United States District Court, E.D. Missouri, Eastern Division
MICHELLE L. NUNNALLY, Plaintiff,
STILLWATER INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court 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].
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.
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
parties' joint stipulation states the
following: 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.
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. ¶
Policy's per person UIM limit of liability is $100,
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.
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
This is the most we will pay regardless of the number of:
2. Claims made;
3. Vehicles or premiums shown in the Schedule or in the
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
stip. ¶ 12 [ECF No. 21]; the Policy, Ex. 1, UIM
Endorsement page 2 of 3 [ECF No. 21-1].
Policy also contains, in part, the following language:
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