Kenilworth Ins. Co. v. Cole

• Decision Date: 04 September 1979
• Docket Number: No. KCD,KCD
• Citation: 587 S.W.2d 93
• Parties: KENILWORTH INSURANCE COMPANY, Appellant, v. Rex A. COLE et al., Respondents. 29858.
• Court: Missouri Court of Appeals

Page 93

587 S.W.2d 93

KENILWORTH INSURANCE COMPANY, Appellant, v. Rex A. COLE et al., Respondents.

No. KCD 29858.

Missouri Court of Appeals, Western District.

Sept. 4, 1979.

As Modified Sept. 12, 1979.

J. Michael Cronan, Jackson & Sherman, P. C., Kansas City, for appellant.

Joe F. Willerth, Piedimonte & Cochran, Independence, Kevin E. Glynn, Miller, Simmons & Moore, Kansas City, for respondents.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SWOFFORD, Chief Judge.

The appellant (company) filed an action seeking a declaratory judgment that it did not have insurance coverage on respondent, Rex A. Cole, under an automobile liability insurance policy wherein he was the named insured, for claims arising out of an automobile accident which occurred June 15, 1975. At the time of the accident Cole was driving a Ford Mustang automobile owned by defendant Dwight V. Blackwell, a minor, and titled in the name of defendant Zula Blackwell, his mother. On that date, the Mustang came into collision with a Pontiac automobile owned by defendant Melvin Roscoe Smith and then being driven by his daughter, defendant Theresa Lucinda Smith. The other named defendants, seven in number, were occupants of the Smith or Blackwell cars at the time of the collision.

The policy of insurance involved was issued by the appellant to Rex Cole and insured him in the operation of a 1965 Ford Station Wagon, not involved in the June 15, 1975 accident.

The court below denied relief.

The company seeks judgment under the policy terms contained in Section V of the insuring clauses, which provide in pertinent part:

"V Use of other automobiles.

* * * if during the policy period such named insured * * * owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy * * * with respect to said automobile applies with respect to any other automobile, subject to the following provisions:

(d) This insuring agreement does not apply:

(1) to any automobile * * * Furnished for regular use to * * * the named insured * * * " (Emphasis supplied)

By written stipulation of the parties, filed in the court below, it was agreed "The Sole issue in this case is whether or not the 1966 Mustang automobile was 'furnished for regular use' to Rex A. Cole as provided in the policy * * * " (Emphasis supplied)

Of course, the single issue could only be determined in the court below and reviewed here in the light of the facts and circumstances disclosed by the evidence as to whether or not Blackwell did in fact furnish the Mustang automobile to Cole for "his regular use" within the meaning of the exclusionary policy provision above quoted, under applicable authorities.

The company raises as its first point of error the charge that the trial court misapplied the law of Missouri (1) in holding that the policy language "furnished for regular use" was Ambiguous; and (2) in failing to follow the law of Missouri is expressed in the cases of State Farm Mutual Automobile Insurance Company v. Western Casualty and Surety Company, 477 S.W.2d 421 (Mo. banc 1972), and Farmers Insurance Company, Inc. v. Morris, 541 S.W.2d 66 (Mo.App.1976) in declaring that the policy language in those cases was more favorable to exclude coverage than the language of the policy here involved.

At the close of all the evidence, after inquiry by the Court, counsel were granted time in which to offer suggested findings of fact and conclusions of law. If such were ever proffered to the court, they do not appear in the record. The trial court did make four findings of fact, which were, in summary: (1) the 1966 Mustang automobile driven by Cole on June 15, 1974 (sic) was owned by defendant Dwight Blackwell; (2) the Ford Station Wagon owned by Cole was ordinarily driven by Cole when he drove on business or pleasure; (3) Cole used Blackwell's Mustang on various occasions, but primarily as an aid in starting his own Ford with the use of a jumper cable when the Ford would not start; and (4) the Mustang was not "furnished for regular use" of defendant Rex A. Cole as contemplated by paragraph V(d) of Cole's automobile policy.

The trial court also declared four conclusions of law, as here summarized: (1) the automobile policy issued to Cole was in full force and effect at the time of the collision; (2) at that time Cole was covered by the provisions of such policy in the operation of the Blackwell Ford Mustang automobile; (3) the plaintiff insurance company was obligated to defend Cole on any claims or suits arising from the collision and to assume liability for his acts at the time of the aforesaid collision; and (4) plaintiff insurance company is not entitled to the declaratory judgment relief prayed for in its petition.

