The Browns, who had four American Family auto insurance policies, sued American Family, contending that each of their four policies provided $100,000 in UIM coverage and that, because the policies were ambiguous as to whether these amounts could be stacked, the policies should be construed in their favor to stack up to $400,000 in UIM coverage.

They did not dispute that the “limits of liability” section in the policies, standing alone, prohibited the stacking of the policies' UIM coverage limits. They argued, however, that the policies, when read as a whole, were ambiguous as to whether stacking was allowed because the second sentence of the “other insurance” section provided that “any remaining limits of insurance provided under this endorsement for an insured person while occupying a vehicle you do not own is excess over all other underinsured motorist insurance provided by all other insurance companies[]” (the “excess clause”). (Emphasis added.) According to the Browns, the excess clause appeared to the average person of ordinary understanding to permit the stacking of the policies' UIM coverage limits when the insured person was occupying a non-owned vehicle, as Mr. Brown was.

The trial court ultimately agreed with the Browns, construed the policies to allow stacking, and entered judgment in favor of the Browns and against American Family for $140,000.

American Family appealed.

The Appellate Court's Decision

Citing Kissinger v. American Family Mutual Ins. Co., 563 S.W.3d 765 (Mo. Ct. App. 2018), the appellate court reversed and ruled that the policies unambiguously prohibited stacking.

In its decision, the appellate court explained that at issue in Kissinger was whether an American Family insurance policy, containing the exact same “limits of liability” and “other insurance” sections as in the Browns' policies, created an ambiguity when read alongside the insurance policy's clear provisions prohibiting stacking.

In Kissinger, American Family argued that the phrase “by all other insurance companies” unambiguously meant insurance companies other than American Family, and could not be read by an ordinary person of average understanding to include other policies issued by the same insurer.” The Kissinger court agreed, concluding that:

[T]he phrase “by all other insurance companies” plainly and unambiguously comments on who has issued the other UIM coverage or insurance, and has no reasonable meaning except to differentiate between [American Family] and all other companies issuing policies affording similar coverage. We conclude, therefore, that the other insurance provision in the UIM endorsement in Kissinger's policies does not conflict with the anti-stacking provisions in Kissinger's policies as to render Kissinger's policies ambiguous. The UIM coverage afforded by Kissinger's policies cannot be stacked. The trial court erred in concluding to the contrary.

The appellate court then noted that by the terms of the excess clause in the Browns' policies, the limits of insurance referenced therein was “excess over all other underinsured motorist insurance provided by all other insurance companies.” (Emphasis added.). The appellate court found that the policies, all of which were issued to the Browns by American Family, did not meet this criteria and, accordingly, that the excess clause did not provide for the stacking of the policies and, therefore, did not render the policies ambiguous as to the anti-stacking provisions in the “limits of liability” section.

The appellate court concluded that the trial court erred in concluding otherwise, and it found American Family entitled to judgment in its favor.

The case is Brown v. American Family Mutual Ins. Co., No. SD35329 (Mo. Ct. App. April 17, 2019). Attorneys involved include: For Appellant: John D. Hammons, Jr., and Jessica R. Hill, ELLIS, ELLIS, HAMMONS & JOHNSON, P.C., Springfield, Missouri. For Respondent: Dale R. Engelbrecht, ENGELBRECHT LAW, LLC, West Plains, Missouri.