        IN THE MISSOURI COURT OF APPEALS
                WESTERN DISTRICT
JACK MAXAM,                                )
                                           )
              Appellant,                   )
                                           )
v.                                         )      WD79408
                                           )
AMERICAN FAMILY MUTUAL                     )      Opinion filed: October 11, 2016
INSURANCE COMPANY,                         )
                                           )
              Respondent.                  )

     APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
               THE HONORABLE JOEL FAHNESTOCK, JUDGE

                Before Division Three: Lisa White Hardwick, Presiding Judge,
                    Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge

       Jack Maxam (“Maxam”) filed a petition for declaratory judgment claiming that he is

entitled to underinsured motorist (“UIM”) benefits under an automobile insurance policy issued

by American Family Insurance (“American Family”). The trial court entered judgment in favor of

American Family and Maxam appeals. In his two points on appeal, Maxam argues that the trial

court erred in granting American Family’s motion for summary judgment because (1) the policy

is ambiguous in that it grants UIM coverage to the insured in his personal capacity but then

excludes UIM coverage from certain vehicles and (2) the policy provides a minimum of $25,000

in UIM coverage pursuant to the statement under the “LIMITS OF LIABILITY” section of the

UIM endorsement that in no event shall the amount paid be reduced below the minimum statutory
limit. Because the “owned-vehicle” exclusion to personal UIM coverage is not ambiguous and the

Missouri Motor Vehicle Financial Responsibility Law (“MVFRL”) does not mandate UIM

coverage, both points are denied and we affirm.

               I.   STATEMENT OF FACTS AND PROCEDURAL HISTORY

       The facts are undisputed. American Family issued a motor vehicle insurance policy to

Maxam for his 2000 Chevrolet Cavalier Z24, which included UIM coverage. While driving a

different vehicle that he owned, a 2003 Chevrolet Astro, Maxam was rear-ended. He settled for

the other driver’s policy limit and submitted a claim to American Family for UIM benefits under

the policy for his 2000 Chevrolet Cavalier Z24. American Family denied Maxam’s claim for UIM

benefits on the grounds that the vehicle he occupied at the time of the accident, the 2003 Chevrolet

Astro, was owned by Maxam but not insured for UIM coverage and thus excluded under the terms

of the policy for the 2000 Chevrolet Cavalier Z24.

       Following American Family’s denial of his claim for UIM benefits, Maxam filed a Petition

for Declaratory Judgment in the trial court. Both parties moved for summary judgment. The trial

court denied Maxam’s Motion for Summary Judgment, granted American Family’s Motion for

Summary Judgment, and entered judgment in favor of American Family and against Maxam.

Maxam timely appealed.

                                II.    STANDARD OF REVIEW

       Summary judgment is appropriate where there is no genuine issue of material fact and the

movant is entitled to judgment as a matter of law. Rule 74.04(c)(6); Floyd-Tunnell v. Shelter Mut.

Ins. Co., 439 S.W.3d 215, 217 (Mo. banc 2014). A trial court’s grant of summary judgment and

the interpretation of an insurance policy are questions of law that this Court reviews de novo. Id.




                                                  2
                                      III.    DISCUSSION

       We review the terms of an insurance contract as follows:

       [W]e look to determine whether the insurance policy language is ambiguous or
       unambiguous. If no ambiguity exists, the insurance contract will be enforced as
       written. If an ambiguity exists, we construe the language of the policy against the
       insurer. An ambiguity exists when there is duplicity, indistinctness, or uncertainty
       in the meaning of the language in the policy. When determining whether an
       ambiguity exists, words or phrases in an insurance contract must be interpreted by
       the court in the context of the policy as a whole and are not to be considered in
       isolation . . . . [W]e apply the meaning which would be attached by an ordinary
       person of average understanding if purchasing insurance and we resolve
       ambiguities in favor of the insured. . .

Fanning v. Progressive Northwestern Ins. Co., 412 S.W.3d 360, 364 (Mo. App. W.D. 2013)

(citations and internal quotation marks omitted).

     A. The “Owned-Vehicle” Exclusion is Clear and Unambiguous in the Context of the

                                             Policy as a Whole

       In his first point on appeal, Maxam argues that the trial court erred in granting summary

judgment for American Family because the policy is ambiguous in that it grants UIM coverage to

the insured in his personal capacity but then excludes UIM coverage from certain vehicles. We

disagree.

       This court must decide whether the policy is clear and unambiguous as a whole where it

grants UIM coverage to the person rather than a specific vehicle but then excludes other vehicles

owned by the policyholder from UIM coverage. “UIM coverage is floating, personal accident

insurance that follows the insured individual wherever he goes rather than insurance on a particular

vehicle.” Naeger v. Farmers Ins. Co., 436 S.W.3d 654, 661 (Mo. App. E.D. 2014) (citing Long v.

