McDonnell v. Economy Fire & Cas. Co.

• Decision Date: 31 December 1996
• Docket Number: No. 70039,70039
• Citation: 936 S.W.2d 598
• Parties: Judith McDONNELL, Plaintiff-Respondent, v. ECONOMY FIRE & CASUALTY CO., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 598

936 S.W.2d 598

Judith McDONNELL, Plaintiff-Respondent, v. ECONOMY FIRE & CASUALTY CO., Defendant-Appellant.

No. 70039.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 31, 1996.

William F. James, Lindsay A. Dibler, Wuestling & James, St. Louis, for Appellant.

Robert H. Pedroli, Daniel J. Gauthier, Joel E. Brown, Clayton, for Respondent.

KAROHL, Judge.

Defendant-Appellant, Economy Fire and Casualty Company (Economy) offers one claim of trial court error in support of its position it is entitled to summary judgment on plaintiff-insured's claim for medical expense incurred by her after a motor vehicle collision. The trial court rejected Economy's motion for summary judgment and granted Judith McDonnell's (insured) motion for summary judgment in the amount of the policy limits contained in a commercial automobile liability policy.

The point on appeal is:

The Court erred in sustaining Plaintiff's Motion for Summary Judgment and in denying Defendant's Motion for Summary Judgment in that the clear and unambiguous language of Defendant's policy issued to plaintiff specifically and expressly excludes medical payment coverage for injuries sustained by a named insured while occupying a vehicle owned by the insured or available for an insured's regular use which is not a covered automobile.

We review the grant of summary judgment and the denial of summary judgment, de novo. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). In the present case the basic facts are undisputed. Accordingly, the disputed issue is a matter of interpretation and application of an insurance contract, a matter of law. Centermark Properties v. Home Indemnity Company, 897 S.W.2d 98, 100 (Mo.App. E.D.1995). We accept the written policy as an expression of the parties' agreement and will give effect to the intentions of the parties as disclosed by clear and unambiguous language. Childers v. State Farm Fire & Casualty Co., 799 S.W.2d 138, 140 (Mo.App.1990). Our duty is to interpret and enforce an insurance contract as written. Protective Cas. Ins. Co. v. Cook, 734 S.W.2d 898, 905 (Mo.App.1987).

The insured purchased an automobile liability insurance policy from Economy for their 1981 GMC pickup truck. The policy defines covered autos as those described on "the Declarations." The pickup truck owned by the insured is the only covered auto. The policy defined an insured as "any person occupying a covered auto or a temporary substitute for a covered auto." For purposes of this opinion there is no dispute that the insured's covered automobile, the 1981 GMC pickup truck, was out of service because of repairs and that Judith McDonnell, a named insured, was injured while operating a 1984 Chevrolet Camaro Z-28, owned by the insured, as a temporary substitute for the covered vehicle.

Economy refused to honor the insured claim because of an exclusion for auto medical payment coverage which reads:

C. EXCLUSIONS

This insurance does not apply to any of the following:

2. Bodily injury sustained by you or any family member while occupying or struck by any vehicle (other than a covered auto) owned by you or furnished or available for your regular use.

As applied to the present facts the unambiguous meaning of the exclusion is there is no medical payment coverage for bodily injury for insured while occupying an owned vehicle which is not a covered auto. The trial court found, on undisputed facts, Judith McDonnell was "insured" and the "Camaro was a temporary substitute for a covered auto at the time of the accident." It concluded the exclusion relied on by Economy could not apply to the Camaro because it "would render the temporary substitute coverage non-existent." It then found "a temporary substitute for a covered auto is a 'covered auto' for purposes of the medical payments coverage, and that exclusion C.2 does not apply." In the alternative, the trial court considered the exclusion provisions ambiguous on the issue of...