Court of Appeal, Fourth District, Division 3, California.

WILSHIRE INSURANCE COMPANY, INC., Plaintiff and Respondent,

v.

SENTRY SELECT INSURANCE COMPANY et al., Defendants and Appellants.

Nov. 15, 2004.

 

OPINION

 

IKOLA, J.

On cross-motions for summary judgment, the court applied Insurance Code, section 11580.9, subdivision (d), [FN1] and declared Wilshire Insurance Company, Inc. (Wilshire) entitled to contribution from Sentry Select Insurance Company (Sentry) [FN2] in the amount of one-half the expenses incurred by Wilshire in defending and settling a wrongful death action. Sentry appeals the judgment arguing the statute does not apply to the stipulated facts, but if it does, it was misapplied. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Because the parties based their respective motions for summary judgment on a joint statement of stipulated facts, we confine our summary of the facts to the matters contained in their stipulation, including the exhibits.

The Accident and the Underlying Litigation

In July 1999, Ken Holm, dba Kenway Enterprises (Kenway), was driving a 1989 Kenworth tractor (the tractor) hauling a 1981 Great Dane semi-trailer (the trailer) when the tractor/trailer rig was involved in an accident causing bodily injury and death. A wrongful death action was filed in the Orange County Superior Court against, inter alia, Kenway (the owner of the tractor) and Statewide Transportation (the owner of the trailer) (Statewide). At the time of the loss, Wilshire insured Kenway; Sentry insured Statewide. Wilshire made a timely demand that Sentry share in the investigative expenses, legal fees, and indemnity, but Sentry refused to contribute. Wilshire thereupon undertook the defense of both Kenway and Statewide, reserving its right to seek a pro rata contribution from Sentry. After expending $5,635.96 in investigative expenses, and $38,298.65 in attorney fees, Wilshire settled all claims made in the litigation against Kenway and Statewide by paying $210,000 on their behalf. The parties agree these amounts were reasonable and necessary to settle the action.

The Tractor Lease

At the time of the accident, Kenway was hauling Statewide’s trailer under the terms of a written agreement by which Statewide had leased the tractor from Kenway. Under the terms of the lease, Kenway also provided a driver for the leased tractor. As germane to arguments made on this appeal, the lease agreement also required Kenway “to fully indemnify [Statewide] for damage to property or person of a third party resulting from fire, theft, collision, or upset and to fully indemnify [Statewide] for damage to cargo arising from any or all of these same causes.” In other words, when Statewide hired Kenway’s tractor and driver to haul the Statewide load, it did so with the understanding that Kenway would bear the risk of liability to a third party.

The Insurance Policies

To protect itself against the risk of liability assumed under these and similar circumstances, Kenway had purchased an insurance policy from Wilshire. The Wilshire insurance policy covered Kenway for the subject accident with a policy limit of $1 million. Statewide had purchased its own insurance policy from Sentry that, inter alia, insured any driver hauling a Statewide trailer with Statewide’s permission. Thus, the Sentry insurance policy also covered the subject accident and it also had a policy limit of $1 million. Kenway’s tractor was scheduled as an owned vehicle on the Wilshire insurance policy, and Statewide’s trailer was scheduled as an owned vehicle on the Sentry insurance policy.

The Wilshire policy provided liability coverage for damages resulting from the use of the owned vehicles specifically described in the policy (such as the tractor). But it also provided liability coverage for damages resulting from the use of any nonowned trailer (such as the Statewide trailer) attached to any power unit specifically described in the policy declarations (such as the tractor). [FN3] Further, the Wilshire policy’s “other insurance” clause states that Wilshire’s liability coverage would be primary where a covered vehicle (the tractor) is hired by another (Statewide) and a written agreement with the other motor carrier as lessee (Statewide) requires Kenway to hold the lessee harmless. [FN4] Finally, under the terms of the Wilshire policy, if a covered trailer is connected to a covered tractor, the liability coverage for the trailer is also primary where coverage for the tractor is primary. [FN5]

The Sentry policy provides liability coverage for damages resulting from use of the trailer, but no provision of this policy covers liability resulting from the use of Kenway’s tractor. [FN6] The Sentry policy’s “other insurance” clause states the coverage is primary if the covered trailer is hired or borrowed by Statewide (which was not the case), and excess if the trailer is hired or borrowed from Statewide (also not the case). But where the covered trailer is connected to a power unit that is not covered under the policy, the coverage for liability resulting from use of the trailer is excess. [FN7] The operator of the tractor is nevertheless an “insured” because the trailer is being used with the permission of the owner. [FN8] Thus, the Sentry policy, by its terms, provides liability coverage for the accident, but the coverage is excess.

