White v. Il. Founders Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Gaertner, Sr., P.J., and Draper III; Lawrence G. Crahan
• Citation: White v. Il. Founders Ins. Co., 52 S.W.3d 597 (Mo. App. 2001)
• Decision Date: 07 August 2001
• Parties: (Mo.App. E.D. 2001) Thornton White and Ethel L. White, his wife, Plaintiffs/Appellants v. Illinois Founders Insurance Company, Defendant/Respondent. ED78680 0

52 S.W.3d 597 (Mo.App. E.D. 2001)

Thornton White and Ethel L. White, his wife, Plaintiffs/Appellants v. Illinois Founders Insurance Company, Defendant/Respondent.

ED78680

Missouri Court of Appeals Eastern District

08/07/2001

Appeal From: Circuit Court of the City of St. Louis, Hon. Robert H. Dierker, Jr.

Counsel for Appellant: Stephen J. Nangle

Counsel for Respondent: James E. DeFranco and Matthew C. Zittel

Opinion Summary:

Thornton White, Sr., and Ethel White appeal the judgment entered in favor of Illinois Founders Insurance Company on their claim for uninsured motorist coverage.

Division Three holds: (1) Alleged ambiguity in the body of the policy could not override an unambiguous Excluded Driver(s) Endorsement expressly excluding Thornton White, Sr., from coverage; (2) Illinois Founders was not estopped from asserting endorsement as a defense when there was no showing that the Whites were prejudiced by denial of coverage on a different basis; (3) the record supports the court's determination that Illinois Founders did not waive the endorsement; and (4) because nothing in the Motor Vehicle Financial Responsibility Law (MVFRL) requires an owner's liability policy to extend coverage pertaining to the ownership, use or maintenance of vehicles other than those specified in the policy, enforcement of the Excluded Driver(s) Endorsement to preclude uninsured motorist coverage for Thornton White when operating his own vehicle does not violate the MVFRL or public policy.

Gaertner, Sr., P.J., and Draper III, J., concur.

Lawrence G. Crahan, Judge

Appellants Thornton White, Sr. ("Husband") and Ethel White ("Wife") appeal the judgment entered in favor of respondent Illinois Founders Insurance Company ("Illinois Founders") on their claim for uninsured motorist coverage. We affirm.

The case was submitted to the trial court on a stipulated record. Husband was operating his motor vehicle when he was involved in a collision with an uninsured driver. Husband filed an accident report with the Director of Revenue, who determined that the uninsured driver was 100% at fault.

At the time of the accident, Husband was driving his own vehicle, which was insured by Progressive Insurance Company ("Progressive"). Husband carried uninsured motorist coverage in the amount of $25,000. Progressive paid the entire $25,000, as Husband's damages exceeded that amount. Wife also owned a vehicle and carried a policy issued by Illinois Founders on her vehicle which provided uninsured motorist coverage.

The only provision of Wife's policy relevant to this appeal appears on the policy declaration page. It provides as follows:

***EXCLUDED DRIVER(S) ENDORSEMENT:***

ALL coverage afforded by this policy is void and shall not apply to any claim or suit which occurs as the result of any auto being operated by the following person(s):

THORNTON WHITE SR

THORNTON WHITE JR

Husband applied for uninsured motorist benefits under Wife's insurance policy and was denied coverage. Husband and Wife filed the instant action for declaratory judgment alleging that the policy violated the public policy of Missouri and sought a declaration that Husband was entitled to uninsured motorist coverage. The trial court entered judgment in favor of Illinois Founders.

On appeal, Husband and Wife first contend that conflicting definitional language in the body of the policy itself gives rise to an ambiguity which, if construed in their favor, would make Husband a named insured for purposes of uninsured motorist coverage. The problem with this contention is that such a construction of the policy would at best create a conflict between the language of the policy and the Excluded Driver(s) Endorsement set forth above. The endorsement is not ambiguous and unequivocally excludes Husband from any coverage whatsoever. It is well established that if the language of an endorsement conflicts with language found in the general provisions of an insurance policy, the language found in the endorsement will prevail. Shields v. Farmers Ins. Co., 948 S.W.2d 247, 249 (Mo. App. 1997). Point denied.

