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Miller v. O'Brien8/2/2005
in favor of coverage. State Auto challenges these findings, asserting that the policy is not ambiguous and that O'Brien was clearly not an insured for purposes of the "Hired Auto and Non-Owned Auto Liability" endorsement.
"The general rules for interpretation of contracts apply to insurance policies." Heringer v. American Family Mut. Ins. Co., 140 S.W.3d 100, 102 (Mo. App. W.D. 2004). "The cardinal rule for the courts in interpreting a contract, including an insurance policy, is to effectuate the parties' intent at the time of contracting." Bailey v. Federated Mut. Ins. Co., 152 S.W.3d 355, 357 (Mo. App. W.D. 2004).
"The language used in an insurance policy is to be given its plain meaning." Farm Bureau Town & Country Ins. Co. v. Barker, 150 S.W.3d 103, 105 (Mo. App. W.D. 2004). "The plain meaning of the words and phrases used in an insurance policy is not determined in isolation, but with reference to the context of the policy as a whole." Id. at 105-06. " n the absence of the existence of an ambiguity, appellate courts must enforce the policy as written, giving the language of the policy its ordinary meaning." Trans World Airlines, Inc. v. Associated Aviation Underwriters, 58 S.W.3d 609, 622 (Mo. App. E.D. 2001); See also Heringer, 140 S.W.3d at 102 ("If an insurance policy is unambiguous, it is enforced as written absent a statute or public policy requiring coverage."). "We do not apply rules of construction unless a contract's language is ambiguous." Bailey, 152 S.W.3d at 357.
"Whether an insurance contract is ambiguous is a question of law." Barker, 150 S.W.3d at 106. "The provisions of an insurance policy are ambiguous when, due to duplicity, indistinctness, or uncertainty in the meaning of the words used, the policy is reasonably open to different constructions." Id. "To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy." Heringer, 140 S.W.3d at 103. " courts are not authorized to pervert language or exercise inventive powers for the purpose of creating an ambiguity when none exists." Barker, 150 S.W.3d at 106 (internal quotations omitted).
As noted supra, the court found that the separate definitions of an "insured" found in the liability plus endorsement and the "Hired Auto and Non-Owned Auto Liability" endorsement created an ambiguity in the policy. The court then deemed the definition found in the liability plus endorsement to have replaced that contained in the "Hired Auto and Non-Owned Auto Liability" endorsement based upon the principle that ambiguities should be construed in favor of coverage and on the fact that the copyright date on the liability plus endorsement was later in time than the "Hired Auto and Non-Owned Auto Liability" endorsement. The trial court found that O'Brien was an "insured" as defined in the liability plus endorsement because he was an employee performing duties related to the clinic at the time of the accident and that the truck he was driving was a "non-owned auto" as defined in the "Hired Auto and Non-Owned Auto Liability" endorsement. The court also found that the auto exclusion in the base policy had been deleted by the "Hired Auto and Non-Owned Auto Liability" endorsement.
The trial court's interpretation of the policy, however, is not consistent with the plain language of the policy. The Businessowners Liability Coverage Form defines "who is an insured" under the policy. The liability plus endorsement specifically replaces the language in "Section C. Who Is an Insured, paragraph 2.a." of the Businessowners Liability Coverage Form, making some subtle changes to the defi
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