Automobile Club Inter-Ins. Exch. v. Medrano, ED 80312.

• Decision Date: 25 June 2002
• Docket Number: No. ED 80312.,ED 80312.
• Citation: 83 S.W.3d 632
• Parties: AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, Appellant, v. Rommel MEDRANO, et al., Respondents.
• Court: Missouri Court of Appeals

83 S.W.3d 632

AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, Appellant, v. Rommel MEDRANO, et al., Respondents.

No. ED 80312.

Missouri Court of Appeals, Eastern District, Division Two.

June 25, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 7, 2002.

Application for Transfer Denied September 24, 2002.

William F. James, Kristi J. Booker, St. Louis, MO, for appellant.

Charles G. Schierer, Donald L. O'Keefe, Jr., Michael J. Ward, St. Louis, MO, Gary A. Growe, Clayton, MO, for respondents.

MARY R. RUSSELL, Judge.

Automobile Club Inter-Insurance Exchange ("Insurer") appeals from a declaratory judgment finding coverage under two different automobile policies for an accident involving two pedestrians and a van. We find Insurer's failure to file the relevant portion of one of the policies results in an incomplete record on appeal and precludes analysis of Insurer's first point wherein it argues that coverage did not exist under a policy issued to the van's owner. As a result, we dismiss Insurer's first point. We find no coverage under the other policy as the persons involved in the accident were not covered persons as defined in that policy. We reverse the trial court's judgment with respect to that policy.

Insurer filed a three-count petition for declaratory judgment. The named defendants in the action were Rommel Medrano; David Carron; Jason Meriwether; Pulitzer Publishing Company; Seung Lee; and Kevin, Kerry, and Kurt Krueger and Kirsten Krueger Aiello (collectively "Defendants").

At one time, Carron owned and operated two newspaper routes. After some problems with one of Carron's routes and with his driver's license, the newspaper required him to sell both routes. He sold one, and he purported to sell the other to his longtime friend, Medrano. Medrano and Carron signed a contract for a sum of money, and Medrano represented to the newspaper that he was the owner even though no money was paid in the ostensible sale. Carron continued to operate and receive profits from the route.

The parties stipulated to several facts. To aid the reader's comprehension of the facts, we present them in the following order:

On or about April 8, 1999, a 1987 Dodge Ram van owned by Defendant David Carron, while being driven by Defendant Jason Meriwether, was involved in a motor vehicle collision on Hanley Road in St. Louis County, with pedestrians Seung Lee and William Krueger in St. Louis County, Missouri.

The 1987 Dodge Ram van involved in the motor vehicle accident of April 8, 1999, was owned by David Carron. As a result of the aforesaid accident, Defendant Seung Lee claims to have sustained personal injuries, with an action [then] pending in the Circuit Court of the City of St. Louis, bearing cause number 992-08609, a copy of which [was] attached [to the stipulations of fact] and made a part [t]hereof.

William Krueger, who was survived by Defendants Kevin P. Krueger, Kerry Krueger, Kurt Krueger and Kirsten Krueger Aiello, his children, may have died as a result of the injuries in said accident.

As a result of this accident, Defendants Kevin P. Krueger, Kerry Krueger, Kurt Krueger and Kirsten Krueger Aiello claim damages arising out of the death of their father William Krueger, with an action [then] pending in the Circuit Court of the City of St. Louis, bearing cause number 992-08609, a copy of which [was] attached [to the stipulations of fact] and made a part [t]hereof.

The Automobile Club Inter-Insurance Exchange issued a Missouri Personal Auto Policy to Defendant David Carron bearing policy number A9-344307-1, a copy of which [was] attached [to the stipulations of fact] and made a part [thereof] with said policy of automobile insurance being in full force and effect on April 8, 1999.¹

A 1992 Jeep Wrangler motor vehicle [was] listed on the attached Declarations sheet for policy number A9-344307-1 which was issued by Plaintiff Automobile Club Inter-Insurance Exchange to Defendant David Carron.

A 1998 Audi A4 motor vehicle [was] listed on the attached Declarations sheet for policy number A3-213306-1 which was issued by Plaintiff Automobile Club Inter-Insurance Exchange to Defendant Rommel Medrano.

Attached [to the stipulations of fact were] true and accurate copies of the depositions of Rommel Medrano, David Carron and Jason Adam Meriwether. Rommel Medrano, David Carron and Jason Adam Meriwether would testify in an identical or similar fashion in this case.

