Jordan v. United Equitable Life Ins. Co.
| Decision Date | 31 October 1972 |
| Docket Number | No. 34471,34471 |
| Parties | Allena JORDAN, Plaintiff-Appellant, v. UNITED EQUITABLE LIFE INSURANCE COMPANY, a corporation, Defendant-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
William R. Hirsch, Clayton, for plaintiff-appellant.
Guilfoil, Symington & Petzall, Gordon G. Hartweger, St. Louis, for defendant-respondent.
Allena Jordan appeals from a judgment of the Circuit Court in the City of St. Louis entered December 23, 1971, sustaining defendant-respondent's motion to dismiss on the grounds that the amended petition '. . . fails to state claim upon which relief can be granted against the defendant.' The sole issue presented on this appeal, which is one of first impression in this state, is whether, under these bizarre circumstances, the beneficiary of an insured may recover from the insurer under a policy which provides that the insurance company insures against loss from 'accidental bodily injury', provided that such bodily injuries are caused 'solely by reason of an automobile . . . accident.' We hold that the beneficiary may not, and affirm the judgment of the trial court.
Allena Jordan is the named beneficiary of a limited policy issued by United Equitable Life insurance Company which was in force at the time of the insured's tragic death. The insured, Floyd Jordan, was a taxicab driver for Marcella Cab Company in St. Louis. While operating his cab he was robbed and shot to death by a passenger. According to the petition, the incident '. . . commenced within said taxicab, where decedent was first assaulted, and said assault continued and his body was deposited in an alley . . .'
The insuring clause of the policy in question states that United Equitable Life Insurance Company 'DOES HEREBY INSURE the owner of this policy . . . against loss, as herein limited and provided, from accidental bodily injury sustained while driving, riding in, leaving or entering any automobile . . . for business or pleasure during the term of this policy, provided such bodily injuries are caused solely by reason of an automobile . . . accident . . .' (Emphasis added.)
Appellant, as beneficiary, demanded payment from respondent, and after the respondent refused to pay, appellant commenced this action on August 15, 1971. An amended petition was filed on November 10, 1971, seeking to recover payment of the $2,500 benefit, damages for vexatious refusal to pay, and attorney's fees. Thereafter, the respondent filed a motion to dismiss, which was sustained on December 23, 1971, and the amended petition dismissed. From that judgment Allena Jordan appealed to this Court.
The appellant urges: (1) that the term accident, as used in the insuring clause, encompasses and embodies a felonious assault within the automobile because death by felonious assault is death by 'accident' or 'accidental means' as those terms are used in Missouri, and because 'accident' pertains to the acts or conduct of the insured which result in something 'unusual, unexpected and unforeseen,' and (2) that the policy insures the drive because the exclusionary clause should be construed only as a limitation as to the 'place' of the accidental event, and not a limitation as to the cause or means of the accidental event.
Both parties rely on the general principles relating to the construction of insurance policies. These are well known, oft repeated, and need not be fully detailed. A brief summary will suffice.
The construction of insurance contracts is governed by the same general rules as are applied to the construction of other written contracts. Plain and unambiguous language must be given its plain meaning. If the words used are ambiguous or capable of different constructions, the policy is to be construed strictly against the insurer and liberally in favor of the insured. The meaning of the terms is to be tested by the common understanding and ordinary speech of average men and women. The function of the court is not to make a contract for the parties, but to construe the language used, and has no authority to rewrite the contract. Henderson v. Massachusetts Bonding and Ins. Co., 337 Mo. 1, 84 S.W.2d 922; Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Greer v. Zurich Ins. Co., Mo., 441 S.W.2d 15.
Exceptions to liability are to be construed to give the insured the protection which he reasonably has a right to expect. Aetna Cas. and Sur. Co. v. Haas, Mo.Sup., 422 S.W.2d 316. These general rules do not, however, authorize a perversion of language or the exercise by the court of inventive powers for the purpose of creating an ambiguity. Our function is to give force and effect to the contract as it is written, Wichman v. Aetna Cas. and Sur. Co., Mo.App., 412 S.W.2d 528, and the contract should receive reasonable interpretations in order to accomplish the intention of the parties, State ex rel. State Farm Mut. Auto. Ins. Co. v. Craig, Mo.App., 364 S.W.2d 343, 349. 1
Appellant relies upon a number of decisions in life insurance and workmen's compensation cases which hold that an assault upon the...
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