Opinion
No. ED 63546
December 14, 1993 Motion for Rehearing and/or Transfer to Supreme Court Denied January 27, 1994 Sustained and Cause Ordered Transferred March 22, 1994 Cause Subsequently Dismissed.
Appeal from the Circuit Court of Perry County, Hon. A. J. Seier, Judge.
Albert C. Lowes, Lowes Drusch, 2913 Independence, Cape Girardeau, MO, 63701, for Appellant.
Joe Perry Rice III, Richey, Rice, Spaeth, Heisserer and Summers, 160 S. Broadview, P.O. Box 1568, Cape Girardeau, MO, 63701, for Respondent.
Appellant, Perry County Mutual Insurance Company, appeals from a declaratory judgment entered by the Perry County Circuit Court in favor of respondents, Richard L. Martin, Paul P. Hitt and Bonnie Gay Hitt. The trial court found that under the homeowner's insurance policy issued by appellant to the respondent Martin, appellant should defend Martin in a lawsuit brought by the respondents Hitt and that appellant was otherwise obligated under the medical payments section of the policy to the respondents Hitt.
On appeal, appellant contends that the trial court erred in finding that Martin's car was in "dead storage" and that there was coverage under the policy because the policy excluded coverage for bodily injury arising out of the maintenance of any motor vehicle and the insured was maintaining the car at the time the accident occurred in that he and Paul Hitt were attempting to start the vehicle by pouring gasoline into the vehicle's carburetor. We reverse.
The trial court's findings of fact are not in dispute. Appellant issued a homeowner's policy, with a comprehensive personal liability endorsement, to Martin for the period from July 23, 1988 through July 23, 1990. Some six to eight months prior to June 1, 1990, Martin purchased a 1969 Roadrunner automobile which was not operable and had not been operable for at least six months prior to Martin's purchase. At the date of purchase, parts of the car including the motor, the clutch system, the linkage system, and the brakes needed extensive repair. Additionally, the interior was "shot," the car needed extensive body work and tires, there was no radio, and the windshield wipers, brake lights and interior lights did not work.
Martin towed the vehicle to his home and titled it in his name, but never insured or licensed it. Martin began working on the car when he had time and/or money, expending approximately $1200.00 in so doing. The car was on occasion moved by pulling it with another vehicle, with 20 feet being the greatest distance it was moved. Paul Hitt became interested in the vehicle upon seeing it outside Martin's residence, and for approximately one month the two negotiated the purchase of the vehicle. An attempt was made to start the vehicle to determine its value but the attempt failed. Prior to June 1, 1990, Martin installed a new distributor but the motor still would not start. On June 1, 1990, Hitt returned to Martin's to hear the motor before purchasing it. Before Hitt's arrival Martin put air in the tires and placed a battery in the car. Upon Hitt's arrival Martin attempted to start the motor by pouring gasoline in the carburetor while Hitt turned the ignition key. The motor ran for only a few seconds, but not a sufficient time for Hitt to make a value determination. Hitt and Martin switched positions with Hitt pouring gasoline in the carburetor and Martin working the ignition. An explosion occurred injuring Hitt. The automobile never attained operable status during its ownership by Martin, and was purchased by Hitt a month or two after the incident of June 1, 1990.
Pursuant to the occurrence on June 1, 1990, the Hitts filed a petition in the Circuit Court of Perry County alleging the negligence of Martin and seeking recovery against him for Paul Hitt's injuries and damages and for Bonnie Gay Hitt's loss of consortium of her husband. Subsequently, appellant filed a petition in the Circuit Court of Perry County, naming respondents as defendants, seeking a declaration of the respective rights of the parties, and seeking a specific declaration that, based on an exclusion in the policy, it had no duty to defend Martin in the suit by the Hitts, and that appellant had no duty or obligation to pay any bills incurred by reason of the incident on June 1, 1990. The trial court concluded that coverage was afforded by appellant under the liability and medical pay portions of the policy, and entered judgment in favor of respondents.
In a declaratory judgment action, we will sustain the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. American Family Mutual Insurance Company v. Bishop, 743 S.W.2d 590, 591 (Mo.App. 1988).
The policy section providing for exclusions from coverage states in pertinent part:
This coverage does not apply
(a) . . .
(b) . . .
(c) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) . . .
(2) any motor vehicle owned or operated by, or rented or loaned to any insured, but this subdivision (2) does not apply to bodily injury or property damage occurring on the insured premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the insured premises or kept in dead storage on the insured premises; . . .
(Emphasis original.)
On appeal, appellant essentially argues that, contrary to the trial court's conclusion, the incident in question was not caused while the vehicle was in "dead storage," and that in any event the question of whether the vehicle was in dead storage need not be reached because the injuries in question arose out of the "maintenance" of a motor vehicle owned by the insured which is specifically excluded from coverage under the policy.
The issues of when a motor vehicle is in dead storage and when it is undergoing maintenance within the meaning of a comprehensive liability insurance policy have apparently never been addressed by an appellate court of this state. Appellant and respondents have directed us to cases from other jurisdictions which address these issues under fact patterns varying in similarity to the present case.
