BEAM, Circuit Judge.
Jay Wolfe Used Cars of Blue Springs, LLC, along with its managing company, Wolfe Automotive Group, LLC, (Wolfe) appeals the district court's
Wolfe, a Missouri used-car dealership, is insured under two policies issued by Universal. One policy provides up to $500,000 for indemnity from and defense against suits for damages arising from Wolfe's "wrongful repossession" of an automobile, and this is linked under a separate policy
Wolfe sold a vehicle to Tyrrell and Liane Jackson (the Jacksons), retaining a security interest for loaning them the purchase money. Wolfe later repossessed and sold the vehicle due to missed payments. After retaking possession but before the sale, Wolfe sent a notice informing the Jacksons they could request an accounting for a $25 charge, and after the sale it sent a notice charging the Jacksons attorney's and legal fees. Wolfe sued for the deficiency balance, and the Jacksons counterclaimed on behalf of themselves and similarly situated consumers, alleging Wolfe's pre- and post-sale notices violated Missouri's Uniform Commercial Code (U.C.C.) and the Missouri Motor Vehicle Time Sales Act (MVTSA). Specifically, the Jacksons alleged that the presale notice violated a requirement under the U.C.C. that upon request they be provided with one free accounting and that the notice inform them of that entitlement. Mo.Rev.Stat. §§ 400.9-210(f), -613(1)(D), -614(1)(A). They alleged that the postsale notice violated the U.C.C. by charging them fees and expenses that were not actually incurred in connection with the sale of the vehicle, id. §§ 400.9-615(a)(1), -616(c)(4), and that it violated the MVTSA because the attorney's fees were in excess of fifteen percent of the deficiency balance and because the charged expenses were unreasonable. Id. §§ 365.100(2), (4). The Jacksons did not dispute that they were in default and that Wolfe had the right to repossess the vehicle.
Wolfe tendered the Jacksons' counterclaims to Universal for defense and indemnity under the umbrella coverage. Universal refused on the ground that the allegedly deficient notices were not wrongful repossessions as that term is meant in the policy, stating Wolfe was only entitled to coverage under the customer complaint defense provision. Preferring the benefits available under the umbrella coverage, Wolfe sued Universal for a declaration of its rights under the policy, as well as for breach of contract and vexatious refusal to pay. Universal counterclaimed for declaratory judgment in its favor. The district court sided with Universal on cross-motions for partial summary judgment and summary judgment. It reasoned the umbrella coverage only applied to repossession that is itself wrongful, not to wrongful debt-collection practices that may involve but are unrelated to repossession. Wolfe now appeals the district court's grant of summary judgment to Universal.
The central dispute is whether the Jacksons have alleged as injury the wrongful repossession of their vehicle as that term is used in the policy. We review de novo both a district court's interpretation of an insurance policy as well as its grant of summary judgment. Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network, Inc., 401 F.3d 876, 879 (8th Cir. 2005). In interpreting an insurance policy, we are bound by state law and thus by the decisions of state courts. Am. Family Mut. Ins. Co. v. Co Fat Le, 439 F.3d 436, 439 (8th Cir.2006). Absent ambiguity, Missouri courts will interpret the language of a policy according to its plain meaning as understood by an ordinary insured of average understanding. Piatt v. Ind.
Both parties agree "wrongful repossession" is unambiguous, although they disagree on what that term unambiguously means to an ordinary insured.
Wolfe relies primarily on Lou Fusz and Kirk King to support its interpretation. In Lou Fusz, we found that an insured's alleged violation of the Telephone Consumer Protection Act (TCPA) was a covered injury under a policy providing liability defense and indemnity. We determined an ordinary insured would interpret the phrases "private nuisance" and "invasion of rights of privacy" to include faxing unsolicited advertisements in violation of the TCPA. 401 F.3d at 881-82. We came to this conclusion in light of the TCPA's legislative history, in which Congress repeatedly described telemarketing as "intrusive," a "nuisance," and a "privacy invasion." Id. (quoting 47 U.S.C. § 227 (Historical and Statutory Notes, re: Section 2 of Pub.L. 102-243) (emphasis omitted)). These descriptions offered some evidence of how an ordinary insured would interpret the language in the policy, whereas the insurer "offer[ed] only technical and restricted legal definitions." Id. at 882. Wolfe asserts that here, too, the district court relied on a technical and restricted legal definition when it looked to the elements of a claim for conversion to determine how an ordinary insured would interpret the policy.
Wolfe relies on Kirk King for the proposition that the retaking of the Jacksons' vehicle and the procedure for its sale are part of an integrated process. In Kirk King, a general liability policy provided coverage for suits for damages from an "`advertising injury' caused by an offense committed in the course of advertising your goods, products, or services." 123 S.W.3d at 264. "Advertising injury" was defined to include copyright infringement. Id. King, the insured, constructed a home and was sued by a copyright holder, who
To begin with, it is clear from the order that the district court did not restrict its interpretation of wrongful repossession to the elements of conversion. Although the district court acknowledged that under Missouri law a claim for wrongful repossession is characterized as a claim for conversion, see Scott v. Twin City State Bank, 537 S.W.2d 641, 642 (Mo.Ct.App.1976), it "accept[ed] plaintiff's contention that the wrongful conduct in repossessions does not necessarily exactly conform to common law definitions, which are not likely known to prospective insureds." The district court's reasoning was not focused on the precise contours of the term "wrongful" but rather on the fact that it modified the term "repossession." In this regard, Universal's contention that a wrongful repossession necessarily means the debtor must not have had the right to take possession is beside the point.
We agree with the district court that it does not. The New Oxford American Dictionary (3d ed.2010) defines repossess as to "retake possession of (something) when a buyer defaults on payments" and possession as "the state of having, owning, or controlling something." Wolfe has the burden of proving that an ordinary insured would think a repossession extends beyond the retaking of possession of the property yet offers only a bare assertion in support of its position. Given that the term "repossess" and its ordinary definition center on possession, it is difficult to see why an ordinary insured would not understand the repossession to be complete once it regained control of the vehicle. That the repossession of a vehicle and its subsequent disposition are constituent parts of collecting on the Jacksons' debt does not, without more, provide a sufficient basis for concluding an ordinary insured would interpret wrongful repossession in a manner that strays so far from its meaning in common usage.
Under the plain language of the policy, the umbrella coverage is not available for the injuries alleged in the Jacksons' complaint. Thus Universal is entitled to judgment as a matter of law that it is not under a duty to defend Wolfe from the Jacksons' suit except to the extent such a duty may be provided for in the customer complaint defense provision, and consequently that Universal is not under a duty to indemnify Wolfe should the Jacksons be awarded damages. (That suit is still pending.) Because Wolfe's claims for breach of contract and vexatious refusal to pay rest on the success of its declaratory judgment action, we need not address them, nor Universal's remaining arguments, here.
Accordingly, for the reasons stated herein, we affirm the decision of the district court.