LANA SLOAN,                                   )
                                              )
       Plaintiff-Appellant,                   )
                                              )
v.                                            )       No. SD36261
                                              )
FARM BUREAU TOWN &                            )       Filed: May 12, 2020
COUNTRY INSURANCE                             )
COMPANY OF MISSOURI,                          )
                                              )
       Defendant-Respondent,                  )
                                              )
and                                           )
                                              )
JESSE CLARK, JOSEPH E. WEBB, and              )
BOBBETTE J. WEBB,
                                              )
       Defendants.                            )

              APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY

                                Honorable James A. Hackett

REVERSED AND REMANDED

       In two points relied on, Lana Sloan (“Plaintiff”) appeals the judgment that denied

her motion for summary judgment and granted judgment in favor of defendant Farm

Bureau Town and County Insurance Company (“Farm Bureau”) on its motion for

summary judgment. Plaintiff’s second amended petition sought monetary damages from

the defendants for injuries she suffered as the result of a dog bite, and it sought payment




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for those injuries under the medical-payments provision of an insurance policy Farm

Bureau had issued to its insured, defendant Joseph Webb.1 The sole issue before the trial

court in regard to Farm Bureau was whether the dog that bit Plaintiff (“the dog”)

constituted “a ‘condition’ on the insured premises” under the medical-payments provision

of its policy.2

         In its judgment, the trial court found -- as a matter of law -- that the medical-

payments provision did not apply because the dog was “not a condition on the insured

premises.” Because the parties’ numbered statements of uncontroverted material facts and

the responses thereto (“the SUMF”) did not entitle Farm Bureau to a judgment in its favor,

we reverse the judgment in its favor and remand the case for further proceedings consistent

with this opinion.

                                             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).




1
  Plaintiff’s second amended petition also named as defendants Jesse Clark and Bobbette J. Webb.
2
  While the trial court’s judgment did not resolve all issues as to all parties in the case, it did resolve all of the
claims brought against Farm Bureau, and we do not find that the trial court abused its discretion in certifying
its judgment in favor of Farm Bureau as final for purposes of appeal under Rule 74.01(b). See Wilson v. City
of St. Louis, No. SC97544, 2020 WL 203137, at *4-5 (Mo. banc Jan. 14, 2020). All rule references are to
Missouri Court Rules (2019).



                                                          2
                                  Plaintiff’s Second Amended Petition

         Plaintiff’s Second Amended Petition made the following claims against Farm

Bureau that are relevant to this appeal:

         25.      Upon information [and] belief at the time of the aforesaid incident,
                  [Joseph Webb]’s residence was insured under a medical payments
                  policy issued by [Farm Bureau] and was in full force and effect on
                  August 27, 2017.

         26.      The policy provides medical payments coverage with unknown
                  limits per person for medical expenses for; a bodily injury arising
                  out of a condition on the insured premises[.3]

         27.      [Plaintiff] alleges that:

                  (a)       she is legally entitled to recover damages from [Farm
                            Bureau] because of medical expenses sustained by
                            [Plaintiff].

                  (b)       her injuries were caused by a condition on the insured
                            premises[.]

         28.      All conditions precedent in the Policy have been performed or have
                  occurred.[4]

                         Farm Bureau’s Motion for Summary Judgment

         Farm Bureau’s motion for summary judgment claimed the following facts to be

material and uncontroverted (“Farm Bureau’s SUMF”):5




3
  Plaintiff initially sought recovery under more than one section of the medical-payments provision.
However, by the time the motions for summary judgment came before the court for argument, only the
applicability of section 2.a., concerning whether the bodily injury arose out of a condition on the insured
premises, was argued to the trial court, and that is the only section at issue in this appeal. For that reason, we
have omitted all of Farm Bureau’s arguments and statements of uncontroverted material facts that are
directed to other sections of the medical payments provision.
4
  Plaintiff also included a claim against Farm Bureau for vexatious refusal to pay under section 375.420,
RSMo 2000.
5
  To enhance readability, we have omitted Farm Bureau’s references to supporting pleadings, discovery,
exhibits, and/or affidavits.



