Linderer v. Royal Globe Ins. Co.

• Decision Date: 05 February 1980
• Docket Number: Nos. 39866,39880,s. 39866
• Citation: 597 S.W.2d 656
• Parties: Rudolph LINDERER, Plaintiff-Respondent, v. ROYAL GLOBE INSURANCE COMPANY, Defendant-Appellant, and Millers Mutual Insurance Association of Illinois, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 656

597 S.W.2d 656

Rudolph LINDERER, Plaintiff-Respondent, v.ROYAL GLOBE INSURANCE COMPANY, Defendant-Appellant and Millers Mutual Insurance Association of Illinois, Defendant-Appellant.

Nos. 39866, 39880.

Missouri Court of Appeals Eastern District, Division One.

Feb. 5, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 18, 1980.

Applications to Transfer Denied May 13, 1980.

Ben Ely, Jr., Kortenhof & Ely, St. Louis, Ben Ely, Ely & Cary, Hannibal, for defendant-appellant, Royal Globe Ins. Co.

Emmett M. O'Brien, Willson, Cunningham & McClellan, St. Louis, for defendant-appellant, Millers Mut. Ins. Co. of Illinois.

Robert J. Robinson, Pannell, Dodson & Robinson, Festus, for plaintiff-respondent, Rudolph Linderer.

SNYDER, Presiding Judge.

PlaintiffRudolph Linderer sued defendants, Royal Globe Insurance Company and Millers Mutual Insurance Association of Illinois, for recovery under policies insuring him against damages caused by a collision with an uninsured motorist.At the time of the accident on June 1, 1975, Linderer was an employee of the Union Electric Company and was driving a vehicle owned by Union Electric.Royal Globe was the insurer of Union Electric's fleet of 1,420 motor vehicles.The policy included uninsured motorist coverage on each of the fleet vehicles in the amounts of $10,000 per person and $20,000 per accident, the minimum amounts required by statute.§ 379.203, RSMo 1969, as amended.¹Union Electric was the named insured of this policy, but coverage was provided for those occupying the vehicles.Union Electric paid a premium of $5 per vehicle for the uninsured motorist coverage furnished by Royal Globe.

Linderer was the named insured in a Millers Mutual automobile liability policy which insured two automobiles owned by Linderer.The policy provided for uninsured motorist coverage for each automobile and specified a single limit of $20,000 for each accident.Separate premiums were charged for each vehicle.

Each appellant filed a separate motion to reduce the prayer of the petition.The motions were based on policy provisions limiting recoveries under the uninsured motorist clauses to $20,000 for Millers Mutual and $10,000 for Royal Globe.The motions were denied.

The case was tried to a jury which returned a single verdict against both defendants in the amount of $200,000.The trial court apportioned the damages by awarding $160,000 against Royal Globe and $40,000 against Millers Mutual.The trial court thus permitted "stacking" of the coverages in both policies.That is, the court allowed the individual coverages for all the automobiles insured under a policy to be used to pay for damages for personal injuries incurred in a collision between a single insured automobile and another driven by an uninsured motorist.Both insurers appealed from that judgment.Millers Mutual's motion to consolidate the appeals was granted.

Royal Globe's appeal will be considered first.Part twelve of the Royal Globe policy describes the persons insured by the uninsured motorist portion:

"I.COVERAGE U-UNINSURED MOTORISTS

(Damages for Bodily Injury)

The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; . . .

II.PERSONS INSURED

Each of the following is an insured under this insurance to the extent set forth below:

(a) The named insured and any designated insured and while residents of the same household, the spouse and relatives of either;

(b) Any other person while occupying an insured highway vehicle; and

(c) Any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.

The insurance applies separately with respect to each insured, except with respect to the limits of the company's liability.

III.LIMITS OF LIABILITY

Regardless of the number of (1) persons or organizations who are insureds under this policy, (2) persons who sustain bodily injury, (3) claims made or suits brought on account of bodily injury, or (4) highway vehicles to which this policy applies;

(a) The limit of liability stated in the schedule as applicable to 'each person' is the limit of the company's liability for all damages because of bodily injury sustained by 1 person as the result of any one accident. . . ."

Royal Globe asserts it was error for the trial court to permit stacking and to refuse to give effect to the limiting clause of the policy.In support of this contention Royal Globe urges that stacking should be required only for a person who is a named insured under a policy, and not for one who is insured merely by reason of his occupancy of an insured vehicle.

The Missouri courts have not addressed the issue of stacking of uninsured motorist coverage for an occupancy insured under a fleet policy such as the one held by Union Electric.They have, however, dealt with the issue of stacking by named insureds.The decisions concerning stacking have been based on Missouri's uninsured motorist statute, § 379.203.²See: Hart, Stacking of Motor Vehicle Insurance Coverage in Missouri 2x (The Deep Pocket)(pts. 1-2), 35 Mo.Bar J. No. 3, page 173, No. 4, page 245(1979).

In Steinhaeufel v. Reliance Insurance Companies, 495 S.W.2d 463(Mo.App.1973), the court was confronted with the issue of the validity of an excess insurance clause which provided that the insurer would be liable only for the excess amount it insured over other insurance primarily available.The plaintiff was injured by an uninsured motorist while driving his employer's automobile.He suffered damages in the amount of $15,000.The employer's insurer paid $10,000, the limit of its policy, but plaintiff's insurer refused to pay the balance, relying on the excess insurance clause in its policy which also was limited to $10,000.The trial court ruled in favor of plaintiff's insurer.The court of appeals reversed, holding that the excess clause was against the public policy expressed in § 379.203 which mandates the inclusion of uninsured motorist coverage in all liability policies.This allowed the insured to claim both on his employer's insurance on the vehicle he was driving at the time of the accident and on his personal coverage up to the amount of his total damages.This decision did not permit stacking as the term is used.There were two separate insureds and two separate policies.The court simply voided the excess insurance clause because to give effect to the excess clause would have taken away the uninsured motorist coverage required by statute.

Stacking was not permitted in Automobile Club Inter-Insur. Exch. v. Diebold, 511 S.W.2d 135(Mo.App.1974).Diebold was injured by an uninsured motorist when driving a vehicle not owned by him.His single policy insured two automobiles owned by Diebold who paid a separate premium for uninsured motorist coverage on each.The policy contained a clause limiting the insurer's liability for one accident to the coverage on one vehicle.The court of appeals held the minimum uninsured motorist coverage requirement of the statute applied only to each policy, and, as the insured held only one policy, the insurer could limit its coverage.

Stacking was permitted, however, where two automobiles owned by the same insured were covered by separate policies issued by the same insurer, despite a clause in each policy limiting the insured's liability to the amount of coverage in one policy.Galloway v. Farmers Insurance Company, Inc., 523 S.W.2d 339(Mo.App.1975).Galloway rejected the philosophy that the purpose of Missouri's uninsured motorist statute was to provide the same coverage as if the uninsured motorist had carried the minimum liability insurance.Rather, the court held the statute required each policy to include the minimum amount of coverage which could not be limited by private contract.

The Missouri Supreme Court later gave its sanction to stacking in single policy situations in Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538(Mo. banc 1976).The facts in Cameron Mut. were almost identical with those in Diebold, supra.The plaintiff owned two motor vehicles which were listed separately in a single policy.Uninsured motorist coverage in the minimum statutory amount was listed for each vehicle and a separate premium charged.The policy included a limitation clause.Defendant's wife died as a result of injuries she received in a collision with an uninsured motorist.The trial court ruled the two coverages could not be stacked and that the insurer was not liable for any amount in excess of $10,000 for the uninsured motorist coverage.The Missouri Court of Appeals, Western District, reversed, held that stacking was mandatory, and the cause was taken on transfer by the Missouri Supreme Court because the Western District decision was in conflict with Diebold which had been decided by the Missouri Court of Appeals, Eastern District.

The Missouri Surpeme Court in Cameron Mut. relied heavily on two foreign cases, Tucker v. Government Employees Insurance Co., 288 So.2d 238(Fla.1973)andGreat Central Insurance Company v. Edge, 292 Ala. 613, 298 So.2d 607(1974).

The Tucker case in Florida involved a statute similar to Missouri's and a single policy issued to the claimant covering two automobiles on which separate premiums were charged for uninsured motorist coverage of $10,000 per person, $20,000 per accident.The insured's daughter, while a passenger in one of the insured automobiles, was injured through the negligence of an uninsured motorist.The plaintiff was permitted to stack the two uninsured motorist coverages.

The facts in the Edge case were similar except that the named insured was injured...