Killpack v. Farm Bureau Town & Country Ins. Co., Nos. WD
| Court | Court of Appeal of Missouri (US) |
| Citation | 861 S.W.2d 608 |
| Docket Number | Nos. WD |
| Parties | Scott and Kathleen KILLPACK, Respondents, v. FARM BUREAU TOWN & COUNTRY INSURANCE CO., Appellant. Scott and Kathleen KILLPACK, Appellants, v. FARM BUREAU TOWN & COUNTRY INSURANCE CO., Respondent. 47308, WD 47343. |
| Decision Date | 20 July 1993 |
Page 608
v.
FARM BUREAU TOWN & COUNTRY INSURANCE CO., Appellant.
Scott and Kathleen KILLPACK, Appellants,
v.
FARM BUREAU TOWN & COUNTRY INSURANCE CO., Respondent.
Western District.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Aug. 31, 1993.
Application to Transfer Denied Oct. 26, 1993.
Page 609
Edward C. Clausen, Jefferson City, for appellant/respondent.
John Roark, Columbia, for respondents/appellants.
Before SPINDEN, P.J., and FENNER and HANNA, JJ.
FENNER, Judge.
Appellant/cross-respondent, Farm Bureau Town & Country Insurance Company of Missouri (Farm Bureau), issued a policy of automobile insurance to respondents/cross-appellants, Scott Killpack and Kathleen Killpack. While operating his insured automobile, Scott Killpack was injured in a collision which was caused by the driver of another automobile, Christine Brinley.
Ms. Brinley was insured by Farmers Insurance Company (Farmers) under a policy with limits of $50,000 per person. The Killpacks settled their claim against Brinley for the policy limit of $50,000. Thereafter, Scott and Kathleen Killpack brought suit against Farm Bureau alleging breach of contract for failure to pay pursuant to policy provisions for underinsured motorist (UIM) coverage.
The Killpacks' policy of insurance with Farm Bureau contains a UIM endorsement which provides coverage of $100,000 per person
Page 610
and $300,000 per accident. The parties stipulated before the trial court that Scott Killpack suffered damages from the collision in excess of $150,000 and that his wife, Kathleen, suffered damages for loss of consortium in the amount of $25,000.Farm Bureau appeals the order of summary judgment by the trial court to the extent that the court held that Scott Killpack was entitled to recover the entire $100,000 limit under Farm Bureau's policy without set off against said limit of the $50,000 recovered from Brinley's insurer, Farmers. The Killpacks appeal the order of summary judgment challenging the court's finding that the UIM endorsement and policy did not provide a separate $100,000 limit of liability for Kathleen Killpack's claim for loss of consortium. Both appeals challenge the trial court's interpretation of the UIM coverage under the Killpacks' policy with Farm Bureau.
In both appeals, we must consider the rules of construction of insurance contracts. First of all, where insurance policies are unambiguous, the rules of construction are inapplicable, and absent a public policy to the contrary, the policy will be enforced as written. Krombach v. Mayflower Ins. Co., 827 S.W.2d 208, 210 (Mo. banc 1992). An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of words used in the contract. Id. Language is ambiguous if it is reasonably open to different constructions. Id. The language used will be viewed in the meaning that would ordinarily be understood by the layman who bought and paid for the policy. Id. Any ambiguity is construed against the insurer. Id.
Farm Bureau argues that the trial court erred in interpreting the UIM endorsement under its policy of insurance to require set off of the amount Scott Killpack received from Brinley's insurance carrier, Farmers, against Scott Killpack's total damages, rather than against the UIM policy limit in the Farm Bureau policy. In other words, Farm Bureau argues that the trial court erred in allowing Scott to recover $100,000, an amount representing Scott's total damages of $150,000 less the $50,000 that Scott received from Farmers. Instead, Farm Bureau argues, the trial court should only have allowed Scott to recover $50,000, an amount representing the $100,000 UIM policy limit less the $50,000 Scott received from Farmers.
In regard to the set off question, the relevant provisions in the policy of Farm Bureau provide as follows:
UNDERINSURED MOTORIST COVERAGE ENDORSEMENT ...
In consideration of the premium paid and subject to the Insuring Agreements, Definitions, Conditions and Endorsements of the policy to which this endorsement is attached, it is understood and agreed that the Company will pay all sums which a "person insured" is legally entitled to recover from the owner and/or operator of an "underinsured vehicle," because of bodily injury sustained by a "person insured" and caused by accident....
Coverage under this endorsement shall be applicable only after the limits of liability under any bodily injury bonds or insurance policies have been exhausted by payments of judgments or settlements.
"UNDERINSURED MOTOR VEHICLE" as used in this endorsement shall mean a motor vehicle ... with respect to the ownership, maintenance or use of which there is a bodily injury liability bond or insurance policy applicable at the time of the accident, but its limit for bodily injury liability is less than the limit of liability for this coverage as stated in the declarations (Coverage A) of this policy.
* * * * * *
All sums payable under this endorsement shall be reduced by any amount paid to a person insured, or his legal representative, by any individual or organization who may be legally liable to the person insured as a result of bodily injury arising from an accident. In no event shall all sums recoverable by a "person insured" exceed the limits stated under Coverage A, limits of liability.
Page 611
Coverages provided under this endorsement shall be excess of any applicable automobile liability insurance.
* * * * * *
(emphasis added).
The coverage as stated in the declarations (Coverage A) of the Farm Bureau policy is $100,000 per person and $300,000 per accident.
Farm Bureau takes the position that the language "all sums payable under this endorsement" unambiguously limits recovery to the UIM endorsement limit and that any recovery from a third party is to be set off against said limit. Farm Bureau also argues that the language "[i]n no event shall all sums recoverable by a 'person insured' exceed the limits stated under Coverage A, limits of liability"...
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