Gibbs v. National General Ins. Co.

• Decision Date: 21 January 1997
• Docket Number: No. 20886,20886
• Citation: 938 S.W.2d 600
• Parties: Merle GIBBS and Juanita Gibbs, Plaintiffs-Respondents, v. NATIONAL GENERAL INSURANCE CO., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 600

938 S.W.2d 600

Merle GIBBS and Juanita Gibbs, Plaintiffs-Respondents, v. NATIONAL GENERAL INSURANCE CO., Defendant-Appellant.

No. 20886.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 21, 1997.

Wallace S. Squibb, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for defendant-appellant.

James E. Corbett, Corbett Newman Law Firm, Springfield, for plaintiffs-respondents.

JAMES EIFFERT, Special Judge.

On April 13, 1993, Merle Gibbs was employed as a policeman for the City of Branson West, Missouri. On that date, Gibbs arrested Mark Onan for driving while intoxicated. He placed Onan in the front seat of his patrol vehicle, a 1993 Crown Victoria. The patrol vehicle was owned by the City of Branson West Police Department. Gibbs then attempted to transport Onan to the Stone County, Missouri, jail. Onan rode as an unrestrained front seat passenger.

En route to the Stone County jail Onan reached over and grabbed the steering wheel of the patrol car. He turned the wheel in a clockwise fashion causing the vehicle to leave the road and collide with a rock embankment. As a result, Gibbs sustained bodily injury.

The 1993 Crown Victoria was insured under a liability policy issued to the city by Casualty Indemnity Exchange (Casualty). Gibbs filed a claim with Casualty. On February 24, 1993, Casualty denied coverage to Onan for liability he had in causing the collision. In denying Gibbs' claim, Casualty stated:

We do not consider Mr. Onan as an insured driver of our vehicle and in fact he could possibly be considered as operating a stolen vehicle. Therefore, there is no coverage for him. Further, we see no coverage for Mr. Gibbs, as this would come under a workers compensation claim under the City's workers comp. carrier. Therefore, we must respectfully deny this claim.

Gibbs also made a claim under the automobile policy covering his personal vehicles. The vehicles were insured under a policy issued by National General Insurance Company (hereinafter sometimes referred to as defendant). The policies issued to Gibbs by defendant provide as follows:

PART C--UNINSURED MOTORISTS COVERAGE:

A. We will pay damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury": ....

The policies further provide under PART C:

However, "uninsured motor vehicle" does not include any vehicle or equipment:

1. Owned by or furnished or available for the regular use of you or any "family member".

....

National General denied coverage under the uninsured motorist provision. It stated that Onan was not an "owner or operator" of an uninsured vehicle. National General further found that even if Onan were an owner or operator of the 1993 Crown Victoria, Gibbs would be denied coverage under the policy definition of an "uninsured motor vehicle," which excludes a vehicle available for the insured's "regular use."

While on duty, Gibbs was not allowed to drive the automobile outside the city limits of Branson West except under specific circumstances, and he did not drive the automobile unless he was working his duty shift. He used the vehicle while working his duty shift an average of 25 hours per week. He drove his own vehicle to and from work.

On October 3, 1994, Merle and Juanita Gibbs (plaintiffs) filed suit against National General seeking coverage under plaintiffs' personal uninsured motorist policy, vexatious penalties and loss of consortium. Subsequently, plaintiffs amended their petition to add a negligence claim against Mark Onan.

Defendant filed its answer to plaintiffs' amended petition on May 3, 1995. Defendant pled by way of affirmative defense that no coverage existed because Onan was neither the owner nor operator of an uninsured vehicle and plaintiff Merle Gibbs was operating a vehicle available for his regular use at the time of the collision.

On August 25, 1995, Merle Gibbs filed his motion for partial summary judgment. Defendant filed its response and a cross-motion for summary judgment. On November 21, 1995, the trial court heard oral argument on the motions and then entered an Interlocutory Judgment and Order with findings of fact and conclusions of law. The court found that at the time of the collision, Mark Onan was the operator of the vehicle. The court also found the policy provision excluding a vehicle that is available or furnished for the regular use of a named insured from the definition of an "uninsured motor vehicle" void as against public policy. On February 7, 1995, an interlocutory order of default was entered against Mark Onan.

