OWNERS INSURANCE COMPANY,                           )
                                                    )
        Plaintiff-Appellant,                        )
                                                    )
v.                                                  )        No. SD34053
                                                    )
CHRIS and VICKI CRAIG,                              )        Filed: July 19, 2016
                                                    )
        Defendants-Respondents.                     )

              APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                                        Honorable Jason Brown

REVERSED AND REMANDED WITH INSTRUCTIONS

        Owners Insurance Company (“Owners“) appeals a summary judgment entered in

favor of its policyholders Vicki Craig and Chris Craig (“Insureds”) that denied Owners the

right to reduce the amount paid under its Underinsured Motorist (“UIM”) coverage by the

amount paid by the at-fault driver’s liability insurer (“the set-off“).1 Because the policy at

issue (“the Policy”) clearly and unambiguously provided for the set-off, we reverse the

judgment and direct the trial court to enter judgment in favor of Owners.

                              Standard of Review & Applicable Law

        The interpretation of an insurance policy is a question of law we review de novo.

Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007).


1
 Each party filed a motion for summary judgment based on stipulated facts. The trial court denied Owners’
motion and granted the competing motion filed by Insureds.


                                                        1
“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[, 212
S.W.3d at 132]. “Language is ambiguous if it is reasonably
open to different constructions.” Id.

       ....

         “The purpose of underinsured motorist coverage is to
provide insurance coverage for insureds who have been bodily
injured by a negligent motorist whose own automobile
liability insurance coverage is insufficient to pay for the
insured person’s actual damages.” Wasson v. Shelter Mut. Ins.
Co., 358 S.W.3d 113, 117 (Mo. App. W.D. 2011). “To
determine whether an insurance policy provides coverage, we
look to the insurance contract itself.” Long[ v. Shelter Ins.
Cos.], 351 S.W.3d [692,] 701 [(Mo. App. W.D. 2011)].
“Courts are not to interpret the provisions of an insurance
policy in isolation but rather are to examine the policy as a
whole.” Wasson, 358 S.W.3d at 121.

        “If the language in an insurance contract is clear and
unambiguous, this [c]ourt must construe the contract as
written.” Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718,
720 (Mo. banc 2008). “The policy ‘must be given effect
according to the plain terms of the agreement, consonant with
the reasonable expectations, objective, and intent of the
parties.’ ” Wasson, 358 S.W.3d at 120 (citing Long, 351
S.W.3d at 701. “We look to definitions in insurance policies
to guide our interpretation, but when words or phrases are not
defined in the policy, we look to the plain meaning of words
and phrases as it would have been understood by an ordinary
person of average understanding when buying the policy.” Id.
(citing Jones v. Mid–Century Ins. Co., 287 S.W.3d 687, 690
(Mo. banc 2009)). “While ambiguity exists if the term is
‘reasonably open to different constructions,’ ... an
unreasonable alternative construction will not render the term
ambiguous.” Gavan, 242 S.W.3d at 720 (quoting Seeck, 212
S.W.3d at 132). “Courts will not distort the language of an
unambiguous insurance policy in order [to] create an
ambiguity where none exists.” Wasson, 358 S.W.3d at 121.
“If an insurance policy is unambiguous, we enforce the policy
as written.” Long, 351 S.W.3d at 701. However, if “the
policy is ambiguous, ... the ambiguity will be resolved in favor
of the coverage for the insured.” Seeck, 212 S.W.3d at 134.



                               2
                           ....

                          “[T]he existence of UIM coverage and the ability of an
                  insurer to set off stated coverage ‘ “are determined by the
                  contract entered between the insured and the insurer.” ’ ”
                  Long, 351 S.W.3d at 702 (quoting Ritchie v. Allied Prop. &
                  Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009) (quoting
                  Rodriguez v. Gen. Acc. Ins. Co. of Am., 808 S.W.2d 379, 383
                  (Mo. banc 1991))).

Warden v. Shelter Mut. Ins. Co., 480 S.W.3d 403, 405-06 (Mo. App. W.D. 2015).

