                 IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
SHELLY CHANDLER, et al.,          )
                      Appellants, )
                                  )
v.                                )                WD76365
                                  )
ALLIED PROPERTY & CASUALTY        )                Filed: June 30, 2014
INSURANCE COMPANY,                )
                     Respondent. )

                       Appeal from the Circuit Court of Platte County
                         The Honorable Owens Lee Hull, Jr., Judge

               Before Division One: Alok Ahuja, P.J., and Thomas H. Newton
                               and Anthony Rex Gabbert, JJ.

       Shelly Chandler and Ted Huber (collectively “Chandler”) are the parents of Alexander

Huber, who was killed in an automobile accident while riding as a passenger in a vehicle driven

by Steven Jimenez. Chandler obtained a judgment against Jimenez in the amount of $200,000,

and sought to recover on the judgment under the insurance policy insuring Jimenez‟s vehicle.

Chandler appeals from a judgment entered by the Circuit Court of Platte County, which found

that she was entitled to only $50,000 in bodily injury liability coverage, and $2,000 in medical

payments coverage, under the policy. We affirm.

                                      Factual Background

       On January 2, 2011, Alexander Huber was killed while riding in the passenger seat of a

2002 BMW driven by Steven Jimenez. The BMW was owned jointly by Jimenez and his

mother, Edna Wijnterp. The vehicle was insured by Allied Property & Casualty Insurance Co.
under an insurance policy that was issued to Edna Wijnterp and her husband Peter Wijnterp (“the

Policy”). The Policy also insured two other vehicles owned by the Wijnterps, a 1999 Ford

Taurus and a 2001 Volvo S60.

        On February 10, 2011, Shelly Chandler, Alexander Huber‟s mother, filed this lawsuit

against Jimenez for her son‟s death. Ted Huber, Alexander Huber‟s father, later intervened in

the case as a plaintiff; Allied was granted leave to intervene as a defendant.

        Chandler, Jimenez, and Allied entered an agreement in which Allied would pay $50,000

to Chandler under the Policy‟s bodily injury liability coverage, and $2,000 under the Policy‟s

medical payments coverage. The parties also agreed that judgment would be entered against

Jimenez in the amount of $200,000; Chandler agreed that she would only seek to satisfy the

judgment from the proceeds of the Policy. Allied paid the agreed sums to Chandler in December

2011.

        The parties disagreed whether the Policy afforded any additional coverage for Alexander

Huber‟s death. Allied argued that the amounts it had already paid represented the applicable per-

person bodily injury and medical payments limits of liability: $50,000 and $2,000, respectively.

For her part, Chandler argued that the policy limits were three times as high as Allied contended:

$150,000 for bodily injury and $6,000 for medical payments.

        The parties stipulated to the relevant facts, and filed cross-motions for summary

judgment. The trial court entered judgment in favor of Allied, finding that the Policy‟s per-

person limit of liability for bodily injury was $50,000, and that the medical payments coverage

was limited to $2,000. Chandler appeals.

                                       Standard of Review

                 We review the entry of summary judgment de novo. We review the record
        in the light most favorable to the party against whom judgment was entered. We
        will affirm where the pleadings, depositions, affidavits, answers to interrogatories,


                                                 2
       exhibits, and admissions establish that no genuine issue of material fact exists and
       the moving party is entitled to judgment as a matter of law.

Corrigan v. Progressive Ins. Co., 411 S.W.3d 306, 310 (Mo. App. E.D. 2013) (citations

omitted). Likewise, “[t]he interpretation of an insurance policy is an issue of law, subject to de

novo review.” Allen v. Continental W. Ins. Co., No. SC93502, 2014 WL 2191034, at *4 (Mo.

banc May 27, 2014) (citing Mendenhall v. Prop. & Cas. Ins. Co. of Hartford, 375 S.W.3d 90, 92

(Mo. banc 2012)).

                                             Analysis

       Chandler argues that the trial court‟s grant of summary judgment was erroneous because

the Policy provides $150,000 of bodily injury coverage per person, not $50,000, and medical

payments coverage of $6,000, not $2,000. We disagree.

