Sterns v. M. F. A. Mut. Ins. Co.

• Citation: 401 S.W.2d 510,26 A.L.R.3d 919
• Decision Date: 25 February 1966
• Docket Number: 24162,Nos. 24207,s. 24207
• Parties: Kermit STERNS and Geraldeen Sterns, Plaintiffs-Appellants, v. M.F.A. MUTUAL INSURANCE COMPANY, a Missouri corporation, Defendant-Respondent. Kermit STERNS, Administrator of the Estate of Carolyn Sue Sterns, Deceased, Plaintiff-Appellant, v. M.F.A. MUTUAL INSURANCE COMPANY, a Missouri corporation, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 510

401 S.W.2d 510

26 A.L.R.3d 919

Kermit STERNS and Geraldeen Sterns, Plaintiffs-Appellants, v. M.F.A. MUTUAL INSURANCE COMPANY, a Missouri corporation,

Defendant-Respondent.

Kermit STERNS, Administrator of the Estate of Carolyn Sue

Sterns, Deceased, Plaintiff-Appellant, v. M.F.A. MUTUAL INSURANCE COMPANY, a Missouri corporation,

Defendant-Respondent.

Nos. 24207, 24162.

Kansas City Court of Appeals, Missouri.

Feb. 25, 1966.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 4, 1966.

Application to Transfer Denied May 9, 1966.

E. J. Murphy, butler, for appellants.

William J. Cason, Clinton, Harold L. Caskey, Butler, for respondent.

CROSS, Presiding Judge.

Two separate cases are the subject of this opinion. The appeals were taken severally but were later consolidated for appeal purposes. The two cases are successive actions to recover $10,000.00 for the wrongful death of an automobile accident victim. The suits were instituted by the respective plaintiffs, acting in successively different capacities, against M.F.A. Insurance Company, as defendant, under the same uninsured motorist coverage provided by a policy of automobile insurance issued to Kermit Sterns as the named insured.

The subject deceased was Carolyn Sue Sterns, the minor daughter of Kermit Sterns and Geraldeen Sterns, his wife. On August 4, 1963, she suffered death from bodily injury accidentally sustained while riding as a passenger in a car owned and operated by one Danny Ross Green. At that time she was 18 years old, unmarried, and residing with her parents in their home.

The first suit, case No. 24,207, was filed on November 22, 1963, by plaintiffs Kermit and Geraldeen Sterns, as parents of deceased, against M.F.A. as defendant. The trial court entered a judgment of dismissal on February 28, 1964, by sustaining defendant's motion to dismiss plaintiffs' petition on the grounds tht it 'fails to state a cause of action and wholly fails to state any grounds upon which the court could granted plaintiffs any relief'.

The second action, case No. 24,162, was filed against M.F.A. on March 6, 1964, by Kermit Sterns as Administrator of the Estate of Carolyn Sue Sterns, deceased. This suit was also dismissed by the trial court by judgment entered on July 22, 1964--also on grounds that plaintiff's petition 'fails to state a cause of action' and 'fails to state grounds upon which the court could grant plaintiff any relief'.

The petition filed by Kermit and Geraldeen Sterns in the first suit, case No. 24,207, contains allegations that they were the natural parents of Carolyn Sue Sterns and that defendant M.F.A., as an authorized corporate insurance company, issued to plaintiff Kermit Sterns a policy of automobile insurance which 'contained protection for plaintiffs up to $10,000.00 against damages caused by an uninsured motorist'--by reason of the following quoted clause contained in the insuring agreement V of the policy:

'1. COVERAGE E--Uninsured Motorist Coverage. The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; * * *'.

Additional policy provisions pleaded in the petition are definitions of 'insured' and 'uninsured automobiles' (in pertinent part) as used in Coverage E, quoted respectively as follows:

'2. Definition of Insured--With respect to the insurance afforded under Coverage E the unqualified word 'insured' means (a) the first named insured, his spouse and any relative; * * *'.

'3. Definition of Uninsured Automobile.--'Uninsured automobile' means (1) an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile; or (2) an automobile with respect to the ownership, maintenance or use of which the only bodily injury liability insurance policy or bond applicable thereto at the time of the accident with respect to any person or organization legally responsible for the use of such automobile was issued by an 'insolvent insurer,' which means an insurer whose insolvency is declared and determined, by legal proceedings, not later than three years after the date of the accident; or (3) a 'hit and run automobile', * * *'.

