STACKING UP: UNDERSTANDING AUTOMOBILE INSURANCE COVERAGES The Missouri Bar Solo and Small Firm Conference June 14, 2013

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1 STACKING UP: UNDERSTANDING AUTOMOBILE INSURANCE COVERAGES The Missouri Bar Solo and Small Firm Conference June 14, 2013 Sidney Eckman Wheelan Tatlow, Gump, Faiella, and Wheelan, LLC

2 WHAT IS STACKING? Stacking is an insured s ability to obtain multiple insurance coverage benefits for an injury, either from more than one policy, as where the insured has two or more separate vehicles under separate policies, or from multiple coverages provided for within a single policy, as when an insured has one policy which covers more than one vehicle. Long v. Shelter Ins. Co., 351 S.W.3d 692 (Mo. App. W.D. July 26, 2011)

3 UNINSURED MOTORIST COVERAGE Generally, uninsured (UM) coverage must be stacked as a matter of law, with a few exceptions: No stacking for mere occupancy insured. Kertz v. State Farm Mut. Auto. Ins. Co., 236 S.W.3d 39 (Mo. App. 2007); or No stacking for fleet policies. Hartford Ins. Co. v. Kean, 866 S.W.2d 924, 926 (Mo. App. 1993) Karscig v. McConville and American Family 303 S.W.3d 499 (Mo. Banc 2010) Operator s policy must stack on top of owner s policy where both applied to the permissive user. Policy exclusion for injuries arising out of insured s operation of vehicle not owned by her impermissibly conflicted with statute that required coverage for liability imposed on insured for damages arising out of insured s use of any motor vehicle not owned by him or her MVFRL provided that each valid owner s or operator s policy provide minimum liability coverage and did not limit payments to single insurance policy if coverage was available under multiple policies Blumer v. Automobile Club Inter-Insurance Exchange 340 S.W. 3d 214 (Mo. App. W.D. ) Mar. 29, 2011 Owned-vehicle exclusion of UM benefits under policy was invalid Insured was entitled to stack coverage

4 UNDERINSURED MOTORIST COVERAGE Underinsured motorist (UIM) coverage is intended to provide insurance coverage for insureds who have been injured by a negligent motorist whose own automobile liability coverage is insufficient to fully pay for the injured person s actual damages. UIM coverage is floating, personal accident insurance that follows the insured individual wherever he goes rather than insurance on a particular vehicle. Long v. Shelter Ins. Co., 351 S.W.3d 692 (2011). Missouri does not require UIM coverage either by statute or by public policy. Long v. Shelter Ins. Co., 351 S.W.3d 692 (2011). The Motor Vehicle Financial Responsibility Law (MVFRL) does not mandate UIM coverage. The extent of UIM coverage is a matter of contract. Rodriguez v. Gen. Acc. Ins. Co. of Am., 806 S.W.2d 379, 383 (Mo. Banc 1991). UIM coverage need not be included or even offered in an auto policy. Jones v. Kennedy, 108 S.W.3d 203, 207 (Mo. App. 2003)

5 ANTI-STACKING CLAUSES Automobile policies contain anti-stacking clauses that attempt to prohibit the insured from collecting on multiple coverages or policies from the same insurer for a single accident---making only one policy or coverage amount collectable. Typical anti-stacking clauses state some version of the following: If more than one policy we issued to you covers a claim, this policy covers only the proportion of our ultimate liability that is limits bear to the total limits of all our policies that cover the claim. Our total liability under all our policies will not exceed the highest limit of any one policy.... If the anti-stacking clause is UNAMBIGUOUS when read together with all other clauses in the insurance contract, the courts will NOT allow stacking of multiple coverages. BUT, keep in mind that various clauses may be unambiguous on its face when read alone, but when read together with other clauses in the policy, the policy as a whole becomes ambiguous

