Higgins v. MFA Mutual Insurance Co.

550 S.W.2d 811, 1977 Mo. App. LEXIS 2082
CourtMissouri Court of Appeals
DecidedMarch 15, 1977
DocketNo. 37510
StatusPublished
Cited by2 cases

This text of 550 S.W.2d 811 (Higgins v. MFA Mutual 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
Higgins v. MFA Mutual Insurance Co., 550 S.W.2d 811, 1977 Mo. App. LEXIS 2082 (Mo. Ct. App. 1977).

Opinion

KELLY, Presiding Judge.

This appeal from a judgment of the Circuit Court of St. Louis County awarding the plaintiff-respondent $20,000.00 aggregate damages in a declaratory judgment suit presents a case of first impression in Missouri, i. e., whether the enactment of § 379.-203 RSMo.1967 Supp., wrote into a policy of automobile liability insurance the uninsured motorist coverage therein mandated although the policy of automobile liability insurance had been issued prior to the effective date of the enactment of said statute and did not contain uninsured motorist coverage when issued. We hold that it did not and therefore reverse the judgment of the Circuit Court and enter judgment for the defendant-appellant. Rule 84.14 V.A. M.R.

Plaintiff-respondent’s petition was in two counts. Count I set forth the claim of plaintiff in her capacity as the administra-trix of the Estate of Grant Higgins, her deceased husband, and Count II, her individual claim. The damages sought in each Count were $10,000.00, an aggregate of [812]*812$20,000.00. In each instance the damages sought were the maximum coverage required by § 379.203.1 Her theory of the case was that uninsured motorist coverage was engrafted onto the automobile liability insurance policy “by operation of law.” Defendant-appellant’s Answer was a general denial — although it did admit certain allegations of plaintiff-respondent’s petition— but also contained an allegation by way of an affirmative defense that the policy of insurance was issued prior to the effective date of the Statute, October 13, 1967, and therefore the statutory mandate was inapplicable to the policy of insurance.2

The facts are not in dispute. A “Stipulation of Facts” was filed in the trial court by the parties as follows: Lillian Higgins and Grant Higgins were injured in an automobile collision occurring on February 24, 1968, in Washington, Missouri, with a car negligently driven by one Catherine Politte; Ms. Politte’s negligence directly caused the Higginses serious and permanent bodily injuries; judgments were obtained against Ms. Politte upon a petition for damages filed by plaintiff for bodily injury and property damages resulting from the occurrence in the sum of $47,500.00 in the Circuit Court of Washington County and have become final; at the time of the automobile collision Ms. Politte was the operator of an uninsured motor vehicle within the terms of § 379.203. Both of the Higginses were occupants of an automobile which was an insured vehicle under a policy of automobile liability insurance issued by the defendant-appellant to Grant Higgins, now deceased. Between February 12, 1959, to and including the time of the accident on February 24, 1968, Grant Higgins and Lillian Higgins carried at least one policy of automobile liability insurance with the defendant-appellant; and they carried their automobile liability insurance policy exclusively between the dates aforesaid through Lawrence Giles, an agent, servant and employee of the defendant-appellant acting within the scope and course of his authority. The deceased, Grant Higgins, on June 16, 1964, applied for the insurance policy numbered 24-1-442685-003 and coverages for Bodily Injury Liability and Property Damage Liability were issued to him. At the time these coverages were issued to Mr. Higgins, uninsured motorist insurance coverage was available for purchase from the defendant-appellant but was not offered to him by the defendant-appellant. At no time, before or after June 16, 1964, was uninsured motorist coverage offered to him by the defendant-appellant nor did he reject same in writing. The policy of insurance was “renewed” by Mr. Higgins on May 27, 1965, May 27, 1966, May 27, 1967 and April 25, 1968, when premiums for the policy were due. The policy of insurance was cancelled on August 14, 1970. The policy of insurance was a continuing one, which would continue indefinitely unless a change was requested by the defendant-appellant or by Mr. Higgins. The policy provided that the premiums could be paid on a quarterly, semi-annual or annual basis at the discretion of the policyholder. From the initial issuance of the policy until April 25, 1968, premiums were paid on an annual basis; but after April 25, 1968, they were paid on a semi-annual basis. Section 379.203 became effective on October 13, 1967, and prior to that date there was no Missouri law obligating an insurance company to include uninsured motorist coverage in policies of automobile liability insurance delivered or issued for delivery in Missouri. The policy of automobile liability insurance issued to Mr. Higgins was last “renewed” on May 27, 1967, and continued in effect from the date of renewal to May [813]*81327, 1968. This policy of insurance was in effect on February 24, 1968.

The trial court filed Findings of Fact and Conclusions of Law. In its Findings of Fact it found that the defendant-appellant had sufficient notice of the effective date of the statute, October 13,1967, to notify each of its insureds of their right to the required Uninsured Motorist coverage as of that date, or, in the alternative, of their right to reject uninsured motorist coverage in writing, but that it failed to so notify either of the Higginses and at no time obtained their rejection in writing of such coverage as required by the statute. In its Conclusions of Law the trial court found that § 379.203, effective October 13, 1967, was mandatory in its requirement that all policies of automobile insurance written or issued in the State of Missouri and in force as of the effective date of said statute contain Uninsured Motorist coverage in the minimum limits unless such coverage had been rejected in writing by the named insured. Since neither of the Higginses rejected such coverage in writing at any time prior to February 24, 1968, they were afforded uninsured motorist coverage by operation of law on that date and were covered by said uninsured motorist coverage when the accident occurred, and therefore Mrs. Higgins was entitled to judgment against the defendant-appellant in the sum of $10,000.00 for the death of her husband and $10,000.00 for her damages, a total of $20,000.00.

On August 1, 1975, after the aforesaid order of July 25, 1975, entering judgment for plaintiff-respondent was entered, the defendant-appellant filed a “Motion of Defendant For Order Making New Findings of Fact and to Direct Entry of A New Judgment” which was called up, heard, and overruled on October 10, 1975. Notice of appeal was filed from the judgment on October 17, 1975.

On appeal the appellant contends that the trial court erred in finding and concluding that the Uninsured Motorist Law, § 379.203, applied to require this policy of automobile liability insurance, issued before the effective date of said law, to provide uninsured motorist coverage because this finding and conclusion is contrary to the expressed intent of the Missouri legislature. The thrust of appellant’s argument is that for the trial court to arrive at this conclusion the statute must be applied retroactively, and for this to be so, there must be a clear expression of a legislative intent to that effect, otherwise the statute may be applied prospectively only. The respondent retorts that the trial court, in fact, has given the statute prospective operation only, because appellant’s duty to afford its insureds the uninsured motorist coverage mandated by the statute began as of the effective date of the statute and continued thereafter.

The statute provides that “No automobile' liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle

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Cite This Page — Counsel Stack

Bluebook (online)
550 S.W.2d 811, 1977 Mo. App. LEXIS 2082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgins-v-mfa-mutual-insurance-co-moctapp-1977.