The petition contains additional allegations of fact to the effect that plaintiffs' minor daughter was killed on August 4, 1963, while riding as a passenger in an automobile driven by one Danny Ross Green and as a direct result of his negligence in operating the vehicle at excessive speed, losing control over it, running it off the highway into the ditch and causing it to overturn, and that Green was then operating an 'uninsured automobile' within the meaning of the policy. Plaintiffs further allege that by reason of Green's negligence resulting in the death of their minor child they sustained loss of her services and incurred obligation for her funeral expenses, and are 'legally entitled to recover damages from Danny Ross Green for the death of their child'. The petition concludes with averments that plaintiffs gave M.F.A. due notice and proofs of loss and notice that Green was uninsured, and that M.F.A. has refused to pay plaintiffs under Coverage E although due demand was made. Plaintiffs pray judgment for $10,000.00. No copy of the policy was attached to the petition as an exhibit.

The petition filed in case No. 24,162 (the second suit) appears to be generally adapted from the petition filed by the parents in case No. 24,207, with some necessary variation, with additionally pleaded policy language, and with a copy of the policy attached to it. The pleading states that Carolyn Sue Sterns died intestate on August 4, 1963; that she was then single and without issue, and that she was survived by Kermit Sterns and Geraldeen Sterns, who as her natural parents were her heirs and distributees; also, that plaintiff Kermit Sterns is administrator of the estate of Carolyn Sue Sterns and that as her 'legal representative' he is 'legally entitled to recover' from the uninsured motorist the damages sustained by Kermit and Geraldeen Sterns as natural parents of the deceased minor child. The administrator's petition quotes the pertinent text of Coverage E (the uninsured motorist clause), the definition of 'insured' and the definition of 'uninsured automobile', as those provisions are set out in the parents' petition, but pleads two additional provisions, to wit, definitions of the words 'relative' and 'bodily injury' contained in the insuring agreements of the policy, quoted respectively as follows:

"Relative' means the spouse of the named insured and any relative of the named insured or spouse who is a resident of and actually living in the same household as the named insured'.

"Bodily injury' means bodily injury, sickness or disease and includes death resulting therefrom at any time'.

Otherwise, the allegations of the two petitions as to issuance of the policy; negligence on the part of Danny Ross Green; the resulting accident and death of Carolyn Sue Sterns; the status of Green as an uninsured motorist; the nature of loss and damage sustained by the parents; their compliance with policy terms and requirements; and, M.F.A.'s refusal to pay after demand,--are essentially identical. The two petitions contain identical prayers for the recovery of $10,000.00.

In the first point of appellants' brief it is contended on behalf of plaintiffs Kermit and Geraldeen Sterns that the trial court erred in sustaining defendant's motion to dismiss their petition filed in case No. 24,207, 'because said parents' petition did not set forth a claim for which relief could be granted'. Plaintiff parents take the position that they have pleaded sufficient facts to establish that Coverage E 'does cover the death of their minor child and that payment of the benefits should be made to them as parents'.

Defendant counter-contends that the parents' petition did not set forth a claim for which relief could be granted, primarily on the ground that the uninsured motorists clause (Coverage E) was not intended to and does not afford indemnity to any surviving husband, wife, minor child or children, or surviving parent or parents (as named in V.A.M.S., Sec. 537.080) for damages resulting from wrongful death of an insured caused by an uninsured motorist, or entitle any one of those named persons to maintain suit on the policy. Defendant concedes in oral argument that the administrator or executor of such an insured would be entitled to payment of the damages and to bring an action to recover such damages 'in a proper case'--meaning if none of the other persons named in the wrongful death statutes were left surviving the deceased. Defendant insists that the term 'legal representative' can be interpreted only in its strict legal sense--that is, as 'administrator' or 'executor'--and submits that Kermit and Geraldeen Sterns cannot be considered to be the legal representative of their deceased daughter. Furthermore, says defendant, there is no allegation in the petition to that effect.

Our preliminary examination of the issue thus presented indicates that its determination depends primarily upon the construction to be placed upon the term 'legal representative' which the policy contains but does not define. It is clearly obvious (and conceded by defendant) that the policy provides coverage for wrongful death at least in cases where the decedent is represented by an administrator or executor and none of the other classes entitled to sue is in existence. This being so, is there any substantial reason to conclude that surviving husbands, wives, fathers, mothers and minor...