Shelter Mut. Ins. Co. v. Baker, 15343

• Decision Date: 13 July 1988
• Docket Number: No. 15343,15343
• Parties: SHELTER MUTUAL INSURANCE COMPANY, A Corporation, Plaintiff-Appellant, v. Michelle Evelyn BAKER, Defendant, and Robert W. Turner, a minor, by his Guardian ad Litem William R. Turner, and William R. Turner, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 646

753 S.W.2d 646

SHELTER MUTUAL INSURANCE COMPANY, A Corporation, Plaintiff-Appellant, v. Michelle Evelyn BAKER, Defendant and Robert W. Turner, a minor, by his Guardian ad Litem William R. Turner, and William R. Turner, Defendants-Respondents.

No. 15343.

Missouri Court of Appeals,

Southern District,

Division Two.

July 13, 1988.

Kenneth H. Reid, Sherry A. Rozell, Turner, Reid, Duncan, Loomer & Patton, Springfield, for plaintiff-appellant.

Jack Hoke, Hoke & Miller, Springfield, for defendants-respondents.

PREWITT, Presiding Judge.

Plaintiff sought declaratory judgment determining the rights and liabilities of the parties as they related to automobile insurance policies issued by plaintiff to Willie F. Baker. The trial court found that those policies provided liability insurance coverage for Michelle Baker, Willie F. Baker's daughter, while she was operating an automobile which was involved in a collision. Mr. Baker had purchased the automobile eight days before the collision. Plaintiff appeals.

Willie F. Baker owned two motor vehicles on May 7, 1984. Liability coverage for each automobile was furnished by separate policies issued by plaintiff. Each policy contained the following provision:

VII--AUTOMATIC INSURANCE FOR NEWLY ACQUIRED AUTOMOBILES

The insurance afforded by this policy with respect to the described automobile applies to any other automobile of which the named insured or spouse acquires ownership if it replaces the described automobile or is an additional automobile and the Company insures all automobiles owned in whole or in part by the named insured and spouse on date of such acquisition; provided that the named insured or spouse notifies the Company while this policy is in force and within 30 days after the date of such acquisition of his election to make the insurance afforded by this and no other policy affording similar insurance issued by the Company applicable to such automobile. The insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured or spouse has other collectible insurance. The named insured shall pay any additional premium required because of the application of the insurance to any newly acquired automobile.

On May 7, 1984, Willie F. Baker purchased a 1975 Ford. The car was for Michelle, then 16 or 17 years old, to drive, primarily to work. Willie F. Baker, his wife, and Michelle, lived on a rural route outside Springfield. Michelle worked in Springfield. On May 15, 1984, while Michelle was operating the vehicle, it left the roadway, overturned, and a passenger, defendant Robert W. Turner, was injured. She and Turner had been to her house and were going to Willard to take his mother a bowling ball. On that day the two insurance policies issued by plaintiff to Willie F. Baker were still in effect. When her father refused to notify plaintiff of the accident, Michelle did. The only reference in the record as to when she notified plaintiff was a question put to Willie F. Baker. He was asked if Michelle had notified plaintiff "very shortly after the accident while Mr. Turner was still in the hospital?" He replied, "Yeah, I think it was." How long Mr. Turner was in the hospital was not established.

Willie F. Baker testified that Michelle was not to drive the car until she acquired insurance on it. She was to purchase her own insurance. Mr. Baker said he did not notify plaintiff of the purchase of the 1975 Ford as he never had any intention of having the vehicle included on his other insurance policies. He said Michelle did not have his permission to operate it at the time of the collision. After the automobile was purchased he no longer took Michelle to work and school as he had done previously. He said he did not know how she got there. His wife did not drive.

Michelle Baker testified that after the car was purchased she kept the keys and drove it to school, to work and other places. She said that her father was aware of this and she had his permission to drive it but he urged her to be careful until she acquired insurance.

Plaintiff states in its first point that the trial court erred in "holding that the policy provision relating to newly acquired vehicles should be interpreted so as to extend coverage to Michelle Baker when the named insured, Willie F. Baker (1) had no intention of electing to make the insurance afforded by the policies applicable to the 1975 Ford, (2) did not notify the company within 30 days after the date of acquisition of the vehicle of an election to make the insurance afforded by the Shelter Mutual Insurance Policies applicable to such automobile, and (3) did not pay an additional premium for the addition of another vehicle, all of which are prerequisites to coverage of a newly acquired vehicle under said policies."

