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Nunnally v. Stillwater Insurance Co.

United States District Court, E.D. Missouri, Eastern Division

July 24, 2019

MICHELLE L. NUNNALLY, Plaintiff,
v.
STILLWATER INSURANCE COMPANY, Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court[1] on Defendant Stillwater Insurance Company's motion for summary judgment [ECF No. 19] and Plaintiff Michelle L. Nunnally's motion for summary judgment [ECF No. 25]. The parties filed a joint statement of stipulated facts for summary judgment [ECF No. 21].

         I. Background

         Plaintiff alleges that on October 5, 2012, a vehicle she drove was struck by another vehicle, resulting in bodily injury to Plaintiff. The liability insurer for the driver of the other vehicle paid Plaintiff $25, 000.00. Plaintiff then sought payment from Defendant under the underinsured motorists (“UIM”) coverage of an insurance policy Defendant issued to Plaintiff (“the Policy”), which insures three vehicles. The Policy's UIM coverage has limits of $100, 000 per person and $300, 000 per accident. Plaintiff claims that Defendant's failure to pay her $300, 000 in UIM coverage under the Policy constitutes a breach of contract (Count I) and vexatious refusal to pay (Count II). Defendant denies liability and asserts several affirmative defenses, including that: (1) Defendant is entitled to a set-off or deduction for any amount previously paid to Plaintiff by anyone legally responsible to Plaintiff; and (2) the policy Defendant issued to Plaintiff does not permit “stacking” of UIM coverage.

         In her summary judgment motion, Plaintiff argues that: (1) due to the terms of the Policy's UIM coverage, the Policy's $100, 000.00 per person UIM coverage limit may be stacked three times because three vehicles are insured by the Policy, entitling her to a $300, 000.00 UIM coverage limit; and (2) the Policy's UIM coverage endorsement “includes no language allowing a set-off of the $25, 000.00 collected from the other driver's insurer.” In its summary judgment motion, Defendant contends that: (1) the language of the Policy does not permit stacking of the UIM coverage limit, so Defendant is liable only for a maximum of $100, 000.00 in UIM coverage, and (2) Defendant is entitled to a set-off or deduction, from any amount “Plaintiff may be entitled to at trial, ” equal to the amount paid by other responsible parties, including a deduction of the $25, 000.00 paid by the driver whose vehicle allegedly rear-ended Plaintiff's vehicle.

         A. Undisputed facts

         The parties' joint stipulation states the following:[2] Plaintiff alleges that on October 5, 2012, she was rear-ended by Christina Allen and damaged by Ms. Allen's negligence. Parties' stip. ¶¶ 4-5 [ECF No. 21]. Progressive Insurance Company issued an automobile insurance policy to Ms. Allen, with a per person limit of $25, 000. Id. ¶ 8. Progressive paid Plaintiff $25, 000 by or on behalf of Ms. Allen for Ms. Allen's alleged liability for Plaintiff's alleged damages. Id. ¶ 9.

         Defendant issued an automobile insurance policy (No. NV1000610), the Policy, to Plaintiff, which was in effect for the period from May 6, 2012 to November 6, 2012. Id. ¶ 1; Policy, Ex. 1 attached to parties' stip. [ECF No. 21-1]. The Policy insures three vehicles. Parties' stip. ¶ 3; Ins. Policy, Ex. 1 attached to parties' stip. [Ex. 21-1]; the Policy's declaration page listing three vehicles [ECF No. 21-1]. At the time of the accident, Plaintiff drove a vehicle that she owned and was insured under the Policy. Parties' stip. ¶¶ 6 and 14 [ECF No. 21]. The other two vehicles insured through the Policy were not involved in the accident. Id. ¶ 7.

         The Policy's per person UIM limit of liability is $100, 000.[3] Id. ¶ 1. Plaintiff claims that she is entitled to stack the Policy's UIM coverage based on the number of vehicles insured by the Policy. Id. ¶ 11.

         The Policy contains, in part, the following language:

Limit Of Liability
A. The Limit Of Liability shown in the Schedule or in the Declarations for each person for Underinsured Motorists Coverage is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of “bodily injury” sustained by any one person in any one accident. Subject to this limit for each person, the Limit Of Liability shown in the Schedule or in the Declarations for each accident for Underinsured Motorists Coverage is our maximum limit of liability for all damages for “bodily injury” resulting from any one accident.
This is the most we will pay regardless of the number of:
1. “Insureds”;
2. Claims made;
3. Vehicles or premiums shown in the Schedule or in the Declarations; or
4. Vehicles involved in the accident.
B. No. one will be entitled to receive duplicate payments for the same elements of loss under this coverage and Part A, Part B or Part C of this policy.
C. We will not make a duplicate payment under this coverage for any element of loss for which payment has been made by or on behalf of persons or organizations who may be legally responsible.
D. [Omitted]

         Parties' stip. ¶ 12 [ECF No. 21]; the Policy, Ex. 1, UIM Endorsement page 2 of 3 [ECF No. 21-1].

         The Policy also contains, in part, the following language:

Other Insurance
If there is other applicable insurance available under one or more policies or provisions of coverage that is similar to the insurance provided by this endorsement:
1. Any recovery for damages under all such policies or provisions of coverage may equal but not exceed the highest applicable limit for any one vehicle under any insurance providing coverage on either a primary or excess basis.
2. Subject to all other provisions of this policy, including but ...

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