Insurer also issued a renter's policy to Medrano that was attached and incorporated into the stipulations of fact. No witnesses testified at trial, and the trial court determined the case on the stipulations.

In the first count of its declaratory judgment action, Insurer claimed no coverage existed under an automobile policy issued to Carron ("Carron Policy"). It argued that the 1987 Dodge Ram van owned by Carron that was involved in the accident was not covered under the Carron Policy, which listed only a 1992 Jeep Wrangler on the declarations sheet. Furthermore, it claimed that coverage was excluded because the accident occurred while the van was being used to carry property "for a fee or compensation" in that it was being used to deliver newspapers at the time.

In its second count, Insurer argued that there was no coverage under a policy issued to Rommel Medrano ("Medrano Policy"), which listed a 1998 Audi A4 on the declarations sheet. It claimed that coverage of Carron's van was excluded under the Medrano Policy because it was a vehicle other than Medrano's covered auto that was "furnished or available for [Medrano's] regular use." Further, it contends that coverage was excluded because the liability claims arose while the van was being used to carry property "for a fee or compensation." In its third count, Insurer urged the trial court to find that no coverage existed under a renter's policy issued to Medrano because the claims were in connection with a business engaged in by him.

The trial court found coverage under both the Carron Policy and the Medrano Policy, but it found that no coverage existed under the renter's policy issued to Medrano. Insurer appeals the trial court's judgment wherein it found coverage under the Carron Policy and the Medrano Policy.

In its first point, Insurer argues that the trial court erred in finding coverage under the Carron Policy. It claims the van was not a covered vehicle under the policy and coverage was excluded because Meriwether was driving the van to deliver newspapers. In addition, Carron owned the van, which Insurer contends rendered it available for his "regular use."

We note that deficiencies in the record on appeal preclude any analysis on the merits of Insurer's first point. Rule 81.12(a) instructs: "The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented ... to the appellate court for decision." Furthermore, the "[a]ppellant shall be responsible for preparing the legal file." Rule 81.12(b). In the instant case, Insurer was charged with preparing the legal file and ensuring that it contained the documents necessary for appellate review. See City of St. Clair v. Cash, 579 S.W.2d 763, 764 (Mo.App.1979).

The parties state in their briefs that the Carron Policy and Medrano Policy are identical, and they cite to the same policy language in their respective arguments in their first and second points on appeal. However, the policy language contained in the legal file that is sworn to be "a true and exact copy of the Missouri Personal Auto Policy of DAVE CARRON in effect" on the date of the accident contains different language from that cited by the parties and appears to be only a photocopy of an endorsement and not a photocopy of the policy itself.²

In addition, the exclusions cited by the parties in their briefs do not correspond with those in the photocopy of the Carron Policy as it appears in the legal file. For example, the parties debate whether exclusions 5 and 16 apply. However, the language in the Carron Policy as evidenced in the legal file contains language similar to exclusion 5 argued by the parties, but the photocopy shows the similar language appears at exclusion 2.³ Whereas the parties discuss exclusion 16, the photocopy lists only exclusions 1 through 8. Although the parties claim the exclusions in the Medrano Policy are identical to those in the Carron Policy, comparison is precluded because neither photocopy contains both exclusions. The photocopy of the Medrano Policy contained in the legal file omits the page on which exclusion 5 presumably appears,⁴ and, as previously mentioned, exclusion 16 does not appear in the Carron Policy photocopy in the legal file. The trial court cites to the Carron Policy exclusions 5 and 16 in its judgment, which indicates that whatever policy was presented before it differs from what Insurer included in its record on appeal.

Without knowledge of the policy language and terms, its applicability cannot be determined. See Page v. Page, 695 S.W.2d 479, 480 (Mo.App.1985). In light of the deficiencies in the legal file, any attempt at determining whether coverage existed or whether it was excluded would be based on "speculation and conjecture as to the controlling facts of the case." Cash, 579 S.W.2d at 764. Because of Insurer's failure, as appellant, to file a record containing the policy to be interpreted on appeal, Insurer's first point is dismissed. See Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo.App.2000); Martin v. Mo. Dept. of Soc. Serv., 997 S.W.2d 48, 49 (Mo.App. 1999).

We next address Insurer's second point wherein it argues the trial court erred in finding coverage under the Medrano Policy. It asserts the van was not a covered vehicle under the policy and coverage was excluded because Meriwether was driving the van to deliver newspapers. Further, Insurer argues that no coverage existed because Carron owned the van, which Insurer claims was...