The trial court thereupon entered judgment in accordance with such findings and conclusions. The source of the appellant's complaint in its first point on this appeal is a Memorandum Opinion of the trial court filed with said findings, conclusions and judgment. The exact points of criticism of such opinion are the statement of the trial court:

" * * * there is 'room for construction' of the exception to the policy and it should be construed most strongly against the insurer."

and the statement:

"The language of the policy in this case is less favorable to exclusion of coverage than in State Farm v. Western Casualty, Mo. en banc, 477 S.W.2d 421 or Farmers Insurance v. Morris, Mo.App., 541 S.W.2d 66. In State Farm the exclusion applies to non-owned automobiles 'furnished or available for the frequent or regular use' of the insured; and in Farmers Insurance, the language is 'regularly or frequently used' by the insured."

In the first instance, the appellant urges that the trial court "Misapplied the Law of Missouri" in holding the policy language was "Ambiguous and Therefore Must Be Construed Against Plaintiff".

A reading of the trial court's opinion clearly reveals that it did not hold that the policy provision was "ambiguous" but that it gave "room for construction" under the facts and circumstances of this particular case. This conclusion is bolstered by the fact that the trial court cited and relied upon the case of Brugioni v. Maryland Casualty Company, 382 S.W.2d 707 (Mo.1964) and embraced the long-standing principle there stated, at l.c. 710(2-4):

"It is true as the defendants contend that it is the court's duty to interpret insurance contracts and enforce them as they are written and not to remake them. (cases cited). On the other hand, An insurance policy being a contract designed to furnish protection will, if reasonably possible, be interpreted so as to accomplish that object and not to defeat it, and, if terms of the contract are susceptible of two possible interpretations and there is room for construction, the provisions limiting or cutting down on the coverage of the policy, or avoiding liability therefor, will be construed most strongly against the insurer. (cases cited)." (Emphasis added)

See also: Giokaris v. Kincaid, 331 S.W.2d 633, 639, 641(3, 4) (Mo.1960).

The trial court obviously used the term "room for construction" as synonymous with "room for interpretation" in the light of the facts before it in this case. That such was the case is apparent from the fact that the trial court, after its comments on the exclusion clauses in State Farm v. Western Casualty, supra, and Farmers Insurance v. Morris, supra, as compared with such clause in this case (which appellant by some obscure reasoning constituted a "misapplication" of and "failure to follow" the law of Missouri) stated:

"Guidelines of the State Farm case (l.c. 424) include the type and length of use and the purpose for which the non-owned automobile is furnished. Under the facts of the present case, the use of the non-owned vehicle was for very brief periods, not for any trips of length, and primarily for use in starting the insured's car." (Emphasis added)

This Court cannot agree that the court below, as reflected in its memorandum opinion, either misapplied or failed to follow the law of Missouri. However, even assuming that such opinion contained erroneous legal or factual reasons for the result reached, this Court's review is not restricted or limited thereby, and the appellate obligation resting here in this case is clear and well-defined.

It is the duty of this Court to finally dispose of a case before it on appeal, if that is possible. Rule 84.14. When this Court considers the evidence before it, under the searchlight of controlling law, and the reasonable conclusions and inferences to be drawn therefrom, and, in so doing, concludes that in a bench-tried case the proper result was reached, the judgment or decree should be affirmed. And this is true even though the trial court may have assigned incorrect or erroneous legal or factual reasons for its judgment. What the trial court may have had in mind when the case was decided is "not determinative, if the judgment is correct on any theory". Edgar v. Fitzpatrick, 377 S.W.2d 314, 318(12) (Mo. banc 1964); City of St. Louis v. Evans, 337 S.W.2d 948, 954(12) (Mo.1960); Brown v. Montgomery, 354 Mo. 1041, 193 S.W.2d 23, 27(3) (1946); Oliver v. Fisher, 430 S.W.2d 611, 613(2) (Mo.App.1968). This long-standing principle controlling court-tried cases on appeal has properly not been diminished or altered under the present standards of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), nor revised Rule 73.01. Farm Bureau Mutual Ins. Co. v. Broadie, 558 S.W.2d 751, 753(1) (Mo.App.1977); Ryan v. Equitable Life Assur. Society, 560 S.W.2d 884, 886(1) (Mo.App.1977). The chief concern of this Court on such an appeal is the correctness of the result below and not the route by which it is reached. Helmkamp v. American Family Mutual Ins. Co., 407 S.W.2d 559, 566(8) (Mo.App.1966).

As was said in the case of Brown v. Montgomery, 354 Mo. 1041, 193 S.W.2d 23, 27(3) (1946):

"On appeal, we are not concerned with the erroneous...