Stewart v. Royal

• Decision Date: 12 July 2011
• Docket Number: No. WD 72604.,WD 72604.
• Citation: 343 S.W.3d 736
• Parties: Addrea STEWART, as Representative of the Wrongful Death Class with Respect to Brendan Johnson, Appellant,v.Mark ROYAL, Defendant,American Family Mutual Insurance Company, Respondent.
• Court: Missouri Court of Appeals

343 S.W.3d 736

Addrea STEWART, as Representative of the Wrongful Death Class with Respect to Brendan Johnson, Appellant,
v.
Mark ROYAL, Defendant,American Family Mutual Insurance Company, Respondent.

No. WD 72604.

Missouri Court of Appeals, Western District.

July 12, 2011.

[343 S.W.3d 736]

Mark Eldon Meyer, Kansas City, MO, for appellant.Leah Marie Mason, Kansas City, MO, for respondent.Division Four: LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., J., and GREGORY B. GILLIS, Sp.J.JAMES M. SMART, JR., Judge.

Addrea Stewart appeals the circuit court's grant of summary judgment in favor of the Respondent, American Family Mutual Insurance Company (“American

[343 S.W.3d 737]

Family”), denying uninsured motorist coverage for the death of her son under her automobile insurance policy. We affirm the grant of summary judgment.

Statement of Facts

On November 2, 2006, Brendan Johnson was killed when a vehicle driven by Mark Royal collided with the 1991 Chevrolet Cavalier owned and driven by Johnson. Royal was intoxicated at the time of the accident, and it is undisputed that his negligence caused Johnson's death. Royal's vehicle was an uninsured motor vehicle within the meaning of the policy of insurance at issue and Missouri law. At the time of the collision, Johnson's Cavalier also was not covered by an automobile insurance policy.

Addrea Stewart is the surviving mother of Johnson, who died without issue. Stewart brought this uninsured motorist claim against American Family, not as the executor of the estate of Brendan Johnson, but as a person statutorily entitled to prosecute a claim under the wrongful death act, section 537.080 RSMo.¹

At the time of the accident, Johnson resided with Stewart. Stewart owned a Ford Explorer which was insured by American Family. The policy on the Explorer provided uninsured motorist (“UM”) coverage with limits of $100,000 per person/ $300,000 per occurrence. The Stewart policy provides as follows with respect to UM coverage:

We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out of the use of an uninsured motor vehicle.

The UM portion of the policy defines “insured person” as:

a. You or a relative.

b. Anyone else occupying your insured car.

The “Definitions Used Throughout the Policy” section states in pertinent part as follows:

2. Bodily injury means bodily injury to or sickness, disease or death of any person.

....

7. Relative means a person living in your household, related to you by blood, marriage or adoption. .... It excludes any person who ... owns a motor vehicle other than an off-road motor vehicle.

In Count II of her petition (Count I was against Royal), Stewart sought UM benefits for the death of her son under the UM provisions of the Stewart policy. American Family filed a motion for summary judgment, relying on the “named driver exclusion” (“NDE”) endorsement that named Johnson as an excluded driver. The NDE was added to the policy after its original issuance to Stewart due to the termination of coverage for Johnson and for his vehicle. The exclusion was in effect on the date of the accident. It reads as follows:

To issue or continue this policy, I agree that the following exclusion is added:

This policy does not apply under any of the coverages to any vehicle in the care, custody or control of, or while operated by Brendan Johnson. .... All other terms, agreement, conditions and provisions remain unchanged.

[343 S.W.3d 738]

Stewart opposed the granting of summary judgment. The trial court relied on the NDE endorsement, stating that “the [Stewart] policy does not apply to any of the coverages if Brendan Johnson is driving.” The court granted summary judgment for American Family. Stewart appeals.

Standard of Review

This court's review of a trial court's grant of a motion for summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the whole record in the light most favorable to the non-moving party, and the non-moving party is to be given the benefit of all reasonable inferences. Id.; see also Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo.App.1999). Summary judgment is proper when the moving party has demonstrated that there is no genuine issue of material fact and that judgment is proper as a matter of law. Wallingsford v. City of Maplewood, 287 S.W.3d 682, 685 (Mo. banc 2009).

