United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) DENYING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT, (2) GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT, AND (3) DENYING AS MOOT PLAINTIFF'S
MOTION TO STAY
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT
are Plaintiff's Motion for Summary Judgment (Doc. #26),
Plaintiff's Motion to Stay (Doc. #28), and
Defendant's Motion for Summary Judgment (Doc. #35). For
the following reasons, Plaintiff's Motion for Summary
Judgment is denied, Defendant's Motion for Summary
Judgment is granted, and Plaintiff's Motion to Stay is
denied as moot.
September 16, 2016, Plaintiff Maureen Johnson was involved in
a motor vehicle collision. At the time, Plaintiff was
operating a 2005 Ford E150 Econoline Van, which was owned by
her employer, TestAmerica Environmental Services, LLC.
TestAmerica had automobile insurance coverage on the van
through Travelers Insurance Company, which provided $1, 000,
000 in underinsured motorist (“UIM”) coverage.
Alma Xiloj, the individual driving the vehicle that collided
with the van driven by Plaintiff, was insured by Trader's
Insurance Company and her policy had a bodily injury
liability limit of $25, 000. In addition, Jeffrey Johnson,
Plaintiff's husband, had an automobile insurance policy
through Defendant Safeco Insurance Company of Illinois. The
policy provided coverage for three vehicles: a 2013 Ford
F150, a 2005 Ford Focus, and a 2015 Ford Explorer. These
vehicles were not involved in the September 2016 collision.
For each insured vehicle, the policy provided $250, 000 for
each person in underinsured motorist coverage.
January 2018, Plaintiff filed a lawsuit in Missouri state
court against Xiloj. On May 22, 2018, Plaintiff entered into
a covenant not to execute with Xiloj. Prior to agreeing to
the covenant not to execute, Plaintiff sought Defendant's
consent for her to accept $25, 000, the applicable limit of
Xiloj's policy. In the communication to Defendant,
Plaintiff's counsel, in addition to asking for
Defendant's consent, stated “I presume you have no
issues with this - since Traveler's is holding the
primary policy.” Doc. #27-9, at 2. Defendant
consented and also specified: “As you mention, you
would want to secure Travelers' consent as well as they
are handling the UIM claim for [Plaintiff] under their
primary policy.” Id. at 1. In May 2018, a
bench trial was held in the lawsuit against Xiloj. The state
court entered a judgment in the amount of $5, 000, 000. As
agreed, Trader's paid Plaintiff $25, 000.
2018, Plaintiff's counsel sent a letter to Defendant and
Travelers demanding $1, 000, 000 from each company. In July
2018, Travelers tendered its UIM coverage limit of $1, 000,
000 to Plaintiff. Defendant determined its UIM coverage would
apply on an excess basis because Travelers provided primary
coverage. According to Defendant, Plaintiff's recovery of
UIM insurance could not exceed the highest applicable UIM
coverage limit for any applicable policy. Travelers' UIM
coverage limit of $1, 000, 000 was greater than the UIM
coverage limit in the policy purchased from Defendant.
Therefore, Defendant determined Plaintiff's maximum
recovery of UIM insurance was $1, 000, 000. Because Plaintiff
had already been paid $1, 000, 000, Defendant denied
August 2018, Plaintiff filed this matter seeking a
determination of Defendant's obligations under the
policy. Doc. #1. Both parties now move for summary judgment.
Docs. #26, 35. Plaintiff also filed a motion to stay. Doc.
SUMMARY JUDGMENT MOTIONS
moving party is entitled to summary judgment on a claim only
if there is a showing that “there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” See Williams v.
City of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986).
“[W]hile the materiality determination rests on the
substantive law, it is the substantive law's
identification of which facts are critical and which facts
are irrelevant that governs.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Wierman v.
Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir.
2011) (quotation omitted). In applying this standard, the
Court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of all
inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744
F.2d 653, 655 (8th Cir. 1984). However, a party opposing a
motion for summary judgment “may not rest upon the mere
allegations or denials of the…pleadings, but…by
affidavits or as otherwise provided in [Rule 56], must set
forth specific facts showing that there is a genuine issue
for trial.” Fed.R.Civ.P. 56(e).
of an insurance policy is a question of law. McCormack
Baron Mgmt. Servs., Inc. v. Am. Guar. & Liab. Ins.
Co., 989 S.W.2d 168, 171 (Mo. banc 1999) (citation
omitted). In Missouri, insurance policies and insurance
provisions for underinsured motorist coverage are governed by
the rules of contract. Daughhetee v. State Farm Mut. Auto.
Ins. Co., 743 F.3d 1128, 1132 (8th Cir. 2014) (citation
omitted). Am. Fam. Mut. Ins. Co. v. Turner, 824
S.W.2d 19, 21 (Mo.Ct.App. 1991) (citation omitted).
“The provisions of an insurance policy are read in
context of the policy as a whole, ” and “[t]he
language in a policy is given its ordinary meaning unless
another meaning is plainly intended.” Columbia Mut.
Ins. Co. v. Schauf, 967 S.W.2d 74, 77 (Mo. banc. 1998)
(citations omitted). If the language is unambiguous, the
Court must interpret the policy as written, but if the
language is ambiguous, the Court must interpret the policy in
favor of the insured. Daughhetee, 743 F.3d at 1133
(citations omitted). “An ambiguity exists when there is
duplicity, indistinctness or uncertainty in the meaning of
the policy [and] is reasonably open to different
constructions.” Gulf Ins. Co. v. Noble Broad.,
936 S.W.3d 810, 814 (Mo. banc 1997). The presence of a broad
provision for coverage coupled with subsequent narrowing
language does not create an ambiguity. Todd v. Mo. United
Sch. Ins. Council, 223 S.W.3d 156, 162-63 (Mo. banc
argues she is entitled to at least $250, 000 (or as much as
$750, 000) in UIM insurance from Defendant pursuant to the
policy. She argues Defendant is attempting to claim a
coverage setoff based on Travelers' payment, and she also
contends the policy is ambiguous and confusing. Doc. #27, at
10-20. Defendant claims it is not seeking a setoff, and the
policy unambiguously limits UIM insurance when more than one
policy provides UIM coverage.
Court must turn first to the policy. The policy's
“Additional Coverages” section includes UIM. Doc.
#1-1, at 38-41. The relevant provisions are as follows:
A. We will pay compensatory damages which an insured is
legally entitled to recover from the owner or operator of an
underinsured motor vehicle because of bodily injury:
1. Sustained by that insured; and
2. Caused by an accident.
The owner's or operator's liability for these damages
must arise out of the ownership, maintenance or use of the
underinsured motor vehicle.
Any judgment for damages arising out of a suit brought
without our written consent is not binding on us.
We will pay under this coverage only if 1. or 2. below
1. The limits of liability under any applicable bodily injury
liability bonds or policies have been exhausted by payment of
judgments or settlements; or
2. A tentative settlement has been made between an insured
and the insurer of the underinsured ...