Plaintiffs, Robert W. Krombach, Mary Krombach, Joseph R. Fox, and Susan Fox, appeal from a second 1 order granting summary judgment in favor of defendant Mayflower Insurance Company, Ltd. (Mayflower) on the plaintiffs’ claims filed to enforce the “underinsured” motorist provision of an automobile liability insurance policy. Following opinion by the Missouri Court of Appeals, this Court granted transfer. Rule 83.03. The judgment is reversed and remanded.
I.
In August of 1986, Robert and his wife, Mary Krombach, were the named insureds in an automobile liability insurance policy issued by Mayflower. The policy insured two of the Krombachs’ vehicles, one of which was a 1984 Honda. On August 15,
Claims were then filed by the Foxes and the Krombachs against Mayflower in the Circuit Court of St. Louis County. The cases were consolidated. Following the first round of motions for summary judgment, the trial court entered judgment in favor of Mayflower. While this Court was not provided with a full record, apparently one basis for granting the first summary judgment was the trial court’s determination that the Mayflower policy limited “underinsured” coverage to situations where the tortfeasor had liability coverage less than the Mayflower policy’s “uninsured” motor’
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coverage. The judgment was reversed on appeal because the policy was found to be ambiguous and, as construed, the policy was held to provide “underinsured” motorist coverage for the “total damages the Krombachs and Foxes sustained.”
Krombach I,
On remand, a second round of motions for summary judgment were filed. Mayflower asserted that it was entitled to summary judgment because 1) the plaintiffs were not entitled to stack the coverage of the two policies, and 2) the amounts received from the tortfeasor were required to be set off against the amount that was payable by Mayflower under the underin-sured motorist provision of the policy. The trial court noted that the plaintiffs had received more than $100,000 and “any amounts payable by [Mayflower] are to be reduced by all sums paid by or on behalf of the alleged uninsured (underinsured) tort-feasor.” Summary judgment was entered denying plaintiffs any relief.
II.
On appeal, the single issue presented by plaintiffs is the question of how the setoff for the recovery against Bolin’s insurance should be calculated. To resolve that question involves a construction of the insurance contract. Where insurance policies are unambiguous, the rules of construction are inapplicable, and absent a public policy to the contrary, the policy will be enforced as written.
American Family Mutual Ins. Co. v. Ward,
An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of words used in the contract.
Id.
Language is ambiguous if it is reasonably open to different constructions and the language used will be viewed in the meaning that would ordinarily be understood by the layman who bought and paid for the policy.
Robin v. Blue Cross Hospital Services, Inc.,
The critical portions of Mayflower policy state as follows:
PART 6: UNINSURED (AND UNDER-INSURED) MOTORIST
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B. UNINSURED MOTORIST COVERAGE
We will pay damages which a Covered Person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
(a) sustained by
1. covered person; and
(b) caused by an accident.
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D. MAXIMUM PAYMENTS UNDER YOUR UNINSURED MOTORIST COVERAGE.
The most we will pay for all claims from a single accident is the Limit of Coverage shown on the Coverage Data Page.
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Any amounts payable under Part 6 shall be reduced by all sums:
(a) paid because of bodily injury by or on behalf of someone who may be liable.
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The “Coverage Data Page” indicates that the limit of coverage for uninsured (and underinsured) motorist coverage is $50,000 for each accident. If “amounts payable under Part 6” means “damages which a Covered Person is legally entitled to recover” from the tortfeasor, as is stated in subpart B of Part 6, then plaintiffs are entitled to recover all damages in excess of the amount paid by Bolin’s insurer up to the limits of the coverage. If “amounts payable under Part 6” means only damages up to the maximum amount of underinsured motorist coverage, as stated in subpart D of Part 6, plaintiffs are not entitled to additional sums under the policy because Bolin’s insurer had already paid plaintiffs an amount equal to or in excess of the underinsured motorist coverage.
The problem with the policy provisions quoted above is that both 1) the tort-feasor’s total liability and 2) the underin-sured motorist coverage limits are referred to as “amounts payable” in the text of Part 6. However, the reduction clause does not say which “amount payable” is intended. Had Mayflower intended to reduce the coverage limits by any amount paid by a tort-feasor or his insurer, Mayflower could have so stated in plain and unequivocal terms. For example, see the language of the policy in
Rodriguez
where the policy plainly stated “[T]he limit of liability [previously defined] shall be reduced by all sums paid by or on behalf of” the tortfeasor.
III.
The issue of stacking has been addressed by the parties but was not decided by the trial court. To avoid the possibility of a third appeal prior to final judgment in this case, we undertake a determination of the validity of the anti-stacking provisions of
The relevant anti-stacking provisions of this policy are found in Part 6D, which states,
The most we will pay for all claims from a single accident is the Limit of Coverage for Uninsured Motorist Coverage shown on the Coverage Data Page. This is the most that we will pay regardless of the number of:
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(c) Vehicles or premiums shown on the Coverage Data Page.
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The provisions in an insurance policy limiting the insured to recovery for only one of the uninsured motorist coverages provided for each of two cars covered by a single policy are prohibited by the public policy expressed in § 379.203, RSMo 1986.
Cameron Mut. Ins. Co. v. Madden,
The Foxes stand on different ground. In
Hines v. Government Employees Ins. Co.,
The Cameron Mutual opinion perceived that a decision against stacking would deny the named insured the benefit of some of the coverage which was required and which had to be paid for. It does not necessarily follow that an injured occupant who is not the owner must have recourse to all the uninsured motorist coverage the owner of the car in which he or she is present was required to pay for. The law does not even require that policies provide any uninsured motorist coverage for occupants.
Hines,
Thus, the passengers were not permitted to stack coverages. Applying that principle here, it is apparent that the decedent, Casey Fox, was in the same position as were the passengers in the Hines case. Accordingly, the Foxes are not entitled to stack the coverages.
IV.
Assuming, without deciding, that each of the plaintiffs can establish damages in excess of the Krombachs’ underinsured motorist coverage, a question may arise as to
Accordingly, the summary judgment entered by the trial court is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.
Notes
. The first order granting summary judgment was reversed.
Krombach v. Mayflower Ins. Co., Inc.,