                                Missouri Court of Appeals
                                            Southern District
                                                Division Two


FARMERS INSURANCE CO., INC.,                            )
and MID-CENTURY INSURANCE CO.,                          )
                                                        )
         Plaintiffs-Respondents,                        )
                                                        )
vs.                                                     )       No. SD32632
                                                        )
ROBIN WILSON and                                        )       Filed March 20, 2014
DONALD BILLINGSLEY,                                     )
                                                        )
         Defendants-Appellants.                         )

             APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                       Honorable Jason R. Brown, Associate Circuit Judge

AFFIRMED

         Robin Wilson and Donald Billingsley (“Claimants”) appeal the trial court’s denial

of their motion for summary judgment and its grant of summary judgment in favor of

Farmers Insurance Company, Inc., and Mid-Century Insurance Company (“Farmers” and

“Mid-Century” individually, and “Insurance Companies” collectively). Claimants argue

that the trial court misapplied the law because the provisions in the three insurance

policies at issue were ambiguous, requiring that the policies’ liability limits be stacked.1

Finding no merit in Claimants’ argument, we affirm.

1
  “‘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
                              Factual and Procedural Background2

         Claimants are the parents of Wesley Billingsley. Wesley died as a result of an

automobile accident involving a 2002 Dodge Intrepid (“Dodge”), which was driven by

Hannah Thomas. Hannah is the daughter of Sheryl Thomas and John Thomas; all three

were residing in the same household when the accident occurred.3

         At the time of the accident, Sheryl and John owned four vehicles and had separate

insurance policies on each. Sheryl was the owner of the Dodge, and a Farmers insurance

policy was in effect that listed on its declarations page the Dodge as the insured vehicle

and Sheryl as the named insured (“Dodge policy”). Sheryl was also the owner of a 2002

Chevrolet Tahoe, and a Farmers insurance policy was in effect that listed on its

declarations page the Chevrolet as the insured vehicle and Sheryl as the named insured

(“Chevrolet policy”). John was the owner of a 1997 Ford F-150, and a Mid-Century

insurance policy was in effect that listed on its declarations page the Ford as the insured

vehicle and John as the named insured (“Ford policy”). John was also the owner of a

2003 Harley-Davidson motorcycle, and a Farmers insurance policy was in effect that

listed on its declarations page the motorcycle as the insured vehicle and John as the

named insured (“Motorcycle policy”). The declarations pages of the Dodge, Chevrolet,

and Ford policies each showed liability limits for bodily injury of $100,000 per person

and $300,000 per occurrence, while the declarations page of the Motorcycle policy

showed liability limits for bodily injury of $50,000 per person and $100,000 per

occurrence.

covers more than one vehicle.” Durbin v. Deitrick, 323 S.W.3d 122, 124 n.1 (Mo. App. 2010) (quoting
Niswonger v. Farm Bureau Town & Country Ins. Co. of Mo., 992 S.W.2d 308, 313 (Mo.App.1999)).
2
  Claimants and Insurance Companies stipulated to the facts submitted to the trial court on their cross-
motions for summary judgment, and our facts are taken from that written stipulation.
3
  Because all three have the same last name, we refer to each in this opinion by his or her first name. No
familiarity or disrespect is intended.


                                                     2
       Claimants filed suit against Hannah for the wrongful death of their son. During

the course of litigation, Claimants took the position that they could “stack” the liability

limits of all four policies and thus demanded $350,000 from Hannah. The suit was

ultimately settled pursuant to section 537.065, RSMo 2000, with Farmers paying

Claimants $100,000—the liability limit under the Dodge policy—in exchange for the

protection of Hannah’s assets in any future judgment arising out of the accident, other

than her rights under the Chevrolet, Ford, and Motorcycle policies. Claimants further

agreed to participate in an action for declaratory judgment to determine whether the

additional policies’ liability limits should be stacked on top of the $100,000 liability limit

already paid.

