Holland Corp., Inc. v. Maryland Cas. Co.
| Decision Date | 11 July 1989 |
| Docket Number | No. WD,WD |
| Citation | 775 S.W.2d 531 |
| Parties | The HOLLAND CORPORATION, INC., Respondent, v. The MARYLAND CASUALTY COMPANY, Appellant. 41376. |
| Court | Missouri Court of Appeals |
Larry J. Tyrl, Kansas City, for appellant.
R. Frederick Walters, Kansas City, for respondent.
Before BERREY, P.J., MANFORD and NUGENT, JJ.
Appeal from an order of the trial court granting respondent's The Holland Corporation's (Holland), motion for summary judgment and overruling appellant's, The Maryland Casualty Company's (Maryland), motion for summary judgment.
Maryland briefs two points in this appeal claiming: (1) that the trial court erred in its denial of Maryland's motion for summary judgment because Holland had not purchased cargo insurance, nor did Holland's insurance policies provide it with such coverage; and (2) that the trial court erred in finding an incidental contract under the broad form comprehensive general liability endorsement.
The litigation in the instant case arose out of an accident wherein a crane was damaged while Holland was transporting it. Holland is engaged in the construction business and was working as a subcontractor on a construction project within the state of Kansas in 1984. Deibel Construction Company (Deibel), the general contractor, requested that Holland transport a Pettibone Multi-crane to and from the construction site as Deibel did not have a tractor-trailer unit to haul the equipment. Holland agreed to Deibel's request. Holland did not own, lease or rent the crane, nor did it use the crane in performing its subcontract with Deibel.
On May 7, 1984, an employee of Holland orally agreed with an employee of Deibel to pick up, transport and deliver the crane at the construction site to the Bratton Corporation, the owner and lessor of the crane, at its place of business in Jackson County, Missouri. During the course of transporting the crane, the crane struck the underside of a bridge located at 85th and Troost in Kansas City, Missouri.
As a result of this accident, Maryland has paid, under the insurance issued to Holland, the total sum of $262,129.21 in damages. These payments include payments to Kansas City, Missouri, for damage to the bridge; to Kansas City Power and Light for damage to utility equipment; to Holland for damage to the Lo-Boy trailer used in transporting the crane; to Holiday Wine and Liquors for business interruption; and to Michael Donegan for personal injuries. Maryland, however, declined to pay the $37,000 claim for property damage to the crane because the insurance policies issued to Holland and in effect at the time of the accident did not provide insurance for cargo damages.
Suit was filed by Gulf Insurance Company against Holland to recover for damages paid to the owners of the crane. This case was settled by Holland for payment of $20,000. Holland incurred $12,743.85 for attorney's fees and expenses while engaged in defending and settling the suit. Holland filed a declaratory judgment action against Maryland in the circuit court of Jackson County. Eventually, the trial judge granted summary judgment in favor of Holland, denying Maryland's cross-motion for summary judgment. The trial judge found, "that there was in existence an incidental contract as that term by its expanded definition is defined in the broad form coverage and that transportation of the crane related to the conduct of Holland Corporation, Inc.'s business." Thus, the trial judge concluded that Holland was covered and the exclusions did not apply. Maryland was ordered to pay $32,743.85 to Holland. This appeal followed.
Maryland first contends that the trial court erred in its denial of Maryland's motion for summary judgment because Holland had not purchased cargo insurance and the policies issued by Maryland did not provide coverage for damage to property being transported as cargo by Holland. Initially, it must be pointed out that the denial of a motion for summary judgment is not an appealable order. Hamiltonian Federal Savings & Loan Association v. Reliance Ins. Co., 527 S.W.2d 440 (Mo.App.1975). Furthermore, the whole controversy in the instant case revolves around the physical damage to the crane. Maryland points out that to cover this type of loss, Holland should have purchased cargo insurance. However, since cargo insurance was not purchased it really makes no difference as to whether or not it would cover the loss.
The real issue, touched upon in appellant's Point I and further expanded upon in Point II can be framed quite simply: was there coverage for the loss under the policy that did exist?
An insurance policy is a contract and, as with any other contract, must be given effect by the plain terms of the agreement. Transport Indemnity Co. v. Teter, 575 S.W.2d 780, 784 (Mo.App.1978). One of the most basic rules to follow as a guide to construing the terms of the policy is to interpret those terms in accordance with the ordinary meaning of the language used. Luyties Pharmacal Co. v. Frederick Co., Inc., 716 S.W.2d 831 (Mo.App.1986). "Where language in an insurance contract is unequivocal, it is to be given its plain meaning notwithstanding the fact that it appears in a restrictive provision of a policy." Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 142 (Mo. banc 1980). Furthermore, a court must not use its "inventive powers for the purpose of creating an ambiguity when none exists." Luyties Pharmacal Co. v. Frederick Co., Inc., supra, 716 S.W.2d at 835 (quoting State Farm Mut. Auto. Ins. Co. v. Ward, 340 S.W.2d 635, 639 (Mo.1960)).
Although "an insurance contract reasonably susceptible of any interpretation favorable to the insured will be so construed," Bellamy v. Pacific Mut. Life Ins. Co., 651 S.W.2d 490, 495 (Mo. banc 1983), this does not mean that an ambiguity can be created where none exists. Keeping these principles firmly in mind, an examination of the insurance contract itself and the language contained therein is in order.
Maryland issued a special multi-peril general liability policy and an extension of coverage thereto which is referred to as the "broad form." The ensuing language states:
"The company will pay on behalf of the...
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CHAPTER 7 Comprehensive General Liability Exclusions for Coverage A
...Soo Line Railroad Co. v. Brown’s Crew Car of Wyoming, 694 N.W.2d 109 (Minn. App. 2005). Missouri: Holland Corp. v. Maryland Casualty Co., 775 S.W.2d 531 (Mo. App. 1989). New Hampshire: White Mountain Cable Construction Co. v. Transamerica Insurance Co., 631 A.2d 907 (N.H. 1993). New Jersey:......
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Chapter 6
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