The Court’s Ruling

The court granted Wilshire’s motion for summary judgment and denied Sentry’s motion, stating: “It may not be the most equitable result in view of the circumstances of this case, but I just think I’ve got to apply 11580.9(d), and I think that dictates my ruling. I think if it weren’t for the application of that code section, [Sentry’s] argument would be much more persuasive.” The court no doubt was troubled making a decision that, under compulsion of a statute, ignored the entirely consistent provisions of the “other insurance” clauses in the respective insurance policies and arrived at a result at odds with those provisions. After all, Wilshire had agreed to provide primary coverage. Sentry had agreed to provide only excess coverage. Yet, in the trial court’s view, section 11580.9, subdivision (d), required Wilshire and Sentry to share the loss equally as co-primary insurers.

While we recognize the same anomaly, we nevertheless agree with the trial court and affirm the judgment. Section 11580.9, subdivision (d), provides a bright-line rule applicable to these circumstances, and the court correctly applied the statute.

DISCUSSION

Because the case was presented on summary judgment motions with stipulated facts, we conduct a de novo review to decide a pure question of law. (Oliver & Williams Elevator Corp. v. State Bd. of Equalization (1975) 48 Cal.App.3d 890, 894, 122 Cal.Rptr. 249 [trial on stipulated facts presents issue of law]; Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001, 67 Cal.Rptr.2d 483 [summary judgment subject to de novo review on appeal].)

In 1970, the Legislature declared “it to be the public policy of this state to avoid so far as possible conflicts and litigation, with resulting court congestion, between and among injured parties, insureds, and insurers concerning which, among various policies of liability insurance and the various coverages therein, are responsible as primary, excess, or sole coverage.” (§ 11580.8.) To achieve this goal, “The Legislature further declare[d] it to be the public policy of this state that Section 11580.9 of the Insurance Code expresses the total public policy of this state respecting the order in which two or more of such liability insurance policies covering the same loss shall apply.” (Ibid.)

Section 11580.9 identifies four different circumstances under which two or more policies of automobile or motor vehicle insurance may afford liability insurance applicable to the same loss. As to each of these defined circumstances, the statute states a rule, in the form of a conclusive presumption, by which to determine that policy which provides primary coverage and that policy which provides excess coverage. (§ 11580.9, subds.(a), (b), (c) & (d).) The parties agree three of the scenarios under section 11580.9 do not apply. Wilshire contends, however, that section 11580.9, subdivision (d) applies, and the application of subdivision (d) to the agreed facts results in Wilshire and Sentry both providing primary coverage. Sentry contends section 11580.9, subdivision (d) does not apply because, if construed as Wilshire contends, the conclusion that the policies are co-primary does not “order” the policies as contemplated by the statute. Sentry then looks to the “other insurance” clauses of the respective policies to argue its policy was not primary, but excess. Alternatively, Sentry contends the statute should be interpreted under these facts to make Wilshire’s policy primary and Sentry’s policy excess.

We begin our analysis with the words of the statute. Section 11580.9, subdivision (d) states: “[W]here two or more policies affording valid and collectible liability insurance apply to the same motor vehicle or vehicles in an occurrence out of which a liability loss shall arise, it shall be conclusively presumed that the insurance afforded by that policy in which the motor vehicle is described or rated as an owned automobile shall be primary and the insurance afforded by any other policy or policies shall be excess.” The parties agree: Both the Wilshire and Sentry policies afforded valid and collectible liability insurance. However, other elements of section 11580.9, subdivision (d), require further discussion.

