Billings v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 29 December 1987
• Docket Number: No. 52997,52997
• Parties: Edward V. BILLINGS and Antionette Billings, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and the Prudential Insurance Company of America, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 886

741 S.W.2d 886

Edward V. BILLINGS and Antionette Billings, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and the

Prudential Insurance Company of America,

Defendants-Respondents.

No. 52997.

Missouri Court of Appeals,

Eastern District.

Dec. 29, 1987.

James E. Heckel. St. Louis, for plaintiffs-appellants.

Evans & Dixon, Mary V. Schmidtlein, William W. Evans, Armstrong, Teasdale, Kramer, Vaughan & Schlafly, Richard B. Scherrer, Michael J. Marshall, St. Louis, for defendants-respondents.

GAERTNER.

Appellants, Edward V. Billings and Antionette Billings, appeal from a summary judgment order entered in favor of respondents, State Farm Mutual Automobile Insurance Company (State Farm) and The Prudential Insurance Company of America (Prudential). Appellants originally filed a petition for declaratory judgment, requesting the trial court to declare certain notice provisions contained in insurance policies issued by respondents violative of RSMo § 379.203(1) (1986) and against public policy. Respondents then motioned for summary judgment. On appeal, appellants raise three points. They argue that the notice requirements in each respondent's insurance policy violate RSMo § 379.203(1) (1986) and are void as against public policy. They also allege that, even if the notice requirements are valid, Prudential's notice provision is inapplicable to the situation for which appellants seek recovery. Lastly, they maintain that, even if the notice provisions are not void, the trial court erred in rendering summary judgment in favor of respondents without making a further declaration of the rights of the parties. Finding appellants' contentions to be without merit, we affirm.

The record reveals that on October 19, 1982, an automobile driven by Edward V. Billings was forced off the road by another vehicle, and as a result Billings' automobile collided with a bridge abutment. The vehicle which forced Billings off the road left the scene of the accident without the driver identifying himself or the owner of the vehicle. Billings alleges that the accident caused him serious injury. He also claims that the accident is covered by insurance policies issued by State Farm and Prudential.

Billings did not himself report the accident to the police. Billings' son made an oral report to the police on October 19, 1982; however, no written report was issued by the police. Billings gave no personal notice of the accident to State Farm. The accident was first reported to State Farm in May 1983 when Billings' son made an oral report. Later, on February 27, 1986, the son filed a written claim for the accident. The accident was first reported to Prudential by Billings' attorney on October 16, 1985.

Both State Farm and Prudential denied appellants' claim arising out of the accident on October 19, 1982, for the reason that appellants failed to comply with certain provisions contained in the State Farm and Prudential policies concerning the reporting of claims. State Farm required that one making a claim under the uninsured motor vehicle provisions of its policy have notified the police within twenty-four hours of the accident and State Farm within thirty days after the accident. Prudential mandated that one filing a claim under its uninsured motor vehicle coverage have reported the accident to the police within twenty-four hours and to Prudential within sixty days after the accident.

In appellants' first point, they contend that the trial court erred in granting summary judgment, alleging the notice provisions in respondents' insurance policies violate RSMo § 379.203(1) (1986) and are void as against public policy. Initially, we note that summary judgment is proper where the prevailing party has shown by unassailable proof that he is entitled to judgment as a matter of law, and that no genuine issue of material fact exists. Hill v. McDonald's Corp., 709 S.W.2d 169,170 (Mo.App., E.D.1986). In addition, where insurance contracts, such as in the present case, are written in plain and unambiguous terms, it is not our function to construe the language of the policies in favor of the insured. MFA Mutual Insurance Co. v. Dunlap, 525 S.W.2d 766, 769 (Mo.App., E.D.1975).

[1,2] Section 379.203(1) provides, in pertinent part, that:

No automobile liability insurance ... shall be delivered ... in this state unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.... Such legal entitlement exists although the identity of the owner or operator of the motor vehicle cannot be established because such owner or operator and the motor vehicle departed the scene of the occurrence ... before identification.

As stated previously, both the State Farm and Prudential policies provided uninsured motorist coverage. All existing and valid statutory provisions, such as RSMo § 379.203(1) (1986), enter into and form a part of the State Farm and Prudential insurance contracts to which they are pertinent as fully as if such provisions were written into the policies. Ward v. Allstate Insurance Co., 514 S.W.2d 576, 578 (Mo. banc 1974). Section 379.203(1) contains absolutely no requirement as to notice for the filing of claims. This court must refrain from adding a provision as to notice under the guise of statutory construction unless such a provision is plainly written or necessarily implied from the words used by the legislature. Cook v. Pedigo, 714 S.W.2d 949, 952 (Mo.App., E.D.1986). Thus, as there is no statutory prohibition barring the notice provisions in respondents' insurance policies, we next examine whether there is a policy consideration forbidding the provisions. For, unless some statutory or basic policy interdiction exists, the parties to an insurance contract may agree to limit the liability of the...