Kisling v. MFA Mut. Ins. Co.

• Decision Date: 17 January 1966
• Docket Number: No. 8462,8462
• Citation: 399 S.W.2d 245
• Parties: Thelma KISLING, Plaintiff-Respondent, v. MFA MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 245

399 S.W.2d 245

Thelma KISLING, Plaintiff-Respondent, v. MFA MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.

No. 8462.

Springfield Court of Appeals, Missouri.

Jan. 17, 1966.

Motion for Rehearing or to Transfer Denied Jan. 31, 1966.

Application to Transfer Denied March 14, 1966.

Wangelin & Friedewald, Poplar Bluff, for defendant-appellant.

Bloodworth & Bloodworth, Poplar Bluff, for plaintiff-respondent.

STONE, Presiding Judge.

In this jury-tried case, plaintiff Thelma Kisling obtained a verdict and judgment for $8,000 under the uninsured motorist coverage afforded by an automobile insurance policy (hereinafter referred to as the policy) issued by defendant MFA Mutual Insurance Company to plaintiff. Defendant appeals.

About 2:30 P.M. on June 7, 1963, plaintiff was driving her insured 1960 Ford automobile at a speed of about thirty miles per hour in a northerly direction on the east (her right-hand) side of the center line of the two-lane, twenty-foot concrete roadway on U.S. Highway 67 near Poplar Bluff, Mossouri. The weather was clear and the roadway was dry. As Albert Mangrum, subsequently identified as an uninsured motorist, approached from the north, southbound on Highway 67, plaintiff observed that he 'was weaving but . . . was still in his lane of traffic'; but, when the two vehicles were only a few feet apart, Mangrum 'jerked over' the center line and, as plaintiff 'whipped' her automobile to her right, the left front portion of Mangrum's southbound Chevrolet collided with the left front portion of plaintiff's northbound Ford.

Another motorist, Cora Brent, northbound in her Rambler automobile, was following plaintiff at a distance which plaintiff declined to estimate upon trial but, in a deposition, had approximated at 'about a car's length.' Whatever the precise intervening distance may have been, within 'a second or two or three' after the southbound Mangrum Chevrolet collided with the front end of plaintiff's Ford, the northbound Brent Rambler ran into the rear end of it.

By the time Trooper Link of the Missouri State Highway Patrol reached the scene of accident 'shortly after it happened,' Mangrum had departed in his Chevrolet, the damage to which was confined to a 'bent' left front fender. Link immediately went in search of Mangrum who, when located at a store more than a mile distant, 'was intoxicated.' Returning to the scene of accident, Link found all of the debris in the northbound lane on the east side of the center line of the highway, and both plaintiff's Ford and the Brent Rambler on the east shoulder headed north, with skid marks twenty feet in length leading to the Ford and skid marks sixty feet in length leading to the Rambler. Link estimated the damage to the front end and the rear end of plaintiff's Ford at $150 and the damage to the front end of the Brent Rambler at $200.

Twelve days after the accident, to wit, on June 19, 1963, and before her attorneys knew that Mangrum was uninsured, plaintiff instituted in the Circuit Court of Butler County a damage suit for personal injuries styled Thelma Kisling, plaintiff vs. Albert Mangrum and Cora Brent, defendants (hereinafter referred to as the damage suit). In due time, an answer was filed on behalf of defendant Brent by attorneys employed by her liability insurance carrier, and answer and counterclaim were filed on behalf of defendant Mangrum by an attorney of his choice, who informed plaintiff's attorneys that Mangrum was uninsured. Thereupon, by letter dated July 8, 1963, plaintiff's attorneys advised MFA that defendant Mangrum had filed a counterclaim in the damage suit, enclosed a copy thereof, requested that MFA (under the liability coverage afforded by the policy) defend against Mangrum's counterclaim, notified MFA that Mangrum was an uninsured motorist, and pointed out that the policy afforded uninsured motorist coverage which 'would apply' to Mangrum. Shortly thereafter, Poplar Bluff attorneys employed by MFA filed in the damage suit a reply to the counterclaim of defendant Mangrum. 'On several occasions' plaintiff's attorneys inquired of the MFA attorneys 'about the possibility of settling' plaintiff's claim under the uninsured motorist coverage afforded by the policy, and the latter made what plaintiff's attorneys regarded as 'a nominal offer,' the amount of which was not fixed in the record more definitely than that it was less than $1,200.

