            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

 SHANE S. TAYLOR,                               )
                                                )
                                Respondent,     )
                                                )    WD79128
 v.                                             )
                                                )    OPINION FILED:
                                                )    September 13, 2016
 OWNERS INSURANCE COMPANY,                      )
                                                )
                                  Appellant.    )


               Appeal from the Circuit Court of Buchanan County, Missouri
                         The Honorable Daniel F. Kellogg, Judge

               Before Division Two: Karen King Mitchell, Presiding Judge, and
                         Cynthia L. Martin and Gary D. Witt, Judges

       Shane Taylor filed a petition for declaratory judgment seeking a declaration that he is

entitled to uninsured motorist coverage (UM coverage) from the insurance policy of his mother,

Judy Taylor (Mother’s Policy, or the Policy), issued by Owners Insurance Company (Owners).

Owners appeals the trial court’s grant of summary judgment in favor of Taylor, and the denial of

its own motion for summary judgment. Because Mother’s Policy did not provide UM coverage to

Taylor, we reverse. Moreover, because both parties concede that identical issues govern the

motions for summary judgment filed by both sides and agree as to all facts on which judgment

was sought by both parties, no purpose would be served by remand for reconsideration of Owners’s
motion for summary judgment. Therefore, this court reverses the trial court’s judgment and enters

judgment in favor of Owners.

                                          Background

       The parties submitted the case to the trial court on stipulated facts. Taylor was riding his

Harley Davidson motorcycle on May 2, 2014, when he was struck by a 2000 Ford Focus, operated

by Rigoberto Cabrera, an uninsured motorist. Taylor, whose actions did not contribute to cause

the collision, was severely injured and sustained damages in excess of $275,000.

       At the time of the collision, Farm Bureau Town and Country Insurance Company of

Missouri (Farm Bureau) had issued two policies in the names of Taylor and his wife, Elicia; the

first Farm Bureau policy covered the motorcycle, as well as another vehicle owned by the couple,

while the second policy covered the couple’s third vehicle. The Farm Bureau policies contained

UM coverage for up to $25,000 per vehicle, and Taylor has been paid the full aggregate policy

limits of $75,000 for the three vehicles insured by Farm Bureau.

       Owners issued Mother a policy listing the two vehicles that she owned. Mother’s Policy

provides UM coverage with a limit of $100,000 per vehicle. Mother is the only person listed in

her Policy, though Taylor, who lives with Mother, is a “relative” under Mother’s Policy, which

defines relative as “a person who resides with you and who is related to you by blood, marriage,

or adoption.” The “UNINSURED MOTORIST COVERAGE” endorsement in Mother’s Policy

includes a “COVERAGE” subsection that extends UM coverage “to a relative who does not own

an automobile.” The UM endorsement in Mother’s Policy also includes subsections addressing:

“EXCLUSIONS” from coverage, “LIMIT[S] OF LIABILITY,” and when “OTHER

UNINSURED MOTORIST COVERAGE” is primary or excess over coverage provided by the

UM endorsement.




                                                2
         Taylor filed a UM claim with Owners on Mother’s Policy. Owners denied Taylor’s claim

because he did not fall within the COVERAGE subsection of the UM endorsement, as he owned

an automobile at the time of the accident. Taylor filed suit seeking damages and a declaratory

judgment that he had the right to UM coverage under Mother’s Policy. The parties filed motions

for summary judgment on stipulated facts, and the trial court granted Taylor’s motion and denied

Owners’s motion. The trial court found Mother’s Policy to be “ambiguous as to the [UM] coverage

provided to ‘relatives’ of [Mother],” and accordingly construed the Policy in favor of coverage.

The trial court determined that Taylor was entitled to aggregate coverage in the amount of

$200,000 under the Policy, and entered judgment against Owners in that amount.

         Owners timely appealed.

                                               Standard of Review

         Summary judgment is proper when the moving party demonstrates there is no genuine

dispute about material facts and, under the undisputed facts, the moving party is entitled to

judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Fin. Corp. v. Mid-Am. Marine

Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). An appellate court’s review of a motion for

summary judgment is de novo. ITT, 854 S.W.2d at 376. And where, as here, the facts are

stipulated, no deference is given to the trial court’s findings; the only question before the appellate

court is whether the trial court drew the proper legal conclusions from the facts stipulated. White

v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010).

