Western Casualty & Surety Co. v. D & J Enterprises, Inc.

DONNELLY, Judge.

Appellant, Western Casualty and Surety Company, filed a suit for declaratory judgment to determine whether a loss sustained by its insured, D & J Enterprises, was covered by one of its policies. The trial court found that the loss was covered by the policy. The Western District of the Court of Appeals reversed and remanded with direction to enter judgment in favor of Western Casualty. The cause was transferred here by order of this Court and is decided here “the same as on original appeal.” Mo. Const, art. V, § 10.

In December 1980, an employee of D & J was driving a truck owned by D & J and was pulling a leased trailer. D & J was being paid by Garney Company to haul a bulldozer leased by Garney from another company. During the haul, the driver drove under an overpass that had a clearance that was insufficient to allow the bulldozer to go through. The bulldozer struck the overpass, causing three log chains to break and a part of the bulldozer to drop, thereby damaging the trailer. Also, several bolts that were used to attach the fifth wheel on the tractor were sheared off.

The issue is whether such circumstances constitute a “collision” under the policy. An attachment to the policy states:

THIS POLICY INSURES:
The insured’s Liability for Loss of or Damage to Property Insured Hereunder Directly Caused by:
‡ ⅜ ⅜ 3|C * ‡
(b) collision, i.e., accidental collision of the vehicle with any other vehicle or object (the striking of curbing or any portion of the roadbed or the striking of rails or ties of street, steam or electric railroads, or contact with any stationary object in backing for loading or unloading purposes, or the coming together of trucks and trailers during coupling or uncoupling, shall not be deemed a collision);

Appellant contends that the unambiguous language of the policy shows that the loss was not covered because the damage did not result from the vehicle colliding with the overpass, but rather resulted from the cargo colliding with the overpass. Respondent argues that the language is ambiguous and that an initial impact with the cargo is sufficient to come within the policy definition of “collision.”

If ambiguous, “an insurance contract reasonably susceptible of any interpretation favorable to the insured will be so construed * * *.” Bellamy v. Pacific Mutual Life Insurance Company, 651 S.W.2d 490, 495 (Mo. banc 1983). On the other hand, “[i]f we say that language becomes ambiguous because some one concludes it is ambiguous or some other concludes it is ambiguous, we save ourselves much labor, but we have applied a test that scarcely will stand examination. Unless we can point out in language we are considering wherein it has a double meaning, we are not justified in saying it is ambiguous. * * *.” Orr v. Mutual Life Ins. Co. of New York, 57 F.2d 901, 903 (W.D.Mo.1932).

In our view, the language “collision of the vehicle with any other vehicle or object” does not have a double meaning and *946we are not justified in saying it is ambiguous. See Wolverine Insurance Co. v. Jack Jordan, Inc., 213 Ga. 299, 99 S.E.2d 95 (1957); Birmingham Fire Ins. Co. of Pa. v. Newsom Truck Lines, 390 S.W.2d 537 (Tex.App.1965); and Trinity Universal Insurance Co. v. Robert P. Stapp, Inc., 278 Ala. 209, 177 So.2d 102 (1965).

The judgment is reversed and the cause is remanded with directions to enter judgment for Western Casualty and Surety Company.

BILLINGS, WELLIVER and ROBERTSON, JJ., concur. RENDLEN, J., concurs in result. BLACKMAR, J., dissents in separate opinion filed. HIGGINS, C.J., dissents and concurs in separate dissenting opinion of BLACKMAR, J.