Marchand ex rel. Marchand v. Safeco Insurance Co. of America , 1999 Mo. App. LEXIS 1067 ( 1999 )

CHARLES B. BLACKMAR, Senior Judge,

dissenting.

I cannot agree with the result reached in the principal opinion. I do not believe that a passenger in an uninsured automobile is necessarily “using” the automobile, under the terms of the policy now before us. Nor do I believe such a passenger is excluded from uninsured motorist coverage there provided if he cannot demonstrate that he does not have the owner’s permission to ride in the car.

Our Supreme Court has taken notice of the realities in the drafting of insurance policies. The insurance company chooses the language of the policy. The overwhelming majority of insurance contracts are effected without any input whatsoever from the insured, and any suggestion for change of language would usually be summarily rejected. The courts have seldom countenanced claims that policy language should be expanded to cover the parties’ “expectations,” but have insisted that insurance companies express their intentions in clear language. Thus it is often said that policy language shall be strictly construed against the insurer and that, when there is ambiguity, a construction which favors coverage should be adopted in preference to one which would defeat coverage. Krombach v. Mayflower Ins. Co., Ltd., 785 S.W.2d 728, 731 (Mo.App. E.D.1990).

Our Supreme Court recently emphasized the rule of strict construction against the insurer in Martin v. United States Fidelity and Guaranty Co., 996 S.W.2d 506, 509 (Mo. banc 1999). The phrase in question was “executive officer.” Id. The opinion reads as follows:

Whether an insurance policy is ambiguous is a question of law. An ambiguity exists ... if it is reasonably open to different constructions. When policy language is ambiguous it must be construed against the insurer.

Id. (Footnote citations omitted.)

The Court held that the chief operator of a municipal waste treatment plant was not clearly an “executive officer” of the municipality he served, and so was an insured under the policy. Id. at 509-10. When applied to a municipality, the term “executive officer” might be applied only to top officials such as the mayor and department heads; it did not clearly include the official in question. Id.

Turning to the present case, it appears the driver of the car was thirteen years old, plaintiff knew that he was thirteen years old, and plaintiff had no reason to believe that the driver of the car had the permission of his mother, the owner of the car. The thirteen-year-old driver undertook to drive the plaintiff and several other youths to their homes. The plaintiff was injured when the driver sped through a curve and hit a tree. The driver’s parents had no liability insurance on the vehicle. Unless it can be demonstrated as a matter of law that the plaintiff passenger was “using” the vehicle at the time of the accident, the plaintiff had uninsured motorist coverage under the policy his parents had purchased.

First resort is to the dictionary definition of “use” and “using.” The word, in its several forms, is one of the oldest in the English language, and has many applications both as a noun and as a verb. We consider only the use as a verb, which yields the participle “using.” This portion of the definition in Webster’s International Dictionary, 3d. Edition, occupies approximately 100 lines of small type, and provides myriad definitions with numerous subdivisions. Listed synonyms are “employ, utilize, apply, avail.” The question immediately arises as to whether one can properly be said to be “using” a vehicle when having no control over it. Nor can it be said that, in ordinary speech, one would say that he had been “using” a vehicle simply by riding in it. I am not persuaded that the multifarious dictionary definition resolves the case in favor of the insurer.

Nor does the case law make the insurer’s case conclusive. The insurer and the principal opinion point to Francis-Newell v. Prudential Ins. Co., 841 S.W.2d 812, 815 (Mo.App. S.D.1992). In Newell, the Southern District held that a child who was riding to soccer practice in a car driven by another child’s parent was “using” the automobile so as to come tuithin the coverage of a liability policy. Id. (Emphasis added.) In the posture of that case, the rule of strict construction would apply in favor of the insured passenger and against the insurer, and so the ease is not on point in the present controversy. I would reject the insurer’s suggestion that it establishes the definition of “using” for all purposes under Missouri law.

Other Missouri case law supports the plaintiffs position, rather than insurer’s. State Farm Mutual Automobile Ins. Co. v. Carney, 861 S.W.2d 665, 667 (Mo.App. E.D.1993), finding ambiguity, also pointed to the absence of control by the claimant. It is inconceivable that a drafter of insurance policies, on seeing these cases, would not sense the need for further definition of “using.”

A farther counting of cases would serve no purpose. It is manifest that respected courts have differed in determining whether a passenger is necessarily “using” the vehicle in which he is riding. The differing definitions demonstrate ambiguity.

It is also proper to resort to other portions of the policy to determine the “vocabulary” of the drafters. The insurer did not consider it necessary to define “use” or “using,” but did provide a definition of “occupy,” as a collective term including both drivers and passengers. In Part B, indeed, the insurer excluded Excess Medical Payment Coverage “sustained while occupying a vehicle without a reasonable belief that the person has permission to do so.” Even though this phrasing is in a different part of the policy, its use there demonstrates that the insurer knows how to exclude coverage of passengers lacking permission if that is its intention. Its failure to do so for Uninsured/Underinsured Coverage suggests that it did not clearly manifest intent to exclude persons in the position of claimant. Had the policy said “using or occupying,” this case would not have been necessary.

The insurer has failed in its minimum responsibility of clarity. I would reverse the summary judgment for the defendant and remand the case for further proceedings not inconsistent with the views expressed in this opinion.