                                  Stipulated Facts & Policy Provisions

                                  JOINT STIPULATION OF FACTS

                COME NOW Plaintiff [Owners] and Defendants [Insureds], by and
         through their undersigned counsel, and stipulate to the following facts for
         purposes of their Cross-Motions for Summary Judgment:

                  1.       Owners issued [the Policy] to [Insureds.2]

                  2.       The Policy was in full force and effect on the
                           relevant dates in question, and provided [UIM] coverage to
                           [Insureds] as the named insured[s] subject to certain
                           provisions, conditions, limitations and exclusions.

                  3.       The Policy’s Declarations [(“the Declarations”)] list the limits
                           of Liability for UIM coverage as $250,000 per person [(“the
                           UIM limit”)].

                  4.       The Policy contains certain provisions,
                           definitions, references, conditions, statements, limitations
                           and exclusions, the applicability and meaning of which are
                           in dispute, including, among others, the following provisions:




2
  A copy of the Policy was referenced in the stipulated facts as being attached and incorporated, but no such
copy appears in the legal file immediately following the stipulation. Owners maintains in its brief that a copy
of the Policy is included in the legal file following Insureds’ suggestions supporting their motion for summary
judgment, and Insureds cite the same pages in the legal file as authority for the Policy’s terms. As a result, we
regard this copy as an accurate copy of the Policy. Cf. In re Trust of Nitsche, 46 S.W.3d 682, 684 (Mo. App.
S.D. 2001) (a fact that is asserted in one party’s brief and conceded in the opponent’s brief may be treated as
though it were part of the record). The declarations page of the Policy will be further described in our analysis.


                                                        3
                          Missouri
             UNDERINSURED MOTORIST COVERAGE
                      Automobile Policy

It is agreed:

1.      DEFINITIONS

        The following definitions apply in addition to those
        contained in SECTION I – DEFINITIONS of the policy.

        b.      Underinsured automobile means an automobile to
                which a bodily injury liability bond or liability
                insurance policy applies at the time of the occurrence:

                (1)    with limits of liability at least equal to or
                       greater than the limits required by the Motor
                       Vehicle Financial Responsibility Law of
                       Missouri; and

                (2)    such limits of liability are less than those
                       stated in the Declarations for [UIM] Coverage.

                                      ***

2.      COVERAGE

        a.      We will pay compensatory damages, including but
                not limited to loss of consortium, that any insured is
                legally entitled to recover from the owner or
                operator of an underinsured automobile for bodily
                injury sustained by an insured person while
                occupying an automobile that is covered by
                SECTION II – LIABILITY COVERAGE of the
                policy.

                                      ***

4.      LIMIT OF LIABILITY

        a.      The [UIM limit] stated in the Declarations for [UIM]
                Coverage [is] for reference purposes only. Under no
                circumstances do we have a duty to pay you or any
                person entitled to [UIM] Coverage under this policy
                the entire [UIM limit] stated in the Declarations for
                this coverage.



                               4
                   b.    Subject to the [UIM limit] stated in the Declarations
                         for [UIM] Coverage and paragraph 4.a. above, our
                         payment for [UIM] Coverage shall not exceed the
                         lowest of:

                         (1)    The amount by which the [UIM limit] stated
                                in the Declarations exceed the total limits of
                                all bodily injury liability bonds and liability
                                insurance policies available to the owner or
                                operator of the underinsured automobile.

                         (2)    the amount by which compensatory damages,
                                including but not limited to loss of consortium,
                                because of bodily injury exceed the total limits
                                of all bodily injury liability bonds and the
                                liability insurance policies available to the
                                owner or operator of the underinsured
                                automobile.

                                        ....

                                  AUTOMOBILE POLICY DECLARATIONS

                                               ***

            1.     2008 HOND ACCORD EX-L

                                                ***
COVERAGES             LIMITS                              PREMIUM CHANGE
Underinsured Motorist $250,000 person/$500,000 occurrence 23.00   2.85 -

                                               ***

                         A QUICK GUIDE TO YOUR POLICY

      The DECLARATIONS contain:         YOUR NAME

                                        POLICY TERM

                                        YOUR AUTOMOBILES

                                        C OVERAGES

                                        LIMITS OF LIABILITY




                                         5
                                   ENDORSEMENTS THAT APPLY

                                          ***

                          INSURING AGREEMENT

The attached Declarations describe the automobile(s) we insure and the
Coverages and Limits of Liability for which you have paid a premium.

