Heafner v. Safeco Nat. Ins. Co. of America, 43042

• Citation: 613 S.W.2d 478
• Decision Date: 10 March 1981
• Docket Number: No. 43042,43042
• Parties: Linda M. HEAFNER, Walter L. Heafner, and Tricia L. Heafner, a minor, etc., Plaintiffs-Appellants, v. SAFECO NATIONAL INSURANCE COMPANY OF AMERICA, Defendant-Respondent, Lorra Ann Cox and Donald Shy, Defendants.
• Court: Court of Appeal of Missouri (US)

Page 478

613 S.W.2d 478

24 A.L.R.4th 58

Linda M. HEAFNER, Walter L. Heafner, and Tricia L. Heafner, a minor, etc., Plaintiffs-Appellants, v. SAFECO NATIONAL INSURANCE COMPANY OF AMERICA, Defendant-Respondent, Lorra Ann Cox and Donald Shy, Defendants.

No. 43042.

Missouri Court of Appeals, Eastern District, Division Three.

March 10, 1981.

Stephen H. Ringkamp, St. Louis, for plaintiffs-appellants.

Daniel T. Rabbitt, Jr., Gary E. Snodgrass, James E. Godfrey, St. Louis, for defendant-respondent.

CRIST, Presiding Judge.

Civil action in which plaintiffs Linda M. Heafner and Tricia L. Heafner, a minor, sought redress for personal injuries occasioned by an August 27, 1978, automobile collision which occurred in St. Louis County, Missouri. Walter L. Heafner was joined as a party plaintiff for loss of consortium of his wife and services of his daughter. Defendants are Lorra Ann Cox, the operator of the vehicle which struck plaintiffs' car; Donald Shy, the owner of the offending vehicle; and, Safeco Insurance Company, by whom plaintiffs were insured.

At the time of the accident, defendant Cox was fourteen years old, unlicensed and insured only by virtue of an automobile liability insurance policy issued to her parents by Allstate. Defendant Shy, an emancipated nineteen year old, carried no insurance whatsoever on his automobile. Plaintiffs alleged that defendant Shy negligently entrusted his vehicle to defendant Cox whom he knew to be unlicensed and inexperienced in the operation of motor vehicles, and that defendant Cox, in turn, operated the vehicle in a predictably negligent manner.

Plaintiffs' petition was in seven counts, the last four of which form the basis of this appeal. Counts IV through VI, inclusive, sought recovery from Safeco for each plaintiff pursuant to the uninsured motor vehicle provisions of its policy of insurance previously issued to plaintiff on the grounds of the negligent entrustment by uninsured defendant Shy of his uninsured vehicle. Count VII sought a declaratory judgment against Safeco in favor of all plaintiffs and specifically sought the trial court's declaration that: (1) Defendant Shy was an "uninsured motorist" and his vehicle an "uninsured vehicle" within the meaning of the Safeco policy and § 379.203, RSMo. 1978; (2) Plaintiffs were covered by the uninsured motor vehicle provisions of the Safeco policy with respect to defendant Shy's negligent entrustment; (3) Plaintiffs' uninsured motor vehicle coverage limits could be "stacked" because Safeco's policy covered two vehicles; and, (4) Defendant Safeco cannot eliminate, limit or reduce the uninsured motor vehicle coverage (or the amount thereof) under its policy with respect to defendant Shy's negligent entrustment by virtue of the existence of coverage afforded defendant Cox by Allstate for her negligent operation of Shy's vehicle nor by virtue of any amounts paid or payable under the Allstate policy.

At this juncture, we note that in response to defendant Safeco's request for admissions, defendant Cox and her insurer Allstate, admitted liability for her negligent operation of Shy's vehicle but denied liability concerning defendant Shy and his negligent entrustment or for the vehicle itself. Neither defendant Shy nor his vehicle is covered by any policy of automobile liability insurance.

Defendant Safeco filed a written motion for summary judgment as to those counts of plaintiffs' petition which sought application of the uninsured motor vehicle provisions contained in its insurance policy issued to plaintiffs (Counts IV through VI, inclusive) and later orally amended its motion to further include Count VII. Safeco's motion was predicated upon the proposition that because plaintiff Cox was insured by Allstate for her negligent operation of defendant Shy's vehicle, plaintiffs were not entitled, as a matter of law, to recover...