Haulers Ins. Co., Inc. v. Pounds, SD 29068.
| Court | Court of Appeal of Missouri (US) |
| Citation | 272 S.W.3d 902 |
| Docket Number | No. SD 29068.,SD 29068. |
| Parties | HAULERS INSURANCE COMPANY, INC., Plaintiff-Respondent, v. Phillip POUNDS, a/k/a Philip Pounds, Defendant-Appellant, Larry Sadler, Estate of Phillip Austin Pounds, a/k/a Philip Pounds, Rodney Smith, and Estate of Nancy Avila, Defendants. |
| Decision Date | 31 December 2008 |
v.
Phillip POUNDS, a/k/a Philip Pounds, Defendant-Appellant,
Larry Sadler, Estate of Phillip Austin Pounds, a/k/a Philip Pounds, Rodney Smith, and Estate of Nancy Avila, Defendants.
[272 S.W.3d 904]
James R. Tweedy, Bloomfield, MO., for Appellant.
James E. Laramore, Cape Girardeau, MO., for Respondent.
Timothy F. Ruddy, Cape Girardeau, MO., for Defendant Larry Sadler.
Matthew E. Hill, Cape Girardeau, MO, for Defendant Rodney Smith.
DON E. BURRELL, Presiding Judge.
Haulers Insurance Company, Inc. ("Haulers") filed a petition for declaratory judgment to determine whether a policy exclusion relieved it of any duty to provide coverage and a defense to its named insured, Rodney Smith ("Father"), for a claim involving Father's daughter, Nancy Avila ("Daughter").1 After conducting discovery, both parties asserted there were no material facts in dispute, and each filed a motion claiming they were entitled to judgment in their favor as a matter of law. Father now appeals the trial court's judgment granting Haulers motion for summary judgment and denying Father's. Because Haulers has not proven, as a matter of law, that the policy exclusion it relies on precludes coverage, we reverse and remand.
In determining whether a trial court has properly granted summary judgment, we use a de novo standard of review and give no deference to the trial court's decision. City of Springfield v. Gee, 149 S.W.3d 609, 612 (Mo.App. S.D.2004); Murphy v. Jackson Nat'l Life Ins. Co., 83 S.W.3d 663, 665 (Mo.App. S.D.2002). Instead, we employ the same criteria the trial court should have used in deciding whether to grant the motion. Barekman v. City of Republic, 232 S.W.3d 675, 677 (Mo.App. S.D.2007) (citing Stormer v. Richfield Hosp. Services., Inc., 60 S.W.3d 10, 12 (Mo.App. E.D.2001)). We view the record in the light most favorable to the party against whom judgment was entered—according that party the benefit of all favorable inferences that may reasonably be drawn from the record—then determine whether the moving party was entitled to prevail as a matter of law. Id. (citing ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)).
Father's automobile insurance policy from Haulers ("the policy") provided coverage for himself and for members of his
family who resided with him. On March 28, 2005, Daughter resided with Father and was thereby considered an "insured" under the policy. On that tragic day, Daughter and her sixteen-year-old friend, Philip Austin Pounds ("Philip"), were killed in an automobile accident when the vehicle in which they were traveling ran into the back of another vehicle on a public highway. At the time of the collision, Daughter was driving Philip's car (a vehicle actually owned by Philip's father), and Philip was in the passenger seat. Daughter was fifteen years old and did not have a driver's license.
Philip's father thereafter filed a suit against Father (as the personal representative of Daughter's estate) for the wrongful death of Philip on the grounds that his death had been caused by Daughter's negligence. Father then made a demand upon Haulers to provide him with a defense in the case and pay any resulting monetary damages as provided in the policy.
Haulers denied coverage and filed its petition for declaratory judgment. Haulers based its denial of coverage on a provision in the policy that states: "We do not provide Liability Coverage for any `insured': ... [u]sing a vehicle without a reasonable belief that that `insured' is entitled to do so...." Father's single point on appeal alleges the trial court erred by finding Haulers had met its burden of proof that the quoted exclusion barred coverage under the undisputed facts.
In general, "an insurance policy is a contract to afford protection to an insured and will be interpreted, if reasonably possible, to provide coverage." Gibbs v. Nat'l Gen. Ins. Co., 938 S.W.2d 600, 605 (Mo.App. S.D.1997). Where an insurer seeks to deny coverage based on a policy exclusion, the burden of establishing that the exclusion applies lies with the insurer. Am. Family Mut. Ins. Co. v. Arnold Muffler, Inc., 21 S.W.3d 881, 883 (Mo.App. E.D.2000).
Father cites our decision in McRaven v. F-Stop Photo Labs, Inc., 660 S.W.2d 459 (Mo.App. S.D.1983), as support for the proposition that exclusionary clauses in insurance contracts are to be strictly construed against the drafter and then urges us to adopt "the construction most favorable to the insured." This last request, however, can be granted only if we find the wording of the exclusionary clause to be ambiguous.
Exclusionary clauses in insurance contracts are to be strictly construed against the author thereof and if they are ambiguous, courts are compelled to adopt a construction favorable to the insured. Insurance policies must be considered as a whole and reasonably interpreted so as to be consistent with the apparent object and intent of the parties thereto. Such contracts should be considered as affording coverage whenever it is reasonably possible to do so and policy provisions which prove to be ambiguous may not be successfully used as policy defenses.
Id. at 462. (emphasis added). See also Harrison v. Tomes, 956 S.W.2d 268, 270 (Mo. banc 1997).
"An insurance policy is ambiguous if its provisions are duplicitous or difficult to understand." Omaha Prop. & Cas. Ins. Co. v. Peterson, 865 S.W.2d 789, 790 (Mo. App. W.D.1993). The language "using a vehicle without a reasonable belief that the person is entitled to do so" was at issue in Peterson and our Court's Western District therein held:
The provision is not ambiguous. It is relatively straightforward: [the driver of
the car] not only had to believe that she had a right to drive the car, but her belief had to be rational.
Id. The Peterson decision acknowledged that other jurisdictions had found similar language to be ambiguous, but did not find those decisions persuasive.
We rely instead on the decision of the Maryland Court of Appeals which construed an identical provision in General Accident Fire & Life Assurance...
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