Baker v. DePew

BENTON, Judge,

concurring in part and dissenting in part.

I concur in the thorough analysis that the policy language excludes coverage. However, because the Motor Vehicle Financial Responsibility Law1 overrides the policy (to the extent of $25,000 for bodily injury to the one person in this one accident), I respectfully dissent from the last part of the principal opinion.

This Court has clearly held that the effect and intent óf a severability clause is to treat each insured as having a separate policy. Shelter Mutual Insurance Co. v. Brooks, 693 S.W.2d 810, 812 (Mo. banc 1985). Most importantly, in the Shelter Mutual ease itself, this Court expressly limited and restricted the case relied on by the principal opinion— Simpson v. American Automobile Ins. Co., 327 S.W.2d 519 (Mo.App.1959). Shelter Mutual Insurance Co., 693 S.W.2d at 811. Simpson is thus not “strong authority” in *325Missouri2. Shelter Mutual preempts the Simpson rationale from affecting any case where there is a severability clause. Id. Because severability clauses now appear in standard auto policies,3 Simpson is legally irrelevant in most cases, and in this case in particular.

By this Court’s clear holding, DePew — for all legal purposes — had a separate policy. The exception to the Motor Vehicle Financial Responsibility Law for liability to “an employee of the insured while engaged in the employment ... of the insured_”4 does not apply to this case because plaintiff Baker is not an employee of DePew. The principal opinion demonstrates this beyond dispute in the first part of the opinion.

The principal opinion shifts its view in the last part of the opinion, apparently because of “sanctity of contract” and “the agreement between Aetna and Holloway.” In fact, it is that very agreement which contains the sev-erability clause, which by Missouri law gives DePew a separate policy. As for sanctity of contract, Aetna and Holloway have complete freedom beyond the minimal coverage of $25,000 liability to the one person in this one accident. § 303.190.7; Halpin v. American Family Mutual Insurance Co. 823 S.W.2d 479 (Mo. banc 1992).

DePew has his own policy. DePew is an operator, “a person who is in actual physical control of a motor vehicle.” § 303.020(8) RSMo Supp. 1992. Depew’s separate policy is an “operator’s policy.” § 303.190.3. The statute defines the required “motor vehicle liability policy” as either “an owner’s or an operator’s policy.” °§ 303.190.3. The statute thus anticipates policies with severability clauses that cover the liability of the operator. To put the issue in technical terms, the phrase “such motor vehicle liability policy” at the beginning of § 303.190.5 refers to either “an owner’s or an operator’s policy.” See § 303.190.1. The statutory exception for liability to an employee of an insured — § 303.-190.5 — thus is determined in this case by the operator’s relation to the plaintiff. Shelter Mutual thus provides the proper background for the statute.

The Motor Vehicle Financial Responsibility Law is a compulsory insurance law. Hal-pin, 823 S.W.2d at 481. The statute has the clear purpose that all operators and owners be insured. § 303.025.1. Redundant requirements of both operators and owners permeate the statute, to make sure the person behind the wheel is covered. See, e.g., §§ 303.030A; 303.0M; 303.0U; 303.070.- To accomplish this purpose, this Court has invalidated exclusions within the statutory míni-mums, for the benefit not only of other drivers but also of occupants. Halpin, 823 S.W.2d at 482. This Court should do no less in this case.

. Chapter 303 RSMo 1986 & RSMo Supp. 1992. All statutory citations are to RSMo 1986, unless otherwise specified.

.Simpson was questionable authority from the outset because: (1) it conceded that other jurisdictions had held that even without severability clauses, auto policies covering owners and operators provided separate coverage to each; and (2) it rejected this common sense approach on the dubious rationale that the word "and” has an immutable plain meaning, and cannot ever mean "or.” (No doubt, "and” can mean "or” in the proper context, such as the Fourth Amendment where suppression does not require an illegal "search and seizure.")

. Kelly v. State Automobile Insurance Association, 288 F.2d 734, 735 (6th Cir.1961).

. § 303.190.5.