The parties have not cited any Missouri cases with similar facts. Plaintiff relies upon three cases arising in Florida which denied insurance coverage. However, neither Garrote v. Liberty Mutual Insurance Co., 496 F.2d 1168 (5th Cir.1974), nor Johnson v. Travelers Indemnity Co., 438 So.2d 1045 (Fla.App.1983), as far as we can tell, explains whether the collisions occurred within the time of the 30 day notice requirement of the policies there in question, or thereafter.

Lowe v. State Farm Mutual Automobile Insurance Co., 420 So.2d 318 (Fla.App.1982), involved a vehicle which was involved in a collision five days after its purchase. The insurance company had not been notified of that vehicle. With almost no discussion the court found that the failure of the insured to notify the insurer of the acquisition of the car prevented it being qualified for coverage as a "newly acquired car". 420 So.2d at 319.

Three Missouri cases contain language indicating that coverage under newly acquired automobile provisions of an automobile liability policy comes into effect automatically and that if notice is given in accordance with those provisions, the policies' coverage continues after the notice period. See Hall v. Weston, 323 S.W.2d 673, 676 (Mo.1959) (vehicle was covered for 29 days without any action on insured's part); Missouri Managerial Corp. v. Pasqualino, 323 S.W.2d 244, 249 (Mo.App.1959) (coverage automatically transferred to new vehicle for 30 days and would continue if, within that period, the insurance company was notified); Union Automobile Indemnity Ass'n v. Reimann, 171 S.W.2d 721, 725 (Mo.App.1943) (coverage "unquestionably" afforded without notice of the purchase until notice period expires). As none of these cases involved collisions occurring within the notice period, these statements could be considered as dictum.

It appears to be the overwhelming weight of authority "that under an automatic insurance clause requiring an insured to give notice to an insurer within a specified time following his acquisition of ownership or acceptance of delivery of a replacement or additional vehicle, such newly acquired vehicle is automatically covered for liability arising from the operation thereof during such notice period" without notice or the payment of an additional premium. See Annotation, Construction and Application of "Automatic Insurance" or "Newly Acquired Vehicle" Clause ("Replacement", and "Blanket," or "Fleet" Provisions) Contained in Automobile Liability Policy. 39 ALR 4th 229, 302-307 (1985). Lowe and the other cases cited by plaintiff, if on point, apparently follow the minority view.

We believe the majority position is correct and should be followed. The purchase of a vehicle could often take place at a time when it was impossible or at least impractical to notify an insurance company of its purchase. That could continue for several days after its purchase. If notice is required then the policy would not provide "automatic insurance for newly acquired automobiles" as the provision is titled. Notice would be required as in any other change of coverage. In addition, as the trial judge has stated in his findings, it is illogical for coverage to be afforded retroactive to a collision by the giving of notice and the paying of a premium.

What Mr. Baker may have intended regarding coverage does not change the result. The express terms in a policy providing newly acquired automobile coverage apply and provide coverage within the notice period, notwithstanding the insureds' intention that other insurance be acquired for the vehicle by their sibling, Dolan v. Welch, 462 N.E.2d 794, 797-798 (Ill.App.1984), or the insured's intention not to insure the newly acquired automobile, Central National Insurance Co. v. LeMars Mutual Insurance Co., 294 F.Supp. 1396, 1401 (S.D. Iowa 1968).

Any understanding between plaintiff and Willie F. Baker after the collision is irrelevant. Turner's rights regarding the policies commenced at the time of the collision. Under § 379.195, RSMo 1978, where a casualty is covered by liability insurance, the right of the injured person to insurance proceeds following judgment attaches as of the date of the occurrence. State ex rel. McCubbin v. Ginn, 347 S.W.2d 119, 125 (Mo. banc 1961) (Storckman, J., concurring, with the concurrence of a majority of the court). See also Pennsylvania Casualty Co. v. Phoenix, 139 F.2d 823, 827 (10th Cir.1944) (under Missouri law the rights of an injured party under automobile liability insurance cannot be impaired by subsequent agreement or collusive action of the insured and insurer).

The insurance applied to the 1975 Ford for 30 days without the necessity of notice or the payment of an additional premium. Willie F. Baker's intention not to have it covered thereafter, or even before, does not prevent that coverage. This point is denied.

Plaintiff states in its remaining point that the trial court erred in finding that Michelle Baker had permission to drive the 1975 Ford at the time of the collision because it was against the weight of the evidence as the insured stated that she did not have permission....