Stewart v. Liberty Mut. Fire Ins. Co.

• Decision Date: 26 July 2011
• Docket Number: No. WD 72379.,WD 72379.
• Citation: 349 S.W.3d 381
• Parties: Kyle STEWART, Appellant,v.LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent.
• Court: Missouri Court of Appeals

349 S.W.3d 381

Kyle STEWART, Appellant,

v.LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent.

No. WD 72379.

Missouri Court of Appeals, Western District.

July 26, 2011.Application for Transfer to Supreme Court

Denied Aug. 30, 2011.

Application for Transfer Denied

Oct. 25, 2011.

Sidney E. Wheelan, Moberly, MO, for appellant.Bruce A. Moothart and Ryan J. Watson, Kansas City, MO, for respondent.Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, JAMES M. SMART, Judge and GREGORY GILLIS, Special Judge.

PER CURIAM.

Kyle Stewart appeals the summary judgment granted in favor of Liberty Mutual Fire Insurance Company on Stewart's breach of contract claim. Stewart contends the circuit court erred in determining that the anti-stacking language in his automobile liability insurance policy is not ambiguous. For reasons explained herein, we affirm the summary judgment.

Factual and Procedural History

In February 2007, Kyle Stewart, while a passenger in a vehicle driven by Zachary Tanner, was seriously injured in a single car collision. Tanner was insured by American Standard Insurance Company of Wisconsin on an automobile policy with a $100,000 limit. Stewart was insured by Liberty Mutual with a $100,000 policy limit for underinsured motorist (UIM) coverage on four separate vehicles.

Stewart obtained a judgment against Tanner for $500,000. American Standard paid Tanner's $100,000 policy limit to Stewart. Liberty Mutual denied Stewart's claim for payment on his UIM coverage.

On June 11, 2008, Stewart filed a petition alleging that Liberty Mutual breached the insurance contract by failing to pay the UIM policy limit of $100,000 on each of the four covered vehicles, for a total of $400,000. Two months later, Liberty Mutual paid Stewart $100,000 and denied any obligation to pay the policy limit on the remaining three vehicles based on an anti-stacking ¹ provision in the policy.

In February 2010, Stewart was granted leave to file a Second Amended Petition alleging three counts against Liberty Mutual. Count I alleged breach of contract for failure to pay an additional $300,000 for stacked coverage on the UIM insurance policy. Count II alleged vexatious refusal to pay the first $100,000 in underinsured coverage within thirty days without reasonable cause. Count III alleged vexatious refusal to pay the additional $300,000 in stacked coverage.

Liberty Mutual filed a motion for summary judgment contending that its limit of liability for UIM coverage was $100,000, which Stewart had already been paid. On March 10, 2010, the circuit court granted partial summary judgment, finding in favor of Liberty Mutual on Count I of the Second Amended Petition. Five days later, the circuit court made a docket entry stating: “As to Court [']s ruling in favor of Defendant and against Plaintiff as to Defendant's motio [n] for partial judgment on Count I, pursuant to Rule 74.01(b) said judgment is final and Court determines there is not a just reason for delay.”

On April 15, 2010, Stewart moved to voluntarily dismiss without prejudice Counts II and III of his Second Amended Petition. By docket entry, the circuit court entered an order dismissing Counts II and III without prejudice on April 18, 2010.

Stewart appeals the summary judgment ruling on his Count I claim.

Final judgment

We first address Liberty Mutual's contention that this appeal should be dismissed due to lack of a final judgment. Liberty Mutual argues the partial summary judgment ruling on Count I did not resolve a “distinct judicial unit” because the related claims in Counts II and III remained pending. Liberty Mutual further asserts that Stewart cannot avoid the “distinct judicial unit” requirement by voluntarily dismissing Counts II and III without prejudice.

We have authority to review a case upon the issuance of a “final judgment” by a trial court. § 512.020; ² Rule 74.01 ³. As a general rule, a final judgment must dispose of all parties and all issues in the case and leave nothing for future determination. Goodson v. Nat'l Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App.2004). If the judgment is not final, we lack authority to consider the case and must dismiss the appeal. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App.2001).

Rule 74.01(b) provides an exception to this general rule and permits the trial court to designate a final judgment “as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay.” The trial court's designation of a judgment as final “is effective only when the order disposes of a distinct ‘judicial unit.’ ” Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). A judicial unit means that there has been final judgment on a claim, “and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim.” Id. (quoting State ex rel. State Highway Comm'n v. Smith, 303 S.W.2d 120, 123 (Mo.1957)).

