Shepherd v. American States Ins. Co.

• Citation: 671 S.W.2d 777
• Decision Date: 19 June 1984
• Docket Number: No. 65673,65673
• Parties: Nancy SHEPHERD, Appellant, v. AMERICAN STATES INSURANCE COMPANY, Respondent.
• Court: United States State Supreme Court of Missouri

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671 S.W.2d 777 Nancy SHEPHERD, Appellant,
v.
AMERICAN STATES INSURANCE COMPANY, Respondent. No. 65673. Supreme Court of Missouri,
En Banc. June 19, 1984.

L. Glen Zahnd, Clifford P. Black, Jr., Savannah, for appellant.

Jack T. Bangert, Joseph A. Sherman, Kansas City, for respondent.

BILLINGS, Judge.

The trial court granted defendant American States' motion for summary judgment and denied coverage under the uninsured

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motorist provision of plaintiff's policy. The Missouri Court of Appeals, Western District, reversed and remanded the case to the circuit court with directions to sustain plaintiff's motion for summary judgment and to enter judgment in the amount of $20,000 with interest from the date of judgment. We ordered the case transferred because of the general interest and importance of the questions presented. We reverse and remand for further proceedings.

Plaintiff's husband was killed in a two-car collision while operating a dump truck owned by him and plaintiff and insured by Auto-Owners Mutual Insurance Company. The other vehicle was uninsured. Auto-Owners paid plaintiff the uninsured motorist coverage of its policy for the death of her husband. Plaintiff and decedent had a policy of insurance with defendant American States insuring two passenger vehicles. Both plaintiff and her husband were named insureds on this policy. The policy provided uninsured motorist coverage to the named insureds in the amount of $10,000 per person and $20,000 per accident. This policy included the following exclusion:

A. We do not provide Uninsured Motorist Coverage for bodily injury sustained by any person:

1. While occupying, or when struck by, any motor vehicle or trailer of any type owned by you, any family member or any other person named on endorsement 9-27 attached, which is not insured for this coverage under this policy. (emphasis added).

Separate premiums were charged for both of the automobiles.

Plaintiff brought suit against defendant American States asserting that under its policy she was entitled to recover the uninsured motorist coverage. American States pleaded the exclusion, and on cross motions for summary judgment, American States prevailed. Plaintiff appealed and the court of appeals reversed and ordered entry of summary judgment on behalf of plaintiff on the issues of coverage, liability and damages.

The issue is the validity of the "owned vehicle exclusion" of uninsured motorist coverage in defendant's policy. Plaintiff argues that under § 379.203, RSMo 1978, the uninsured motorist coverage must extend to her and her husband despite the exclusion. Defendant contends that the exclusion is valid and there is no uninsured motorist coverage under its policy.

Missouri's uninsured motorist statute, § 379.203, RSMo 1978, provides in pertinent part:

1. No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits for bodily injury or death set forth in section 303.030, RSMo, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.

The statute mandates that no automobile liability insurance shall be delivered or issued in this state unless uninsured motorist coverage is provided for not less than the limits set forth in the motor vehicle responsibility law. The statute contains no allowance for limitation or restriction on the insurer's liability.

In Cameron Mut. Ins. Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976), we held that § 379.203 mandated uninsured motorist coverage and that the parties were not free to enter into a contract which had the effect of diminishing the coverage the statute required. In Cameron, two cars were insured on a single policy with uninsured motorist coverage listed for each automobile and a separate premium paid for each. The policy also contained a separability clause which provided that the terms of the policy were to apply separately to each automobile if two or more automobiles

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were insured under the same policy. The named insured's wife was killed while driving one of the insured cars when she was struck by an uninsured motorist. In Cameron the court rejected the insurer's contention that the separability clause restricted uninsured motorist coverage to only the policy covering the vehicle involved in the accident....