Schuster v. Shelter Mut. Ins. Co., No. 18068

Decision Date19 May 1993
Docket NumberNo. 18068
Citation857 S.W.2d 381
PartiesBradley M. SCHUSTER, Plaintiff-Appellant, v. SHELTER MUTUAL INSURANCE COMPANY, Defendant-Respondent.
CourtMissouri Court of Appeals

Stephen F. Gaunt of Steelman & Beger, Rolla, for plaintiff-appellant.

J. William Turley of Williams, Robinson, Turley & White, Rolla, for defendant-respondent.

MONTGOMERY, Presiding Judge.

Bradley M. Schuster (Plaintiff) brought this action in two counts against Shelter Mutual Insurance Company (Shelter) for a declaratory judgment and for recovery of medical expenses resulting from an automobile accident. Plaintiff's suit arises from his collision with a school bus on September 13, 1990, while he was operating an uninsured 1979 International Scout owned by his stepfather, Pete Walker. As a result of the accident, Plaintiff incurred medical expenses.

At the time of the accident Plaintiff was the named insured on a motor vehicle liability policy with Shelter which included medical payment coverage. The declarations of the policy described Plaintiff's 1980 Ford Ranger.

Plaintiff, a high school student, lived at home with his mother, brother and stepfather during the time in question. At trial, Plaintiff's statement was introduced into evidence by stipulation. Plaintiff indicated that on September 13, 1990, he had taken the Scout keys from their customary location in the kitchen and borrowed the Scout. When asked, "So anytime you need it, you just get it," Plaintiff answered yes. He further testified he only drove the Scout "once in a while."

After a non-jury trial, the trial court determined Shelter's policy with Plaintiff afforded him no liability coverage and that Plaintiff was not entitled to recover his medical expenses. Plaintiff appeals, raising two alleged errors.

The first prong of Plaintiff's point I suggests the trial court erred in entering judgment in favor of Shelter on Count II of Plaintiff's petition because the insurance contract did not limit liability coverage for bodily injury to accidents resulting from use of the described auto or a non-owned auto, and the vehicle was not a non-owned auto as defined in the insurance policy or as that term would be understood by a lay person.

Plaintiff begins his argument by directing our attention to Shelter's policy which provides, in pertinent part:

PART I--AUTO LIABILITY

COVERAGE A--BODILY INJURY LIABILITY;

COVERAGE B--PROPERTY DAMAGE LIABILITY

We will pay on behalf of the insured all sums, within the limits of liability of these coverages, which the insured shall become legally obligated to pay as damages because of:

(1) Bodily injury sustained by any person; and

(2) Property damage sustained by any person, caused by accident resulting from the ownership, maintenance, or use of the described auto or a non-owned auto.

Plaintiff argues the bodily injury provision (subparagraph (1)) stands by itself separate and distinct from the property damage provision (subparagraph (2)). He suggests the phrase "caused by accident resulting from the ownership, maintenance, or use of the described auto or a non-owned auto," applies only to the property damage provision after considering the "punctuation and the way the language is set up in the contract."

Relying on Krombach v. Mayflower Ins. Co., Ltd., 785 S.W.2d 728 (Mo.App.1990), Plaintiff indicates an ambiguity exists in the quoted policy provisions and states "it is clear that a lay person purchasing this policy would believe that he was covered for all bodily injury he may become obligated to pay as damages due to his operation of any automobile."

The standard of review and rules regarding policy ambiguity are as follows: 1) whether or not language is ambiguous is a question of law for the trial court, West v. Jacobs, 790 S.W.2d 475, 480 (Mo.App.1990); 2) in determining whether the trial court has erred as a matter of law in interpreting the contract as unambiguous, Anchor Centre Partners Ltd. v. Mercantile Bank, N.A., 803 S.W.2d 23, 32 (Mo. banc 1991), the appellate court reviews the policy itself to determine if any ambiguity exists, Maryland Casualty Co. v. Martinez, 812 S.W.2d 876, 881 (Mo.App.1991); 3) the language in question is ambiguous if it is "fairly susceptible of two interpretations," English v. Old American Ins. Co., 426 S.W.2d 33, 36 (Mo.1968); and, 4) if no ambiguity exists, then the policy must be construed according to its plain meaning, Krombach v. Mayflower Ins. Co., Ltd., 785 S.W.2d 728, 731 (Mo.App.1990).

Learfield Communications v. Hartford Acc. & Indem., 837 S.W.2d 299, 300 (Mo.App.1992).