6 WHERE THERE IS AMBIGUITY THERE IS A POTENTIAL FOR STACKING MULTIPLE COVERAGES If the policy language IS AMBIGUOUS, then courts will construe the policy in favor of the insured and may allow stacking of multiple coverages. Courts determine ambiguity in an insurance contract by construing the meaning of words as would a reasonable lay person in the position of the insured. A court must interpret policy provisions not in isolation but as a whole. Where an insurance policy promises the insured something at one point but then takes it away at another, there is an ambiguity POTENTIALLY AMBIGUOUS POLICY LANGUAGE LIMIT OF LIABLITY CLAUSE A typical Limit of Liability clause might read: The limit of liability shown in the Declarations for each person for UIM coverage is our maximum limit of liability for all damages for loss of services or death arising out of bodily injury sustained by any one person in any one accident.... The limit of liability shall be reduced by all sums paid because of bodily injury or by or on behalf of persons or organizations who may be legally responsible. OTHER INSURANCE CLAUSES If there is other applicable UIM coverage available under one or more policies or provision of coverage... Any coverage we provide with respect to a vehicle you do not own shall be excess over any other collectible underinsured motorist coverage

7 MISSOURI COURTS STRUGGLE WITH STACKING ISSUES Missouri courts have struggled with various insurance coverage issues, particularly stacking, for years. One of the first cases to address the issue was Rodriguez v. General Accident Insurance Co. of America, 808 S.W.2d 379 (Mo. Banc 1991). RODRIGUEZ v. GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA 808 S.W.2d 379 (Mo. Banc 1991) Mo Supreme Court held: Driver of vehicle which collided with insureds vehicle was not an underinsured motorist as defined in the policy UIM coverage was not excess coverage above payments from other sources; and Anti-stacking language was unambiguous and prohibited stacking of UIM coverage Both the definition of underinsured motor vehicle and the anti-stacking language was held to be unambiguous While insurance companies continue to argue that Rodriguez prevents stacking, the case has been distinguished multiple times in the past 22 years to the point where the exceptions have made the decision irrelevant for most situations. Most of the opinions that vary from Rodriguez, do so based on ambiguous or contradictory policy provisions. Rodriguez did not address an Other Insurance clause

8 MISSOURI SUPREME COURT CASES SINCE RODRIGUEZ Contrast Rodriguez with several recent Mo. Supreme Court decisions that have found ambiguities or conflicts between anti-stacking provisions and excess insurance provisions. Ultimately finding portions unenforceable and allowing the insured to stack its UIM coverage. SEECK V. GEICO 212 S.W.3d 129 (Mo. 2007) Held: Other Insurance language appears to create coverage but other provisions in the policy indicate that such coverage is not provided, therefore the ambiguity entitled insured to coverage under the excess insurance clause of her own Geico policy. Not technically a stacking case because only one policy was at issue, but relied on other cases where ambiguity allowed multiple policies to be stacked. The other insurance language of Seeck stated: When an insured is occupying a motor vehicle not owned by the insured... this insurance is excess over any other insurance available to the insured and the insurance which applies to the occupied motor vehicle is primary. Seeck relied on a long line of cases which included similar language including: Zemelman v. Equity Mutual Insurance Company, 935 S.W.2d 673 (Mo. App. W.D. 1996); Goza v. Hartford Underwriters Insurance Company, 972 S.W.2d 371 (Mo. App. E.D. 1998); Niswonger v. Farm Bureau Town & Country Insurance Company of Missouri, 992 S.W.2d 308 (Mo. App. E.D. 1999); American Family Mutual Insurance Company v. Ragsdale, 213 S.W.2d 51 (Mo. App. W.D. 2006); and Chamness v. American Family Mutual Insurance Company, 226 S.W.3d 1999 (Mo. App. E.D. 2007)