                                          ***

      5.     On or about March 1, 2014, Ms. Craig was injured in
             a car accident when the vehicle she was driving was struck
             by another vehicle, driven by Tlir Hnin Thang, while Ms.
             Craig was stopped at a red light.

      6.     Mr. Thang was insured under a policy of insurance with
             Shelter Insurance Company (“Shelter”), with a per person
             bodily injury liability limit of $50,000.

      7.     Shelter has paid Mr. Thang’s $50,000 per person bodily
             injury limit to [Insureds].

      8.     The parties agree that the policy and UIM coverage
             were in full force and effect on the date of the accident, and
             that [Insureds]’ damages exceed $300,000 arising out of the
             injuries sustained by Ms. Craig. [Insureds] therefore seek
             UIM coverage in the full amount of the Policy’s $250,000 per
             person UIM limit.

      9.     On or about July 16, 2014, [Insureds] made demand on
             Owners for the $250,000 per person UIM limit, which they
             asserted was the amount to which they were entitled under the
             Policy’s UIM coverage provision.

      10.    In November 2014, pursuant to agreement among the
             parties, Owners paid [Insureds] $200,000, representing the
             $250,000 per person UIM limit with a deduction of the
             $50,000 payment [Insureds] received from Shelter on behalf
             of Mr. Thang, and which all parties agree is owed under the
             terms of the Policy.

      11.    The parties dispute whether Owners owes [Insureds] an
             additional $50,000 under the terms of the Policy.

      12.    [Insureds] paid the premiums for the coverage in dispute.


                                    6
               13.     The parties have agreed that the issue of whether the
                       $50,000 in dispute should be paid to [Insureds] under the
                       terms of the Policy may be decided in this declaratory
                       judgment action.

       The trial court found the Policy ambiguous in regard to the set-off issue, interpreted

the ambiguity in favor of Insureds, and entered summary judgment in their favor. This

appeal timely followed.

                                            Analysis

       Owners’ point maintains that the “[P]olicy clearly and unambiguously provided for a

$50,000 deduction from the $250,000 [UIM limit] . . . based on the $50,000” paid by Shelter

to Insureds on Mr. Thang’s behalf, and the Policy also provided that “‘[u]nder no

circumstances’” was Owners obligated to pay Insureds “‘the entire [UIM limit] stated in the

[D]eclarations for [UIM] coverage.’”

       In finding the Policy ambiguous regarding the amount of UIM coverage, the trial

court stated: the “Policy does indeed take away in part or whole the unqualified grant of

$250,000 UIM coverage found in another portion of the Policy, and, that the material

portions are simply not plain, certain, non-suggestive, nor distinct, when viewed through the

lens of the average insured purchasing insurance.” (Capitalization adjusted.)

       Owners acknowledges “it is well-settled that where one section of an insurance

policy promises coverage and another takes it away, the contract is ambiguous.” Ritchie,

307 S.W.3d at140-41; Jones, 287 S.W.3d at 692. Owners’ position is that the principle does

not apply here because the Policy “never promises to pay the full UIM limit stated in the

[D]eclarations” as it: expressly disclaims liability “for the full UIM [limit] listed in the

[D]eclarations”; states that the UIM limit listed in the Declarations “is for reference




                                                7
purposes only”; and provides that the at-fault driver’s insurance liability limit will be

deducted from the amount paid by Owners.

         Insureds add Manner v. Schiermeier, 393 S.W.3d 58, 66 (Mo. banc 2013), to the

mix, and they point out that in all three of these decisions issued by our high court—Jones,

Ritchie, and Manner—the set-off provision at issue was found ambiguous and invalidated.

See also 307 S.W.3d at 140-41; and 287 S.W.3d at 692-93. Insureds further argue “that

Manner precludes an offset for UIM coverage” based on our decision in Beshears v. Shelter

Mut. Ins. Co., 468 S.W.3d 408, 412 (Mo. App. S.D. 2015). We do not read Manner or

Beshears as broadly.3

         “[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.” Long, 351 S.W.3d at 702. The whole policy must be evaluated in determining

coverage, Manner, 393 S.W.3d at 65; Warden, 480 S.W.3d at 405, “and any ambiguity will

3
  In Manner, “[t]he policy promise[d] to pay the listed limits of liability, not simply the listed limits of liability
reduced by the amount paid by the tortfeasor[,]” id. at 66, and this conflicted with language in the policy’s
endorsement providing a reduction for the amount paid on account of another’s liability such that the
ambiguity “must be resolved in favor of coverage up to the amount listed in the limits of liability section”
where damages exceeded both types of insurance. Id.

