                                        In the
                        Missouri Court of Appeals
                                 Western District
ALBERT THEODORE BOLINGER                     )
AND PEGGY LOUISE BOLINGER,                   )
                                             )   WD78832
              Respondents,                   )
                                             )   OPINION FILED: April 12, 2016
v.                                           )
                                             )
CLARKS FORK MUTUAL                           )
INSURANCE COMPANY,                           )
                                             )
                Appellant.                   )

            Appeal from the Circuit Court of Moniteau County, Missouri
                       The Honorable Donald L. Barnes, Judge

 Before Division One: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge
                              and Gary D. Witt, Judge


       Appellant Clarks Fork Mutual Insurance Company ("Clarks Fork") appeals from

summary judgment entered in favor of Respondents Albert and Peggy Bolinger

(collectively the "Bolingers") on their petition alleging breach of an insurance contract.

Clarks Fork insured a farm owned by the Bolingers on which three turkey barns were

located.   The Bolingers allege that Clarks Fork breached their contract by refusing

payment on that policy when two of the turkey barns collapsed due to weight of snow and

ice. Clarks Fork denied coverage, claiming the policy did not cover damage caused by
weight of snow and ice. We find that material facts are in dispute and thus the Bolingers

were not entitled to judgment as a matter of law. We reverse and remand for further

proceedings.

                                  Factual and Procedural History1

          On Friday, February 22, 2013, at approximately 5:00 p.m., Albert Bolinger visited

the office of Ken Wolken ("Wolken") of Wolken Insurance LLC to request a quote for

insuring his property, which included his residence and several farm buildings. Bolinger

was moving his insurance coverage from another carrier. It is uncontroverted that Albert

Bolinger specifically requested that his three turkey barns (collectively "Turkey Barns")

be insured against the peril of weight of ice, snow, or sleet. The Turkey Barns were

approximately 25 years old.              At the end of the meeting, Wolken instructed Albert

Bolinger to return on the next business day to get an insurance quote.

          On Monday, February 25, 2013, Albert Bolinger returned to Wolken's office and

was told that the premium for the coverage for his home, farm, and Turkey Barns would

be a total of $1,770.22, which he paid before leaving the office.

          Clarks Fork alleges that Bolinger, at the same time, was also given an insurance

quote through Clarks Fork ("Quote Proposal"). The Quote Proposal, under each of the

headings "Outbuilding #1," "Outbuilding #2," and "Outbuilding #3," (the Turkey Barns)

stated:



          1
           "When considering appeals from summary judgments, the Court will review the record in the light most
favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Within this opinion, we have indicated which facts are disputed
between the parties. The facts set forth within the statement of facts are undisputed unless otherwise indicated.

                                                        2
       Underwriting: FO-323 Weight of Ice, Snow, or Sleet coverage on farm
       outbuildings is not in effect until inspected and approved.

The premium amount the Bolingers paid included premium amounts for the FO-323

endorsement for all three Turkey Barns.

       Clarks Fork also alleges that Wolken verbally informed Albert Bolinger that

coverage for the peril of weight of ice, snow, or sleet for the Turkey Barns required an

additional specific endorsement, FO-323, that would not be effective until after the

Turkey Barns were inspected by Clarks Fork. The Bolingers deny that they received the

written Quote Proposal or were told by Wolken that the barns were not covered for

damage due to snow, sleet, or ice until after they submitted a claim for the collapse of the

barns. These are therefore disputed facts for purposes of summary judgment.

       After Bolinger left the office, Wolken submitted an application for insurance to

Clarks Fork ("Application"). At the time Albert Bolinger paid the insurance premium,

snow had begun to fall from an impending winter snow storm.

       Although the Application was submitted and the premium paid, Clarks Fork did

not issue Preferred Mutual Package Policy Number PM2616 ("Policy") to the Bolingers

until March 4, 2013. The Policy's effective dates were backdated to 12:01 A.M. on

February 25, 2013 (the date the premium was paid), until February 25, 2014. The Policy

did not contain the FO-323 endorsement for any of the Turkey Barns. The Policy did

specify that a premium was charged for each individual Turkey Barn; Turkey Barn #1,

size 50 * 320, $100,000 limit, premium $640.00, Turkey Barn #2, size 50 * 320,




                                             3
$100,000 limit, premium $640.00, Turkey Barn #3, size 50 *360, $100,000 limit,

premium $704.00.

