Greer v. Progressive Casualty Insurance Company et al

Filing 27

ORDER - Plaintiff's Motion for Partial Summary Judgment 16 is DENIED and Defendants' Motion for Summary Judgment 19 is GRANTED. Summary judgment is entered in favor of Defendants Progressive Northwestern Insurance Company and Progressive Casualty Insurance Company. Signed on 8/30/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RICKY GREER,
Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE
COMPANY, et al.,
Defendants.

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No. 4:16-CV-00935-DGK

ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This suit concerns the underinsured coverage of insurance policies issued to Plaintiff
Ricky Greer (“Plaintiff”) by Defendants Progressive Northwestern Insurance Company
(“Progressive Northwestern”) and Progressive Casualty Insurance Company (“Progressive
Casualty”). Plaintiff had two separate insurance policies: one with Progressive Northwestern for
a 2015 Harley Davidson Motorcycle (“Harley Policy”); and one with Progressive Casualty for a
1993 Chevrolet C3500 and a 1990 Mazda Miata (“Chevy and Mazda Policy”). Both policies
contained underinsured motorist (“UIM”) benefits provisions.
On August 2, 2015, Plaintiff was involved in an accident with another driver while riding
his 2015 Harley Davidson Motorcycle.
$350,000.

He claims his damages from the accident exceed

Plaintiff recovered $100,000 from the other driver’s insurance company, and

demanded payment from his own insurance providers pursuant to his UIM coverage. Defendants
denied Plaintiff’s claims under each of the policies.
Plaintiff then filed this action in the Circuit Court of Jackson County, Missouri, seeking
payment of his UIM benefits and asserting a claim for vexatious refusal to pay under Missouri

Revised Statute § 375.420. Defendants timely removed this action to the federal district court by
invoking the Court’s diversity jurisdiction.
Now before the Court are the parties’ cross motions for summary judgment: Plaintiff’s
Motion for Partial Summary Judgment (Doc. 16) and Defendants’ Motion for Summary
Judgment (Doc. 19).

For the reasons set forth below, Plaintiff’s motion is DENIED and

Defendants’ motion is GRANTED.1
Background
For purposes of deciding these motions, the Court finds the relevant facts to be as
follows.
On August 2, 2015, Plaintiff was riding his 2015 Harley Davidson motorcycle (the
“Harley”) when another motorcyclist, James Blaylock (“Blaylock”) struck him, causing Plaintiff
to lose control and sustain bodily injury. Blaylock was insured by a policy providing for liability
coverage of $100,000, and that amount was tendered to Plaintiff after the accident.
Plaintiff then sent a demand for UIM benefits to Progressive Northwestern and
Progressive Casualty under the Harley, Chevy, and Mazda policies. In his demand, Plaintiff
asserted his injuries were in excess of $250,000, and he was owed $150,000 under the insurance
policies.2 Progressive Casualty and Progressive Northwestern denied Plaintiff’s claims for UIM
benefits.

In denying his claims under the Chevy and Mazda Policy, Progressive Casualty

asserted: (1) Plaintiff was not an “insured person” under the policies; (2) the Harley was owned
by or available for the regular use of Plaintiff; and (3) Blaylock’s vehicle was not an
“underinsured motor vehicle.”
1

2

Progressive Cas. Denial Letter, Def.’s Ex. F (Doc. 20-6).

Defendants’ request for leave to file excess pages in their reply brief is GRANTED. See (Doc. 24 at 1).

In his complaint, Plaintiff asserts his damages total over $350,000. Compl. ¶ 21 (Doc. 2-1). Plaintiff’s demand
letter, however, asserts “a jury would likely assess damages in excess of $250,000,” entitling him to $150,000 in
available limits. Def.’s Ex. E at 2 (Doc. 20-5).