                                                        3
1.   The dog bite alleged by [Plaintiff] at issue in this lawsuit occurred
     on the public roadway of [Joseph Webb’s street address (“Joseph
     Webb’s address”).]

2.   The Farm Bureau Policy No. PRO0329157 at issue in this lawsuit
     had a policy period that began August 12, 2017 through August 12,
     2018, and the location shown on the Information Page as the insured
     premises is [Joseph Webb’s address.]

3.   The Farm Bureau Policy at issue in this lawsuit contains the
     following language regarding when Medical Payments to other
     applies to a person:

     Coverage G – Medical Payments to Others applies to a person, other
     than an insured, when the person sustains a bodily injury:

            1. On an insured premises with the permission of any
               insured, or

            2. Elsewhere, if the bodily injury:

                    a. Arises out of a condition on the insured premises;

                            ....

4.   The Farm Bureau Policy at issue in this lawsuit contains the
     following language regarding the definition of “Insured Premises”:

     Insured premises – means:

            1.      All locations shown on the Information Pages of
                    your policy;

                            ....

            5.      The insured premises location shown on the
                    Information Page of the Farm Bureau Policy at issue
                    in this lawsuit is [Joseph Webb’s address.]

                            ....

            10.     [Plaintiff] is not listed on the Information Page(s),
                    specifically, but not limited to under any OPTION N
                    – Named Person Medical Payments[.]




                                    4
                     11.    Jo[s]e[ph] Webb is the Named Insured shown on
                            the Information Page in the Farm Bureau Policy at
                            issue in this lawsuit[.]

                     12.    On or about August 27, 2017 or at time before or
                            after August 27, 2017, Jo[s]e[ph] Webb did not own
                            the dog referenced as “the pitbull-type dog” at issue
                            and referenced in Plaintiff’s First Amended
                            [Petition.]

                     13.    Jo[s]e[ph] Webb and his relatives did not own,
                            care for or harbor any dogs at the property located at
                            [Joseph Webb’s address] on August 27, 2017[.]

                                   ....

                     15.    Neither Jo[s]e[ph] Webb, his relatives, or any
                            employee of his were present at or in the vicinity [of]
                            [Joseph Webb’s address] on August 27, 2017[.]

                                   ....

                     17.    On or about August 27, 2017, the “pitbull-type
                            dog” at issue and referenced in Plaintiff’s First
                            Amended Petition was not in the care of Jo[s]e[ph]
                            Webb or his relatives[.]

                                   ....

                     20.    Albert Rinehart and Hailey Clark have claimed
                            ownership of the “pitbull- type dog” named “Buck”
                            at issue in this lawsuit[.]

                             Governing Principles of Law

       Rule 74.04 establishes the boundaries of Missouri’s summary judgment practice.

Under that rule:

       • Facts come into a summary judgment record only via Rule 74.04(c)’s
       numbered-paragraphs-and-responses framework.




                                           5
        • Courts determine and review summary judgment based on that Rule
        74.04(c) record, not the whole trial court record.

        • Affidavits, exhibits, discovery, etc. generally play only a secondary role,
        and then only as cited to support Rule 74.04(c) numbered paragraphs or
        responses, since parties cannot cite or rely on facts outside the Rule
        74.04(c) record.

        • To come full circle, summary judgment rarely if ever lies, or can
        withstand appeal, unless it flows as a matter of law from appropriate Rule
        74.04(c) numbered paragraphs and responses alone.

Columbia Mut. Ins. Co. v. Heriford, 518 S.W.3d 234, 239 (Mo. App. S.D. 2017)

(emphasis in original) (quoting Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo.

App. S.D. 2016)) (internal quotation marks and footnotes omitted). Material facts are facts

from which the right to judgment flows. Id. at 240.