Shelter Ins. Cos., 351 S.W.3d 692 (Mo. App. W.D. 2011)). Missouri law, however, does not

require UIM coverage, so “the contract between the insured and the insurer defines and limits

coverage.” Id. at 662. The use of an exclusion to narrow a broad grant of coverage is a “necessary

                                                 3
provision[] in insurance policies” and will be enforced “[i]f [it is] clear and unambiguous within

the context of the policy as a whole[.]” Floyd-Tunnell, 439 S.W.3d at 221 (citation and inner

quotation marks omitted).

       Maxam claims that the policy is ambiguous because it grants UIM coverage to the person

but then excludes certain vehicles from coverage. Maxam points to four specific provisions in the

policy—the UIM general endorsement language, the general “Agreement,” the “Declarations”

page, and the UIM endorsement “Insuring Agreement”—that grant UIM coverage to the

policyholder and not a particular vehicle without notation of later exclusions. American Family

does not dispute that UIM coverage is granted to the policyholder, nor Maxam’s argument that

these provisions conform to the legal understanding that UIM coverage is personal insurance that

follows the individual rather than the vehicle. See Fanning, 412 S.W.3d at 365.

       The issue thus becomes whether the policy is ambiguous because the provisions relevant

to UIM coverage do not reference a “motor vehicle” being insured or note that the coverage is

subject to further exclusions. Maxam heavily relies on Miller v. Ho Kun Yun, where this court held

that the definition of “uninsured motor vehicle” was ambiguous as to whether it applied in excess

of the tortfeasor’s liability coverage, in part noting the lack of qualifying language. 400 S.W.3d at

792-93 (Mo. App. W.D. 2013); see also Fanning, 412 S.W.3d at 365. Maxam further argues that

because the policy language regarding UIM coverage in Miller is identical to the UIM policy

language regarding UIM coverage here, Miller is dispositive that the policy is ambiguous. See

Long, 351 S.W.3d at 702 (“[A]lthough other decisions construing set-off provisions and their

effect on UIM coverage can be instructive, they are not dispositive in the absence of identical

policy language.”). What Maxam fails to note, however, is that Miller was not considering the

language of the exclusion, so the language considered here is not identical and the Miller decision



                                                 4
is not dispositive. His reliance on Miller and similar cases is further misplaced because the insured

in Miller was entitled to coverage and the court was determining the extent of coverage, i.e.,

whether UIM coverage would be gap or excess. The fact that the policy was ambiguous as to the

extent of coverage is simply not instructive to the issue here, which is whether the insured is wholly

excluded from and thus not entitled to any UIM coverage in the first place.

       More importantly, although addressing an “owned-vehicle” exclusion to liability coverage,

the Supreme Court has more recently reiterated that insurance policies should be read as a whole,

including the general insuring agreement, definitions, and exclusions, to determine the scope of

coverage. Dutton v. American Family Mutual Ins. Co., 454 S.W.3d 319, 324 (Mo. banc 2015)

(citation omitted). “To stop reading the policy at the coverage provisions, without regard to

exclusions, would lead to absurd results. . . Owners and insurers alike would be surprised to learn

that their purchase of insurance on a single motor vehicle made them the insurer of all passenger

cars.” Id. at 325. Addressing “owned-vehicle” exclusions, the Supreme Court has stated:

       The purpose of the ‘drive other cars’ provision in an automobile policy is to cover
       occasional or incidental use of other [cars] without the payment of an additional
       premium, but to exclude the habitual use of other cars, which would increase the
       risk on the insurance company without a corresponding increase in premium.

Id. at 323 (internal citation and quotation marks omitted). The Supreme Court enforced an “owned-

vehicle” exclusion to uninsured coverage in Floyd-Tunnell where the exclusion itself was clear

and unambiguous and where the exclusion was clear and unambiguous when read in the context

of the policy as a whole. 439 S.W.3d at 221. This court has applied Floyd-Tunnell to similarly find

that an owned-vehicle exclusion to underinsured motorist coverage was clear and unambiguous.

See Mendota Ins. Co. v. Lawson, 456 S.W.3d 898, 905-06 (Mo. App. W.D. 2015).

       Like Floyd-Tunnell and Mendota, the “owned-vehicle” exclusion to UIM coverage in the

policy here is clear and unambiguous. The exclusion provides as follows:

                                                  5
           1. We do not provide coverage for bodily injury sustained by an insured person:
               a. while occupying, or when struck by, a motor vehicle that is not insured for
                 this coverage under this policy if it is owned by you or a resident of your
                 household.1

Maxam attempts to create an ambiguity by drawing attention to the fact that the clause uses the

undefined term “motor vehicle” rather than a defined term in the policy such as “car.” However,

“‘[t]he failure of a policy to define a term does not, in and of itself, render it ambiguous.’” See

Naeger, 436 S.W.3d at 661 (citation omitted). The plain language of the policy is that UIM

coverage will not be provided for a bodily injury sustained in a motor vehicle owned by the insured

but not covered by the policy. A court will not create an ambiguity where there is none. See id.

(citing Todd v. Missouri United School Ins. Council, 223 S.W.3d 156, 163 (Mo. banc 2007)).

