Lavender v. State Automobile Mutual Insurance Co.

933 S.W.2d 888, 1996 Mo. App. LEXIS 1764, 1996 WL 612813
CourtMissouri Court of Appeals
DecidedOctober 22, 1996
DocketNo. 20679
StatusPublished
Cited by3 cases

This text of 933 S.W.2d 888 (Lavender v. State Automobile 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
Lavender v. State Automobile Mutual Insurance Co., 933 S.W.2d 888, 1996 Mo. App. LEXIS 1764, 1996 WL 612813 (Mo. Ct. App. 1996).

Opinion

MONTGOMERY, Chief Judge.

State Automobile Mutual Insurance Company (State) appeals from a $150,000 judgment in favor of Plaintiffs based upon the uninsured motorist coverage in State’s automobile insurance policy issued to William Lavender, Sr., and Ruth Lavender (Plain[889]*889tiffs).1 The pertinent policy language under State’s uninsured motorist coverage reads as follows:

We will pay damages which an “insured” is legally entitled to recover from the owner or operator of an “uninsured motor vehicle” because of “bodily injury:”
1. Sustained by an “insured;” and
2. 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 motor vehicle.”

In April 1993 Plaintiffs’ adult emancipated son, William Lavender, Jr., died in an automobile collision while a passenger in a motor vehicle negligently operated by an uninsured motorist. Afterwards, Plaintiffs brought this action alleging that State was liable under its uninsured motorist coverage for damages Plaintiffs sustained from the death of their son.

Based on stipulated facts, the trial court found in favor of Plaintiffs. Relevant portions of the stipulation before the court follow:

12. That at the time of his death on April 28,1993, decedent William Lavender, Jr. was not a resident of the household of William Lavender, Sr. and Ruth Lavender.
13. That on April 28, 1993 plaintiffs William Lavender, Sr. and Ruth Lavender were named insureds on Policy No: MAP2842959 issued by State Automobile Insurance Company....
16. That decedent William Lavender, Jr., at the time of the accident referred to in plaintiffs’ Petition, owned, jointly with his spouse, Catherine Lavender, a 1986 Grand Am automobile ... and also individually owned in his own name a 1978 Ford Bronco....
17. That William Lavender, Jr. was not occupying a vehicle owned by William Lavender, Sr. and Ruth Lavender, nor was he occupying a vehicle insured by defendant
State Automobile Insurance Company at the time of the accident referred to in plaintiffs’ Petition.
18. That decedent William Lavender, Jr. was not a “resident of the household” of William Lavender, Sr. and Ruth Lavender at the time of the accident referred to in plaintiffs’ Petition as that term is defined in the policy issued by defendant State Automobile Mutual Insurance Company.
19. That decedent William Lavender, Jr., was not an “insured” as that term is defined in III, Part C — Uninsured Motorist Coverage of the policy issued by defendant State Automobile Insurance Company to William Lavender, Sr. and Ruth Lavender.
20. That decedent William Lavender, Jr. was not a “family member” of William Lavender, Sr. and Ruth Lavender, as that term is defined in Paragraph F on page 1 of the policy issued to William Lavender, Sr. and Ruth Lavender.
21. That no plaintiff named in the pending cause of action sustained a “bodily injury” as that term is defined in the policy issued to William Lavender, Sr. and Ruth Lavender and the sole bodily injury and subsequent death arising out of the automobile accident of April 28, 1993 was sustained by William Lavender, Jr.

State’s policy defines “bodily injury” as “bodily harm, sickness or disease including death that results.”

State’s dispositive point alleges that there is no uninsured motorist coverage under its policy applicable to the death of Plaintiffs’ son in that (1) Plaintiffs, the insureds, suffered no bodily injury, and (2) decedent was not an “insured,” was not a “resident” of Plaintiffs’ household, and was not Plaintiffs’ “family member” under the various definitions in State’s policy.

Plaintiffs argue that the “insuring agreement” of State’s policy provides coverage to them for damages caused by the negligence [890]*890of an uninsured motorist regardless of whether Plaintiffs sustained bodily injury and, alternatively, that the “insuring agreement” is ambiguous as to whether the Plaintiffs must suffer “damages” or “bodily injury” in order to recover under the uninsured motorist coverage. Thus, according to Plaintiffs, this ambiguity must be construed against State to permit recovery for “damages” they sustained.

Plaintiffs further argue that coverage exists under the uninsured motorist provision of the policy as a matter of public policy. They say that limiting uninsured motorist coverage to bodily injury sustained by an insured violates § 379.203, RSMo 1994.

The Western District of this Court has recently held contrary to both of Plaintiffs’ arguments in Livingston v. Omaha Property and Casualty Ins. Co., 927 S.W.2d 444 (Mo.App.1996). The facts and the uninsured motorist coverage language in Livingston are almost identical to the circumstances in this case.

In Livingston, plaintiffs daughter was killed in an automobile collision with an uninsured motorist. Plaintiffs automobile insurance policy with defendant did not cover the car owned by daughter or the ear involved in the collision in which the daughter was a passenger.

Plaintiff, as a named insured, brought a wrongful death suit against defendant seeking compensation under her uninsured motorist coverage for damages she suffered from her daughter’s death. The trial court sustained defendant’s motion for summary judgment based on the terms of plaintiffs uninsured motorist coverage which read as follows:

A. We will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of an “uninsured motor vehicle” because of “bodily injury:”
1. Sustained by an “insured;” and
2. Caused by an accident.

Id. at 445.

Defendant successfully argued in the trial court that (1) Plaintiff had no insured motorist coverage unless an insured party sustained bodily injury, and (2) because plaintiffs daughter was not an insured under the policy, plaintiff could not recover damages as a result of her daughter’s death.

On appeal, the court held:

The language of the policy expressly requires that the “bodily injury” be sustained by an insured. This exact language has been found by the Missouri Supreme Court to be clear and unambiguous. Peters v. Farmers Ins. Co., Inc., 726 S.W.2d 749, 752 (Mo. banc 1987). Plaintiff concedes that her daughter was not an insured under the policy. The plaintiff also concedes that she received no bodily injury in the collision. Consequently, under the express language of the policy, plaintiff is not entitled to recover from her own uninsured motorist policy for the wrongful death of her daughter.

Id.

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Cite This Page — Counsel Stack

Bluebook (online)
933 S.W.2d 888, 1996 Mo. App. LEXIS 1764, 1996 WL 612813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lavender-v-state-automobile-mutual-insurance-co-moctapp-1996.