Stosberg v. Elec. Ins. Co.
| Decision Date | 09 February 2021 |
| Docket Number | WD 83723 consolidated with WD 83741 |
| Citation | 623 S.W.3d 601 |
| Parties | Collin M. STOSBERG, Appellant, v. ELECTRIC INSURANCE COMPANY, Respondent. |
| Court | Missouri Court of Appeals |
James Manning, Harrisonville, MO, Counsel for Appellant.
Phillip Smith, Kansas City, MO, Co-Counsel for Appellant.
Shawn Rogers, Kansas City, MO, Counsel for Respondent.
Angela Higgins, Kansas City, MO, Co-Counsel for Respondent.
Douglas Hill, Overland Park, KS, Co-Counsel for Respondent.
Before Division One: Thomas N. Chapman, P.J., Mark D. Pfeiffer, and W. Douglas Thomson, JJ.
Collin Stosberg ("Stosberg") appeals from the Platte County Circuit Court's entry of summary judgment in favor of Electric Insurance Company ("Electric") on Stosberg's claim for Uninsured Motorist ("UM") benefits. The trial court based its entry of summary judgment on three independent grounds: (1) UM coverage did not apply to Stosberg's injuries because his injuries did not "arise out of the ownership, maintenance, or use of the ‘uninsured motor vehicle’ "; (2) an exclusion to Stosberg's UM coverage applied; and (3) workers’ compensation, rather than private automobile insurance, is the remedy chosen by the legislature to provide financial compensation for injury or death sustained in the line of duty by Missouri State Highway Patrol officers. Stosberg asserts that the trial court erred on each of these three grounds. The judgment is reversed and the case is remanded.
This case arises out of an injury Stosberg alleged that he suffered while working a DUI checkpoint in the scope of his duties as a sergeant with the Missouri State Highway Patrol. A suspect on a motorcycle, Del Osborne ("Osborne"), was stopped at the checkpoint. Osborne refused orders to get off of his motorcycle or shut the motorcycle off. Stosberg alleged that while attempting to apprehend Osborne, Stosberg had a hold of Osborne's backpack when Osborne accelerated his motorcycle forward, causing injury to Stosberg's neck as Stosberg pulled Osborne from the motorcycle.
After the incident, Stosberg made a claim against his employer, the Missouri State Highway Patrol, for workers’ compensation benefits relating to the injuries he claimed to have sustained in the incident. In connection with his workers’ compensation claim, Stosberg received $9,433.73 in medical expenses, and he received $19,093.20 as a lump sum settlement from the Missouri Highway & Transportation Commission ("MHTC"), the insurer of the Missouri State Highway Patrol's workers’ compensation liability. The settlement was approved by an administrative law judge.
In his Fourth Amended Petition in the instant action, Stosberg asserted a negligence claim against the Estate of Del Osborne.1 Stosberg also asserted two counts against Electric, alleging (1) the breach of an insurance agreement and (2) vexatious refusal to pay. At the time of the incident, Stosberg had $200,000 of uninsured motorist coverage with Electric pursuant to his personal auto insurance policy. Electric denied Stosberg coverage with respect to the incident. The UM endorsement in Stosberg's policy provided:
The policy also provided exclusions to the policy's UM endorsement. One such exclusion provided:
As this case proceeded, Electric moved for summary judgment on Stosberg's claims against it. The trial court granted summary judgment to Electric on Stosberg's UM claim based upon three independent grounds: (1) Stosberg's injuries did not, as a matter of law, "arise out of" Osborne's "use" of a motor vehicle; (2) the abovementioned exclusion in Stosberg's policy applied to his claim; and (3) "Workers’ compensation, not private automobile insurance, is the remedy chosen by both the legislature and the Missouri Highways and Transportation Commission to provide financial compensation for injury or death sustained in the line of duty by Missouri State Highway Patrol Officers." The trial court also granted summary judgment on Stosberg's vexatious refusal claim on the same grounds as his UM claim, "but also because the undisputed facts show[ed] that Electric's refusal to pay UM benefits was not without reasonable cause or excuse."2
Stosberg appeals.
"Appellate review of summary judgment is de novo. " Seaton v. Shelter Mut. Ins. Co. , 574 S.W.3d 245, 246 (Mo. banc 2019) (citing ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) ). We review "the record in the light most favorable to the party against whom judgment was entered." Id. "The party against whom summary judgment was entered is accorded the benefit of every doubt." Id. at 246-47 (citing Korando v. Mallinckrodt, Inc. , 239 S.W.3d 647, 648-49 (Mo. App. E.D. 2007) ). "Summary judgment is proper when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law." Sofia v. Dodson , 601 S.W.3d 205, 209 (Mo. banc 2020) (internal quotations omitted).
"The interpretation of an insurance policy is a question of law" that we review de novo. Seeck v. Geico Gen. Ins. Co. , 212 S.W.3d 129, 132 (Mo. banc 2007). "Disputes arising from the interpretation and application of insurance contracts are matters of law for the court where there are no underlying facts in dispute." Watters v. Travel Guard Int'l , 136 S.W.3d 100, 107 (Mo. App. E.D. 2004).
Stosberg raises three points on appeal. In his first point, he argues that the trial court erred in finding that Stosberg's injuries did not arise out of Osborne's use of his motorcycle in that it was Osborne's acceleration of the motorcycle that caused Stosberg to fall backward and feel a "pop" in his neck. In his second point, Stosberg contends that the trial court erred in finding that Stosberg's UM claim was excluded by policy language that stated that coverage "shall not apply directly or indirectly to benefit any insurer or self-insurer under any ... workers’ compensation law" because the workers’ compensation insurer has no right of subrogation against first party uninsured motorist coverage in that section 287.1503 provides a right of subrogation only against "third persons." In his third point, Stosberg argues that the trial court erred in finding that the legislature intended for workers’ compensation to be Stosberg's exclusive remedy.
At the outset, there appears to be a factual dispute between the parties about whether Osborne accelerated the motorcycle during the incident. Electric points to Stosberg's prior accounts of the incident and contends that there was no mention of the motorcycle's acceleration in Stosberg's account of the incident in his police report or in his workers’ compensation injury report. However, in Stosberg's examination under oath, Stosberg testified that the injury occurred when Osborne accelerated the motorcycle forward.
Electric argues that Stosberg's account of the incident in his deposition is inconsistent with his prior accounts of the incident and that "a party may not avoid summary judgment by giving inconsistent testimony and then claiming the inconsistencies demonstrate a genuine issue of material fact." Calvert v. Plenge , 351 S.W.3d 851, 855 (Mo. App. E.D. 2011). In Calvert , the trial court entered summary judgment in favor of the plaintiff on the defendant's counterclaims. Id. at 853. The trial court had excluded an affidavit that the defendant sought to introduce to establish a genuine issue of material fact. Id. at 855. This affidavit included information that was omitted from the defendant's earlier deposition testimony. Id. at 856. The issue on appeal was whether the subsequent affidavit was inconsistent with the defendant's prior testimony. Id. at 855. On appeal, the court found that, although the affidavit contained information that was not asserted in the defendant's earlier deposition, the subsequent affidavit did not affirmatively contradict her earlier testimony. Id. at 856. Thus, the Calvert court held that the trial court erred in disregarding the defendant's affidavit. Id.
In the matter before us, there was no affirmative contradiction between Stosberg's deposition testimony and his earlier police report or workers’ compensation report. See id. at 856. That is, while Stosberg's earlier accounts of the incident do not specifically mention that the vehicle was in motion, they do not affirmatively state that the motorcycle was not in motion either. The omission of the motorcycle's acceleration in Stosberg's earlier accounts of the incident could be viewed as having a detrimental effect on the credibility of his subsequent testimony that asserts he was injured when the motorcycle was accelerated. However, credibility determinations are inappropriate at the summary judgment stage. United Missouri Bank, N.A. v. City of Grandview , 105 S.W.3d 890, 898 (Mo. App. W.D. 2003). Whether or not Osborne accelerated the motorcycle in the incident is a fact issue for the finder of fact. At the summary judgment stage, we view the facts in the light most favorable to the non-moving party (Stosberg). Seaton , 574 S.W.3d at 246. In the light most favorable to Stosberg, Osborne accelerated his motorcycle while Stosberg had ahold of Osborne's backpack.4
However, our analysis does not end there, as Electric asserts that...
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