Hunt v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 01 December 1977
• Docket Number: No. 10144,10144
• Citation: 560 S.W.2d 280
• Parties: Marilyn Sue HUNT, Kimberly Sue Hunt, Carl Lee Hunt and Lou Ann Hunt, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 280

560 S.W.2d 280

Marilyn Sue HUNT, Kimberly Sue Hunt, Carl Lee Hunt and Lou

Ann Hunt, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent.

No. 10144.

Missouri Court of Appeals, Springfield District.

Dec. 1, 1977.

Motion for Rehearing or Transfer Denied Dec. 20, 1977.

Application to Transfer Denied Feb. 8, 1978.

Charles E. Buchanan, Buehner & Buehner, Joplin, for plaintiffs-appellants.

Karl W. Blanchard, Jr., Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.

Before STONE, P. J., and HOGAN and TITUS, JJ.

HOGAN, Judge.

Plaintiffs, who are the widow and surviving minor children of William R. Hunt, deceased, brought this action against the defendant insurer upon the uninsured motorist provisions of their policy. Upon defendant's motion, the trial court has entered a summary judgment. Plaintiffs appeal.

Preliminarily, we may say that summary judgments have not been generally favored by our courts, Pagan v. City of Kennett, 427 S.W.2d 251, 252-253(1-4) (Mo.App.1968), but it is also clear that a defendant may employ a motion for summary judgment to assert any affirmative defense which entitles him to judgment as a matter of law. Thus, when the pleadings, affidavits, admissions and the responses thereto manifestly show that the plaintiffs' action is barred by limitation, as is the case here, a summary judgment may be entered, even if some collateral, immaterial factual disputes exist. Johnson v. Grim-Smith Hospital, 453 F.2d 1253 (8th Cir. 1972); 10 C. Wright & A. Miller, Federal Practice and Procedure, § 2734 (1973). We have concluded that the motion for summary judgment was properly granted in this case.

Fairly stated, the record shows that William R. Hunt, plaintiffs' decedent, was killed in a vehicular collision on April 30, 1971. Mr. Hunt was riding a 1970 Honda motorcycle; it is alleged that one James R. Gaw struck the motorcycle while he was negotiating a left turn. Mr. Hunt was killed, and it appears that Mr. Gaw was uninsured.

Defendant had issued an automobile insurance policy to William R. Hunt and plaintiff Marilyn S. Hunt extending various coverages upon a 1966 Ford from January 27, 1971, to September 13, 1971. The policy provided uninsured motorist coverage subject to an exclusion withholding such coverage in the event the insured was not operating an "owned" vehicle. The effect of the exclusion was to confine the uninsured motorist coverage to the vehicle or vehicles described in the declarations, and the Honda motorcycle was not so described.

On May 4, 1971, some person representing the plaintiffs contacted the defendant's agent, the agent who had issued the policy, and requested that the named insureds be changed to Marilyn S. Hunt because William R. Hunt had been killed. We find no record indication that prior to the time this action was instituted, the plaintiffs ever made any formal or informal claim against the defendant under the uninsured motorist provisions of their policy. Plaintiffs in their brief say that plaintiff Marilyn Hunt sought the advice of an attorney soon after the accident; the attorney read the policy and advised plaintiff Marilyn that the exclusion noted was valid and the policy did not cover her husband's death. Nothing further was done until July 24, 1974, when this action was filed seeking recovery upon the uninsured motorist provisions of the defendant's policy. Defendant by its answer pleaded the bar of limitation as provided by § 537.100 RSMo (1969), V.A.M.S. The sole and dispositive issue presented is whether this action upon the insurance contract is barred by that statute, which provides that actions for wrongful death shall be commenced within two years. ¹ It stands admitted that plaintiffs' cause of action accrued April 30, 1971, and that no action of any sort was commenced for more than three years.

The plaintiffs vigorously argue that the trial court erred in granting the motion for summary judgment because the policy provision excluding unscheduled automobiles is void. It is now clear that such an exclusion impermissibly limits the public policy reflected in § 379.203, RSMo Supp.1975. ² Otto v. Farmers Insurance Company, 558 S.W.2d 713 (Mo.App.1977). The merits of this appeal, however, do not turn upon the validity or invalidity of the policy provision excluding unscheduled vehicles from uninsured motorist coverage. The decisive question, as noted, is whether this action is barred by the two-year statute of limitation applicable to wrongful death cases or whether the ten-year statute generally applicable to contract actions, § 516.110(1), RSMo (1969), V.A.M.S., controls.

The uninsured motorist provision of the policy in suit obligates the defendant "(T)o pay all sums which the insured or his legal representative shall be legally entitled to recover." (our emphasis). As all parties recognize, the key and operative phrase is "legally entitled to recover." The plaintiffs vigorously argue that the phrase means only that they must be able to establish fault on the part of the uninsured motorist and the absence of contributory negligence on the part of their decedent, as was held or indicated in Reese v. Preferred Risk Mutual Insurance Company, 457 S.W.2d 205, 208-209 (Mo.App.1970), and the authorities...