       Insurance Companies filed the underlying action for declaratory judgment

claiming that exclusion number ten of the Chevrolet and Ford policies and exclusion

number nine of the Motorcycle policy excluded the Dodge from coverage under each

respective policy because the Dodge was “a vehicle other than ‘your insured car’, as

that term is defined by the polic[ies], which was owned by or furnished or available for

regular use by the insured or a ‘family member’.” Insurance Companies further claimed

that, even if those exclusions did not apply, the anti-stacking language in the “Other

Insurance” provisions of the policies prevented Claimants from stacking the liability

limits. In their answer, Claimants argued that the language in each of the policies was

ambiguous, allowing them to recover the maximum liability limit from each policy. Both

parties filed motions for summary judgment asserting their respective positions.




                                              3
        The trial court entered a judgment granting Insurance Companies’ motion for

summary judgment, denying Claimants’ motion, and entering declaratory judgment in

favor of Insurance Companies. This appeal followed.

                                         Standard of Review

                Our review is essentially de novo. The criteria on appeal for
        testing the propriety of summary judgment are no different from those
        which should be employed by the trial court to determine the propriety of
        sustaining the motion initially. The propriety of summary judgment is
        purely an issue of law. As the trial court’s judgment is founded on the
        record submitted and the law, an appellate court need not defer to the trial
        court’s order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371,

376 (Mo. banc 1993) (internal citations omitted).

                                               Discussion

        In their sole point on appeal, Claimants argue that the trial court erred in denying

their motion for summary judgment4 and granting Insurance Companies’ motion by

misapplying the law because “the language in the Other Insurance clauses” conflicts

“with the policy’s [sic] exclusionary and anti-stacking provision languages and created

ambiguities which require the stacking of the three additional household policies.” We

disagree, finding no coverage under any of the three additional policies.

        “Before 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. 2013). Therefore,

“[i]n any case potentially involving stacked coverages, the initial step for both insured

and all potential insurers should be an analysis of whether there are multiple applicable

4
  “Ordinarily, the denial of a motion for summary judgment will not be reviewed on appeal.” Grissom v.
First Nat'l Ins. Agency, 371 S.W.3d 869, 879 (Mo.App. 2012). Where, however, the material facts are
undisputed and the merits of the denied cross-motion for summary judgment are inextricably intertwined
with the issues raised in the granted motion for summary judgment, the merits of the denial of the cross-
motion may be reviewed on appeal. Id. The trial court’s denial of Claimants’ cross-motion for summary
judgment and this appeal of that denial fall within the latter category.


                                                     4
coverages applicable.” Id. (internal quotation marks omitted). “In construing the terms

of an insurance policy, this Court applies the meaning which would be attached by an

ordinary person of average understanding if purchasing insurance, and resolves

ambiguities in favor of the insured.” Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132

(Mo. banc 2007) (internal quotation marks and citation omitted). “An ambiguity exists

when there is duplicity, indistinctness, or uncertainty in the meaning of the language in

the policy. Language is ambiguous if it is reasonably open to different constructions.”

Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 814 (Mo. banc 1997). Absent any

ambiguity, however, “an insurance policy must be enforced according to its terms.”

Seeck, 212 S.W.3d at 132.

                        Motorcycle Policy Provides No Coverage

       The Motorcycle policy contains the following language:

       PART I – LIABILITY

       Coverage A – Bodily Injury

       Coverage B – Property Damage

       We will pay damages for which any insured person is legally liable
       because of bodily injury to any person and/or property damage arising
       out of the ownership, maintenance or use of a motorcycle.

The Motorcycle policy also provides that the term “[m]otorcycle means a two wheel land

motor vehicle licensed for use upon public highways.”

       Nothing in the stipulated facts supports that the Dodge is a motorcycle. Claimants

could not explain at oral argument how a four-wheel vehicle like the Dodge is a

motorcycle as defined in the policy. The Motorcycle policy only affords coverage arising

out of the use of a motorcycle, as that term is defined in that policy. Therefore, because

the Dodge is not a “two wheel land motor vehicle,” there is no coverage under the


                                             5
Motorcycle policy arising out of the use of the Dodge by Hannah at the time of the

accident.

                      Chevrolet and Ford Policies Provide No Coverage

               There are a number of provisions that are essential to an insurance
       policy. The policy must identify: the “insured,” the individual or entity
       with the interest at risk; the “coverage” or “insuring agreement,” the
       subject matter and the contingency insured against;[] the “period,” the
       dates prescribing the duration of the risk or contingency insured against;
       and the “limits,” the amount the insurer is liable to pay for any given risk
       up to a specified amount. The essential terms are usually stated in
       abbreviated form on a declarations page.

