Mendota Ins. Co. v. Ware
| Decision Date | 24 May 2011 |
| Docket Number | No. WD 72766.,WD 72766. |
| Parties | MENDOTA INSURANCE COMPANY, Respondent,v.Olivia WARE, by and through her Uncle and Next Friend, Jackson Ware, Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Stephen R. Bough and Matthew B. Heath, Kansas City, MO, for appellant.Ellen J. Brooke, St. Louis, MO, for respondent.Before: GARY D. WITT, P.J., and JAMES E. WELSH and ALOK AHUJA, JJ.ALOK AHUJA, Judge.
Olivia Ware, by and through her uncle and next friend, Jackson Ware, appeals the circuit court's grant of summary judgment to respondent Mendota Insurance Company in this declaratory judgment action concerning the interpretation of an automobile insurance policy issued by Mendota. Ware previously obtained a wrongful-death judgment awarding her $175,000 in damages against Mendota's insured. Although Ware's wrongful-death judgment is covered by the Policy, the parties dispute the amount of the Policy's limits of liability for bodily injury coverage. Ware argues that, because of an ambiguity, the Policy must be construed against Mendota to provide bodily injury coverage without any monetary limit. The trial court agreed with Mendota that the limit of liability for injury or death sustained by any one person is $25,000. We affirm.
On March 27, 2007, Edward Washington, Ware's father, was a passenger in a vehicle owned and operated by Charles Johnson. Johnson's vehicle was involved in an accident with another vehicle. Washington later died as a result of injuries he sustained in the accident.
Ware filed a wrongful-death lawsuit against Johnson to recover damages for Washington's death. Following a bench trial limited to damages, the circuit court entered a judgment against Johnson for $175,000 in compensatory damages.
Mendota had issued an automobile insurance policy to Johnson on January 16, 2007, which was in force on the date of the accident. Ware demanded that Mendota pay the judgment against Johnson. Mendota refused to pay more than $25,000, which it contended was the Policy's per-person limit of liability for bodily injury claims. Ware argued to the contrary that, due to a typographical error in the Policy's Declarations, the Policy was ambiguous and should be interpreted as having no effective limits of liability. Ware therefore contended that Mendota was contractually bound to satisfy the entirety of her judgment against Johnson.
On November 28, 2008, Mendota filed this declaratory judgment action, asking the circuit court to determine that the Policy was unambiguous, and that its limit of liability for bodily injury claims is $25,000 per person. Both Mendota and Ware filed motions for summary judgment. On June 30, 2010, the trial court granted Mendota's motion and denied Ware's, finding that the limit of liability for Washington's death is $25,000. This appeal follows.
Appellate review of the grant of summary judgment is de novo. The Court reviews the record in the light most favorable to the party against whom summary judgment was entered. “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” “Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law.”Kinnaman–Carson v. Westport Ins. Corp., 283 S.W.3d 761, 764–65 (Mo. banc 2009) (citations omitted). In addition, “[t]he interpretation of an insurance policy, and the determination whether coverage and exclusion provisions are ambiguous, are questions of law that this Court reviews de novo.” Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010).
Ware argues that a single-character typographical error on the Policy's Declarations page creates an ambiguity in the Policy, requiring that it be interpreted in her favor as imposing no monetary limit on the liability coverage Johnson purchased from Mendota. We begin by setting forth the relevant policy provisions.
The Declarations of Johnson's personal automobile insurance policy state in relevant part:
The coverages you have selected are shown by premium entries.
The coverage provided is subject to all the terms of this policy.
(Emphasis added.)
All parties recognize that, because the Policy's other provisions designate the property damage coverage as “Coverage B,” the letter “A” next to the words “Property Damage” should have been a “B.” It is this mistake on which Ware relies to argue that Johnson purchased unlimited bodily injury liability coverage (for a $94.00 bi-annual premium).
The Automobile Policy Booklet for the Policy begins with the following language, under the heading “Agreement”:
In return for payment of the premium and subject to all the terms of this policy, we will provide the coverages you have selected. These are shown by premium entries in the Declarations. The Declarations is a part of this policy.
The Automobile Policy Booklet contains separate parts governing coverage for liability, medical payments, uninsured motorists, and damage to the insured's vehicle. Only the Policy's liability coverage is at issue in this appeal. The liability coverage part begins with an “Insuring Agreement,” which states in its entirety:
We will pay damages for “bodily injury” (Coverage A) or “property damage” (Coverage B) for which any “insured” becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for “bodily injury” or “property damage” not covered under this policy.
The Policy contains the following provision explaining the operation of the limits of liability:
LIMIT OF LIABILITY
If the Declarations show separate limits of liability for Coverage A and Coverage B, the limit of liability shown in the Declarations for each person for Coverage A is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of “bodily injury” sustained by any one person in any one auto accident. Subject to this limit for each person, the limit of liability shown in the Declarations for each accident for Coverage A is our maximum limit of liability for all damages for “bodily injury” resulting from any one auto accident. The limit of liability shown in the Declarations for each accident for Coverage B is our maximum limit of liability for all “property damage” resulting from any one auto accident. These limits are the most we will pay regardless of the number of:
1. “Insureds”;
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the auto accident.
We first consider whether the mis-typed letter “A” creates an ambiguity in the Policy. In her briefing, Ware refers to the capitalized letter “A,” which appears next to the words “Property Damage” on the Declarations page, as an “error,” an “admitted error,” and a “blatant error.” Despite her acknowledgment that the second letter “A” is an obvious mistake, Ware contends that this single-character typographical error creates an ambiguity, because “[a]n average lay person would have found it impossible to apply the [Policy's] limits of liability due to the absence of ‘Coverage B’ from the Declarations Page.” We disagree.
As the Missouri Supreme Court has recently explained,
Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010) (emphasis added; quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). An insured is entitled to a pro-coverage interpretation of an insurance policy “ ‘if the terms are susceptible of two possible interpretations and there is room for construction.’ ” Id. at 512 (emphasis added; citation omitted); see also id. at 513 n. 7 ().
In this case, and despite the “blatant” typographical error on the Declarations page, the Policy cannot reasonably be construed to impose no monetary limit on Johnson's liability coverage, or to impose any limit on Johnson's per-person bodily injury coverage other than the $25,000 specified in the Policy's Declarations.
It would be obvious to any reasonable reader of the Policy—as Ware herself tacitly acknowledges—that the second letter “A” appearing on the Declarations page is erroneous. The “Insuring Agreement” for liability coverage is the central provision which actually imposes an indemnity obligation on Mendota, and is the first section of the Policy's...
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