When Raymond Lanigan’s sister died in the Chatham Hotel, Lanigan sued the hotel’s owners, Phillip Snowden and James Watson, for interfering with the right of sepulchre and obtained a judgment for $20,000. Lani-gan sought to recover his judgment against Snowden’s and Watson’s insurer, Hanover Insurance Company.
Hanover filed a motion for summary judgment asserting that Lanigan’s damages were not covered by any of the terms of the insurance policy. The circuit court agreed and sustained Hanover’s motion for summary judgment. Lanigan appeals, asserting that his damages were recoverable under either the property damаge provision or the bodily injuiy provision of the policy. We conclude that the bodily injury provision is ambiguous; therefore, we reverse and remаnd for further proceedings.
Lanigan alleged in his petition against Snowden and Watson that his sister, Ella Mae Laws, was a guest or resident in the Chatham Hotеl when she died. He asserted that Snowden and Watson carelessly and negligently interfered with the interment process by not living up to their agreement tо watch over his sister’s welfare. Lanigan contended that Snowden and Watson knew, or should have known, that his sister was sick, dead or otherwise incapacitated, but they carelessly delayed checking on her condition and did not discover her death in time to allow a ceremonious аnd decent burial. He alleged that as a direct result of Snow-den’s and Watson’s negligence, he suffered emotional distress and anguish.
Snowden and Watson notified Hanover of Lanigan’s claim. Hanover denied coverage on the ground that Lanigan’s claim did not fall within the insurance policy’s definitions of bodily injury, personal injury, advertising *332 injury or property damage. The circuit court agreed with Hanover’s contention that “bodily injury” and “property damage” did not include damages for emotional distress or anguish. Lanigan appeals.
Lanigan contends that the circuit court erred in granting Hanover’s motion for summary judgment because the damages he sought were covered by the insurance policy as property damage. We disagree.
Missouri courts have abandoned the “early fiction that the cause of action [for interference with the right of sepulchre] restеd on the infringement of a quasi property right of the nearest kin to the body.”
Galvin v. McGilley Memorial Chapels,
Lanigan alternatively contends that the circuit court erred in granting Hanover’s motion for summary judgment because the damages he sought were recoverable under the insurance policy’s definition of “bodily injury.” We conclude that the policy’s definition of “bodily injury” is ambiguous; therefore, the circuit court erred in granting summary judgment on this ground.
When construing an insurance contract, the courts must give the contract’s language its plain meaning, and, if the language is unambiguous, the courts must enforce the contract as written.
Hempen v. State Farm Mutual Automobile Insurance Company,
The insurance policy provided that Hanovеr would “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury ... to which this insurance appliеs.” The policy defined “bodily injury’ as “bodily injury, sickness or disease sustained by a person including death resulting from any of these at any time.”
Hanover contеnds that bodily injury requires physical harm to the person claiming injury and that emotional distress and mental anguish are not physical harm, but mental. While the pоlicys definition is subject to that construction, it is also subject to the opposite construction. In other words, the phrase, “bodily injury, sickness or disease,” can be construed in a way that the adjective “bodily’ modifies all three nouns, or it can be construed with equal plausibility that “bodily” modifies only injury. S. GREENBAUM AND R. QUIRK, A STUDENT’S GRAMMAR OF THE ENGLISH LANGUAGE, §§ 13.24, 17.37 (1990). Hаd Hanover intended “bodily’ to modify all three nouns, it could have articulated this with a phrase such as “injuries to, sicknesses of, or diseases of the bоdy.”
This is a classic ambiguity. “An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.”
Peters,
The ambiguity [in the policy] is heightened, not eliminated by the policy’s explicit definition of “bodily injury” as “bodily injury, sickness or disease.” The categories “sickness” and “disease” in the insurer’s definition not only enlarge the term “bodily injury” but also, to the average reader, may include mental as weE as physical sickness and disease.... We decline [the insurance company’s] invitation to rewrite the contract to add “bodily sickness” and “bodily disease,” and a requirement of pri- or physical contact for compensable mental injury. [The insurance company] could itself have specified such limitations in drafting its policy, but it did not do so.
Lavanant v. General Accident Insurance Company of America,
Hanover relies on
Ward v. American Family Insurance Company,
In
Ward,
the policy defined “bodily injury” as “bodily injury to or sickness, disease or death of any person.”
These eases are not persuasive. Loss of consortium, at issue in Ward and Fildes, does not equate to bodily injury, sickness or disease unlеss the policy defines bodily injury to include loss of services. The Ward and Fildes courts did not need to analyze the definitions any further; therefore, to the extent that they concluded that the definitions required physical harm to recover damages for sickness or disease, their conclusions were merе dicta.
Because of the Hanover policy’s ambiguity, the court’s construction of the policy should favor Lanigan; therefore, we conclude that the circuit court erred in granting Hanover’s motion for summary judgment. We reverse the circuit court’s summary judgment and remand to the circuit court for furthеr proceedings.
Notes
. In an 1887 decision, the Supreme Court of the United States reached a different conclusion in construing an insurance poliсy containing the phrase, "bodily infirmities or disease.” The court concluded, "[T]he word 'bodily' grammatically applies to 'disease' as well as tо ‘infirmities[.]’ ”
Accident Ins. Co. of N. Am.
v.
Crandal,