                                                       Analysis

         In its two points,1 Owners argues that the trial court committed reversible error in denying

its motion for summary judgment and granting Taylor’s motion because: (1) the UM endorsement


         1
          Taylor argues that Owners’s “first point on appeal . . . [and] second point on appeal . . . are contradictory in
and of themselves,” which, according to Taylor, shows the “ambiguity contained within the Owners UM Policy.” We


                                                            3
in Mother’s Policy unambiguously limits coverage to relatives who do not own an automobile, of

which Taylor owns three; and (2) if Taylor is entitled to coverage, his recovery should be limited

to $50,000 because Mother’s Policy contains an exclusion limiting coverage to $25,000 per

vehicle, the statutory minimum, for any person operating an automobile not insured by Mother’s

Policy. The first point is dispositive, requiring reversal, and, therefore, we do not reach Owners’s

second point.

         A. Appeal from the denial of summary judgment.

         First, we note that, “[g]enerally, the denial of a motion for summary judgment is not a final

judgment that may be reviewed on appeal.” McGathey v. Matthew K. Davis Trust, 457 S.W.3d

867, 876 (Mo. App. W.D. 2015) (quoting Herring v. Prudential Prop. & Cas. Ins. Co., 96 S.W.3d

893, 894 (Mo. App. W.D. 2002)). However, “[w]hen the merits of that motion . . . are inextricably

intertwined with the issues in an appealable summary judgment in favor of another party, then that

denial may be reviewable.” Lopez v. Am. Family Mut. Ins. Co., 96 S.W.3d 891, 892 (Mo. App.

W.D. 2002). Here, the motions for summary judgment rely on the application of the same law to

stipulated facts in order to answer two discrete questions: whether Taylor has UM coverage under

Mother’s Policy, and, if so, whether such coverage is subject to an exclusion limiting coverage to

$25,000 per vehicle. The motions are inextricably intertwined and we will review both the grant

and denial of summary judgment.




disagree. It is routine for parties to make arguments in one point, and then to offer an alternative argument in a second
point in case the court rejects the first argument. It is not uncommon for the arguments to be at odds with each other.
Indeed, the very fact of arguing in the alternative often begins with the assumption that the court has found the first
argument, despite the litigant’s best efforts, to be incorrect. Arguing in the alternative does not, as Taylor suggests,
show that the Policy is ambiguous.


                                                           4
       B. UM Coverage

       The key issue before this court is whether the Owners Policy is ambiguous. When there is

ambiguity in an insurance policy, the Court must interpret the policy in favor of the insured. Todd

v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). Courts will not, however,

create ambiguity in an otherwise unambiguous policy. Taylor v. Bar Plan Mut. Ins. Co., 457

S.W.3d 340, 344 (Mo. banc 2015). “The general rules for interpretation of other contracts apply

to insurance contracts as well. The key is whether the contract language is ambiguous or

unambiguous.” Todd, 223 S.W.3d at 160 (quoting Peters v. Emp’rs Mut. Cas. Co., 853 S.W.2d

300, 301-02 (Mo. banc 1993)). “[W]here insurance policies are unambiguous, they will be

enforced as written.” Id. (quoting Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379,

382 (Mo. banc 1991)). “Whether an insurance policy is ambiguous is a question of law.” Id.

(quoting Martin v. U.S. Fidelity and Guar. Co., 996 S.W.2d 506, 508 (Mo. banc 1999)).

       “It is settled law that ‘when analyzing an insurance contract, the entire policy and not just

isolated provisions or clauses must be considered.’” Rice v. Shelter Mut. Ins. Co., 301 S.W.3d 43,

47 (Mo. banc 2009) (quoting Versaw v. Versaw, 202 S.W.3d 638, 643 (Mo. App. S.D. 2006)). “If

an entire policy is analyzed in context and found to be unambiguous, i.e., its language is plain,

straightforward, and susceptible to only one meaning, the rules of construction are inapplicable.”

