Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kerns v. Alliance Indemnity Co.

Court of Appeals of Missouri, Western District, Second Division

April 25, 2017

CHERITY KERNS and WILLIAM KERNS, Appellants,
v.
ALLIANCE INDEMNITY COMPANY, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Kenneth R. Garrett, III, Judge

          Before: Thomas H. Newton, Presiding Judge, and James Edward Welsh and Karen King Mitchell, Judges

          Karen King Mitchell, Judge

         Cherity and William Kerns appeal from the grant of summary judgment in favor of Alliance Indemnity Company (Insurer) on their claim for uninsured motorists benefits under their automobile insurance policy with Insurer. Cherity Kerns was involved in a head-on collision in the state of Kansas between a rental car she was driving and a car owned by one person but operated by another. Kerns obtained a judgment in Kansas against the operator of the other vehicle for negligence and against the owner of the other vehicle for negligently entrusting the vehicle to the operator at the time of the accident. Under Kansas law, each tortfeasor was assessed 50% liability for the total of Kerns's damages. But neither the owner nor the operator had liability insurance. Accordingly, Kerns sought to recover the maximum uninsured motorist benefits provided by her policy against each tortfeasor. She also sought to stack the coverage provided for each of three automobiles covered by Insurer's policy for a total of six times the per-person limit of liability provided in the uninsured motorist coverage portion of the policy. Both parties sought summary judgment. The court below granted Insurer's motion and denied Kerns's motion. Finding no error, we affirm.

         Background

         Cherity Kerns, a Kansas resident, was injured in an automobile accident that occurred in Kansas, while she was operating a rental car that was registered in Missouri. Kerns and her husband filed a lawsuit in Kansas and obtained a judgment against the two uninsured persons who caused that accident-the operator of the other vehicle (for general negligence) and the owner of the other vehicle (for negligent entrustment). The court entered judgment against each tortfeasor separately in the amount of $1, 405, 791.65.

         At the time of the accident, the Kernses had an automobile policy issued by Insurer in Kansas that included uninsured motorist ("UM") coverage of $100, 000 per person and $300, 000 per accident; the policy covered three separate vehicles. The Kernses submitted a UM claim to Insurer and Insurer paid them $100, 000-the per-person limit of UM coverage under the policy. The Kernses then filed a lawsuit in Jackson County, Missouri, against Insurer seeking additional UM coverage from Insurer, arguing they were entitled to stack coverage based on the number of vehicles insured under the policy and the number of uninsured persons who caused the accident.

         The Kernses filed a motion for partial summary judgment, arguing that, under Kansas law, Insurer was required to provide benefits related to each of the two uninsured motorists deemed at fault in the accident. The Kernses then filed a second motion for summary judgment, arguing that because of an ambiguity in the policy language, Insurer was required to stack the uninsured motorist benefits provided for each of the three vehicles insured in the policy. Insurer responded to the motions, including the statements of uncontroverted material facts, acknowledging that most were, in fact, uncontroverted. Insurer then submitted additional uncontroverted material facts of its own, which the Kernses conceded, wholesale, were uncontroverted.

         Insurer then filed a suit in Kansas against the Kernses, seeking a declaratory judgment on the exact same issue of UM coverage and benefits, while simultaneously seeking a stay of the Missouri lawsuit filed by the Kernses. All. Indem. Co. v. Kerns, 360 P.3d 491, *1 (Kan.Ct.App. 2015). Insurer obtained summary judgment in its favor in the Kansas declaratory judgment action, and the Kernses appealed. Id. While the Kansas appeal was pending, the Missouri circuit court, sua sponte, lifted the previously granted stay. Id. at *2. The Missouri court then denied both of the Kernses' motions for partial summary judgment. Following the Missouri court's ruling, the Kansas Court of Appeals dismissed the pending appeal as moot. All. Indem. Co., 360 P.3d 491 at *2.

         Insurer then filed the motion at issue in this appeal-a motion to dismiss or grant judgment on the pleadings in favor of Insurer on the Kernses' claims. The motion cited the circuit court's earlier rulings, denying the Kernses' motions for partial summary judgment on the ground that Kansas law applied and precluded the recovery sought. Insurer also filed suggestions in support of its motion, with attached exhibits. The Kernses filed a responsive motion, arguing that, because of the attached exhibits, Insurer's motion was improperly submitted as a motion for judgment on the pleadings and should, therefore, be either denied or treated as a motion for summary judgment as required by Rule 55.27(b).[1] The circuit court entered an order, notifying the parties that it would treat Insurer's motion as a motion for summary judgment under Rule 74.04, and it then set a "briefing schedule" following the deadlines set forth in Rule 74.04.