               In construing an insurance policy, we apply the meaning that would be
       attached by an ordinary person of average understanding and resolve all
       ambiguities in favor of the insured. Ambiguity exists when there is duplicity,
       indistinctness, or uncertainty in the meaning of the language of the policy.
       Language is ambiguous if it is reasonably open to different constructions. Policy
       provisions are not to be interpreted in isolation, but rather we must evaluate the
       policy as a whole. A contract is ambiguous if it promises something in one clause
       and takes it away in another. However, where an insurance policy is
       unambiguous, absent a public policy to the contrary, we will enforce the policy as
       written. The mere fact that the parties disagree as to the meaning of a term or
       clause in an insurance policy does not give rise to an ambiguity. Likewise, we
       may not unreasonably distort the language of the policy or exercise inventive
       powers for the purpose of creating an ambiguity when none exists.

Corrigan, 411 S.W.3d at 311 (citations and internal quotation marks omitted).

       The Policy insures three separate vehicles. Those vehicles are identified in a table in the

Policy‟s Declarations, which assigns a number to each vehicle:




                                                 3
The Declarations state the Policy‟s limits of liability in a separate table, using vehicle numbers

which correspond to those assigned to the three insured vehicles in the “Description of Vehicle”

table:




         The Policy states the following under the heading “LIMIT OF LIABILITY.”

                 The limit of liability shown in the Declarations for each person for Bodily
         Injury Liability is our maximum limit of liability for all damages, including
         damages for care, loss of services or death, arising out of “bodily injury”
         sustained by any one person in any one auto accident. Subject to this limit for
         each person, the limit of liability shown in the Declarations for each accident for
         Bodily Injury Liability is our maximum limit of liability for all damages for
         “bodily injury” result from any one auto accident.

                The limit of liability shown in the Declarations for each accident for
         Property Damage Liability is our maximum limit of liability for all “property
         damage” resulting from any one auto accident.

                 This is the most we will pay regardless of the number of:

                 1.      “Insureds”;

                 2.      Claims made;

                 3.      Vehicles or premiums shown in the Declarations; or


                                                   4
                4.       Vehicles involved in the auto accident. A vehicle and attached
                         “trailer” are considered one vehicle. Therefore, the Limit of
                         Liability will not be increased for an accident involving a vehicle
                         which has an attached “trailer”.

        Chandler argues that an ordinary person would read the above Declarations and conclude

that the Policy‟s per-person limit of liability for bodily injury is $150,000, a figure she derives by

adding together the three numbers listed in the left column of the “Coverage and Limits of

Liability” table. She contends that the three $50,000 limits must be aggregated because there is

no language in the Declarations stating that specific liability limits apply only to a particular

vehicle.

        Contrary to Chandler‟s argument, the Policy plainly and unambiguously specifies that a

$50,000 bodily injury limit applies, separately, to each of the three vehicles insured under the

Policy.1 Each figure of $50,000 appears directly adjacent to a vehicle number; those vehicle

numbers correspond to the three separate vehicles identified in the Declarations. The evident

meaning of the table is that the limits of liability are separately stated, on separate lines, for the

three vehicles insured under the Policy; we cannot read this table as creating a single, aggregate

limit of liability equally applicable to all three vehicles.

        The Eastern District recognized the meaning of this same Declarations page in Becker v.

Allied Property & Casualty Insurance Co., 422 S.W.3d 434 (Mo. App. E.D. 2013). Although

the issue presented in Becker concerned underinsured motorists coverage, the Court observed

that a table like the one in this case “plainly” specified separate bodily injury liability limits for

each of five insured vehicles:



        1
                 We note at the outset that this case involves a single policy insuring multiple vehicles. A
materially different coverage question would be presented if the vehicles were insured under separate
policies. Cf. Allstate Prop. & Cas. Ins. Co. v. Davis ex rel. Davis, 403 S.W.3d 714, 718 n.4 (Mo. App.
W.D. 2013).