Representative of the cases relied on by appellant is Broadway v. Great American Ins. Co., 465 So.2d 1124 (Ala. 1985). In Broadway, the dispute was whether a homeowner's insurance policy provided coverage for personal injuries where, three months after a car was purchased, it broke down and was towed home where the owner determined that it needed extensive repairs amounting to a complete engine overhaul. The car remained parked in a shed for approximately one month, whereafter the owner removed the engine and proceeded to rebuild it. After approximately two months, and after the engine was rebuilt, remounted and reconnected, the owner and a friend attempted to start the engine. The owner turned the ignition while his friend poured gasoline into the carburetor. At that point the engine backfired, igniting the cup of gasoline being poured into the carburetor, and causing it to be thrown toward the front of the car and burning the bystander Broadway. Broadway sued, obtaining a default judgment against the vehicle owner and the friend. Broadway then brought suit directly against the owner's insurance carrier who had denied coverage based on an exclusion in the policy which provided that coverage for personal liability and medical payments to others did not apply to bodily injury or property damage "arising out of the ownership, maintenance, use, loading or unloading of . . . a motor vehicle owned or operated by or rented or loaned by any insured. . . ." The policy also defined "motor vehicle" as:
[A] motorized land vehicle designed for travel on public roads or subject to motor vehicle registration. A motorized land vehicle in dead storage on an insured location is not a motor vehicle.
Broadway asserted that even though maintenance was being performed on the vehicle at the time of his injuries, because the vehicle had been inside the shed for over three months without being driven, it was in "dead storage" on the insured location. The Alabama Supreme Court stated:
As this Court perceives the terms "dead storage" and "maintenance of a motor vehicle," they are mutually exclusive. In other words, a motor vehicle in dead storage is one which is not undergoing maintenance, while a vehicle which is undergoing maintenance cannot be in dead storage.
Broadway, at 1127[1]. In upholding the trial court's denial of coverage, the court found that at the time the injuries occurred, the vehicle was undergoing maintenance within the meaning of the policy exclusion, and that the injuries were a direct and proximate result of that maintenance. Id., at 1129[3].
Cases reaching similar results under similar facts include Holliman v. MFA Mut. Ins. Co., 711 S.W.2d 159 (Ark. 1986); Volkswagen Ins. Co. v. Dung Ba Nguyen, 405 So.2d 190 (Fla.App. 1981); Hollis v. St. Paul Fire Marine Ins. Co., 416 S.E.2d 827 (Ga.App. 1992); and North Star Mut. Ins. Co. v. Carlson, 442 N.W.2d 848 (Minn.App. 1989). See also, Prudential Property Cas. v. Allaire, 516 N.E.2d 179 (Mass.App.Ct. 1987).
Representative of the cases which have found the exclusion from coverage not to apply under similar circumstances is Allstate Ins. Co. v. Geiwitz, 587 A.2d 1185 (Md.App. 1991), where an insured bought a "skeleton" car and proceeded to restore it for show purposes. The car was improperly tagged, ostensibly so as to be entered in a street car class competition. The owner stored the car and worked on it from time to time. While draining the gasoline from the car, the gas flowed toward a kerosene heater, causing a fire and destroying the car and extensively damaging the property on which it was stored. Geiwitz was insured under a homeowner's policy which excluded coverage for "bodily injury or property damage arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motorized land vehicle or trailer." However, the exclusion did not apply to ". . . a motorized land vehicle in dead storage or used exclusively on an insured premises. . . ." The court found that the owner did not use the vehicle for transportation purposes, and that under the circumstances he reasonably could have believed that the homeowner's policy would cover any bodily injury or property damage from a vehicle that was kept as a collectible item rather than a means of transportation. Geiwitz, at 1189. The court held that the car, though operable and occasionally moved, was in "dead storage" within the meaning of that term as the parties used it in the homeowner's policy. Id. Cases generally in accord with this result include Nationwide Mutual Fire Insurance Co. v. Allen, 314 S.E.2d 552 (N.C.App. 1984); Beale v. State Farm Fire and Casualty Co., No. 67 (Tenn.App. Apr. 8, 1985); and Sharpe v. State Farm Fire Casualty Co., 558 F. Supp. 10 (E.D. Tenn. 1982).
The interpretation of the meaning of an insurance policy is a question of law. Krombach v. Mayflower Ins. Co., 785 S.W.2d 728, 731 (Mo.App. 1990). The function of this court is to interpret and enforce an insurance policy as written, not to rewrite the contract. Id. In construing an insurance policy, the words must be given their plain meaning, consistent with the reasonable expectations, objectives, and intent of the parties. Id. Here, the policy does not contain definitions for the terms "dead storage" or "maintenance." We therefore attach to these words their plain and ordinary meaning. We have found no dictionary definition of the term "dead storage." However, Webster's Third New International Dictionary defines "dead" as ". . . out of action or out of use. . . ." "Storage" is defined as ". . . the act of storing or state of being stored . . . ," while "store" is defined as "to leave or deposit in a store, warehouse, or other place for keeping, preservation, or disposal. . . ." "Maintenance" is defined as ". . . the labor of keeping something . . . in a state of repair or efficiency . . ." and ". . . the action of preserving or supporting (as a condition or institution). . . ."
