Merlyn Vandervort Investments, LLC v. Essex Insurance Co.

309 S.W.3d 333, 2010 Mo. App. LEXIS 143
CourtMissouri Court of Appeals
DecidedFebruary 11, 2010
DocketSD 29858
StatusPublished
Cited by5 cases

This text of 309 S.W.3d 333 (Merlyn Vandervort Investments, LLC v. Essex 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
Merlyn Vandervort Investments, LLC v. Essex Insurance Co., 309 S.W.3d 333, 2010 Mo. App. LEXIS 143 (Mo. Ct. App. 2010).

Opinions

MARY R. RUSSELL, Special Judge.

The issue in this case is whether the trial comb correctly granted summary judgment in favor of an insurance company in interpreting a commercial insurance policy. More specifically, the issue is whether an endorsement provided additional coverage for the property loss suffered by Merlyn Vandervort Investments, LLC and 7 Mile Investments, Inc., d/b/a Jeremiah’s Night Club (collectively “Insured”) in a fire. This Court finds that Insured is entitled to additional coverage for fire damage as provided in the endorsement. The judgment is reversed and remanded.

Background

Insured owned and operated Jeremiah’s Night Club, a bar, restaurant, and entertainment center located in Lake Ozark. A fire destroyed the business, including the building, the business personal property, and the equipment on the premises. The fire investigator stated in his report that he could not identify “an exact cause or ignition source for this fire ... [although the electrical wiring is suspect and cannot be eliminated at this time.” He also noted in his report that there was wiring in the building that “displayed very heavy arching [sic].”

Prior to the fire, Insured had purchased a commercial insurance policy and endorsement from Essex Insurance Company. The policy provided “building” coverage with a limit of $1.2 million, “business personal property” coverage with a limit of $400,000, and “business income” coverage with a limit of $120,000. The endorsement, entitled “Mechanical, Electrical or Pressure Systems Breakdown,” was purchased as optional coverage. The policy declaration described the endorsement as “Equipment Breakdown Coverage with a limit of $1,600,000.”

Following the fire, Essex paid Insured $1.2 million under the building coverage, $400,000 under the business personal property coverage, and $120,000 under the business income loss coverage. Insured sought further payment from Essex under the endorsement for the fire damage, asserting that it provided additional coverage with an additional limit of $1.6 million. Essex denied that portion of the claim, stating that fire damage is covered only in the policy and that the endorsement does not provide any additional coverage for the fire damage suffered. Instead, Essex argued that the endorsement “put back” coverage for certain policy exclusions, including mechanical, electrical, or pressure systems breakdown.

Insured brought a suit seeking damages against Essex for breach of contract and vexatious refusal to pay. Essex filed a motion for summary judgment as to all claims alleged against it, arguing that the endorsement did not provide additional coverage for damage caused by fire loss. Insured filed a cross-motion for partial summary judgment as to the breach of contract claim, arguing the endorsement provided additional coverage and policy limits for damage caused by all “specified causes of loss,” including fire. The trial court sustained the Essex’s motion for summary judgment and denied Insured’s cross-motion for partial summary judgment. Insured appeals.1

[336]*336 Standard of Review

Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 876 (Mo. banc 1993). Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id. “When the underlying facts are not in question, disputes arising from the interpretation and application of insurance contracts are matters of law for the court.” See Grable v. Atl. Casualty Ins. Co., 280 S.W.3d 104, 106 (Mo.App.2009) (internal quotation marks omitted).

When interpreting the terms of an insurance policy, this Court applies the meaning that would be understood by an ordinary person of average understanding purchasing the insurance. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). If the policy is ambiguous, it will be construed against the insurer. Id. A policy is ambiguous if “there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy.” Id. If the policy is unambiguous, the policy will be enforced according to its terms. Id.

Interpretation of the Policy

The issue in this case is whether the endorsement, regardless of its limits, provides additional coverage beyond that provided by the policy in its unendorsed form for loss suffered by Insured in a fire.2 Insured claims that the policy was ambiguous, requiring this Court to construe it against Essex. Alternatively, Insured contends that the endorsement unambiguously provided additional coverage for all causes of loss, including fire. Both arguments require this Court to interpret the insurance contract, which includes the form policy, declarations, endorsements, and definitions, and determine, as a matter of law, what coverage the policy provides. See Grable, 280 S.W.3d at 107-108.

The unendorsed policy was comprised of several forms. First, the Building and Personal Property Coverage form provided, in relevant part:

[Essex] will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.
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3. Covered Causes Of Loss
See applicable Causes of Loss Form as shown in the Declarations.

Next, the Causes of Loss — Special Form CP 1030 (“Loss form”) defined “covered causes of loss” as:

When Special is shown in the Declarations, Covered Causes of Loss means RISKS OF DIRECT PHYSICAL LOSS unless the loss is:
1. Excluded in Section B., Exclusions; or
2. Limited in Section C, Limitations; that follow.

The relevant exclusion listed in Section B. stated:

2. [Essex] will not pay for loss or damage caused by or resulting from any of the following:
a. Artificially generated electrical current, including electrical arcing, that disturbs electrical devices, appli-[337]*337anees or wires. But if artificially generated electrical current results in fire, we will pay for the loss or damage caused by that fire.

Further, the Loss form defined “specified causes of loss”3 in Section F. as:

Fire; lightning; explosion, windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice or sleet; water damage.

(emphasis added).

Both parties agree that the unendorsed policy provided coverage for damage due to the peril of fire. In fact, Essex paid Insured $1.6 million pursuant to the un-endorsed policy for property damage.

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Bluebook (online)
309 S.W.3d 333, 2010 Mo. App. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merlyn-vandervort-investments-llc-v-essex-insurance-co-moctapp-2010.