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Forsman v. Burgess

Court of Appeals of Missouri, Western District, Third Division

April 10, 2018

ROSE FORSMAN, Appellant,
v.
ANTHONY BURGESS; Appellant, and EMPIRE FIRE and MARINE INSURANCE COMPANY, Respondents.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Ho norable Kenneth R. Garrett, III, Judge

          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr. Judges

          LISA WHITE HARDWICK, JUDGE.

         Rose Forsman and Anthony Burgess appeal from a summary judgment entered in favor of Empire Fire and Marine Insurance Company ("Empire"). They contend the circuit court erred in applying Kansas law to deny their claim under an automobile insurance policy. For reasons explained herein, we affirm.

         Standard of review

         Appellate 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 review the record in the light most favorable to the party against whom the judgment was entered. Id. Summary judgment is proper "where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law." Id.

         Factual and Procedural History

         In October 2014, Anthony Burgess rented a vehicle from Baron BMW in Merriam, Kansas, while his own vehicle was being repaired. Burgess signed a rental agreement which provided, in relevant part:

You agree to provide auto liability, collision, and comprehensive Insurance covering You, Us, and the Vehicle. Your insurance is primary. If You have no auto liability insurance in effect on the date of a loss, or if We are required by law to provide liability insurance, We will provide auto liability insurance ("the Policy") that is secondary to any other valid and collectible insurance whether primary, secondary, excess or contingent. The Policy provides bodily injury and property damage liability coverage with limits no higher than minimum levels prescribed by the state whose laws apply to the loss.

         On October 14, 2014, Burgess was driving the rented vehicle in Jackson County, Missouri, when he hit a pedestrian, Rose Forsman. At the time of the accident, Burgess was insured by State Farm Mutual Automobile Insurance Company ("State Farm"). Baron BMW was insured by Empire.

         On May 15, 2015, Empire denied Burgess liability coverage for the accident. Empire relied on the policy's contingent insurance clause as the basis for denying coverage:

Section II - LIABILITY COVERAGE Part A - COVERAGE
3. CONTINGENT INSURANCE FOR "RENTEES"
This policy does not insure the "rentee" or any driver designated in a "rental agreement" if there is any other applicable automobile liability insurance or "self-insurance", whether primary, excess, or contingent, with limits of liability or retained limits at least equal to the limits provided by this policy. If the "rentee" and any driver designated in a "rental agreement" are not insured by any other applicable automobile liability insurance or "self-insurance", whether primary, excess, or contingent, or if the limits of such insurance or ...

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