We find these plain and ordinary definitions to be consistent with the reasonable expectations, objectives and intent of the parties. We also find that under the terms of the policy here, a motorized vehicle undergoing maintenance cannot at the same time be in dead storage. That is, the terms are mutually exclusive. The trial court, in its conclusions of law, focused on the term "dead storage," noting that it was not defined by the policy. The trial court found the term to be ambiguous, that is to say the term will have different meanings in different situations, and in so finding was mindful that ambiguities are to be construed in favor of the insured. See, Krombach, at 731[2-5]. The trial court also distinguished Broadway, and other representative cases cited by appellant, on the basis that in each of those cases the automobile had previously been operable, driven and registered while owned by the insured person. The trial court, apparently since it was focusing only on whether the car was in dead storage, did not address the question of whether the car was undergoing maintenance at the time of Hitt's injuries.
Respondents argue that the pouring of gas into the carburetor was not "maintenance" because that term has been defined as the ". . . labor of keeping something in a state of repair or efficiency," Volkswagen Ins. Co. v. Dung Ba Nguyen, at 195, and the vehicle here, during the time it was owned by Martin, had never attained an operable condition. Therefore, respondents argue, the vehicle could not, by the common understanding of the word, be "maintained."
Here, "maintenance," as that term is used in the policy, does not require that the vehicle be operable during the time Martin owned or possessed it. Martin, over the course of approximately eight months, and at the time of the accident, was attempting to restore the vehicle to its former condition as an operable motor vehicle. Respondents do not suggest that the 1969 Roadrunner was never an operable motor vehicle, they assert only that it was not operable during the period it was owned by Martin.
Respondents, as did the trial court, attempt to distinguish the cases which hold that an attempt to start a vehicle by cranking the engine while pouring gasoline in the carburetor, as was done here, is "maintenance." The distinction drawn is essentially on the basis of how long the vehicles in those cases were inoperable, whether they had resumed operable status, and the amount of work or repair required to render the vehicles again operable.
We find respondents' attempt to distinguish these cases unavailing. We find that the amount of time that a vehicle has sat inoperable, the amount of work or repair needed to make the vehicle operable again, and whether the vehicle had ultimately resumed an operable status have little bearing on whether the pouring of gasoline into the carburetor in an attempt to start the vehicle is an act of maintenance. The fact is that respondents were attempting to get the vehicle's engine to run, as a motor vehicle engine, when Paul Hitt's injuries occurred. We find this to be "maintenance" as the term is used in the policy's exclusion. Accord, Broadway v. Great American Ins. Co., 465 So.2d 1124, 1127 (Ala. 1985); Holliman v. MFA Mutual Ins. Co., 711 S.W.2d 159, 161 (Ark. 1986); Hollis v. St. Paul Fire Marine Ins. Co., 416 S.E.2d 827 (Ga.App. 1992); Prudential Property and Casualty Insurance Co. v. Allaire, 516 N.E.2d 179, 181 (Mass.App.Ct. 1987); and North Star Mutual Ins. Co. v. Carlson, 442 N.W.2d 848, 854 (Minn.App. 1989). Here, Hitt and Martin were attempting to start the vehicle, and thus were attempting to bring the vehicle into action as a motor vehicle. As was stated in North Star, at 855[5]:
We believe this determination appropriately highlights the distinction between homeowners and automobile insurance policies. Motor vehicles are inherently dangerous instrumentalities and homeowners policies generally do not contemplate coverage of injuries when the vehicle is maintained or used in one of its inherently dangerous capacities. One inherently dangerous aspect is a motor vehicle's use of highly volatile materials (gasoline) around ignition sources (spark plugs). This was precisely the cause of the accident in this case. Accidents caused by maintenance or use of a vehicle in such an inherently dangerous capacity are not appropriately covered in a homeowners policy, but rather in an automobile policy which requires consequently higher premiums for the increased risk of injury.
See also, Bowen v. Hanover Insurance Co., 599 A.2d 1150 (Me. 1991) (Fact that vehicle was unregistered, disabled and not in use did not change the fact that the accident happened because the object was a motor vehicle and for no other reason. Dead storage means that the vehicle is placed in some condition where it has no potential to cause harm because of its attributes as a vehicle.)
Having found that maintenance was being performed on the 1969 Roadrunner at the time of Paul Hitt's injuries, it reasonably follows that the injuries and damages for which the Hitts now seek recovery were a direct and proximate result of that maintenance within the meaning of the exclusion contained in the policy issued to Martin by appellant. Thus, the vehicle was not in dead storage and coverage is not afforded by the policy.
The trial court, in concluding that the 1969 Roadrunner was in dead storage and that the injuries to Hitt were covered under Martin's homeowner's policy, erroneously declared and applied the law.
Judgment reversed.
James A. Pudlowski, Judge — concurs.
Gary M. Gaertner, Chief Judge — concurs.