Grinnell Mut. Reinsurance Co. v. Scott, WD

• Decision Date: 29 December 1981
• Docket Number: No. WD,WD
• Citation: 628 S.W.2d 355
• Parties: GRINNELL MUTUAL REINSURANCE COMPANY, Plaintiff-Respondent, v. Willie SCOTT, Jr., Rosa Lee Scott, Willie Scott, Sr., Defendants and Francis T. Lamkin, Defendant-Appellant. 32200.
• Court: Missouri Court of Appeals

Page 355

628 S.W.2d 355

GRINNELL MUTUAL REINSURANCE COMPANY, Plaintiff-Respondent, v. Willie SCOTT, Jr., Rosa Lee Scott, Willie Scott, Sr. Defendants and Francis T. Lamkin, Defendant-Appellant.

No. WD 32200.

Missouri Court of Appeals, Western District.

Dec. 29, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 2, 1982.

D. James Mariea of Whitlow, Riley, Mariea & Dunlap, P.C., Fulton, for defendant-appellant Lamkin.

Duane E. Schreimann of Hendren & Andrae, Jefferson City, for plaintiff-respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

MANFORD, Presiding Judge.

This is a proceeding for declaratory judgment for determination of coverage under an automobile liability policy. The judgment denied coverage. The judgment is affirmed.

Three points of error are presented, which in summary allege the circuit court erred in denying coverage because (1) the policy exclusion was ambiguous and deceptively worded; (2) the finding that the insured's son was a resident of the insured's household was against the weight of the evidence; and (3) the finding that a particular automobile was owned by the insured's son and furnished for the regular use of the insured was against the weight of the evidence.

This cause, having been tried to the court, brings the review thereof within Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment will not be set aside unless it was against the weight of the evidence, unless there was no evidence to support it or unless it erroneously declared or applied the law.

On September 5, 1977, one Francis T. Lamkin, while operating a motorcycle, collided with a 1976 Lincoln automobile. The Lincoln was owned by Willie Scott, Jr., but at the time of the collision was operated by his mother, Rosa Scott.

Rosa Scott, Willie Scott, Jr. and Willie Scott, Sr. are insureds of respondent. Lamkin and the Scotts were joined as original defendants. The Scotts defaulted and are not represented in this appeal. Lamkin challenged the claimed exclusion and is appellant herein. Lamkin is a judgment creditor of Rosa Scott. This proceeding was initiated upon two insurance policies, but appellant does not contest the circuit court's previous ruling as to one of the policies.

A claims adjuster for respondent secured two tape recorded statements. One statement was given by Rosa Scott and the other by her son, Willie, Jr. The circuit court listened to these tapes and the transcription of both was admitted into evidence. These statements revealed the following facts, which are not in dispute: Willie Scott, Jr. received his mail at his parents' home. His parents' home address was used for voter registration, motor vehicle registration and the address on his insurance policies. The Lincoln was kept at the parents' home a large part of the time, as well as a set of keys to the car. There was no dispute that Rosa Scott had ready access to the Lincoln. Additional facts, as they interrelate to appellant's alleged errors, will be developed infra.

In his first point (1), appellant alleges that the exclusion clause within respondent's policy relating to nonowned vehicles is ambiguous and because of the wording, is deceptive. Respondent correctly points out appellant's failure to indicate which policy provision is ambiguous or deceptive, and how the circuit court erred in its interpretation of the policy. Respondent urges that appellant has failed to comply with Rule 84.04 because point (1) amounts to nothing more than mere abstract statements of law and thus preserves nothing for appellate review. The court must admit a lack of clarity in the disclosure of appellant's first alleged error. In his brief, appellant recites two reasons why the exclusion clause is ambiguous and deceptive. First, he declares that "the alleged 'exclusion clause' is deceptively stated because it is omitted from the insuring clauses of the policy and from the labeled exclusionary clauses of the policy and is virtually concealed in the 'definitions' portion of the policy. Secondly, the ambiguity is further aggravated by language under the guise of the definition of 'non-owned automobile' which is confusing and is subject to more than one interpretation."

From the foregoing premise, appellant argues that the construction of respondent's policy is confusing and contains the exclusion in such a place where "the ordinary person would not expect to find and would probably not look for an exclusion". Appellant then proceeds to offer what to him is a more acceptable format for exclusionary language within insurance policies. It appears that appellant's complaint is over the placement of the exclusion clause within the definition portion of the policy. Appellant concedes, however, that such format has been recognized. State Farm Mutual Auto Ins. Co. v. Western Casualty and Surety Co., 477 S.W.2d 421, 423 (Mo. banc 1972).

Appellant continues his argument by stating that "the proper function of a definition is to clarify, but the apparent function of this definition of 'non-owned' automobile is to confuse the insuring agreement or to conceal from the lay reader an ambiguous exclusion". Appellant argues that the confusion is compounded by the omission of the exclusion from the exclusionary provision and by the failure of punctuation within the definition phrase.

The particular wording of respondent's policy attacked by appellant is set forth as follows:

"Coverage A-... To pay on behalf of the insured all sums which the insured shall become legally obligated to pay arising out of the...