DURBIN v. DEITRICK
| Decision Date | 26 October 2010 |
| Docket Number | No. WD 71263.,WD 71263. |
| Citation | 323 S.W.3d 122 |
| Parties | Alfred Clement DURBIN, Respondent, v. Robert Lee DEITRICK, Jr., Respondent, and American Family Mutual Insurance Co., Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
David R. Frye, Esq., Overland Park, KS, and James C. Spangler, Esq., Sedalia, MO, for appellant.
James A. Montee, Esq., St. Joseph, MO, for respondent.
BEFORE DIVISION ONE: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Chief Judge and CYNTHIA MARTIN, Judge.
American Family Mutual Insurance Company (“American Family”) appeals the circuit court's grant of summary judgment in favor of Alfred Durbin. The court determined that four automobile liability policies issued by American Family contained ambiguous anti-stacking language and, therefore, must be construed against American Family to permit stacking. For reasons explained herein, we affirm the circuit court's judgment.
On July 27, 2007, Durbin was injured when his vehicle was rear-ended by a truck driven by Robert Deitrick. The truck was owned by Deitrick's employer, B & L Towing (“B & L”), which had liability insurance with a policy limit of $500,000.
Deitrick was covered by four personal automobile liability policies issued by American Family for a Chevrolet Suburban, a Chevrolet S10, a Chevrolet Trailblazer, and a Chevrolet Cavalier. Each of the policies provided up to $100,000 in coverage.
On August 1, 2008, Durbin filed a First Amended Petition for Damages against Deitrick and American Family. The petition alleged that Durbin was injured as a result of the accident with Deitrick and that Deitrick's four personal automobile insurance policies provided coverage for the accident.
On September 8, 2008, Durbin accepted Deitrick's offer of judgment for $900,000. B & L's liability insurer paid the $500,000 liability policy limit to Durbin. American Family acknowledged the accident was within the scope of Deitrick's personal liability coverage and paid Durbin the $100,000 liability policy limit issued on Deitrick's Chevrolet Suburban but refused to pay Durbin the policy limits of Deitrick's other three automobile liability policies.
On September 10, 2008, American Family filed an Answer to the First Amended Petition for Damages. American Family also filed a counterclaim against Durbin and a cross-claim against Deitrick, both seeking a declaratory judgment that only one of Deitrick's personal insurance policies could provide coverage for the accident based on an anti-stacking provision in all four of the policies. 1 The automobile liability policies issued by American Family to Deitrick provided:
We will pay compensatory damages an insured person is legally liable for because of bodily injury and property damage due to the use of a car or utility trailer.
American Family moved for summary judgment on its counterclaim and cross-claim. Durbin filed a counter-motion for summary judgment, contending that the anti-stacking language in American Family's four liability policies is ambiguous and, therefore, must be construed in favor of permitting stacking of the remaining three policies.
After a hearing, the circuit court denied American Family's summary judgment motion and granted Durbin's counter-motion for summary judgment. The court found that American Family's policies were ambiguous because the Limits of Liability provision and Section 3 of the General Provisions appeared to prohibit stacking, but the second sentence of the Other Insurance provision appeared to permit stacking when liability coverage is afforded through use of a vehicle not owned by the covered individual. The circuit court construed this ambiguity against American Family and found that Deitrick's three remaining personal automobile liability policies could be stacked to provide additional coverage for the accident. American Family appeals the grant of summary judgment in favor of Durbin.
“Summary judgment allows a trial court to enter judgment for the moving party where the party demonstrates a right to judgment as a matter of law based on facts about which there is no genuine dispute.” Crossman v. Yacubovich, 290 S.W.3d 775, 778 (Mo.App.2009) (). Our review of the trial court's grant of summary judgment is de novo. Id. The issue of whether an insurance policy is ambiguous is also a question of law which we also review de novo. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007).
In its sole point on appeal, American Family contends the circuit court erred in granting summary judgment in favor of Durbin because the four American Family liability policies issued to Deitrick unambiguously prohibit stacking. American Family argues the policies are not ambiguous because the second sentence of the Other Insurance provision is only implicated “[i]f there is other auto liability insurance for a loss covered.” American Family asserts there is no “other auto liability insurance for a loss covered” because Section 3 of the General Provisions provides that total liability “shall not exceed the highest limit of liability under any one policy” and coverage was exhausted by American Family's payment of the limit of the policy issued on Deitrick's Chevrolet Suburban.
If an insurance policy is not ambiguous, we enforce the policy according to its terms; if a policy is ambiguous, we construe the language of the policy against the insurer. Seeck, 212 S.W.3d at 132. In construing the terms of an insurance policy, we apply “ ‘the meaning which would be attached by an ordinary person of average understanding if purchasing insurance.’ ” Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009) ( quoting Seeck, 212 S.W.3d at 132). “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of words used in the contract.” Krombach v. Mayflower Ins. Co., Ltd., 827 S.W.2d 208, 210 (Mo. banc 1992). We do not interpret insurance policy provisions in isolation but rather evaluate the policy in terms of a whole. Ritchie, 307 S.W.3d at 135.
“Where an insurance policy promises the insured something at one point but then takes it away at another, there is an ambiguity.” Chamness v. Am. Family Mut. Ins. Co., 226 S.W.3d 199, 204 (Mo.App.2007). “Specifically, if ‘an other insurance clause appears to provide coverage but other clauses indicate that such coverage is not provided, then the policy is ambiguous, and the ambiguity will be resolved in favor of coverage for the insured.’ ” Id. ( quoting Seeck, 212 S.W.3d at 134). Thus, if policy language is ambiguous as to whether stacking is permitted, we construe the language of the policy against the insurer and in favor of stacking. Ritchie, 307 S.W.3d at 135.
The Supreme Court considered analogous anti-stacking language in a similar factual scenario in Ritchie, where the decedent passenger died as a result of an accident while riding in a vehicle not owned by her or her family. Id. at 134, 137. At the time of the accident, the decedent was covered by three separate underinsured motorist policies issued by the insurer. Id. at 137. The decedent's family sought recovery from the insurer for the policy limit of each of the policies. Id. at 134. The insurer responded that anti-stacking language in the policies permitted recovery from only a single policy. Id. The policies contained a Limit of Liability provision which provided:
Id. at 136-37. An ...
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