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09/21/93 SETH J. OLIVER AND KATHY OLIVER v. CAMERON

September 21, 1993

SETH J. OLIVER AND KATHY OLIVER, RESPONDENTS,
v.
CAMERON MUTUAL INSURANCE COMPANY, APPELLANT.



Appeal from the Circuit Court of Jefferson County, Missouri. Hon. John L. Anderson, Judge.

Gerald M. Smith, Judge G. Gaertner, P.j. and Stephan, J., concur.

The opinion of the court was delivered by: Smith

Defendant, Cameron Mutual Insurance Company, appeals from a judgment in a court tried case awarding plaintiff Seth Oliver $73,000 as uninsured motorist coverage for injuries sustained by him in an automobile accident, awarding plaintiff Kathy Oliver $75,000 as uninsured motorist coverage for loss of consortium, awarding plaintiffs $14,950 for vexatious refusal to pay, and $49,060.96 for attorneys fees. We affirm.

Seth Oliver was severely injured in an automobile accident with Michael Bush. The trial court awarded plaintiff Seth Oliver $300,000 against Bush and awarded Kathy Oliver $100,000 for loss of consortium against Bush. Bush was uninsured. The Olivers' had two policies of insurance with Cameron Mutual. The first was a policy referred to by the parties as the "special policy" which insured a 1989 Hyundai titled in Seth's name and with GMAC as the loss payee. The second, referred to by the parties as the "regular policy" insured a 1983 Mazda owned by the Olivers' by the entireties. Both policies provided for uninsured motorist coverage of $25,000 per person and $50,000 per accident.

On October 19, 1989, Seth drove the Hyundai to a dealership and agreed to trade in both the Hyundai and the Mazda for a new 1989 Mazda truck. After having the Hyundai examined, Seth drove it home and returned to the dealership in the 1983 Mazda to have it inspected. While at the dealership Seth signed a power of attorney authorizing the dealer to sign as his attorney in fact for the purpose of assigning the title on the Hyundai. Seth also signed a retail installment contract for the purchase of the 1989 Mazda, and a Missouri application for title for that vehicle. He also signed either the title to the 1983 Mazda or a power of attorney. He received the certificate of origin to the 1989 Mazda. Seth agreed to return the next day with a power of attorney from his wife covering the jointly owned 1983 Mazda. That vehicle he left with the dealer and proceeded home in the new truck. On the way home the accident occurred.

The trial court found that the 1989 Mazda was an "additional" vehicle under the special policy and Seth therefore had uninsured motorist insurance from Cameron covering three vehicles, which could be stacked to cover his injuries. It further found ambiguity in both policies as to the per person/per accident limitations thereby allowing Kathy to recover $25,000 in consortium damages for each of the vehicles covered by the two policies.

Cameron argues that Seth parted with ownership of the Hyundai before the accident and therefore that vehicle did not have uninsured motorist coverage at the time of the accident. The company does not contest on this appeal that Seth owned the 1989 Mazda and the 1983 Mazda at the time of the accident. In Cameron Mutual Insurance Company v. Madden , 533 S.W.2d 538, (Mo. banc 1976) the court held that the public policy expressed in § 379.203 RSMo 1986, prohibited the insurer from limiting the insured to recovery under only one of the uninsured motorist coverages which were provided for each of two cars covered by a single policy and for which separate premiums were charged. We will deal with the "separate premium" issue subsequently. Under Cameron , if two vehicles are insured under the same policy the uninsured motorist coverages may be "stacked" to provide essentially double coverage under the policy.

In this state the law regarding the sale of vehicles provides that the owner shall endorse an assignment on the certificate of ownership and "deliver the same to the buyer at the time of the delivery to him of such motor vehicle." § 301.210.1 RSMo 1992 Supp. Absolute technical compliance with the statute is required, otherwise the sale is fraudulent and void. Horton v. State Farm Fire and Casualty Co. , 550 S.W.2d 806 (Mo. App. 1977) [1-3]. Failure to comply strictly with the statute means no title passes and the purported owner has no ownership. Id . Seth did not deliver the Hyundai to the dealer before the accident. The dealer collected the vehicle from the Oliver residence two days after the accident. It was, during that period, available to Mrs. Oliver for her use. Seth did not assign the certificate of ownership to the dealer on the day that he purchased the new Mazda, but instead gave the dealer his power of attorney to assign the title, which was then in the possession of the lienholder. There is no disagreement that the dealer could not have exercised its power of attorney to assign the title until October 25, when the lienholder released its lien. At the time of the accident Seth and the dealer had not complied with the statute. There is no question that the dealer had certain equitable rights in the vehicle and was in a position to obtain title to the vehicle without further action by Seth. We are unable to conclude, however, that the "reasonably contemporaneous" concept articulated in State Farm Mutual Automobile Insurance Co. v. MFA Mutual Insurance Co. , 485 S.W.2d 397 (Mo. banc 1972) [l.c. 400] and Faygal v. Shelter Insurance Co. , 689 S.W.2d 724 (Mo. App. 1985) [2] applies here. Legal title had not been transferred at the time of the accident and the vehicle was still owned by Seth and therefore covered under the policy. Seth maintained physical dominion over the vehicle and did not surrender it until after the accident. There was no reasonably contemporaneous delivery of possession of the vehicle and delivery of a properly completed and acknowledged assignment of title. Seth owned the Hyundai at the time of the accident.

