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09/21/93 JO ANN MAZZOCCHIO v. THOMAS G. POHLMAN

September 21, 1993

JO ANN MAZZOCCHIO, RESPONDENT,
v.
THOMAS G. POHLMAN, RESPONDENT, AMERICAN FAMILY MUTUAL INSURANCE COMPANY, APPELLANT.



Appeal from the Circuit Court of Franklin County. Hon. Joseph M. Ladd

Ahrens, Grimm, Gaertner

The opinion of the court was delivered by: Ahrens

This appeal involves the construction of an automobile insurance policy issued to respondent Jo Ann Mazzocchio by appellant American Family Mutual Insurance Company (American Family). Specifically, American Family challenges the trial court's interpretation of the contract's antistacking and right to consent clauses. We affirm.

The parties waived trial by jury and submitted the case to the trial court on the following stipulated facts. On September 25, 1989, Mazzocchio was driving her car when it was hit by a vehicle driven by Thomas G. Pohlman. As a result of the collision, Mazzocchio suffered damages in the amount of $40,000.00. Mazzocchio was covered by an American Family insurance policy which provided underinsured motorist protection in the amount of $50,000.00 per person; Pohlman was covered by a Windsor Insurance Company (Windsor) motor vehicle liability policy which provided personal injury insurance in the amounts of $25,000.00 per person and $50,000.00 per accident for his 1984 Toyota pickup truck and 1978 Ford F-250. On August 15, 1991, a partial summary judgment was entered declaring a clause in Mazzocchio's American Family policy which required American Family's written consent to settlement invalid and unenforceable. On September 6, 1991, Mazzocchio and Pohlman entered into a settlement agreement whereby Windsor paid to Mazzocchio the sum of $25,000.00 and Mazzocchio executed a Release and the Stipulation for Dismissal with Prejudice of Defendant Pohlman and Continuation of Suit Against Defendant American Family. As a result, American Family is entitled to a credit or a set off in the amount of the $25,000.00 paid by Windsor to Mazzocchio and the maximum judgment against American Family is $15,000.00.

The court entered judgment in favor of Mazzocchio and against American Family in the amount of $15,000.00. In doing so, the court declared the "right to consent" clause contained in the American Family underinsured motorist coverage invalid and unenforceable. The court also determined that the Windsor policy limits could not be stacked. Lastly, the court held that the Release and Stipulation for Dismissal signed by Mazzocchio did not constitute a bar against American Family's right to subrogation against Pohlman.

In a Judge-tried case the trial court's judgment will be sustained on appeal "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In its first point, American Family claims the trial court erred in entering a judgment in favor of Mazzocchio and against American Family because the motor vehicle liability coverage on each of Pohlman's vehicles should have been stacked to provide a total coverage in the amount of $50,000.00. American Family argues that the Windsor limits of liability clause does not apply in this case or, in the alternative, is ambiguous and should be interpreted against the insurer. This clause is set out below with the phrases in question emphasized.

LIMITS OF LIABILITY

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

1. The bodily injury for "each person" is the maximum we will pay as damages for bodily injury, including damages for care and loss of services, because of bodily injury sustained by the insured as the result of any one accident.

2. Subject to the bodily injury liability limit for "each person", the bodily injury liability limit for "each accident" is the maximum we will pay as damages, to the insureds, including damages for care or loss of service, because of bodily injury sustained by two or more insured as the result of any one accident.

3. The property damage liability limit for "each accident" is the maximum we will pay for all damages to property in one accident.

We will pay no more than these maximums regardless of the number of vehicles described in the Declarations, insured persons, claims, claimants, policies, or vehicles involved in the accident. Any amount payable under this coverage to or for an injured person will be reduced by any payment made to that person under the Uninsured Motorist Coverage of the policy.

First, American Family contends that this section is rendered meaningless by attempting to limit liability coverage by using the terms "insured" and "insureds" and should not apply in this case. In the alternative, American Family argues that the obvious misuse of ...


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