Protective Cas. Ins. Co. v. Cook, 52094

• Decision Date: 30 June 1987
• Docket Number: No. 52094,52094
• Parties: PROTECTIVE CASUALTY INSURANCE COMPANY, Plaintiff-Appellant, v. Ronald and Patricia W. COOK, et al., Defendants-Respondents, State Farm Mutual Insurance Company, Intervenor.
• Court: Missouri Court of Appeals

Page 898

734 S.W.2d 898

PROTECTIVE CASUALTY INSURANCE COMPANY, Plaintiff-Appellant, v. Ronald and Patricia W. COOK, et al., Defendants-Respondents State Farm Mutual Insurance Company, Intervenor.

No. 52094.

Missouri Court of Appeals,

Eastern District,

Southern Division.

June 30, 1987.

Motion for Rehearing and/or Transfer

Denied July 30, 1987.

Application to Transfer

Denied Sept. 15, 1987.

Paul Roger Ellis, Lichtenegger, Phillips & Ellis, Jackson, for plaintiff-appellant.

Robin E. Fulton, Maurice B. Graham, Schnapp, Graham, Reid & Fulton, Fredericktown, for defendants-respondents Cook, and Settle.

Keven P. Schnurbusch, Marie A. Woodruff, Evans & Dixon, St. Louis, for intervenor.

SIMEONE, Senior Judge.

I

This is an appeal by Protective Casualty Insurance Company (Protective) from an order of the circuit court of Madison County entered on July 11, 1986 granting summary judgment in favor of intervenor, State Farm Mutual Insurance Company (State Farm). The judgment increased the liability limits of a policy issued by Protective to its insured to conform to the limits established by Missouri's Motor Vehicle Safety Responsibility Law. We reverse.

II

On March 4, 1983, plaintiff issued a comprehensive automobile insurance policy to Crystal Rector, the wife of Daryl Dean Rector, insuring her 1975 LeSabre Buick. The policy provided that Protective would pay "damages for bodily injury or property damage for which the law holds you [the insured] responsible because of a car accident involving a car we insure." ¹ The policy limit was $10,000 for damages to each person and $20,000 for each "accident." The policy was made and issued to Crystal Rector at a time when she and her husband resided in Fort Pierce, Florida and covered the period of February 24, 1983 through August 24, 1983. The contract of insurance was made in Florida. Soon after the contract was made, the Rectors moved to Missouri.

In a section of the policy relating to "Limits of Liability," the policy in the paragraph entitled "Financial Responsibility Laws" provided as follows:

If you're required to show proof of financial responsibility for the future because of car accidents, traffic violations or other state motor vehicle requirements, we'll certify this policy as proof. When we certify this policy as proof, all the terms and conditions of this insurance will be amended to comply with the requirements of such law. But the terms and conditions of this insurance will not be amended for any limits of liability in excess of the minimum limits required by such law. YOU MUST REIMBURSE US IF WE HAVE TO MAKE A PAYMENT THAT WE WOULD NOT HAVE TO

MAKE IF THIS POLICY WERE NOT CERTIFIED AS PROOF.

Under the "General Policy Provisions," there is a provision entitled "Out-of-State Insurance." That provision states:

If this policy provides liability insurance and if you are traveling in a state which has compulsory motor vehicle insurance requirements for non-residents, we will automatically provide the required insurance. However, this amendment will provide only excess insurance over any other valid and collectible insurance.

On March 25, 1983, a collision occurred at the intersection of Highway 67 and Route "H" in St. Francois County in Missouri. The collision involved the insured vehicle owned by Crystal Rector, which was driven by her husband, Daryl Dean Rector with her permission, and a 1973 Chevrolet Monte Carlo, operated by Douglas G. Settle. In the Rector vehicle were passengers Bill Thomure, Fred Thomure and Paul Thomure. In the Seattle vehicle were his wife Susan, Ronald Cook and his wife Patricia. Both drivers and all the passengers in both vehicles were injured. Subsequently, Daryl died from unrelated causes.

In due time Ronald and Patricia Cook filed suit for damages for personal injuries against the estate of Daryl Dean Rector and their insurer, Cameron Mutual Insurance Company under the uninsured motorist provisions of their insurance policy. ² The Cooks' case is the subject of Cook v. Pedigo, 714 S.W.2d 949, 951 (Mo.App.1986).

Susan Settle also filed suit in St. Francois County against the estate of Daryl for personal injuries she allegedly sustained as a result of the collision. Although Douglas Settle and Bill, Fred and Paul Thomure were injured, they filed no claims against the estate of Daryl Rector or Douglas Settle.