               Generally, the denial of a motion for summary judgment is not
        reviewable on appeal. An exception exists, however, when the merits of
        that motion are inextricably intertwined with the issues in an appealable
        summary judgment granted in favor of another party.

Kerperian v. Columbia Mut. Ins. Co., No. SD 36236, 2020 WL 1181751, at *2 (Mo. App.

S.D. Mar. 12, 2020) (internal citations omitted). For ease of analysis, we address

Plaintiff’s second point first.

                                           Analysis

                                           Point 2

        Plaintiff’s second point claims:

                The trial court erred in granting Farm Bureau’s Motion for
        Summary Judgment because Farm Bureau’s Motion for Summary Judgment
        failed to make a prima facie showing of a right to judgment in that Farm
        Bureau’s [SUMF] omitted as a material fact that [Plaintiff]’s claim for
        medical expenses is not an insured risk of the Farm Bureau policy.




                                               6
         We agree that Farm Bureau’s motion for summary judgment failed to make a prima

facie showing of a right to judgment, albeit for different reasons. As asserted by Farm

Bureau in its SUMF, the medical-payments provision in its policy only provides coverage

in the event that Plaintiff “sustains a bodily injury” that “[a]rises out of a condition on the

insured premises[.]”6 Farm Bureau’s SUMF, however, fails to allege that the dog is not

“a condition on the insured premises” or that Plaintiff, after an adequate period of

discovery, would be unable to present evidence that the dog was “a condition on the

insured premises.” See ITT Commercial Fin. Corp, 854 S.W.2d at 381. As in Columbia,

Farm Bureau’s SUMF – at best – “categorizes certain selected evidence as material facts,

which, if specifically referenced for its secondary role, would inferentially[] support” the

material fact that the dog was not a condition on the insured premises. See 518 S.W.3d at

242.

         Because Farm Bureau’s motion for summary judgment never alleged that the dog

was not “a condition on the insured premises” or that Plaintiff would be unable to prove

that it was, its SUMF failed to make a prima facie showing of a right to judgment as a

matter of law, and the trial court’s judgment in favor of Farm Bureau must be reversed.

See id. at 243; ITT Commercial Fin. Corp, 854 S.W.2d at 381. Point 2 is granted.

                                                    Point 1

         Point 1 claims:

                The trial court erred in granting Farm Bureau’s Motion for
         Summary Judgment and denying [Plaintiff]’s Motion for Summary
         Judgment by concluding Farm Bureau’s medical payments policy
         provisions do not apply to the dog bite incident at issue by finding as a

6
 Because the parties agree that Plaintiff’s injuries did not occur on the insured’s premises, section 1 of the
medical-payments coverage is not applicable.



                                                       7
       matter of law that [the dog] is not a “condition on the insured premises”
       because a reasonable interpretation favoring coverage when considering the
       whole insurance contract, giving meaning to every word and giving
       undefined words their plain and ordinary meaning would include dogs
       qualify as the undefined term “condition” in that the dog had been on the
       insured premises for over two years before biting [Plaintiff] and Missouri
       has recognized for over twenty-five years that a dog is a “condition on the
       premises” for purposes of submitting to juries premises liability claims.

       In light of our resolution of Point 2, we need only address Point 1 insofar as it

claims that the trial court also erred in denying Plaintiff’s motion for summary judgment.

       As earlier noted, the general rule is that the denial of a motion for summary

judgment may not be appealed. Kerperian, 2020 WL 1181751, at *2. Although Plaintiff

states in a conclusory manner that the parties’ motions for summary judgment are

“inextricably intertwined[,]” her brief makes no attempt to convince us that this is so. In

the absence of such a showing, the general rule applies, and that the trial court’s denial of

Plaintiff’s motion for summary is not subject to our review. See id.

       The judgment in favor of Farm Bureau is reversed, and the matter is remanded for

further proceedings consistent with this opinion.

DON E. BURRELL, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

MARY W. SHEFFIELD, J. – CONCURS




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