Christensen v. Farmers Ins. Co., Inc.

• Decision Date: 02 February 2010
• Docket Number: No. ED 93162.,ED 93162.
• Citation: 307 SW 3d 654
• Parties: Brandi CHRISTENSEN, Appellant, v. FARMERS INSURANCE COMPANY, INC., Respondent.
• Court: Missouri Court of Appeals

307 S.W.3d 654

Brandi CHRISTENSEN, Appellant, v. FARMERS INSURANCE COMPANY, INC., Respondent.

No. ED 93162.

Missouri Court of Appeals, Eastern District, Division Two.

February 2, 2010.

David C. Knieriem, Clayton, MO, for appellant.

Christopher J. Carpenter, Kansas City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Brandi Christensen appeals the trial court's entry of summary judgment in favor of Farmers Insurance Company in her action seeking $75,000 in underinsured motorist coverage under her Farmers insurance policy. Specifically, Ms. Christensen claims that the trial court erred in granting Farmers' motion for summary judgment because the insurance policy was ambiguous with regard to whether it provided underinsured motorist coverage. We affirm.

Factual and Procedural Background

On August 19, 2007, Ms. Christensen sustained injuries when her motorcycle collided with a vehicle driven by Scott McGraw, an underinsured motorist whose insurance carrier tendered to Ms. Christensen its policy limit of $25,000. Ms. Christensen sought the balance of her damages from her insurance carrier, Farmers. Farmers declined her request for payment.

At the time of the accident, Ms. Christensen was covered by a Farmers E-Z Reader Motorcycle Policy ("Motorcycle Policy") that provided $100,000 per person, $300,000 per accident of uninsured motorist (UM) coverage. Ms. Christensen claims that the Motorcycle Policy provided underinsured motorist (UIM) coverage as well as UM coverage.

The Motorcycle Policy consisted of a declarations page,¹ policy provisions, and endorsements. The declarations page outlined Ms. Christensen's insurance coverage as follows:

COVERAGES *ENTRIES IN THOUSANDS OF DOLLARS.

                |--------------------------------------|------------------------------------------|
                |             Uninsured Motorist       |            UNDERinsured Motorist        |
                |                                      |                                          |
                |---------------------|----------------|-----------------------|------------------|
                |    Bodily Injury    |        P.D.    |      Bodily Injury    |         P.D.     |
                |---------|-----------|----------------|-------------|---------|------------------|
                |  100*   |    300*   |        NC      |     NC*     |   NC*   |         NC       |
                |---------|-----------|----------------|-------------|---------|------------------|
                |  Each   |          Each Occurrence   | Each Person |        Each Occurrence     |
                | Person  |                            |             |                            |
                |---------|----------------------------|-------------|----------------------------|
                

On the reverse side of the declarations page, under the heading "COVERAGE DESIGNATIONS," the policy noted, "`NC' or `NOT COV' means `NOT COVERED.'"

In the policy provisions, under "Part II—Uninsured Motorist," Farmers set forth the terms of the Motorcycle Policy's UM coverage, stating: "COVERAGE C— UNINSURED MOTORIST COVERAGE: We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle." (emphasis omitted). Part II goes on to define UM coverage to include UIM coverage. Specifically, Item 3b under the heading "Additional Definitions Used In This Part Only," defined the term "uninsured motor vehicle" as "a motor vehicle which is: Insured by a bodily injury liability bond or policy at the time of the accident which provides coverage in amounts less than the limits of Uninsured Motorists Coverage shown in the Declarations." (emphasis omitted).

Endorsement E1105j (the "Endorsement"), entitled "Endorsement Amending Uninsured Motorist Coverage," purported to delete item 3b from Part II of the Motorcycle Policy.² The Endorsement read: "It is agreed that under Part II— Uninsured Motorist, the following changes apply: ... 3. Item 3b of `Additional Definitions Used In This Part Only' is deleted."

On December 29, 2008, Ms. Christensen filed suit claiming that she was entitled to UIM benefits under the Motorcycle Policy for damages sustained in the August 19, 2007 collision and seeking from Farmers $75,000 in UIM protection. Farmers filed a motion for summary judgment on the grounds that the Motorcycle Policy did not provide UIM coverage. The trial court granted Farmers' motion for summary judgment. Ms. Christensen appeals.

Standard of Review

The grant of summary judgment is an issue of law that we review de novo. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). In considering an appeal from a grant of summary judgment, we review the record in the light most favorable to the party against whom summary judgment was entered. ITT Comm'l Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when a party establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Missouri Supreme Court Rule 74.04(c)(6); ITT, 854 S.W.2d at 376.