Analysis

Stewart's Point Relied On recites that the court erred because Stewart was entitled to recover damages under the policy for her “bodily injuries,” including her wrongful death damages resulting from the accident. She does not, in the Point Relied On, specifically address the exclusion relied on by the trial court. Instead, she states in her Point Relied On that the court erred because Ms. Stewart was entitled to recover damages caused by an uninsured motorist for her bodily injuries (including her wrongful death damages) resulting from the accident. She goes on, however, in the argument portion of the brief, to discuss the exclusion on which the trial court relied in granting summary judgment. Stewart, in addressing the language of the exclusion, says, in part:

The exclusion relied upon by American Family [ ] and the trial court is irrelevant and inapplicable in the instant case because the excluded driver, Brendan Johnson, is not Ms. Stewart. Addrea Stewart is a named insured who is making a claim against her policy for her damages. Accordingly, the named driver exclusion is inapplicable.

In addition, the named driver exclusion states that the policy and it[s] coverages do not apply “to any vehicle” operated by Brendan Johnson. Construing this language against the insurer, as the Court must, one must conclude that the coverages excluded are only those relating to the vehicle, such as property damage coverage, and not coverages relating to bodily injury. Coverage related to any vehicle is specifically excluded. Coverage for bodily injury suffered by “any person” is not mentioned. Accordingly, giving the language of the exclusion its plain and ordinary meaning, and construing this limitation on coverage against the insurer, one must conclude that the phrase “to any vehicle” limits the applicability of the exclusion to property damage coverage.

Although it would have been proper briefing under Rule 84.04 to have addressed the exclusion in the Point Relied On, we are able to discern the arguments and will ex gratia consider the contentions on appeal. Stewart is claiming that she is the injured “insured person” making a claim under her own policy. She says that she, as a named insured, is covered under the uninsured motorist coverage of the policy for wrongful death damages with respect to the death of any person as to whom she is entitled to bring a wrongful death claim.

[343 S.W.3d 739]

Stewart also points out that the exclusion is inapplicable because it says the coverages do not apply “to any vehicle” operated by Johnson. She points out that she is not making a claim for damage “to a vehicle” driven by Johnson, nor is she is making a claim under any coverage to Johnson's Chevrolet Cavalier, which had none. Stewart also says the excluded driver endorsement is ambiguous when read with the broad definition of bodily injury within the insurance agreement. She says the “to any vehicle” language is ambiguous and must be construed against the insurer.

American Family first responds to Stewart's arguments by emphasizing that Johnson was not an insured person under the policy. American Family also argues that the intent of the NDE endorsement is to exclude all coverage under the policy if Johnson is driving.

American Family points to the fact that the UM coverage provides that the “bodily injury must be sustained by an insured person.” American Family maintains that Johnson was not an insured person, and he was specifically excluded under the policy, meaning no recovery is available for Stewart. American Family also points out that Stewart, who is an insured person, did not suffer “bodily injury” herself. Her son was the person who suffered “bodily injury,” and the policy requires that the person sustaining the “bodily injury” be a person who is an insured person under the policy.

Named Driver Exclusion

We turn first to the issue of the NDE, which was relied upon by the trial court in granting summary judgment. Section 303.190.2(3), RSMo 2000, provides that a motor vehicle liability policy “[m]ay exclude coverage against loss from liability imposed by law for damages arising out of the use of such motor vehicles by a member of the named insured's household who is a specifically excluded driver in the policy.” There are “no public policy considerations [that] prohibit an insurance policy provision excluding a named insured from coverage under the policy.” Am. Family Mut. Ins. Co. v. Ward, 789 S.W.2d 791, 794 (Mo. banc 1990) (citing Cameron Mut. Ins. Co. v. Proctor, 758 S.W.2d 67, 70 (Mo.App.1988)); see also Yates v. Progressive Preferred Ins. Co., 331 S.W.3d 324, 331 (Mo.App.2011). We note that the statutory provision for the NDE does not mention UM coverage, but only liability coverage. Neither party addresses the possible linkage between the American Family NDE and the statutory language.

Specific statutory authorization or not, however, it is clear that under contract principles an insurer can, by clear language, deny UM coverage to a specific excluded person for claims arising from driving. American Family points to White v. Illinois Founders Insurance Co., 52 S.W.3d 597 (Mo.App.2001). American Family states that in White the court held that the named excluded driver was not an insured...