Gillispie v. Twin City Fire Ins. Co.

• Decision Date: 23 June 2015
• Docket Number: No. 4:14–CV–585 RLW.,4:14–CV–585 RLW.
• Parties: Irene GILLISPIE, Plaintiff, v. TWIN CITY FIRE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

112 F.Supp.3d 900

Irene GILLISPIE, Plaintiff,

v.TWIN CITY FIRE INSURANCE COMPANY, Defendant.

No. 4:14–CV–585 RLW.

United States District Court, E.D. Missouri, Eastern Division.

Signed June 23, 2015.

John A. Lally, Rhodes and Lally, LLC, St. Louis, MO, for Plaintiff.

John A. Mazzei, Scott C. Harper, Aaron I. Mandel, Brinker and Doyen, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

RONNIE L. WHITE, District Judge.

This matter is before the court on Defendant's Motion for Summary Judgment (ECF No. 15) and Plaintiff's Motion for Partial Summary Judgment (ECF No. 22).

BACKGROUND

On December 10, 2010, Admiral Gillispie's motor vehicle was struck by a vehicle operated by Terry Laney. (Defendant's Statement of Uncontroverted Material Facts in Support of Defendant's Motion for Summary Judgment ("DSUMF"), ¶¶ 5–6).¹ Irene Gillispie is the surviving spouse of Admiral Gillispie. (DSUMF, ¶ 3). There are no surviving children or any other parties entitled to recover under Section 537.080, R.S.Mo. (DSUMF, ¶ 4). The $25,000 limits of liability of Terry Laney's policy were paid to Plaintiff Irene Gillispie by Terry Laney's insurance carrier. (DSUMF, ¶ 8).

Defendant Twin City Fire Insurance Company ("Twin City") issued an automobile insurance policy, police number 55PHL427436 ("the Policy"), to Plaintiff and Admiral Gillispie. (DSUMF, ¶¶ 9, 18, 21). The Policy provides coverage on four (4) separate vehicles—a Pontiac Grand Prix, a Lincoln Town Car, a GMC Sierra, and a Cadillac DeVille—each with underinsured motorist coverage in the amount of $50,000 per person. (DSUMF, ¶¶ 19, 20). Plaintiff alleges she has a right to stack the underinsured motorist coverage, for a total of $200,000, provided on each of the four (4) vehicles covered under the terms of the policy. Each count of Plaintiff's Petition alleges coverage for a separate vehicle insured under the terms of the Policy, resulting in four (4) counts alleging the right to stack underinsured motorist coverage. Count V of Plaintiff's Petition alleged a claim for vexatious refusal to pay against Twin City, but Plaintiff later dismissed that count without prejudice. (ECF Nos. 28, 29).

Endorsement A–6193–0 to the Policy provides:

UNDERINSURED MOTORIST COVERAGE—MISSOURI PART C—UNINSURED/UNDERINSURED MOTORIST COVERAGE—SECTION II—UNDERINSURED MOTORIST COVERAGE is deleted from the policy booklet 8524 and replaced with this endorsement.

INSURING AGREEMENT

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

1. Sustained by an insured; and

2. Caused by an accident.

B. "Insured" as used in this endorsement means:

1. You or any family member.

(ECF No. 16–2 at 16)

LIMIT OF LIABILITY

A. The Limit of Liability shown in the Declarations for each person for Underinsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of bodily injury sustained by any one person in any one accident. Subject to this limit for each person, the Limit of Liability shown in the Declarations for each accident for Underinsured Motorist Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one accident.

This is the most we will pay regardless of the number of:

1. Insureds;

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident.

B. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and Part A, Part B or Part C of this policy.

C. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible.

D. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or similar laws:

1. Worker's compensation law; or

2. Disability benefits law.

(ECF No. 16–2 at 17).