Cameron next asserts that the 1989 Mazda was not an "additional" vehicle under the "special" policy but rather was a "replacement" vehicle. The policy provided that it covered the Hyundai and any vehicle that Seth replaced it with. The policy also promised to "insure any additional car you acquire if we insure, under this insurance, all cars you own." If the Mazda was a "replacement" vehicle then only one vehicle was insured under the "special" policy at the time of the accident. If the Mazda was an "additional" vehicle then two vehicles were insured. Both replacement and additional vehicles are covered under the policy if within thirty days the company is informed of their existence. No issue is raised of the company being timely advised. In Beck Motors Inc. v. Federal Mutual Insurance Company , 443 S.W.2d 200 (Mo. App. 1969)[4] we described the difference between "replacement" and "additional" in the following terms:

policy provision is not intended or interpreted to provide coverage for an additional vehicle. To so interpret would allow coverage on two vehicles for the premium on one. It is not necessary for us to determine the precise limits at which a vehicle becomes "additional" rather than "replacement". But without setting hard and fast rules, it is necessary, in order for the provision to apply, that the newly-acquired vehicle take the place of the described car and the described car be treated thereafter in such fashion that it is clearly apparent it has been replaced and is no longer covered by the policy. Notification to the company of a replacement, of course, is such treatment and clearly establishes what vehicle is covered. Disposition of the vehicle, or it being and remaining in an inoperable condition also presents concrete evidence of the change of coverage. There may be other possibilities of treatment which would establish that the vehicle has been replaced. But the insurance company may not be held except upon a clear showing of replacement, nor in a circumstance where the insured could show that either car was covered, depending on which one was involved in the accident.

Here the policy provides for coverage for both additional and replacement vehicles. Cameron had not been notified that the vehicle was either a replacement or additional vehicle at the time of the accident nor was it required to be at that time. The vehicle was not in inoperable condition and it was not treated by the Olivers as if it had been replaced. Nothing made it clearly apparent that the Hyundai had been replaced by the Mazda. It is proper here to conclude that the Mazda was at different times both an additional vehicle and a replacement vehicle. Prior to the transfer of possession of the Hyundai to the dealer the Mazda was an additional vehicle under the policy. Upon transfer of possession it became a replacement vehicle. At the time of the accident it was an "additional" vehicle under the policy.

Cameron also relies upon the language of the original Cameron case, (supra) , that premised allowance for stacking upon the concept that separate premiums were paid for the two vehicles. We are not convinced that language was intended to impose a restriction based upon the appearance of a separate charge in the declarations section of the policy. Here, however, the evidence does not establish that no premium was charged for the "additional" vehicle coverage. All coverages provided by a policy are presumably included in the premium, either directly or indirectly. We can assume that uninsured motorist coverage for additional vehicles is built into the basic premium charge and is further subject to billing after the notification to the company within the thirty day period. Uninsured motorist coverage of an additional vehicle is not to be defeated because the accident occurs within the notification grace period provided in the policy. No question is raised that the injuries sustained by Seth exceeded the amount of the three stacked coverages. The trial court correctly awarded that amount to Seth under the policies.

We turn now to the consortium claim of Kathy Oliver. Again no question is raised that her total loss of consortium damages exceeded $75,000. We first look to the claims under the "special policy". For the reasons we have already delineated two vehicles were insured under that policy and two uninsured motorist coverages were provided. Cameron contends that the "per person/per accident" provisions of the policy prohibit recovery by Seth and Kathy for bodily injuries to Seth in an amount totaling more than $25,000 for each vehicle. The ...


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