Loomis v. State Farm Fire & Cas. Co., ED 106493

567 S.W.3d 664

Jonathan LOOMIS, Appellant,

v.STATE FARM FIRE AND CASUALTY COMPANY, Respondent.

No. ED 106493

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: November 13, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied December 17, 2018

Application for Transfer Denied March 5, 2019

Jeremy A. Gogel, 4542 West Pine Blvd., St. Louis, MO 63108, For Plaintiff/Appellant.

Harper C. Scott, 34 N. Meramec Ave., St. Louis, MO 63105, For Defendant/Respondent.

OPINION

Colleen Dolan, J.

Jonathan Loomis ("Appellant") appeals the trial court’s grant of State Farm Fire and Casualty Company’s ("State Farm’s") third motion for summary judgment on Appellant’s claim that he was entitled to certain motor vehicle insurance coverage under a temporary binder of insurance issued to him by State Farm. Appellant offers three points on appeal, each arguing that the trial court erred in granting State Farm’s motion for summary judgment. We find that there is a genuine issue of material fact regarding the underinsured motor vehicle coverage limits set by the insurance binder issued by State Farm. We therefore reverse the trial court’s grant of State Farm’s motion for summary judgment, and remand to the trial court for proceedings consistent with this opinion.

I. Factual and Procedural Background

While residing in Laramie, Wyoming, Appellant completed and submitted a motor vehicle insurance application for his motorcycle with State Farm on February 5, 2014; on this application, Appellant specifically requested underinsured motor vehicle coverage in the amount of $50,000 per person and $100,000 per accident. Upon receiving Appellant’s application, State Farm stipulated that Appellant was granted a temporary "binder of insurance coverage," subject to review of his application. The binder included all of the terms and conditions of three standardized State Farm documents: State Farm Policy Form 9850A, Endorsement 6979ET Motorcycle Coverage, and Amendatory Endorsement 6950A.1. On March 10, 2014, while Appellant’s application was still under review by State Farm, Appellant was injured in a motor vehicle accident in Wyoming where another vehicle struck Appellant’s motorcycle. Appellant sustained injuries from the accident that required he be airlifted to a nearby hospital.

At the time of the accident, State Farm had not yet issued an actual policy for the insurance for which Appellant had applied. Appellant was thus still covered by the temporary insurance binder issued by State Farm when the accident occurred. Pursuant to the insurance binder, Appellant was granted underinsured motor vehicle coverage when "the total limits of [the at-fault driver’s] insurance and self-insurance for bodily injury liability from all sources ... are less than the Underinsured Motorist Vehicle Coverage limits of this policy." The binder of insurance further states that "The Underinsured Motor Vehicle Coverage limits are shown on the Declarations Page under ‘Underinsured Motor Vehicle Coverage — Bodily Injury Limits — Each Person, Each Accident[.]’ " The binder also states that the most State Farm would pay for damages resulting from bodily injury in an accident is the lesser of:

(1) the limit shown [on the Declarations Page] under "Each Person" reduced by the sum of all payments for damages resulting from that bodily injury made by or on behalf of any person or organization who is or may be held legally liable for that bodily injury, or

(2) the amount of all damages resulting from that bodily injury reduced by the sum of all payments for damages resulting from that bodily injury made by or on behalf of any person or organization who is or may be held legally liable for that bodily injury.

However, no "Declarations Page" was included as part of the binder of insurance, and no such page was ever issued to Appellant. Nor did the binder include Appellant’s motor vehicle insurance application. The binder also contained a "Choice of Law" clause that stated "the law of the state ... of Wyoming will control ... in the event of any disagreement as to the interpretation and application of any provision in this policy...." Appellant cancelled his coverage with State Farm two days after the accident; no policy was ever actually issued to Appellant other than the temporary binder of insurance.

Following the accident, Appellant sought to recover damages for the injuries he sustained in the accident from the at-fault driver. Before attempting to settle with the at-fault driver, Appellant sought State Farm’s consent pursuant to the obligations of State Farm’s underinsured motor vehicle coverage limits, which Appellant claimed exceeded the at-fault driver’s insurance coverage limits ($50,000). However, State Farm communicated to Appellant that because the "tortfeasor’s liability limits are the same as [Appellant’s] underinsured motorist coverage limits, [Appellant] does not have an underinsured motorist claim, per the policy, and as a result, he does not need State Farm’s permission to response [sic] the liability claim with [the at-fault driver’s insurer]." Appellant ultimately settled with the at-fault driver for her insurance policy limits of $50,000. It is undisputed that Appellant’s damages resulting from his bodily injuries sustained in the crash exceeded the $50,000 that Appellant recovered from the at-fault driver.

Appellant, who is currently a resident of Montgomery County, Missouri, filed his petition in the Circuit Court of St. Louis County on April 27, 2015, in Case No. 15SL-CC01430. In his petition, Appellant sought to recover the amount of his damages less $50,000 (the amount he recovered from the at-fault driver under her policy limits) that Appellant alleges is owed to him under the binder’s underinsured motor vehicle coverage limits. On April 19, 2017, the trial court granted State’s Farm’s motion for summary judgment. Appellant appealed the trial court’s grant of summary judgment to this Court, which we reversed and remanded in Loomis v. State Farm Fire & Cas. Co., 532 S.W.3d 739 (Mo. App. E.D. 2017), finding that there was a genuine issue of material fact as to when the date of the accident occurred.¹

On remand, State Farm again filed a motion for summary judgment; in State Farm’s statement of uncontroverted material facts and Appellant’s response, the parties agreed that the accident occurred on March 10, 2014, and that no policy had been issued to Appellant at the time of the accident. In its memorandum supporting its motion for summary judgment, State Farm asserted that, although no Declarations Page was issued with the binder of insurance, it was unambiguous that the underinsured motor vehicle coverage limit would have been $50,000—as Appellant requested on his application. In opposition, Appellant argued that, because no Declarations Page was issued and because the binder did not include Appellant’s application, the underinsured motor vehicle coverage limit was a genuine issue of material fact. Appellant specifically asserted that, because the underinsured motor vehicle coverage limit was not assigned a specific dollar amount by the insurance binder, it was a genuine issue of material fact whether the limit was $50,000 and Appellant was not entitled to recover anything under the binder because the at-fault driver’s limit of $50,000 is not less than the limit set by binder (as State Farm claimed) or whether Appellant was entitled to the total sum of his damages less the at-fault driver’s insurance policy limit of $50,000. After reading the briefs and hearing the arguments of the parties, the trial court granted State Farm’s motion for summary judgment.

This appeal follows.

II. Standard of Review

Although Wyoming law indisputably applies in this case pursuant to the binder’s "Choice of Law" clause, we must apply Missouri law to procedural matters, such as summary judgment standards. Loomis, 532 S.W.3d at 742 ; Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 58 (Mo. banc 2005) ; see also Sturgeon v. Allied Professionals Ins. Co., 344 S.W.3d 205, 210 (Mo. App. E.D. 2011) ("We recognize that generally parties may choose the state whose law will govern the interpretation of their contractual rights and duties. As long as the application of this law is not contrary to a fundamental policy of Missouri, we will honor the parties' choice of law provision.").

On appeal of a trial court’s grant of summary judgment, the standard of review is de novo. Juan v. Growe, 547 S.W.3d 585, 590-91 (Mo. App. E.D. 2018). "Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 119-20 (Mo. banc 2010) ; Rule 74.04(c)(6). "We review the record in the...