Id. (quoting Versaw, 202 S.W.3d at 643). However, if there is duplicity, indistinctness, or

uncertainty in the meaning of the policy when it is read as a whole, and “the policy is therefore

open to different constructions,” an ambiguity exists, and “the policy ‘will be interpreted in the

manner that would ordinarily be understood by the lay person who bought and paid for the

policy.’” Id. (quoting Versaw, 202 S.W.3d at 643). “Conflicting clauses in a policy should be

reconciled so far as their language reasonably permits; when reconciliation fails, however,




                                                 5
inconsistent provisions will be construed in favor of the insured.” Jones v. Mid-Century Ins. Co.,

287 S.W.3d 687, 692 (quoting Lutsky v. Blue Cross Hosp. Servs., Inc. of Mo., 695 S.W.2d 870,

875 n.7 (Mo. banc 1985)). Generally, “‘if a contract promises something at one point and takes it

away at another, there is an ambiguity.’” Jones, 287 S.W.3d at 690 (quoting Seeck v. Geico Gen.

Ins. Co., 212 S.W.3d 129, 133 (Mo. banc 2007)).

        Here, the UM endorsement in Mother’s Policy contains six subsections. The four relevant

subsections2 include one addressing “COVERAGE” (defining to whom and under what

circumstances Owners will pay compensatory damages for bodily injuries caused by an uninsured

motorist) and three addressing: “EXCLUSIONS” (limiting the amount of coverage in certain

circumstances to the minimum amount required by the Missouri Motor Vehicle Financial

Responsibility Law), “OTHER UNINSURED MOTORIST COVERAGE” (addressing when the

UM coverage in the endorsement will be primary and when it will be excess as to other applicable

UM coverage), and “LIMIT OF LIABILITY” (addressing when the Limit of Liability stated in the

Declarations for UM coverage applies). In its motion for summary judgment, Owners argued that

the language of the COVERAGE subsection of the UM endorsement unambiguously excludes

Taylor from coverage because he owns automobiles. In his response to Owners’s motion and in

his own motion for summary judgment, Taylor argued that, even if the COVERAGE subsection

clearly excludes him, the “LIMIT OF LIABILITY” and “OTHER UNINSURED MOTORIST

COVERAGE” subsections reasonably can be read as providing coverage to relatives, without

exception.3 Therefore, Taylor argues these subsections create an ambiguity, and the policy must




        2
           Two subsections: (1) additional definitions (applicable only to the UM endorsement) and (2) conditions
(addressing the timing of claims) are not relevant to the issues presented here.
         3
           On appeal, Taylor also argues that the EXCLUSIONS subsection can be reasonably read to provide
coverage to him and thus creates an ambiguity.


                                                       6
be read to provide coverage. In granting summary judgment to Taylor, the trial court found that

the UM endorsement was ambiguous. The basis for this finding is not clear.

               i.      COVERAGE

       The COVERAGE subsection provides:

       a. [Owners] will pay compensatory damages . . . that any person is legally entitled
          to recover from the owner or operator of an uninsured automobile for bodily
          injury sustained . . . while occupying an automobile that is covered by . . . the
          policy.
       b. If the first named insured in the Declarations is an individual, this coverage is
          extended as follows:
          ...
          (2) The coverage . . . is also afforded to a relative who does not own an
          automobile.
       A “relative” is defined in the general “definitions” section (SECTION I) of Mother’s Policy

as “a person who resides with you and who is related to you by blood, marriage, or adoption.”

This definition applies throughout the Policy. It is clear that Taylor, who is Mother’s son, and who

the parties stipulated lives with Mother, qualifies as a relative under the Policy. The coverage

subsection of the UM endorsement provides UM coverage (with some limitations not relevant

here) to the named insured shown in the Declarations (including the named insured’s spouse who

resides in the same household, per the Policy’s definitions), and “to a relative who does not own

an automobile.” Taylor owns no fewer than three automobiles, each of which is insured by policies

in Taylor’s name.

       “Definitions, exclusions, conditions and endorsements are necessary provisions in

insurance policies. If they are clear and unambiguous within the context of the policy as a whole,

they are enforceable.” Todd, 223 S.W.3d at 163. Policy language that extends coverage only to

relatives that do not own an automobile has been upheld as clear and unambiguous, and not

contrary to public policy. Indeed, such “language is in common usage[, and] . . . research has

disclosed [no authority] in which the intent and meaning of these provisions were ever in doubt. . .


