KEANNA P. BRANCH KERPERIEN,                  )
Natural Daughter of Decedents,               )
STEPHANIE KERPERIEN and JAMES                )
KERPERIEN,                                   )
                                             )
       Plaintiff-Respondent,                 )
                                             )
v.                                           )      No. SD36236
                                             )
COLUMBIA MUTUAL INSURANCE                    )      Filed: March 12, 2020
COMPANY, MEMBER OF COLUMBIA                  )
INSURANCE GROUP, INC.,                       )
                                             )
       Defendant-Appellant.                  )

          APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY

                               Honorable Stephen Mitchell

REVERSED AND REMANDED WITH DIRECTIONS

       Columbia Mutual Insurance Company (“Insurer”) appeals the judgment that

declared the language of Insurer’s insurance policy with Jeffrey Todd (“Insured”) to be

ambiguous and allowed the liability coverage on four separate vehicles to be “stacked.”

Because the unambiguous language of the policy prohibits such stacking, we reverse the

judgment and direct the trial court upon remand to enter a judgment in favor of Insurer.




                                            1
                               The Uncontroverted Material Facts1

         On May 13, 2016, James and Stephanie Kerperien were killed when a 2015

Chevrolet Silverado 3500 dually truck (“the Chevy truck”) being driven by Shawn

Skaggs crossed the centerline and hit them head-on (“the accident”).2 The Chevy truck

was insured under Policy No. FAPMO1000004121 (“the Columbia Policy”). In addition

to the Chevy truck, the Columbia Policy provided liability coverage for three other

described vehicles that were not involved in the accident.

         Plaintiff filed a wrongful death action against Shawn Skaggs and Insured (as to

Insured, both individually and d/b/a Todd Farms, GT Ag, LLC, G & T Express, LLC and

Thirstyz, LLC) (“the wrongful death suit”). In the wrongful death suit, Insurer contended

that its policy limit applicable to the accident was $500,000 -- the per-accident liability

limit for the Chevy truck. Plaintiff maintained that the limits should stack, producing a

total of $2,000,000 in liability coverage (four insured vehicles, each carrying $500,000 in

liability coverage). The parties settled the wrongful-death suit for $500,000, with an

agreement that Plaintiff would pursue this declaratory judgment action to have the trial

court decide whether the Columbia Policy limits for the accident were $500,000 or

$2,000,000.

         In accordance with that agreement, Plaintiff filed the declaratory-judgment action

against Insurer, seeking a declaration that the Columbia Policy provided $2,000,000 in

1
  The declaratory judgment was entered via the summary-judgment process set forth in Rule 74.04.
Because the respondent in this appeal, Keanna P. Branch Kerperien (who was the plaintiff in the underlying
wrongful death action, hereinafter “Plaintiff”), did not file any response to Insurer’s Statement of
Uncontroverted Material Facts (“SUMF”), those alleged uncontroverted material facts are deemed
admitted. Rule 74.04(c)(2). Reverse Mortg. Sols., Inc. v. Estate of Hunter, 479 S.W.3d 662, 666-67 (Mo.
App. W.D. 2015). In any event, Plaintiff expressly admits that “[t]he facts of the present matter are not in
dispute and the issue before this [c]ourt is strictly one of law involving the interpretation of an insurance
policy.” All rule references are to Missouri Court Rules (2019).
2
  The Chevy truck was owned by Insured, and Shawn Skaggs was employed by Insured at the time of the
accident.


                                                     2
liability coverage for the accident. Insurer and Plaintiff filed cross motions for summary

judgment on the liability-limit issue. The trial court entered its judgment after granting

Plaintiff’s motion for summary judgment and denying Insurer’s motion. The judgment

declared that (1) the language of the Columbia Policy was ambiguous, and (2) the limit of

liability for the accident was “the aggregate of the Limit entries shown in Item Three of

the Declarations, $2,000,000.”

                                                    Analysis

                   Summary judgment is appropriate when there is no dispute as to
           the material facts and the movant has established a right to judgment as a
           matter of law. ITT Commercial Finance v. Mid–America Marine, 854
           S.W.2d 371, 381–82 (Mo. banc 1993). In the present case, as the parties
           concede, there is no dispute as to the material facts. Both issues involve
           only the interpretation of an insurance policy, which is a question of law
           that this Court reviews de novo. See McCormack Baron Management
           Services, Inc. v. American Guarantee & Liability Ins. Co., 989 S.W.2d
           168, 171 (Mo. banc 1999).

Karscig v. McConville, 303 S.W.3d 499, 502 (Mo. banc 2010).