On February 14, 1995, the trial court entered its Final Judgment. The court acknowledged that there is no reported Missouri decision concerning whether "grabbing the wheel and turning it in a clockwise fashion" constitutes operation of a motor vehicle. The court also acknowledged that there is no reported Missouri decision concerning the provision of the policy excluding a vehicle that is available or furnished for the regular use of a named insured from the definition of an "uninsured motor vehicle." Regardless, the court concluded that Mark Onan was an operator for purposes of the uninsured motorist policy and that the regular use exclusion was void against public policy. The court entered judgment in favor of plaintiffs and against defendant and Mark Onan.

Defendant presents two points on appeal. They are directed to the summary judgment entered against defendant.

The standard for reviewing a summary judgment is set forth in ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371 (Mo. banc 1993). Review of a grant of summary judgment is essentially de novo. Id. at 376. The criteria for testing the propriety of a summary judgment are no different from those used by the trial court in sustaining such a motion initially. Id. The propriety of summary judgment is purely an issue of law. Id.

Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Rule 74.04. In the instant case, there is no dispute as to the material facts. Therefore, defendant does not argue that summary judgment was improper due to the existence of a genuine issue as to a material fact. Instead, defendant alleges in this appeal that the circuit court erred in applying the law to the facts.

In Point I defendant argues the circuit court erred in finding that Mark Onan was the operator of the police cruiser for purposes of plaintiffs' uninsured motorist policy. Part C of plaintiffs' automobile liability policy provides uninsured motorist coverage. Part C states in pertinent part:

A. We will pay damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury": ..... [emphasis added].

In its answer to plaintiffs' first amended petition, defendant pled by way of affirmative defense that no coverage existed under the uninsured motorist policy because Mark Onan was not the owner or operator of an "uninsured motor vehicle." In granting plaintiffs' motion for summary judgment, the circuit court found that Mark Onan's actions constituted operation of a motor vehicle.

The Missouri "uninsured motorist statute" is found in § 379.203, ¹ which provides in pertinent part:

1. No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, or in the case of any commercial motor vehicle, as defined in section 301.010, RSMo, any employer having a fleet of five or more passenger vehicles, such coverage is offered therein or supplemental thereto, in not less than the limits for bodily injury or death set forth in section 303.030, RSMo, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom....

The statute does not provide a definition of "operator." There is no Missouri decision addressing what constitutes an operator of a motor vehicle for purposes of the uninsured motorist statute. Furthermore, as the trial court noted in its Final Judgment, and the defendant in its brief, there is no Missouri decision concerning whether a passenger grabbing the steering wheel and turning it constitutes operation of a motor vehicle. Thus, this is a case of first impression for Missouri courts.

Although § 379.203 does not define "operator," the section does make cross-references to RSMo chapters 301 and 303. See § 379.203.1 and .5. See also, Ragsdale v. Armstrong, 916 S.W.2d 783 (Mo. banc 1996); ² and Harrison v. MFA Mut. Ins. Co. 607 S.W.2d 137, 144 (Mo. banc 1980). ³ Additionally, the introduction to chapter 379 specifically cross-references that chapter to chapter 303.

Chapter 303 of the Missouri Revised Statutes is the Motor Vehicle Financial Responsibility Law. § 303.010. Chapter 303 defines "operator" as a person who is in actual physical control of a motor vehicle. § 303.020(8). Chapter 301 governing the registration and licensing of motor vehicles defines "operator" as any person who operates or drives a motor vehicle. § 301.010(39), RSMo Supp.1995.

Hay v. Ham, 364 S.W.2d 118 (Mo.App.1962), addressed the issue of what constitutes an operator of a motor vehicle for purposes of chapters 303 and 304. ⁴ The defendant in Hay was a passenger in a vehicle parked outside plaintiff's store. Id. at 120. The car was left running while the driver went in for groceries. Id. The passenger "scooted" over to allow another passenger in and accidentally touched the accelerator, causing the vehicle to race forward and crash into the store. Id...