OTHER INSURANCE

If there is other applicable insurance available under one or more policies or provisions of coverage that is similar to the insurance provided by this endorsement:

1. Any recovery for damages under all such policies or provisions of coverage may equal but not exceed the highest applicable limit for any one vehicle under any insurance coverage on either a primary or excess basis.

2. Subject to all other provisions of this policy, including but not limited to:

a. Exclusion A. of this endorsement;

b. Paragraph A. of the LIMIT OF LIABILITY provision of this endorsement;

c. Paragraph 1. of the OTHER INSURANCE provision of this endorsement; and

d. The TWO OR MORE AUTO POLICIES provision of this policy; any insurance we provide with respect to a vehicle you do not own, including any vehicle while used as a temporary substitute for our covered auto, shall be excess over any collectible insurance providing such coverage on a primary basis.

(ECF No. 16–2 at 18).

The Policy also provides, in relevant part:

TWO OR MORE AUTO POLICIES

If this policy and any other auto insurance policy issued to you by us apply to the same accident, the maximum limit or our liability under all of the policies shall not exceed the highest applicable limit of liability under any one policy.

* * *

DEFINITIONS

* * *

Other words and phrases are defined. They are in bold face when used.

D. "Bodily injury" means bodily harm, sickness or disease, including death that results.

(ECF No. 16–2 at 30).

Plaintiff seeks damages as part of a wrongful death action for injuries suffered by Admiral Gillispie, not based upon her own bodily injuries. Twin City paid one $50,000.00 underinsured motorist policy limit, pursuant to the parties' partial settlement. (ECF No. 27). Twin City agreed to pay Plaintiff, as the spouse/ "family member" of decedent Admiral Gillispie the $50,000 underinsured motorist limit. Plaintiff seeks the additional amount of $150,000.00 in underinsured motorist coverage.

SUMMARY JUDGMENT STANDARD

The Court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56(c) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome will properly preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the "mere existence of some alleged factual dispute." Fed.R.Civ.P. 56(e) ; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The nonmoving party may not rest upon mere allegations or denials of his pleading. Id.

In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor. Celotex Corp., 477 U.S. at 331, 106 S.Ct. 2548. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. " ‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’ " Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).

DISCUSSION

I. Cross–Motions for Summary Judgment

The Eighth Circuit has clearly recognized that insurance companies can prohibit stacking of underinsured motorist coverage as a matter of contract law:

As a matter of public policy, Missouri courts have invalidated "attempts by insurance companies to prohibit the stacking of uninsured motorist coverage." Jordan v. Safeco Ins. Co. of Ill., 741 F.3d 882, 884 (8th Cir.2014) (emphasis added). But "[b]ecause Missouri does not require UIM coverage, ‘the existence of the coverage and its ability to be stacked are determined by the contract entered between the insured and the insurer.’ " Daughhetee v. State Farm Mut. Auto. Ins. Co., 743 F.3d 1128, 1131 (8th Cir.2014) (quoting Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379, 383 (Mo.1991) (en banc)). Consequently, "general rules of contract construction apply," and the "key" question is whether the policy unambiguously prohibits stacking or "is reasonably open to different constructions" as to the permissibility of stacking. Id. at 1131–32 (quotations omitted). If the former is true, we must enforce the contract to prohibit stacking; if the latter is true, the policy is ambiguous and we must construe the policy to permit stacking. See id. at 1132.

Midwestern Indem. Co. v. Brooks, 779 F.3d 540, 545 (8th Cir.2015). Therefore, the Court looks to whether the Policy at issue in this case is ambiguous and whether it clearly prohibits stacking.

First, the Court recognizes the well-established rule that any ambiguity in an insurance contract must be construed against the drafter, that is, the insurer. Sargent Const. Co., Inc. v. State Auto. Ins. Co., 23 F.3d 1324, 1326 (8th Cir.1994) ("if an insurance policy is ambiguous, the policy shall be construed against the insurer"); Robin v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 698 (Mo.1982) (same). In...