Poage v. State Farm Fire & Cas. Co.

• Decision Date: 23 October 2006
• Docket Number: No. 27619.,27619.
• Citation: 203 S.W.3d 781
• Court: Missouri Court of Appeals
• Parties: Valerie POAGE, Plaintiff/Respondent v. STATE FARM FIRE & CASUALTY CO., Defendant/Appellant.

203 S.W.3d 781

Valerie POAGE, Plaintiff/Respondent
v.
STATE FARM FIRE & CASUALTY CO., Defendant/Appellant

No. 27619.

Missouri Court of Appeals, Southern District, Division One.

October 23, 2006.

203 S.W.3d 782

Randy R. Cowherd, Catherine A. Reade, Springfield, for appellant

Greggory D. Groves, Lowther & Johnson, Springfield, for respondent.

THEODORE B. SCOTT, Senior Judge.

This is an appeal of a summary judgment in an action that sought recovery on an insurance policy. The trial court awarded judgment for Valerie Poage (respondent) for damages sustained when she was struck by a boat while swimming in Table Rock Lake. State Farm Fire & Casualty Company (appellant) asserts the injuries sustained were not covered under its policy of insurance; that the injuries did not result from the "use" of the boat that it insured.

Both parties requested summary judgment. The trial court determined that the injury resulted from the use of respondent's boat and granted respondent's motion for summary judgment and denied appellant's. Appellant now appeals to this court. The two questions presented in this appeal are: (1) whether injuries suffered by respondent are covered within the "use" definition of her insurance policy; and (2) if so, whether there was a sufficient

203 S.W.3d 783

causal relationship between the "use" of the boat and respondent's injuries when she was struck by another boat while swimming in Table Rock Lake

The following facts were stipulated by the parties. On July 30, 2003, respondent and her husband, Jeff Poage, owned a 28 foot-Harrison pontoon boat which they took out on Table Rock Lake. While out on the lake, the Poages stopped the boat and turned it off in order to allow respondent and her guests to swim in the lake. Respondent jumped off the boat to swim and after swimming for around three to four minutes, she was approximately 25 feet from the boat. At this time, respondent was hit by a boat driven by Joshua Horsch. She suffered bodily injury as a result of this accident.

The Harrison pontoon boat owned by the Poages was insured by appellant at the time of the accident. The pertinent part of the policy states, "We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of an accident causing bodily injury. . . . This coverage applies only for bodily injury caused by an accident resulting from the ownership, maintenance or use of your watercraft."

The parties stipulated to the facts. Thus, the propriety of the trial court's granting of summary judgment, which was based upon an interpretation of an insurance contract, is purely a question of law. Green v. Federated Mutual Ins. Co., 13 S.W.3d 647, 648 (Mo.App.1999). We review appeals from motions for summary judgment de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria we use on appeal for testing the propriety of summary judgment are no different than those that should be applied by the trial court to determine the motion initially. Id. The propriety of summary judgment is purely an issue of law; we give no deference to the trial court's order granting summary judgment. Id.

Respondent filed a motion to dismiss appellant's appeal for failure to comply with Rule 84.04(d) of the Missouri Rules of Civil Procedure. We find substantial compliance with Rule 84.04(d) by appellant and deny the requested relief.

Appellant's first point contends the trial court erred in granting summary judgment in favor of respondent because the language of the insurance contract was not ambiguous and did not provide coverage for respondent's injuries suffered when she was struck by another boat while swimming in Table Rock Lake. At the time of respondent's injuries, respondent was not in the act of using, maintaining, or operating her boat as required by the insurance policy for coverage.

Appellant contends the phrase, "resulting from the ownership, maintenance, or use of your watercraft," is unambiguous and does not provide coverage for respondent's injuries. It is important to note that insurance policies are designed to provide protection and will be liberally interpreted to grant, rather than deny, coverage. American Family Mut. Ins. Co. v. Turner, 824 S.W.2d 19, 21 (Mo.App. 1991). However, when an insurance policy is unambiguous, it will be enforced as written. Peters v. Employers Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. banc 1993). When language in an insurance contract is unequivocal, it will be given its plain meaning even if it appears in a restrictive provision of the policy. Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 142 (Mo. banc 1980).

An ambiguity only exists when there is duplicity, indistinctiveness, or uncertainty in the meaning of the words used

203 S.W.3d 784

in the contract. Peters v. Employers Mut. Cas. Co., supra. If there is an ambiguity, it will be construed in favor of the insured. Id. However, a court is not permitted to create an ambiguity in order to distort the language of an unambiguous policy in order to enforce a particular construction which it feels is more appropriate. Rodriguez v. General Accident Ins. Co. of America, 808 S.W.2d 379, 382 (Mo. banc 1991)

The question exists whether the term "use" is ambiguous. Appellant contends that "use" is unambiguous and cannot be construed to include swimming near the boat. However, the term "use" does not have a distinct definition for the courts to grab onto and apply to all cases. In construing an automobile policy, the term "use" has been construed as a general catch-all term that includes all proper uses of a vehicle not falling within one of the others terms of definition. State Farm Mut. Automobile Ins. Co. v. Whitehead, 711 S.W.2d 198, 200 (Mo.App.1986). It is not limited to the ordinary use of a vehicle because such a normal use would be captured under the term "operating." Id. The terms "use" and "operation" are not synonymous and are quite different in an insurance policy. Allstate Ins. Co. v. Hartford Accident & Indem. Co., 486 S.W.2d 38, 43 (Mo.App.1972). While a person who operates a vehicle obviously uses it, one can use a vehicle without operating it. Id. We conclude that the same rationale is applicable to a policy of insurance that insures a boat.

Finally, we note that while discussing whether the term "use" was held to be ambiguous under Missouri law in Cawthon v. State Farm Fire & Casualty Co., 965 F.Supp. 1262 (W.D.Mo.1997), the court stated, "[H]ow could this term be capable of only one meaning when there are so many cases around the country trying to figure it out?" Id. at 1267. We agree. Because the term "use," as applied to the insurance policy in this case, acts as a general catch-all and is capable of multiple meanings, there is an uncertainty as to the meaning of the word and this creates an ambiguity in the contract.

The question then is whether the boat was in "use" when it was turned off and the people were swimming around it. Liberally construing the term in favor of the insured, we find there is "use." When individuals take a boat out on the lake, it is often for the express purpose of going swimming on the lake. Thus, while on the lake with the boat, whether or not the boat is on or the passengers are even in the boat, the boat is still in "use."

We find that the insurance policy provided coverage within the "use" definition for respondent's injuries. The Poages took their boat on the lake to take the respondent and her guests swimming and the boat was necessary to get to that part of the lake. While swimming, respondent was hit by another boat and injured. Even though the boat was not running and was simply floating, it was still being "used" within the meaning of the term "use" in the insurance policy. Appellant's Point I is denied.

Appellant's second point contends the trial court erred in finding there was sufficient causal connection between the injury of respondent and the "use" of the boat for her insurance policy to provide coverage for respondent's injuries. Appellant and respondent agree that there needs to be some causal connection between the injury and the "use" of the boat in order to find...