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Wise v. Thornhill

Court of Appeals of Missouri, Southern District, First Division

December 31, 2015

ROY L. WISE, Plaintiff-Appellant,
v.
BRENT R. THORNHILL, Defendant, and SAVERS PROPERTY & CASUALTY INSURANCE CO., Defendant-Respondent

          APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY. Honorable Jack A. L. Goodman, Circuit Judge.

         JEFFREY W. BATES, J. - OPINION AUTHOR. DANIEL E. SCOTT, P.J. - CONCUR. MARY W. SHEFFIELD, C.J. - CONCUR.

          OPINION

Page 364

         JEFFREY W. BATES, Judge

         This appeal arises out of a lawsuit filed by Roy Wise (Wise) against Brent Thornhill (Thornhill) and Savers Property and Casualty Insurance Company (Savers) to recover damages resulting from a single-vehicle accident. The first amended petition alleged that: (1) Thornhill's negligent operation of a fire truck injured his co-employee, Wise; and (2) the uninsured motorist (UM) benefits in Savers' policy provided coverage for Wise's damages. The trial court decided Savers' policy provided no UM coverage for the accident. The court granted summary judgment to Savers, and the claim against Thornhill was voluntarily dismissed without prejudice. This appeal followed.

         Wise argues that the trial court misapplied the law because Savers' policy does provide UM coverage of his claim. We disagree and affirm.

         Factual and Procedural Background

         Both parties agree that this case presents a question of law arising from the following undisputed facts. Thornhill and Wise were co-employee members of the Halltown Volunteer Fire Department (hereinafter referred to as Employer). On June 7, 2011, Thornhill was driving a fire department truck in his capacity as a volunteer fireman, and co-employee Wise was a passenger in that vehicle. The truck ran off the road and overturned, causing serious bodily injuries to Wise. The workers' compensation insurer for Employer paid approximately $100,000 in benefits to Wise.

         At the time of the accident, the fire truck was insured via a business auto policy issued by Savers. Employer was named insured on the policy. Wise made a claim against the liability coverage of Employer's policy, which was denied by Savers based upon: (1) the Employee Indemnification and Employer's Liability exclusion; (2) the Fellow Employee exclusion; (3) the Injury to Volunteer Firemen exclusion; and (4) the Emergency Services -- Volunteer Firefighters' and Workers' Injuries exclusion.[1]

Page 365

          Wise then made a claim under the UM coverage of Employer's policy. The coverage provision stated that Savers would pay all sums the insured was legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle. In relevant part, the UM coverage defined an uninsured motor vehicle as one " for which no ... policy ... provides at least the amounts required by the applicable law" or " [f]or which an insuring ... company denies coverage[.]"

         Wise and Savers each filed a motion for summary judgment. The trial court made the following ruling:

[T]he relevant inquiry in this case to determine if uninsured motorist coverage shall be extended under the facts and policy at issue is whether the fire truck was insured, despite exclusions of coverage under specific facts. In this case, although this insurance policy purchased by the [Employer] fire department did not provide coverage for [Wise's] injuries sustained in the course of his service while the fire truck was driven by Defendant Thornhill, his fellow firefighter, coverage clearly existed for the fire truck. Therefore, this court, in accordance with Missouri law and precedent, ...

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