Niswonger v. Farm Bureau Town & Country Insurance Co. of Missouri

KATHIANNE KNAUP CRANE, Judge.

I respectfully dissent. The Supreme Court as well as the Western District has held that the language contained in Condition 5 of this policy is not ambiguous and precludes stacking of coverage under several policies issued to the insured by the same insurer. Noll v. Shelter Ins. Companies, 774 S.W.2d 147, 152 (Mo. banc 1989); Farm Bureau Town & Country v. Hughes, 629 S.W.2d 595, 598 (Mo.App.1982). Further, this policy does not intertwine “uninsured” and “underinsured” coverage and does not create an ambiguity in that respect. The policy clearly defines the term “underinsured” as separate and apart from the term “uninsured.” Rodriguez v. General Accident Ins. Co., 808 S.W.2d 379, 383-84 (Mo. banc 1991); Lang v. Nation-unde Mut. Fire Ins. Co., 970 S.W.2d 828, 834 (Mo.App.1998). The UIM coverage is contained in an endorsement separate from the uninsured motorist section of the policy. See Lang, 970 S.W.2d at 834.

The last sentence, or “excess” clause, of the “Other Insurance” provision of the Original UIM Endorsement does not create an ambiguity which invalidates or su-percedes Condition 5’s clear prohibition against stacking. Hughes, 629 S.W.2d at 598. The Other Insurance provision of the Original UIM Endorsement limits Farm Bureau’s UIM liability in proportion to other insurance applicable to a loss except in the situation in which the insured is occupying a non-owned vehicle, in which case Farm Bureau’s UIM coverage is excess to other UIM insurance. See 3 Wm-*322ISS, UNINSURED AND UNDERINSURED MOTORIST Coverage Section 40.1, at 239. Because Condition 5 prohibits stacking of coverage under other policies issued to plaintiffs by Farm Bureau, the “excess” clause of the Other Insurance provision cannot extend to those policies. As a result, “the excess insurance provision applies to insurance provided by a third party on an automobile not owned by the injured person, and not to policies in the same company, as specified by Condition 5.” Hughes, 629 S.W.2d at 598.

I would reverse that part of the judgment allowing stacking.