Discussion

In her sole point on appeal, Ms. Christensen claims that the trial court erred in granting summary judgment in favor of Farmers because the Motorcycle Policy was ambiguous. In the first of two subpoints, Ms. Christensen argues that the Endorsement did not effectively remove UIM coverage from the Motorcycle Policy because it appeared to limit application of Paragraph 3, which deleted UFM coverage, to automobile policies.

The determinative issue is whether the Motorcycle Policy is ambiguous with respect to UIM coverage. "An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy. Language is ambiguous if it is reasonably open to different constructions." Jones v. Mid-Century Ins. Co., 287 S.W.3d 687, 690 (Mo. banc 2009) (quotation omitted). In determining whether language is ambiguous, we consider the language in light of the meaning that would normally be understood by the layperson who bought and paid for the policy, and we consider whether the language is ambiguous by reading the policy as a whole. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Maune, 277 S.W.3d 754, 757-58 (Mo.App. E.D.2009). We construe ambiguous policy language against the insurer. Jones, 287 S.W.3d at 690. Absent an ambiguity, an insurance policy must be enforced according to its terms. Id. "Courts may not unreasonably distort the language of a policy or exercise inventive powers for the purpose of creating an ambiguity where none exists." Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 163 (Mo. banc 2007).

There is no statutory or public policy requirement for UIM coverage in Missouri. Melton v. Country Mut. Ins. Co., 75 S.W.3d 321, 327 (Mo.App. E.D.2002). "Absent a statute or public policy requiring coverage, a court will not use its inventive powers to rewrite a policy to provide coverage for which the parties never contracted." Id., quoting Lang v. Nationwide Mut. Fire Ins., 970 S.W.2d 828, 830 (Mo.App. E.D.1998).

An insurance contract includes the declarations, the form policy, and any endorsements and definitions. Grable v. Atlantic Cas. Ins. Co., 280 S.W.3d 104, 108 (Mo.App. E.D.2009). When the declarations page clearly communicates the coverage provided by the insurance contract, and the other policy provisions neither expressly change the coverage nor "reflect a different intention than that clearly expressed on the declarations page," the declarations page controls.³ Jackson v. Gen. Accident Ins. Co., 720 S.W.2d 428, 429 (Mo.App. E.D.1986); see also Niswonger, 992 S.W.2d at 320 (noting that an important factor in cases considering whether UM and UIM coverage are impermissibly tied together is whether the coverages and premiums are stated separately on the declarations sheet); cf. Haulers Ins. Co., Inc. v. Wyatt, 172 S.W.3d 880, 886 (Mo.App. S.D.2005) (where the declarations page contained two coverage limits— $500,000 per accident and $1,500,000 other than auto aggregate—the policy provisions made clear that the amount of applicable coverage for the accident in question was $500,000).

In the instant case, it is undisputed that the declarations page clearly stated that the policy did not provide UIM coverage. In the "Coverages" section of the declarations page, under the heading "UNDERinsured motorist" appeared the notation "NC," indicating that UIM was not covered. The reverse side of the declarations page provided: "This Declarations page when signed by us, becomes part of the policy numbered on the reverse side. It supersedes and controls anything to the contrary. It is subject to all other terms of the policy." Thus, the declarations page made clear that the Motorcycle Policy did not provide UIM coverage and was intended to supersede any contrary policy provisions. Furthermore, to the extent a provision in the form policy indicated that the Motorcycle Policy provided UIM coverage, the Endorsement deleted that provision. As a result, the declarations page was consistent with the policy provisions as amended by the Endorsement. We therefore find no ambiguity in the Motorcycle Policy that would authorize UIM coverage where the declarations page expressly excluded such coverage. See Jackson, 720 S.W.2d at 429.

Despite the declarations page's unambiguous statement that the Motorcycle Policy did not provide UIM coverage, Ms. Christensen bases her argument on the Endorsement, which she claims did not unambiguously inform the policy holder that it was removing UIM coverage from the policy provisions of the Motorcycle Policy. We disagree. The Endorsement, entitled "Endorsement Amending Uninsured Motorist Coverage," unequivocally stated that "Item 3b of `Additional Definitions Used In This Part Only' is deleted." Item 3b was the sole policy provision referring to UIM. By deleting UIM from the definition of UM, the Endorsement removed UIM coverage from the policy.

Ms. Christensen also...