American States Ins. Co., Inc. v. Porterfield

• Decision Date: 08 September 1992
• Docket Number: Nos. WD,s. WD
• Citation: 844 S.W.2d 13
• Parties: AMERICAN STATES INSURANCE CO., INC., Respondent, v. Jerry PORTERFIELD, d/b/a Porterfield Construction, Defendant, and James Devon Scarborough, b/n/f, Appellant. James Devon SCARBOROUGH, et al., Appellants, v. Jerry PORTERFIELD, d/b/a Porterfield Construction, Respondent. 45714, WD 45806.
• Court: Missouri Court of Appeals

Page 13

844 S.W.2d 13

AMERICAN STATES INSURANCE CO., INC., Respondent, v. Jerry PORTERFIELD, d/b/a Porterfield Construction, Defendant, and James Devon Scarborough, b/n/f, Appellant.

James Devon SCARBOROUGH, et al., Appellants, v. Jerry PORTERFIELD, d/b/a Porterfield Construction, Respondent.

Nos. WD 45714, WD 45806.

Missouri Court of Appeals,

Western District.

Sept. 8, 1992.

Max Von Erdmannsdorf and Michael D. Gibbons, Kansas City, for appellants.

Jack T. Bangert, Kansas City, for defendant.

Gordon N. Myerson, Kansas City, for respondent.

Before TURNAGE, P.J., and BRECKENRIDGE and HANNA, JJ.

TURNAGE, Presiding Judge.

This is a consolidated appeal involving two separate but related lawsuits--a personal injury action and a declaratory judgment action. The personal injury action was brought by James Devon Scarborough, a minor, and his parents, James and Beth Scarborough, against Jerry Porterfield d/b/a Porterfield Construction Company. The declaratory judgment action was brought by American States Insurance Company. The court in each case entered summary judgment--in the personal injury action in favor of Porterfield and in the declaratory judgment action in favor of American. On this appeal the Scarboroughs contend there were genuine issues of material fact in both actions which precluded summary judgment. ¹ Affirmed.

On August 14, 1989, Beth Scarborough was driving her car in a westerly direction on 210 Highway near the intersection of Searcy Creek Parkway in Clay County. Her husband, James Craig Scarborough, and minor son, James Devon Scarborough, were passengers. At the same time, Maurice Richey, an employee of Porterfield, was eastbound in his truck on 210 Highway. Richey's truck was pulling a trailer carrying a small tractor. As Richey was proceeding along the highway, the trailer became unhitched and crossed the divided highway entering the opposite lane of oncoming traffic where it collided with the Scarborough vehicle. All of the Scarboroughs were injured as a result of the collision.

The Scarboroughs brought the personal injury action against Porterfield. At the time of the accident, Porterfield maintained two policies with American. The first policy was automobile liability coverage with combined single limits of $100,000 per person and $300,000 per accident. The second policy was commercial general liability coverage with the same limits.

The Scarboroughs entered into a settlement with Porterfield and agreed to accept the limit of all remaining insurance proceeds under the auto liability policy, which amounted to approximately $281,800.29, in partial settlement of their claims. The Scarboroughs reserved the right to further pursue Porterfield to the extent of any insurance available under his CGL liability policy with American. In consideration of these payments, the Scarboroughs signed a covenant not to execute and a limited release whereby they agreed never to execute upon any of Porterfield's personal or business assets. The court approved the terms of the settlement.

After the settlement was approved, American filed a declaratory judgment action requesting the court to declare that the CGL policy did not provide coverage for the automobile accident. The trial court held that the CGL policy did not apply to the accident and granted summary judgment in favor of American.

Shortly thereafter, Porterfield filed a motion for summary judgment in the personal injury suit claiming that there was no genuine issue as to any material fact since the parties had agreed to a partial settlement which limited the Scarboroughs' recovery to the amount of any coverage available under the CGL policy. Porterfield further contended that since the court in the declaratory judgment action had held that the CGL policy provided no coverage for the accident, the Scarboroughs basically had no viable claim and, therefore, he was entitled to summary judgment as a matter of law. The court entered summary judgment in favor of Porterfield.

The sole issue in this case is whether the CGL policy provides coverage for injuries arising out of the automobile accident. Disputes arising from interpretations and application of insurance contracts are matters of law for the court where there are no underlying facts in dispute. Moore v. Commercial Union Ins. Co., 754 S.W.2d 16, 18 (Mo.App.1988). Since there is no dispute of facts in this case and it involves the interpretation of an exclusion clause in the CGL policy, this court will examine the plain language of the relevant insurance provisions.

The CGL policy issued to Porterfield by American provides, in pertinent part:

1. INSURING AGREEMENT.

(a) We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies.

2. EXCLUSIONS.

This insurance does not apply to: ...

(g) "Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaded to any insured. Use includes operation in "loading and unloading."

Under the definition section a truck and trailer come within the definition of "auto."

In this case, the Scarboroughs have not alleged that the language in the CGL policy is ambiguous or unclear. Nonetheless, the Scarboroughs contend that the CGL policy should provide coverage for the accident because they allege that Porterfield was negligent in the supervision of his employees in the proper method of hitching the trailer to the truck.

In support of their contention that the negligent supervision of employees is a separate and concurrent act of negligence which does not fall within the automobile exclusion of the CGL policy, the Scarboroughs rely primarily on Braxton v. United States Fire Ins. Co., 651 S.W.2d 616 (Mo.App.1983). Braxton is distinguishable because the court found an ambiguity in the policy.

The Missouri Supreme Court has held that "where language in an insurance contract is unequivocal, it is to be given its plain meaning notwithstanding the fact that it appears in a restrictive provision of a policy." Harrison v. MFA Mutual Ins. Co., 607 S.W.2d 137, 142 (Mo. banc 1980). Further, unless the language of the policy is ambiguous, the court is bound to enforce its terms as written. Hempen v. State Farm Mut. Auto. Ins. Co., 687 S.W.2d 894 (Mo. banc 1985).

In this case, Porterfield procured insurance coverage for two distinct types of risks--those involving the use, ownership and maintenance of automobiles to be covered under his automobile liability policy and general business liability risks to...