9 RITCHIE V. ALLIED PROPERTY & CASUALTY INS. CO. 307 S.W.3d 132 (Mo. Banc 2007) Held: Other Insurance section of UIM coverage was ambiguous as to whether UIM coverage was stackable, thus ambiguity would be resolved in favor of insureds Other Insurance provision states that where the insured was injured while in a non-owned vehicle, then any coverage we provide... shall be excess over any other collectible underinsured motorist coverage. Abrogating Farm Bureau Town & Country Ins. Co. of Mo. V. Barker, 150 S.W.3d 103 (Mo. App. W.D. 2004) noting that Barker had not been cited in any other underinsured motorist decision since it was handed down, and to the extent it was inconsistent with Seeck v. Geico General Insurance Company, 212 S.W.3d 129 (Mo. banc 2000), Barker should no longer be followed. JONES V. MID-CENTURY INS. CO. 287 S.W.2d 687 (Mo. 2009) Held: UIM provision that stated insurer would pay lesser of its $100,000 per person UIM policy limit, or the difference between the damages and the payments already made by an underinsured tortfeasor, was ambiguous Insurance company s interpretation of the policy would have meant that it never actually would be required to pay its insureds the full amount of underinsured motorist coverage Mo. Supreme Court held that such a result would not be permitted under Missouri law. MANNER V. SCHIERMEIER & AMERICAN FAMILY MUT. INS. CO. 393 S.W.3d 58 (Mo Banc. Jan. 8, 2013) Held: (1) Insurers failed to establish that insured owned the motorcycle within the meaning of the owned-vehicle exclusion to UIM coverage contained in each policy

10 (2) Insured could stack the UIM coverage available under the four policies to establish that tortfeasor was underinsured, and (3) Insurers could not reduce the $400,000 in stacked UIM coverage available to insured by the $100,000 paid by tortfeasor OTHER MISSOURI COURT S FIND AMBIGUITY IN AUTOMOBILE POLICIES Hartford Underwriters Ins. Co. v. Ledbetter, 353 S.W.3d 645 (Mo. App. S.D. May 24, 2011) Held: Other Insurance provision in policy created ambiguity and would be interpreted to provide insured with UIM coverage Other Insurance stated any insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance providing such coverage on a primary basis created an ambiguity when read with apparently conflicting language in the policy s definition of underinsured and limits of liability section. Long v. Shelter Insurance Company, 351 S.W.3d 692, (Mo. App. W.D. Nov. 8, 2011) Same Court--Same day as Stewart Held that Shelter Insurance's anti-stacking language in the underinsured motorist coverage was ambiguous because of the "other insurance" clause. The court concluded that Shelter's "excess" language in the "other insurance" clause as well as its "other insurance provision created ambiguity when read with the policy's anti-stacking language. The court further struck down the policy set off provision, holding that the interplay of the policy's declaration page, limits of liability, and its promise to pay uncompensated damages created ambiguity when viewed against the policy's set-off language

11 Wasson v. Shelter Mut. Ins. Co., 358 S.W.3d 113, (Mo. App. W.D.) (November 8, 2011) Insured was entitled to UIM coverage of $250,000 per person, not $500,000 single coverage, and Insurer was not entitled to set off amount paid on behalf of the tortfeasor against limits of UIM liability but could apply it only to insureds uncompensated damages. o One problem with Shelter's argument is that the definition of the term uncompensated damages does not include the following bracketed, italicized and bolded language in the definition: Uncompensated damages means the portion of the damages [up to our limit of liability ] that exceeds the total amount paid or payable to an insured by, or on behalf of, all persons legally obligated to pay those damages. o Shelter would wish that it did include such language, but it does not. The result is that it reads exactly like excess insurance. Same insurance company, different policy language than Lynch, discussed below. Consistent with Long, Insurer was not entitled to set off amount paid on behalf of tortfeasor against limits of UIM coverage, but could apply it only to insured s uncompensated damages Miller v. Ho Kun Yun & American Family Mut. Ins. Co., 2013 WL (Mo. App. Feb. 5, 2013) (Opinion not yet final) Held: Definition of UIM vehicle in insurance contract was ambiguous as to whether it applied in excess of tortfeasor s liability coverage and thus ambiguity would be resolved in favor of insured. (This was not technically a stacking case as it did not involve multiple policies, but was determinative as to whether the insured could recover the underinsured motorist coverage in addition to the liability coverage of the tortfeasor s policy)

