*1 policy that insurers state’s discussed this “a for losses when obligated not

should the court’s trial judgment entered through intention- single insured is allowed affirmed. summary order by the risks covered to control the al acts insurance Apparently because the policy.” liqui- distinguish

contract does not between and direct unliquidated and losses

dated damages, appellants consequential

and ambigu- exclusionary language is the

claim interpreted in their and must be ous RUSTHOVEN, Jr., Appellant to allow their claim. (C5-84-1329), Respondent argu (CO-84-1433) Despite appellants’ creative ment, the insur we find unequivocal clear. and ance contract COMMERCIAL STANDARD damages seeking lost has claimed HAMC COMPANY, INSURANCE un payable sums profits represent which Respondent, agreement. Loss management der contract goodwill is also an element of National Mutual Insurance pay damages, meaning that (C5-84-1329), Company, Respondent contractual arises virtue (C0-84-1433). Appellant lan obligation. The insurance contract C5-84-1329, Nos. C0-84-1433. losses guage expressly excludes those losses. Appeals Court of of Minnesota. Feb. 1985. Duty to Defend May 1, 1985. Review Granted duty to Notwithstanding the absence of a indemnify, appellants contend that obligates respondent contract

surance In a sec-

defend them in HAMC’s action. captioned

tion of insurance contract (c) (a), (b),

“coverage,” subparagraphs and respon-

define conditions agrees pay for a “loss” caused

dent portion

appellants’ wrongful act. The last (c) duty to subparagraph describes the explicitly requiring

defend without appellants claim that

“loss.” appellants

duty to defend arises whenever wrongful act.

commit interpretation ignores

Appellants’ duty to opening of the clause on words (a), respects [subparagraphs]

defend: “As right (c), (b), shall have ” * * * The duty to defend suit parties’

emphasized indicates di duty to relates

intent that the defend obligation to indem

rectly respondent’s (b) (a), subparagraphs

nify as defined (c).

At the time of the Rusthoven was the named insured a issued by provided $25,000 Western which of unin- coverage sured motorist each on of three vehicles he morning owned. On the trial, stipulated $75,000.00 (the the amount of limits of its policy) against Judg- could be taken it. accordingly. ordered was subrogation claims a interest in this amount. against

Rusthoven’s action is both Com- mercial Standard and unin- paid $25,000.00, Rusthoven coverage limit of uninsured motorist on the Kallestad, Willmar, for John Andrew vehicle involved in the accident and con- Rusthoven, Jr. tends the uninsured motorist Smetak, Minneapolis, for Theodore J. the 66 uninvolved vehicles could not be Ins. Co. Appellants stacked. contend the Commer- Elliott, Cousineau, McGuire, D. Bruce conflicting cial Standard Anderson, Shaughnessy Minneapolis, for & permitting stacking endorsements on the Western Nat. Mut. Ins. Co. additional 66 vehicles leased to RETENO Carriers, Inc. Heard, considered and decided PAR- P.J., LESLIE, KER, and SEDGWICK and

JJ. ISSUE Did the trial court err in OPINION uninsured motorist could not be

LESLIE, Judge. stacked under the insurance by Commercial Standard to Rusthoven’s Rusthoven and Western National Mutual employer? (Western) Company appeal Insurance $25,000 judgment declaring a is the

maximum amount of uninsured motorist ANALYSIS coverage available to Rusthoven under re- The declaration sheet of the Commercial spondent Commercial Standard’s trucker’s columns, has four includ- policy. appeals were consolidated ing indicating coverages pro- column a order of this court. We affirm. policy.