In Beshears, the limits of liability for UIM coverage were “reduced by the amount paid, or payable, to the
insured for damages by, or for,” the at-fault driver. 468 S.W.3d at 410. But the UIM endorsement promised
to “pay the uncompensated damages, subject to the limit of our liability stated in this coverage[,]” and
uncompensated damages was defined as “the portion of the damages that exceeds the total amount paid, or
payable, to an insured by or on behalf of, all persons legally obligated to pay those damages[.]” Id. The
ambiguity was characterized as “inherent” and the explanation of this intrinsic uncertainty was quoted from
Manner:

         “[I]f the amount recoverable under the insurance policy always is reduced by the amount
         collected by the tortfeasor, an insured never could recover the entire liability limit set out in
         the underinsured motorist endorsement because, by definition, an underinsured motorist is
         someone who paid something toward the insured’s damages, although not enough to satisfy
         those damages nor enough to exceed the insured’s underinsured motorist limits.”

468 S.W.3d at 412 (quoting 393 S.W.3d at 66 n.8). A policy that expressly states that it does not promise to
pay the liability limit stated in the Declarations but instead clearly expresses that the dollar amount set forth
there is stated only as a part of the calculation used to determine what will be paid by Owners is
distinguishable from the inherently ambiguous policy that both promises to cover the full liability limit and
also provides that there is no circumstance under which the full liability limit would be paid.


                                                          8
be interpreted in favor of the insured[,]” Manner, 393 S.W.3d at 63, but an unambiguous

“insurance policy must be enforced according to its terms.” Jones, 287 S.W.3d at 690. An

insurance contract may be written in such a way as to reduce the amount paid as damages

under UIM coverage by subtracting the at-fault driver’s contribution from the UIM limit

instead of the total damages suffered. See, e.g., Warden, 480 S.W.3d at 408.

         Insureds emphasize that the Policy “at multiple places directs [Insureds] to the

Declarations page to identify how much coverage they have purchased[,]” the Declarations

confirm that the Policy “provides $250,000.00 of UIM Coverage” with the premium being

based on this coverage, and “[n]owhere on the Declarations page does it show that there is

an offset[.]” Insureds are correct in stating that the Declarations show a chart with

“Uninsured Motorist” under the heading “COVERAGES” and “$250,000 person/$500,000

occurrence” under the heading “LIMITS” with no further language detailing the set-off, but

the Declarations do list “79339 (7-10)” as one of the “Additional Forms For This Item[,]”

and the UIM endorsement included as a part of the Policy is detailed on form 79339 (7-10).

       In Warden, the western district of this court noted that the significance of a

declarations page to the limits of UIM coverage had been removed as an issue due to the

language in that particular policy:

               As noted in the text, in this case both the “Introductory Note” to the
       UIM Endorsement, and the “Insuring Agreement,” direct the insured to read
       the Endorsement’s “Limits of Our Liability” section. The same was not true
       in Wasson. In that case, the insuring agreement merely stated that the UIM
       coverage was subject to the coverage’s limit of liability, without explicitly
       directing the insured to the policy section titled “Limits of Our Liability.”
       See 358 S.W.3d at 122. In that circumstance, Wasson held that “the normal
       place to look for the limits of liability is the declarations page,” not the policy
       section titled “Limits of Our Liability.” Id. at 125. The same issue does not
       exist in this case, given the very different policy language Shelter now uses.




                                               9
480 S.W.3d at 407 n.2.4 In other words, the declaration at issue in Warden did not override

a UIM liability limitation or render that limitation ambiguous.

         In Simmons v. Farmers Ins. Co., 479 S.W.3d 671, 676 (Mo. App. E.D. 2015), the

court stated that “where the declarations page states a coverage amount but does not

adequately alert the Insured to its limitations, we must strictly and carefully consider any

language in the endorsement which might also suggest that the coverage could be considered

excess.”5 See also Miller v. Ho Kun Yun, 400 S.W.3d 779, 787 (Mo. App. W.D. 2013);

Nationwide Ins. Co. of Am. v. Thomas, 487 S.W.3d 9, 12-13 (Mo. App. E.D. 2016). This

line of cases also acknowledges that a declarations page is generally “less clear” about

coverage characteristics. Thomas, 487 S.W.3d at 12; Simmons, 479 S.W.3d at 675; see also

Miller, 400 S.W.3d at 787.

