Jones v. Mid-Century Insurance Company, No. SD 28757 (Mo. App. 11/26/2008)
| Decision Date | 26 November 2008 |
| Docket Number | No. SD 28757.,No. SD 28758.,SD 28757.,SD 28758. |
| Parties | MORRIS JONES and PAMELA BROWN, Appellants-Respondents, v. MID-CENTURY INSURANCE COMPANY, Respondent-Cross-Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Scott County, Honorable David A. Dolan, Circuit Judge.
AFFIRMED
Phillip J. Barkett, Jr. of Cape Girardeau, MO, Appellant's Attorney.
William J. Sneckenberg of Chicago, IL, Jeffrey P. Hine of Cape Girardeau, MO, Respondent's Attorney.
This case involves a dispute about the existence and amount of underinsured motorist (UIM) coverage afforded by an automobile insurance policy issued by MidC-entury Insurance Company (Mid-Century) for an accident in which Morris Jones (Jones) and Pamela Brown (Brown) were seriously injured. The trial court decided that Jones and Brown each were entitled to be paid $50,000 in UIM benefits by Mid-Century. All parties appealed. In the appeal by Jones and Brown, they contend the insurance policy actually provides each of them with $100,000 in UIM benefits. In Mid-Century's cross-appeal, the insurer contends its policy provides no UIM benefits to Jones. Finding no merit in either of these contentions, this Court affirms.
One coverage issue was whether an exclusion in the UIM coverage applied to Jones. The court ruled that issue in Jones' favor via a partial summary judgment. On appeal, this ruling is reviewed de novo. Friends of Agriculture for the Reform of Missouri Environmental Regulations v. Zimmerman, 51 S.W.3d 64, 74 (Mo. App. 2001); Rasse v. City of Marshall, 18 S.W.3d 486, 489 (Mo. App. 2000).
Thereafter, the remaining coverage issues were decided by the judge after a bench trial on stipulated facts. On appeal, the judgment in a court-tried case must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Rule 84.13(d); Strader v. Progressive Ins., 230 S.W.3d 621, 622 (Mo. App. 2007).1
Because none of the facts are in dispute, the real issue presented by these cross-appeals is whether the trial court properly interpreted and applied the provisions of the Mid-Century insurance policy. See Strader, 230 S.W.3d at 622-23. That is a question of law subject to a de novo review by this Court. Seeck v. Geico General Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007); Bickerton, Inc. v. Am. States Ins. Co., 898 S.W.2d 595, 601 (Mo. App. 1995).
Jones and Brown resided together and had two automobiles available for their use. In February 2001, Jones leased a 2001 Dodge Ram (the pickup) from Firstar Bank (Firstar) for 63 months. The lease agreement gave Jones a conditional right to purchase the pickup at the end of the lease. The title listed the owner of the pickup as "Firstar Bank NA LSR % Jones Morris D L[,]" and the Department of Revenue mailed the title to Firstar. Brown was the sole owner of a 1992 Lincoln Town Car (Town Car).
Mid-Century issued an automobile insurance policy on each vehicle. The policy covering the pickup did not include UIM coverage. The policy covering the Town Car, which was in effect between September 2004 and March 2005, did contain UIM coverage of $100,000 per person and $300,000 per occurrence.
On December 7, 2004, Jones was driving the pickup, and Brown was a passenger in that vehicle. Another vehicle driven by Sara McGee (McGee) collided with the pickup, causing serious injuries to Jones and Brown. Each one of them sustained damages of at least $150,000 as a result of the collision. The parties agree that McGee is legally liable for these damages. American Standard had issued an automobile insurance policy to McGee with liability limits of $50,000 per person and $100,000 per occurrence. Jones and Brown each received $50,000 from American Standard, which exhausted the limits of McGee's liability insurance.