                                                 7
because no ambiguity appears.” Famuliner v. Farmers Ins. Co., Inc., 619 S.W.2d 894, 896, 899

(Mo. App. W.D. 1981) (Relative is defined as “a relative of the named insured who is a resident

of the same household, provided neither such relative nor his spouse owns an automobile.”); Lair

v. Am. Family Mut. Ins. Co., 789 S.W.2d 30, 32 (Mo. banc 1990) (The son of the named insured,

who owned an automobile, was excluded from coverage under his parents’ uninsured motorist

coverage where the policies at issue excluded from coverage any relative who “owns a car.”).

“The obvious instruction of [this] policy condition[] is that vehicle owners, including relatives of

the named insured, should look to their own insurance as to events associated with ownership and

use of their machine.”      Famuliner, 619 S.W.2d at 897.       Relying on the language of the

COVERAGE subsection, Owners argues that the UM endorsement does not provide coverage to

Taylor.

          Taylor attempts to distinguish Famuliner and Lair by noting that, in those cases, the

limitation on coverage based on vehicle ownership appeared in the definition of “relative,” while

in Mother’s Policy the limiting language appears in the COVERAGE subsection. Taylor cites no

authority and makes no argument supporting the contention that a policy cannot put conditions on

coverage directly in the COVERAGE subsection, and we are aware of no such authority.

Arguably, a policy with the limitation on coverage stated directly in the COVERAGE subsection

would be easier for a layperson to read, as opposed to requiring the reader to flip back and forth

between definitions and the coverage provision. Here, the subsection of the Policy setting forth

the scope of the UM insurance makes it clear that coverage applies only “to a relative who does

not own an automobile.” See Taylor, 457 S.W.3d at 345 (“If [the] acts or omissions do not fall




                                                 8
within the scope of the policy’s general insuring clause, then judgment in favor of the [insurer]

was proper and this Court need not reach the” disputed language located elsewhere in the Policy.).4

         Faced with the unambiguous language of the COVERAGE subsection, Taylor argues that

three other subsections of Mother’s Policy, containing either exclusions or limitations to coverage,

create ambiguity as to whether UM coverage applies to Taylor, and therefore the Policy must be

read in favor of coverage: (1) an EXCLUSIONS subsection referred to as the “owned but not

insured” exclusion; (2) the LIMIT OF LIABILITY subsection, setting forth the limits that the

Policy will pay for each person and occurrence; and (3) the Policy’s OTHER UNINSURED

MOTORIST COVERAGE section, which provides when the Policy’s UM coverage is primary or

excess coverage and limits the Policy’s coverage to a pro-rata share of the damages in certain

instances.

         In support of his argument, Taylor relies on what he claims to be, “Black letter Missouri

law”: “[w]here one provision of an insurance policy appears to grant coverage, while another

provision appears to take that coverage away, an ambiguity exists that will be resolved in favor of

coverage.” (Quoting Jones, 287 S.W.3d at 689.) By relying on this proposition, Taylor appears

to argue that any exclusion from coverage necessarily creates an irreconcilable conflict within a

policy. But the Missouri Supreme Court has clarified the meaning of this general proposition:

         Taken out of context, [this] language . . . may be confusing. Insurance policies
         customarily include definitions that limit words used in granting coverage as well
         as exclusions that exclude from coverage otherwise covered risks. While a broad
         grant of coverage in one provision that is taken away by a more limited grant in
         another may be contradictory and inconsistent, the use of definitions and exclusions
         is not necessarily contradictory or inconsistent. The principle . . . is more accurately

         4
           While we reject the argument that a condition or limitation on coverage provided to relatives must be
included in the definition of “relative,” Taylor’s argument that the general definition of “relative,” which does not
include the limitation on coverage, is relevant to his claim that the LIMIT OF LIABILITY subsection creates an
ambiguity, in that unlike the COVERAGE subsection, the LIMIT OF LIABILITY subsection uses the term “relative”
without additional limitation or condition. The import of not including the limitation in the definition of relative in
the LIMIT OF LIABILITY subsection will be addressed infra.


                                                          9
       stated as follows: “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.”

