Fireman's Fund American Ins. Co. v. Ditz, 43273

Decision Date29 December 1981
Docket NumberNo. 43273,43273
Citation630 S.W.2d 123
PartiesFIREMAN'S FUND AMERICAN INSURANCE COMPANY, Plaintiff-Respondent, v. Loretta B. DITZ and Arthur E. Boyer, Jr., Defendants, Arthur E. Boyer, Jr., Defendant-Appellant.
CourtMissouri Court of Appeals

Frank J. Maginn, St. Louis, for defendant-appellant.

W. Munro Roberts, Jr., Ted L. Perryman, St. Louis, for plaintiff-respondent.

DOWD, Presiding Judge.

Defendant, Arthur Boyer, Jr., appeals from a judgment in favor of plaintiff Fireman's Fund Insurance Company on its petition for declaratory judgment. The cause was submitted to the trial court on the following stipulation of facts: In June of 1973 William H. Ditz (son) and his parents, Mr. and Mrs. William Ditz purchased a Plymouth automobile. Title to the automobile was placed in the parents' names in order to obtain financing for the purchase. However, the vehicle was purchased for the son's use and all payments on the car were made by him. Prior to the time the Plymouth was purchased Mr. and Mrs. Ditz carried insurance with plaintiff on another vehicle. When the Plymouth was purchased it was added to the policy and an additional premium paid to plaintiff for its coverage.

In August of 1974, the son married and moved away from home taking the Plymouth with him. Subsequently plaintiff, at the son's instance, removed the Plymouth from the parents policy (# Z2344007) and issued a separate policy (# Z3617075) in the name of the son covering the Plymouth.

In May 1975, while driving her son's Plymouth Mrs. Ditz was involved in an automobile collision with defendant Boyer. At the time of the collision legal title to the Plymouth remained in Mr. and Mrs. Ditz and Mrs. Ditz was a regular user of the Plymouth by an arrangement whereby the son would drive the Plymouth to the parents' house and leave it there several days a week for Mrs. Ditz's use.

In October, 1976 plaintiff filed its petition for declaratory judgment in which it sought to be relieved of any liability under the policy issued to Mr. and Mrs. Ditz or the policy issued to their son. Plaintiff also sought an order restraining Boyer from instituting an action based on either of the two policies. 1

In May, 1980, 2 the court issued a summary judgment in favor of plaintiff stating inter alia, Policy "# Z2344007 issued to Mr. and Mrs. William Ditz does not insure the 1973 Plymouth Seebring automobile which is the subject of this action." 3

On appeal from this judgment defendant raises four points of error the first being that in reaching its conclusion the trial court erroneously declared and applied the law. The trial court did not include findings of fact and conclusions of law in its judgment but merely cited three cases and one statutory section as support of it. We, therefore, do not know precisely in what manner the court declared and applied the law. Whether it did so incorrectly becomes relevant, however, only when the conclusion reached or the judgment rendered by the court is erroneous.

As we shall explain, we find the trial court's conclusion that the Plymouth was not insured under the policy owned by Mr. and Mrs. Ditz correct therefore we are not concerned with the route taken by the court in arriving at this conclusion.

Defendant's second point does not present anything for our review because it does not set out any ruling or action by the trial court alleged to be erroneous. 4 Rule 84.04(d). We decline to address this point.

Defendant's third point suffers from the same infirmity as his second point, however we shall address it briefly. 5 Although inartfully drafted we believe the thrust of defendant's point is that the trial court erred in failing to find Mrs. Ditz and the Plymouth covered under the "other insurance" clause of Policy # Z2344007 owned by her and Mr. Ditz. That clause read:

"Parts I and III If the insured has other insurance against a loss covered by Part I or Part III of this policy, the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or a non-owned automobile shall be excess insurance over any other valid and collectible insurance."

This clause means that if Mrs. Ditz had other additional insurance against any loss covered by her policy the total loss would be paid on a pro rata basis. It is not disputed that Mrs. Ditz's loss while driving the Plymouth was covered under the omnibus clause of her son's policy. Defendant argues this coverage constitutes other additional coverage and that since she has this other additional coverage plaintiff is liable under the other insurance clause of the policy owned by Mr. and Mrs. Ditz for a pro rata share of any amount awarded Boyer in a personal injury suit against Mrs. Ditz. This reasoning is flawed in two instances. Defendant erroneously interprets the other insurance clause as one which creates liability in plaintiff. The clear intent of the clause is not to create but to limit any liability created in Part I or III of the policy to a pro rata share in the event other insurance also covers the loss. Although we agree, as do plaintiff and defendant, that Mrs. Ditz is covered by her son's policy's omnibus clause this coverage is not "other" insurance in the sense of being additional insurance because her loss is not covered by Part I or III of her own policy (Z2344007). As plaintiff correctly points out it cannot be held liable for pro rata coverage under Policy # Z2344007 in the absence of coverage of the insured by that policy. Once coverage under policy # Z2344007 is established then and only then can it be determined whether the insured has "other" coverage and the language of that policy establishes that Mrs. Ditz's loss was not covered.

The pertinent portions of the policy state as follows:

"Persons Insured. The following are insured under Part I:

(a) with respect to the owned automobile,

(1) the named insured and any resident of the same household.

(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and

(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above;

(b) with respect to a non-owned automobile,

(1) the named insured,

(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner...

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