Submitted: Sept. 26, 2013.
Rehearing and Rehearing En Banc Denied Feb. 19, 2014.
Edward D. Robertson, Jr., argued, Jefferson City, MO (James M. Dowd, Patrick Robert Dowd, Saint Louis, MO., Anthony L. DeWitt, on the brief), for appellant.
Thomas Michael Ward, argued, Saint Louis, MO (Michael Maguire, on the brief), for appellee.
Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Kelly Jordan appeals the district court's grant of summary judgment in favor of Safeco Insurance Company of Illinois. Jordan sued Safeco seeking to " stack" the underinsured motorist coverage from various policies she and her husband, Robert Jordan, had taken out with Safeco for their five vehicles. The district court determined that the Missouri Supreme Court's decision in Ritchie v. Allied Property & Casualty Insurance Co., 307 S.W.3d 132 (Mo.2009), which permitted the stacking of underinsured motorist coverage, was limited to the special situation where the insured is occupying a vehicle the insured does not own. We disagree with the district court's interpretation of Ritchie's holding, and therefore we reverse the grant of summary judgment and remand this matter for entry of partial summary judgment in favor of Jordan and for further consideration consistent with this holding.
In 2009, Kelly Jordan was walking across the street at an intersection when she was struck by a car. Jordan suffered injuries and lost wages. The driver's insurance company paid its limit of $100,000 to Jordan and her husband. At the time of the accident, Jordan was a named insured on three Safeco Insurance Company policies covering five different vehicles she owned with her husband. The policies provided for $100,000 in underinsured motorist coverage (UIM) for each of the five vehicles. Jordan sought payment of $500,000 from Safeco under a claim that the driver who struck her was underinsured. Safeco paid Jordan $100,000 as UIM coverage but refused additional payments, claiming the policies contained language that prohibited the " stacking," or combining, of the policies' UIM coverage.
The three policies contain identical language that forms the basis of the disagreement between the parties. The clause of the policies most relevant to this case is paragraph two of the " Underinsured Motorist Coverage: Other Insurance" section (hereinafter, the " Other Insurance clause" ). It provides:
2. Any underinsured motorist insurance we provide with respect to a vehicle you do not own shall be excess over any collectible underinsured motorist insurance.
Jordan brought suit in state court seeking payment of $500,000 in UIM coverage, claiming that she should be able to recover $100,000 in UIM coverage for each of the five vehicles she insured with Safeco. Jordan also sought the award of state statutory penalties and attorneys' fees for Safeco's alleged unreasonable refusal to pay under the described policies. Safeco removed the action to federal court on the basis of diversity jurisdiction. Safeco moved for summary judgment, arguing the UIM coverage could not be stacked and therefore Jordan was not entitled to additional payments nor did Safeco unreasonably refuse to pay under the policies. Jordan moved for partial summary judgment, seeking a declaration that the UIM coverages under the relevant policies were subject to stacking. The district court denied Jordan's motion for partial summary judgment, granted Safeco's motion for summary judgment, and dismissed Jordan's claims, holding that the Ritchie decision, which permitted the stacking of UIM coverage under a similar Other Insurance clause, only applies to situations where the insured is occupying a non-owned vehicle and thus the Other Insurance clause in the Safeco ...