         More importantly, our supreme court has held that “[t]he declarations state the

policy’s essential terms in an abbreviated form, and when the policy is read as a whole, it is

clear that a reader must look elsewhere to determine the scope of coverage.” Floyd-Tunnell

v. Shelter Mut. Ins. Co., 439 S.W.3d 215, 221 (Mo. banc 2014). “The ‘declarations’ are

introductory only and subject to refinement and definition in the body of the policy.” Id.

(internal quotation and citation omitted).

         The Policy language in this case, viewed as a whole, reveals no ambiguity

concerning the UIM limit and the set-off. While the Declarations contained no caveat or

disclaimer regarding UIM coverage, it did not state that it was the sole expression of UIM



4
  The Warden policy included an “Introductory Note” pointing out that it reduced the total limits payable and
then the limitation of liability portion also described how the declaration limit would be reduced by the amount
paid by or on behalf of the underinsured tortfeasor. 480 S.W.3d at 406.
5
  The court went on to find that the UIM endorsement was also ambiguous as to the definition of an
“underinsured motor vehicle” and upheld summary judgment awarding UIM benefits to Ms. Simmons. Id. at
672, 676.


                                                      10
coverage, and it referenced other forms, including the UIM endorsement.6 That

endorsement plainly stated that “[t]he [UIM limit] stated in the Declarations for [UIM]

Coverage [is] for reference purposes only. Under no circumstances do we have a duty to

pay you or any person entitled to [UIM] Coverage under this policy the entire [UIM limit]

stated in the Declarations for this coverage.” It then went on to provide that the lesser of

(1) the amount paid on behalf of the operator of the underinsured vehicle subtracted from the

UIM limit; or (2) the amount that the compensatory damages exceeded that paid on behalf of

the operator of the underinsured vehicle would be Owners’ payment obligation.

         Owners’ point is granted, the judgment is reversed, and the matter is remanded for

the entry of a judgment in favor of Owners.



DON E. BURRELL, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – DISSENTS IN SEPARATE OPINION

GARY W. LYNCH, J. – CONCURS




6
 We have no quarrel with Insureds’ assertion that the Declarations might have been drafted to make the
existence of the set-off even clearer, but the legal question before us is whether the language actually used is
ambiguous, not whether it might have been better.


                                                        11
OWNERS INSURANCE COMPANY,                     )
                                              )
       Plaintiff-Appellant,                   )
                                              )
vs.                                           )              No. SD34053
                                              )
CHRIS and VICKI CRAIG,                        )              Filed: July 19, 2016
                                              )
       Defendants-Respondents.                )

            APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                      Honorable Jason Brown, Associate Circuit Judge

DISSENTING OPINION

       I must respectfully dissent. The trial court read the policy at issue and found it to be

ambiguous. I also find the policy ambiguous. In doing so, I rely on the language and the

holdings of our Supreme Court in Manner v. Schiermeier, 393 S.W.3d 58 (Mo. banc 2013),

Ritchie v. Allied Property & Cas. Ins. Co., 307 S.W.3d 132, 140 (Mo. banc 2009), Jones v.

Mid-Century Ins. Co., 287 S.W.3d 687, 692 (Mo. banc 2009), and our own Beshears v.

Shelter Mut. Ins. Co., 468 S.W.3d 408 (Mo.App. S.D. 2015).

       In Manner, the court held:

               As just noted, it is well-settled in Missouri that “courts should not
       interpret policy provision in isolation but rather evaluate policies as a whole.”
       Ritchie, [307 S.W.3d] at 137. Conflicts and inconsistencies between different
       policy provisions, with one seeming to deny coverage but the other seeming
       to grant it, will render a policy ambiguous, and such an ambiguity will be
       interpreted in favor of the insured. Id.



                                                  1
       ....