               Insurance policies also usually include a number of other
       categories of terms. “Definitions” are usually provided for key terms.
       “Conditions” are usually specified regarding the parties’ respective
       obligations. “Exclusions” are usually stated that limit risks that otherwise
       might have been covered, and “Endorsements” are often made adding
       coverage of risks that otherwise might not have been covered.

Todd v. Missouri United School Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007)

(footnote omitted).

       In determining whether ambiguities exist, all of these provisions must be read “as

a whole, rather than in isolation.” Stone v. Farm Bureau Town & Country Ins. Co. of

Missouri, 203 S.W.3d 736, 746 (Mo.App. 2006). “Proper interpretation requires that we

seek to harmonize all provisions of the policy to avoid leaving some provisions without

function or sense.” Kyte v. Am. Family Mut. Ins. Co., 92 S.W.3d 295, 299 (Mo.App.

2002). “Though it is the duty of the court to reconcile conflicting clauses in a policy so

far as their language reasonably permits, when reconciliation fails, inconsistent

provisions will be construed most favorably to the insured.” Bellamy v. Pac. Mut. Life

Ins. Co., 651 S.W.2d 490, 496 (Mo. banc 1983). “Definitions, exclusions, conditions[,]

and endorsements are necessary provisions in insurance policies. If they are clear and




                                             6
unambiguous within the context of the policy as a whole, they are enforceable.” Todd,

223 S.W.3d at 163.

         Claimants contend that the “Other Insurance” provisions conflict with the listed

exclusions and thus create an ambiguity as to whether the Dodge was covered under the

two additional vehicle policies; ambiguities, as discussed supra, must be resolved in

favor of the insured and, therefore, Claimants contend the liability limits of the Chevrolet

and Ford policies must be stacked on top of the liability limits of the Dodge policy. We

disagree.

         As relevant here, both policies contain the following definitions:

         Throughout this policy, "you" and "your" mean the "named insured"
         shown in the Declarations and spouse if a resident of the same household.

         ....

         Family member means a person related to you by blood, marriage or
         adoption who is a resident of your household.

         ....

         Private Passenger Car means a four wheel land motor vehicle of the
         private passenger or station wagon type actually licensed for use upon
         public highways.

         ....

         Your insured car means:

                  1. Any private passenger car or utility car described in the
                     Declarations of this policy[5];
                  2. A replacement vehicle;
                  3. A substitute vehicle;
                  4. A rental vehicle;
                  5. An additional vehicle;
                  6. Any utility trailer:

5
 Claimants do not contend that the term “Your insured car,” in the context of the stipulated facts, refers to
any vehicle other than the insured vehicle described in the declarations of each respective insurance policy
at issue. Therefore, we omit the policy definitions for replacement vehicle, substitute vehicle, rental
vehicle, additional vehicle, and utility trailer.


                                                      7
               a. That you own, or
               b. If not owned by you, while attached to your insured
                  vehicle.

Both policies also contain the following insuring agreement:

SECTION I – LIABILITY

Coverage A – Bodily Injury

Coverage B – Property Damage

We will pay damages for which any insured person is legally liable
because of bodily injury to any person and property damage arising out
of the ownership, maintenance or use of a private passenger car, a utility
car, or a utility trailer.

We will defend any claim or suit asking for these damages. We may
settle when we consider it appropriate.

We will not defend any suit or make additional payments after we have
paid the limit of liability for the coverage.

Both policies contain the following exclusion:

Exclusions

This coverage does not apply to:

....

10.    Bodily injury or property damage arising out of the ownership,
maintenance or use of any vehicle other than your insured car, which is
owned by or furnished or available for regular use by you or a family
member.

Finally, both policies provide:

Other Insurance

....

Any insurance we provide for a vehicle you do not own shall be excess
over any other collectible insurance.




                                    8
       We begin our analysis with the conditions of the insuring agreement. It is

uncontroverted that Hannah was an “insured person” at the time of the accident and that

the Dodge she was driving at the time of the accident was a “private passenger car.”