Progressive Northwestern denied Plaintiff’s claim under the Harley Policy because Blaylock’s
vehicle was not an “underinsured motor vehicle.” Progressive Northwestern Denial Letter,
Def.’s Ex. G (Doc. 20-7).
The Chevy and Mazda Policy was issued by Progressive Casualty and contains the
following relevant language:
“Auto” means a land motor vehicle: a. of the private passenger, pickup body, or
cargo van type; b. designed for operation principally upon public roads; c. with at
least four wheels; and d. with a gross vehicle weight rating of 12,000 pounds or
less, according to the manufacturer’s specifications.
...
“Covered auto” means: a. any auto or trailer shown on the declarations page for
the coverages applicable to that auto or trailer; b. any additional auto; c. any
replacement auto; or d. a trailer owned by you.
...
“Replacement auto” means an auto that permanently replaces an auto shown on
the declarations page. A replacement auto will have the same coverage as the
auto it replaces if the replacement auto is not covered by any other insurance
policy . . . .
...
“Insured person” means:
a. you or a relative;
(1) while occupying an auto; or
...
b. any person occupying a covered auto with the permission of you or a relative;
and
c. any person who is entitled to recover damages covered by this Part III(B)
because of bodily injury sustained by a person described in (a) or (b) above.
“Underinsured motor vehicle” means a land motor vehicle or trailer of any type
for which the sum of the limits of liability under all bodily injury liability bonds
or policies applicable at the time of the accident is less than whichever of the
following is shown on the declarations page for Underinsured Motorist Coverage:
(a) the “Each Person Dollar Amount” to be used in determining the
“Underinsured Motorist Limit – Each Person” . . . . An “underinsured motor
vehicle” does not include any vehicle or equipment: (a) owned by you or a

relative or furnished or available for the regular use of you or a relative; [or] (f)
that is a covered auto . . . .
...
Coverage [for underinsured motorist incidents] 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
[the Underinsured Motorists section]; . . .
Chevy & Mazda Pol’y, Def.’s Ex. B at 6, 13, 28-29, 55-56 (Doc. 20-2) (emphasis omitted). The
Declarations Page of the policy lists the 1993 Chevrolet C3500/K3500 Pickup and the 1990
Mazda Miata/MX-5 Convertible as covered vehicles, and sets forth a $100,000 “each person”
bodily injury liability limit. Id. at 2. The Harley was never added as an “additional auto” or a
“replacement auto” as defined in the policy, and Plaintiff never paid any additional premium to
add the Harley to the Chevy and Mazda Policy.3
The Harley Policy was issued by Progressive Northwestern and contains the following
relevant language:
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.
We will pay under the Part III(B) [underinsured motorist coverage section] only
after the limits of liability under all applicable bodily injury liability bonds and
policies have been exhausted by payment of judgments or settlements.
...
“Underinsured motor vehicle” means a land motor vehicle or trailer of any type
for which the sum of the limits of liability under all bodily injury liability bonds
3

Plaintiff contends this issue is controverted, but does so with a legal argument. This is an improper way to
controvert an asserted fact, and the Court deems this fact admitted for the purpose of summary judgment. See Fed.
R. Civ. P. 56(c), (e).

or policies applicable at the time of the accident is less than the coverage limit for
Underinsured Motorist Coverage shown on the declarations page.
Harley Pol’y, Def.’s Ex. C at 13-14 (Doc. 20-3) (emphasis omitted). The Declarations Page lists
the Harley, a “2015 H-D FLHR Road Kin,” as the covered vehicle, and an underinsured motorist
limit of $50,000. Id. at 2.
The Declarations Page of both the Chevy and Mazda Policy and the Harley Policy states
that “[a]ll limits listed [on the Declarations Page] are subject to all terms, conditions, exclusions
and applicable reductions described in the policy.” Chevy & Mazda Pol’y at 2; Harley Pol’y at
2.
Standard
A moving party is entitled to summary judgment if it “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Material facts are those “that might affect the outcome of the suit under the
governing law,” and a genuine dispute over a material fact is one “such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In deciding whether a jury question presents on an element, the court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in its favor. Johnson v. Wells Fargo Bank, N.A., 744 F.3d 539, 541–42 (8th Cir. 2014).
Discussion
Defendants argue summary judgment in their favor is proper because the terms of both
policies unambiguously bar Plaintiff’s recovery. Plaintiff asserts the two policies are ambiguous
and should be construed in his favor to allow coverage under both policies.
The interpretation of an insurance policy is a question of law, and “[t]he general rules for
interpretation of contracts apply to insurance policies.” Progressive Cas. Ins. Co. v. Morton, 140

F. Supp. 3d 856, 860 (E.D. Mo. 2015) (applying Missouri law); see also McCormack Baron
Mgmt. Servs., Inc. v. Am. Guar. & Liab. Ins. Co., 989 S.W.2d 168, 171 (Mo. 1999). “Because
Missouri does not require underinsured motorist coverage, the existence of the coverage [is]
determined by the insurance contract.” Lang v. Farmers Ins. Co., Inc., No. 4:14-cv-00501-HFS,
2015 WL 12731922, at *3 (W.D. Mo. June 1, 2015) (citing Staufenbiel v. Amica Mut. Ins. Co.,
No. 4:13-CV-2571-JAR, 2015 WL 1456987 (E.D. Mo. Mar. 30, 2015)). “When ‘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 . . . .’” Morton, 140 F. Supp.
3d at 860 (quoting Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. 2009)). A
court “should not interpret policy provisions in isolation but rather evaluate policies as a whole,”
and “endeavor to give each provision a reasonable meaning and to avoid an interpretation that
renders some provisions useless or redundant.” Id. at 860-61 (internal quotations omitted).
“[A]mbiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the
language in the policy.