Krombach does not aid Plaintiff since the Court there construed a policy provision concerning underinsured motorist coverage. Plaintiff cites no authority construing policy provisions like those here in the Shelter policy.

We do not find the language ambiguous in subsections (1) and (2) under coverages A and B of Shelter's policy. An ambiguity in an insurance contract exists only where there is doubt or uncertainty as to its meaning and it is fairly susceptible to two interpretations. Earl v. State Farm Mut. Auto. Ins. Co., 820 S.W.2d 623, 625 (Mo.App.1991). The meaning of the policy language in question is not doubtful nor uncertain and must be construed according to its plain meaning. Simply stated, Shelter's policy provides liability coverage to Plaintiff for bodily injury and property damage which results from the use of the described auto or a non-owned auto.

A totally strained interpretation must be applied to achieve the result urged by Plaintiff. It is implausible to believe Shelter's policy would afford protection from bodily injury claims resulting from the use of any auto, but limit protection against property damage claims to only those arising from the use of the "described auto or a non-owned auto."

Perhaps anticipating our conclusion, Plaintiff argues an ambiguity in the policy still exists as to the meaning of "non- owned" automobile. With further reliance on Krombach, Plaintiff points to the rule that "[i]f there is a conflict between a technical definition and the meaning which would reasonably be understood by the average lay person, the lay person's definition will be applied unless it plainly appears that the technical meaning is intended." 785 S.W.2d at 731.

Pertinent definitions appear in the policy as follows:

(4) Described auto means the vehicle described in the Declarations and includes a temporary substitute auto

.... 1

....

(6) Non-owned auto means any auto other than

(a) the described auto, or

(b) an auto owned in whole or in part by, or furnished or available for regular use of, either you or any resident of your household.

Apparently Plaintiff believes the policy definition of non-owned automobile is overly technical, but he cites no authority for that position. We find there is no conflict between the definition of non-owned automobile and the meaning which would reasonably be understood by the average lay person. Applied to the facts here, the definition of a non-owned auto specifically excludes any auto owned by a resident of the household or available for the regular use of the insured. This language is plain and unambiguous. Therefore, it must be enforced as written. Auto Club Inter-Ins. Exch. v. Farmers Ins. Co., 778 S.W.2d 772, 774 (Mo.App.1989). The burden of demonstrating error and the incorrectness of the judgment below is on Plaintiff. Pearson v. Pearson, 687 S.W.2d 677, 679 (Mo.App.1985). Plaintiff fails to carry his burden.

In the second prong of this point Plaintiff contends the public policy of this state requires that the liability portion of Shelter's policy provide him with coverage for the accident of September 13, 1990.

Plaintiff asserts if Shelter's definition of "non-owned" auto is applied here to defeat bodily injury coverage, the insurance contract violates the public policy of Missouri reflected by § 303.190.3 2 of the Motor Vehicle Financial Responsibility Law (MVFRL). That section provides:

Such operator's policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him, within the said territorial limits and subject to the same limits of liability as are set forth above with respect to any owner's policy of liability insurance.

According to Plaintiff, this section clearly requires Shelter to provide him coverage when he operates any motor vehicle not owned by him. He argues this section has no technical definition of "non-owned" auto, like that found in Shelter's policy. Therefore, Shelter's restrictive definition conflicts with the statute.

Plaintiff relies on Halpin v. American Family Mut. Ins. Co., 823 S.W.2d 479 (Mo. banc 1992); State Farm Mut. Auto. Ins. Co. v. Zumwalt, 825 S.W.2d 906 (Mo.App.1992); State Farm Mut. Auto. Ins. Co. v. Andrews, 789 S.W.2d 144 (Mo.App.1990); and American Standard Ins. Co. v. Dolphin, 801 S.W.2d 413 (Mo.App.1990). None of these cases deal with a coverage question arising from an insured's use of a non-owned auto. For example, in Halpin, the Supreme Court held that the MVFRL effects a partial invalidity of household exclusion clauses in automobile liability insurance contracts. The Court agreed that "public policy requires that a contract of liability insurance provide the coverage indicated in § 303.190 so that the insured will be in compliance with § 303.025." Id. at 481.

We do not believe Halpin nor the other cases cited by Plaintiff require us to find Shelter's definition of a non-owned automobile violates public policy.

First, § 303.025 3 requires the "owner" of a motor vehicle to maintain "financial responsibility." By that statute, one method of maintaining financial responsibility is through the purchase of a "motor...

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