Country Mutual Insurance v. Matney, et al

• Decision Date: 22 August 2000
• Citation: 25 S.W.3d 651
• Parties: (Mo.App. W.D. 2000) . Country Mutual Insurance Company, Appellant v. Richard S. Matney, et al., Respondent WD56694 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

25 S.W.3d 651 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Country Mutual Insurance Company, Appellant v. Richard S. Matney, et al., Respondent

WD56694

Missouri Court of Appeals Western District

Handdown Date: 08/22/2000

Appeal From: Circuit Court of Boone County, Hon. Clifford E. Hamilton, Jr., Judge

Counsel for Appellant: David T. Butsch

Counsel for Respondent: Mark D. Pfeiffer

Opinion Summary: Appellant Country Mutual Insurance Company issued an automobile policy to Kenneth Skelton. Skelton conveyed a 1984 Ford, one of the vehicles insured by the policy, to his daughter on September 25, 1996. On October 25, 1996, his daughter applied for a Missouri title to the car. On November 2, 1996, Mario Rodriguez, driving the Ford with the daughter's consent, struck another vehicle, causing injuries to its passengers. The car title was issued on November 7, 1996.

Country Mutual filed a declaratory judgment action requesting the court to declare that it had no obligation under the insurance policy issued to Skelton with respect to the accident for two reasons: (1) At the time of the accident, Skelton did not own the Ford, and, thus, he had no insurable interest in it; and (2) At the time of the accident, Skelton's daughter was not a member of his household, and, thus, under the terms of the policy, no coverage existed for her or her permissive user.

On cross-motions for summary judgment, the circuit court held that the insurance policy was in effect at the time of the accident, Mario Rodriguez was insured under its terms and, thus, entitled to indemnification up to the policy limits. County Mutual appealed.

AFFIRMED.

Division holds:

Country Mutual failed to raise the issue that the term "relative" was defined in the policy until it filed its Motion for Rehearing and/or Transfer. Therefore, this Court declined to consider this contention. Where, as in this case, the insurance policy provides insurance coverage for a specific automobile and does not precondition coverage on ownership, transfer of ownership of the vehicle will not vitiate the policy.

Opinion Author: Per Curiam.

Opinion Vote: AFFIRMED. Smart, Jr., PJ., Ellis and Holliger, JJ., concur.

Opinion:

This is an appeal from a declaratory judgment action filed by the Appellant, Country Mutual Insurance Company, to determine whether certain injuries and damages were covered under an automobile policy issued by Appellant. The trial court entered judgment for the injured parties and against Country Mutual after the parties had submitted a joint stipulation of facts and filed cross motions for summary judgment. Country Mutual appeals.

Factual Background

On May 21, 1994, Country Mutual Insurance Company ("Appellant") issued an automobile insurance policy to Kenneth Skelton, a resident of Olney, Illinois. The policy provided coverage for a 1984 Ford Crown Victoria LTD ("Ford") that Skelton owned at the time the policy was issued. Included in the policy were the following terms:

SECTION 1- LIABILITY INSURANCE

Bodily Injury, Coverage A

Property Damage, Coverage B

...we promise to pay all sums in behalf of an insured which the insured becomes legally obligated to pay as damages because of:

1. bodily injury (Coverage A), including death resulting from that bodily injury, sustained by any person;

2. damage to or destruction of property (Coverage B), including loss of use. The bodily injury or property damage must be caused by an accident resulting from the ownership, maintenance or use of an insured vehicle....

Persons Insured, Section 1

...an insured is:

1. with respect to an insured vehicle:

a. you and any resident of the same household as you;b. anyone using an insured vehicle with your permission or the permission of an adult relative;

c. anyone else, but only with respect to liability resulting from acts or omissions of an insured as defined in a. or b. above;

Insured Vehicles, Section 1

...an insured vehicle is:

1. any vehicle described on the declarations page;

The "Definitions" section further explained that "You, Your, Yourself means the person named as Insured on the declarations page of this policy and that person's spouse if a resident of the same household. You, your, yourself also refers to any legal entity named as Insured on the declarations page." On that declarations page, Kenneth Skelton was listed as the "INSURED," and an "84 Ford" was one of two autos identified as insured vehicles.

On September 25,1996, Skelton conveyed the Ford as a gift to his daughter, Kimberly Ralston, assigning the title to her. On October 25, 1996, Ralston made application for Missouri title to the car. That title was issued on November 7, 1996, five days after the auto accident that precipitated this dispute. On November 2, 1996, one Mario Rodriguez was driving the Ford with Ralston's consent on Route B in Boone County, Missouri, when he crossed the road's center line, striking another vehicle driven by Jennifer M. Wann and in which Richard S. Matney, Robert K. Chambers and Morris A. Chambers ("Respondents") were passengers. It is not disputed that the negligent conduct of Rodriguez was the proximate cause of the accident.