After the damage suit had been pending for several months, one of plaintiff's attorneys informed the MFA attorneys 'that I was going to settle by way of a covenant not to sue with the insurance carrier of Cora Brent' and then proceed directly against MFA under uninsured motorist coverage. On May 15, 1964, plaintiff did settle with defendant Brent, received $1,800 in cash from her liability insurance carrier, and executed a formal covenant not to sue her. Thereafter, the damage suit was dismissed without prejudice as to defendant Brent on June 1, 1964, and as to defendant Mangrum on June 23, 1964; and, on the latter date, defendant Mangrum dismissed his counterclaim in the damage suit without prejudice.

In the meantime, to wit, on May 27, 1964, plaintiff had instituted this action against MFA under the uninsured motorist coverage afforded by Part V of the policy, whereby MFA contracted to 'pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured . . . provided, that determination as to whether the insured . . . is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured . . . and [MFA] or, if they fail to agree, by arbitration.' In its answer, MFA pleaded that, by virtue of the aforesaid settlement of plaintiff's claim against Cora Brent without the prior written consent of MFA, she (plaintiff) was precluded from recovery in the instant suit by the 'Exclusion' in Paragraph 4(b) of Part V of the policy (hereinafter referred to as the consent exclusion), which provides that the uninsured motorist coverage 'does not apply . . . to bodily injury to an insured with respect to which such insured . . . shall, without the written consent of [MFA], make any settlement with, or prosecute to judgment any action against any person or organization who may be legally liable therefor.' And, on this appeal, MFA's sole point is that the trial court erred in refusing to direct a verdict for MFA, because 'plaintiff, having executed a covenant not to sue the insured motorist [defendant Brent in the damage suit] without the written consent of [MFA], was excluded from the benefit of uninsured motorist insurance coverage' in the policy. Under this point, counsel argue (a) that plaintiff's execution of a covenant not to sue Cora Brent constituted a 'settlement' with her (which plaintiff does not, and could not well, deny) and (b) that the language of the consent exclusion is clear and unambiguous and the trial court's refusal to direct a verdict for MFA 'had the effect of rewriting the contract of insurance.'

On the other hand, plaintiff undertakes to escape from the consent exclusion and to support the trial court's ruling on three grounds, to wit, (1) that the consent exclusion was applicable only as to any settlement with uninsured motorist Mangrum, (2) that the consent exclusion 'is void because it is against public policy and seeks to oust jurisdiction of the courts,' and (3) that, 'by refusing to negotiate a settlement [of plaintiff's claim under uninsured motorist coverage] or defend Mangrum in the original [damage] suit,' MFA 'waived' the consent exclusion and 'is estopped' from relying thereon. We treat of these seriatim.

Was the consent exclusion applicable only as to any settlement with uninsured motorist Mangrum? We recognize the general principle, upon which instant plaintiff relies, that, insofar as the language of an insurance policy may be ambiguous, i. e., fairly and reasonably 'susceptible of interpretation in opposite ways' [State ex rel. Northwestern Mut. Life Ins. Co. v. Bland, 354 Mo. 391, 402, 189 S.W.2d 542, 549(23), 161 A.L.R. 423; J. E. Blank, Inc. v. Lennox Land Co., 351 Mo. 932, 957, 174 S.W.2d 862, 868], that interpretation most favorable to the insured must be adopted. See cases collected in 16 West's Missouri Digest, Insurance, k146(3), subd. b. But this principle does not authorize courts, under the guise of interpretation or construction, to alter or rewrite a policy [Forir v. Toman, Mo., 202 S.W.2d 32, 34(4); Ward v. Gregory, Mo.App., 305 S.W.2d 499, 503-504; Gage v. Connecticut General Life Ins. Co., Mo.App., 273 S.W.2d 761, 763(3), 47 A.L.R.2d 1234] or to change its meaning by a perversion of language or by conjuring up an ambiguity. Aetna Life Ins. Co. of Hartford, Conn. v. Durwood, Mo., 278 S.W.2d 782, 786(3); Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 435, 222 S.W.2d 76, 78(1); Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 370, 1 S.W.2d 99, 102, 57 A.L.R. 615. And, where there is no ambiguity and thus no room for interpretation or construction, the unequivocal language of the policy must be given its plain meaning and the terms of the contract must be enforced. State ex rel. Mutual Ben. Health & Acc. Ass'n. v. Shain, 350 Mo. 422, 427, 166 S.W.2d 484, 487(1); State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 627, 127 S.W.2d 675, 676(2); State ex rel. Mutual Ben. Health & Acc. Ass'n v. Trimble, 344 Mo. 920, 925, 68 S.W.2d 685, 687(1).

The plain and positive language of the consent exclusion makes the uninsured motorist coverage inapplicable to bodily injury with respect to which the insured shall, without the prior written consent of MFA 'make any settlement with . . . any person or organization who may be legally liable therefor.' (All emphasis herein is ours.) Other courts have found the...