Naeger v. Farmers Insurance Co.

LAWRENCE E. MOONEY, Presiding Judge.

I respectfully dissent.

Courts should protect the reasonable expectations of parties to an insurance contract, As well-stated by our Supreme Court, “In construing the terms of an insurance policy, this Court applies ‘the meaning which would be attached by an ordinary person of average understanding if purchasing insurance.’ and resolves ambiguities in favor of the insured.” Seeck v. Geico General Ins., 212 S.W.3d 129, 132 (Mo. banc 2007)(quoting McCormack Baron Mgt. Servs., Inc. v. American Guarantee & Liab. Ins. Co., 989 S.W.2d 168, 171 (Mo. banc 1999))(intemal citations omitted). And exclusionary clauses, such as we have here, are to be strictly construed against the drafter, who also bears the burden of showing the exclusion applies. Manner v. Schiermeier, 393 S.W.3d 58, 62 (Mo. banc 2013).

Here, the insured especially contracted with her own insurer for the addition of what it called “underinsured motorist coverage,” despite its additional cost. The insured likely believed such coverage would provide floating, personal accident coverage. Indeed, prior to the trial court’s ruling in this case, that was the uniform understanding of Missouri’s courts. See Long v. Shelter Ins. Companies, 351 S.W.3d 692, 696 (Mo.App.W.D.2011)(quoting Niswonger v. Farm Bureau Town & Country Ins., Co. of Mo., 992 S.W.2d 308, 313 (Mo.App.E.D.1999)) (“UIM [underin-sured motorist] coverage is floating, personal accident insurance that follows the insured individual wherever he goes rather than insurance on a particular vehicle.”)

But the insurance company now seeks to shirk its promise of such coverage by virtue of a novel exclusion. The exclusion bars coverage if the insured was occupying a vehicle that is otherwise insured “for this coverage,” whatever that means. The trial court has somehow concluded that phrase means “comparable” underinsured motorist coverage, whatever that means. Is the insured excluded from collecting from her own insurer if another insurer has insurance with different limits or different terms?

And it is such other “coverage,” not an actual recovery pursuant to such coverage, that bars you from recovering from your own insurer, If the vehicle you are in has such coverage from a difficult or insolvent insurer, your bargained-for underinsured motorist coverage from your own insurer provides no safety net. To the contrary, the exclusion scuttles the floating, personal insurance you especially purchased. Such an insured is indeed underinsured, both before and after the purchase of such a misbegotten policy.

Because the insurer here promised “un-derinsured motorist coverage” and the insured paid for such coverage, I would hold the insurer must provide floating, personal accident coverage. If the insurer wants to alter the nature of the insurance it provides, it should likewise change the name of its product so that no one will be misled. Here, the insurer might have adopted a more apt appellation, such as “under-un-derinsured motorist coverage,” for what the insurer seeks to provide is distinctly less than underinsured motorist coverage.