The Tractor/Trailer Rig Was a Single Motor Vehicle

At least for purposes of section 11580.9, subdivision (d), it is well established that a truck tractor hauling a trailer is treated as a single motor vehicle. On first impression in California, Mission Ins. Co. v. Hartford Ins. Co. (1984) 155 Cal.App.3d 1199, 202 Cal.Rptr. 635 (Mission ) adopted the rationale used in a number of federal diversity cases that had previously addressed the issue, and held a tractor/trailer rig to be a single motor vehicle for purposes of section 11580.9, subdivision (d). ” ‘[V]irtually every jurisdiction which has addressed the question has held that an accident involving a tractor-trailer unit “arises out of” the use of both, regardless of which part of the unit was actually involved in the accident. [Citations.] ‘The theory seems to be that a trailer is of no use without a tractor, and vice versa. [Citation.] But for the need to haul the trailer, the tractor would not have traveled the highway and been involved in the accident.’ ” (Mission, at p. 1212, 202 Cal.Rptr. 635.) ” ‘Where a truck and towed trailer are involved in an accident, the courts are well-advised to avoid the metaphysics and hold that the accident arose out of the use of each.’ ” (Id. at p. 1213, 202 Cal.Rptr. 635.)

Later, Transport Indemnity Co. v. Royal Ins. Co. (1987) 189 Cal.App.3d 250, 234 Cal.Rptr. 516 (Transport Indemnity ), held: “[T]he phrase ‘motor vehicle or vehicles’ in section 11580.9, subdivision (d), simply means one or more motor vehicles.” (Id. at p. 255, 234 Cal.Rptr. 516.) But Transport Indemnity also agreed with the holding of the Mission court that “an accident which involves a truck tractor/trailer rig should be viewed as arising out of the use of all components of the rig.” (Ibid.) Thus, as in Mission, the Transport Indemnity court held the insurance policies covering the tractor and the trailer respectively both applied to the “same motor vehicle.” (Ibid.)

Accordingly, by the rationale explained in the Mission and Transport Indemnity decisions, we also conclude the Wilshire and Sentry polices applied to the “same motor vehicle or vehicles in an occurrence out of which a liability loss shall arise.” (§ 11580.9, subd. (d).) The only remaining task is to identify the equipment “described or rated as an owned automobile” by the respective insurance policies. (Ibid.)

Each Policy Describes or Rates Its Insured’s Equipment as “Owned”–Wilshire Describes or Rates the Tractor and Sentry Describes or Rates the Trailer

Section 11580.9, subdivision (d), instructs: “[T]he insurance afforded by that policy in which the motor vehicle is described or rated as an owned automobile shall be primary.” (Italics added.) In Ohio Cas. Ins. Co. v. Aetna Ins. Co. (1978) 85 Cal.App.3d 521, 524, 149 Cal.Rptr. 562, the court held: a “description or rating … in commonsense understanding, means a particularization of the vehicle.” (Italics added.) Here, in the parties’ joint statement of facts they agree: In the Wilshire policy, the tractor was “scheduled as an owned vehicle”; in the Sentry policy, the trailer was “scheduled as an owned vehicle.” Thus, since the tractor/trailer rig is treated as a single vehicle, under section 11580.9, subdivision (d), it is “conclusively presumed” that each insurance policy is primary. Because each policy has the same limit for bodily injury liability, each insurer has an equal obligation to contribute to the loss.

Sentry’s Arguments Have Equitable Appeal, but Cannot Overcome the Plain Terms of the Statute

Sentry argues section 11580.9 cannot apply because co-primary coverage does not establish an order of priority. In Sentry’s view, the purpose of section 11580.9 is to determine “the order in which two or more … liability insurance policies covering the same loss shall apply” (§ 11580.8), and the word “order” means one policy must be primary and the other excess. We disagree. We find nothing in the statute prohibiting a result by which the “order” in which the policies apply is concurrent, or making the statute inapplicable merely because its application results in an equal ranking of priority. Indeed, without phrasing its conclusion in these terms, the Mission court held under similar circumstances that two insurance policies were “ordered” concurrently, i.e., they were co-primary. Whether section 11580.9, subdivision (d) applies to an occurrence depends upon the existence of the simply stated condition. Do two or more insurance policies cover the same motor vehicle in “an occurrence out of which a liability loss shall arise?” If the answer is “yes,” the statute applies. If the answer is “no,” the statute does not apply. But in no case does the result of the statute’s application determine whether it applies. Which is to say, we will not adopt an interpretation of the statute based upon our like or dislike of the outcome of its application.