The necessity of determining whether the trial court's judgment disposed of a “distinct judicial unit” only arises when other claims or counts “remain pending” before the court. Id. In this case, the circuit court's order granting partial summary judgment on Count I did not dispose of a “distinct judicial unit,” because, at a minimum, Count I arose out of the same transaction or occurrence underlying Count III. Nevertheless, Stewart later voluntarily dismissed the remaining vexatious refusal claims in Counts II and III. Thus, there were no pending claims or parties and nothing left for determination by the circuit court. Upon the dismissal of Counts II and III, the previously “partial summary judgment” on Count I became a final judgment for purposes of appeal. See Magee v. Blue Ridge Prof'l Bldg. Co., Inc., 821 S.W.2d 839, 842 (Mo. banc 1991) (summary judgment dismissing plaintiff's claim against one party for failure to state a claim, coupled with plaintiff's voluntary dismissal without prejudice of the remaining parties, previously partial summary judgment became a final judgment); Mattes v. Black & Veatch, 828 S.W.2d 903, 906 n. 4 (Mo.App. W.D.1992) (summary judgment granted to Black & Veatch, other defendants dismissed without prejudice, final judgment exists); Partney v. Reed, 839 S.W.2d 694 (Mo.App. S.D.1992) (summary judgment granted to plaintiff on their petition, summary judgment granted to plaintiff on defendant's counterclaim, defendant dismisses third-party petition resulting in final judgment for appeal).

We disagree with Liberty Mutual's assertion that the dismissal of Counts II and III without prejudice was improper as an attempt to “manufacture appellate jurisdiction.” ⁴ Stewart was entitled to dismiss Counts II and III under Rule 67.02(b). The circuit court entered an order approving the dismissal on April 18, 2010. Once voluntarily dismissed, it was as if Counts II and II had never been filed, and the circuit court had no power to reinstate or otherwise consider the claims. Richter v. Union Pac. R.R. Co., 265 S.W.3d 294, 297, 299 (Mo.App.2008). The summary judgment on Count I is a final judgment because no other claims or parties remain pending. Accordingly, we have appellate jurisdiction to review the summary judgment.

Propriety of Summary Judgment

We turn now to the substantive issue on appeal. Stewart contends the circuit court erred in granting summary judgment in favor of Liberty Mutual on the breach of contract claim in Count I. Although the court did not explain the reason for its decision, we must presume that summary judgment was granted based on the reasons set forth in Liberty Mutual's motion for summary judgment. Grisamore v. State Farm Mut. Auto. Ins.Co., 306 S.W.3d 570, 573 (Mo.App.2010) The motion argued that the limit of liability for Stewart's UIM coverage is $100,000 based on an anti-stacking provision in his automobile insurance policy. Stewart contends the circuit court erred in granting summary judgment on this ground because the anti-stacking language is ambiguous and, therefore, must be construed against Liberty Mutual.

A trial court may enter summary judgment for a moving party where there is a right to judgment as a matter of law based on facts about which there is no genuine dispute. Durbin v. Deitrick, 323 S.W.3d 122, 125 (Mo.App.2010). Our review of a summary judgment is de novo. Id. Likewise, whether an insurance policy is ambiguous is also a question of law for our de novo review. Id.

Liberty Mutual provided UIM coverage to Stewart for the policy limit of $100,000 on four separate vehicles. The relevant terms of the insurance policy are as follows:

INSURING AGREEMENT

A. We will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of an “underinsured motor vehicle” because of “bodily injury”:

1. Sustained by an “insured”, and

2. Caused by an accident.

The owners or operators liability for these damages must arise out of ownership, maintenance or use of the “underinsured motor vehicle”...

LIMIT OF LIABILITY

A. The limit of liability shown in the schedule or in the declarations for each person for underinsured motorist coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of “bodily injury” sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the schedule or in the declarations for each accident for underinsured motorist coverage is our maximum limit of liability for all damages for “bodily injury” resulting from any one accident.

This is the most we will pay regardless of the number of:

1. “Insureds”;

2. Claims made;

3. Vehicles or premiums shown in the schedule or in the declarations; or

4. Vehicles involved in the accident ...

OTHER INSURANCE

If there is other applicable insurance available under one or more policies or provisions of coverage that is similar to the...