Gordon v. Maupin

• Decision Date: 27 April 1971
• Docket Number: No. 33833,33833
• Citation: Gordon v. Maupin, 469 S.W.2d 848 (Mo. App. 1971)
• Parties: Marjorie M. GORDON, Plaintiff-Respondent, v. George MAUPIN, Defendant, and American Family Mutual Insurance Company, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 848

469 S.W.2d 848

Marjorie M. GORDON, Plaintiff-Respondent, v. George MAUPIN, Defendant and American Family Mutual Insurance Company, Defendant-Appellant.

No. 33833.

St. Louis Court of Appeals, Missouri.

April 27, 1971.

Motion for Rehearing or to Transfer to Supreme Court Denied

May 25, 1971.

Application to Transfer Denied Sept. 13, 1971.

Bollow, Crist & Bollow, Shelbina, for plaintiff-respondent.

Collins & Grimm, by David Collins, Macon, for defendant-appellant.

CLEMENS, Commissioner.

The issue here: Does the other-insurance-available clause in plaintiff's uninsured motorist policy preclude recovery when the other insurance was not actually available to her? We say no and affirm plaintiff's $5,000 judgment against her insurer, defendant American Family Mutual Insurance Company (American).

American wrote two similar public automobile liability policies, one to plaintiff Marjorie Gordon and the other to her sister-in-law Phyllis Gordon. Each policy gave $5,000--$10,000 limit uninsured motor vehicle coverages. ¹

On February 11, 1965 plaintiff was one of three guest passengers in Phyllis Gordon's automobile when it was struck headon by an automobile negligently driven by defendant George Maupin, whose automobile was uninsured. Phyllis Gordon, her two daughters and plaintiff were injured; plaintiff's damages admittedly were $5,000. Under the uninsured motorist provision of Phyllis Gordon's policy she and her three guest passengers were 'insureds.' American paid Phyllis Gordon and her daughters $8,397 and admitted liability to plaintiff for the $1,603 remainder of Phyllis Gordon's policy limit. Plaintiff declined to so limit her recovery and sued American for $5,000 under the uninsured motorist coverage of her own policy. The trial court gave plaintiff a $5,000 judgment and American appeals. ²

By the insuring agreement of plaintiff's uninsured motorist policy American promised 'to pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile * * *.' That sum is $5,000. Nonetheless American contends the $10,000 uninsured motorist coverage of Phyllis Gordon's policy was available to plaintiff and therefore it is not liable to her under her own policy. American points to the other-insurance-available clause of plaintiff's policy: 'With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this endorsement, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this endorsement exceeds the sum of the applicable limits of liability of all such other insurance.' American contends Phyllis Gordon's $10,000 coverage was 'available' to plaintiff--even though American used $8,397 of it to pay the other three claimants--and since plaintiff's own $5,000 coverage obviously did not exceed Phyllis Gordon's $10,000 coverage, American says it is not liable to plaintiff under her policy. We reject that contention as an unwarranted interpretation of the word 'available.'

In interpreting plaintiff's policy we follow established principles. In the oft-cited case of Brugioni v. Maryland Casualty Company, Mo., 382 S.W.2d 707(2--4), our supreme court said: 'It is true * * * that it is the court's duty to interpret insurance contracts and enforce them as they are written and not to remake them. On the other hand, an insurance policy being a contract designed to furnish protection will, if reasonably possible, be interpreted so as to accomplish that object and not to defeat it, and, if terms of the contract are susceptible of two possible interpretations and there is room for construction, the provisions limiting the coverage of the policy, will be construed most strongly against the insurer.' And, as concerns uninsured motor vehicles, liberal interpretation is a matter of Missouri's public policy to assure payment to persons negligently injured on public highways. Winterton v. VanZandt, Mo., 351 S.W.2d 696(1, 2).

It matter not whether we look upon Phyllis Gordon's $10,000 uninsured motorist coverage as being 'available' at the time of collision or at the time plaintiff sued. At collision time the $10,000 coverage was available to plaintiff only in a hypothetical sense; it was equally available to the other three injured persons and available to plaintiff only to the extent that it might not be paid to the other three. At the time of suit only $1,603 was available to plaintiff because only that much was left after American had paid $8,397 to the other three claimants to the $10,000 fund. In either case plaintiff did not have $5,000 available to her under the Phyllis Gordon policy.

This issue of other-available insurance under uninsured motorist coverage is novel in Missouri but was dealt with squarely--and we think properly--in Kraft v. Allstate Insurance Company, 6 Ariz.App. 276, 431 P.2d 917. There, as here, plaintiff was a guest passenger in an automobile struck by an uninsured automobile. The coverage under the host's uninsured motorist policy became exhausted and plaintiff sued Allstate under his own uninsured motorist policy. As here, that policy declared Kraft's coverage did not apply if the host driver 'has insurance similar to that afforded by this section and such insurance is available to the insured.' The court posed the issue 'We must determine whether 'other similar insurance available' means insurance proceeds that an insured may collect and spend, or simply, as Allstate Insurance Company contends, 'other' insurance existing on paper? ' The court then interpreted the word 'available' to mean 'actually available for the use of the injured party,' saying:

'In holding that the word 'available' must be construed to mean 'actually available for the use of the injured party,' the court (in Travelers Indemnity Company v. Wells, D.C., 209 F.Supp. 784, l.c. 790) relied on its interpretation of the Virginia Uninsured Motorist Statute. It pointed out that in the light of the public policy underlying the statute, i.e., compensation to an injured party who was not at fault, this construction was mandated * * *

'This construction is reasonable, notwithstanding absence of a statute, where an insured has paid an additional premium to protect himself under such circumstances. To permit the insurance company which received the additional premium to avoid liability when its insured in fact cannot collect for his loss under the 'other insurance' shocks the conscience of this court * * * Allstate charged a premium for the coverage; it cannot be permitted to vanish as the pea in the shell game. We hold that other insurance was not available to Kraft and Allstate's coverage for uninsured motorist protection remains.'

We hold that coverage under the Phyllis Gordon policy was only hypothetically or partially available to plaintiff, not actually available to her to the extent of her own coverage. In purchasing her own policy plaintiff paid for $5,000 protection for damage caused by an uninsured motorist. Since that sum was not actually...