Sentry also contends that because the “other insurance” clauses afforded by the two policies were entirely congruent under the agreed facts–Wilshire promised its insured it would provide primary coverage for use of both the tractor and trailer, but Sentry promised its insured it would only provide excess coverage for use of the trailer–both the tractor and trailer should be treated as “described or rated as owned” under the Wilshire policy. But the priority of coverage as contracted for in the policies must not be confused with the “description or rating” of the vehicles, which determines the priority of coverage under section 11580.9 without regard to the priority provisions of the respective policies. The Legislature’s conclusive presumption regarding the priority of coverage may not be avoided by unilaterally imposing “other insurance” clauses the other insurer has not bargained for. A desire to minimize or eliminate litigation over competing provisions of “other insurance” clauses in multiple policies was the impetus for enactment of the legislation. And even though the “other insurance” clauses do not compete in this case, the statute cannot be ignored.

Insurers dissatisfied with the operation of section 11580.9 may overcome its conclusive presumptions, although the process may be cumbersome. Section 11580.9, subdivision (f) provides: “The presumptions stated in subdivisions (a) to (d), inclusive, may be modified or amended only by written agreement signed by all insurers who have issued a policy or policies applicable to a loss described in these subdivisions and all named insureds under these polices.” (Italics added.) Of course, there was no such agreement in this case. [FN9]

Thus, we are compelled to conclude that section 11580.9, subdivision (d) controls, and its application results in the Wilshire and Sentry policies both providing primary coverage. With equal policy limits, equal sharing of the loss is proper.

We recognize the seeming inequity of this result. Wilshire agreed to provide primary coverage. Sentry agreed to provide only excess coverage. Wilshire will suffer only half the loss it promised to bear and Sentry will pay half of a loss it never promised to bear. Yet the Legislature believed a bright-line rule in these circumstances was beneficial. The inequity, if any, lies in the operation of a statute we are powerless to rewrite.

DISPOSITION

The judgment is affirmed. Wilshire shall recover its costs on appeal.

WE CONCUR: BEDSWORTH, Acting P.J., and ARONSON, J.

FN1. All further statutory references are to the Insurance Code unless otherwise stated.

FN2. Plaintiff named John Deere Insurance Company as the defendant, but the parties stipulated that Sentry Select Insurance Company and John Deere Select Insurance Company are the same entity, and the correct legal entity for purposes of this case is Sentry Select Insurance Company. Our caption for this opinion, and our discussion of the facts, refers to defendant as Sentry Select Insurance Company in accordance with the parties’ stipulation.

FN3. Section I, paragraph (A) of the Wilshire policy describes the “autos” covered by the policy as, “Only those ‘autos’ described in ITEM THREE of the Declarations for which a premium charge is shown (and for Liability Coverage any ‘trailers’ you don’t own while attached to any power unit described in ITEM THREE).” The tractor was scheduled in item three of the declarations. Section VI, paragraph (B) defines “auto” as “a land motor vehicle, ‘trailer,’ or semi-trailer designed for travel on public roads.”

FN4. Section V, paragraph (B)(5)(a)(1) of the Wilshire policy provides as follows. “While any covered ‘auto’ is hired or borrowed from you by another ‘motor carrier,’ this Coverage Form’s liability coverage is: (1) Primary if a written agreement between you as the lessor and the other ‘motor carrier’ as the lessee requires you to hold the lessee harmless.”