        C. Offset is Not Permitted.
        Insurers assert that, because the limits of liability provision in the
policies’ underinsured motorist endorsement states that underinsured motorist
coverage will be reduced by a “payment made or amount payable by or on
behalf of any person or organization which may be legally liable, or under
any collectible auto liability insurance, for loss caused by an accident with an
underinsured motor vehicle,” the $100,000 that the tortfeasor’s insurer paid
should offset the amount [Insured] can recover under the underinsured
motorist endorsement.
        The Court rejects this argument. The policy promises to pay the listed
limits of liability, not simply the listed limits of liability reduced by the
amount paid by the tortfeasor. Insurers’ construction of the policy would
permit the policy to promise to pay the full limits of liability and yet these
limits never would be paid as the amount of liability promised always would
be reduced by the recovery from the other driver.8 As Ritchie noted, this
conflict at best creates an ambiguity that must be resolved in favor of
coverage up to the amount listed in the limits of liability section if “after
deducting the amounts already paid, damages equaling or exceeding those
limits are still outstanding.” Ritchie, 307 S.W.3d at 140.
        Here, [Insured’s] damages were $1.5 million. Reducing those
damages by the $100,000 paid by the tortfeasor leaves a remaining $1.4
million in damages, which far exceeds the $400,000 he can recover under the
policies. The full limits of the limits of liability, therefore, are recoverable.9
                 8
                   This is because, if the amount recoverable under the
        insurance policy always is reduced by the amount collected by
        the tortfeasor, an insured never could recover the entire
        liability limit set out in the underinsured motorist endorsement
        because, by definition, an underinsured motorist is someone
        who paid something toward the insured’s damages, although
        not enough to satisfy those damages nor enough to exceed the
        insured’s underinsured motorist limits.
                 9
                   The insurers also argue that the full amount of any
        insurance [Insured] recovered by settling his suit against both
        the manufacturer and seller of the helmet should be deducted.
        They cite no authority that underinsured motorist coverage
        should be offset by products liability insurance that is not
        related to vehicles at all, and this Court rejects the suggestion
        that insureds basically must show that they had no opportunity
        to sue for tort damages unrelated to underinsured motorist
        coverage in order to recover on their underinsured motorist
        coverage. Underinsured motorist coverage, like uninsured
        motorist coverage, refers to vehicle coverage. In any event, for
        the reasons just noted, offset would not be permitted.




                                        2
Manner, 393 S.W.3d at 65-66 n.8-9.

       In Jones, our Supreme Court noted in its analysis of an insurance policy:

       This Court notes that Mid–Century’s interpretation of subsection (f) also
       would make inaccurate and misleading subsection (b)’s statement that it “will
       pay up to the limits of liability shown in the schedule below as shown in the
       Declarations”—that is, that it will pay up to $100,000. This is so because
       Mid–Century never would be called on to pay its total limit of liability shown
       on the schedule if it were entitled first to deduct any amounts received from
       the tortfeasor, for in the case of underinsured motorist coverage, some
       amount always will have been received from the tortfeasor—that is why the
       insured is seeking to collect under insured rather than un insured motorist
       coverage.2
              2
                This anomalous result always would occur, for
              underinsurance coverage never can be invoked unless the
              insured already has recovered something from the tortfeasor—
              if the insured had recovered nothing from the tortfeasor, then
              the insured would be entitled to uninsured motorist coverage
              of at least the statutory minimum amount—$25,000 in
              Missouri. Sec. 303.030, RSMo Supp.2004. There will always
              be an amount, therefore, that must be deducted from the limits
              of liability of coverage even where those limits are equal to or
              less than the damages still remaining uncompensated, as is the
              case here. Were an insured to suffer, for example, $225,000 in
              total damages, Mid–Century still would be liable only up to
              $75,000. This is because, under its interpretation of subsection
              (f), it always would pay only the lesser of the difference
              between the damages suffered and what the amount already
              recovered or the liability limit set in the policy, or $100,000,
              minus at least the amount of minimum coverage of $25,000,
              and minus even more if the insured had some coverage.

Jones, 287 S.W.3d 687, 692 n.2.

