Seabaugh v. Sisk

• Decision Date: 16 February 1967
• Docket Number: No. 8576,8576
• Citation: 413 S.W.2d 602
• Parties: Alice SEABAUGH, Plaintiff-Appellant, v. Jay SISK, Administrator of the Estate of Charles Junior Webb, Deceased, Defendant, and American National Fire Insurance Company, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 602

413 S.W.2d 602

Alice SEABAUGH, Plaintiff-Appellant, v. Jay SISK, Administrator of the Estate of Charles Junior

Webb, Deceased, Defendant,

and

American National Fire Insurance Company, a corporation,

Defendant-Respondent.

No. 8576.

Springfield Court of Appeals, Missouri.

Feb. 16, 1967.

Motion for Rehearing or to Transfer Denied March 14, 1967.

Application to Transfer Denied 8, 1967.

Dempster, Edwards & Robison, Robert A. Dempster, James R. Robison, Sikeston, for plaintiff-appellant.

Manuel Drumm, Sikeston, for defendant-respondent.

STONE, Presiding Judge.

This action arises out of an ill-fated deerhunting expedition on which plaintiff, her husband, a male hunting companion and his teen-age son, all residents of Sikeston, Missouri, embarked before daybreak on Sunday, October 13, 1963. About one hour later while it was yet dark, tragedy struck when the 1958 Pontiac coach owned and driven by plaintiff's husband, then westbound on its right (the north) side of a straight, level stretch of the two-lane, 24-foot concrete roadway of U.S. Highway 60 in Scott County, Missouri, collided 'approximately headon' with an eastbound 1954 Chevrolet coach owned and driven by Charles Junior Webb. The crushing impact resulted in the death of Webb, plaintiff's husband and the teen-age son of his hunting companion, and in injuries to plaintiff and the companion.

Plaintiff's amended petition, upon which she proceeded to trial before the court (a jury having been waived), was in three counts. On Count I, she was awarded for her bodily injuries a judgment in the sum of $5,000 against defendant Jay Sisk, as administrator of the estate of Charles Junior Webb, deceased. On Count II, she was awarded for the alleged wrongful death of her husband a judgment in the sum of $25,000 against defendant Sisk as such administrator. On Count III, she prayed for, but was denied, a judgment in the sum of $5,000 against defendant American National Fire Insurance Company, on the theory that Webb had been driving an 'uninsured automobile' and that she, as an insured under the 'family automobile policy' issued by defendant American National to her husband on the 1958 Pontiac coach, was entitled to the maximum permissible recovery by one person under the uninsured motorists coverage afforded by that policy. Defendant Sisk filed no after-trial motion and took no appeal, so the case is here solely on plaintiff's appeal from the adverse judgment on Count III, thereby delivering into our hands another of the perplexing problems with which uninsured motorists coverage is pregnant.

The American National policy, on which plaintiff seeks to recover, defines an 'uninsured automobile' as '(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state . . ., no bodily injury liability bond or insurance policy applicable at the time of the accident . . . (hereinafter referred to as the no policy definition), or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder (hereinafter referred to as the denial of coverage definition) or (b) a hit-and-run automobile . . ..' (All emphasis herein is ours.)

At the time of the accident under consideration, i.e., on October 13, 1963, an insurance policy theretofore issued by Crown Insurance Company of Huntington, West Virginia, afforded bodily injury liability coverage in the amounts then required by our Motor Vehcle Safety Responsibility Law (V.A.M.S. § 303.030, subd. 5) with respect to any person legally responsible for the use of Webb's 1954 Chevrolet coach. On October 18, 1963, attorney Dempster wrote Dillon Claims Service, 'insurance adjusters' at Cape Girardeau, 'as I (Dempster) had been informed they were adjusting for Crown,' that he represented plaintiff and also the hunting companion and his teen-age son (apparently then still alive) in their respective claims against Webb. By letter dated October 21, 1963, which showed 'cc Crown Insurance Company, St. Louis, Missouri,' Dillon acknowledged receipt of Dempster's letter and added, 'I will meet with you in the near future to discuss this matter'; and, as Dempster testified upon trial, 'Mr. Ken Dillon did discuss it with me at one time.'

