MFA Mut. Ins. Co. v. Home Mut. Ins. Co.

• Citation: 600 S.W.2d 521
• Decision Date: 07 April 1980
• Docket Number: No. WD30881,WD30881
• 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.
• Court: Court of Appeal of Missouri (US)

Page 521

600 S.W.2d 521

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. WD30881.

Missouri Court of Appeals, Western District.

April 7, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 9, 1980.

Ross Eshelman, Poague, Brock, Wall, Eshelman & Cox, Clinton, for plaintiff-appellant.

Don B. Roberson, William L. Yocum, Kansas City, for defendant-respondent Home Mutual Insurance Co.

William J. Cason, Michael X. Edgett, Fred R. Bunch, Clinton, for plaintiff-respondent MFA Mutual Insurance Co.

Before CLARK, P. J., DIXON and SOMERVILLE, JJ.

DIXON, Judge.

This litigation involving three insurance carriers and multiple individual parties ostensibly raises issues of uninsured motorist coverage and construction of a policy provision excluding coverage for a vehicle "furnished or available for regular use." In reality, the issue is the finality of the judgment.

Preliminary to the statement of the pleadings and the stipulated facts which will frame the issues, the identification of the individual parties, vis-a-vis the insurance carriers, will aid understanding.

The dispute arises out of claims for injury and damage occurring in a collision between a 1970 Dodge Charger operated by Stephen Sell, who was killed in the collision, and a vehicle owned and driven by Larry Ray McCoy and occupied by Larry Palmer as a Home Mutual Insurance Company had issued a policy of insurance to Sell which described two vehicles, but not the 1970 Dodge. Larry Palmer is the son of Dixon Palmer who was an insured of MFA Insurance Company. The MFA policy was issued to Dixon Palmer on a Ford automobile which apparently was not involved in the collision. Dixon Palmer also had two policies of insurance with Western Fire Insurance Company on four other uninvolved vehicles. McCoy had a policy with Western insuring three vehicles, only one of which was involved in the instant collision. In summary, there are four policies involved in the case which insured ten vehicles.

passenger. Nothing appears in the briefs concerning the facts of the collision. ¹

MFA was the original plaintiff and filed its action contending it provided no uninsured motorist coverage to Larry Palmer. These pleadings asserted that Sell was insured by Home Mutual which had denied coverage to Sell and, thus, recovery to Larry Palmer. The defendants in that suit were Larry Palmer, Dixon Palmer, Home Mutual, and Sell's Administrator. Western then filed as plaintiff-intervenor, claiming that a controversy existed as to the coverage of the Western policies being extended to Larry Palmer, and asserting a controversy existed between Larry Palmer, Home Mutual, and Western as to coverage under Home Mutual's policy on Sell. These pleadings by Western are extremely sketchy. In a separate count, Western reiterated its claim of controversy between Larry McCoy and itself and Home Mutual. Home Mutual's answer was then filed which asserted, in relevant part to the present issues, that its policy did not cover Sell. Larry McCoy's answer to the Western petition alleged policy or policies were issued "on multiple vehicles," that McCoy was an insured as to uninsured motorist coverage under the "policies." McCoy pled that Sell was uninsured. Larry Palmer and his father, by answer to MFA's and Western's petitions as plaintiffs, asserted that each policy provided uninsured motorist coverage and that Larry Palmer and his father were "insureds" under the policies. Two other pleadings appear, one by Jimmie Dale Clayton and Hirschbach Motor Lines for property damage and one by Sell's Administrator for funeral expenses. Both of these pleadings address only Home Mutual's pleading and policy, and these parties have not appealed despite an adverse judgment so that these latter two pleadings raise no issues on this appeal.

To summarize and, hopefully, clarify the issues presented by these pleadings, the following issues were presented as affecting the various parties:

1. Did the Home Mutual policy cover Sell?

-affecting all parties

2. Did the MFA policy provide uninsured motorist coverage to Larry Palmer?

-affecting Larry Palmer and MFA

3. Did the Western Fire Insurance policies cover Larry McCoy and Larry Palmer under the uninsured motorist coverages?

-affecting Western, McCoy, and Larry Palmer

There was no specific pleading raising the issue of "stacking" under the various policies, nor of proration of coverage. The only language in the extremely sketchy pleadings of Western was the general issue of coverage "and, if so, the limits of coverage applicable."

The trial court answered the issues as follows:

1. It found no coverage under Home Mutual's policy;

2. It found no uninsured motorist coverage under MFA's policy 3. It found uninsured motorist coverage under all three Western Fire Insurance policies running to both Larry McCoy and Larry Palmer who were declared to be insureds under the three Western policies.

Only Western has appealed. The respondents are MFA and Home Mutual, and the individuals, Larry Palmer, Dixon Palmer, and Larry McCoy. The individual respondents have not briefed the case.

The issue dispositive of this appeal is the finality of the trial court judgment. Western contends that the trial court was presented with the issue of stacking under the Home Mutual and Western policies. The point is thus stated in Western's brief:

"III. The Court Erred in Failing to Rule on the Issue of Stacking of the Various Uninsured Motorist Coverages. This Issue Was Before the Court but Not Ruled on."

Western points to no pleading raising this issue but asserts the issue was presented to the trial court by a pre-trial stipulation of the parties. The reference is to the following colloquy:

"MR. ESHELMAN: . . . the second issue here, assuming . . . liability coverage by Home Mutual, . . . that there is nevertheless also coverage under the Western policies by reason of the fact that Home Mutual had previously denied liability coverage . . . .

MR. ESHELMAN: . . . The third issue is, if there is any uninsured motorist coverage provided by the Western policies for Mr. Murphy's clients, whether it is in lieu of or in addition to liability coverage under Home Mutual, there is the question of the extent to which Mr. McCoy and Mr. Palmer may stack U.M. coverages under the terms and provisions of the Western policies. It is stipulated by Western Insurance Company and the parties that Larry Palmer was a resident of the household and the son of the named insured, Dixon Palmer, in those Western policies.

MR. MURPHY: Well, to be even more specific, it is stipulated that Larry McCoy was at the time of this accident an insured of Western...