Todd, 223 S.W.3d at 162-63 (emphasis added) (quoting Bellamy v. Pacific Mut. Life Ins. Co., 651

S.W.2d 490, 496 (Mo. banc 1983)). Relying on this language, courts have held that exclusions

and limits-of-liability provisions may be used to narrow otherwise broad coverage provisions

without creating ambiguity. See Naeger v. Farmers Ins. Co., Inc., 436 S.W.3d 654, 660 (Mo. App.

E.D. 2014) (“[T]he mere existence of limitations and exclusions to broad coverage provisions does

not, in and of itself, create ambiguity in the contract.”). Here, Taylor argues, and the trial court

apparently held, the converse—that provisions addressing exclusions and limits of liability would

be read by a layperson to create coverage otherwise expressly denied and that they create an

ambiguity that must be read in favor of the insured.

               ii.     EXCLUSIONS

       Taylor first points to the “EXCLUSIONS” subsection of the UM endorsement which

provides in relevant part:

       Uninsured Motorist Coverage does not apply:
       ...
       b. to any person injured while occupying . . . an automobile which is owned . . . by
       . . . such person injured if such automobile:
       ...
                (3) is not insured for Uninsured Motorist Coverage by the policy.

       This exclusion applies only to the extent that the Limit of Liability for Uninsured
       Motorist Coverage shown in the Declarations exceeds the minimum amounts
       required by the Motor Vehicle Financial Responsibility Law of Missouri.

       This “owned but not insured” exclusion limits liability for a person driving his own vehicle,

which is not insured by the Policy, to the amount required by Missouri’s financial responsibility

law. Neither Taylor nor the trial court precisely states which language within the “owned but not

insured” exclusion grants coverage, but it should be noted that the EXCLUSIONS subsection of



                                                 10
the Policy specifically begins, “[UM] Coverage does not apply,” and then sets forth a number of

exclusions to the coverage otherwise provided by the Policy. “An exclusion provision in an

insurance policy, by definition, excludes risk” that would otherwise be covered. Browning v.

GuideOne Specialty Mut. Ins. Co., 341 S.W.3d 897, 902 (Mo. App. W.D. 2011) (quoting Shelter

Mut. Ins. Co. v. Ballew, 203 S.W.3d 789, 795 (Mo. App. W.D. 2006)). “It has no function to

endow coverage but rather limits the obligation of indemnity.” Id. (quoting Shelter, 203 S.W.3d

at 795). In Browning, the insured sought underinsured motorist (UIM) coverage. The policy did

not include a UIM endorsement, but, in an exclusion in the UM endorsement, the policy stated that

“[w]e do not provide Uninsured/Underinsured Motorist Coverage for punitive or exemplary

damages.” 341 S.W.3d at 902. In rejecting the argument that the reference to UIM coverage in

the exclusion created an ambiguity, this court “conclude[d] that a reasonable layperson would not

read this exclusionary language as somehow conferring” coverage. Id. Similarly, here, the

EXCLUSIONS provision, which, under certain circumstances, limits the amount that will be paid

for a covered claim to the minimum amount required by Missouri’s financial responsibility law,

would not lead a reasonable layperson to believe that coverage was extended to persons otherwise

expressly excluded from coverage.

               iii.   LIMIT OF LIABILITY

       Taylor next points to the “LIMIT OF LIABILITY” subsection, which contains language

indicating that:

       We will pay compensatory damages . . . up to the Limit of Liability stated in the
       Declarations for Uninsured Motorist Coverage as follows:
       ...
       c.      If you are an individual and the policy insures more than one of your
       automobiles for [UM] Coverage, our Limit of Liability for only you or your
       relatives is as follows:
               (1) the Limit of Liability for each person shall be the sum of the ‘each
               person’ limits stated in the Declarations for such automobile.



                                               11
(Emphasis added.)