           “The starting point in determining the rights and liabilities of the parties is the

insurance contract.” Hall v. Allstate Ins. Co., 407 S.W.3d 603, 608 (Mo. App. E.D.

2012). The parties agree that the following are the relevant provisions of the Columbia

Policy:3

                 Section II – Covered Autos Liability Coverage

                 A. Coverage

                 We will pay all sums an “insured” legally must pay as damages

        because of “bodily injury” or “property damage” to which this insurance

        applies, caused by an “accident” and resulting from the ownership, maintenance

        or use of a covered “auto”.

3
    Plaintiff also claims that the “Other Insurance” clause is applicable, a claim we address, infra.


                                                         3
        C. Limit Of Insurance

       Regardless of the number of covered “autos”, “insureds”, premiums paid,

claims made or vehicles involved in the “accident,” the most we will pay for the

total of all damages and “covered pollution cost or expense” combined resulting

from any one “accident” is the Limit Of Insurance for Covered Autos Liability

Coverage shown in the Declarations.




                                        4
       In the section titled “Description Of Covered Auto Designation Symbols[,]”

symbol 7 is defined as:


         Specifically     Only those “autos” described in Item Three of the Declarations for which a
         Described        premium charge is shown (and for Covered Autos Liability Coverage any
         “Autos”          “trailers” you don’t own while attached to any power unit described ln Item
                          Three).




                                                5
6
                                         Analysis

                                          Point 1

       Insurer’s sole point claims the trial court erred in entering summary judgment for

Plaintiff and denying summary judgment for Insurer because the terms of the Columbia

Policy clearly and unambiguously provide that the limit of liability for the accident is

$500,000. We agree.

       Generally, the denial of a motion for summary judgment is not reviewable on

appeal. Lopez v. American Family Mut. Ins. Co., 96 S.W.3d 891, 892 (Mo. App. W.D.

2002). An exception exists, however, when the merits of that motion are inextricably

intertwined with the issues in an appealable summary judgment granted in favor of

another party. Id. That exception applies here.

                To determine the coverage provided under an insurance policy, we
       first look to the insurance contract itself. Long v. Shelter Ins. Companies,
       351 S.W.3d 692, 701 (Mo.App. W.D.2011). If the insurance contract is
       unambiguous, we enforce the policy as written. Id. “[A]mbiguity exists
       when there is duplicity, indistinctness, or uncertainty in the meaning of the
       language in the policy. Language is ambiguous if it is reasonably open to
       different constructions.” Id. at 696 (internal quotations omitted). We will
       apply the plain meaning of words and phrases as they would have been
       understood by an ordinary person of average understanding when
       purchasing insurance. Id. In reviewing an insurance contract, we are not
       permitted to distort policy language or “exercise inventive powers” in
       order to create an ambiguity when none exists. Hall[], 407 S.W.3d [at]
       607 [].

Becker v. Allied Prop. & Cas. Ins. Co., 422 S.W.3d 434, 437 (Mo. App. E.D. 2013).

               “‘Stacking’ refers to an insured’s ability to obtain multiple
       insurance coverage benefits for an injury either from more than one
       policy, as where the insured has two or more separate vehicles under
       separate policies, or from multiple coverages provided for within a single
       policy, as when an insured has one policy which covers more than one
       vehicle.” Niswonger v. Farm Bureau Town & Country Ins. Co. of
       Missouri, 992 S.W.2d 308, 313 (Mo.App. E.D.1999) (internal quotations
       omitted). From this definition of stacking, it necessarily follows that an



                                             7
        insured seeking to stack coverages must actually be an insured as to the
        particular loss under more than one coverage. 12 Couch on Ins. § 169:11.
        Accordingly, we first address the threshold issue of whether the [] policy
        provided multiple [] coverages for each of the [] five vehicles, as that issue
        is dispositive of both. See id. (“In any case potentially involving stacked
        coverages, the initial step for both insured and all potential insurers should
        be an analysis of whether there are multiple applicable coverages
        applicable.”).

Id.

        Insurer urges the following reading of the Columbia Policy. Beginning with

Section II A. (titled “Coverage”) and Section II C. (titled “Limit Of Insurance”), the

Columbia Policy clearly states that “the most we will pay for the total of all damages . . .

resulting from any one ‘accident’ is the Limit Of Insurance for Covered Autos Liability

Coverage shown in the Declarations.” Turning to the Declarations, ITEM TWO (titled

“Schedule of Coverages And Covered Autos”),” the reader sees the following:

Coverages                 Covered Autos           Limit                 Premium
Covered Autos Liability   7                       $500,000              $1,222


        The symbol “7” from ITEM TWO is specifically defined within the Columbia

Policy as follows: “Specifically Described ‘Autos’” and “Only those ‘autos’ described in

Item Three of the Declarations for which a premium charge is shown [].”