         On February 26, 2013, the day after the Policy became effective, Turkey Barn One

and Turkey Barn Two collapsed under the weight of snow and ice.2 Albert Bolinger

timely reported this loss to Wolken. The Turkey Barns had not been inspected prior to

their collapse. There is no dispute that the barns were a total loss. Bolinger did not

receive the written Policy until after the barns had collapsed and he had reported the loss

to Wolken.

         Clarks Fork denied coverage for the collapse of Turkey Barn One and Turkey

Barn Two because loss due to weight of snow and ice was not a covered peril under the

Policy in effect at the time of the peril. Clarks Fork returned the portion of the premium

which it alleges is attributable to the FO-323 endorsement for all three Turkey Barns to

the Bolingers, approximately $181. Although Turkey Barn Three had not collapsed,

Clarks Fork returned the premium it alleges was for the FO-323 endorsement for that

barn and never conducted an inspection. The total premium charged for coverage for all

three Turkey Barns was $1,984. The Policy does not specify which portion of that

premium was coverage for weight of snow and ice verses coverage for other perils.

         The Bolingers filed their Petition for Damages against Clark Fork ("Petition")

alleging one count for breach of contract. The Petition alleges that the two barns were




         2
          There is no allegation or argument that Bolinger was aware that the Turkey Barns were in danger of
collapsing at the time he purchased the Policy or that he was in any way acting in bad faith in purchasing this Policy.

                                                          4
covered by the Policy and Clarks Fork should have paid full coverage for both destroyed

barns.

         On May 5, 2015, the circuit court heard argument from both parties on cross-

motions for summary judgment.3 The court denied Clarks Fork's request for summary

judgment and granted summary judgment in favor of the Bolingers in the amount of

$200,000--the Policy limit for the two barns.4

         This appeal followed.

                                            Standard of Review

         This Court's review of summary judgment "is essentially de novo."                                       ITT

Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.

banc 1993). Facts are viewed "in the light most favorable to the party against whom

judgment was entered." Id. "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." Id.

                                                  Discussion

                                                        I.

         Clarks Fork alleges five points of error on appeal. The first point contends that the

circuit court erred in finding that the Policy contained coverage for the Turkey Barns in

the event they were damaged as a result of the weight of ice, snow, or sleet.




         3
           The transcript of this hearing is not part of the record on appeal.
         4
           This amount failed to consider the amount of the deductable under the terms of the policy. However,
neither party addresses this issue in the claims before this court.

                                                        5
       The parties agree that Bolinger specifically requested coverage on the Turkey

Barns for the peril of weight of snow and ice. They further agree the Policy was in effect

at the time the Turkey Barns collapsed, that Bolinger had paid the entire premium

requested by Clarks Fork for the Policy, and that Bolinger had not received the written

Policy from Clarks Fork until after the collapse had occurred and a claim for coverage

under the policy for the collapse had been made. They also agree that the Turkey Barns

were covered by the Policy under "Coverage E." The sole issue to be decided by the

circuit court was whether the Turkey Barns were covered against damage caused by the

peril of weight of snow, sleet, or ice at the time of their collapse.

       The declaration's page of the policy states that there is "COVERAGE E FARM

BARNS AND OUTBUILDINGS" and specifically lists a machine shed and the three

Turkey Barns and separate premiums for each. The declarations page also states that

there is a "WINDSTORM OR HAIL DEDUCTIBLE ENDORSEMENT." The farm

coverage listed in the Policy states:

       PERILS SECTION -- COVERAGES E, F, AND G

       "We" insure against direct physical loss to property covered under
       Coverages E, F, and G caused by the following perils, unless the loss is
       excluded under the General Exclusions:

The Perils Section then goes on to list certain perils covered by the Policy: "1. Fire or

Lightening" and "2. Explosion." The Perils Section goes on to list additional "extended

coverage," which is available if listed on the declarations page, for the perils of: "3.

