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Progressive Preferred Insurance Co. v. Mason

Court of Appeals of Missouri, Southern District, Second Division

September 10, 2019

JEFFREY MASON, Defendant-Appellant, and TERRY OZBORN and MATTHEW OZBORN, Defendants.


          DON E. BURRELL, J.

         Jeffrey Mason ("Injured Party") appeals the trial court's entry of summary judgment in favor of Progressive Preferred Insurance Company ("Progressive") in a declaratory judgment action in which Injured Party sought an additional $50, 000 in liability coverage from a Progressive automobile policy issued to Terry Ozborn ("Terry") and Matthew Ozborn ("Matthew"), father and son.[1] Injured Party claims the policy affords Terry up to $50, 000 in additional liability coverage for Terry's permissive use of a vehicle he did not own - a Ford F150 ("the truck") owned by Matthew - based upon operator's liability coverage the policy provided to Terry for a vehicle Terry owned that was not involved in the accident.

         Because the policy at issue satisfied the requirements of the Motor Vehicle Financial Responsibility Law ("MVFRL"[2]), and the trial court correctly ruled that no additional liability coverage was available due to the policy's unambiguous anti-stacking language, we must affirm.

         The Uncontroverted Material Facts

         Injured Party was hurt in February 2015 ("the accident") while assisting Terry and Matthew in moving a refrigerator out of a storage unit and into the back of a trailer attached to the truck. When Terry and Matthew moved a desk to access the refrigerator, slabs of concrete became dislodged and fell onto Injured Party. Injured Party claimed that the accident occurred due to the joint negligence of Terry and Matthew and arose out of their use of the truck.

         Terry and Matthew were both named insureds in a single insurance policy issued by Progressive ("the Policy"), and the Policy was in effect at the time of the accident. The Policy provided liability coverage for two vehicles: (1) the truck being used at the time of the accident titled in Matthew's name; and (2) a 1994 Saturn SL2 4D ("the Saturn") titled in Terry's name that was not being used at the time of the accident. The Policy contained liability insurance limits of $50, 000 per person and $100, 000 per accident for bodily injury claims. The Policy also included an anti-stacking provision that limited Progressive's liability to the bodily injury liability limits for any single accident, regardless of the number of vehicles or persons covered under the policy. Injured Party claimed that his injuries exceeded $100, 000, and he sought payment for those injuries via the bodily injury liability coverage provided by the Policy.

         In exchange for a "PARTIAL RELEASE[, ]" Progressive paid Injured Party $50, 000, which represented "the full amount of one set of Bodily Injury Liability limits under [the Policy]," with the understanding that Injured Party could litigate or further negotiate his claim that he was entitled to a second set of bodily injury liability limits under the Policy.

         Injured Party then filed a cross-petition for declaratory judgment[3] that alleged "he is entitled to recover the limits of $50, 000 from the liability coverage for [Terry]'s liability on the coverage for the Saturn for [Injured Party]'s remaining claims for damages against [Terry]." Progressive denied that it owed any additional liability coverage under the Policy beyond the $50, 000 it had already paid, contending that the Policy does not provide additional liability coverage beyond its limit of $50, 000 per person under the Policy's anti-stacking provisions. The parties presented the issue to the trial court for its decision via competing motions for summary judgment.

         In Injured Party's response to Progressive's motion, and in his own motion for summary judgment ("Injured Party's Motion for Summary Judgment"), Injured Party denied that his claim involved any stacking of liability coverages. Rather, Injured Party claimed that the first $50, 000 paid by Progressive was based upon the truck's liability coverage and "he was entitled" to a second "set[] of each-person Progressive limits from [the Policy] on the basis that [the Policy] provided excess coverage with respect to [Terry] as owner of [the Saturn] listed on [the Policy]." In the alternative, Injured Party argued that he was entitled to an additional $25, 000 as the minimum required by the MVFRL for the same reasons.[4] The trial court granted Progressive's Motion for Summary Judgment and denied Injured Party's Motion for Summary Judgment, declaring "[the Policy] . . . does not owe a second set of $50, 000 each-person liability limits for the bodily injury claim of [Injured Party] against [Terry] arising out of the February 23, 2015 accident." The trial court further concluded that "the unambiguous anti-stacking language in [the Policy] . . . applies, and the liability limits . . . do not stack."


Summary judgment is appropriate when there is no dispute as to the material facts and the movant has established a right to judgment as a matter of law. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 381-82 (Mo. banc 1993). In the present case, as the parties concede, there is no dispute as to the material facts. Both issues involve only the interpretation of an insurance policy, which is a question of law that this Court reviews de novo. See McCormack Baron Management Services, Inc. v. American Guarantee & Liability Ins. Co., 989 S.W.2d 168, 171 (Mo. banc 1999).

Karscig v. McConville, 303 S.W.3d 499, 502 (Mo. banc 2010).

         Point 1 Injured Party's first point claims

[t]he trial court erred in granting summary judgment in favor of Progressive based on the anti-stacking provision in [the Policy], because the MVFRL requires all automobile liability insurance policies issued in this state to provide owner's coverage or operator's coverage as defined in Section 303.190 RSMo., in that [the Policy] herein provided both types of coverage and the undisputed material facts establish as a matter of law that [the Policy] provides an additional $50, 000 excess limit under the operator's coverage issued to Terry on his Saturn for any claims against him individually arising out of his permissive but negligent use of a vehicle he did not own, and thus [Injured Party] is not stacking, adding, combining[, ] or multiplying the same type of coverage with itself.

         We disagree.

         Injured Party argues that, by choosing to combine what would otherwise have been two separate policies - one for the truck and one for the Saturn - into a single insurance contract, Progressive "chose to list both Matthew and Terry as named insureds and provided them both with owner's coverage and operator's coverage." Injured Party claims the operator's coverage for Terry on the Saturn "is a separate and distinctly different type of coverage from the protection Terry received under the [truck]'s owner's coverage as a permissive user insured for his use of [the truck]."

         That argument fails to recognize that the Policy explicitly and unambiguously[5] restricts coverage for bodily injury to a single $50, 000 payment per person, per accident, regardless of the number of insureds or number of covered autos involved.

         In addition to listing Matthew and Terry as named insureds, the truck and the Saturn as covered autos, and a $50, 000 per person/$100, 000 per accident limit of liability to others for bodily injury, the pertinent Policy terms are as follows:

Outline of general policy coverages
All limits listed below are subject to all terms, conditions, exclusions and applicable reductions described in the policy.
General policy coverages apply to all listed vehicles unless indicated otherwise. With the exception of Uninsured Motorist coverage, no limit of liability shall be multiplied, added to itself, or combined or stacked with itself. The Uninsured Motorist coverage ...

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