        Turning to ITEM THREE of the Declarations, the reader sees a table that lists

four specifically Covered Autos and assigns each of those specific autos a number from 1

through 4. The table tells the reader, again, that $500,000 is the “Limit” for each of the

“Covered Autos Liability” by listing the $500,000 limit next to each numerically-listed,

Covered Auto. The applicable portion of ITEM THREE appears as follows:




                                              8
9
       Thus, Insurer argues that, when read together, the foregoing sections of the

Columbia Policy tell the reader that the most Insurer will pay for damages resulting from

any one “accident” is the $500,000 limit for those Covered Autos described in ITEM

THREE. ITEM THREE, as shown above, again states the $500,000 limit, making

specific reference to each of the numerically-listed Covered Autos.

       Plaintiff argues that the “Limit of Insurance” provision is ambiguous because it

“does not include language limiting the amount payable in damages to the amount listed

in the declarations associated with the specific covered auto involved in ‘any one

accident.’” Plaintiff’s argument “does not ask this court to construe any provision of the

policy, but requests this court to write additional terms into the policy.” United States

Fid. & Guar. Co. v. Hill, 722 S.W.2d 609, 611 (Mo. App. W.D. 1986). It has long been

the rule in Missouri that “[t]he function of the courts is to construe [contracts], not to

make them.” Id. (internal quotation omitted).

       Contrary to Plaintiff’s argument, the language actually contained in the Columbia

Policy regarding the “Limit Of Insurance” clearly states that “the most we will pay for

the total of all damages . . . resulting from any one ‘accident’ is the Limit Of Insurance

for Covered Autos Liability Coverage shown in the Declarations.” Turning to that

section, ITEM TWO shows the Limit as $500,000 for Covered Autos Liability. ITEM

THREE of the Declarations again lists each Covered Auto numerically from 1 through 4

and again shows the $500,000 Limit next to each individually-numbered auto.

       Plaintiff argues that an ambiguity exists because ITEM TWO lists a limit of

$500,000 – a single limit for covered autos – while ITEM THREE shows what Plaintiff




                                              10
claims to be an “aggregate” limit by listing multiple limits, the sum of which is

$2,000,000. We do not agree that an ordinary person of average understanding would

read the Columbia Policy as providing an “aggregate” policy limit. The Columbia Policy

does not contain the figure $2,000,000, and it does not anywhere direct the reader to

“aggregate” (add together) the listed Limit for any of the Covered Autos. As Insurer

notes, the Columbia Policy effectively eliminates any possible confusion by listing each

Covered Auto numerically and specifically stating for each such vehicle that the coverage

Limit is $500,000. When an insurance policy is clear and unambiguous, a court must

construe it as written. Id.

        In Chandler v. Allied Prop. & Cas. Ins. Co., as here, the policy at issue insured

several separately-identified vehicles in a single policy. 443 S.W.3d 662, 665 (Mo. App.

W.D. 2014). As here, the three vehicles were identified in a table in the policy’s

declarations page, and an identifying numeral was assigned to each vehicle. Id. The

limit of liability in that policy –- $50,000 in that case –- was stated in a separate table,

using the numeric identifier assigned to each of the three vehicle insured by the policy.

Id. The “LIMIT OF LIABILITY” provision at issue in Chandler was as follows:

        The limit of liability shown in the Declarations for each person for Bodily
        Injury Liability is our maximum limit of liability for all damages,
        including damages for care, loss of services or death, arising out of
        “bodily injury” sustained by any one person in any one auto accident.
        Subject to this limit for each person, the limit of liability shown in the
        Declarations for each accident for Bodily Injury Liability is our maximum
        limit of liability for all damages for “bodily injury” result [sic] from any
        one auto accident.

Id. at 666. In an argument similar to the one Plaintiff makes here, Chandler argued that




                                              11
        an ordinary person would read the [] Declarations and conclude that the
        Policy’s per-person limit of liability for bodily injury is $150,000, a figure
        she derives by adding together the three numbers listed in the left column
        of the “Coverage and Limits of Liability” table. She contends that the
        three $50,000 limits must be aggregated because there is no language in
        the Declarations stating that specific liability limits apply only to a
        particular vehicle.

