DENNIS HENTE,                                        )
                                                     )
               Plaintiff/Appellant,                  )
                                                     )
       vs.                                           )       No. SD33408
                                                     )       Filed: May 4, 2015
21ST CENTURY CENTENNIAL                              )
INSURANCE COMPANY,                                   )
                                                     )
               Defendant/Respondent.                 )


             APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY

                           Honorable Robert N. Mayer, Circuit Judge

AFFIRMED

       Dennis Hente (“Hente”) appeals summary judgment entered in favor of 21st Century

Centennial Insurance Company (“21st Century”) relating to whether Hente was entitled to stack

underinsured motorist (“UIM”) coverage, and whether he was entitled to uninsured motorist

(“UM”) coverage, under the terms of his automobile policy with 21st Century. Finding no merit

to Hente’s four points on appeal, we affirm the trial court’s judgment.
                                 Factual and Procedural History

       On the evening of July 19, 2010, Hente was operating his vehicle in the left northbound

passing lane of Missouri State Highway 25 in Stoddard County. At the same time, Jennifer

Kinney (“Kinney”) was operating a vehicle in the right northbound lane of Missouri State

Highway 25. Kinney, seeing a dead deer in her lane of traffic, swerved to her left forcing

Hente’s vehicle off the road where it struck a ditch, became airborne, rolled over, and came to

rest on its top. Hente sustained serious injuries as a result of the accident.

       Hente brought a claim against Kinney, an insured of Alpha Property and Casualty

Insurance Company (“Alpha”). On May 16, 2011, Hente and Alpha entered into a settlement

agreement for Kinney’s liability policy limits of $25,000.

       Hente had a policy of insurance (“the Policy”) with 21st Century, containing UIM

coverage and UM coverage with policy limits of $25,000 each, insuring the vehicle Hente was

operating in the accident, as well as an additional vehicle owned by Hente.

       On January 13, 2012, Hente filed a two-count petition against 21st Century. In Count I,

Hente sought collection of policy limits under the UIM coverage for both insured vehicles,

stacking the policies for $50,000; in Count II, Hente claimed he was entitled to the policy limits

of UM coverage for both vehicles, stacking the policies for $50,000, due to the fault of an

alleged phantom uninsured driver who initially struck and killed the deer.

       On May 24, 2013, 21st Century filed a motion for partial summary judgment on the

issues of stacking coverage on Hente’s UIM claim, and the UM claim.

       On November 4, 2013, the trial court entered an order sustaining 21st Century’s motion

for partial summary judgment as to Count II, the UM coverage claim. On June 20, 2014, the trial

court entered an order sustaining summary judgment on Count I “as to the stacking issue . . . as



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to one $25,000.00 insurance policy.” On June 27, 2014, these two orders were consolidated by

the trial court in a “Partial Summary Judgment Made Final for Appellate Purposes.” 1 This

appeal followed.

        In his brief, Hente contends in Points 1 and 2 the trial court erred in entering partial

summary judgment on Count I because the Policy was ambiguous on the UIM coverage and

should have been interpreted to allow for stacking. In Points 3 and 4, Hente argues the trial court

erred in granting summary judgment on Count II, on the UM coverage issue, because genuine

issues of material fact exist as to whether the phantom uninsured motorist breached a duty owed

to Hente.

        The issues for our determination are whether the trial court erred in granting summary

judgment because:

        1.       The Policy was ambiguous and should have been interpreted to allow for stacking
                 the UIM coverage; and

        2.       Because there was a duty owed by the phantom uninsured motorist to Hente and
                 issues of material fact related to that duty.

                                           Standard of Review

        Our review of a trial court’s grant of summary judgment is essentially de novo, and we

view the record in the light most favorable to the party against whom judgment was entered.

ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376

(Mo. banc 1993).

        When the moving party is the defending party, as in this case, summary judgment is

established where the defending party shows:


1
 The trial court also ordered the case to remain open “as to $25,000.00 on the underinsured policy of the vehicle
driven by [Hente] as complained in Count I.” A bench trial was held on July 21, 2014, on that issue and the trial
court entered judgment for Hente in the amount of $25,000. Hente has not appealed that judgment. It was at the
conclusion of the bench trial that a final judgment was entered thus making the case ripe for appeal.

