Krombach v. Mayflower Ins. Co., Ltd.

• Decision Date: 06 February 1990
• Docket Number: No. 56657,56657
• Citation: 785 S.W.2d 728
• Parties: Robert M. KROMBACH, et al., Plaintiffs-Appellants, v. The MAYFLOWER INSURANCE COMPANY, LTD., Defendant-Respondent. James R. FOX, et al., Plaintiffs-Appellants, v. The MAYFLOWER INSURANCE COMPANY, LTD., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 728

785 S.W.2d 728

Robert M. KROMBACH, et al., Plaintiffs-Appellants, v. The MAYFLOWER INSURANCE COMPANY, LTD., Defendant-Respondent.

James R. FOX, et al., Plaintiffs-Appellants, v. The MAYFLOWER INSURANCE COMPANY, LTD., Defendant-Respondent.

No. 56657.

Missouri Court of Appeals,

Eastern District,

Division Five.

Feb. 6, 1990.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 7, 1990.

The John J. Frank Partnership, Mary Coffey, Toni Griesbach, St. Louis, for plaintiffs-appellants.

Vaiana & Callahan, Anthony F. Vaiana, St. Louis, fordefendant-respondent.

SIMON, Chief Judge.

In this consolidated appeal, appellants, Robert M. and Mary Krombach (Krombachs), and Joseph R. and Susan Fox (Foxes), appeal from the judgment entered in favor of respondent, The Mayflower Insurance Company, Ltd. (Mayflower), on its Motions for Summary Judgment on appellants' actions, seeking to recover for personal injuries sustained in a car accident under the underinsured motorists coverage provision of the Krombachs' personal comprehensive insurance policy issued by Mayflower. The Krombachs' policy provides for home and automobile coverage.

On appeal, appellants contend that the trial court erred in sustaining Mayflower's motions for summary judgment: (1) because Mayflower's policy specifically provides for underinsured motorist coverage over and above any coverage available as uninsured motorist coverage by inclusion of the critical sentence: "the term 'uninsured motor vehicle ' also includes an underinsured vehicle," and the policy is ambiguous in that the definition of "underinsured motor vehicle" is conspicuously absent; (2) that, if coverage is available under Mayflower's policy, any amounts payable to appellants under Part 6 of the uninsured (and underinsured) motorist provision were setoff by the $100,000 already collected from Richard Bolin, because each appellant is entitled to an additional $50,000 under Mayflower's policy since the anti-stacking clause in the policy is against public policy and therefore without effect, and the set-off provision contained in Mayflower's policy is not a credit against Mayflower's limit of liability; rather it is a credit against appellants' damages. We reverse.

Initially, we note that a motion for summary judgment shall be sustained if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 74.04(c). On appeal, we review the entire record in a light most favorable to the parties against whom judgment was entered. Martin v. State Farm Mut. Auto. Ins. Co., 755 S.W.2d 638, 639 (Mo.App.1988).

The facts are not in dispute. On August 15, 1986, Robert W. Krombach and his fourteen year old passenger, Casey Lee Fox, were struck head-on by a car driven by Richard Bolin (Bolin), who was driving under the influence of alcohol. The accident caused the death of Casey Lee Fox and the severe injuring of Mr. Krombach. At the time of the accident, Bolin was driving an automobile that was insured under an automobile policy providing liability coverage of $100,000 per person and $300,000 per accident.

The Foxes, as parents of Casey Lee Fox, brought suit against Bolin in St. Louis City Circuit Court for the wrongful death of their minor daughter. The Krombachs also brought suit against Bolin seeking damages for Mr. Krombach's injuries and Mrs. Krombach's loss of consortium.

The Foxes settled their claim against Bolin for $100,000. The Krombachs settled Mr. Krombach's claim of damages for $100,000 and Mrs. Krombach's claim for loss of consortium for $50,000.

The car that Mr. Krombach was driving when he was hit by Bolin was insured by Mayflower. The terms of the policy provided for liability coverage in the amount of $300,000 per accident, $4,000 per person medical payment, and $50,000 uninsured (and underinsured) motorist coverage. Part 6 of the Mayflower policy contains the uninsured and underinsured provision. The relevant language of Part 6 is set forth in section B which provides in pertinent part:

PART 6: UNINSURED (AND UNDERINSURED) MOTORISTS

A. WHO HAS UNINSURED MOTORISTS COVERAGE (Covered Persons)

B. UNINSURED MOTORISTS COVERAGE

We will pay damages which a Covered Person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

(a) sustained by a Covered Person; and

(b) caused by an accident.

....

By "uninsured motor vehicle " we mean a land motor vehicle or trailer of any type:

(a) with no bodily injury liability bond or policy applying at the time of the accident.