12 NOT SO FAST!! NO AMBIGUITY FOUND Lynch v. Shelter Mut. Ins. Co., 325 S.W.3d 531 (Mo. App. S.D. Oct. 7, 2010) Definitions of uncompensated damages in UIM endorsement was not ambiguous Set off language in UIM exclusion did not operate in cumulative manner to allow or provide for double reduction by insurer for amounts paid on behalf of tortfeasor; and First sentence of Other Insurance section of UIM did not create ambiguity Stewart v. Liberty Mut. Fire Ins. Co., 349 S.W.3d 381, 383 (Mo. App. W.D. 2011) Relying on the abrogated opinion of Barker, Id. Other Insurance language provided any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance providing coverage on a primary basis. In a detailed decision, the Stewart court, relying on Barker, distinguished the excess provision from other provisions addressed in Ritchie and Seeck. The Missouri Supreme Court did not accept transfer of the case. However, given Ritchie's criticism of Barker, and the Western District's reliance on Barker, this issue almost certainly will be revisited in other cases. Taylor v. State Farm Mut. Auto. Ins. Co., 368 S.W.3d 174 (Mo. App. W.D. Feb. 21, 2012) Fifteen year old pedestrian who sustained serious injuries when struck by car brought action against her parents UIM insurer, seeking to recove an additional $50,000 under parents second UIM policy. Court held that anti-stacking provision was clear and unambiguously stated if the insured sustains bodily injury as a pedestrian and other underinsured

13 motor vehicle coverage applies: the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability Graham v. State Farm Mut. Automobile Ins. Co., 376 S.W.3d 32, Mo. App. (May 1, 2012) State Farm had no obligation to make any UIM: payments to insured. Insured was injured while riding as a passenger in another vehicle that had a policy that provided UIM coverage in an amount greater than that provided under named insured s policy. State Farm s policy made the limits of the other policy primary and unambiguously provided UIM coverage only to the extent the named insured s policy exceeded the limits of the primary policy. Hall v. Allstate Ins. Co., 2012 WL , (Mo. App. E.D. Dec. 11, 2012) (Not yet released for publication as it may be subject to a motion for rehearing or transfer. It may be modified, superseded or withdrawn.) Held that policy issued to insureds that covered three of their vehicles prohibited stacking of UIM benefits. Policy language distinguished from Ritchie. underinsured notorists or similar type coverage under another policy. Court said policy language refers to underinsured motorist coverage in some other, separate policy, not other coverage within the same policy Owners Insurance Company v. Hughes, 712 F.3d 392 (C.A. 8, April 3, 2013) Distinguished Manner, and relied on Rodriguez, to hold that driver s vehicle was not an underinsured automobile within the meaning of insured s UIM coverage. Manner had UIM coverage under four separage insurance policies Hughs had only one. In Manner, the coverage provided by the policies is their stacked amount, not the amount each would provide if considered separately, and it is the stacked amount that must be compared against the insurance coverage of the tortfeasor

14 UNCERTAINTY OVER STACKING RULES CONTINUES IN LIABILITY CASES Durbin v. Deitrick and American Family 323 S.W.3d 122 (Mo. App. W.D. 2010) Insurer sought DJ based on anti-stacking provision, only one of insured s four personal automobile liability policies provided coverage for accident in which insured s truck rear-ended another vehicle. Court of Appeals held that Other Insurance provision created an ambiguity as to whether the policies permitted stacking and thus provisions had to be construed against the insurer and in favor of the insureds to permit stacking. Other Insurance provision stated But, any insurance provided under this Part for a vehicle you do not own is excess over any other collectible auto liability insurance DeMeo v. State Farm 639 F.3d 413 (C.A. 8, May 4, 2011) Injured pedestrian sought recovery of four liability policies 8 th Circuit held that policy s excess coverage provision stating that if nonowned car had other vehicle liability coverage then this coverage is excess over such insurance did not render the anti-stacking clause unenforceable or ambiguous. Non-binding decision from the W.D. Mo

15 WHERE DOES THIS LEAVE US AND WHAT DOES IT MEAN??? CASES INVOLVING STACKING ISSUES ARE ALWAYS FACT DEPENDANT AND DEPENDANT UPON POLICY LANGUAGE Cases arising out of the use of a non-owned automobile; or Injuries to unrelated passengers ARE LIKELY TO LEAD TO A STACKING SITUATION BUT NOT ALWAYS Expect to see many more cases litigated as more plaintiffs push for stacked limits and insurance companies respond by trying to tighten policy language

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