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Jenkad Enterprises3/21/2000
Appeal From: Circuit Court of St. Louis County, Hon. Kenneth M. Romines
Opinion Vote: REVERSED AND REMANDED. Teitelman, P.J., and Mooney, J., concur.
Opinion:
Transportation Insurance Co. ("Transportation") appeals from summary judgment entered in favor of Jenkad Enterprises, Inc. ("Jenkad"). The issue on appeal is whether the insurance contract between the parties afforded hired and non-owned automobile ("HNOA") coverage between August 1, 1994 and August 1, 1995, even though the written policy in effect did not provide such coverage. We find the contract did not include such coverage. We therefore reverse and remand with instructions to enter judgment in favor of Transportation.
Jenkad manufactured pneumatic tools from its incorporation in May, 1990, until its administrative dissolution in August, 1995. Between 1990 and 1994, Transportation provided insurance coverage for Jenkad in the form of a "Manufacturer's Package," which included general liability, workers' compensation, products liability, and fire and extended coverage insurance. The package did not include HNOA insurance.
In late summer of 1994, Jenkad's comptroller, Daniel Fetsch, met with David Wilson, an authorized agent of Transportation, to discuss the renewal of Jenkad's policy for the period of August 1, 1994 to August 1, 1995. At this meeting, Wilson recommended that Jenkad purchase HNOA insurance; Fetsch agreed to do so, and Wilson stated that Jenkad was "bound" for HNOA coverage as of August 1, 1994. Although Wilson specifically noted on his written renewal proposal that HNOA coverage should be added to Jenkad's policy, when he requested Jenkad's policy renewal from Transportation, he failed to request the addition of HNOA insurance. Consequently, the policy subsequently issued by Transportation did not include such coverage. Neither Fetsch nor anyone else at Jenkad read the policy and were therefore unaware of the omission.
On November 1, 1994, Gary Mills, an employee of Jenkad, was involved in an automobile collision with a vehicle occupied by Rosemary and Ronald Post. Mills was operating his personal vehicle within the scope of his employment. The Posts were injured and thereafter filed a negligence action against Mills and Jenkad. Jenkad tendered the defense of both suits to Transportation, but Transportation denied coverage and refused to provide a defense on the ground that Jenkad's policy did not afford coverage for hired and non-owned automobiles. Jenkad ultimately filed a four-count Second Amended Petition against Transportation, seeking: (1) reformation of the written policy to include HNOA coverage; (2) and (3) damages for breach of the duty to defend Jenkad against the Post lawsuits under a reformed policy; and, in the alternative, (4) a declaratory judgment that Transportation was obligated to provide HNOA coverage pursuant to the Fetsch-Wilson oral contract. Both parties moved for summary judgment. The trial court granted Jenkad's motion and entered summary judgment in its favor; it denied Transportation's motion. This appeal follows.
Summary judgment is appropriate only where there is no genuine issue as to the material facts and the movant is entitled to judgment as a matter of law. Rule 74.04(c)(3) (1999). As the parties are in agreement as to the material facts, we need only determine whether Jenkad was entitled to judgment as a matter of law, that is, whether the insurance contract between the parties afforded HNOA coverage. As our standard of review is de novo, we give no deference to the trial court's ruling. See ITT Commericial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993).
At the
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