MFA Mut. Ins. Co. v. Home Mut. Ins. Co., WD

• Decision Date: 20 October 1981
• Docket Number: No. WD,WD
• Citation: 629 S.W.2d 447
• Parties: MFA MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, Western Insurance Company, Plaintiff-Appellant, Jimmie Dale Clayton, Hirschbach Motor Lines and Beulah Sartin, Administratrix of the Estate of Stephen Lee Sell, Plaintiffs, v. HOME MUTUAL INSURANCE COMPANY, Larry Dixon Palmer, Dixon Palmer, and Larry McCoy, Defendants-Respondents. 32058.
• Court: Missouri Court of Appeals

Page 447

629 S.W.2d 447

MFA MUTUAL INSURANCE COMPANY, Plaintiff-Respondent Western Insurance Company, Plaintiff-Appellant Jimmie Dale Clayton, Hirschbach Motor Lines and Beulah Sartin, Administratrix of the Estate of Stephen Lee Sell, Plaintiffs, v. HOME MUTUAL INSURANCE COMPANY, Larry Dixon Palmer, Dixon Palmer, and Larry McCoy, Defendants-Respondents.

No. WD 32058.

Missouri Court of Appeals, Western District.

Oct. 20, 1981.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Nov.

24, 1981.

Application to Transfer Denied Jan. 18, 1982.

Ross Eshelman, Clinton, for appellant.

William J. Cason, Michael X. Edgett, Fred R. Bunch, Clinton, for respondent MFA.

W. James Foland, William L. Yocum, Kansas City, for respondent Home Mut.

Edward J. Murphy, Butler, for respondents Palmer, et al.

Before TURNAGE, P. J., and PRITCHARD and CLARK, JJ.

CLARK, Judge.

This is an action in declaratory judgment for adjudication of coverage under five automobile liability insurance contracts. The parties are the insurance carriers, the policyholders and the damage claimants. After dismissal of a prior appeal for want of a final judgment, ¹ the trial court again took up the cause on stipulated facts and entered judgment. This appeal by one of the insurers, Western, contends in the first and dispository point that the trial court misapplied the law to exonerate another party-insurer, Home Mutual, from responsibility under a policy it had issued. We conclude that the contention is correct and reverse the judgment.

The relevant facts of the case were stipulated and are thus undisputed. The number of parties, insured vehicles and insurance contracts, however, present a challenge, both to summary description and preliminary definition of the issues. In the following recitation of facts, the format of matching insurance carrier with policyholder is observed in aid of clarification.

The Home Mutual Policy

Stephen Lee Sell, now deceased, owned two vehicles, a 1970 Chevrolet and a 1965 Chevrolet, and he had possession of but did not hold title to a 1970 Dodge. At all relevant times, Home Mutual had in force an automobile liability insurance policy which named Sell as the insured and which listed as the vehicles covered by the policy the two Chevrolet cars. Although Sell had possession of the Dodge for nearly one year, he did not report the car to Home Mutual or make any application for extension of coverage to include that vehicle.

The Western Policies

Larry McCoy, a claimant for personal injuries sustained in the accident which killed Sell, owned three vehicles, ² a 1977 Ford pickup, a 1976 Ford sedan and a 1964 Ford grain truck. At all relevant times, Western had in force an automobile liability insurance policy which named McCoy as the insured and which listed the three Ford vehicles as covered by the policy. The 1977 Ford pickup was being driven by McCoy at the time of the accident with Sell.

Larry Palmer, an additional claimant for personal injuries, was riding with McCoy as a passenger in the Ford pickup at the time of the accident. Larry, the son of Dixon and Angell Palmer, owned a 1951 Ford and a 1976 Jeep. Those vehicles, together with two vehicles owned by Dixon and Angell, were covered by automobile liability insurance policies issued by Western. Those policies, in force at all relevant times, named Dixon and Angell Palmer as insureds. None of the Palmer cars was involved in the accident with Sell.

The MFA Policy

Dixon Palmer, who asserts no affirmative claim here on his own behalf, owned yet another vehicle which was titled in his name alone. At all relevant times, MFA had in force an automobile liability insurance policy covering this vehicle and naming Dixon Palmer as insured. Larry Palmer made his home with his parents and was thus a resident of their household as the term is applicable to automobile insurance contracts.