                                                     5
        The Declarations Page sets forth the coverage and limits of liability of Allied with
        regard to each of the Beckers‟ vehicles in the form of a grid. Each row in the
        grid plainly corresponds to one of the Beckers’ vehicles, and each column of the
        grid corresponds to the type of coverage provided under the policy. In the column
        for UIM coverage, the words “per policy” appear in parentheses. Additionally,
        beneath the “per person, per accident” designation, the amount of $100,000 (each
        person) and $300,000 (each accident) appear only once. Allied's designation of
        the coverage limit for the Beckers' UIM coverage is plainly different from the
        designation of the policy coverage limits for Bodily Injury, Property Damage, and
        Medical Payments. Unlike the entry for the UIM coverage, in the designated
        column for each of these different types of coverage, beneath the “per person, per
        accident” designation, the dollar value of the coverage limit is separately listed
        five times. Each of the five separate listings corresponded to each separate
        vehicle insured under the policy. In addition, the various columns indicating
        coverage for Bodily Injury, Property Damage, and Medical Payments do not
        contain the limiting designation of “per policy” as noted in the column for UIM
        coverage.

Id. at 437-38 (emphasis added).2

        We also note that the Policy‟s “Limit of Liability” section repeatedly refers to the “limit”

of liability applicable to a particular coverage, in the singular rather than plural. It states that the

“limit of liability” in the Declarations page is the “maximum limit of liability for all damages.”

The use of the singular to refer to the applicable limit of liability is consistent throughout the

Policy as a whole, including in the insuring clause. Viewed in conjunction with the Declarations,

it is clear that the Policy contemplates a single limit of liability applicable to each insured

vehicle.

        Other coverage provisions contained in the Declarations confirm that the “Coverage and

Limits of Liability” table lists the coverage associated with particular vehicles separately. For

example, the Policy provides separate coverage for “Damage to Your Vehicle.” The

Declarations specify deductible amounts for “Damage to Your Vehicle” coverage in the rows
        2
                  Although it is not entirely clear from the opinion, it appears that the Missouri Supreme
Court interpreted a similar declarations page in the same way in Ritchie v. Allied Prop. & Cas. Ins. Co.,
307 S.W.3d 132, 140 (Mo. banc 2009) (stating that “the declarations page for the policy and the limit of
liability provision state that coverage is provided up to $100,000 per person, $300,000 per accident, for
each of the three vehicles the Ritchies owned”).


                                                     6
corresponding to only two of the three vehicles insured under the Policy: the 2001 Volvo

(vehicle #1) and the 2002 BMW (vehicle #4); but not the 1998 Ford (vehicle #5). At oral

argument, Chandler‟s counsel acknowledged that, by not listing a deductible amount for

“Damage to Your Vehicle” coverage in the row corresponding to the 1998 Ford, the Declarations

make clear that no such coverage is provided on the 1998 Ford.

        The Declarations also contain a table explaining how the total policy premium was

calculated. The “Premiums” table makes clear that separate premiums were calculated for each

vehicle, for each coverage offered (bodily injury, property damage, medical payments, or

“Damage to Your Vehicle”). This premium calculation once again confirms that the Policy

provided separate coverage for each of the three listed vehicles, not aggregate coverage up to a

combined liability limit.

        Finally, the Policy‟s “Limit of Liability” provision states that “[t]he limit of liability

shown in the Declarations for each person for Bodily Injury Liability is our maximum limit of

liability for all damages . . . arising out of „bodily injury‟ sustained by any one person in any one

auto accident,” and that “[t]his is the most we will pay regardless of the number of . . . [v]ehicles

. . . shown in the Declarations.” Although Chandler argues that this provision works in her favor,

we disagree. For present purposes, the statement that the specified limit of liability applies

“regardless of the number of vehicles shown in the Declarations” means that no matter how

many different vehicles are identified in the Declarations, the limit of liability for any particular

vehicle is not increased simply because that limit of liability is repeated with respect to other

vehicles.3


        3
               We note that the Declarations list a single dollar figure under the headings for uninsured
and underinsured motorists coverage. Chandler argues that this creates an ambiguity with respect to how
the three numbers listed in the bodily injury column should be interpreted. The columns for uninsured
and underinsured motorists coverage both explicitly state, however, that those columns specify the


                                                    7
        Of the three vehicles insured under the Policy, only the BMW was involved in the

accident at issue. The plain language of the policy indicates that the maximum per-person

coverage afforded by the Policy for bodily injury associated with the BMW is $50,000.

