Green v. Federated Mutual Insurance Company
| Decision Date | 16 November 1999 |
| Citation | 13 S.W.3d 647 |
| Parties | (Mo.App. E.D. 1999) . Armondarez Green, Appellant, v. Federated Mutual Insurance Company, Respondent. Case Number: ED75830 Missouri Court of Appeals Eastern District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. Maura B. McShane
Counsel for Appellant: Robert W. Ehrig
Counsel for Respondent: Robert J. Wulff
Opinion Summary: Insured appeals the trial court's grant of summary judgment in favor of Insurer in an action by Insured to recover underinsured motorist benefits from Insurer following a car accident.
AFFIRMED.
Division Three holds: 1) there is no ambiguity in policy language stating that "any insurance we provide... shall be excess over any other collectible underinsured motorist insurance"; 2) policy language allowing a setoff for "all sums paid or payable under any workers' compensation, disability benefits, or similar law" is neither ambiguous nor contrary to public policy; and 3) there is no conflict between these two clauses.
Armondarez Green ("Insured") appeals from the trial court's grant of summary judgment in favor of Federated Mutual Insurance Company ("Insurer") in an action in which Insured, following an automobile accident, sought underinsured motorist ("UIM") benefits under an insurance policy issued to Insured's employer, the Lou Fusz Automobile Dealership ("Lou Fusz"). Insured argues the trial court improperly granted summary judgment to Insurer because of alleged ambiguities in the UIM endorsement. We affirm.
Insurer provided UIM protection with limits of liability of $50,000.00 per person/per accident for a 1997 Dodge Intrepid owned by Lou Fusz. The relevant provisions of the UIM endorsement state:
Other insurance:
If there is other applicable insurance available under one or more policies or provisions of coverage:
Any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible underinsured motorist insurance providing coverage on a primary basis.
Limit of insurance:
The Limit of Insurance under this section shall be reduced by:
a. All sums paid or payable under any workers' compensation, disability benefits or similar law, and
b. All sums paid by or for anyone who is legally responsible, including all sums paid under this policy's LIABILITY COVERAGE.
The Insured was driving the 1997 Intrepid in the course of his employment when Ronnie Williams ("Tortfeasor") struck the vehicle head on. As a result of the accident, the Insured sustained serious and permanent injuries. He incurred medical bills of approximately $228,000.00, and his total damages exceeded $500,000.00.
Tortfeasor's insurance carrier, Windsor Group ("Windsor"), paid the Insured $22,000.00 on behalf of Tortfeasor. Further, Lou Fusz's workers' compensation carrier paid all of the Insured's medical bills as well as temporary total disability benefits in the amount of $26,000.00.
The Insured filed this action against Insurer seeking the $50,000.00 UIM coverage under the policy issued to Lou Fusz. Insurer filed a motion for summary judgment, claiming that Insured could recover nothing under the UIM coverage as a matter of law. Insurer noted that the UIM coverage was limited to $50,000.00, and that the entire $50,000.00 was offset by the payments Insured received from Windsor and through workers' compensation. The trial court agreed and granted summary judgment in favor of Insurer. Insured timely filed this appeal.
As the parties stipulated to the facts, the propriety of the trial court's grant of summary judgment in favor of Insured, which turns upon an interpretation of the meaning of an insurance contract, is purely a question of law, and our review is essentially de novo. Goza v. Hartford Underwriters Ins. Co., 972 S.W.2d 371, 373 (Mo.App. E.D. 1998). Summary judgment is appropriate only where the moving party has demonstrated that it is entitled to judgment as a matter of law. Simul Vision Cable Systems Partnership v. Continental Cablevision of St. Louis County, Inc., 983 S.W.2d 600, 603 (Mo.App. E.D. 1999).
In his first point on appeal, Insured claims that the "other insurance" provision of the UIM endorsement is ambiguous and should thus be construed in favor of coverage. According to Insured, a layman could reasonably interpret the "other insurance" clause to mean that Insurer's $50,000.00 UIM coverage is payable in addition to any amounts received from the tortfeasor's insurer as such an amount would constitute "any other collectible insurance."
In making this argument, Insured relies on Goza, supra; Zemelman v. Equity Mut. Ins. Co., 935 S.W.2d 673 (Mo.App. W.D. 1996); and Jackson v. Safeco Ins. Co. of America, 949 S.W.2d 130 (Mo.App. S.D. 1997). The courts in these three cases deemed similar "other insurance" language ambiguous as argued here by Insured. However, Goza, Zemelman and Jackson are distinguishable in that the final sentence of the "other insurance" clause in those cases stated:
However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.
(Emphasis added.) The Goza, Zemelman and Jackson courts held that a reasonable person could interpret this language to mean that the policy provided UIM coverage over and above any insurance proceeds collected, including amounts recovered from the tortfeasor.
Insurer has eliminated any such ambiguity here, because its language clearly states that the UIM coverage it provides is excess over only other UIM insurance, not excess over other collectible insurance of any kind. When confronted with the same issue, the United States District Court for the Eastern District of Missouri also held language identical to that used by Insurer here unambiguous. Travelers Indem. Co. of America v. David C. Gibson, Inc., 11 F.Supp.2d 1096 (E.D. Mo. 1998). We find no ambiguity in Insurer's "other insurance" clause, and Insured's first point of error is accordingly denied.
Second, Insured urges us to ignore the "limit of insurance" clause, under which Insurer's UIM liability is reduced by all sums paid under workers' compensation law and all sums paid by or for anyone who is legally responsible for the accident. Insured claims the "limit of insurance" clause conflicts with his interpretation of the "other insurance" clause, because it would be inconsistent to allow Insurer to set off amounts recovered under workers' compensation and from Tortfeasor pursuant to the "limit of insurance" clause, when Insurer's UIM coverage is defined in the "other insurance"...
To continue reading
Request your trial
-
Green v. Penn-America Ins. Co.
...the interpretation of an insurance contract is a question of law and, accordingly, is reviewed de novo. Green v. Federated Mut. Ins. Co., 13 S.W.3d 647, 648 (Mo.App. E.D.1999). Sufficiency of the Invasion of Privacy The St. Louis court ruled that Club invaded Green's right to privacy by app......
-
Ritchie v. ALLIED PROPERTY & CAS. INS. CO.
...not over other primary coverage, so Barker is not on point. 9 In support of this argument, Allied cites to Green v. Federated Mut. Ins. Co., 13 S.W.3d 647, 648-649 (Mo.App.1999), in which the court of appeals held no conflict, and, therefore, no ambiguity, existed between an other insurance......
-
Thornburgh Insulation v. J.W. Terrill
...scheme. Furthermore, this hypothetical situation does not create an ambiguity in the policy language. See Green v. Federated Mut. Ins. Co., 13 S.W.3d 647, 649 (Mo.App.E.D.2000) (policies must be construed in light of the present facts, and hypothetical situations cannot be used to create an......
-
Poage v. State Farm Fire & Cas. Co.
...judgment, which was based upon an interpretation of an insurance contract, is purely a question of law. Green v. Federated Mutual Ins. Co., 13 S.W.3d 647, 648 (Mo.App.1999). We review appeals from motions for summary judgment de novo. ITT Commercial Finance Corp. v. Mid-America Marine Suppl......