Waltz v. Cameron Mut. Ins. Co.

• Decision Date: 31 July 1975
• Docket Number: No. KCD,KCD
• Citation: 526 S.W.2d 340
• Parties: Jane Marie WALTZ et al., Appellants, v. CAMERON MUTUAL INSURANCE COMPANY, Respondent. 26839.
• Court: Missouri Court of Appeals

Page 340

526 S.W.2d 340

Jane Marie WALTZ et al., Appellants, v. CAMERON MUTUAL INSURANCE COMPANY, Respondent.

No. KCD 26839.

Missouri Court of Appeals, Kansas City District.

July 31, 1975.

Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for appellants.

George T. O'Laughlin, Thomas M. Moore, Miller & O'Laughlin, P.C., Kansas City, for respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

TURNAGE, Judge.

Plaintiff Jane Waltz (Plaintiff) sought to recover from defendant damages under the uninsured motorist provision of an insurance policy issued by defendant. Plaintiff was riding as a passenger in an automobile owned by Wayne Pettit, which was covered by a policy of insurance issued by the defendant, when she was injured as a result of a collision between such automobile and another automobile which was uninsured.

Plaintiff alleged in her petition she was covered under the uninsured motorist provision of the policy defendant issued on the Pettit automobile, or in the alternative, defendant failed to obtain a written rejection of the uninsured motorist coverage from Pettit. The petition further alleged facts tending to show plaintiff's injuries to have been due to the negligence of the uninsured automobile driver.

Plaintiff filed interrogatories directed to defendant to obtain a copy of the insurance policy defendant issued on the Pettit automobile. Defendant submitted a copy of the policy which it stated was in effect on the Pettit automobile at the time of plaintiff's injury. This policy contained the following provision with respect to the uninsured motorist coverage: '(c) With respect to the insurance under coverage H the unqualified word 'insured' means the first named natural person and not a corporation, firm or partnership, and, while residents of the same household, the spouse of the first named natural person and the relatives of either.' Defendant then filed request for admissions of plaintiff and her husband, who joined as a plaintiff for his loss of services claim. As a result of these requests, plaintiff and her husband stated they did not have sufficient knowledge to admit defendant issued a policy of insurance to Pettit and stated to the best of their knowledge there was insurance on the automobile in which plaintiff was riding but they had to rely on what the driver of such automobile told them since they had never seen a policy. Plaintiffs further admitted neither of them was a relative of Pettit or his wife, that neither was a resident of the household of Pettit, either prior to or subsequent to plaintiff's injury.

Plaintiff filed a request for admissions directed to the defendant asking the defendant to admit a policy of insurance was issued to Pettit by it and that Pettit did not give defendant a written statement rejecting uninsured motorist coverage. The request further sought to establish the automobile plaintiff was riding in was covered by defendant's insurance policy. No particular coverage was suggested in this request. The defendant did not deny these requests and they stood admitted.

Thereafter defendant filed its motion for summary judgment stating there was no material issue of fact in that it had been established that plaintiff was a passenger in an automobile owned by Pettit, that such automobile was insured under a policy issued by the defendant, and that neither of the plaintiffs was a member of Pettit's household at the time of the injury. This motion was supported by the affidavit of defendant's claim manager which stated the copy of the policy issued to Pettit was attached thereto. By a deposition of defendant's claim manager it was established the copy of the insurance policy defendant stated was issued to Pettit was the only form of policy issued by the defendant covering the period when plaintiff was injured with respect to the definition of insured under the uninsured motorist provision.

In response to defendant's motion for summary judgment, plaintiffs Jane Waltz and her husband filed an affidavit stating they did not have sufficient knowledge with which to admit or deny the genuineness of the copy of the policy submitted by defendant, and further they did not have any means to secure information or knowledge concerning the policy because Pettit and his wife told them the original policy had been destroyed. Plaintiffs further caused an affidavit to be filed by Pettit in which he stated defendant had issued its policy to him and his wife covering the period during which plaintiff was injured, and stating he did not recall ever seeing a full and complete copy of the policy. This affidavit further stated it was the 'understanding' of Pettit that defendant's policy provided uninsured motorist coverage for him and the occupants of his car and he did not recall anyone from the defendant company ever telling him the uninsured motorist coverage did not cover all of the occupants of his automobile.

Plaintiffs filed suggestions in opposition to the defendant's motion for summary judgment and in these suggestions for the first and only time claimed the restricted definition of insured in the uninsured motorist coverage in defendant's policy violated the public policy of this State and further violated the provisions of § 379.203, RSMo 1969, V.A.M.S.

The court granted summary judgment in favor of the defendant. On this appeal plaintiffs contend, first, there were remaining and unresolved factual disputes as to the authenticity of the copy of the policy issued to Pettit and his wife submitted by the company with respect to the actual coverage provided within the uninsured motorist provision in such policy, and with respect to the credibility of defendant's claim manager. Summary judgment is provided by Rule 74.04 which provides in part in 74.04(c): '(j)udgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' Such Rule in paragraph (e) also provides in part: '(w)hen a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.'

It is true as plaintiffs contend, that this court 'as well as the trial court, must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered'. Scott v. Thornton, 484 S.W.2d 312 (Mo.1972).

Here the only question is whether or not the plaintiffs have, by affidavits or as otherwise provided in Rule 74.04, presented specific facts to show there is a genuine issue for trial. It is...