Long v. Shelter
Motion for Summary Judgment to Prohibit Set-off
IN THE CIRCUIT COURT OF CLAY COUNTY, LIBERTY, MISSOURI
CAROL J. LONG, ) ) Plaintiff, ) ) v. ) Case No. 09CY-CV01134 ) Div. No. III ) LUCAS W. DRAY, ) and ) SHELTER INSURANCE COMPANIES, ) ) Defendants. )
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF LONG’S PARTIAL MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT SHELTER ON SETOFF OF UNDERINSURANCE COVERAGE
Pursuant to Mo. R. Civ. P. 74.04, Plaintiff Carol J. Long respectfully moves this Court for an order entering summary judgment in her favor and against Defendant Shelter Insurance Companies (“Defendant Shelter”) on Plaintiff Carol Long’s claim to recover underinsured motorist coverage in the amount of $100,000, the amount listed on the declaration sheet.
I. SUMMARY OF FACTS
On January 21, 2009, Plaintiff Carol Long’s husband, Vernie Ray Long, died as the result of a car accident. (Plt. SOF 1). Plaintiff Carol Long and Vernie Ray Long were insureds of defendant Shelter. (Plt. SOF 11). The driver of the other vehicle, Defendant Lucas Dray, had an insurance policy with American Family Insurance Companies. (Plt. SOF 16). Defendant Lucas Dray’s insurance policy had liability coverage with limits of $50,000 per person and $100,000 per occurrence. (Plt. SOF 16). Under policy 24-1-4530272-20, Defendant Shelter insured the black Ford F350 Vernie Ray Long was driving at the time of the accident. (Plt. SOF 5). Attached to policy 24-1-4530272-20 was a separate endorsement, Endorsement A-577.5-A, which provided for underinsured motorist coverage. (Plt. SOF 7). The Longs contracted with Defendant Shelter for underinsured motorist coverage with limits of $100,000 per person and $300,000 per occurrence. (Plt. SOF 7). The Declaration Page of policy 24-1-4530272-20 charged the Longs a single, lump sum premium for both underinsured and uninsured motorist coverage. (Plt. SOF 6).
A. Summary Judgment Standard
Jones v. Mid-Century Ins. Co, 2009 WL 1872113 (June 30, 2009).
The Supreme Court examined the Limit of Liability language in the Mid-Century policy.
“Limit of Liability” (a) of the Mid-Century policy expressly states that “the most it will pay” is the lesser of the $100,000 per person policy limit or the difference between the damages and the payments already made. A reasonable construction of this language is that the insurer will pay the full policy limits of $100,000 per person if that is the lesser of the two damage amounts listed. This is also what “Limit of Liability” (b) states, for it says that the insurer “will pay up to the limits of liability shown in the schedule” and on the declarations page, which the policy specifically recites is $100,000 per person.
In the Shelter policy the “insuring agreement” promises Shelter “will pay the uncompensated damages, subject to the limit of our liability stated in this coverage.” (Plt. SOF 10). The amount stated in this coverage is on the declaration page, which promises $100,000 in underinsurance coverage. (Plt. SOF 7). Though the words are not identical between Shelter and Mid-Century, both insurance companies promised to pay the $100,000 off the declaration page.
In three places, Shelter promises to pay $100,000 in underinsured coverage. In one place, Shelter takes away that promise. Such a result is prohibited under Jones v. Mid-Century Ins. Co, 2009 WL 1872113 (June 30, 2009). As such, Plaintiff respectfully requests that this Court grant her Motion for Partial Summary Judgment on Setoff of Underinsurance Coverage.
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
Copies of the foregoing were mailed this 23rd day of July, 2009, to:
Edward F. Ford
David R. Frye
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