M.P. v. Trexis One Ins. Corp.

• Citation: 652 S.W.3d 685
• Docket Number: SD 37105
• Decision Date: 29 July 2022
• Parties: M.P., a minor, BY AND THROUGH Amanda ZIPFEL, as Next Friend, Appellant, v. TREXIS ONE INS. CORP., f/k/a Alfa Specialty Ins. Corp., Respondent.
• Court: Court of Appeal of Missouri (US)

652 S.W.3d 685

M.P., a minor, BY AND THROUGH Amanda ZIPFEL, as Next Friend, Appellant,
v.
TREXIS ONE INS. CORP., f/k/a Alfa Specialty Ins. Corp., Respondent.

No. SD 37105

Missouri Court of Appeals, Southern District, Division One.

Filed: July 29, 2022
Rehearing and/or Transfer Denied August 24, 2022
Application for Transfer Denied October 4, 2022

Appellant's attorney: Thomas G. Morrissey, Springfield, MO.

Respondent's attorney: Cara R. Rose, Springfield, MO.

JACK A. L. GOODMAN, J.

Appellant sought to recover under the uninsured motorist provisions of an automobile insurance policy. The trial court denied relief, finding that the liability did not arise out of use of an uninsured motor vehicle as defined in the policy. Appellant contends the trial court erred in granting judgment on that finding. We affirm.

Background

Castle View Estates (the "RV Park") is a membership-owned RV park. The RV Park is private property. Castle View Drive, a road that runs through the RV Park, is owned and maintained not by the state or a political subdivision, but by the RV Park. Because Castle View Drive is a private road, the property owners determine usage rules, such as a speed limit. Any road signage is privately posted, not posted by the state. No state-issued driver's license is required to operate a vehicle on Castle View Drive.

M.P. was visiting people he knew at the RV Park. They decided to go to the tennis and basketball courts. Some rode in golf carts; M.P. rode a bicycle. On the way to the courts, M.P. was struck by a golf cart and injured. The accident occurred "in the general area of the parking spaces adjacent

652 S.W.3d 688

to Castle View Drive," inside the RV Park.

At the time of the accident, M.P. was an insured under an automobile insurance policy issued by Alfa Specialty Insurance Corporation, which later became Trexis One Insurance Corporation ("Trexis"). The policy provided that Trexis would pay compensatory damages an insured is legally entitled to recover for an insured's bodily injury, caused by an accident, for which liability arose out of an owner or operator's ownership, maintenance, or use of an uninsured motor vehicle. The policy excludes from the definition of "uninsured motor vehicle" any vehicle or equipment "[d]esigned mainly for use off public roads while not on public roads."¹

Appellant filed a claim under the uninsured motorist ("UM") provisions of the Trexis policy. Trexis denied the claim because the golf cart was designed mainly for use off public roads and the accident occurred in a parking lot, which was not a public road. Appellant filed suit. The parties filed competing motions for summary judgment, both of which were denied.

At the bench trial, the material dispute was whether liability arose out of use of the golf cart on a public road. After taking evidence, the trial court ruled in favor of Trexis, finding: (1) Castle View Drive was not open for free and common use by the public and was not used by the public freely and commonly; (2) the golf cart was not on a public road at the time M.P. was injured and the accident did not arise out of the golf cart's ownership, maintenance, or use on a public road; and therefore (3) Appellant did not show liability of the operator of the golf cart arose out of use of an uninsured motor vehicle as defined in the policy.

Principles of Review

"The judgment is presumed correct, and the party challenging the judgment bears the burden of proving it erroneous. In this court-tried case, our review is governed by Rule 84.13(d) and Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976)." O'Connell v. Deering , 631 S.W.3d 649, 652 (Mo. App. 2021) (internal citation omitted). "We are required to affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Id.

This appeal involves mixed questions of law and fact. Interpretation of an insurance policy is a question of law we review de novo. Seeck v. Geico Gen. Ins. Co. , 212 S.W.3d 129, 132 (Mo. banc 2007). The court's application of the law to the stipulated facts also is a matter for de novo review. White v. Dir. of Revenue , 321 S.W.3d 298, 308 (Mo. banc 2010). However, we defer to the trial court's assessment of the evidence when any facts relevant to an issue are contested. Pearson v. Koster , 367 S.W.3d 36, 44 (Mo. banc 2012). In the absence of specific findings of fact, the trial court's findings are considered as having been found in accordance with the judgment. Rule 73.01(c) (2020).

The burden of proving coverage is on the insured where, as here, the issue is whether coverage exists under policy definitions. State Farm Mut. Auto. Ins. Co. v. Stockley , 168 S.W.3d 598, 600 (Mo. App. 2005). " ‘Definitions, exclusions, conditions and endorsements are necessary provisions in insurance policies. If they are

652 S.W.3d 689

clear and unambiguous within the context of the policy as a whole, they are enforceable.’ " Floyd-Tunnell v. Shelter Mut. Ins. Co. , 439 S.W.3d 215, 220 (Mo. banc 2014) (quoting Todd v. Mo. United Sch. Ins. Council , 223 S.W.3d 156, 163 (Mo. banc 2007) ). When a term within an insurance policy is clearly defined, that definition controls and we look nowhere else. Hobbs v. Farm Bureau Town & Country Ins. Co. of Mo. , 965 S.W.2d 194, 197 (Mo. App. 1998). When a term within an insurance policy is undefined, we will apply the plain meaning, i.e., the meaning that would be attached by an ordinary person of average understanding if purchasing insurance. Progressive Preferred Ins. Co. v. Reece , 498 S.W.3d 498, 502 (Mo. App. 2016).

Discussion

An automobile liability insurance policy must include coverage "for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury ... resulting therefrom." Section 379.203 RSMo. (2016). "The purpose of UM coverage is to take the place of the liability coverage the insured would have received had he or she been involved in an accident with an insured motorist." Floyd-Tunnell , 439 S.W.3d at 220. Because Missouri's Motor Vehicle Financial Responsibility Law does not extend to off-road vehicles involved in off-road accidents, automobile insurers may exclude such vehicles from UM coverage when they are off public roads. State ex rel. Toastmaster, Inc. v. Mummert , 857 S.W.2d 869, 871 (Mo. App. 1993) (citing Meeks v. Berkbuegler , 632 S.W.2d 24 (Mo. App. 1982) ).² An uninsured motorist's liability is determined under tort law, but the insurer's obligation to pay UM damages to its insured is governed by contract law. Bryan v. Peppers , 323 S.W.3d 70, 74 n.2 (Mo. App. 2010).

The parties stipulated that the golf cart was a motor vehicle designed mainly for use off public roads. While this may remove the golf cart from motor vehicle licensing and financial responsibility requirements, its design alone does not remove it from consideration as a motor vehicle for UM purposes. "Even though a vehicle is designed exclusively for off-road use, if it was actually being operated on a public highway at the time of the accident, such...