Language is ambiguous if it is reasonably open to different

constructions.” Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. 2007). If the language
is ambiguous, “courts should construe the policy in favor of the insured.” Morton, 140 F. Supp.
3d at 861 (citing Dibben v. Shelter Ins. Co., 261 S.W.3d 553, 556 (Mo. Ct. App. 2008)).
I.

The decision of the Missouri Court of Appeals in Fanning v. Progressive
Northwestern Ins. Co. is inapposite.

Plaintiff avers Fanning v. Progressive Northwestern Ins. Co., 412 S.W.3d 360 (Mo. Ct.
App. 2013), is dispositive. Defendants counter that Fanning is not binding and is distinguishable
factually and legally.
Because the Court sits in diversity, Missouri law governs. Burger v. Allied Prop. & Cas.
Ins. Co., 822 F.3d 445, 447 (8th Cir. 2016). When Missouri law controls, the Court is “bound by

the decisions of the Missouri Supreme Court regarding issues of substantive state law.” Id.
(internal quotations omitted). “Decisions by the Missouri Court of Appeals may be used as an
indication of how the Missouri Supreme Court may rule, but [the Court is] not bound to follow
these decisions.” Aerotronics, Inc. v. Pneumo Abex Corp., 62 F.3d 1053, 1068 (8th Cir. 1995).
In Fanning, the intermediate state appellate court found the declarations page of the
policy at issue was explicitly defined as the “document showing [the insured’s] coverages, limits
of liability, . . . and other policy-related information.” Fanning, 412 S.W.3d at 365. Because of
this definition, the insurer was required to include every applicable limitation of UIM coverage
on the declarations page. Id.at 366. The insurer failed to do this, and the policy was deemed
ambiguous. Id. at 365-66.
First, the Court is not bound to follow this intermediate appellate court decision. Second,
the facts here are distinguishable from those in Fanning. The policy at issue in Fanning
indicated the declarations page would show any and all limitations of liability, and UIM
limitations were not listed on the declarations page. Fanning Policy Decl. Page, Def.’s Reply
Ex. A (Doc. 24-1). Here, the declarations page of each policy includes language explicitly
indicating the policy limits are “subject to all terms, conditions, exclusions and applicable
reductions described [elsewhere] in the policy,” including the UIM limitations. Chevy & Mazda
Pol’y at 2; Harley Pol’y at 2. When read as a whole, the declarations clearly indicate the insured
must refer to the entire policy when determining the scope of coverage and any corresponding
limitations. See Floyd-Tunnell v. Shelter Mut. Ins. Co., 439 S.W.3d 215, 221 (Mo. 2014) (“The
declarations state the policy’s essential terms in an abbreviated form, and when the policy is read
as a whole, it is clear that a reader must look elsewhere to determine the scope of coverage.”).
The Court fails to see how the declarations at issue here render the insurance contracts

ambiguous. See also Burger, 822 F.3d at 449 (discussing Fanning and finding that, because the
reverse of the declarations page at issue stated that other endorsements formed the policy, the
declarations page did not render the policy’s UIM limitations ambiguous); Naeger v. Famers Ins.
Co., 436 S.W.3d 654, 660 (Mo. Ct. App. 2014) (stating that Fanning “does not stand for the
proposition that a policy’s declarations page must notify an insured of limitations or exclusions
to UIM coverage absent such a requirement by the policy itself”).
Plaintiff reiterates his argument that the declarations pages of his policies render the
policies ambiguous in multiple sections of his briefing. The Court finds it is without merit, and
rejects it with regard to each relevant portion of the policies.
II.

The Chevy and Mazda Policy is unambiguous and Plaintiff is not entitled to
UIM coverage under its terms.