Id. The western district of our court rejected that argument, stating that,

        Contrary to Chandler’s argument, the Policy plainly and unambiguously
        specifies that a $50,000 bodily injury limit applies, separately, to each of
        the three vehicles insured under the Policy. Each figure of $50,000
        appears directly adjacent to a vehicle number; those vehicle numbers
        correspond to the three separate vehicles identified in the Declarations.
        The evident meaning of the table is that the limits of liability are
        separately stated, on separate lines, for the three vehicles insured under the
        Policy; we cannot read this table as creating a single, aggregate limit of
        liability equally applicable to all three vehicles.

Id. (footnote omitted).

        We see no meaningful difference between the Columbia Policy and the policy at

issue in Chandler. The “evident meaning” of the table in ITEM THREE is that the limit

of liability is stated separately for each of the four Covered Autos; there is nothing in the

Columbia Policy that would cause a reader to believe that those four, separately-stated

limits are to be added together to create an “aggregate” limit. Id. Further, as in

Chandler,

        the [Columbia] Policy’s “Limit of Liability” section repeatedly refers to
        the “limit” of liability applicable to a particular coverage, in the singular
        rather than plural. . . . The use of the singular to refer to the applicable
        limit of liability is consistent throughout the Policy as a whole . . . Viewed
        in conjunction with the Declarations, it is clear that the [Columbia] Policy
        contemplates a single limit of liability applicable to each insured vehicle.

Id. at 667.

        Chandler also rejected Plaintiff’s argument that the policy’s use of the words

“[r]egardless of” and “shown” in the Limit of Insurance creates an ambiguity because



                                              12
these terms are not defined within the policy. Id. at 668. Chandler stated that the phrase

“[t]his is the most we will pay regardless of the number of ... [v]ehicles ... shown in the

Declarations” simply meant that the stated limit of liability applied “no matter how many

different vehicles are identified in the Declarations, [and] the limit of liability for any

particular vehicle is not increased simply because that limit of liability is repeated with

respect to other vehicles.” Id.

        Plaintiff also contends that section d. of the “Other Insurance” clause creates an

ambiguity. That section provides:

        When this Coverage Form and any other Coverage Form or policy covers
        on the same basis, either excess or primary, we will pay only our share.
        Our share is the proportion that the Limit of Insurance of our Coverage
        Form bears to the total of the limits of all the Coverage Forms and policies
        covering on the same basis.

        Plaintiff argues that the foregoing clause creates an ambiguity because

“[d]epending on the amount of the claim and the relative liability limits of the Columbia

[P]olicy and the other insurance, [Insurer]’s liability limit may be different from that

shown in the Declarations.” While the presence of other insurance may render Insurer’s

liability less than the limit stated in the Declarations, nothing in this clause – when read

in conjunction with the other applicable parts of the Columbia Policy discussed above –

would cause an ordinary person of average understanding to believe that the Columbia

Policy’s liability might be more than that stated in the Declarations. See Naeger v.

Farmers Ins. Co., 436 S.W.3d 654, 661 (Mo. App. E.D. 2014) (internal quotation

omitted) (definitions, conditions, and exclusions are necessary provisions and enforceable

if clear and unambiguous within the context of the policy as a whole).




                                              13
       Finally, we note that all of Plaintiff’s arguments for the existence of an ambiguity

depend upon coverage that Plaintiff claims is “granted” by the Declarations page. Our

high court has made clear that declarations pages “do not grant any coverage” but “are

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

Geico Cas. Co. v. Clampitt, 521 S.W.3d 290, 293 (Mo. App. E.D. 2017) (quoting

Owners Ins. Co. v. Craig, 514 S.W.3d 614, 617 (Mo. banc 2017)). Missouri courts have

consistently refused to find an ambiguity between a declarations page and clear anti-

stacking mandates located elsewhere in the policy. Id. at 293-94 (citing Midwestern

Indem. Co. v. Brooks, 779 F.3d 540, 543 (8th Cir. 2015)) (applying Missouri law to

prohibit stacking; while declarations page listed limits of liability for UIM coverage on

five separate vehicles, rest of policy contained clear anti-stacking language).

       Here, the Declarations page summary says nothing about stacking, and the actual

terms of the Columbia Policy at issue unambiguously prohibit it. Because the Columbia

Policy unambiguously provides liability coverage with a per-accident limit of $500,000,

the judgment of the trial court is reversed, and the trial court is directed upon remand to

enter judgment in favor of Insurer.


DON E. BURRELL, J. – OPINION AUTHOR

DANIEL E. SCOTT, P.J. – CONCURS

MARY W. SHEFFIELD, J. – CONCURS




                                             14