In this posture of the case, Protective filed its "Petition for Interpleader" on May 1, 1985 in the circuit court of Madison County against Ronald and Patricia Cook, Douglas and Susan Settle and Bill, Fred and Paul Thomure alleging the above facts. Protective later amended the petition on March 5, 1985. The second petition for Interpleader alleged the above facts and further alleged that "all" of the defendants "have or may have claims against the fund [of $20,000] which will subject Plaintiff and its insured [Crystal Rector] to multiple and possibly conflicting claims and to multiplicity of suits." The petition stated that "certain" of the "defendants" in the interpleader action have called on Plaintiff to settle their claims out of the $20,000. Plaintiff then paid into the registry of the court the sum of $20,000. It is to be noted that Protective sought an order (1) requiring the various defendants--claimants and potential claimants--to interplead and settle among themselves their rights and claims to the $20,000 fund, (2) enjoining and restraining the claimants from instituting or "prosecuting further" any suit on account of the accident or occurrence, (3) enjoining and restraining the claimants from instituting or prosecuting further any proceeding against plaintiff on account of the policy and (4) discharging plaintiff from any "further liability" because of the payment of the proceeds of the policy into the registry of the court.

On March 5, 1986, State Farm filed its motion to intervene in the plaintiff's interpleader action. In its motion to intervene, State Farm alleged that (1) the collision involving the Rector and Settle vehicles occurred in St. Francois County on March 25, 1983, (2) plaintiff, Protective, had filed an interpleader action, (3) Susan Settle had filed her personal injury action against the estate of Daryl Dean Rector and State Farm "claiming that the insurance policy issued by Protective contained liability limits below those required by Section 379.203 R.S.Mo., ³ and (4) under the terms of the Protective policy and the "statutory law of the State of Missouri," ⁴ "Daryl Dean Rector [sic--Crystal?] was not an uninsured motorist under the terms of the State Farm Policy, hence there was no coverage under that policy. In its motion, State Farm alleged that it "might thus be bound by any final judgment entered" and "any judgment in interpleader will, as a practical matter, impair and impede the ability of State Farm to protect its interests."

State Farm also filed an answer to the Petition in interpleader. In its answer State Farm referred to its policy insuring the Settle's 1973 Chevrolet involved in the accident which defined an uninsured motor vehicle [the Rector vehicle] as a vehicle insured wherein the "limits of liability are less than required by the Financial Responsibility Act of the state where your car is mainly garaged; ...." State Farm further alleged that under the terms of the Missouri Safety Responsibility Law in effect in 1983 (§ 379.203) the law required a minimum liability coverage of $25,000 per person and $50,000 per accident. According to State Farm, under the terms of the Protective policy "Financial Responsibility Laws" clause, then, the limits of the Protective policy would be automatically raised to provide such $25,000/$50,000 coverage. Thus, the vehicle operated by Daryl Rector was an "insured" automobile under Missouri law and, therefore, the uninsured motorist provisions in the State Farm policy were not applicable. State Farm prayed that (1) the court enter its order establishing that the policy issued by Protective be modified under the terms of that policy and under the law to contain limits of $25,000 and $50,000, (2) it be dismissed from the action, ⁵ and all the defendants-claimants or potential claimants be restrained from proceeding on the State Farm policy and (3) upon final hearing that the plaintiff, Protective, and each of the claimants be enjoined from instituting or maintaining any action against State Farm.

The trial court granted State Farm's motion to intervene on March 20, 1986. On April 8, 1986, State Farm filed its motion for summary judgment. The thrust of that motion was that under the terms of the Protective policy and the statutory law of the State of Missouri, the purported $10,000/$20,000 liability limits under the Protective Casualty Insurance Company policy as a matter of law would be raised to the Missouri required $25,000/$50,000 limits so that Daryl Dean Rector was not an uninsured motorist under the terms of the State Farm policy and that no coverage would be provided by the latter policy.

State Farm therefore moved that the Court enter an order of summary judgment in its favor establishing that the Protective policy issued to Crystal Rector was modified "under the terms of that policy" and "under the law" to contain limits of $25,000 per person and $50,000 per accident and for other relief.

On July 11, 1986, the court sustained State Farm's motion for summary judgment. This appeal by Protective followed.

III

On appeal, Protective contends that the trial court erred in (1) sustaining State Farm's motion for summary judgment for the reason that the Protective policy is clear and unambiguous so that the court had no power to rewrite the insurance contract by raising the limits of the policy, (2) applying the wrong choice of law rule for the reason that the court applied Missouri law rather than the law of Florida where the contract was entered into; (3) granting summary judgment for the reason that Missouri law does not require...