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Missouri Employers Mutual Insurance Co. v. Nichols11/30/2004
Opinion Vote: AFFIRMED.
Ulrich, P.J., and Lowenstein, J., concur.
Opinion:
Ronnie Nowlin (decedent), an employee of Lonnie Nichols Trucking and Excavation, Inc. (Nichols Trucking), died in a work-related accident. His daughter, Jade Nowlin, the appellant, brought a wrongful death action, pursuant to section 537.080, against a co-worker, Lonnie Nichols (Nichols), the sole shareholder of Nichols Trucking, alleging that his negligence caused the decedent's death. Nichols made a demand upon Missouri Employers Mutual Insurance Company (MEMIC) to defend and indemnify him in the wrongful death action, pursuant to the "WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY" it had issued to Nichols Trucking (the Policy). Part One of the Policy provides "Workers Compensation Insurance" (WCI), while Part Two provides "Employers Liability Insurance" (ELI). Nichols contended that MEMIC had a duty to defend and indemnify him pursuant to the ELI portion of the Policy. MEMIC denied Nichols' request to defend and indemnify him and filed a petition for declaratory judgment against Nichols, Nichols Trucking, and the appellant, seeking a declaration of the trial court that it did not have a duty under the Policy to defend or indemnify Nichols in the wrongful death action. Summary judgment was granted to MEMIC on its petition for declaratory judgment, based on the trial court's determination, on several grounds, that Nichols' alleged acts of negligence in the underlying wrongful death action were not covered under the ELI of the Policy.
The appellant raises three points on appeal.
In Point I, she claims that the trial court erred in entering summary judgment for MEMIC in its declaratory judgment action, on the ground that the underlying wrongful death action against Nichols was barred under the exclusivity provision of the Workers' Compensation Law, because it was not barred in that she pled in her petition affirmative acts of negligence by Nichols, which were outside the scope of an employer's responsibility to provide a safe workplace, which would not only permit a negligence action to be maintained against Nichols, individually, but against his employer, Nichols Trucking, under the doctrine of respondeat superior.
In Point II, the appellant claims that the trial court erred in entering summary judgment for MEMIC in its declaratory judgment action, based on the ground that Nichols' alleged negligent acts in the underlying wrongful death action were not covered under the ELI of the Policy due to his not being a named insured, because coverage for Nichols's acts was expressly provided for in Section B of Part Two, setting forth the ELI of the Policy.
In Point III, she claims that the trial court erred in entering summary judgment for MEMIC, in its declaratory judgment action, on the ground that Nichols' alleged negligent acts in the underlying wrongful death action were not covered under the Policy, due to his not being a named insured, because the Policy is ambiguous as to its coverage under the ELI of the Policy and, therefore, should be interpreted against the drafter, MEMIC, in favor of coverage.
Affirmed.
Facts
On November 20, 2001, Nichols and the decedent, while working for Nichols Trucking, were attempting to extricate a company bulldozer, which had become stuck in the mud at a job site, using a high-lift loader. In the process, Nowlin was crushed to death between the bulldozer and the loader. As a result, MEMIC paid workers' compensation death benefits to the decedent's estate in accordance with the WCI of the Policy.
On April 16, 2002, the appellant, by her next frien
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