FN5. Section V, paragraph (B)(5)(c)(1) of the Wilshire policy states: “While a covered ‘auto’ which is a ‘trailer’ is connected to a power unit, this Coverage Form’s Liability Coverage is: (1) Provided on the same basis, either primary or excess, as the liability coverage provided for the power unit if the power unit is a covered ‘auto.’ “

FN6. Section I, paragraph (A) of the Sentry policy, like the Wilshire policy, covers “Only those ‘autos’ described in ITEM THREE of the Declarations for which a premium charge is shown (and for Liability Coverage any ‘trailers’ you don’t own while attached to any power unit described in ITEM THREE).” The Kenway tractor is, of course, not described in item three of the Sentry policy, and the coverage for a nonowned trailer attached to a tractor owned by Statewide is not applicable under the instant facts.

FN7. Section V, paragraph (B)(5)(a) of the Sentry policy states as follows: “This Coverage Form’s Liability Coverage is primary for any covered ‘auto’ while hired or borrowed by you and used exclusively in your business as a ‘trucker’ and pursuant to operating rights granted to you by a public authority. This Coverage Form’s Liability Coverage is excess over any other collectible insurance for any covered ‘auto’ while hired or borrowed from you by another ‘trucker’. However, while a covered ‘auto’ which is a ‘trailer’ is connected to a power unit, this Coverage Form’s Liability Coverage is:(1) On the same basis, primary or excess, as for the power unit if the power unit is a covered ‘auto’. (2) Excess if the power unit is not a covered ‘auto.’ “

FN8. Section II, paragraph (A)(1) of the Sentry policy defines an “insured,” inter alia, as “Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow except [inapplicable exceptions].”

FN9. Wilshire contended at oral argument in the court below, and again on appeal, that an owner of a trailer, such as Statewide, may purchase a “trucker’s endorsement” which eliminates all coverage when the trailer is towed by another, thereby relying entirely on the insurance provided by the owner of the tractor. Sentry contends that if such a unilateral endorsement is effective to eliminate all coverage, by the same token the language of its “other insurance” clause must also be given effect to limit its coverage to that of an excess insurer. Because the agreed facts do not contain any information about the availability or the terms of such an endorsement, and because no such endorsement existed in the instant dispute, we do not address these arguments

Court of Appeals of Georgia.

NATIONWIDE LOGISTICS, INC.

v.

CONDOR TRANSPORT, INC.

Nov. 1, 2004.

BARNES, Judge.

Condor Transport, Inc., (“Condor”) sued Nationwide Logistics, Inc. (“Nationwide”), for breach of contract alleging that Nationwide had failed to pay $46,791.48 in freight charges. Nationwide answered and counterclaimed seeking indemnification for the loss of a trailer of breakfast cereal valued at $57,919.69 that was transported by Condor. Nationwide also filed a third-party complaint against Freight Handlers, Inc., the company Condor contracted with for trailer handling services, but subsequently voluntarily dismissed this complaint against Freight Handlers without prejudice. The parties filed cross-motions for summary judgment, and following a hearing on the motions, the trial court granted summary judgment in favor of Condor, and Nationwide now appeals. We discern no error, and affirm.

A trial court properly grants summary judgment when there is no issue of material fact and the record demonstrates that the moving party is entitled to judgment as a matter of law. See Columbus Clinic v. Liss, 252 Ga.App. 559, 562, 556 S.E.2d 215 (2001). “On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.” Id.

So viewed, the record reflects that Nationwide is a “third-party logistics provider” and freight broker. In its function as a freight broker it hires third-party carriers to transport goods for other companies. Food Lion is one of the companies that used Nationwide to broker the delivery of loads from its vendors to its distribution centers.

Condor is an interstate contract and common carrier, and had contracted with Nationwide since 1999 as a third-party carrier. Condor, per the “Motor Transportation Contract” with Nationwide, provided transportation services for Nationwide on behalf of Nationwide’s consignors, including Food Lion. On March 24, 2000, Condor picked up a load of cereal from a Kellogg facility in Fairburn, Georgia, and transported it to a facility in Florida. Food Lion was the consignor. Upon arrival in Florida, Condor left the trailer of cereal at the designated storage yard that was operated by Freight Handlers, and put the paperwork in a drop-box. The trailer was subsequently stolen, and although it was later recovered, the cereal, valued at $57,919.69, was missing. When Nationwide inquired about the missing cargo, Condor informed it that the cereal had been dropped off at the designated location, and that the bill of lading was left in a drop box at the facility. The bill of lading was not located, and when personnel could not find the cargo, Nationwide determined that the load “had not been delivered or was stolen,” and planned to file a claim against Condor. Although Nationwide’s policy was to “file the claim with the carrier immediately,” it did not file a claim for the missing goods until almost seven months later, on October 19, 2000. In the interim, Nationwide paid Food Lion on its claim for the stolen cereal.