During January, February and March, 1964, Dempster corresponded with one Henry Tager in Crown's 'Executive Offices' at Clayton, Missouri, in an unsuccessful effort to arrange for a personal conference at a mutually convenient time. Some of this correspondence was produced and offered in evidence by Dempster. For the purposes of this discussion, suffice it to say that Tager's replies were courteous, evidenced no effort or inclination on the part of Crown to deny coverage, expressed Tager's willingness to confer with Dempster, and in each instance coupled a statement of Tager's 'unfortunate' inability to do so on the date last suggested by Dempster with an invitation for him to come at some later time, e.g., 'in the early part of March' or 'sometime the week of March 23, 1964.' Dempster did talk with Tager 'on the telephone a time or two, one time when I was in St. Louis.' Upon trial, Dempster said that he had written Crown 'because I had knowledge that there was a policy of insurance in existence on the Webb motor vehicle.'

On April 2, 1964, Jay Sisk was appointed as 'personal representative and administrator of the estate of Charles Junior Webb, deceased,' by and in the Probate Court of Scott County, Missouri. V.A.M.S. § 537.020. On the following day, to wit, on April 3, this action was instituted in the circuit court by the filing of plaintiff's petition against defendant Sisk, as such administrator; and, on April 4, service was obtained upon said defendant. On April 7, Sisk mailed to Crown's office at Clayton, Missouri, a certified copy of his appointment by the probate court and the summons and petition herein. Crown made no response and did not contact Sisk with respect to defense of the instant suit.

Plaintiff's attorney Dempster received during May 1964 a long printed notice (received in evidence without objection) dated at Huntington, West Virginia, on May 7, 1964, from 'Harlan Justice, Insurance Commissioner State of West Virginia and Receiver' to 'the Policyholders, Creditors, Stockholders, and All Other Persons Interested in the Affairs of Crown Insurance Company, of Huntington, West Virginia, a West Virginia corporation.' Those portions of the notice relevant to this discussion were to the effect (a) that, by order of the Circuit Court of Cabell County, West Virginia, entered on May 7, 1964, Justice in his official capacity as Insurance Commissioner had been directed 'to take possession of the property and to liquidate the business of Crown,' (b) that, by the aforesaid order, Crown's charter as a West Virginia corporation 'is forfeited, surrendered and annulled' and the rights and liabilities of Crown and of all persons under insurance and other contracts 'ceased and are fixed' as of twelve o'clock midnight on May 20, 1964, (c) that 'all persons having any unsatisfied claims or demands of any character against (Crown) are hereby required to file with, deliver, and present the same in writing duly verified' to Justice within four months, to wit, on or before September 7, 1964 (d) that 'all persons against whom actions are now pending concerning which (Crown) may be liable on its policies and which have been defended up to the date of liquidation order on their behalf by an attorney employed or retained by (Crown), are advised that the employment or retainer of the said attorney has been terminated by the entry of the order of liquidation,' and (e) that 'liabilities will be determined as to all claims duly presented and all assets will be distributed according to the Insurance Law of the State of West Virginia.' On cross-examination, Dempster frankly conceded that instant plaintiff had filed a claim with Justice, although 'we have heard nothing from it.'

On this state of facts, it is clear that the Webb Chevrolet was not an 'uninsured automobile' under the no policy definition in the American National policy on which plaintiff seeks to recover, i.e., an automobile on which there was 'no bodily injury liability bond or insurance policy applicable at the time of the accident.' Swaringin v. Allstate Insurance Co., Mo.App., 399 S.W.2d 131; Stone v. Liberty Mutual Insurance Co., Tenn.App., 397 S.W.2d 411; Hardin v. American Mutual Fire Ins. Co., 261 N.C. 67, 134 S.E.2d 142, 147--148(4, 5); Rice v. Aetna Casualty and Surety Co., 267 N.C. 421, 148 S.E.2d 223, 225(3); Federal Insurance Co. v. Speight, D.C.S.C., 220 F.Supp. 90, 94--95(5). But plaintiff insists that the Webb Chevrolet did become an 'uninsured automobile' within the meaning of the denial of coverage definition, i.e., an automobile on which there was a bodily injury liability insurance policy 'applicable at the time of the accident but the company writing the same denies coverage thereunder.' Before proceeding to a discussion of that contention, we emphasize preliminarily that plaintiff's counsel specifically disavow any belief 'that the definition provided by the policy is ambiguous.'

Reduced to its simplest terms, the determinative question here becomes whether Crown denied coverage by going into receivership during the seventh month after the accident of October 13, 1963, and failing to defend Webb's administrator against Counts I and II of plaintiff's petition. Counsel have cited, and we have found, no reported Missouri case defining the critical words 'denies coverage' or dealing with the precise problem here presented. ¹ However, both the verb 'deny' and the noun 'coverage' are familiar words frequently used and, in the absence of any indication that the parties to the policy contract entertained a...