Windstorm or Hail," "4. Riot or Civil Commotion," "5. Aircraft," "6. Vehicles," "7.

Smoke," "8. Theft," "9. Collison," and "10. Electrocution of Livestock." The Policy's

                                               6
declarations page states that the Bolingers had an additional endorsement for extended

coverage for the peril of "windstorm or hail."

       Damage due to the weight of snow or ice is not mentioned in any fashion in any of

the covered perils except under "Windstorm or Hail." The Policy states that loss "caused

directly or indirectly by . . . ice (other than hail), snow, or sleet, all whether driven by

wind or not" is not covered.

       The next section of the Policy lists "General Exclusions" from coverage stating:

       GENDERAL EXCLUSIONS -- COVERAGES E, F, and G

       "We" do not pay for loss if one or more of the following exclusions apply
       to the loss, regardless of other causes or events that contribute to or
       aggravate the loss, whether such causes or events act to produce the loss
       before, at the same time as, or after the excluded causes or events.

The General Exclusions then list a number of events: Business Interruption, Civil

Authority, Earth Movement, Intentional Acts, Neglect, Nuclear Hazard, Ordinance or

Law, Power Disruption, War, Water Damage, Wear and Tear, Weather Conditions, and

Errors, Omissions, and Defects. Each General Exclusion states specific situations for

which there is no coverage. Under "Weather Conditions" the exclusion states that the

company will "not pay for loss which results from weather conditions that initiate, set in

motion, or in any way contribute to losses excluded under the preceding General

Exclusions." However, in the very next paragraph, the Policy provides that "We do pay

for an ensuing loss unless the ensuing loss itself is excluded." (emphasis added)

       We interpret the policy according to the plain and ordinary meaning of its

language. Mo. Emp'rs Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 625 (Mo. App. W.D.


                                             7
2004). "If, giving the language used its plain and ordinary meaning, the intent of the

parties is clear and unambiguous, we cannot resort to rules of construction to interpret the

contract." Mo. Pub. Entity Risk Mgmt. Funds v. S.M., 473 S.W.3d 161, 163 (Mo. App.

W.D. 2015) quoting Thiemann v. Columbia Pub. Sch. Dist., 338 S.W.3d 835, 840 (Mo.

App. W.D. 2011). "Disagreement over the interpretation of the terms of a contract does

not create an ambiguity." Id.

       The Bolingers's argument, that the peril must be covered because it is not

expressly excluded, is premised on the Policy being an "all-risk" policy. "Under an all-

risk insurance policy, recovery will be allowed for all fortuitous loss, unless the policy

contains a specific provision expressly excluding the loss from coverage." Pakmark

Corp. v. Liberty Mut. Ins. Co., 943 S.W.2d 256, 259 (Mo. App. E.D. 1997). The Policy

purchased by the Bolingers was a "named peril" policy. To recover on a named peril

policy, the insured must prove the loss for which the insured seeks damages was caused

by a peril insured against by the policy. Franklin v. Farmers Mut. Ins. Co., 627 S.W.2d

110, 113-14 (Mo. App. W.D. 1982).

       The Policy language states that it only covers loss due to specific perils--"Fire or

Lightening" or "Explosions"--plus an additional endorsement to add the peril of

"Windstorm or Hail." Under the terms of the "Perils Section" of the Policy, the Policy

does not provide coverage for loss due to the weight of snow and ice because it is not

listed as a covered peril. Normally, in a "named peril" policy, a non-covered peril does

not need to be specifically listed as an exclusion because there is nothing that brings the

peril under the terms of coverage of the Policy to begin with. See generally, Stufflebean

                                             8
v. Fireman's Fund Ins. Co., 710 S.W.2d 931 (Mo. App. W.D. 1986) (flood due to

rainwater was not a covered peril).

      The Bolingers argue that this clear understanding becomes muddled when read in

conjunction with the "General Exclusions" section, which immediately follows the

"Perils Section." "Weather Conditions" are excluded from the policy by language stating:

      12. Weather Conditions -- "We" do not pay for loss which results from
      weather conditions that initiate, set in motion, or in any way contribute to
      losses excluded under the preceding General Exclusions (Numbers 1
      through 11).

