Hendrickson v. Cumpton, WD
| Decision Date | 09 March 1982 |
| Docket Number | No. WD,WD |
| Citation | 632 S.W.2d 512 |
| Parties | Richard L. HENDRICKSON and Cynthia Hendrickson, Plaintiffs, and Frances Igo Jackson, Barbara Igo Swartz, and Dorothy L. Ussery, Plaintiffs-Appellants, v. Curtis Lee CUMPTON, and Brady E. Hagerman, Defendants, and State Farm Mutual Automobile Insurance Company, Intervenor, and MFA Mutual Insurance Company, Intervenor-Respondent. 32398. |
| Court | Missouri Court of Appeals |
John C. Milholland (argued), Anderson & Milholland, Harrisonville, for plaintiffs-appellants.
John E. Turner, Kansas City, argued, for intervenor-respondent; Popham, Conway, Sweeny, Fremont & Bundschu, P. C., Kansas City, of counsel.
Before NUGENT, P. J., and TURNAGE and LOWENSTEIN, JJ.
Frances Igo Jackson, Barbara Igo Swartz and Dorothy L. Ussery appeal from a circuit court judgment in a declaratory judgment action wherein the court found that the uninsured motorist provision of an MFA Mutual Insurance Company policy is not applicable to these appellants. We reverse the judgment.
On July 23, 1978, Mrs. Jackson, Mrs. Swartz and Artie C. Ussery were passengers in a Ford Pinto automobile owned by Cynthia Hendrickson and operated by Richard L. Hendrickson when that automobile was struck by a truck owned by Brady E. Hagerman and operated by Curtis Lee Cumpton. Mrs. Jackson and Mrs. Swartz were injured. Mr. Ussery was killed. Thereafter, on January 5, 1979, all of the plaintiffs but Mrs. Ussery filed suit for personal injuries and property damage against Mr. Cumpton for his negligent operation of the truck and against Mr. Hagerman for his negligent entrustment of the vehicle to Mr. Cumpton. Mrs. Ussery joined the plaintiffs in suing both defendants for the death of her husband.
The Pinto was insured by MFA Mutual Insurance Company under a policy issued to the Usserys. Mr. Hendrickson's car was insured by State Farm Mutual Automobile Insurance Company. Mr. Cumpton had extended personal liability insurance under a Northwestern National Insurance Company policy issued to his parents. In his memorandum opinion the trial judge found that Mr. Hagerman had neither insurance coverage on the truck nor any other liability insurance coverage.
On September 27, 1979, MFA, alerted to possible claims under its policy's uninsured motorist provision, moved to intervene 1 stating that: "Your applicant further states that its attorney has been informed that on July 23, 1978, the defendant Brady E. Hagerman in the above-entitled action did not have any automobile liability insurance and that he allowed Curtis Lee Cumpton to operate the automobile in question." Thereafter, MFA filed its answer to the plaintiffs' petition. On March 3, 1980, MFA filed its petition and counterclaim for judgment declaring that MFA had no duties or obligations to the plaintiffs under the uninsured motorist provision of its policy. 2
At the hearing on June 20, 1980, Neil Helbling, claims manager for Northwestern Insurance Company, testified that his company had offered the plaintiffs its policy limits for the liability of Mr. Cumpton but that, "I don't see why we would provide any coverage for Mr. Hagerman." Mr. Cumpton testified that he was driving the truck with Mr. Hagerman's permission.
In his judgment entry of November 7, 1980, the trial judge found
that because defendant Curtis Lee Cumpton was and is afforded liability insurance protection under the policy issued by Northwestern National Insurance Company the uninsured motor vehicle coverage provisions of the policies of the Intervenors, State Farm Mutual Automobile Insurance Company and MFA Mutual Insurance Company are not applicable and afford plaintiffs no coverage protection or benefits.
On appeal, the plaintiffs contend that the trial court's judgment was in error because § 379.203 3, R.S.Mo.1978, requires every automobile liability insurance policy to afford uninsured motorist coverage to its insureds for payment of damages for personal injury and death for which the owner of an uninsured motor vehicle is liable to an insured under the policy by reason of ownership or use of the uninsured motor vehicle. Defendant Hagerman is individually liable to the plaintiffs for the result of his tortiously permitting Mr. Cumpton to drive Hagerman's truck when he knew Cumpton's ability to drive was impaired. Moreover, MFA's policy of insurance on the Pinto contractually agrees to pay the damages for which the owner of a vehicle is liable when that liability is not covered by insurance.
MFA argues that § 379.203 does not require every policy to afford uninsured motorist coverage for damages for which the owner of the uninsured motor vehicle is liable when the operator of the vehicle has applicable liability coverage. In addition, MFA contends, the reasonable expectation of the parties to the insurance policy on the Pinto was that uninsured motorist coverage would apply only absent other applicable insurance. MFA insists that the record contains no evidence to demonstrate whether or not Mr. Hagerman or his truck were uninsured.
In a declaratory judgment action we review the case upon both the law and the evidence bearing in mind that the judgment will not be set aside unless clearly erroneous. Helmkamp v. American Family Mutual Insurance Co., 407 S.W.2d 559, 566 (Mo.App.1966).
The court in Heafner v. Safeco National Insurance Co., 613 S.W.2d 478, 479 (Mo.App.1981), addressed the issue "whether the availability of personal liability insurance for the negligence of an operator forecloses availability of uninsured motor vehicle coverage concerning the owner's negligent entrustment." The court at 480 held:
Plaintiffs aver that because the owner of the automobile now in question was liable for its negligent use, and the owner had no liability insurance applicable to this use, the automobile was "uninsured" and the above-mentioned uninsured motorist clause applies in favor of the policyholder. We are constrained to agree.
We are confronted with a situation where there were two responsible parties, one of whom was entirely uninsured and the other, underinsured....
(T)he purpose behind § 379.203, RSMo.1978, is to afford the same protection to a party injured by an...
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