Fanning v. Progressive Northwestern Insurance Co.

412 S.W.3d 360, 2013 Mo. App. LEXIS 1027, 2013 WL 4605225
CourtMissouri Court of Appeals
DecidedAugust 27, 2013
DocketNo. WD 75943
StatusPublished
Cited by21 cases

This text of 412 S.W.3d 360 (Fanning v. Progressive Northwestern Insurance Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fanning v. Progressive Northwestern Insurance Co., 412 S.W.3d 360, 2013 Mo. App. LEXIS 1027, 2013 WL 4605225 (Mo. Ct. App. 2013).

Opinion

GARY D. WITT, Judge.

This case involves the interpretation of underinsured motorist provisions contained in a motorcycle insurance policy. The insured party, Stanley Fanning (“Fanning”), and the insurer, Progressive Northwestern Insurance Company (“Progressive”), filed cross motions for summary judgment. The trial court found the policy to be ambiguous and entered summary judgment in favor of Fanning. Progressive appeals. We affirm.

Factual and Procedural History

The facts are undisputed. While riding his motorcycle, Fanning was involved in an accident with a vehicle operated by Kathleen Burnham (“Burnham”) on June 26, 2Ó10. The accident was caused by Burn-ham’s negligence. Burnham was insured by GEICO Indemnity Company (“GEI-CO”), under a policy which provided liability coverage of $50,000 per person/$100,000 per accident. On Burnham’s behalf, GEI-CO paid its policy limit of $50,000 to Fanning. At the time of the accident, Fanning was insured by Progressive, which had notice of and consented to Fanning’s settlement with Burnham. Fanning’s injuries and damages exceeded $100,000.

Progressive's motorcycle insurance policy with Fanning begins with a declarations page. After the declarations page, page 1 of the policy includes general definitions of fifteen defined terms that appear throughout the policy. There are additional definitions of certain terms contained in various other parts of the policy. Part 111(B), titled “Underinsured Motorist Coverage,” contains its own “additional definitions.” Terms appearing in boldface type throughout the policy are defined terms, and even the definitions sections include bolded terms which are separately defined.

“Declarations page” is defined in the general definition section as; “means the document showing your coverages, limits of liability, covered motorcycles, premium, and other policy-related information” and “may also be referred to as the Motorcycle Insurance Coverage Summary.”1

Progressive’s declarations page provides underinsured motorist coverage, subject to the terms outlined in the policy, with “limits” of “$50,000 each person/$100,000 each accident.” The declarations page has a column titled “deductible,” and includes deductibles for comprehensive coverage and collision coverage. As to underin-sured motorist coverage, the declarations page does not state a deductible, nor does it alert to or identify any trigger, set-off, or any other listed limit of liability or any other limit of coverage.

Part III(B) of the policy contains the underinsured motorist coverage provisions, which grant coverage per the following:

INSURING AGREEMENT
If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury:
1. sustained by that insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of an underinsured motor vehicle.
We wilí pay under this Part III(B) only after the limits of liability under all ap[363]*363plicable bodily injury liability bonds and policies have been exhausted by payment of judgments or settlements.

Part III(B) also contains the following additional definitions (again, not included in the general definitions section of the policy):

ADDITIONAL DEFINITIONS
When used in this Part III(B):
1. “Insured person” means:
a. you or a relative;
b. any person while operating a covered motorcycle with the permission of you or a relative;
c. any person occupying, but not operating, a covered motorcycle;
d. any person who is entitled to recover damages covered by this Part III(B) because of bodily injury sustained by a person described in a, b, or c above.
2. “Underinsured motor vehicle”
means a land motor vehicle or trailer of any type for which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is less than the coverage limit for Underinsured Motorist Coverage shown on the declarations page.

The underinsured motorist coverage provisions in the policy contain the following Limit of Liability clause:

LIMITS OF LIABILITY
The limit of liability shown on the declarations page for Underinsured Motorist Coverage is the most we will pay regardless of the number of:
1. claims made;
2. covered motorcycles;
3. insured persons;
4. lawsuits brought;
5. vehicles involved in the accident; or
6. premiums paid.
[[Image here]]
The Limits of Liability under this Part III(B) will be reduced by all sums: 1. paid because of bodily injury by or on behalf of any persons or organizations that may be legally responsible, including, but not limited to, all sums paid under Part I — Liability to Others;

The underinsured motorist coverage provisions also include the following “other” insurance clause:

OTHER INSURANCE
If there is other applicable underinsured motorist coverage, we will pay only our share of the damages. Our share is the proportion that our limit of liability bears to the total of all available coverage limits. However, any insurance we provide with respect to a vehicle that is not a covered motorcycle will be excess over any other underinsured motorist coverage.

In their motions for summary judgment, the parties only dispute whether the Un-derinsured Motorist Coverage provisions provide coverage to Fanning for the injuries he. sustained in the accident with Burnham. For purposes of the motions, the parties stipulate that Burnham was at •fault for the accident and that Fanning’s total damages exceed $100,000.

Based on the stipulated facts and the policy language, the 'trial court granted Fanning’s motion for summary judgment, determining that there is an ambiguity as to the definition of “underinsured motor vehicle” and denied Progressive’s motion for summary judgment. Whether there is an ambiguity in the policy which results in coverage, is the sole issue on appeal.2 In [364]*364its two points on appeal, Progressive argues that the trial court erred in granting summary judgment to Fanning and in denying Progressive’s motion for summary judgment.

Further facts are set forth below as necessary.

Standard of Review

Our Supreme Court has set forth our standard of review:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bond v. Liberty Insurance Corp.
272 F. Supp. 3d 1112 (W.D. Missouri, 2017)
Rice v. Progressive Preferred Ins. Co.
228 F. Supp. 3d 903 (E.D. Missouri, 2017)
Jack Maxam v. American Family Mutual Insurance Company
504 S.W.3d 124 (Missouri Court of Appeals, 2016)
Burger v. Allied Property & Casualty Insurance
822 F.3d 445 (Eighth Circuit, 2016)
Progressive Casualty Insurance v. Morton
140 F. Supp. 3d 856 (E.D. Missouri, 2015)
Lafollette v. Liberty Mutual Fire Insurance
139 F. Supp. 3d 1017 (W.D. Missouri, 2015)
Mary Simmons v. Farmers Insurance Company, Inc.
479 S.W.3d 671 (Missouri Court of Appeals, 2015)
Paul H. Cowin v. Shelter Mutual Insurance Company
460 S.W.3d 76 (Missouri Court of Appeals, 2015)
Mendota Insurance Company v. Diane Lawson
456 S.W.3d 898 (Missouri Court of Appeals, 2015)
The Midwestern Indemnity Co. v. Malissa Brooks
779 F.3d 540 (Eighth Circuit, 2015)
Naeger v. Farmers Insurance Co.
436 S.W.3d 654 (Missouri Court of Appeals, 2014)
Midwestern Indemnity Co. v. Brooks
12 F. Supp. 3d 1166 (W.D. Missouri, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
412 S.W.3d 360, 2013 Mo. App. LEXIS 1027, 2013 WL 4605225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fanning-v-progressive-northwestern-insurance-co-moctapp-2013.