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Progressive Max Insurance Co. v. Hopkins

Court of Appeals of Missouri, Southern District, First Division

November 7, 2017

PROGRESSIVE MAX INSURANCE COMPANY, Plaintiff-Respondent,
v.
MATTHEW HOPKINS, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Mark A. Powell

          DON E. BURRELL, J.

         Matthew Hopkins ("Insured") appeals a declaratory judgment ruling that his motorcycle insurer, Progressive Max Insurance Company ("Progressive"), was entitled to set-offs from its underinsured motorist ("UPM") liability limit under the terms of its insurance policy ("the Policy"). The judgment resulted from cross-motions for summary judgment, and the following material facts are not in dispute.[1]

         While riding his motorcycle, Insured was struck by a vehicle operated by another motorist ("Tortfeasor"). Insured was seriously injured and sustained damages exceeding $127, 000. Tortfeasor had liability insurance provided by Farmers Insurance ("Farmers"), and it paid Insured $25, 000 - the per-person bodily injury limit under its policy ("the bodily injury set-off). Shortly after the collision occurred, Progressive paid Insured $2, 500 - the medical payments coverage limit provided under the Policy ("the med-pay set-off').[2]

         After subtracting the set-offs from the Policy's $100, 000 UTM coverage limit, Progressive ultimately paid Insured $72, 500 in UIM benefits. Believing himself entitled to receive the full UTM coverage benefit as stated on the declarations page of the Policy without any set-offs, Insured timely appealed the judgment. Because the Policy unambiguously provided for the set-offs, we affirm.

         Applicable Principles of Review

         Our review of a summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the light most favorable to the non-moving party, drawing all inferences in that party's favor. Id. We will uphold the grant of summary judgment only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Mat 380.

         The interpretation of an insurance policy is also a question of law that we review de novo. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). In so doing, we apply the meaning '"which would be attached by an ordinary person of average understanding if purchasing insurance, '" (quoting McCormack Baron Mgmt. Services, Inc. v. Am. Guarantee & Liability Ins. Co., 989 S.W.2d 168, 171 (Mo. banc 1999)), and "[we] [resolve] ambiguities in favor of the insured." Id. An ambiguity exists if the language '"is reasonably open to different constructions.'" Id. (quoting Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 814 (Mo. banc 1997)). "Courts are not to interpret the provisions of an insurance policy in isolation but rather are to examine the policy as a whole." Wasson v. Shelter Mut. Ins. Co., 358 S.W.3d 113, 121 (Mo. App. W.D. 2011). '"If the language in an insurance contract is clear and unambiguous, this Court must construe the contract as written[.]'" Gavan v. Bituminous Cos. Corp., 242 S.W.3d 718, 720 (Mo. banc 2008) (quoting Bellamy v. Pacific Mut. Life Ins. Co., 651 S.W.2d 490, 495 (Mo. banc 1983)).

         The Policy

         Under the heading "Outline of coverage" the Policy's declarations page states: "All limits listed below are subject to all terms, conditions, exclusions and applicable reductions described in the [P]olicy." The UPM coverage limit is listed therein as "$100, 000 each person/$300, 000 each accident[.]"[3]

         PART III(B) - UNDERINSURED MOTORIST COVERAGE of the Policy provides, in pertinent part:

         LIMITS OF LIABILITY

The limit of liability shown on the declarations page for Underinsured Motorist Coverage will be reduced by all sums:
1. paid because of bodily injury by or on behalf of any persons or organizations that may be legally responsible, including, but not limited to, all sums paid ...

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