         After receiving suggestions in support of summary judgment from Insurer and suggestions in opposition from the Kernses, the court entered summary judgment in favor of Insurer, finding that Kansas law applied and prohibited the stacking sought by the Kernses. The Kernses appeal.

         Analysis

         The Kernses raise three points on appeal. First, they argue that the circuit court erred in granting summary judgment for Insurer because Insurer's motion failed to comply with the requirements of Rule 74.04. Second, they argue that the circuit court erred in granting summary judgment in favor of Insurer and denying summary judgment to the Kernses on the question of whether Insurer owed UM benefits for each of the two separate tortfeasors. And, finally, they argue in their third point that the circuit court erred in granting summary judgment in favor of Insurer and denying summary judgment to the Kernses on the issue of whether the policy was ambiguous and permitted the Kernses to stack UM coverage for each of the three vehicles covered by their policy.

         A. Standard of Review[2]

         "An appellate court's review of the grant of summary judgment is de novo." Energy Creates Energy, LLC v. Heritage Grp., 504 S.W.3d 142, 147 (Mo. App. W.D. 2016). "The record is reviewed in the light most favorable to the party against whom judgment was entered, and the non-movant is given the benefit of all reasonable inferences from the record." Id. That being said, "[f]acts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. (quoting ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)).

         B. There was no violation of Rule 74.04.

         In their first point on appeal, the Kernses argue that Insurer's motion to dismiss or for judgment on the pleadings "was not in compliance with Rule 74.04 in that [Insurer] failed to present a statement of uncontroverted material fact, but instead, assumed that a decision overruling [the Kernses'] motion for summary judgment meant that summary judgment must be entered for [Insurer]."

         Though Insurer's motion was initially filed as a motion to dismiss or enter judgment on the pleadings, Insurer included exhibits with the motion. Rule 55.27(b) provides that,

[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.

         Here, after Insurer filed its motion, the Kernses, citing Rule 55.27(b), asked that Insurer's motion be treated as one for summary judgment. The circuit court agreed, gave all parties notice of its intent to treat the motion as one for summary judgment, and set a "briefing schedule" in compliance with the deadlines imposed by Rule 74.04. Thereafter, Insurer filed a supplemental brief in support of its motion, which included a "statement of facts, " setting forth nine distinct factual assertions in separately numbered paragraphs with citations to the pleadings, motions, and discovery in the case purportedly supporting the fact stated therein.

         The Kernses argue that Insurer's motion failed to include a "statement of uncontroverted material fact" as is required by Rule 74.04. Rule 74.04(c) requires "[a] statement of uncontroverted material facts [to] be attached to the motion." It further requires the statement to "state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts." Id.

         Though Insurer's statement of facts was not denominated as a statement of uncontroverted material fact, it plainly complied with Rule 74.04(c) in all other respects. And the Kernses' response to Insurer's supplemental brief acknowledged that each fact identified in Insurer's statement of facts was, in fact, uncontroverted. The Kernses then identified eight additional facts that they claimed were material to the issues, all of which were accepted as uncontroverted by Insurer in its reply. In short, there was no violation of Rule 74.04(c).[3]

         Point I is denied.

         C. The Relevant Policy Language

         The second and third points on appeal both relate to UM coverage and benefits under Insurer's policy. The policy declarations page indicates that the policy provided coverage for liability, personal injury protection from both uninsured and underinsured motorists, damage to covered automobiles, and towing and labor. The limits of liability listed on the declarations page for personal injury protection were identified as "$100, 000/Person - $300, 000/Accident." In the Vehicle Schedule, the policy indicates coverage for three separate vehicles, each identified as having uninsured and underinsured motorist coverage with the liability limits identified on the declarations page. There is a separate premium identified for each vehicle related to the uninsured/underinsured motorist coverage.

         Part C of the policy relates to Uninsured Motorists Coverage, but it is subject to an endorsement related specifically to uninsured motorists coverage in Kansas. The endorsement provides that Insurer would "pay damages which an 'Insured' is legally entitled to recover from the owner or operator of an 'uninsured motor vehicle' or 'underinsured motor vehicle' because of 'bodily injury': 1. Sustained by an 'Insured'; and 2. Caused by an accident."

         The Limit of Liability section provides:

A. The limit of liability shown in the Declarations for each person for Uninsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of "bodily injury" sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Declarations for each accident for Uninsured Motorists Coverage is our maximum limit of liability for all damages for "bodily injury" resulting from any one accident.

         This is the most we will pay regardless of the number of:

1. "Insureds";

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.