Thereafter, Jones and Brown each made a claim to recover UIM benefits pursuant to the Mid-Century policy insuring the Town Car. Each of them were named insureds in the policy declarations. The Town Car was the only vehicle described in the Declarations. In relevant part, the Town Car policy contained the following provisions that are germane to the issues presented by these cross-appeals:
DEFINITIONS
Throughout this policy, "you" and "your" mean the "named insured" shown in the Declarations .... "We," "us" and "our" mean the Company named in the Declarations which provides this insurance. In addition, certain words appear in bold type. They are defined as follows: ....
Private Passenger Car means a four wheel land motor vehicle of the private passenger or station wagon type actually licensed for use upon public highways. It includes any motor home with no more than six wheels and not used for business purposes ....
Utility car means a land motor vehicle having at least four wheels actually licensed for use upon public highways, with a rated load capacity of not more than 2,000 pounds, of the pickup, panel or van type. This does not mean a vehicle used in any business or occupation other than farming or ranching ....
Your insured car means:
1. The vehicle described in the Declarations of this policy or any private passenger car or utility car with which you replace it. You must advise us within 30 days of any change of private passenger car or utility car. If your policy term ends more than 30 days after the change, you can advise us anytime before the end of that term.
2. Any additional private passenger car or utility car of which you acquire ownership during the policy period. Provided that:
a. You notify us within 30 days of its acquisition, and
b. As of the date of acquisition, all private passenger and utility cars you own are insured with a member company of the Farmers Insurance Group of Companies.
Ownership shall include the written leasing of a private passenger or utility car for a continuous period of at least six months.
3. Any utility trailer:
a. That you own, or
b. While attached to your insured car.
4. Any private passenger car, utility car or utility trailer not owned by you or a family member while being temporarily used as a substitute for any other vehicle described in this definition because of its withdrawal from normal use due to breakdown, repair, servicing, loss or destruction.
For an additional premium, it is agreed that UNDERinsured Motorist Coverage is added to your policy.
We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an UNDERinsured motor vehicle because of bodily injury sustained by an insured person. The bodily injury must be caused by an accident and arise out of the ownership, maintenance or use of the UNDERinsured motor vehicle. We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements ....
1. The difference between the amount of an insured person's damages for bodily injury, and the amount paid to that insured person by or for any person or organization who is or may be held legally liable for the bodily injury; or
2. The limits of liability of this coverage.
Coverage Designation Limits
...
U9 100/300
....
f. The amount of UNDERinsured Motorist Coverage we will pay shall be reduced by any amount paid or payable to or for an insured person;
i. by or for any person or organization who is or may be held legally liable for the bodily injury to an insured person; or
ii. for bodily injury under the liability coverage of this policy ....
a. Insured Person means:
1. You or a family member.
2. Any other person while occupying your insured car or your insured motorcycle ....
But, no person shall be considered an insured person if the person uses a vehicle without having sufficient reason to believe that the use is with permission of the owner ....
c. Underinsured Motor Vehicle — means a land motor vehicle to which a bodily injury liability bond or policy applies at the time of the accident but its limits for bodily injury liability are less than the limits of liability for this coverage ....
... Coverage does not apply to bodily injury sustained by a person while occupying any vehicle owned by you or a family member for which insurance is not afforded under this policy or through being struck by that vehicle.
(Bold emphasis in original.)
The bold type words in the above quotation all had specific definitions supplied by the policy. Some phrases like "insured person" and "underinsured motor vehicle" had specific definitions provided by the UIM coverage endorsement itself. It is undisputed that: (1) Jones and Brown were insured persons because each was a named insured in the policy Declarations; and (2) McGee was driving an underinsured motor vehicle because the limits of her liability coverage were less than the limits of UIM coverage provided by the Town Car policy. The "DEFINITIONS" section of the Town Car policy contained specific, policy-wide definitions for "damages[,]" "bodily injury" and "accident[.]" It is undisputed that Jones and Brown sustained damages because of bodily injury caused by an accident, as defined by the Town Car policy.
In July 2005, Jones...
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