MFA Mut. Ins. Co. v. Dunlap, 35970

• Court: Missouri Court of Appeals
• Writing for the Court: GUNN; SIMEONE, P.J., and McMILLIAN
• Citation: MFA Mut. Ins. Co. v. Dunlap, 525 S.W.2d 766 (Mo. App. 1975)
• Decision Date: 20 May 1975
• Docket Number: No. 35970,35970
• Parties: MFA MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Respondent, v. Ocia DUNLAP, Defendant, and Earl L. Richardson, Jr., Defendant-Appellant. . Louis District, Division Three

Page 766

525 S.W.2d 766

MFA MUTUAL INSURANCE COMPANY, a corporation, Plaintiff-Respondent, v. Ocia DUNLAP, Defendant and Earl L. Richardson, Jr., Defendant-Appellant.

No. 35970.

Missouri Court of Appeals, St. Louis District, Division Three.

May 20, 1975.

Motion for Rehearing or Transfer Denied June 26, 1975.

Application to Transfer Denied Sept. 8, 1975.

Dearing, Richeson, Roberts & Wegmann, Hillsboro, for defendant-appellant.

Roberts & Roberts, Geoffrey L. Pratte, Farmington, for plaintiff-respondent.

GUNN, Judge.

This appeal stems from a declaratory judgment finding that a policy of insurance effected by plaintiff-respondent MFA Mutual Ins. Co. to St. Francois County Reorganized School District R--1 did not afford protection to Earl L. Richardson with respect to an automobile-school bus collision. The issue before us is whether the policy of insurance covers Earl L. Richardson.

The facts giving rise to this appeal follow. Ocia Dunlap's wife was killed when her automobile was struck from the rear by a school bus owned by St. Francois County Reorganized School District R--1. The driver of the school bus was Kenneth Owens, an employee of the school district. Earl L. Richardson was a mechanic employed by the school district who had responsibility of maintaining the school district's buses, including the bus involved in the accident which killed Ocia Dunlap's wife. Ocia Dunlap filed suit against the school district, Kenneth Owens and Earl L. Richardson seeking damages for the wrongful death of his wife. ¹ MFA has agreed that it issued a contract of liability insurance insuring the school district buses, and by reason of the policy of insurance and within the limits of its coverage, MFA has undertaken the defense of Kenneth Owens, the bus driver. However, the dispute which is central to this case is whether the policy of insurance covers Earl L. Richardson, the mechanic, That dispute forms the basis of the declaratory action which we consider on this appeal, with the trial court declaring that Earl L. Richardson was not covered under the terms of the policy.

The named insured under MFA's policy of insurance is 'Reoganized School District R--1.' The pertinent portions of the basic policy provide:

'II--Automobile Liability Insurance

'II--Automobile Liability Insurance

1. COVERAGE A--Bodily Injury Liability;

COVERAGE B--Property Damage Liability--The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

A. Bodily injury sustained by any person;

B. Property damage sustained by any person; caused by accident and arising out of the ownership, maintenance, or use of the described automobile . . .

4. Persons Insured--With respect to the insurance afforded under Coverages A and B, the following are insureds:

(a) With respect to the described automobile,

(1) the named insured . . ., (2) any other person using such automobile with the permission of the named insured . . ., provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission . . .' (emphasis added)

An endorsement to the policy of insurance provides:

2. The insurance applies only to the Named Insured, to the School District, to the School Board and the individual members thereof, and to the owner and operator of the automobile, as Insured;

3. 'School Bus' use is defined as:

(d) Operations necessary and incidental to such transportation.' (emphasis added)

The trial court rendered judgment for MFA to the effect that Earl L. Richardson was not an insured, did not have control or use of the bus at the time of the accident and was not a named insured or owner or operator of the bus; that, therefore, MFA did not owe a defense to Earl L. Richardson.

On appeal, Richardson argues that the terms of the policy are sufficiently broad to provide him with coverage. Richardson refers to paragraph 1,B of the basic policy and emphasizes that coverage is provided for damages arising out of the maintenance or use of the bus; that since Richardson was responsible for the maintenance of the bus, the policy was clearly designed to cover his activities. Richardson also asserts that maintenance of the bus is a 'use' of the bus. His excellent brief sets forth substantial law which has categorized maintenance as a use of a vehicle or from which it could be determined that a logical extension of the word 'use' would include maintenance. He then directs attention to the omnibus clause set forth in paragraph II,4 of the basic policy providing for coverage for 'any other person using' the bus and concludes that Richardson's use of the bus through the maintenance thereof places him squarely within the coverage provisions of the policy.

Richardson faces the challenge of paragraph 2 of the endorsement--which he admits does not include him, as he was not the named insured or owner or operator of the bus--and maintains that the endorsement does not change or eliminate the basic contract which provides Richardson with coverage. Richardson further argues that if there is a conflict between the basic policy which giveth coverage and the endorsement which taketh away, the conflict must be resolved against the insurance company and the policy given its broadest application in favor of coverage.

Thus, Richardson's argument is threefold: 1) that the MFA policy specifically provides coverage for damages arising out of the maintenance of the buses; 2) that maintenance is a 'use' of the bus, and under the omnibus provisions of the policy, coverage is...