On February 9, 1998, Appellant filed a petition for declaratory judgment in the Circuit Court of Boone County, joining Rodriguez, Skelton, Matney, Robert Chambers, Morris Chambers and Jennifer Wann as defendants. In its petition, Appellant sought to have the court declare that it had no obligation under the insurance policy to any defendant with respect to the accident for the following two reasons: (1) At the time of the accident, Skelton did not own the Ford, and, thus, he had no insurable interest in it; and (2) At the time of the accident, Ralston was not a member of Skelton's household, and, thus, under terms of the policy, no coverage existed for her, a non-resident, or for a permissive user. Skelton, Wann and Rodriguez did not timely file answers or responses to Appellant's petition, and, on May 11, 1998, the circuit court issued interlocutory default judgments to each of them accordingly. Respondents Matney, Robert Chambers and Morris Chambers did timely file answers and claims for affirmative relief. The parties agreed to and filed a joint stipulation of facts on September 14, 1998. Therein, it was stipulated, among other things, that: (1) Skelton conveyed the Ford by gift to his daughter, Ralston; (2) at the time of the accident, Rodriguez was operating the vehicle with Ralston's consent; (3) Rodriguez's negligent conduct was a proximate cause of the accident; and (4) Matney, Robert Chambers and Morris Chambers assert that the policy provides coverage for their injuries sustained in the accident, a claim that Appellant denies. On September 21, 1998, Respondents filed two separate motions for summary judgment, and, on November 16, 1998, Appellant filed its own motion for summary judgment.

On December 10, 1998, the circuit court issued an amended judgment sustaining Respondents' separate motions for summary judgment, and it overruled Appellant's motion for summary judgment. In its amended judgment, the court stated that the insurance policy was in effect at the time of the accident, and Mario Rodriguez was insured under its terms and, thus, entitled to indemnification thereunder up to the policy limits of $50,000 per person and $100,000 per accident for the injuries and damages sustained by Respondents. This appeal ensued.

Procedural Background

This court originally heard the appeal in division and handed down an opinion, authored by Judge Albert A. Riederer, on November 30, 1999. Shortly thereafter, Judge Riederer resigned from the court. Appellant then timely filed a Motion for Rehearing and/or Transfer in which it asserted that the opinion overlooked a material fact in that the term "relative" was defined in the policy. We granted rehearing, the case was reargued and again submitted. On rehearing, Appellant conceded in oral argument that it did not assert that Skelton's daughter was not a relative under the terms of the policy in the trial court, nor did it address the issue in its brief or the initial oral argument in this court. Rather, it first raised the issue in its Motion for Rehearing and/or Transfer. Moreover, in its oral argument on rehearing, Appellant abandoned the argument again, and asserted a new theory wherein it tried to distinguish the facts in Pennsylvania National Mutual Casualty Ins. Co. v. State Farm Mutual Auto. Ins. Co., 605 S.W.2d 125 (Mo. banc 1980), upon which it had relied in the trial court, and in its brief and initial oral argument in this court.

Appellate review, even from the grant of summary judgment, or in court-tried cases, is limited to those issues put before the trial court. Scott v. Edwards Transp. Co., 889 S.W.2d 144, 147 (Mo. App. S.D. 1994); St. Louis County v. McClune, 762 S.W.2d 91, 92 (Mo. App. E.D. 1988). It has long been the rule in Missouri that an issue which is not presented to the trial court is not preserved for appellate review. Zundel v. Bommarito, 778 S.W.2d 954, 957 (Mo. App. E.D. 1989). Parties are bound by the position they took in the trial court and will not be heard on a different theory on appeal. Scott, 889 S.W.2d at 147. Were we now to consider the contentions raised by Appellant in its Motion for Rehearing and/or Transfer, or in oral argument upon rehearing, we would be considering theories not advanced in the trial court. Id. This we cannot do. An appellate court will not, on review, convict a trial court of error on an issue which was not put before it to decide. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982); Martin v. McNeill, 957 S.W.2d 360, 364 (Mo. App. W.D. 1997); Sisk v. McIlroy and Associates, 934 S.W.2d 567, 574 (Mo. App. S.D. 1996); State ex rel. Missouri Highway and Transp. Com'n. v. Muegge, 842 S.W.2d 192, 196 (Mo. App. E.D. 1992).

Accordi...