Wibbenmeyer v. American Family Mut. Ins. Co., 89-2717

• Decision Date: 31 October 1991
• Docket Number: No. 89-2717,89-2717
• Citation: 946 F.2d 569
• Parties: Richard WIBBENMEYER, Appellee, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 569

946 F.2d 569

Richard WIBBENMEYER, Appellee, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant.

No. 89-2717.

United States Court of Appeals Eighth Circuit.

Submitted June 11, 1990.

Decided July 11, 1991.

Rehearing Denied Oct. 31, 1991.

Theodore Pashos, St. Louis, Mo., for appellant.

Michael Gross, St. Louis, Mo., for appellee.

Before ARNOLD and WOLLMAN, Circuit Judges, and HANSON, ^* Senior District Judge.

WOLLMAN, Circuit Judge.

American Family Mutual Insurance Company (American Family) appeals from the district court's judgment, which requires American Family to pay Richard Wibbenmeyer (Richard) the maximum underinsured motorist coverage on each of the two policies issued to Richard's parents. We reverse.

As stipulated by the parties, the facts reveal that on March 2, 1988, Richard was seriously injured while riding as a passenger in an automobile owned by Dennis and Mary Ramsey and insured by Commercial Union Insurance Company (Commercial Union). At the time of the accident, Richard resided in the household of his parents, Richard O. and Rose Wibbenmeyer, who owned two automobiles, each of which was Richard's damages on account of the injuries he suffered in the accident were in excess of $300,000. After Commercial Union paid him the policy limits of $100,000 on the policy it had issued to the Ramseys, Richard brought suit in Missouri state court against American Family to recover the $100,000 limits of liability under the underinsured motorist provisions of the policies covering his parents' automobiles. American Family then removed the case to federal court under diversity jurisdiction.

covered by an automobile liability insurance policy issued by American Family.

Finding that our decision in Weber v. American Family Mut. Ins. Co., 868 F.2d 286 (8th Cir.1989), controlled the outcome of the case, the district court held that Commercial Union's $100,000 payment should be offset against Richard's stipulated damages of $300,000 and that American Family was liable to pay the policy limits under each of its two underinsured motorist coverage clauses, for a total judgment against American Family in the amount of $200,000. Wibbenmeyer v. American Family Mut. Ins. Co., 720 F.Supp. 141 (E.D.Mo.1989).

The pertinent language of the underinsured motorist coverage clauses of the Wibbenmeyers' policy reads as follows:

LIMITS OF LIABILITY

The limits of liability shown in the declarations apply, subject to the following:

* * * * * *

We will pay no more than these maximums no matter how many vehicles are described in the declarations, insured persons, claims, claimants or policies or vehicles are involved in the accident.

Any amounts payable will be reduced by:

1. A payment made by the owner or operator of the underinsured motor vehicle or organization which may be legally liable.

On May 3, 1991, the Supreme Court of Missouri expressly rejected the holding in Weber as inconsistent with Missouri law. Rodriguez v. General Accident Ins. Co., 808 S.W.2d 379 (Mo.1991).

The relevant uninsured motorist coverage provisions of the insurance policy in Rodriguez read as follows:

LIMIT OF LIABILITY

A. The limit of liability shown in the schedule for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of:

1. "Insureds";

2. Claims made;

3. Vehicles or premiums shown in the Declarations; or

4. Vehicles involved in the accident

However,...