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Marrs v. American Family Mutual Insurance Co.

Court of Appeals of Missouri, Southern District, First Division

July 25, 2017

JOYCE MARRS, Plaintiff-Appellant,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF MCDONALD COUNTY Honorable Timothy W. Perigo, Circuit Judge

          JEFFREY W. BATES, P.J. - OPINION

         AFFIRMED

         Joyce Marrs (Marrs) appeals from a summary judgment granted to American Family Mutual Insurance Company (American Family) that denied Marrs' request to stack underinsured motorist (UIM) coverage in five American Family policies (Policies).[1] Marrs' request to stack the UIM coverages was based upon alleged ambiguities in the Policies' language. The trial court concluded that the Policies provided no UIM benefits to Marrs because: (1) there were no ambiguities in the Policies' anti-stacking provisions; and (2) there was no ambiguity in the Policies' definition of an underinsured motor vehicle.

         Marrs presents one point for decision. She contends the trial court erred in granting summary judgment to American Family because: (1) the Policies' definition of an underinsured motor vehicle is ambiguous; and (2) since the duplicate underinsured motor vehicle clauses are excess to each other, the Policies should be stacked. Because we agree with the trial court that there are no ambiguities in the Policies' anti-stacking and UIM definitional provisions, we affirm.

         Factual and Procedural Background

         Marrs is the widow of Teddy Marrs (Decedent), who died from injuries he sustained in a motor vehicle accident while riding as a passenger in a vehicle (Vehicle) driven by Shelby Slinkard (Driver). The Vehicle was owned by Decedent's daughter, Tammy Grider and her husband Toby Grider (the Griders), and insured by American Family via a policy that provided $100, 000 in liability coverage for bodily injury. Driver was insured by an auto insurance policy with Progressive Insurance Company that provided $25, 000 in liability coverage for bodily injury. Marrs settled her claims against Driver for $125, 000, the cumulative policy limits of the two liability policies that provided coverage to her.

         At the time of Decedent's death, he was residing with Marrs, Decedent's son Timothy R. Marrs (Son), and Decedant's grandson Dylan C. Link (Grandson). Marrs, Son and Grandson were named, individually or in combination, as insureds in the five Policies with UIM limits totaling $450, 000.[2] In Marrs' petition, she asked the trial court to stack each of the UIM coverage limits and enter judgment in her favor for $450, 000.

         Thereafter, American Family filed a motion for summary judgment. According to American Family, the UIM coverages could not be stacked because of the unambiguous anti-stacking provisions contained in each of the Policies. The trial court agreed with American Family and granted its motion for summary judgment. This appeal followed.

         Standard of Review

         "Whether to grant summary judgment is an issue of law that this Court determines de novo." Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). "The interpretation of an insurance policy is a question of law that this Court also determines de novo." Id.; see also Swadley v. Shelter Mut. Ins. Co., 513 S.W.3d 355, 357 (Mo. banc 2017). In construing the terms of an insurance policy, we apply the meaning that would be attached by an ordinary person of average understanding if purchasing insurance and resolve ambiguities in favor of the insured. Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009). "[A]mbiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy. Language is ambiguous if it is reasonably open to different constructions." Seeck, 212 S.W.3d at 132.

         With respect to UIM coverage, stacking depends upon policy language. Ritchie, 307 S.W.3d at 135. "[I]f the policy language is unambiguous in disallowing stacking, the anti-stacking provisions are enforceable." Id. If, however, the policy language is ambiguous as to stacking, it must be construed against the insurer, and stacking will be allowed. Id. "Courts should not interpret policy provisions in isolation but rather evaluate policies as a whole." Id.; see Seeck, 212 S.W.3d at 133. The burden is on the insured to show coverage is provided under the policies at issue. Manner v. Schiermeier, 393 S.W.3d 58, 63 (Mo. banc 2013).

         Discussion and Decision

         In Marrs' single point, she contends the trial court erred in granting summary judgment to American Family. Marrs' arguments for reversal are based upon the premise that the Policies' definition of an "underinsured motor vehicle" is ambiguous.

         The Policies each contain the same June 2014 UIM endorsement (the UIM Endorsement), which consists of sections A-E.[3] In Section A, the term "underinsured motor vehicle" is defined:

Underinsured motor vehicle means a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the limits of liability of this underinsured motorists coverage.

         Section B.1 contains the general UIM insuring agreement. It states:

Subject to the provisions contained within each section of this endorsement, we will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The amount of compensatory damages we will pay will never exceed the underinsured motorist coverage limits of liability shown on the Declarations minus any payment or reduction set forth in Section D.3. LIMITS OF LIABILITY.

         Section D is the UIM "LIMITS OF LIABILITY" section. Provision D.2 contains the ...


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