(b) with minimum legal liability bond or policy applying at the time of the accident as required by law governing the insured auto. However, the minimum is less than the Limit of Coverage of Part 6.

(c) with a bodily injury liability bond or policy applying at the time of the accident, which is less than the minimum legal Limit of Coverage where the insured auto is principally garaged.

....

The term "uninsured motor vehicle " also includes an underinsured motor vehicle. However, "uninsured motor vehicle " does not include any vehicle or equipment:

(a) owned by you or a relative ...

....

D. MAXIMUM PAYMENTS UNDER YOUR UNINSURED MOTORISTS COVERAGE

The most we will pay for all claims from a single accident is the Limit of Coverage for Uninsured Motorists Coverage shown on the Coverage Data Page. This is the most that we will pay regardless of the number of:

(a) Covered Persons;

(b) claims made;

(c) vehicles or premiums shown on the Coverage Data Page;

(d) vehicles involved in the accident.

Any amounts payable under Part 6 shall be reduced by all sums:

(a) paid because of bodily injury by or on behalf of someone who may be liable. This includes all sums paid under Part 4 of this policy.

....

Payments under this coverage will reduce the amount that a person is entitled to recover under Part 4 [liability] of this policy. Also, we will not make payments under this coverage for the same elements of loss paid or payable under the Medical Payments Coverage in Part 5.

Pursuant to this coverage provision, the Foxes and the Krombachs filed actions to recover under the underinsured motorists provision against Mayflower alleging that the limits of liability under Bolin's policy were insufficient to cover their damages. Mayflower filed its Motions for Summary Judgment on both actions, which were consolidated for the purpose of the hearing. The trial court sustained Mayflower's motions holding that the policy, "does not, under the undisputed facts, offered uninsured (underinsured) motorist coverage for the claim of Robert W. Krombach and Mary Krombach, his wife, or for the claim of Joseph R. Fox and Susan Fox, his wife, for the death of their minor daughter, Casey Lee Fox."

In Mayflower's Memorandum in Support of its Motion for Summary Judgment and in both parties' briefs on appeal, the parties agree that both the Krombachs and the Foxes are "covered persons" under Part 6 of the policy. No question exists that the accident was the result of Bolin's negligence. Since no trial on appellants' damages has occurred, the extent to which damages exceed Bolin's liability insurance has yet to be determined.

In their first point on appeal, appellants maintain that the underinsured motorist coverage afforded them in Part 6 of Mayflower's policy applies when they are injured by a driver whose own liability insurance coverage is inadequate to compensate them for their injuries. Appellants argue that coverage occurs because of the inclusion of the sentence: "The terms 'uninsured motor vehicle ' also includes an underinsured motor vehicle." They claim that this sentence creates an ambiguity because "underinsured motor vehicle" is not defined. They contend that the word "also" should be construed to mean another type of coverage is being added in addition to any coverage previously described in the policy. Therefore, they conclude that to give the sentence any meaning, the term "underinsured motor vehicle" must be defined to afford coverage where Bolin's insurance is inadequate to cover the appellant's damages.

The interpretation of the meaning of an insurance policy is a question of law. Moore v. Commercial Union Ins. Co., 754 S.W.2d 16, 18[2-4] (Mo.App.1988). In approaching the resolution of this appeal, we are mindful that the function of this court is to interpret and enforce an insurance policy as written; not to rewrite the contract. Eagle Star Ins. Co. v. Family Fun, Inc., 767 S.W.2d 623, 624 (Mo.App.1989). In construing an insurance policy, the words must be given their plain meaning, consistent with the reasonable expectations, objectives, and intent of the parties. State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 594 S.W.2d 950, 954[1-3] (Mo.App.1980).

The language of an insurance policy is ambiguous when it is reasonably and fairly open to different constructions. Nixon v. Life Investors Ins. Co. of Am., 675 S.W.2d 676, 679[5-10] (Mo.App.1984). Ambiguity arises when there is duplicity, indistinctness, or uncertainty of meaning. Id. In interpreting whether the language used in the policy is ambiguous, the words will be tested in light of the meaning which would normally be understood by the layperson who bought and paid for the policy. Robin v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 698 (Mo. banc 1982) (quoting Stafford v. Traveler's Ins. Co., 530 S.W.2d 23, 25 (Mo.App.1975)). If there is a conflict between a technical definition and the meaning which would reasonably be understood by the average layperson, the layperson's definition will be applied unless it plainly appears that the technical meaning is intended. Greer v. Zurich Ins. Co., 441 S.W.2d 15, 27[12-14] (1969). To determine what meaning was intended, the ambiguous phrase is...