Richard Martinez, Respondent, v. Equity Mutual Insurance Company, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Richard Martinez, Respondent, v. Equity Mutual Insurance Company, Appellant. Case Number: WD59675 Handdown Date: 11/27/2001 Appeal From: Circuit Court of Jackson County, Hon. Lee E. Wells Counsel for Appellant: Patrick Mark Reidy Counsel for Respondent: George Allen Barton and John B. Gage, II Opinion Summary: Richard Martinez sustained $170,000 in injuries in an automobile collision. He was a passenger in a car driven by Equity Mutual's insured, Vicky Martin. Martin's car collided with one driven by Michelle Autrey. Martinez sued Martin and Autrey. Autrey and Martinez eventually settled for the full amount of Autrey's insurance coverage, $100,000. Equity Mutual is now appealing the court's judgment for Martinez in Martinez' claim against Equity Mutual for breach of contract. Equity Mutual contends it had no obligation under the provisions of its policy, issued to a third party, to pay for the injuries sustained by Martinez. REVERSED. Division holds: When reviewing an insurance policy, we must give the terms their plain meaning as the average layperson would understand. The court will not create an ambiguity to distort the intent of an unambiguous policy. In this case, Martinez is not covered by the insurance policy under the policy provisions for liability coverage as a whole, nor under the uninsured motorist clause of the policy. Autrey's vehicle was insured, therefore Martinez cannot make a claim under the uninsured motorist clause of the insurance policy as the term "uninsured" is unambiguous. The fact that an "other insurance" clause exists creates no ambiguity as it was a provision found in the uninsured motorist section of the policy, so the "other insurance" it is referring to is other uninsured motorist insurance. Thus, there are no conflicting provisions creating ambiguity in this case, nor are we inclined to "carve a nitch" to avoid a harsh result. The policy should be enforced as written.

Citation: Opinion Author: Paul M. Spinden, Chief Judge Opinion Vote: REVERSED. Lowenstein and Smith, JJ., concur. Opinion: Equity Mutual Insurance Company appeals the circuit court's judgment for Richard Martinez in Martinez' claim against Equity Mutual for breach of contract. Equity Mutual contends that it had no obligation under the provisions of its policy, issued to a third party, to pay for the injuries sustained by Martinez. We agree and reverse the circuit court's judgment. Martinez sustained $170,000 in injuries in a 1991 automobile collision. He was a passenger in a car driven by Equity Mutual's insured, Vicky Martin. Martin's car collided with a car driven by Michelle Autrey. Martinez sued Martin and Autrey. Autrey settled with Martinez for the full amount of her insurance coverage, $100,000. The circuit court dismissed Martinez' claim against Martin without prejudice. Martinez sued Equity Mutual, Martin's insurer, for compensation for the unsatisfied portion of his injuries. Martinez asserted that the uninsured motorist provisions of Equity Mutual's policy created an obligation to pay him for the unsatisfied portion of his injuries. The policy states: UNINSURED MOTORIST COVERAGE We will pay damages which a covered person(FN1) is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:

1. Sustained by a covered person; and

1. 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. . . . . "Covered person" as used in this Part means:

1. You or any family member.
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this

coverage applies sustained by a person described in 1. or 2. above. "Uninsured motor vehicle" means a land motor vehicle or trailer of any type:

1. To which no bodily injury liability bond or policy applies at the time of the accident.
2. To which a bodily injury liability bond or policy applies at the time of the accident. In this case its limit

for bodily injury liability must be less than the minimum limit for bodily injury liability specified by the financial responsibility law of the state in which your covered auto is principally garaged. . . . .

1. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or

insuring company: a. denies coverage; or b. is or becomes insolvent. . . . . OTHER INSURANCE If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance. Rules governing the circuit court's interpretation of these provisions are "well settled." Shahan v. Shahan, 988 S.W.2d 529, 535 (Mo. banc 1999). Those rules include giving the language of an insurance policy its plain meaning, which is the meaning that "the average layperson would understand." Id. A cardinal rule is that courts must not create ambiguities to distort the intent of an unambiguous policy. Id. In reviewing the circuit court's interpretation of the insurance policy in this case, we must affirm the court's judgment unless it is not supported by substantial evidence or is against the weight of the evidence or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32. (Mo. 1976). We conclude that the circuit court has erred on all three accounts. Equity Mutual's insurance policy simply does not cover Martinez. He certainly was not a "covered person" under the policy's provisions for liability coverage. Those provisions defined a "covered person:" the named insured--who was Vicky Martin--a member of her family, or anyone using the insured vehicle. Martinez convinced the circuit court that Equity Mutual was obligated to pay for his injuries under its policy's uninsured motorists provisions. Martinez certainly was a "covered person" as defined in those provisions as a "person occupying [the insured] auto." The problem, however, is that these provisions did not apply to the injuries suffered by Martinez in the collision of Martin's and Autrey's vehicles. Martin's policy said, "We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury[.]"(FN2) Autrey had purchased liability insurance for

