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Shull v. American Family Mutual Insurance Co.

United States District Court, W.D. Missouri, Western Division

March 5, 2018

SHERRY SHULL, Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, S.I., Defendant.

          ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

          ORTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

         Pending is Defendant's motion to dismiss. Doc. #2. For the reasons below, the Court grants in part and denies in part Defendant's motion.

         I. BACKGROUND

         On July 25, 2016, Plaintiff was driving her vehicle when she was struck by a vehicle operated by third-party Joshua Sowell.[1] As a result of the collision, Plaintiff suffered injuries. Sowell carried an insurance policy, but the coverage was insufficient to compensate Plaintiff for her injuries.

         At the time of the accident, two automobile insurance policies issued to Plaintiff by Defendant were in force. First, Policy No. 2054-7815-01-69-FPPA-MO provided coverage for a 1999 Chevrolet Blazer (“Blazer policy”). Second, Policy No. 2054-7815-02-72-FPPA-MO provided coverage for a 2001 Saturn SL1 (“Saturn policy”). The Blazer policy's declarations page provided underinsured motorist coverage with a limit of “$50, 000 each person, ” and “$100, 000 each accident.” The Saturn policy provided underinsured motorist coverage with a limit of “$100, 000 each person, ” and “$300, 000 each accident.” Although the policies provided different underinsured motorist coverage limit amounts, the contractual language of the policies' underinsured motorist coverage sections are identical. The insuring agreement of each policy's underinsured motorist coverage section states:

         B. INSURING AGREEMENT

1. 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.

         Doc. #1-1, at 31, 53 (emphasis in original). In relevant part, the exclusions of each policy's underinsured motorist coverage section states:

         C. EXCLUSIONS

         1. We do not provide coverage for bodily injury sustained by any insured person:

a. while occupying, or when struck by, a motor vehicle which is owned by or furnished or available for regular use by you or any resident of your household that is not insured for this coverage under this policy.

         Doc. #1-1, at 31, 53 (emphasis in original).[2] The limits of liability section of each policy's underinsured motorist coverage section states:

         D. LIMITS OF LIABILITY

         1. The limits of liability for this coverage as shown in the Declarations apply, subject to the following:

a. the bodily injury liability limit for “each person” is the maximum for all damages sustained by any person as a result of bodily injury to that person in any one accident, including but not limited to damages for care, loss of consortium, loss of services or death.
b. subject to the bodily injury liability limits for “each person, ” the bodily injury liability limits for “each accident” is the maximum for bodily injury ...

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