Husband and Wife next contend that Illinois Founders waived its right to assert the Excluded Driver(s) Endorsement as a defense by its initial denial of coverage on other specified grounds. The trial court found neither estoppel nor waiver applied because there was no evidence that Husband or Wife suffered any prejudice and there was no indication in the record that Illinois Founders intended to waive its right to assert other defenses. These findings are consistent with the record. Point denied.

Finally, Husband and Wife urge that the Excluded Driver(s) Endorsement is unenforceable because it violates the public policy embodied in the uninsured motorist statute, section 379.203.1 RSMo 1994,¹ as interpreted by the Missouri Supreme Court and the Missouri General Assembly. We disagree.An insurance clause violates public policy and is rendered unenforceable only to the extent it violates the Motor Vehicle Financial Responsibility Law (MVFRL), Chapter 303 RSMo 1994. Halpin v. American Family Mut. Ins. Co., 823 S.W.2d 479, 482-83 (Mo. banc 1992). Under the MVFRL, motor vehicle owners may discharge their obligations either by maintaining financial responsibility as provided in section 303.160 RSMo 1994 or with a motor vehicle liability policy which conforms to the requirements of the laws of this state. Section 303.025.2 RSMo 1994.

Section 303.190 RSMo 1994² sets forth the requirements for two types of liability policies authorized in the state of Missouri, an "owner's" policy and an "operator's" policy. The policy at issue in this case is an owner's policy which explicitly provides insurance for Wife's vehicle. It does not in any manner purport to provide coverage for Husband's vehicle. By its express terms, the statute only requires liability coverage for the named insured or any other person using the specified vehicle with express or implied consent of the named insured against loss from the liability imposed by law for damages "arising out of the ownership, maintenance or use" of the vehicle or vehicle specified in the policy. Section 303.190(2) RSMo 1994.

The uninsured motorist statute, section 397.203 RSMo 1994, requires only that all policies of liability insurance must also include uninsured motorist coverage to "persons insured thereunder." Lair v. American Family Ins. Co., 789 S.W.2d 30, 33 (Mo. banc 1990) (quoting Famuliner v. Farmers Ins. Co., 619 S.W.2d 894, 897 (Mo. App. 1981)). Inasmuch as Husband is unequivocally excluded as an insured by the express terms of the Excluded Driver(s) Endorsement to Wife's policy and there is no requirement in the MVFRL that Wife's owner's policy of liability extend liability coverage to persons owning, using or maintaining a vehicle other than the vehicle specified in her policy, there is likewise no requirement that Wife's policy extend uninsured motorists coverage for damages resulting from the ownership, use or maintenance of such other vehicles.

Husband and Wife cite two cases for the proposition that the named driver exclusion is invalid because it violates public policy, Halpin v. American Family Mutual Ins. Co., 823 S.W.2d 479 (Mo. banc 1992), and Ingram v. Shelter Mutual Ins. Co., 922 S.W.2d 854 (Mo. App. 1996). However, those cases are inapposite because they involve exclusions from liability coverage for operation of a vehicle specified in the policy, not uninsured motorist coverage of a vehicle not specified in the policy.

In Halpin, the insured caused an accident in which her children, who were in the car with her, were injured. 823 S.W.2d at 480. The insurer attempted to enforce a household exclusion which would have prevented the insured's children from recovering benefits as a result of the insured's liability. Id. The court held such an exclusion violated public policy, noting the following:

The plain purpose of the 1986 amendment is to make sure that people who are injured on the highways may collect damage awards, within limits, against negligent motor vehicle operators. This protection extends to occupants of the insured vehicle as well as to operators and occupants of other vehicles and pedestrians. The purpose would be incompletely fulfilled if the household exclusion clause were fully enforced.

Id. at 482.

In Ingram, the insured's son was driving the insured vehicle when he injured other motorists. 922 S.W.2d at 855. The insurer denied coverage on the grounds that...