       In Beshears, we noted that the insurers asserted that a provision in the policy’s

underinsured motorist endorsement states that there will be an offset to the amount listed on

the declaration page. We further quoted Manner regarding the promise to pay the listed

limits of liability. We rejected the policy that permitted a promise to pay the full limits of

liability that would never be paid because the amount of liability promised always would be

reduced by the recovery from the other driver. We noted if the amount recoverable under



                                               3
the insurance policy always is reduced by the amount collected by the tortfeasor, an insured

never could recover the entire liability limit set out in the underinsured motorist

endorsement. Beshears, 468 S.W.3d 408, 411-12. We then quoted Ritchie, “this conflict at

best creates an ambiguity that must be resolved in favor of coverage up to the amount listed

in the limits of liability section if ‘after deducting the amounts already paid, damages

equaling or exceeding those limits are still outstanding.’” Id. at 412 (quoting Ritchie, 307

S.W.3d at 140).

         Here, the reasoning of Manner, Ritchie, Seeck and Beshears, and the opinion of the

trial court demonstrates that the policy was ambiguous. A company simply cannot promise

on the declaration page to provide the consumer with a certain amount of underinsured

motorist coverage and then take it away in the fine print of the multi-page insurance policy.

As noted in Simmons v. Farmers Insurance Company, Inc., 479 S.W.3d 671, 677

(Mo.App. E.D. 2015), and Miller v. Ho Kun Yun, 400 S.W.3d 779, 791 (Mo.App. W.D.

2013):

         The law is not concerned merely with what an ordinary insured would be
         caused to believe from reading his existing policy after a bodily injury has
         occurred. The law is also concerned with what an ordinary purchaser of
         insurance would be caused to believe about the coverage from review of the
         policy upon initial receipt of the policy, before an injury has occurred, while
         there remains time to adjust coverages in light of his or her understanding of
         the policy contents. See Burns [v. Smith], 303 S.W.3d [505,] 509 [Mo. banc
         2010] (the court applies the meaning which would be attached by “an
         ordinary person of average understanding if purchasing insurance” (emphasis
         added)). The auto insurance purchaser, upon receipt of his policy (perhaps in
         the mail several weeks after purchase) will certainly read the declaration
         sheet to ensure no miscommunication about coverage levels, even if the
         purchaser reads little else. Therefore, it is essential that the language of the
         declaration sheet be part of the analysis in these UIM cases.9
                 9
                   The courts do not instruct insurers about what to write. One wonders,
         however, why the insurers would not take a hint from Ritchie in their UIM
         policies so as to cause the declaration page and the endorsement to
         communicate the concept that the insurer will pay only “the difference



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         between the amount recovered from the underinsured motorist” (for bodily
         injury damage) and the sums specified in the declarations. See Ritchie, 307
         S.W.3d at 141 n. 10.

Miller, 400 S.W.3d at 791, n.9.

         In this case, the insurance company did not advise the consumer that they will never

receive what they purchased. The company offered an amount of coverage as shown on the

declaration page and paid an entirely different amount. On that declaration sheet, this

consumer chose to pay for $250,000 per person/$500,000 per occurrence in underinsured

motorist coverage, not $250,000 minus the $50,000. The carrier will never pay the full

amount on the declaration page when the negligent driver is an insured driver because that

driver has the statutory amount of liability insurance.1 Just as the trial judge did, I would

find that the trial court did not err in finding the policy as a whole ambiguous. The Craigs,

as reasonable consumers, did not get what was promised. The contract was ambiguous.

         Further, I certify that the majority opinion is contrary to a previous decision of an

appellate court of this State and hereby transfer this case to the Supreme Court of Missouri

pursuant to Rule 83.03, Missouri Court Rules (2016).



Nancy Steffen Rahmeyer, J. – Dissenting Opinion Author



1
 Although it is not necessary for my analysis of the ambiguity of this contract, I must note that in its own
words on its website the company is capable of describing what it is purporting to offer the consumer:

         Underinsured Motorist: Protects you and your passengers from losses and damages
         suffered if injury is caused by the negligence of a driver who does not have enough insurance
         to pay for all losses and damages.

Auto-Owners Insurance, http://www.auto-owners.com/our-products/car-insurance/resource-
center/insurance/determining-coverage (last visited July 1, 2016). The company’s underinsured motorist
coverage is described as protection for situations where a negligent driver does not have enough insurance to
pay for “all losses and damages.” In this case, “all losses and damages” exceeded the insurance of the
negligent driver. There is no language regarding a set off for the amount of insurance that the negligent driver
purchased.


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