American Economy Insurance Co. v. Cornejo

866 S.W.2d 174, 1993 Mo. App. LEXIS 1890, 1993 WL 498583
Missouri Court of Appeals·Decided December 7, 1993·No. No. 63609·Published·Cited by 9 cases

Opinion

SIMON, Presiding Judge.

Appellant, Joey Cornejo, appeals a summary judgment entered in favor of respondent, American Economy Insurance Company, after the trial court ruled that Dewayne John Blum (Blum) was not an underinsured motorist as defined in a motor vehicle insurance policy issued to appellant by respondent. We affirm in part and reverse and remand in part.

The parties filed an agreed statement of facts. Appellant was injured when the vehicle he was operating was involved in a collision with a vehicle operated by Blum, who was insured by American Family Insurance Company with liability insurance limits of $25,000 per person in any one accident and $50,000 total per accident. Appellant had a single policy issued by respondent on four vehicles with underinsured motorist coverage on each vehicle for $25,000 per person in any one accident and $50,000 total per accident. The record does not indicate what amounts, if any, were paid to appellant by Blum or his insurer. Respondent filed a declaratory judgment action, alleging that there was no applicable underinsured motorist coverage because Blum by policy definition was not an underinsured motorist and, further, if under-insured motorist coverage was applicable, appellant could not, as per the terms of the policy, “stack” the underinsured motorist coverage. On February 8, 1993 the trial court granted summary judgment in respondent’s favor finding that because Blum’s liability coverage was not less than the limits of coverage provided to appellant by respondent’s policy, Blum was not an underinsured motorist within the definition of the policy. The trial court also found that because the limits of Blum’s policy are the same as respondent’s policy, the insurance is not excess coverage and respondent would be entitled to a Ml set-off. Finally, the trial court found that language of the policy relevant to stacking is clear and unambiguous in that the limit is the policy amount regardless of the number of vehicles shown in the declaration.

On appeal, appellant contends the trial court erred in granting respondent’s motion for summary judgment in that due to the ambiguity of the policy and consumer expectations (a) he is entitled to stack all four of the underinsured coverages, and (b) he is entitled to the Ml amount of his policy coverage and respondent was not entitled to any set-off.

[176] The policy issued to appellant contains PART C — UNINSURED/UNDERIN-SURED MOTORISTS COVERAGE, which provides, in pertinent part:

Insuring Agreement
A. We will pay damages which an “insured” is legally entitled to recover from the owner or operator of an “uninsured” or “underinsured motor vehicle” because of “bodily injury” sustained by an “insured” and 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 “uninsured” or “under-insured motor vehicle.”
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D. “Underinsured motor vehicle” means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident; however, its limit for bodily injury liability is less than the limit of liability for this coverage.
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Limit of Liability
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B. If the limit of liability is shown separately for each person and each accident, the following shall apply. If “bodily injury” is sustained in an accident by you or any “family member”:
1. 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 such accident is the sum of the limits of liability in the Schedule or in the Declarations for each person for Uninsured Motorists Coverage;
2. Subject to the maximum limit for each person described in a. above, our maximum limit of liability for all damages arising out of “bodily injury” resulting from any one accident is the sum of the limits of liability shown in the Schedule or in the Declarations for each accident for Uninsured Motorists Coverage;
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The maximum limit of liability is the most we will pay regardless of the number of:
1. “insureds”;
2. Claims made;
3. Vehicles or premises shown in the Schedule or in the Declarations, or
4. Vehicles involved in the accident.

In Krombach v. Mayflower Ins. Co., Ltd,., 827 S.W.2d 208, 210-11[1], [2,3] (Mo. banc 1992), our Supreme Court set out rules of construction relative to insurance policies:

Where insurance policies are unambiguous, the rules of construction are inapplicable, and absent a public policy to the contrary, the policy will be enforced as written. American Family Mutual Ins. Co. v. Ward, 789 S.W.2d 791, 795 (Mo. banc 1990). Courts will not create an ambiguity in order to distort the language of an unambiguous insurance policy. Rodriguez v. General Accident Ins. Co., 808 S.W.2d 379, 382 (Mo. banc 1991).

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American Economy Insurance Co. v. Cornejo, 866 S.W.2d 174, 1993 Mo. App. LEXIS 1890, 1993 WL 498583 (Mo. Ct. App. 1993).

866 S.W.2d 174 (American Economy Insurance Co. v. Cornejo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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