. Schroeder, 951 S.W.2d 708, 709 (Mo.App. E.D.1997). The questions presented for our consideration are: (1) does Exclusion 2.f unambiguously preclude coverage of the wrongful death claims pursued by Claimants; and, if so, (2) does either the personal liability coverage provision or the severability clause in the policy render Exclusion 2.f ambiguous? We conclude Exclusion 2.f unambiguously precludes coverage of Claimants' wrongful death claims and neither the policy's personal liability coverage provision nor the policy's severability clause render Exclusion 2.f ambiguous.

If the insurance policy is unambiguous, we enforce the policy as written. Peters v. Employers Mut. Casualty Co., 853 S.W.2d 300, 302 (Mo. banc 1993). "Plain and unambiguous language [in an insurance policy] must be given its plain meaning." Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 101 (1927). We cannot distort unambiguous policy language to create an ambiguity. Krombach v. Mayflower Ins. Co., 827 S.W.2d 208, 210 (Mo. banc 1992).

An ambiguity exists when there is duplicity, indistinctness or uncertainty in the meaning of a policy's language. Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 814 (Mo. banc 1997). The language used is viewed "in the meaning that would ordinarily be understood by the layman who bought and paid for the policy." Krombach, 827 S.W.2d at 210. Words are ambiguous if they are "reasonably open to different constructions." Gulf Ins. Co., 936 S.W.2d at 814. We construe ambiguous insurance policy provisions against the insurer. Id.

In light of this Court's recent decision in Wintlend v. Baertschi, 963 S.W.2d 387 (Mo.App. E.D.1998), we conclude Exclusion 2.f unambiguously applies to Claimants' wrongful death claims. The Wintlend case focused on whether or not wrongful death claims pursued by the relatives of three insureds who had been killed by a fourth insured were covered under a homeowner's insurance policy containing language identical to the language at issue in this case. Id. We reversed the trial court's judgment and entered judgment in favor of the insurer upon determining the trial court's interpretation of the policy as providing coverage of the wrongful death claims failed to give effect to the "that results" language at the end of the "bodily injury" definition. Id. at 390. In relevant part we concluded:

A plain reading of the policy reveals it provides coverage for bodily injury including a loss of services that results from bodily harm, sickness or disease. Here, while claimants arguably suffered a loss of services, their loss will only be covered if it resulted from bodily harm, sickness or disease covered by the policy. Claimants' losses derived solely from bodily harm suffered by wife and children, who were insureds under the policy. Because the policy excluded coverage for bodily harm, sickness or disease to any insured, it follows that damages derived from the insureds' harm, whether or not they are considered...