         Taylor argues that this “section is at direct odds with the elimination of UM coverage” in

the COVERAGE subsection, because, here, “relatives” (a defined term) is used without

limitation.5 But this simply misses the point that, “If coverage . . . is specifically excluded . . . ,

the Limits of Liability provisions are not invoked and any alleged inconsistencies are either

non-existent or irrelevant.” Naeger, 436 S.W.3d at 661. In Naeger, the plaintiff was a passenger

in a vehicle that was struck by an underinsured motor vehicle. Naeger sustained damages in excess

of the amount paid in combination by the underinsured driver’s policy and the underinsured

motorist coverage carried by the driver of the vehicle in which she was a passenger. She sought

underinsured motorist coverage from a policy issued to her. In affirming the denial of coverage,

the Eastern District of this court found that the policy’s Limits of Liability subsection of the UM

endorsement, which indicated the insurer would “pay up to the limits of liability . . . as shown in

the Declarations [subject to a reduction] by any amount paid . . . to . . . an insured person,” was

not inconsistent with the policy’s Non-Owned Vehicle Exclusion, which expressly provided that

“[t]his coverage does not apply to bodily injury sustained . . . if the injured person was occupying

a vehicle you do not own which is insured for this [underinsured motorist] coverage under another

policy.”     The court found that the two provisions were easily reconcilable, because “the



         5
           In support of his argument, Taylor claims that, as the only blood relative living with Mother, he is the only
person who could qualify as a relative under the Policy. Apparently arguing that, therefore, the parties specifically
agreed that he should be covered under the Policy, Taylor inserts his name where “relative” appears in the Policy, and
argues that the LIMIT OF LIABILITY provision plainly contemplates him having coverage. The argument is
incorrect for a number of reasons. First, the record contains no evidence of his assertion, which is not among the
stipulated facts. Second, the Policy is open-ended, with no limitation on other relatives moving in with Mother,
meaning that, even if Taylor was the only person who did qualify, he was not the only person who could qualify. Most
importantly, the declarations page clearly denotes Mother as the Policy’s sole insured. “When the declarations page
clearly communicates the coverage provided by the insurance contract, and the other policy provisions neither
expressly change the coverage nor reflect a different intention than that clearly expressed on the declarations page,
the declarations page controls.” Browning v. GuideOne Specialty Mut. Ins. Co., 341 S.W.3d 897, 903 (Mo. App. W.D.
2011) (quoting Christensen v. Farmers Ins. Co., Inc., 307 S.W.3d 654, 658 (Mo. App. E.D. 2010)).


                                                          12
Non-Owned Vehicle Exclusion excluded certain risks from coverage completely while the Limits

of Liability provisions limit the extent of . . . liability when the risk is covered. Thus, the Limits

of Liability provisions used to calculate the extent of . . . liability are only relevant when the

occurrence is covered by the Policy.” Id. at 661.

       Here, as in Naeger, Taylor is expressly excluded from coverage under the COVERAGE

subsection, and, thus, the LIMIT OF LIABILITY subsection is never triggered.                 Had the

COVERAGE subsection been ambiguous about whether Taylor was covered, the language used

in the subsection would be relevant to determining coverage. But again, the COVERAGE

subsection clearly and unequivocally denies coverage to any “relative who . . . own[s] an

automobile,” which Taylor does. “In reviewing the language in question, it should be clear to the

average layperson that this language only limits benefits, as opposed to extending them in this

context.” Browning, 341 S.W.3d at 902.

               iv.     OTHER UNINSURED MOTORIST COVERAGE

       Finally, Taylor claims that the Policy’s OTHER UNINSURED MOTORIST COVERAGE

subsection renders the Policy ambiguous. This subsection applies when multiple policies provide

coverage for the same incident and sets forth when Mother’s Policy is primary, when it is excess,

and when it will provide pro-rata coverage with the other available UM policies. The section does

not purport to provide coverage, and it specifically sets forth that it applies only to “[t]he [UM]

coverage provided by this” Policy. The scope of that coverage is set forth in the COVERAGE

subsection, and the OTHER UNINSURED MOTORIST COVERAGE subsection by its terms

only applies to, and does not purport to expand upon, “such coverage.” The subsection “is clear

and unambiguous that it solely limits coverage in the Policy as it pertains to ‘Other Insurance,’ and




                                                 13
nowhere does this language somehow suggest that” coverage is expanded to parties not otherwise

insured by the Policy. Browning, 341 S.W.3d at 902.

       Because coverage is specifically excluded, the COVERAGE subsection is not inconsistent

with the “owned but not insured” exclusion, the LIMIT OF LIABILITY subsection, or the OTHER

UNINSURED MOTORIST COVERAGE subsection. That is because, in reading this policy as a

whole, the terms of these various subsections can be reconciled.

