Barton v. American Family Mut. Ins. Co.
| Decision Date | 02 October 1972 |
| Docket Number | No. 25873,25873 |
| Citation | 485 S.W.2d 628 |
| Parties | Raymond L. BARTON and Phyllis L. Barton, Parents of John S. Barton, Deceased, Plaintiffs-Appellants, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Sam Gladney, Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for plaintiffs-appellants.
William J. Burrell, J. Nelson Happy, Dietrich, Davis, Burrell, Dicus & Rowlands, Kansas City, for defendant-respondent.
This action arose out of a collision between an automobile owned and operated by one Nellie R. Wiard, an uninsured motorist, and a motorcycle owned and operated by John S. Barton, the minor son of the appellants, which collision resulted in the death of John S. Barton. John S. Barton at the time of his death was a resident of the appellants' household and he had not purchased any insurance on the motorcycle. The Bartons carried an 'Automobile Policy' with the respondent company, which policy contained uninsured motorist coverage.
A suit was filed by appellants, seeking damages for the wrongful death of their son, John S. Barton, in two counts. In Count I, they claimed damages against Nellie R. Wiard, the tort feasor, and in Count II, they claimed damages against their insurer, respondent herein, under the uninsured motorist provisions of their insurance policy in the amount of the limits thereof, namely, $10,000.00.
Count I of the petition was dismissed by the court below for want of prosecution, so that the action against the alleged uninsured tort feasor, Nellie R. Wiard, was thus terminated at trial level and no further action was taken as to the claim against her and she is therefore not directly involved in this appeal.
The insurer (respondent) filed its answer to Count II, wherein it asserted that its policy of insurance did not cover the son, John S. Barton, as an insured, and contained an endorsement that excluded uninsured motorist coverage as to the collision which resulted in his death.
Thereafter, the parties entered into a stipulation of facts (later amended by leave of court) which resulted in the following binding agreement as to facts:
'STIPULATION OF FACTS
Come now plaintiff and defendant, American Family Mutual Insurance Company, and hereby stipulate and agree that the following facts are true:
1. That on September 22, 1969, there was in effect a policy of insurance, No. 24--216255, issued by American Family Mutual Insurance Company to Raymond L. Barton as named insured; that a true copy of the documents delivered to Barton for a policy consisting of a Declarations page, Endorsement 45(d), Endorsement 55(a), and a printed booklet, attached together are attached hereto and marked 'Exhibit A'. 1
2. That the policy of insurance was originally issued effective November 1, 1968 (to cover a 1964 Ford) and Endorsement 55(a) was stapled to said policy at said time. 1
3. That on September 22, 1969, Raymond L. Barton, the named insured, and Phyllis L. Barton resided at 6116 Hardy in Raytown, Missouri.
4. That John S. Barton was the son of Raymond L. Barton and Phyllis L. Barton and on September 22, 1969, resided at 6116 Hardy, Raytown, Missouri.
5. That on September 22, 1969, John S. Barton was the owner of a 1966 Suzuki motorcycle which was involved in a collision with an automobile operated by Nellie R. Wiard at 63rd and Sterling Avenue in Raytown, Jackson County, Missouri, which collision is the subject matter of this action.
6. That John S. Barton had not purchased insurance to cover said motorcycle.'
The defendant, American Family Mutual, filed a motion for summary judgment upon the ground that the uninsured motorist endorsement contained a specific exclusion which withdrew coverage in the Wiard-Barton collision, because John S. Barton was operating a 'motor vehicle' (motorcycle) within the exclusion, and since it was not an 'insured automobile' within the policy coverage.
The court below sustained the motion and entered summary-judgment for the defendant upon the basis that the exclusionary clause applied and that no uninsured motorist coverage was afforded plaintiffs under the provisions of the policy. The court below designated his order as a final appealable judgment. In due course, this appeal followed.
The substance of the points which appellants raise, as grounds for reversal of the summary judgment, are: the court erred in ruling for the defendant upon the exclusionary endorsement since the endorsement was never effectively made a part of the insurance contract; that, therefore, the provisions in the policy proper (printed booklet) covering exclusions would be the only applicable policy provision and, finally, that the terms of the policy considered with the terms of the uninsured motorist endorsement are so contrary and ambiguous that they must be construed in favor of the insured.
The main thrust of appellants' first contention, that the so-called endorsement was never effectively made a part of the policy of insurance, appears to be that the box on the declaration page of the policy, Item 3, Coverages, and headed 'Endorsements', does not contain a numeral indicating coverage. Before considering the applicable policy provisions in this matter, we must first resolve this contention.
The declaration page of the policy contains a box in 'Item 3, Coverages', headed 'Uninsured Motorist--Bodily Injury Only' wherein appears the numeral '1' which indicates that type of coverage is afforded according to these designations appearing immediately below:
Appellants apparently take the position that by reason of these designations, reference is made to the printed booklet as related to uninsured motorist coverage to the exclusion of the provisions of Endorsement 55(a).
In our view, this position is untenable for three reasons. First, the indication of coverages '1, 1A' and '1A, 1B' in the declaration page as to uninsured motorist coverage has no relation or reference to any of the provisions on uninsured motorists in the printed booklet labeled and '1A, 1B' in Endorsement 55(a).
Second, it appears obvious that the part of Item 3 of the Declaration page headed 'Endorsements--as per endorsements' which carries no indication but is blank in the policy before us, must apply to endorsements other than those covering uninsured motorists. There is a separate column to cover this type of insurance referring directly to the provisions of Endorsement 55(a) as above demonstrated.
Third, it is a stipulated fact...
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