Ronda Walker v. Progressive Direct Ins. Co. ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1433
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Ronda Walker
lllllllllllllllllllll Plaintiff - Appellant
v.
Progressive Direct Insurance Company, et al.
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: September 20, 2016
Filed: October 18, 2016
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Before LOKEN, BEAM, and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
Steve Walker died in a motorcycle accident. His wife, Ronda Walker, brought
a wrongful death action against the driver of the other vehicle, which the parties
settled for the driver’s liability policy limit of $25,000. Ronda then sued the Walkers’
insurer, Progressive Direct Insurance Company, to recover underinsured motorist
insurance (“UIM”) under two Progressive Auto Policies insuring their six other cars.
After Progressive removed the action to federal court, the district court1 granted
Progressive’s motion for summary judgment, concluding that the policies’ “owned
vehicle” exclusion barred UIM coverage because Steve did not purchase UIM
coverage under a separate policy insuring his motorcycle. Ronda appeals. Reviewing
de novo the district court’s interpretation of the insurance policies and their ambiguity,
as Missouri law requires, we affirm. Floyd-Tunnell v. Shelter Mut. Ins. Co., 439
S.W.3d 215, 217 (Mo. banc 2014).
The two Progressive policies provided UIM coverage for each of the six named
vehicles. The policies’ “owned vehicle” exclusion (“OVE”) is common in auto
liability policies. The Supreme Court of Missouri has noted the exclusion’s purpose:
“one cannot simply buy a policy of insurance on one vehicle and then argue that the
policy covers other vehicles that the insured also owns but chose not to insure.”
Dutton v. American Family Mut. Ins. Co., 454 S.W.3d 319, 323 (Mo. banc 2015).
Here, Steve Walker separately insured his motorcycle without UIM coverage.
UIM coverage is not required by statute in Missouri, so Ronda’s coverage claim
turns on the UIM provisions in Progressive’s policies, construed in accordance with
Missouri law. Progressive provided UIM coverage in Part III (B) of its Auto Policy.
The “Insuring Agreement” in Part III (B) provided:
If you pay the premium for this coverage, we will pay for damages that an
insured person is legally entitled to recover from the owner or operator of an
underinsured motor vehicle because of bodily injury:
1. sustained by that insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of an underinsured
motor vehicle.
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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The policies’ general definitions defined “Bodily injury” to mean “bodily harm
. . . including death that results from bodily harm,” and defined “You” to mean “a
person shown as a named insured on the declarations page.”
The OVE exclusion in Part III (B) provided that UIM coverage will not apply:
1. to bodily injury sustained by any person while using or occupying:
***
b. a motor vehicle that is owned by or available for the regular use of
you or a relative. This exclusion does not apply to a covered auto that
is insured under this Part III (B). . . .
Part III (B)’s Limits of Liability section provided that the “each person” limit of
liability “includes the total of all claims made for bodily injury to an insured person
and all claims of others derived from such bodily injury, including . . . wrongful
death.” Part III (B) also contained a relevant Additional Definition:
Insured person means:
a. you or a relative . . .
and
d. any person who is entitled to recover damages covered by this Part III
(B) because of bodily injury sustained by a person described in
[subpart] a . . . .
In this case, Steve Walker was a named insured on the policies’ Declarations
Page and therefore was an “insured person.” He sustained bodily injury caused by an
accident arising out of the use of an underinsured motor vehicle. Therefore, unless
excluded, the Insuring Agreement in Part III (B) covered a claim by Steve, had he
survived, or, after his death, a wrongful death claim by Ronda based upon (“derived
from”) Steve’s bodily injury. However, as the district court explained, Part III (B)’s
OVE barred coverage for these claims because “[Steve] was a named insured who
owned the vehicle he was driving during the accident, and that vehicle was not
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covered under the policies at issue here.” As in Bush v. Shelter Mut. Ins. Co., 412
S.W.3d 336, 342 (Mo. App. 2013), the Progressive policies’ OVE exclusion “simply
and unambiguously precludes coverage for damages sustained while the insured is
occupying a vehicle he owns that is not included on the polic[ies’] declarations page.”
On appeal, as in the district court, Ronda avoids this straightforward analysis
applying Progressive’s OVE to the undisputed facts in this case. Rather, she argues
that the OVE does not bar a claim for her own injury because (i) she is a person named
on the policy Declarations Page and therefore an “insured person”; (ii) she may
recover wrongful death damages from an underinsured motorist, see Mo. Rev. Stat.
§ 537.080.1(1); and (iii) “[s]he was not using or occupying any vehicle involved in
the accident, nor did she suffer any bodily injuries in the accident.”
The district court succinctly answered this contention: “if ‘you’ could only
mean plaintiff herself, there would be nothing for her to recover under UIM coverage
because she was not injured.” We agree. Of course, Ronda did suffer personal injury
from Steve’s death that may be recovered in a wrongful death damage action. See
Mo. Rev. Stat. § 537.090. But she did not suffer “bodily injury” as defined in the
Progressive Auto Policy, and Part III (B) provides UIM coverage only to an insured
person for “bodily injury sustained by that insured person.” Thus, Ronda’s argument
that the policy definition of “you” makes the OVE ambiguous when she seeks
coverage for her own injury does not identify a relevant ambiguity. Ronda’s UIM
claim is not covered whether “you” refers to Ronda or Steve, or both, because a UIM
claim based on Steve’s bodily injury is barred by the OVE, and Part III (B) provides
no UIM coverage for a separate claim by the other named insured, Ronda.
The Supreme Court of Missouri reached the same conclusion in Floyd-Tunnell,
where the plaintiff claimed uninsured motorist coverage for her husband’s wrongful
death under each of their three auto policies, but the insurer, applying an OVE
exclusion, limited coverage to the statutory minimum for the policies covering cars
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the husband was not driving when the accident occurred. 439 S.W.3d at 217. On
appeal, plaintiff argued “that the policies provide coverage to her for [wrongful death]
damages, and because she was not in the car when the accident occurred, the [OVE]
exclusion does not limit this coverage.” Id. at 219. The Supreme Court rejected this
argument, concluding that the policies’ plain language -- “money owed to an insured
for bodily injury . . . sustained by that insured” -- did not cover a claim for wrongful
death damages. Because plaintiff did not suffer bodily injury herself, “[t]he plain
language of the policies denies her coverage for the damages she sustained as a result
of her husband’s death.” Id. That reasoning applies and is controlling here.
The judgment of the district court is affirmed.
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