The Accident

On August 15, 1977, Sell was driving the 1970 Dodge when he collided with a tractor-trailer unit and then with the vehicle occupied by McCoy and Palmer. The accident resulted in Sell's death, injuries to McCoy and Palmer and damage to McCoy's pickup truck and to the tractor-trailer for which Jimmie Dale Clayton and Hirschbach Motor Lines have a property damage claim of $4848.

Sell had acquired possession of the 1970 Dodge from one Nadine Junkin on August 25, 1976, almost one year before the accident. He paid her the purchase price of $400.00 but never acquired title transfer or title registration. The record title to the Dodge was in Larry B. Junkin, Nadine's former husband. At the time of the transaction with Sell, Nadine endorsed her former husband's name and gave Sell the title certificate, but without notarial acknowledgement. When delivered to Sell, the Dodge had no license plates.

On the date Sell acquired the Dodge from Nadine Junkin, he drove it to his home in Clinton and parked the vehicle. Transfer of title registration was not processed and the vehicle was never licensed. From the date the car was first driven to Sell's home on August 25, 1976, until the date of the accident, August 15, 1977, neither Sell nor anyone else drove the car. During this same time period, Sell had available to him the other two cars insured under the Home Mutual policy. The reason Sell had decided to drive the Dodge the day he was killed was never discovered.

The Insurance Coverage Issues

The Home Mutual policy issued to Sell for limits of $25,000/$50,000 bodily injury and $10,000 property damage liability included the provision that liability coverage was provided the named insured for the listed vehicles and also for a non-owned automobile operated by the named insured with the owner's permission, provided the non-owned vehicle was not furnished or available for the regular use of the named insured. The Western policies issued to McCoy and the Palmers included standard uninsured motorist coverages. The MFA policy issued to Dixon Palmer also provided uninsured motorist coverage, but contained a clause not found in the Western policy. That clause limited omnibus coverage, including uninsured motorist benefits, to relatives of the named insured living in the same household provided such relative did not own an automobile.

The dispute in the case centers on whether or not Sell was protected under the Home Mutual policy for operation of the Dodge, a car which he did not own. If coverage applies, then Home Mutual is obligated to defend Sell's administratrix against the claims of McCoy, Palmer, Clayton and Hirschbach Motor Lines and pay such claims to the limits of the policy. If, however, Sell was not covered by the Home Mutual policy when he drove the Dodge on the day of his fatal accident, then Sell was an uninsured motorist and Western and MFA have potential exposure under their policies to McCoy and the Palmers. In the latter event, the parties are in disagreement as to whether Palmer as a passenger is entitled to stack the three coverages under McCoy's policy, whether Palmer may additionally stack the four coverages under Western's policies to the Palmers and whether he may also stack the MFA coverage under the policy of Dixon Palmer.

For the reasons hereafter given, we conclude that the 1970 Dodge was a non-owned private passenger automobile not available for the regular use of Sell and that Home Mutual must afford coverage for claims arising out of the August 15, 1977 accident. This conclusion renders the other stacking and coverage issues moot.

In its judgment which recorded findings of fact and conclusions of law, the trial court ruled that the Home Mutual policy provided no coverage for Sell and that he was an uninsured motorist, thus invoking the provisions of Western's policies. While deference is normally accorded to the judgment in a court-tried case, that rule stems from the superior opportunity of the trial court to gauge the credibility and value of oral testimony. In this case, however, the facts are derived from pleadings, stipulations, exhibits and depositions. The usual rule of deference is therefore inapplicable. Case v. Universal Underwriters Insurance Co., 534 S.W.2d 635 (Mo.App.1976). Moreover, this case turns upon the application of plain contract language to facts not in dispute. No deference is due the trial court's judgment where resolution of the controversy is a question of law. See v. St. Paul Insurance Co., 577 S.W.2d 150 (Mo.App.1979). We therefore examine the primary issue, the policy obligation of Home Mutual, without reference to the determination made below.

As noted above, coverage of the liabilities incurred by Sell while operating the Dodge car attach under the Home Mutual policy upon two conditions: (1) the vehicle is not owned by the insured but it is being driven with permission, and (2) the vehicle is not...