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       (1) facts that negate any one of the claimant’s elements facts, (2) that the non-
       movant, after an adequate period of discovery, has not been able to produce, and
       will not be able to produce, evidence sufficient to allow the trier of fact to find the
       existence of any one of the claimant’s elements, or (3) that there is no genuine
       dispute as to the existence of each of the facts necessary to support the movant’s
       properly-pleaded affirmative defense.

Id. at 381 (emphasis in original).

       Once the movant has made “a prima facie showing that there are no genuine issues of

material fact and that the movant is entitled to judgment as a matter of law,” the burden shifts to

the non-movant to show that one or more of the material facts shown by movant not to be in

dispute, is actually genuinely disputed. Id. “The non-movant may not rest upon the allegations

and denials of the pleadings, but rather must use affidavits, depositions, answers to

interrogatories, or admissions on file to show the existence of a genuine issue for trial.” Crow v.

Crawford & Co., 259 S.W.3d 104, 113 (Mo.App. E.D. 2008). “A genuine dispute is one that is

real, not merely argumentative, frivolous, or imaginary.” Id.

       “The key to summary judgment is the undisputed right to judgment as a matter of law;

not simply the absence of a fact question.” ITT Commercial Finance Corp., 854 S.W.2d at 380.

Summary judgment must still be denied if all of the uncontroverted “factual assertions are not

sufficient to entitle the movant to judgment as a matter of law.” Jordan v. Peet, 409 S.W.3d

553, 558 (Mo.App. W.D. 2013). “Summary judgment should not be granted unless evidence

could not support any reasonable inference for the non-movant[]” by which the non-movant

could state, as applicable, a claim or defense. Grissom v. First Nat’l. Ins. Agency, 364 S.W.3d

728, 735 (Mo.App. S.D. 2012) (internal quotation and citation omitted).




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                                              Analysis

                           Points 1 and 2: UIM Stacking as to Count I

       Hente argues in Points 1 and 2 that the trial court erred in granting summary judgment in

favor of 21st Century because the UIM and UM coverages were improperly combined and

ambiguous and, therefore, the trial court should have stacked the UIM coverages. We combine

these points for ease of analysis.

       The summary judgment record shows that the material facts necessary for the resolution

of this issue are not in dispute. Nevertheless, summary judgment depends not on the absence of

a fact question, but the undisputed right to judgment as a matter of law. ITT Commercial

Finance Corp., 854 S.W.2d at 380. Likewise, the question before us is whether, based on the

facts in the summary judgment record, 21st Century was entitled to judgment as a matter of law.

See Dutton v. American Family Mutual Insurance Company, No. SC94075, 2015 WL 468715,

at *2 (Mo. banc Feb. 3, 2015) (“The interpretation of an insurance policy is a question of law

that this Court also determines de novo.”).

       The Policy at issue in this matter prohibited UIM stacking. Hente argues that, as a matter

of law, this anti-stacking provision is unenforceable because the UM and UIM coverages are

lumped together in Part C of the policy.

       In Missouri, stacking insurance benefits allows an insured

       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 within a single policy, as when an
       insured has one policy which covers more than one vehicle.

Corrigan v. Progressive Ins. Co., 411 S.W.3d 306, 310 (Mo.App. E.D. 2013) (internal quotation

and citations omitted). Missouri law requires all automobile insurance policies to include UM




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coverage. § 379.203. 2 As a result, our Supreme Court has held that where an insured has two or

more vehicles under separate policies or multiple coverages within a single policy, insurers must

allow stacking of UM coverage. Ritchie v. Allied Property & Cas. Ins. Co., 307 S.W.3d 132,

135 (Mo. banc 2009).

           By contrast, there is no requirement that insurance policies carry UIM coverage, and

there is no similar policy requiring the stacking of UIM coverage. Corrigan, 411 S.W.3d at 311.