Defendants assert summary judgment in Progressive Casualty’s favor is warranted
because: (1) Plaintiff is not an “insured person” because he was not occupying an “auto” as
defined by the Chevy and Mazda Policy; (2) coverage is excluded for the Harley because it was
owned by Plaintiff and thus is not a “covered auto” under the Chevy and Mazda Policy; and (3)
the “owned vehicle” exclusion is unambiguous and bars recovery.4
The Chevy and Mazda Policy provides for coverage of an “insured person” that sustains
accidental injury involving the use of an underinsured motor vehicle. The policy defines an
“insured person” as:
[A.] you or a relative;
(1) while occupying an auto; or
...
[B.] any person occupying a covered auto with the permission of you or a relative; and
4

Defendant also argues Blaylock’s motorcycle was not an “underinsured motor vehicle” under the Chevy and
Mazda Policy. Because the Court finds the policy unambiguously barred Plaintiff’s recovery otherwise, it does not
address this argument or Plaintiff’s argument that the Chevy and Mazda Policy should “stack” on top of his Harley
Policy.

[C.] any person who is entitled to recover damages covered by this Part III(B) because of
bodily injury sustained by a person described in (a) or (b) above.
Chevy & Mazda Pol’y at 56.
First, Plaintiff is not an “insured person” under sections A or B because the Harley did
not fall under the definition of “auto” or “covered auto” in the Chevy and Mazda Policy. The
Harley had fewer than four wheels, and thus was not an “auto.”5 Similarly, it is undisputed the
Harley was not a “covered auto.”6 Plaintiff, however, asserts he is an “insured person” as
defined in section C. But, because Plaintiff is not entitled to recover damages under sections A
or B, this argument necessarily fails.
Finally, Plaintiff argues, in conclusory fashion, that the “owned vehicle” exclusion7 is
ambiguous and unenforceable. Plaintiff does not explain this argument, and only “directs the
Court to the citations above.” Pl.’s Br. in Opp. at 16 (Doc. 21); Pl.’s Reply at 16 (Doc. 25). This
argument is rejected. See supra Part I.
The Chevy and Mazda Policy is unambiguous regarding the definition of an “insured
person.” Plaintiff fails to meet this definition under these circumstances, and so is not entitled to
UIM coverage under the terms of the Chevy and Mazda Policy. Accordingly, the Court enters
summary judgment in favor of Defendant Progressive Casualty.

5

“‘Auto’ means a land motor vehicle: a. of the private passenger, pickup body, or cargo van type; b. designed for
operation principally upon public roads; c. with at least four wheels; and d. with a gross vehicle weight rating of
12,000 pounds or less, according to the manufacturer’s specifications.” Chevy & Mazda Pol’y at 33.
6

“‘Covered auto’ means: a. any auto or trailer shown on the declarations page for the coverages applicable to that
auto or trailer; b. any additional auto; c. any replacement auto; or d. a trailer owned by you.” Chevy & Mazda Pol’y
at 33.

7

“Coverage [for underinsured motorist incidents] 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 [the Underinsured Motorists section]; . . . .”
Chevy & Mazda Pol’y at 40.

III.

The Harley Policy is unambiguous and Plaintiff is not entitled to UIM
coverage under its terms.

Defendants assert Plaintiff is not entitled to UIM coverage under the Harley Policy
because Blaylock’s vehicle is not an “underinsured motor vehicle” as defined in the policy.
Plaintiff avers the language is ambiguous and should be interpreted in his favor.
The Harley Policy provides Progressive Northwestern will provide coverage otherwise
due from the owner of an underinsured motor vehicle. An “underinsured motor vehicle” is “a
land motor vehicle or trailer of any type for which the sum of the limits of liability under all
bodily injury liability bonds or policies applicable at the time of the accident is less than the
coverage limit for Underinsured Motorist Coverage shown on the declarations page.” Harley
Pol’y at 13-14.
The Harley Policy provides for $50,000 in underinsured motorist coverage, and Plaintiff
was reimbursed for $100,000 from Blaylock’s insurer. Because Plaintiff received more than the
sum of the limits of liability for the policy applicable at the time—the Harley Policy—Blaylock’s
vehicle does not qualify as an “underinsured motor vehicle.” Accordingly, summary judgment
in Progressive Northwestern’s favor is granted.
Conclusion
For the reasons set forth above, Plaintiff’s Motion for Partial Summary Judgment (Doc.
16) is DENIED and Defendants’ Motion for Summary Judgment (Doc. 19) is GRANTED.
Summary judgment is entered in favor of Defendants Progressive Northwestern Insurance
Company and Progressive Casualty Insurance Company.
IT IS SO ORDERED.
Dated: August 30, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT