Walden v. Kenneth Smith & Am. Family Mut. Ins. Co.

• Decision Date: 15 April 2014
• Docket Number: No. WD 75982.,WD 75982.
• Citation: Walden v. Smith, 427 S.W.3d 269 (Mo. App. 2014)
• Parties: Cindy WALDEN, Appellant, v. Kenneth SMITH and American Family Mutual Insurance Company, Respondents.
• Court: Missouri Court of Appeals

427 S.W.3d 269

Cindy WALDEN, Appellant,

v.Kenneth SMITH and American Family Mutual Insurance Company, Respondents.

No. WD 75982.

Missouri Court of Appeals, Western District.

April 15, 2014.

Nicholas J. Zevenbergen, Kansas City, MO, for appellant.

Michael P. Waddell, Kansas City, MO, for respondent American Family.

Before Division One: CYNTHIA L. MARTIN, Presiding Judge, MARK D. PFEIFFER, Judge and KAREN KING MITCHELL, Judge.

CYNTHIA L. MARTIN, Judge.

Cindy Walden(“Walden”) appeals from the trial court's entry of summary judgment in favor of American Family Mutual Insurance Company(“American Family”).The trial court found that Walden's American Family automobile policies did not afford uninsured motorist coverage for injuries Walden sustained when a dog bit her through an open window of a vehicle because her injuries did not “arise out of the use” of the vehicle.We affirm.

Factual and Procedural Background

On September 28, 2006, Walden, an employee at a bar and grill in Gladstone, Missouri, was walking to her place of employment.She saw Kenneth Smith's (“Smith”) pick-up truck in the parking lot.Smith was sitting in the parked vehicle and had two pit bull terriers in the cab of his truck.Walden approached the truck and stood outside the driver's side door.One of Smith's dogs lunged through the open driver's side window and bit Walden on the upper lip.Smith did not have insurance.However, Walden had several automobile liability policies with American Family.

Walden filed suit against Smith and American Family.She claimed that Smith was negligent in that he failed to warn Walden of the harm posed by the dangerous propensities of the dog, failed to restrain or otherwise prevent the dog from biting her, and failed to restrict or otherwise prevent people from coming into contact with the dog.Walden's petition also sought a declaratory judgment that she was entitled to coverage under the uninsured motorist provision in her American Family policies.¹Walden alleged that Smith was an uninsured motorist and “was engaged in the operation and use of his motor vehicle, was in the process of transporting his dog, and failed to contain said dog” resulting in Walden's injuries.

The American Family policies each provide:

PART III—UNINSURED MOTORIST 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 the uninsured motor vehicle.

(Emphasis in policies.)The policies do not define the phrase “arise out of.”The policies define “use” as “ownership, maintenance, or use.”

American Family filed a motion for summary judgment on the declaratory judgment action.American Family asserted as uncontroverted facts the facts set forth above.American Family argued that the uncontroverted facts established as a matter of law that Walden's injuries did not “arise out of the use” of Smith's uninsured vehicle and established only that Smith's vehicle was the “situs” of the injury.

Walden admitted all of the uncontroverted facts asserted in American Family's motion for summary judgment, and generally alleged that her injuries arose out of the use of Smith's vehicle.Walden did not identify any issues of fact in genuine dispute that prevented the entry of judgment on the issue of coverage.In fact, Walden filed her own motion for summary judgment which mirrored the uncontroverted facts from American Family's motion, and added only that her injuries “arose out of the use” of Smith's uninsured vehicle.²Walden argued that the uncontroverted facts established that Walden's injuries arose out of the use of Smith's uninsured vehicle as a matter of law because:

Walden's injuries arose out of Smith's use of his automobile as a dog cage.But for Smith's use of his vehicle as a cage for his dogs, the dogs would not have been at the parking lot, and they would not have bitten Walden.Therefore, Walden's injuries arose out of Smith's use of his vehicle as a dog cage.

[L.F.p. 73;see alsoL.F.p. 88].

The parties thus agreed that the uncontroverted facts permitted the entry of judgment as a matter of law on the issue of coverage.They disagreed, however, about the legal effect of the uncontroverted facts.

On April 9, 2010, the trial court entered an order granting American Family's motion for summary judgment and denying Walden's motion for summary judgment.³After reciting the uncontroverted facts the trial court held that:

[Walden] has not asserted any facts which establish any injury caused by the uninsured motorist's use of the uninsured motor vehicle itself.[Walden's] injury was caused by the dog bite.There are no facts which allege the motor vehicle was the instrumentality of the injury.There are no facts that assert that [Smith] was negligent in the inherent “use” of his vehicle.The automobile was not involved in the injury.[Walden] was not in the automobile at the time of the injury.There is nothing about [Smith's] use of the truck that caused the attack and nothing about [Smith's] use of the automobile which caused [Walden's] injury.The vehicle was not an active accessory to the injury and was not an essential or even significant element that lead [sic] to the injury.The allegations of negligence against [Smith] are totally independent from the “use” of the vehicle itself.The motor vehicle was the fortuitous location of the injury, not an integral part of the proximate cause of the injury.

In this case, the uninsured motor vehicle simply provided the situs of the injury.Missouri law requires the vehicle be more than the “ situs ” of an injury to recover under these circumstances.

....

....[Walden's] injury did not arise out of the use of the uninsured motor vehicle.Accordingly, there is no coverage under the policies issues [sic] by [American Family].

On November 28, 2012, the trial court entered a judgment against Smith on Walden'snegligence claim.The judgment incorporated the trial court's earlier order granting summary judgment in favor of American Family on the declaratory judgment claim.

Walden filed this timely appeal from the trial court's entry of judgment in favor of American Family.

Standard of Review

The grant of summary judgment is a question of law we review de novo.ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp.,854 S.W.2d 371, 376(Mo. banc 1993).“Summary judgment is designed to permit the trial court to enter judgment, without delay, where 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.”Id.Here, the parties agree that there are no issues of fact in genuine dispute.In fact, both parties relied on the same uncontroverted facts to urge the entry of judgment as a matter of law.All that is at issue are “differing opinions of the parties concerning the legal effect of” the uncontroverted facts on the question of coverage, a question of law, not fact, that does not preclude the grant of summary judgment.Seymour v. Lakewood Hills Ass'n,927 S.W.2d 405, 407(Mo.App. E.D.1996).

In granting summary judgment, the trial court interpreted the phrase “arising out of the use” in American Family's policies.“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);see alsoWard v. Int'l Indem. Co.,897 S.W.2d 627, 629(Mo.App. E.D.1995)(holding that whether undisputed facts support a finding that injuries “arose out of the use” of a vehicle is a question of law).

Analysis

The sole issue presented on appeal is whether the trial court erred in granting summary judgment by concluding as a matter of law that Walden's dog bite injuries were not covered under American Family's automobile policies because the injuries did not “arise out of the use” of an uninsured vehicle.Walden's point relied on argues that because Smith was using his uninsured motor vehicle as a “moving dog kennel,”⁴ Walden's injuries arose out of Smith's “transportation and confinement of a dog within an uninsured motor vehicle.”

No Missouri court has addressed whether injuries caused by a dog when it is being transported in a motor vehicle “arise out of the use” of the vehicle as to support coverage under an automobile liability policy.When interpreting language in an insurance policy, our courts generally begin by determining “whether the policy language is ambiguous or unambiguous.”Am. Family Mut. Ins. Co. v. Wemhoff,972 S.W.2d 402, 405(Mo.App. W.D.1998).However, that determination is not required where the policy language has already been judicially defined.Id.Missouri courts have judicially defined both “arising out of” and “use.”The judicial definitions assigned to these policy terms are controlling, even though the factual circumstances presented here are a matter of first impression.

(i)“Arising out of” requires a causal relationship but not proximate cause

Schmidt v. Utilities Insurance Co.,353 Mo. 213, 182 S.W.2d 181(1944) is the seminal Missouri case construing the phrase “arising out of” in an automobile liability policy.The omnibus clause ⁵ in the policy afforded coverage for bodily injuries “caused by accident and arising out of the ownership, maintenance, or use of the automobile.”Id. at 183.The “bodily injury coverage”section of the policy defined “use” to “include [ ] loading and unloading” of the vehicle.⁶Id. at 182.The plaintiff was injured after tripping over wooden blocks left behind by truck drivers who had used the blocks as makeshift ramps to...