        Chandler argues that, even if the Policy is interpreted to afford separate $50,000 limits of

liability for bodily injury coverage on each of the insured vehicles, rather than a single $150,000

liability limit, she should be permitted to “stack” the three separate $50,000 liability limits, and

recover a total of $150,000.

               “Stacking” refers to an insured‟s ability to obtain multiple insurance
        coverage benefits for an injury either from more than one policy, as where the
        insured has two or more separate vehicles under separate policies, or from
        multiple coverages provided for within a single policy, as when an insured has
        one policy which covers more than one vehicle.

Ritchie, 307 S.W.3d at 135 (citation and internal quotation marks omitted).

        The “Limit of Liability” provision of the Policy prohibits stacking, since it specifies that

“[t]he limit of liability shown in the Declarations” is Allied‟s “maximum limit of liability”

“regardless of the number of . . . vehicles . . . shown in the Declarations.” Chandler argues that

the Policy‟s “Other Insurance” clause, when read in conjunction with the “Limit of Liability”

provision, creates an ambiguity which must be resolved in her favor. The “Other Insurance”

provision states in relevant part that “any insurance we provide for a vehicle you do not own

shall be excess over any other collectible insurance.” Chandler argues that the BMW was “a

vehicle you do not own,” because it was not owned jointly by Edna and Peter Wijnterp, the

named insureds under the Policy. Therefore, according to Chandler, the coverage provided to

the three separate insured vehicles under the Policy can be stacked.



applicable limit of liability “PER POLICY.” See Becker, 422 S.W.3d at 437-38. This lends further
credence to Allied‟s argument that the three numbers listed in the bodily injury column state the limit of
liability per vehicle, not for the policy as a whole.


                                                     8
        Although the parties hotly contest the issue, we need not decide whether the BMW

should be deemed “a vehicle you do not own.” Even if the BMW is considered a non-owned

vehicle, “other collectible insurance” must exist before the “Other Insurance” provision is

triggered. This is consistent with the general principle that, “[b]efore stacking can be an issue,

there must first be applicable coverages to stack.” Bush v. Shelter Mut. Ins. Co., 412 S.W.3d

336, 341 (Mo. App. W.D. 2013); accord Becker, 422 S.W.3d at 437 (“an insured seeking to

stack coverages must actually be an insured as to the particular loss under more than one

coverage”). Chandler‟s counsel acknowledged at oral argument, however, that she has not

sought to recover under the coverage the Policy provides on the other two insured vehicles.4

Because Chandler has not identified any other coverage which is even arguably applicable here,

no “stacking” issue arises, and the “Other Insurance” provision is inapplicable.5

                                               Conclusion

        With respect to the BMW involved in the accident in which Alexander Huber was killed,

the Allied Policy provides per-person limits of liability of $50,000 for bodily injury coverage,

and of $2,000 for medical payments coverage. The circuit court correctly granted summary

judgment to Allied with respect to the Policy‟s limits of liability. The judgment is affirmed.




        4
                 Because Chandler does not argue that the Policy‟s coverage on the Volvo or Ford
vehicles is applicable here, we need not decide any issue concerning that coverage. We note, however,
that because Jimenez would apparently qualify as a “family member” of the named insureds who owned
an automobile, he might very well be considered an insured under the Policy “only for the use of „your
covered auto.‟” Allied‟s counsel suggested at oral argument that this limitation would prevent Chandler
from invoking the Policy‟s coverage for the Volvo or Ford vehicles, since they were not the “covered
autos” which Jimenez was using at the time of the accident.
        5
                 Although we have not separately discussed the medical payments coverage in the text of
this opinion, that coverage is subject to policy provisions which are in all relevant respects identical to
those applicable to the bodily injury coverage. Therefore, the reasoning discussed in the body of this
opinion applies equally to the medical payments coverage, and establishes that the trial court correctly
determined that the Policy‟s medical payments coverage on the BMW is $2,000 per person, not $6,000.


                                                     9
                   __________________________________
                   Alok Ahuja, Judge
All concur.




              10