           The “owned-vehicle” exclusion is also clear and unambiguous within the context of the

policy as a whole. Maxam attempts to distinguish Floyd-Tunnell because that policy stated twice

in the endorsement that coverage was subject to all conditions and exclusions. However, even

without the exact warning that coverage is subject to exclusions, Maxam was warned that coverage

was subject to all terms of the policy. The Declarations page directed Maxam to “PLEASE READ

YOUR POLICY.” The first page of the Agreement stated “We agree . . . to insure you subject to

all terms of this policy” (emphasis added). The first page of the UIM endorsement stated “With

respect to the coverage provided by this endorsement, the provisions of the policy apply unless

modified by this endorsement.” (emphasis added). The UIM endorsement later stated the “owned-

vehicle” exclusion set forth above.

           Neither party disputes that the vehicle insured by the policy was Maxam’s 2000 Chevrolet

Cavalier Z24. The bodily injury was sustained while Maxam was driving his 2003 Chevrolet Astro.

The 2003 Chevrolet Astro was a vehicle owned by Maxam but not the 2000 Chevrolet Cavalier


1
    Bolded terms are in the original and indicate a term that has been defined by the policy.

                                                             6
Z24 vehicle covered by the policy and thus clearly and unambiguously excluded from UIM

coverage by the terms of the policy. The policy does not become ambiguous due to the mere

presence of the exclusion. See Mendota, 456 S.W.3d at 906 (citing Floyd-Tunnell, 439 S.W.3d at

221). “The policy only provides coverage of owned cars that are insured under a policy as well as

an insured’s operation of other cars so long as they are not owned and uninsured by the policy.”

Dutton, 454 S.W.3d at 323. Maxam “cannot simply buy a policy of insurance on one vehicle and

then argue that the policy covers other vehicles that [Maxam] owns but chose not to insure.” See

id. at 323. Again, a court will not create an ambiguity where there is none. See Naeger, 436 S.W.3d

at 661.

          Because the “owned-vehicle” exclusion is clear and unambiguous by its own terms as well

as within the context of the policy as a whole, it will be enforced. Thus, we need not address the

arguments raised by Maxam and American Family regarding whether the coverage was gap or

excess.2

          Point denied.

     B. The Missouri Motor Vehicle Financial Responsibility Law Does Not Mandate UIM

                                                      Coverage

          In his second point on appeal, Maxam argues that even if the exclusion applies, the trial

court erred in granting summary judgment for American Family because the policy states “in no

event shall the amount paid to the insured be below the Missouri Motor Vehicle Financial

Responsibility Law minimum limit” and thus American Family must pay a minimum of $25,000

to Maxam for his claim. We disagree.


2
 The court further notes that whether the UIM coverage was gap or excess, although addressed in Maxam’s argument,
was not included in his Point Relied On and therefore need not be addressed by the court. See Rule 84.04(e) (“The
argument shall be limited to those errors included in the “Points Relied On.”).


                                                       7
           Although the MVFRL does provide for minimum coverage of $25,000, the coverage

required is for bodily injury liability insurance, § 303.190.2(2),3 and uninsured motorist insurance,

§ 379.203.1. Notably, Missouri law does not reference a minimum limit for UIM coverage. As

stated previously, because UIM coverage is not legally required, UIM coverage must be

determined by the contract. See Naeger, 436 S.W.3d at 662.

           Here, the contract stated in the UIM endorsement as follows:

           D. LIMITS OF LIABILITY
           . . . .
                   5. However, in no event shall the amount we pay to the insured person be
                   reduced below the Missouri Motor Vehicle Financial Responsibility Law
                   minimum limit.

Maxam emphasizes that the insurance policy states in plain language and broad and unconditional

terms that the amount paid will not be below the MVFRL minimum limit. Because $25,000 is the

only minimum limit referenced in the MVFRL, Maxam argues that he is entitled to this amount

under the plain language of the policy’s UIM endorsement.

           Maxam once again attempts to create ambiguity where there is none. The bodily injury

minimum limit required is $25,000 for uninsured coverage, 379.203.1, and for liability coverage

for vehicles specifically designated by the policy and other vehicles used but not owned by the

insured, §§ 303.190.2(2); 303.190.3. The damages arose out of Maxam’s use of his 2003 Chevrolet

Astro, a vehicle not specifically designated by the 2000 Chevrolet Cavalier Z24 policy and owned

by Maxam. Although the policy clearly and unambiguously states that the amount paid will not be

reduced below the MVFRL minimum limit, the minimum limits stated in the MVFRL are not for

UIM coverage but for bodily injury liability and uninsured coverage, thus no amount must be paid.

           Point denied.



3
    All statutory references are to RSMo 2000, as supplemented.

                                                          8
                                    IV.    CONCLUSION

       Because the “owned-vehicle” exclusion to personal UIM coverage is not ambiguous and

the Missouri Motor Vehicle Financial Responsibility Law (“MVFRL”) does not mandate UIM

coverage, both points are denied and we affirm.


                                            __________________________________________
                                            EDWARD R. ARDINI, JR., JUDGE

All concur.




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