her car, and Martinez collected the full amount of coverage from it. Martinez' injuries were not fully covered, but it was not because of lack of insurance. Apparently it resulted from a lack of sufficient insurance, but Martinez seeks to remedy his situation by collecting under provisions for uninsured motorists, not underinsured motorists. The purpose of uninsured motorist coverage "'is to give the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy.'" Webb v. State Farm Mutual Automobile Insurance Company, 479 S.W.2d 148, 151 (Mo. App. 1972) (quoting Stephens v. Allied Mutual Insurance Company, 156 N.W.2d 133, 136 (Neb. 1968)). "Uninsured" is not ambiguous. Any person of average intelligence should know that the plain meaning of "uninusred" is to be lacking any insurance. Brake v. MFA Mutual Insurance Company, 525 S.W.2d 109, 112 (Mo. App. 1975), cert. denied, 423 U.S. 894 (1975). Not to be deterred, Martinez points to the "other insurance" provision in the "uninsured motorists" section of the policy. This provision said, "If there is other applicable similar insurance we will pay only our share of the loss. . . . However, any insurance we provide with respect to a vehicle [Martin does] not own shall be excess over any other collectible insurance." On the basis of these sentences, Martinez argues: It is undisputed that the uninsured motorist coverage which Equity Mutual provided was insurance with respect to a vehicle [that Martin] did not own. The uninsured motorist coverage was therefore designated as excess insurance over other collectible insurance. Martinez was therefore entitled to recover against this excess insurance after he settled his claim against Autrey for the full amount of her policy limits. Martinez is simply wrong. This provision was not an independent clause in the policy. It was a subsection of the uninsured motorist section. Hence, the other insurance to which it referred must be understood in that context, meaning that it must be understood to be referring to uninsured motorist insurance. "Other applicable similar insurance" referred to other uninsured motorist insurance. The provision does say, as Martinez notes, that it applied to "any insurance we provide with respect to a vehicle that [Martin does] not own[.]" Equity Mutual, however, did not provide any insurance for Autrey's vehicle because Autrey's vehicle was insured and Equity Mutual's uninsured motorist coverage, therefore, had no application to Autrey's vehicle. The provision had no application to Martinez' claim for the same reason that the entire uninsured motorist section had no application to Martinez' claim: He was not making a claim for injuries resulting from an uninsured motorist. The provision's reference to "excess insurance" must, therefore, be understood in the same context. Martinez's reliance on Zemelman v. Equity Mutual Insurance Company, 935 S.W.2d 673 (Mo. App. 1996), is

misplaced. The Zemelman court found that a provision similar to the "other insurance" provision in Mutual Equity's policy was ambiguous and should, therefore, be deemed excess insurance. First, Zemelman involved an underinsured motorist clause that conflicted with other language in the underinsured motorist section. Second, the Zemelman court acknowledged that it was "carv[ing] a nitch" to avoid a "harsh effect." 935 S.W.2d at 677. We do not have conflicting provisions in this case. The provisions are clear and unambiguous. Martinez should have had no difficulty in understanding them. Nor do we feel at liberty, in light of Shahan, supra, to carve a nitch--even if we discerned a harsh result, which we do not. The Supreme Court has instructed that our obligation is to give operation to the intent of the parties to this contract. When insurance policies are unambiguous, the rules of construction are inapplicable, and in the absence of a public policy to the contrary, the policy should be enforced as written. American Family Mutual Insurance Company v. Ward, 789 S.W.2d 791, 795 (Mo. banc 1990). We, therefore, reverse the circuit court's judgment. Footnotes: FN1. The emphasis was in the original and indicated that the policy defined the term. FN2. The emphasis was in the original. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.