Progressive Max Insurance Co. v. Hopkins

531 S.W.3d 649
CourtMissouri Court of Appeals
DecidedNovember 7, 2017
DocketNo. SD 34927
StatusPublished
Cited by6 cases

This text of 531 S.W.3d 649 (Progressive Max Insurance Co. v. Hopkins) 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
Progressive Max Insurance Co. v. Hopkins, 531 S.W.3d 649 (Mo. Ct. App. 2017).

Opinion

DON E. BURRELL, J.

Matthew Hopkins (“Insured”) appeals a- declaratory judgment ruling that his motorcycle insurer, Progressive Max Insurance Company (“Progressive”), was entitled to set-offs from its underinsured motorist (“UIM”) liability limit under the terms of its insurance policy (“the Policy”). The judgment resulted from cross-motions for summary judgment, and- the following material facts are not in dispute.1

While riding his motorcycle, Insured was struck by a vehicle operated by another motorist ■ (“Tortfeasor”). Insured was seriously injured and sustained damages exceeding $127,000. -Tortfeasor had liability insurance provided by Farmers Insurance (“Farmers”),' and it paid Insured $25,000— the per-person bodily injury limit under its policy (“the bodily injury set-off’). Shortly after the collision occurred, Progressive paid Insured $2,500—the medical payments coverage limit provided under the Policy (“the med-pay set-off’).2

After subtracting the set-offs from the Policy’s $100,000 UIM coverage limit, Progressive ultimately paid Insured $72,500 in UIM benefits. Believing himself entitled to receive the full UIM coverage benefit as stated on the declarations page of the Policy without any set-offs, Insured timely appealed the judgment. Because the Policy unambiguously provided for the set-offs, we affirm.

Applicable Principles of Review

Our review of a summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the light most favorable to the non-moving party, drawing all inferences in that party’s favor. Id. We will uphold the grant of summary judgment only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. at 380.

The interpretation of an insurance policy is also a question of law that we review de novo. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). In so doing, we apply the meaning “ ‘which would be attached by an ordinary person of average understanding if purchasing insurance,’ ” (quoting McCormack Baron Mgmt. Services, Inc. v. Am. Guarantee & Liability Ins. Co., 989 S.W.2d 168, 171 (Mo. banc 1999)), and “[we] [resolve] ambiguities in favor of the insured.” Id. An ambiguity exists if the language “ ‘is reasonably open to different constructions.’ ” Id. (quoting Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 814 (Mo. banc 1997)). “Courts are not to interpret the provisions of an insurance policy in isolation but rather are to examine the policy as a whole,” Wasson v. Shelter Mut. Ins. Co., 358 S.W.3d 113, 121 (Mo. App. W.D. 2011). “‘If the language in an insurance contract is clear and unambiguous, this Court-must construe the contract as writtent.]’ ” Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718, 720 (Mo. banc 2008) (quoting Bellamy v. Pacific Mut. Life Ins. Co., 651 S.W.2d 490, 495 (Mo. banc 1983)).

The Policy

Under the heading “Outline of coverage” the Policy’s declarations page states: “All limits listed below are subject to all terms, conditions, exclusions and applicable reductions described in the [P]oli-cy.” The UIM coverage limit is listed therein as “$100,000 each person/$300,000 each accident[.]”3

PART 111(B)—UNDERINSURED MOTORIST COVERAGE of the Policy provides, in pertinent part:

LIMITS OF LIABILITY
The limit of liability shown on the declarations page for Underinsured Motorist Coverage 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;
2. paid or payable under Part II—Motorcycle Medical Payments Coverage^]

Analysis

Insured’s sole point maintains: “The [trial] court clearly erred by failing to find that [the Policy] was ambiguous because &e Policy gave the med-pay to [Insured] in one portion of the Policy and took the med-pay away when the request was made for the UIM portion of the Policy.” Although it is not contained in his point, the argument and conclusion portions of Insured’s brief take similar issue with the bodily-injury set-off.

We begin by noting that Insured’s point is deficient in several respects. First, the bodily injury set-off issue is not preserved for appellate review because it is not included in the point. See State ex rel. Wilson v. Brown, 897 S.W.2d 171, 173 (Mo. App. S.D. 1995) (“Our review is restricted to the issue raised in the point relied on”). The point also fails to comply with Rule 84.04(d)(1)(B)-(G) in that it omits any explanation of why the alleged error (the trial court’s “fail[ure] to find that [the Policy] was ambiguous”) constitutes reversible error in the context of the case. As previously noted, summary judgment is appropriate only if there is no issue as to any material fact and the movant is entitled to judgment as a matter of law. Rule 74.04(c). Insured’s brief fails to make any reference to that standard. Insured’s claim is also unpreserved because his brief fails to make any citations to the statement of uncontroverted material facts. See Rule 84.04(e); Duncan v. Duncan, 320 S.W.3d 725, 727 (Mo. App. E.D. 2010).

Progressive has not requested that the appeal be dismissed due to these briefing defects, and its own brief substantively addresses the propriety of both the med-pay set-off and the bodily-injury set-off. Our discretionary ex gratia review of Insured’s complaint reveals that it has no merit. Although Insured correctly references the general legal proposition that an ambiguity exists if an insurance policy promises coverage at one point and then takes it away at another, see, e.g., Nationwide Ins. Co. of Am. v. Thomas, 487 S.W.3d 9, 12 (Mo. App. E.D. 2016), he fails to cite the UIM coverage language and applicable set-off language at issue here, let alone explain why such language might be ambiguous.

Progressive claims, and we agree, that the Policy’s set-off provisions are unambiguous and are akin to those upheld in Owners Ins. Co. v. Craig, 514 S.W.3d 614 (Mo. banc 2017).

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531 S.W.3d 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/progressive-max-insurance-co-v-hopkins-moctapp-2017.