In the months following the theft, Condor continued to transport goods for Nationwide until November 27, 2000, and accrued freight charges of $46,791.48. Nationwide, however, refused to pay Condor the freight charges because of the $57,919.69 claim for the loss of the cereal. Condor filed this action to recover the freight bills, alleging breach of contract, breach of the property brokers’ regulations, and money had and received. Nationwide answered, denying that it owed the charges, and asserting a counterclaim for the value of the stolen or lost cereal.

In granting summary judgment to Condor, the trial court found that the brokerage contract,

imposes two unambiguous conditions precedent on Nationwide’s right to recover indemnity from Condor. First, [Nationwide] must submit a written claim to Condor within ninety (90) days of the loss, damage or delay involving cargo in order to preserve its right to recover indemnity. Second, Nationwide may offset a cargo loss claim against freight charges owed to Condor only if the cargo claim has not been resolved within ninety (90) days of the date Nationwide submits its written claim to Condor and if Nationwide provides written notice to Condor by certified mail of its intent to use the cargo loss claim to offset the freight charges owed to Condor.

Nationwide failed to do either, and the court held that “[u]nder Missouri law, failure of a condition precedent prevents the non-performing party from enforcing the terms of an agreement.” Thus, Nationwide’s claimed for indemnity failed as a matter of law.

The construction of a written contract is generally a matter for the trial court to decide as a matter of law. Peachtree on Peachtree Investors v. Reed Drug Co., 251 Ga. 692, 694(1), 308 S.E.2d 825 (1983). On appeal of such contract construction by the trial court, we conduct a de novo review of the legal issues. Tachdjian v. Phillips, 256 Ga.App. 166, 168, 568 S.E.2d 64 (2002).

1. Nationwide first argues that the trial court erred in granting summary judgment because the evidence demonstrates that Condor failed to deliver the cereal and was therefore liable for the loss.

Nationwide brought its counterclaim for indemnification and breach of contract pursuant to the terms of the brokerage contract. The contract held in pertinent part that,

[Condor] agrees to indemnify and hold [Nationwide] harmless from all losses, damages, claims, or liabilities (including attorney’s fees) that arise from the performance of transportation services hereunder by [Condor], unless such losses, etc., arise exclusively as a result of the negligence of [Nationwide].

Condor’s liability for the loss is wholly irrelevant to whether Nationwide would be indemnified. The contract only stipulates that liability could not exclusively lie with Nationwide, and here, it is undisputed that Nationwide had nothing to do with the loss. Condor had a duty to indemnify regardless of its liability, and accordingly, the trial court did not err for failing to make a finding on the issue of Condor’s liability. See generally Edwards Bros., Inc. v. Overdrive Logistics, Inc., 260 Ga.App. 222, 581 S.E.2d 570 (2003).

2. Nationwide also argues that the trial court erred in finding that it had failed to file a timely claim for the lost cereal. We do not agree.

The contract stipulated that,

[i]t is further understood and agreed that all commodities transported under the terms and in accordance with this Agreement shall be transported in accordance with the rates, charges, rules and regulations as set out in the Schedule of Actual Rates and Charges (the “Schedule”) applying to the commodities herein, attached hereto as Exhibit “A” and incorporated herein by reference, and all supplements thereto and reissues thereof.

Under the terms of the Schedule, “[a] claim for loss, damage, or delay to cargo totaling in excess of $100.00 will not be voluntarily paid by [Condor], unless filed in writing, as provided in subparagraph (b) below, with carrier, within 90 days.” (Emphasis supplied.)

The Schedule also provided that, within 30 days of the receipt of a written claim Condor must acknowledge receipt of the claim and request any additional documentation needed for its investigation, and must then within 30 days, either pay the claim, deny payment, or make a firm compromise offer on the claim.

