McMurtry v. Aetna Casualty & Surety Co.

845 S.W.2d 700, 1993 Mo. App. LEXIS 90, 1993 WL 11626
CourtMissouri Court of Appeals
DecidedJanuary 26, 1993
DocketNo. 61526
StatusPublished
Cited by1 cases

This text of 845 S.W.2d 700 (McMurtry v. Aetna Casualty & Surety 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
McMurtry v. Aetna Casualty & Surety Co., 845 S.W.2d 700, 1993 Mo. App. LEXIS 90, 1993 WL 11626 (Mo. Ct. App. 1993).

Opinion

PUDLOWSKI, Judge.

Plaintiff-appellant, Ellis McMurtry, filed a petition to recover for personal injuries sustained when a motor vehicle driven by an uninsured intoxicated driver struck his bicycle on September 11, 1989. Appellant seeks to recover proceeds from the uninsured motorist insurance coverage provided by Aetna Casualty and Surety Company (Aetna) to his employer, the Mercantile Bancorporation (Mercantile). On July 12, 1991, the Circuit Court of the City of St. Louis granted summary judgment in Aet-na’s favor, and this appeal followed. We affirm.

The facts of the case are not in dispute. At the time of the accident, appellant was employed as a collections officer for Mercantile. As part of his compensation, Mercantile supplied appellant with an automobile for his business and personal use. Mercantile also insured appellant’s automobile, along with 166 other automobiles, with Aetna. On the declarations in the Aetna insurance policy, Mercantile Bancorporation is listed as the named insured along with various divisions of the corporation [701]*701and branch banks. McMurtry is not listed as a named insured on the policy.

The dispositive issue on appeal is whether appellant can be compensated from Aet-na for injuries sustained when he was struck by an uninsured motorist while on his bicycle rather than riding in the insured car. The portion of the insurance policy on the company car driven by appellant covering uninsured motorist insurance coverage provides in part:

UNINSURED MOTORIST INSURANCE COVERAGE
A. COVERAGE
1. We will pay all sums the “insured” is legally entitled to recover as damages from the owner or driver of an “uninsured motor vehicle.” The damages must result from “bodily injuey” sustained by the “insured” caused by an “accident.” The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the “uninsured motor vehicle.”
2. If this insurance provides a limit in excess of the amounts required by the applicable law where a covered “auto” is principally garaged, we will pay only after all liability bonds or policies have been exhausted by judgments or payments.
3. Any judgment for damages arising out of a “suit” brought without our written consent is not binding on us.
B. WHO IS AN INSURED
1. You.
2. If you are an individual, any “family member.”
3. Anyone else “occupying” a covered “auto” or temporary substitute for a covered “auto.” ...
C. EXCLUSIONS

This insurance does not apply to any of the following:

1. Any claim settled without our consent.
2. The direct or indirect benefit of any insurer or self-insurer under any workers compensation, disability benefits or similar law.
3. “Bodily injury” sustained by you or any “family member” while “occupying” or struck by any vehicle owned by you or any “family member” that is not a covered “auto.” ...

The policy is clear insofar as it attempts to place an occupancy restriction on drivers who are not the named insured. While occupancy restrictions for uninsured motorist insurance policies are not valid against named insureds and their relatives residing in the same household, such restrictions are valid against other permissive users. See Hines v. Government Employee Ins. Co., 656 S.W.2d 262, 265 (Mo. banc 1983); Adams v. Julius, 719 S.W.2d 94, 101-02 (Mo.App.1986). Appellant does not dispute that under the policy he is not a named insured but rather a permissive user. As a permissive user, appellant claims that the public policy behind the Missouri uninsured motorist statute mandates insurance coverage for appellant’s injuries even though the insurance policy-on its face-denies coverage. Appellant argues on appeal that because of his complete “dominion and control” over the automobile, his interest in the automobile amounts to an “ownership” interest even though Mercantile purchased and insured the automobile.

Missouri’s uninsured motorist insurance act reads in part:

1. No automobile liability insurance covering liability arising out of ownership, maintenance, or use of any motor vehicle shall be delivered or issued ... unless coverage is provided ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom ... It also exists whether physical contact was made between the uninsured motor vehicle and the insured or the insured’s motor vehicle.

§ 379.203.1, RSMo 1986. Section 379.203.1 mandates coverage for the protection of insureds who are legally entitled to recover damages from uninsured motorists. Rister v. State Farm Mut. Auto. Ins. Co., 668 S.W.2d 132, 134 (Mo.App.1984). The pur[702]*702pose of mandatory uninsured motorist insurance is to provide protection to automobile insurance purchasers equivalent to the minimum coverage required by the financial responsibility laws regardless of whether the offending vehicle was driven by an insured or uninsured operator. Famuliner v. Farmers Ins. Co., Inc., 619 S.W.2d 894, 896-97 (Mo.App.1981). The uninsured motorist statute becomes a part of each liability automobile insurance policy issued in the state. See Null v. State Farm Mut. Auto Ins. Co., 614 S.W.2d 280, 282 (Mo.App.1981).

Were we to classify appellant as the “owner” of the vehicle, appellant argues the occupancy restriction would be void under the uninsured motorist statute because as an “owner,” appellant would be treated as though he were a named insured and his uninsured motorist coverage would cover the accident sustained on his bicycle. In support of his claim, appellant cites three cases dealing with whether a first permittee can impliedly give the named insured’s permission to use an automobile to a second permittee and, thereby, access non-owned vehicle coverage. First among these is United States Fidelity & G. Co. v. Safeco Ins. Co. of Am., 522 S.W.2d 809 (Mo. banc 1975). The issue in Safeco was whether the teenage daughter of the named insured could effectively give the “implied permission” of her parents to the girl’s friend to use the automobile and, thereby, come under the omnibus clause of an automobile liability policy which required the permission of a named insured. The court considered the amount of time the daughter spent driving the car and the fact that the daughter could lend the car to friends of her choice in determining she could impliedly give the mother’s permission.

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

Related

Bright v. State Farm Insurance Company
767 So. 2d 1111 (Supreme Court of Alabama, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
845 S.W.2d 700, 1993 Mo. App. LEXIS 90, 1993 WL 11626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmurtry-v-aetna-casualty-surety-co-moctapp-1993.