United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE
diversity case involving underinsured motorist
(“UIM”) coverage is before the Court on
Plaintiff's motion for partial summary judgment [Doc.
25], and Defendant's motion for summary judgment [Doc.
22], seeking a determination as to whether Plaintiff is
entitled to underinsured motorist coverage under her
insurance policy with Defendant. The parties have consented
to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc.
16.] The motions are fully briefed and the matter is ripe for
disposition. For the following reasons, the Court will grant
Defendant's motion and deny Plaintiff's motion.
parties have stipulated that the facts recited here are
undisputed for the purposes of summary judgment. Plaintiff
Tammy Rusher was injured in a single-vehicle accident while
occupying a 2005 Hyundai Elantra owned by Plaintiff and
operated by her daughter. The December 7, 2013, accident was
caused by her daughter's negligence. LM General Insurance
Company issued personal automobile policy No.
AOS-248-469875-40 (the “Policy”) to Tammy
Schumann (Plaintiff's former name) and Jason Schumann.
The policy was in full force and effect at the time of the
accident, and provided Plaintiff and the involved Hyundai
with the insurance coverage set forth in the policy.
Defendant tendered to Plaintiff the $25, 000 in bodily injury
liability coverage available under the Policy. Plaintiff
demanded UIM coverage from Defendant in the amount of $500,
000, which represented the policy limits. Defendant refused
the demand for the stated reason that the vehicle involved in
the accident was not an “underinsured motor
vehicle” as defined in the Policy. Plaintiff filed this
action in Missouri state court for declaratory judgment,
breach of contract, and vexatious refusal to pay. Defendant
removed the action to this Court based on diversity of
Summary Judgment Standard
standards applicable to summary judgment motions are well
settled, and they do not change when both parties have moved
for summary judgment. See Wermager v. Cormorant Twp.
Bd., 716 F.2d 1211, 1214 (8th Cir. 1983); Tower Rock
Stone Co. v. Quarry & Allied Workers Local No. 830,
918 F.Supp.2d 902, 905 (E.D. Mo. 2013). Summary judgment is
proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013).
The movant “bears the initial responsibility of
informing the district court of the basis for its
motion” and must identify “those portions of [the
record] . . . which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant does
so, the nonmovant must respond by submitting evidentiary
materials that set out “specific facts showing that
there is a genuine issue for trial.” Id. at
324 (quotation marks omitted). “On a motion for summary
judgment, ‘facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine
dispute as to those facts.'” Ricci v.
DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott
v. Harris, 550 U.S. 372, 380 (2007) (internal quotation
parties file cross-motions for summary judgment, each summary
judgment motion must be evaluated independently to determine
whether a genuine dispute of material fact exists and whether
the movant is entitled to judgment as a matter of law.
Husinga v. Federal-Mogul Ignition Co., 519 F.Supp.2d
929, 942 (S.D. Iowa 2007). “[T]he filing of cross
motions for summary judgment does not necessarily indicate
that there is no dispute as to a material fact, or have the
effect of submitting the cause to a plenary determination on
the merits.” Wermager, 716 F.2d at 1214.
law governs the interpretation of insurance policies when
federal jurisdiction is based on diversity of citizenship.
Secura Ins. v. Horizon Plumbing, Inc. 670 F.3d 857,
861 (8th Cir. 2012). Missouri law governs this insurance
contract. This Court is bound by the decisions of the
Missouri Supreme Court regarding issues of substantive state
law. Owners Ins. Co. v. Hughes, 712 F.3d 392, 393
(8th Cir. 2013). Decisions by the Missouri Court of Appeals
may be used as “an indication of how the Missouri
Supreme Court may rule, ” but the Court is not bound to
follow these decisions. Id.
policies are read as a whole, and the risk insured against is
made up of both the general insuring agreement as well as the
exclusions and definitions.” Todd v. Missouri
United Sch. Ins. Council, 223 S.W.3d 156, 163 (Mo. 2007)
(en banc). In construing the terms of an insurance policy,
Missouri courts apply “the meaning an ordinary person
of average understanding would attach if purchasing
insurance, and resolve[ ] ambiguities in favor of the
insured.” Dutton v. Am. Family Mut. Ins. Co.,
454 S.W.3d 319, 322 (Mo. 2015). But, “[i]f the
policy's language is unambiguous, it must be enforced as
written.” Floyd-Tunnell v. Shelter Mut., 439
S.W.3d 215, 217 (Mo. 2014). Ambiguities arise 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.”
Burns v. Smith, 303 S.W.3d 505, 509 (Mo. 2010)
(citation omitted). Ambiguity also arises where an insurance
clause appears to furnish coverage but other provisions
signal that such coverage is not provided. Seeck v. Geico
Gen. Ins. Co., 212 S.W.3d 129, 134 (Mo. 2007) (en banc).
However, “[d]efinitions, exclusions, conditions and
endorsements are necessary provisions in insurance policies.
If they are clear and unambiguous within the context of the
policy as a whole, they are enforceable.”
Todd, 223 S.W.3d at 163. Finally, a court must not
“unreasonably distort the language of a policy or
exercise inventive powers for the purpose of creating an
ambiguity when none exists.” Todd, 223 S.W.3d
at 163; see also Rodriguez v. Gen. Acc. Ins. Co. of
Am., 808 S.W.2d 379, 382 (Mo. 1991) (en banc).
coverage endorsement of the Policy provides in relevant part
will pay compensatory damages which an “insured”
is legally entitled to recover from the owner or operator of
an “underinsured motor ...