Therefore, her use of the Dodge meets the conditions for inclusion in the broad general

class of persons afforded liability coverage in the insuring agreement, unless otherwise

excluded from coverage. We next turn to whether Hannah’s use of the Dodge at the time

of the accident falls within an excluded subgroup of that general class.

       “Policy provisions designed to cut down, restrict, or limit insurance coverage

already granted, or introducing exceptions or exemptions must be strictly construed

against the insurer. However, absent an ambiguity, an insurance policy must be enforced

according to its terms.” Bush, 412 S.W.3d at 339 (internal quotation marks and citations

omitted).

       Insurance Companies contend that the Dodge falls within exclusion number ten

(sometimes referred to as the “regular use exclusion”), supra, of the Chevrolet and Ford

policies because it is a “vehicle other than your insured car, which is owned . . . by you or

a family member.” Claimants do not dispute the first part of the proposition, but contend

that because the policy definition of “you” means “the ‘named insured’ shown in the

Declarations and spouse if a resident of the same household,” the exclusion only applies

to “vehicles other than your insured car” that are owned by both the named insured and

spouse. Pointing out that the Dodge is owned solely by Sheryl, Claimants assert that the

exclusion does not apply. Insurance Companies counter that the policies’ definition of

“you” unambiguously provide that both the named insured and the named insured’s

spouse individually satisfy its meaning and that therefore the exclusion encompasses




                                             9
vehicles owned by either individually or both together. State Farm Fire & Cas. Co. v.

Berra, 891 S.W.2d 150, 152 (Mo.App. 1995), seems to support this position.

Nevertheless, citing Chamness v. Am. Family Mut. Ins. Co., 226 S.W.3d 199, 204 (Mo.

App. 2007), Claimants assert that the existence of two reasonable interpretations of this

definition creates an ambiguity that requires resolution in their favor such that the

exclusion does not apply.6 Because the exclusion also applies to exclude from coverage

“vehicles other than your insured car” owned by a family member, we need not decide

whether the policies’ definition of “you” is ambiguous.

        Assuming, without deciding, that “you” means both the named insured and the

named insured’s spouse together, as Claimants contend, that definition would also apply

to the use of “you” and “your” in the policies’ definitions of “family member,” supra.

Sheryl individually meets the definition of a family member in each policy because she is

a person related by blood or marriage to both the named insured and the named insured’s

spouse and she resides in the named insured’s and the named insured’s spouse’s

household. Therefore, the exclusion applies regardless of the claimed ambiguity in the

use of the word “you.”

        Because the Dodge is excluded from coverage under the Chevrolet and Ford

polices, there is no coverage to stack, Bush, 412 S.W.3d at 341, and nothing to trigger the

“Other Insurance” clauses in those polices, id. at 342. Claimants’ reliance on Ritchie v.

Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132 (Mo. banc 2009); Seeck, 212 S.W.3d 129;

Durbin v. Deitrick, 323 S.W.3d 122 (Mo.App. 2010); and Chamness, 226 S.W.3d 199,


6
  This alleged ambiguity in this exclusion is the premise for Claimants’ argument that the “Other
Insurance” provisions conflict with the exclusion and create an ambiguity. Claimants advance no argument
that, even if the exclusion unambiguously excludes the Dodge from coverage, the “Other Insurance”
provisions as compared to the exclusion, nevertheless, create an ambiguity.


                                                  10
to contend otherwise is misplaced. None of those cases involved an accident vehicle that

was expressly and unambiguously excluded from coverage in the first instance in the

other insurance policy at issue. Because neither policy affords coverage for the use of the

Dodge by Hannah at the time of the accident, there is nothing to stack.7 See Bush, 412

S.W.3d at 341. Claimants’ point is denied.

                                                Decision

        The trial court’s grant of summary judgment in favor of Respondents and denial

of Claimants’ cross-motion for summary judgment is affirmed.



GARY W. LYNCH, J. - Opinion author

JEFFREY W. BATES, P.J. - concurs

MARY W. SHEFFIELD, J. - concurs




7
  The application of the Missouri Motor Vehicle Financial Responsibility Law (“MVFRL”), section
303.190, RSMo 2000, to the insurance policies involved here was not an issue before the trial court and,
therefore, is not an issue in this appeal.


                                                    11