Courts will enforce policies which unambiguously prohibit stacking. Id. Where policies are

ambiguous as to stacking, policies will be construed in favor of the insured and allow

stacking. Id.

           Such ambiguity has been found where the provisions for UM and UIM coverage are

“lumped together” in a policy. Id. at 313. The UM and UIM coverages are not lumped together

where the respective provisions are “separate and distinct,” where each coverage section includes

its own insuring agreement, definitions, exclusions, limits of liability, and other separate

provisions. Id.

           Hente declares in his brief, without any explanation, analysis, or sufficient legal

authority, that the UIM and UM coverages are “lumped together under Part C of the policy,” and

therefore ambiguous. This bare legal conclusion is insufficient to support Hente’s argument and

inconsistent with cases like Corrigan and Becker v. Allied Property & Cas. Ins. Co., 422

S.W.3d 434, 437-38 (Mo.App. E.D. 2013). Nevertheless, we observe that the Policy at issue in

this case is very similar to other policies held not to be ambiguous. See, e.g., Becker, 422

S.W.3d at 437-38; Corrigan, 411 S.W.3d at 310-15.




2
    All references to statutes are to RSMo 2000, unless otherwise indicated.


                                                            6
       Hente relies on Maxon v. Farmers Insurance Company, Inc., 791 S.W.2d 437

(Mo.App. W.D. 1990).        Maxon is distinguishable.    There, the policy language defined an

underinsured tortfeasor the same as an uninsured tortfeasor in the same section, but later

language prohibited stacking when the insured had two or more cars insured with the company.

Id. at 438-40. Because the contract “promise[d] something in one point and t[ook] it away in

another, there [was] a resultant ambiguity[.]”       Id. at 438.     There are no contradictory

representations here which are similar to Maxon.

       Further, unlike Krombach v. Mayflower Insurance Company, Ltd., 827 S.W.2d 208,

210-11 (Mo. banc 1992), cited by Hente, the Policy here treats uninsured and underinsured

coverage separately in the declarations page, the limits of liability, the definitions section, and

other insurance coverage.

       Hente further argues that there is an ambiguity in the Policy because the declaration page

states that the limit for UIM coverage is “$25,000/           $50,000 per person/per accident.”

Specifically, Hente suggests that the space between $25,000/ and $50,000 makes the policy

ambiguous because a reasonable person could conclude that the $50,000 was the policy limit per

person. Hente cites no authority for this proposition, we find none, and we find the assertion

unpersuasive.

   The challenged declarations portion of the policy reads as follows:

   COVERAGE           LIMITS OF LIABILITY                           AUTO 1         AUTO 2
   Bodily Injury…….. $25,000/ $50,000 Per Person/Accident           $ 147.07       $ 70.29
   Property Damage.. $10,000 Per Accident                           $ 49.12        $ 40.00
   Uninsured Motorist
    Bodily Injury     $25,000/ $50,000 Per Person/Accident          $    14.21     $ 16.22
   Underinsured Motorist
    Bodily Injury…... $25,000/ $50,000 Per Person/Accident
                                                     $ INCL        $ INCL
   Comprehensive…. Deductible AUTO#1 $250 #2 $250    $ 88.77       $ 59.79
   Collision………… Deductible AUTO#1 $250 #2 $250      $ 147.57      $ 155.81
                                    Total Premium Per Auto
                                                     $ 444.74      $ 342.11
                                                            _____________
    ***THIS IS NOT A BILL*** TOTAL FULL TERM PREMIUM          $ 786.85


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          In construing the terms of a policy, the “Court applies the meaning an ordinary person of

average understanding would attach if purchasing insurance and resolves ambiguities in favor of

the insured.” Dutton, 2015 WL 468715, at *2. This requires examining policies “as a whole.”

Id. at *4. “An ambiguity 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. Absent an ambiguity, an insurance policy must be enforced according to

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

quotation and citation omitted).

          The challenged text “$25,000/      $50,000 Per Person/Accident” is compartmentalized

within the space designated “Limits of Liability.” The space between $25,000 and $50,000 is

not so great that a reasonable person reading it would not, upon seeing “$50,000 Per

Person/Accident,” also see the corresponding antecedent text of “$25,000/.”            There is no

demonstrated uncertainty as to the meaning of the challenged text.