      "We" do pay for an ensuing loss unless the ensuing loss itself is excluded.

      We are to read the section as would an "ordinary person of average

understanding." Manner v. Schiermeier, 393 S.W.3d 58, 65 (Mo. banc 2013). The

Bolingers argue that the phrase: "'We' do pay for an ensuing loss unless the ensuing loss

itself is excluded," may be fairly read by a person of average understanding to mean that

Clarks Fork will pay for loss due to all weather conditions unless loss due to a particular

weather condition is expressly excluded. To interpret the phrase in this manner renders it

inconsistent with the terms of the "Perils Section." Most clearly, why purchase an

additional wind and hail endorsement when it is already covered by this exception to the

weather condition exception? Clarks Fork, however, offers no alternative interpretation

of the phrase except to note that an exclusion provision of an insurance policy "has no

function to endow coverage but rather limits the obligation of indemnity."          Transp.

Indem. Co. v. Teter, 575 S.W.2d 780, 784 (Mo. App. 1978); Maritz Holdings, Inc. v. Fed.

Ins. Co., 298 S.W.3d 92, 99 n.6 (Mo. App. E.D. 2009).


                                            9
       Although not a defined term in the Policy, "ensuing loss" is a technical term of art.

Insurance policies may include "ensuing loss clauses" which "permit coverage for certain

losses that flow from an excluded peril." Dave Snell, Lisa Simon, XL Re, Ensuing Loss

Clauses Provide Exception to Exclusion, in 11 ANDREWS INS. COVERAGE LITIG. REP. 875

(2001).   A broad ensuing loss clause "covers any loss occurring subsequent to an

excluded loss as long as the subsequent loss is not excluded by the policy." Id. In this

case, the phrase "'We' do pay for an ensuing loss unless the ensuing loss itself is

excluded" may reasonably be read as a broad ensuing loss clause. If a weather condition

causes a loss that, in turn, causes an additional, subsequent loss that would otherwise be

covered under the Policy, the secondary loss remains covered.

       "The words of a policy must be given their plain and ordinary meaning consistent

with the reasonable expectation and objectives of the parties, unless it is obvious that a

technical meaning was intended." Drury Co. v. Mo. United Sch. Ins. Counsel, 455

S.W.3d 30, 36 (Mo. App. E.D. 2014). "We must endeavor to give each provision a

reasonable meaning and to avoid an interpretation that renders some provisions useless or

redundant." Id.

       Although interpreting the phrase as an "ensuing loss clause" may be a usual and

ordinary interpretation of the Policy, Drury makes clear that we are to interpret insurance

contracts "consistent with the reasonable expectations and objectives of the parties"

unless it is "obvious" that a technical meaning was intended. 455 S.W.3d at 36; Doe Run

Res. Corp. v. Certain Underwriters at Lloyd's London, 400 S.W.3d 463, 474 (Mo. App.

E.D. 2013). "If a conflict arises between a technical definition of a term and the meaning

                                            10
of the term which would reasonably be understood by the average lay person, the lay

person's definition will be applied unless it is obvious the technical meaning was

intended." Cowin v. Shelter Mut. Ins. Co., 460 S.W.3d 76, 79 (Mo. App. W.D. 2015)

(insured contested the policy definition of contractual term because it differed from its

ordinary meaning).

       Understanding that the term "ensuing loss" is a technical term of art within

insurance contracts, we must then determine whether its technical meaning is inconsistent

with the ordinary meaning and reasonable expectations of the parties. We find that the

contested facts of this case preclude this Court from making such a determination. The

Bolingers's interpretation of this phrase is colored by their belief that they purchased an

insurance policy covering loss due to weight of snow and ice.            Whether such an

expectation was reasonable is dependent upon contested facts. While it is uncontested

that the Bolingers requested and paid for such coverage, the Bolingers dispute Wolken's

testimony that he informed Albert Bolinger that an inspection was needed prior to

coverage. The Bolingers also dispute that they were given the Quote Proposal that stated

the FO-323 endorsement was subject to inspection. The effect of the phrase: "'We' do

pay for an ensuing loss unless the ensuing loss itself is excluded" cannot be determined

until these material facts are decided by a fact finder.