       It is instructive to look at cases where our Supreme Court has held that there is an ambiguity

in a policy that is “entirely inconsistent and cannot be reconciled.” Rice, 301 S.W.3d at 48. The

UM policy at issue in Rice contained a section that limited coverage to the amount mandated by

the uninsured motorist law if the insured also received workers’ compensation benefits as a result

of the accident. Id. at 47-48. That provision was immediately “followed by provisions that provide

‘the [uninsured motorist part] of the policy which exceed[s] the requirements of any applicable

uninsured motorist insurance law or financial responsibility law, or are not governed by it, are fully

enforceable.’” Id. at 48. Thus, the policy, in successive paragraphs in a subsection purporting to

define the parameters of coverage, “expressly limit[ed] coverage to the statutory minimum and yet

purport[ed] to grant full coverage to all provisions that exceed the statutory minimums.” Id. These

“inconsistent and irreconcilable provisions,” the Court concluded, “create an ambiguity that will

be resolved in favor of the insured.” Id. at 49.

       Similarly, in Jones, the Court examined a UIM policy with apparently inconsistent

provisions to determine if an ambiguity existed. 287 S.W.3d at 690. The policy contained several

provisions granting coverage up to $100,000, as well as a single provision purporting to limit

liability by the amount collected from the underinsured motorist. Id. The insurer claimed that the

limit of liability provision allowed it to subtract money paid or payable to the insured by the




                                                   14
tortfeasor from the $100,000 limit. Id. at 691. The Court noted that the insurer’s interpretation of

the limit of liability provision would render the other provisions, guaranteeing $100,000 of

coverage, “inaccurate and misleading,” because the other party’s insurance would necessarily—as

it was underinsured motorist insurance—always reduce coverage. Id. at 692. The Court refused

“to insert additional words into” the sections granting $100,000 in coverage, and instead held that

the limitation provision allowed the insurer to subtract the amount of money paid or payable by

the tortfeasor from the total damages, not $100,000, thereby reconciling the provision with the rest

of the policy. Id. at 692-93.

       Finally, in Seeck, 212 S.W.3d at 132-33, the insured sought coverage under an “excess” or

“other” insurance clause that stated, “When an insured is occupying a motor vehicle not owned by

the insured . . . this insurance is excess over any other insurance available to the insured and the

insurance which applies to the occupied motor vehicle is primary.” The insurer argued that Seeck’s

recovery was limited by the definition of an underinsured motorist and the limits of liability

provision that reduced the limit of liability amount payable to the insured by those amounts paid

or payable by the party at fault for the accident. Id. at 132-33, 132 n.2. In other words, if the

underinsured motorist’s coverage was equal to or greater than the amount of the limit on liability,

no coverage was available. The Court determined that “[w]here, as here, another insurance clause

appears to provide [excess] coverage but other clauses indicate that such coverage is not provided,

then the policy is ambiguous, and the ambiguity will be resolved in favor of coverage for the

insured.” Id. at 134. In each of these cases, the clauses at issue were inconsistent and that

inconsistency could not be reconciled.

       Here, unlike the internally inconsistent provisions that have been found to be irreconcilable

by Missouri courts, the provisions here are easily reconcilable. “Reading the contract as a whole,




                                                15
the [COVERAGE subsection] exclude[s] certain risks from coverage completely while the [other]

provisions limit the extent of [Owners’s] liability when the risk is covered.” Naeger, 436 S.W.3d

at 661. The “provisions used to calculate the extent of [Owners’s] liability are only relevant when

the occurrence is covered by the Policy.” Id. Because Taylor was not covered by the Policy, the

remaining provisions limiting liability are irrelevant.

       Owners’s first point is granted. Because the two summary judgment motions are based on

the same facts and law, no purpose would be served by remand. City of DeSoto v. Nixon, 476

S.W.3d 282, 291 (Mo. banc 2016). The trial court erred in failing to grant summary judgment to

Owners. Under Rule 84.14, this court may enter the judgment the trial court should have entered.

                                            Conclusion

       Because Mother’s Policy did not provide Taylor with UM coverage, the judgment of the

trial court is reversed, and this Court enters judgment in favor of Owners.




                                               Karen King Mitchell, Presiding Judge

Cynthia L. Martin and Gary D. Witt, Judges, concur.




                                                 16
