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Kaskutas v. Allstate Property & Casualty Insurance Co.

Court of Appeals of Missouri, Eastern District, Third Division

August 19, 2014

VICTORIA KASKUTAS, Appellant,
v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Respondent

Appeal from the Circuit Court of the City of St. Louis. Honorable Elizabeth Byrne Hogan.

FOR APPELLANT: Stephen M. Glassman, Maria C. Sanchez, The Glassman Law Firm, P.C., Clayton, Missouri.

FOR RESPONDENT: Robert J. Luder, Michael W. Shunk, Luder & West. LLC, Overland Park, KS.

Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs, Gary M. Gaertner, Jr., J., Concurs.

OPINION

Page 527

Kurt S. Odenwald, Presiding Judge.

Introduction

Victoria Kaskutas (" Kaskutas" ) appeals from the judgment of the Circuit Court of the City of St. Louis entered on August 28, 2013 in favor of Allstate Property & Casualty Insurance Company (" Allstate" ). The trial court found that Illinois law applies to issues of coverage Kavailable to Kaskutas under her Allstate policy (" the Allstate policy" ) and that consequently, Allstate has no further obligations to Kaskutas. Kaskutas challenges the trial court's denial of her motion for partial summary judgment and its subsequent final judgment arguing that the trial court erroneously applied the choice-of-law provisions contained in the Allstate policy. The denial of motion for summary judgment, partial or otherwise, is not a final judgment subject to appellate review. Moreover, Kaskutas failed to preserve any allegations of error for appellate review with respect to the August 28, 2013 final judgment. Accordingly, we affirm the judgment of the trial court.[1]

Factual and Procedural History

This dispute arises out of a November 2010 accident in which Kaskutas, a pedestrian, was struck by a car driven by an underinsured driver. Kaskutas filed a petition for personal injuries in the Circuit Court of the City of St. Louis against the driver and Allstate, Kaskutas' insurer. Kaskutas was the named insured on an automobile policy issued by Allstate which included coverage for Underinsured Motorist Protection (" UIM" ). Kaskutas dismissed the driver as a defendant in July of 2011 and proceeded solely against Allstate.[2]

The core of this dispute relates to the choice-of-law provision contained in Kaskutas' Allstate policy. Kaskutas maintains that the language of the choice-of-law provision is ambiguous, and that the ambiguity should be resolved in her favor. Kaskutas seeks the application of Missouri law to her claim, which would allow her to " stack" the full $100,000 per-person UIM limit for

Page 528

each vehicle covered by the Allstate policy, and would also preclude Allstate from applying any setoffs to the UIM amount owed, making an additional $150,000 in UIM coverage available to her under the policy. Allstate, on the other hand, maintains that the choice-of-law provision is not ambiguous, and requires the application of Illinois law, which would prevent Kaskutas from " stacking" her limits and would allow the application of setoffs. Should Illinois law apply, Allstate would have no further obligations to Kaskutas beyond the amount already tendered.[3]

On February 17, 2012, Kaskutas and Allstate filed cross-motions for summary judgment seeking a resolution of the choice of law issue. Kaskutas moved for partial summary judgment against Allstate reasoning that the conflicting and inconsistent language within the Allstate policy's choice-of-law provision created an irreconcilable ambiguity that required the application of Missouri law to all coverage afforded by the Allstate policy. Missouri law would permit Kaskutas to " stack" the full per-person UIM limit for each vehicle covered by the policy, and would preclude Allstate from applying any setoffs to the UIM amount owed. Allstate moved for summary judgment ...


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