       We note that some of the facts upon which the Bolingers rely in order to argue the

Policy covers loss due to weight of snow and ice are extra contractual and controverted.

We further note that the petition in this case is not a model of clarity. Despite statements

that the Bolingers are only relying on the four corners of the Policy, the Bolingers

                                              11
repeatedly and emphatically insist that that the Policy must contain coverage for loss due

to weight of snow and ice because the Bolingers specifically requested this coverage,

paid for the coverage, and were never informed that this coverage required a prior

inspection. They argue the Policy must be read to contain coverage for loss due to

weight of snow and ice because that was the peril against which coverage was

specifically requested and the coverage that they were informed they were purchasing.

They also note that they were not provided a copy of the written policy until after the

damage occurred and a claim was made for coverage.                             These are extra contractual

theories involving material facts that are controverted.5 Where there are controverted

issues of material fact, summary judgment is precluded.

        The circuit court erred in entering summary judgment in favor of the Bolingers

because, at best, the coverage requested by the Bolingers is dependent on controverted

material issues of fact that remain unresolved and preclude summary judgment.

                                                    II.

        Clark's Fork final point on appeal alleges that, in granting summary judgment to

the Bolingers, the circuit court failed to address Clarks Fork's affirmative defenses of

coverage exclusion under General Exclusions eleven, twelve, and thirteen of the Policy

and estoppel and waiver defenses. We agree that these affirmative defenses were not

properly addressed and, further, raise issues of controverted material fact that preclude

summary judgment.

        5
           We recognize that these are not theories that were clearly pled in the Petition. They are, however, the
arguments upon which the Bolingers continually base their arguments as made clear in their motion for summary
judgment and arguments on appeal. What, right, if any, the Bolingers have to amend their Petition to more clearly
delineate these claims is an issue to be determined by the circuit court as "justice so requires." Rule 55.33.

                                                          12
      A complete discussion of the affirmative defenses raised is not necessary except to

note that the Bolingers had the burden of establishing "that the non-moving defending

party's affirmative defense[s] fail as a matter of law." Chouteau Auto Mart, Inc. v. First

Bank of Mo., 91 S.W.3d 655, 658-659 (Mo. App. W.D. 2002). The Bolingers fail to

argue the propriety of the affirmative defenses. Their only challenge to the affirmative

defenses is that it is uncontroverted that the loss was caused by the weight of ice and

snow and, therefore, there is coverage regardless of any other exclusions. This ignores

the plain language upon which they rely that there is coverage "unless the ensuing loss

itself is excluded." Although it is uncontroverted that the loss was caused by the weight

of ice and snow, the degree to which the loss was caused by wear and tear of the building

is controverted and loss caused by wear and tear is specifically excluded as a General

Exclusion. Thus, the Bolingers own interpretation of the Policy necessitates that the

degree to which "wear and tear" played a role in the collapse must be determined prior to

judgment.

      The Bolingers failed to refute Clark's Forks affirmative defenses prior to the grant

of summary judgment, and it is unclear that the circuit court actually properly considered

such defenses in entering its judgment. Further, the Bolingers present no additional

arguments regarding the affirmative defenses on appeal.           Therefore, we find it

unnecessary to address them further on this appeal. Instead, we merely note that they

must be addressed in some fashion on remand of this case.




                                           13
                                            III.

       Clark's Fork's second and third points on appeal allege that summary judgment

was not proper based on any extra contractual theories or oral contract theories because

such theories were not properly pled. The Bolingers agree with these points and request

that we limit our review to only the written terms of the contract. Thus, we need not

address points two and three.

       We also need not address Clark Fork's fourth point on appeal given our holding

regarding point one.

                                        Conclusion

       We find that there exist material controverted facts that preclude summary

judgment. We further find that the Bolingers failed to properly refute Clarks Fork's

affirmative defenses prior to the circuit court's grant of summary judgment. As such, we

remand this case for further proceedings by the circuit court consistent with this opinion.



                                          __________________________________
                                          Gary D. Witt, Judge
All concur




                                            14
