Harnden v. Continental Ins. Co., No. 11883

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: FLANIGAN; GREENE, P. J., and TITUS
• Citation: 612 S.W.2d 392
• Decision Date: 21 January 1981
• Docket Number: No. 11883
• Parties: Billy Joe HARNDEN et al., Plaintiffs-Appellants, v. The CONTINENTAL INSURANCE COMPANY et al., Defendants-Respondents.

Page 392

612 S.W.2d 392 Billy Joe HARNDEN et al., Plaintiffs-Appellants,
v.
The CONTINENTAL INSURANCE COMPANY et al., Defendants-Respondents. No. 11883. Missouri Court of Appeals, Southern District. Jan. 21, 1981.
Motion for Rehearing or to Transfer Denied Feb. 13, 1981.
Application to Transfer Denied March 9, 1981.

Page 393

Edward J. Hershewe, Glades & Hershewe, Joplin, for plaintiffs-appellants.

John R. Martin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendants-respondents.

FLANIGAN, Judge.

In 1975 plaintiff Billy Joe Harnden, then a minor, was injured while he was underneath a "bush hog" trying to clear its blades which were entangled with barbed wire. The incident took place on a farm owned by defendant Wilson for whom Billy Joe was working. Wilson carried a "Farmowners Policy" with the Continental Insurance Company ("Continental"). Billy Joe and his parents, the latter on their derivative claim, brought a tort action against Wilson. Wilson defaulted and judgment was entered in favor of Billy Joe for $75,000 and in favor of his parents for $10,000.

Later the instant action was filed by plaintiffs Billy Joe and his parents against defendants Continental and Wilson. To the extent of the limits under the Continental policy, the petition sought payment (see § 379.200 RSMo 1969) of the judgment, then final, which plaintiffs had obtained against Wilson in the tort action. Attached as exhibits and incorporated in the petition were the petition in the tort action, the judgment in the tort action, and the insurance policy.

Apparently service was never obtained upon defendant Wilson. After filing its answer and after discovery had been conducted, Continental filed a motion for summary judgment. The motion recited that it was based upon plaintiffs' petition in the instant action, the exhibits attached thereto, plaintiffs' responses to Continental's requests for admissions, and an attached affidavit. The trial court sustained the motion and entered summary judgment in favor of Continental. Plaintiffs appeal.

Plaintiffs' first point is that the trial court erred in basing its ruling upon special exclusion (d) ¹ of the policy because exclusion (d) is "clear and unambiguous when the applicable rules of grammar and punctuation are considered, and plaintiff Billy Joe is not excluded by the terms thereof." Plaintiffs' second point is that the trial court erred in basing its ruling upon special exclusion (d) because exclusion (d) "is ambiguous and it is susceptible of at least one reasonable inference that would uphold coverage." The two points will be considered together.

Page 394

It is the duty of this court to interpret the insurance policy and to enforce it as it is written and not to remake it. This court may not, under the guise of liberal construction, create an ambiguity where none is present. Construction, in the usual sense, may be resorted to only when the policy language, in its ordinary meaning, is indefinite, ambiguous, or equivocal. Kearbey v. Rel. L. Ins. Co. of Webster Groves, 526 S.W.2d 866, 869(1, 2) (Mo.App.1975). "The meaning of the terms of an insurance policy is ordinarily tested by the common understanding and speech of men." Greer v. Zurich Ins. Co., 441 S.W.2d 15, 27(12) (Md.1969).

Of special significance here are two additional principles of contract construction. The first is: "Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course." (Emphasis added.) State Mut. Life Assur. Co. of Worcester v. Dischinger, 263 S.W.2d 394, 401 (Mo.1953). See also Mathews v. Modern Woodmen of America, 236 Mo. 326, 139 S.W. 151, 155 (1911). The second is: "In construing legal writings, generally the punctuation is subordinate to the text and the use of a period or other mark is not controlling upon the question of proper construction where such use would result in an unreasonable or absurd construction." Johnson v. Flex-O-Lite Manufacturing Corporation, 314 S.W.2d 75, 84(10) (Mo.1958). ² See also 17 Am.Jur.2d Contracts § 279, p. 692.

Coverage G of the policy is entitled "Farmers Comprehensive Personal Liability." Under coverage G Continental agreed with the named insured Wilson "to pay ... all sums which (Wilson) shall become legally obligated to pay as damages because of bodily injury ..." Coverage H is entitled "Personal Medical Payments." Under coverage H Continental agreed with the named insured Wilson "to pay all reasonable expenses incurred ... for necessary medical ... services ... for each person who sustains bodily injury by accident ... while on the premises with the permission of (Wilson)." Both coverage G and coverage H are in Section II of the policy.

The record reflects, and the excellent briefs of both sides seem to agree, that Billy Joe was a "farm employee" and was neither a "residence employee" nor an "insured farm employee" as those terms are defined in the policy.

For the purpose of this opinion the opening portion of exclusion (d) "under Coverage G, to bodily injury to any farm employee, arising out of and in the course of his employment by the insured," will be called the first segment. The next portion of exclusion (d) "and under Coverages G and H to any person, including any residence employee or insured farm...