Perkins v. Perkins, 22279
| Decision Date | 03 October 1955 |
| Docket Number | No. 22279,22279 |
| Citation | 284 S.W.2d 603 |
| Parties | John PERKINS, Appellant, v. Bessie PERKINS and State Farm Mutual Automobile Insurance Company Respondents. |
| Court | Missouri Court of Appeals |
Hayes & Durley, Sedalia, for appellant.
Wesner and Wesner, Sedalia, for respondent State Farm Mutual Automobile Ins. Co.
John C. McCloskey, Sedalia, for respondent Bessie Perkins.
In October 1954, while the automobile of defendant-respondent Bessie Perkins was insured by the defendant-respondent State Farm Mutual Automobile Insurance Company under a policy of liability insurance in which she was the named insured, John Perkins, plaintiff-appellant, whose relationship, if any, to Bessie Perkins is not shown and under the situation here presented is immaterial, was driving the automobile with her permission she being a passenger therein. The car upset, Bessie Perkins claiming certain alleged injuries thereby received to be the fault of John Perkins, sued him for damages and he called upon the State Farm Mutual Automobile Insurance Company to defend him.
This the latter refused to do on the ground that by the terms of its policy the named insured was excluded from making a claim against an additional insured and likewise the additional insured was unprotected in such event.
Upon the refusal of the company to afford him protection John Perkins brought a suit against the defendants for a declaratory judgment defining the rights and liabilities of the parties hereto under the insurance contract above mentioned. In his petition plaintiff after alleging the differences between the parties regarding coverage also alleged that under the policy the Company was liable because of the provisions of the Motor Vehicle Safety Responsibility Law. V.A.M.S. Sec. 303.010 et seq.
The defendant Company filed a separate motion to dismiss and in the alternative if that were denied to strike the portion regarding the Motor Vehicle Safety Responsibility Law. The defendant Bessie Perkins filed a separate motion to dismiss because of no claim stated and that no justiciable controversy was pleaded. The trial court made and entered a judgment overruling that part of defendant Company's motion to strike the allegations pertaining to the Motor Vehicle Safety Responsibility Law, and further finding that plaintiff's petition failed to state a claim entitling him to the relief sought in his petition and that the Insurance Company was and is not obligated to defend plaintiff or to pay any judgment which might be rendered against him in the suit of Bessie Perkins, sustained both motions to dismiss and dismissed the petition.
The provisions of the policy material to a determination of this case are as follows:
'A
'Insuring Agreements
'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damaged because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.'
'Coverage B--Property Damage Liability.
'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile.'
'B
'As respects the insurance afforded by the other terms of this policy under Coverages A and B the Company shall:
'(a) defend any suit against the insured alleging such injury, sickness, disease, or destruction, and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the Company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.'
'C
'With respect to the insurance for bodily injury liability, for property damage liability and for medical payments the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.'
'D 'Exclusions--This Policy Does Not Apply.
'(e) Under Coverage A, to any obligation for which the insured or any Company as his insurer may be held liable under any Workmen's Compensation law; to to the insured or any member of the family of the insured residing in the same household as the insured.'
'E
'Conditions 1 to 12 inclusive apply to the coverage or coverages noted thereunder.
'6. Final Responsibility Laws--Coverages A and B.
Other pertinent provisions of the insured agreements of the policy are: 'The insurance with respect to any person or organization other than the named insured does not apply:
'(a) to any person or organization, or to any agent or employee thereof, operating any automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof;
'(b) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.'
Plaintiff contends that the general rule is that the additional insured is protected under a liability policy in the suit brought by the named insured. That the Motor Vehicle Responsibility Law of Missouri is a part and parcel of the policy by force of law and that if paragraph (e) of the exclusions means what the Company asserts, it is void because it is in conflict with Section 303.190, V.A.M.S. That if not void as in conflict with the statute, then said sections and the provision of the paragraph designated as Coverage A under Section I and Section 3 of the insuring agreement create an ambiguity which must be construed against the Insurance Company which would thereby afford protection to the additional insured.
Defendant, Insurance Company, takes the position that where an automobile liability policy contains an exclusion clause providing that coverage does not apply under certain specified conditions then under those specified conditions there is no coverage under the contract; that the policy is clear and unambiguous and excludes any claim against an additional insured which may be made by the named insured. The Insurance Company further contends that the policy herein is purely a voluntary policy and is not a Motor Vehicle Liability Policy as defined and provided for in Chapter 303 RSMo 1949, V.A.M.S. That condition 6 of the policy does not become effective until such plicy has been certified to, delivered to, and accepted by the Department of Revenue, Safety Responsibility Unit, as a Motor Vehicle Liability Policy as proof of financial responsibility to comply with the provisions of said Chapter. In referring to the statutes above we are quoting from the respective briefs. The last enactment of this law is to be found in Laws of Missouri for 1953, page 569 et seq.
In answering plaintiff's assertion that the policy provisions are ambiguous defendant Company argues that in condition six of the policy it is specifically provided that such insurance as is afforded by the policy for bodily injury liability shall comply with the provisions of the Motor Vehicle Safety Responsibility Law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile and that the insured agrees to reimburse the company for any payment which it is called upon to make and which it would not have been obligated to make except for the agreement contained in the paragraph condition six.
As stated in Lynch v. National Life and Accident Ins. Co., Mo.App., 278 S.W.2d 32, 33: 'The rule is firmly established in Missouri that insurance policies, like other contracts, receive reasonable interpretations, and that in construing the terms of a policy the courts discharge their full duty when they ascertain and give effect to the intention of the parties, as disclosed by the contract they have entered into. * * *
'The principle that when the terms of an insurance contract are ambiguous, equivocal or uncertain so that the intention of the parties cannot be clearly ascertained by the ordinary rules of construction, the questionable terms are to be construed against the insurer and in favor of the insured, is equally well settled. * * * 'When there is no ambiguity, there is no room for construction. Unequivocal language is to be given its plain meaning though found in an insurance contract. * * * This is so even when considering a restrictive provision of a policy. Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99 .'' Before the enactment of the Missouri Motor Vehicle Safety Responsibility Act there was no doubt about the law in this State. In the case of Sibothan v. Neubert, Mo.App., 168 S.W.2d 981, loc. cit....
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