MFA Mutual Insurance Co. v. Home Mutual Insurance Co.

ON MOTION FOR REHEARING

PER CURIAM.

Western Fire Insurance Company raised the issue of stacking of the various uninsured motorist coverages by a general pleading requesting a determination of the extent of liability under the Western policies and by stipulation. The stacking issue was briefed and argued before this court. In the motion for rehearing, Western makes the anomalous argument that the court below is without jurisdiction to determine the issue because the issue is not ripe for a decision. Western argues that any opinion of the court on the stacking question would be purely advisory without a stipulation of the parties or a judgment on the merits that would indicate a damage award to exceed the limits of coverage available on a single policy or vehicle.

Western, having belatedly realized the lack of finality on the stacking issue, seeks to abandon that issue and obtain a resolution of the issue as to coverage under the Home Mutual policy.

The trial court had jurisdiction to hear the issue of stacking. Western cites Cameron Mutual Insurance Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976), a case in which the issue of stacking was addressed in a declaratory judgment action. Although there was a stipulation as to damages in that case, the case did not raise or rule the issue of facts sufficient to support the declaratory judgment issue.

The facts in the instant case present a situation where there are not two insurance companies questioning the “primary” versus “secondary” coverage as is most often found in issue in stacking cases (and which the federal courts have suggested could, in the court’s discretion, be held until a trial on the merits, United States Fidelity & Guaranty Co. v. Millers Mutual Fire Insurance Co. of Texas, 396 F.2d 569 (8th Cir. 1968) and Mission Insurance Co. v. Mackey, 340 F.Supp. 824 (W.D. Mo. 1971)); but rather, only one company, Western, is questioning whether Palmer can stack three Western policies. This presents a question which is more akin to a limitation of liability issue, clearly appropriate under Missouri law in a declaratory judgment action. Commonwealth Insurance Agency, Inc. v. Arnold, 389 S.W.2d 803 (Mo. 1965) and Farmers Alliance Mutual Insurance Co. v. Reed, 530 S.W.2d 470 (Mo.App. 1975). In this case, it seems particularly appropriate to determine all of the coverage questions and the limits of liability, if any, prior to the trial of the underlying action. Indeed, that was Western’s position until the issue of finality of judgment was noted in the opinion in this case.

The motion for rehearing is overruled.