Chapman v. Auto-Owners (Mut.) Ins. Co., AUTO-OWNERS

• Decision Date: 08 January 1985
• Docket Number: No. WD,AUTO-OWNERS,WD
• Parties: Thomas E. CHAPMAN, Appellant, v.(MUTUAL) INSURANCE COMPANY, Respondent. 35914.
• Court: Missouri Court of Appeals

Page 335

684 S.W.2d 335

Thomas E. CHAPMAN, Appellant, v. AUTO-OWNERS (MUTUAL) INSURANCE COMPANY, Respondent.

No. WD 35914.

Missouri Court of Appeals,

Western District.

Jan. 8, 1985.

D. James Mariea, Whitlow, Riley, Mariea & Dunlap, P.C., Fulton, for appellant.

Patrick A. Baumhoer, Stockard, Andereck, Hauck, Sharp & Evans, Jefferson City, for respondent.

Before KENNEDY, P.J., and DIXON and CLARK, JJ.

PER CURIAM:

Chapman, an automobile dealer, appeals from the grant of summary judgment for Mutual and from the denial of his own motion for summary judgment. His two points on appeal involve the construction of an exclusion in a policy he maintained with Mutual. Affirmed.

Chapman's "Dealer's Blanket Policy," for which he paid Mutual a quarterly premium of $438.00, on the automobiles he held for sale and resale, provided that it did "not cover: (c) loss suffered by the insured in case he voluntarily parts with title to, possession of or custody of any automobile at risk hereunder, if induced to do so by any fraudulent scheme, trick, device or false pretense." It is uncontested that Mutual also made available a "rider," which, for a specified additional premium, covered losses resulting from that fact situation. However, Chapman only purchased the Blanket Policy, with its basic premium rate.

On June 7, 1982, while the Blanket Policy was in force, Allen Varrin asked one of Chapman's employees if he could test drive a 1978 Trans Am that Chapman held for resale. It was established at the hearing, and is not contested on appeal, that Varrin actually intended to obtain the car in order to skip parole in Missouri and flee to Canada. Chapman's employee voluntarily parted with possession of the Trans Am upon false pretense by Varrin that he wanted to test drive the car. On June 8, 1982, after attempting to elude the Minnesota Highway Patrol, Varrin wrecked the automobile. Chapman requested that Mutual pay the loss pursuant to the Blanket Policy. Mutual refused, based on Exclusion (c). Both parties filed motions for summary judgment. The trial court denied Chapman's motion and granted that of Mutual.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to it as a matter of law. Rule 74.04(c) and (h); Bishop v. United Missouri Bank of Carthage, 647 S.W.2d 625, 626 (Mo.App.1983). The record must be reviewed in the light most favorable to the party against whom judgment was entered. Mercantile Trust Co. v. Carp, 648 S.W.2d 920, 923 (Mo.App.1983). Even under this rigorous standard, the grant of summary judgment for Mutual was appropriate.

Chapman asserts the court erred in denying its motion and granting Mutual's motion because the proximate cause of the loss was the car crash and Varrin's scheme or trick was merely an antecedent contributing circumstance. By this construction, Chapman ignores both the language of the exclusion and the intent of the parties.

In writing the Dealer's Blanket Policy and stating various "exclusions,"...