The Schedule further stipulated that

[i]f [Condor] fails to comply with this disposition or reporting requirements, however, Nationwide Logistics, Inc. is entitled to deduct from the amount of an outstanding freight bills payable to [Condor] the full amount of such claim. In the event any claim is outstanding or unresolved for more than 90 days after its filing, Nationwide Logistics, Inc. is authorized to deduct from the amount of any outstanding freight bills payable to [Condor] the full amount of such claim.

Nationwide does not argue that it filed within the 90 day contract period, it instead argues that it did not have standing to file the claim until after Food Lion had filed its claim for the loss against Nationwide.

The contract specifically provided that it was to be construed under Missouri law, and in the absence of contrary public policy, our courts normally will enforce a contractual choice of law provision, as the parties by contract may stipulate that the laws of another jurisdiction will govern the transaction. Carr v. Kupfer, 250 Ga. 106, 107(1), 296 S.E.2d 560 (1982).

Under Missouri law,

[d]etermining the intention of the parties and giving effect to that intention is the prime principle of contract interpretation. The contract is read as a whole to determine the parties’ intent. All terms are given their plain, ordinary, and usual meanings, and terms should be construed to avoid rendering other terms meaningless. Intent is not to be determined merely by looking at isolated provisions not considered in the context of the entire agreement. Where a contract dispute is based on the construction of a contract, rather than a factual dispute as to what was agreed upon, the court must construe the contract. If it is clear and unambiguous as a matter of law, this construction is limited to the “four corners” of the instrument and parol evidence as to its meaning cannot be utilized.

(Citations omitted) Spirtas Co. v. Div. of Design and Construc., 131 S.W.3d 411, 416 (Mo.App.2004).

Moreover,

it is not within the province of the court to alter a contract by construction, or to make a new contract for the parties…. [A] court’s duty is confined to the interpretation of the contract which the parties have made for themselves, without regard to its wisdom or its folly, and a court may not read into a contract words which the contract does not contain.

Service Vending Co. v. Wal-Mart Stores. Inc., 93 S.W.3d 764 (Mo.App.2002)

The language in the contract between Condor and Nationwide is clear. The contract provided that claims must be submitted in writing within 90 days of the loss. There is no contingency providing that the notice provision is effective only upon the filing of a claim by a consignor. The contract with Food Lion contained no such provision, an oversight that Nationwide was in the position to correct, as the drafter of the contract. By signing the contract, Nationwide accepted that it would be bound by the notice provision in order to file a claim. Therefore, we find no merit in the enumeration.

3. Finally, Nationwide argues that the contract provision controlling indemnification is clear and unambiguous and does not provide for any preconditions to Condor’s duty to indemnify. We do not agree.

The contract stipulates that

it is further understood and agreed that all commodities transported under the terms and in accordance with this Agreement shall be transported in accordance with the rates, charges, rules and regulations as set out in the Schedule of the Actual Rates and Charges applying to the commodities herein, attached hereto as Exhibit “A” and incorporated herein by reference, and all supplements thereto and reissues thereof.

And as noted previously, under the terms of the Schedule, “[a] claim for loss, damage, or delay to cargo totaling in excess of $100.00 will not be voluntarily paid by [Condor], unless filed in writing, as provided in subparagraph (b) below, with carrier, within 90 days.” (Emphasis supplied.)

We agree with the trial court’s conclusion that “the failure of the condition precedent by Nationwide prevents it from enforcing the indemnification provision in the contract, and its claim for indemnity therefore fails as a matter of law.”

A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main action. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. In other words, if a contract contains a condition precedent, the condition must occur or be performed before the contract takes effect and is enforceable. If the condition does not occur or is not performed the other party may withdraw, but in order to escape liability the withdrawing party must affirmatively show that the withdrawal from the contract occurred because of the condition’s failure.

CIT Group/Equipment Financing, Inc. v. Integrated Financial Services, Inc., 910 S.W.2d 722, 729 III(B) (Mo.App.1995).

Condor has met this burden, and accordingly, the trial court did not err in its grant of summary judgment.

Judgment affirmed.

BLACKBURN, P.J., and MIKELL, J., concur