Court of Appeals of Missouri, Eastern District, Second Division
Appeal from the Circuit Court of St. Louis County. Honorable Michael D. Burton.
For Plaintiff/Appellant: David C. Knierem, Robert S. Merlin, Clayton, MO.
For Defendant/Respondent: Laurence R. Tucker, Daniel E. Sakaguchi, Zachary C. Howenstine, St. Louis, MO.
Sherri B. Sullivan, P.J. Mary K. Hoff, J., and Philip M. Hess, J., concur.
Sherri B. Sullivan, P.J.
Lucas Cox (Appellant) appeals from the trial court's summary judgment entered in favor of St. Paul Fire and Marine Insurance Company (Respondent). We affirm.
Factual and Procedural Background
Appellant brought a negligence action against Billy Fair (Fair) for personal injuries Appellant sustained in November 2006 while riding on the back of a sanitation truck Fair was driving when both were acting in the course and scope of their employment with the sanitation department of the City of Kirkwood. Fair turned a corner too sharply, causing Appellant to be struck by a telephone pole. After a bench trial, the trial court found Fair negligent and awarded a judgment in Appellant's favor against Fair in the amount of seven million dollars ($7,000,000).
In the instant case, Appellant brought a two-count action against Respondent seeking underinsured motorist (UIM) coverage for his damages (Count I) and equitable garnishment of his judgment against Fair (Count II) under an insurance policy, #GP09312545 (the Policy), Respondent issued to the City of Kirkwood. At the trial court, Appellant conceded Respondent was entitled to summary judgment on Count II, noted by the trial court in its Judgment granting summary judgment to Respondent on both counts. This appeal follows. Only Count I of Appellant's petition, for UIM coverage, is at issue in this appeal. The Policy will be set forth in pertinent part as relevant to our discussion of Appellant's point on appeal.
Point on Appeal
Appellant maintains the trial court erred in entering summary judgment in favor of Respondent on Appellant's claim for UIM coverage under the Policy because the sanitation truck was underinsured as defined by the Policy and none of the exclusions apply.
Appellant also asserts Missouri's motor vehicle financial responsibility (MVFR) law compels coverage under the Policy despite the holding in Baker v. DePew, 860 S.W.2d 318 (Mo.banc 1993), because DePew was wrongly decided.
Standard of Review
We review the entry of summary judgment de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo.banc 1993). Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. at 376. When reviewing a trial court's grant of summary judgment, this Court views the record in the light most favorable to the party against whom summary judgment was entered. Id.
There is no issue in this case over a material fact. Where there is no issue over a material fact with respect to interpretation of an insurance policy, but there is a question about whether the language affords coverage for a loss, the matter in dispute is a question of law. Moore v. Commercial Union Ins. Co., 754 S.W.2d 16, 18 (Mo.App. E.D. 1988). Summary judgment is properly granted in those circumstances. Id.
The Policy was in full force and effect at the time of the accident and covered the sanitation truck owned by the City of
Kirkwood and driven by Fair at the time of the accident. The Policy's pertinent portions are set out as follows.
Form G0209 of the Policy contains the City of Kirkwood's Public Entity General Liability (PEGL) Protection:
Bodily injury and property damage liability.
We'll pay amounts any protected person is legally required to pay as damages for covered bodily injury or property damage that:
o happens while this agreement is in effect; and
o is caused by an ...