vided One line in the cover- age specifies column uninsured motorists FACTS provided in as a 8, 1981, appellant On March policy. in a Also on that line but across injured driving Rusthoven was while designated different column “LIMIT: THE long under a term lease to truck RETENO MOST WE WILL PAY FOR ANY ONE Carriers, Incorporated. Respondent Com- ACCIDENT OR LOSS” is the notation Company mercial Standard “See Endorsement CA 2107.” Endorse- vehicles sured RETENO Carriers’ 67 ment CA2107 is attached policy provided a trucker’s bod- $15,000.00 single premium $25,000 $50,000 Carriers, ily injury per person and gross receipts of RETENO Inc. as per defined accident. It Injury Each Person Bodily $25,000 disagree agree with Western and with the $50,000 Each Accident inter- Damage Each Property Accident $ pretation policy prohibits stacking. 1 of our limit of An is created when there changed to read: interpretations. are two or more reasonable number Farmers Home Mutual Insurance Co. v. *3 autos, insureds, claims made or vehicles 635, 332 N.W.2d 637 The accident, in involved our limit of lia- face of the declaration sheet directs its bility is as follows: reader to endorsement for lim CA2107 pay a. The most we will for all dam- its of uninsured motorist En ages resulting bodily injury from to clearly prohibits dorsement CA2107 stack any person by any caused one acci- ing, leaving no room for doubt on its mean dent is the limit in this endorse- shown ing. Even endorsement ,though CA2124 person.’ ment for ‘each stacking, can be read to allow the manifest Subject per- of the limit for ‘each b. parties intent of the is to limit son,’ pay the most we will for all dam- $25,000 bodily injury per person for ages resulting bodily injury from $50,000per accident. Western’s contention by any caused one accident is the limit stacking that the endorsement allows of all in shown this endorsement for ‘each $1,675,000 67 vehicles to create in bodily accident.’ injury coverage is untenable. Despite prohibition stacking, this clear upon by case relied Boroos policy Rusthoven contend the differs from this case. In Boroos this ambiguous. They refer to Endorsement following court found the two consecutive CA2124, also noted on the declaration in an sentences endorsement created an sheet, but instead listed with 16 other en- ambiguity: generally desig- dorsements. That list is Regardless of the number of covered au- nated as “Terms and Endorsements con- tos, insureds, claims made or vehicles policy inception.” in tained at accident, in the involved the most we will CA2124 pay damages resulting for all any from Changes in Uninsured Motorist Insur- one accident is the limit of UNDERIN- ance: SURED MOTORIST INSURANCE B. 1 of our liability limit of shown in this If endorsement. there is changed to read: auto, more than one covered our limit of of the number of in- liability any for one accident is the sum

sureds, claims made or vehicles in- applicable limits each covered volved the most we will auto. pay damages resulting for all Boroos, (emphasis 345 N.W.2d at 789 omit- one accident is the limit of uninsured ted). Relying part upon policy’s motorist insurance shown decla- separate premium calculation for underin- If rations. there is more than one for each of 37 covered auto our limit for vehicles, this court in found the Boroos any one accident is the sum of the parties stacking intent of the allow applicable to each covered auto. shown terms was unclear. favoring extending Under the rule rather Western contends endorsement limiting coverage, than we allowed stack- CA2124, unequivocally providing if not ing.

stacking, ambiguity. creates an holding policy, relies cases that an The Commercial Standard how- ever, increasing must construed in bases uninsured motorist coverage by allowing stacking, including gross receipts. Premi- RETENO Carriers’ Inc., they v. Agency, separately Roseau 345 ums are not calculated as (Minn.Ct.App.1984). 790 We were in Boroos.

499 This policy Yeager argument is similar to the Any is unreasonable. Co., 335 N.W.2d reasonable named as an Auto-Owners Insurance insured in (Minn.1983) supreme court will read the entire where to see policy provisions part policy’s complete allow for a denied satisfaction separate coverages of claims. did not reflect as in Yeager, risk involved. In Inc., Boroos v. Agency, Roseau the insurer will not receive windfall (Minn.Ct.App.1984), N.W.2d 788 this court stacking is not allowed. allowed the that case the relating one endorsement to uninsured used language limits which similar holding We affirm the trial court’s provision allowing stacking here. interpretation of *4 policy prohibits stacking. interpreted We do not reach the issue of which insurance is closer to mean the insurance intended to provide risk. up limits on all

covered autos. The court found this con- public sistent with Minnesota SEDGWICK, J., dissents. argues Commercial Standard Boroos is SEDGWICK, (dissenting). Judge distinguishable here there was respectfully I dissent. Commercial only premium paid for uninsured mo- Company policy gross receipts torist conflicting pro- two to Rusthoven contained leasing optional business. permits stacking One visions. and one had been of- an ambiguity. not. This creates does required law, fered insurer premium insurer would have based ambiguities It well settled that per-vehicle on a cost. of an insurance should be against the insurer as drafter construed premium computation This difference in poli It is also settled that well is irrelevant once is established it provisions interpreted are to in ac cy policy, by own with what a reasonable cord terms, provides of uninsured position of the insured would have under stood terms to mean. Farmers Home Therefore, the trial court erred Mutual Insurance Co. that Commercial Standard’s underinsured motorist benefits could not be stacked. argues ambiguity, is an there

way to read the to first read the precludes stacking

endorsement which disregard then the endorsement

policies, allows for of uninsured mo-

torist