Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY. Honorable Robert N. Mayer, Circuit Judge.
For Appellant: Michael A. Moroni, of Bloomfield, Missouri.
For Respondent: Ralph Hart, of St. Louis, Missouri.
JEFFREY W. BATES, J. -
Concur, DANIEL E. SCOTT, J. - Concur.
WILLIAM W. FRANCIS, JR., C.J./P.J.
Dennis Hente (" Hente" ) appeals summary judgment entered in favor of 21st Century Centennial Insurance Company (" 21st Century" ) relating to whether Hente was entitled to stack underinsured motorist (" UIM" ) coverage, and whether he was entitled to uninsured motorist (" UM" ) coverage, under the terms of his automobile policy with 21st Century. Finding no merit to Hente's four points on appeal, we affirm the trial court's judgment.
Factual and Procedural History
On the evening of July 19, 2010, Hente was operating his vehicle in the left northbound passing lane of Missouri State Highway 25 in Stoddard County. At the same time, Jennifer Kinney (" Kinney" ) was operating a vehicle in the right northbound lane of Missouri State Highway 25. Kinney, seeing a dead deer in her lane of traffic, swerved to her left forcing Hente's vehicle off the road where it struck a ditch, became airborne, rolled over, and came to rest on its top. Hente sustained serious injuries as a result of the accident.
Hente brought a claim against Kinney, an insured of Alpha Property and Casualty Insurance Company (" Alpha" ). On May 16, 2011, Hente and Alpha entered into a settlement agreement for Kinney's liability policy limits of $25,000.
Hente had a policy of insurance (" the Policy" ) with 21st Century, containing UIM coverage and UM coverage with policy limits of $25,000 each, insuring the vehicle Hente was operating in the accident, as well as an additional vehicle owned by Hente.
On January 13, 2012, Hente filed a two-count petition against 21st Century. In Count I, Hente sought collection of policy limits under the UIM coverage for both insured vehicles, stacking the policies for $50,000; in Count II, Hente claimed he was entitled to the policy limits of UM coverage for both vehicles, stacking the policies for $50,000, due to the fault of an alleged phantom uninsured driver who initially struck and killed the deer.
On May 24, 2013, 21st Century filed a motion for partial summary judgment on the issues of stacking coverage on Hente's UIM claim, and the UM claim.
On November 4, 2013, the trial court entered an order sustaining 21st Century's motion for partial summary judgment as to Count II, the UM coverage claim. On June 20, 2014, the trial court entered an order sustaining summary judgment on Count I " as to the stacking issue . . . as to one $25,000.00 insurance policy." On June 27, 2014, these two orders were consolidated by the trial court in a " Partial Summary Judgment Made Final for Appellate
Purposes."  This appeal followed.
In his brief, Hente contends in Points 1 and 2 the trial court erred in entering partial summary judgment on Count I because the Policy was ambiguous on the UIM coverage and should have been interpreted to allow for stacking. In Points 3 and 4, Hente argues the trial court erred in granting summary judgment on Count II, on the UM coverage issue, because genuine issues of material fact exist as to whether the phantom uninsured motorist breached a duty owed to Hente.
The issues for our determination are whether the trial court erred in granting summary judgment because:
1. The Policy was ambiguous and should have been interpreted to allow for stacking the UIM coverage; and
2. Because there was a duty owed by the phantom uninsured motorist to Hente and issues of material ...