          The trial court did not err in granting partial summary judgment on Count I for failing to

interpret the Policy as ambiguous to allow for stacking of the UIM coverage. Points 1 and 2 are

denied.

                      Points 3 and 4: UM Summary Judgment as to Count II

          In Points 3 and 4, Hente argues the trial court erred in granting summary judgment as to

Count II because a genuine issue of material fact exists as to whether the phantom uninsured

driver tortiously breached a duty owed to Hente.

          To recover for negligent tortious conduct of the phantom uninsured driver, Hente must

show: (1) the existence of a duty on the part of the phantom uninsured driver to protect Hente

from injury; (2) the phantom uninsured driver’s failure to perform that duty; and (3) injury to



                                                  8
Hente resulting from that failure. See Blackwell v. CSF Properties 2 LLC, 443 S.W.3d 711, 716

(Mo.App. E.D. 2014).

          We observe that “[t]he purpose of section 379.203 is to establish a minimum level of

protection equivalent to the liability coverage the insured would have received had the insured

been involved in an accident with an insured tortfeasor.” Rice v. Shelter Mut. Ins. Co., 301

S.W.3d 43, 46 (Mo. banc 2009). Likewise, a claim for UM coverage requires a showing of

tortious conduct by an uninsured motorist. See Hill v. Government Employee Ins. Co., 390

S.W.3d 187, 191-92 (Mo.App. W.D. 2012).

          Hente concedes that for him to prevail on Points 3 and 4, we would be required to

recognize, under Missouri law, the duty of a motorist who has struck a deer on a highway to

remove or warn others of the dead or injured animal in the roadway. Hente cites no persuasive

Missouri authority for such a duty, and we decline to declare such a duty.

          Arguing that UM coverage is imputed under the Policy, Hente points to statutes and

distinguishable case law as sources of a duty which was breached by the phantom uninsured

driver.

          Hente cites Lee v. Smith, 484 S.W.2d 38, 44 (Mo.App. Spfld.D. 1972), for the

proposition that “Common Law imposes a duty not to obstruct roadways.” Lee does not support

this proposition. Rather, in Lee, plaintiffs brought an action to have an allegedly existing

roadway declared a public road under the provisions of section 288.190, RSMo (1969) due to

public use of the road for over ten years. Id. at 42-43. The court there stated:

          And, granted that encroachment upon or obstruction of a public highway is an
          unlawful act, still evidence that access to a public road has been entirely blocked
          and cut off for ten years and that the encroachment has been submitted to by the
          public may be taken as evidence that the road has been abandoned.




                                                  9
Id. at 43-44. First, the portion of the sentence indicating that it is unlawful to obstruct a public

highway is dicta, and therefore not binding on this Court. Second, Hente does not direct us to

any authority interpreting Lee to impose such a duty on a motorist, nor do we read Lee to stand

for this proposition.

       Hente also relies on section 577.076.2 (“Littering with carcasses—penalty”; prohibiting,

in relevant part, the placing of a dead animal on a roadway); section 304.160 (defining as a

misdemeanor the purposeful or accidental placement of substances injurious to the feet of

persons, animals, or the tires of vehicles); section 304.151 (defining as an infraction the failure of

a driver to make a reasonable effort to keep his vehicle from obstructing the flow of traffic);

section 577.060 (defining the crime of leaving the scene of a motor vehicle accident); and Minn.

Stat. § 169.42.1 (2003) (prohibiting the depositing of the carcass of a dead animal upon a street

or highway likely to injure a person, animal, or vehicle upon the roadway).

       While Hente never alleges “statutory negligence” or “negligence per se” specifically in

his brief, his argument is of this nature.      ‘“Negligence per se arises when the legislature

pronounces in a statute what the conduct of a reasonable person must be and the court adopts the

statutory standard of care to define the standard of conduct of a reasonable person.”’ Goudeaux

v. Board of Police Comm’rs of Kansas City, 409 S.W.3d 508, 512 (Mo.App. W.D. 2013)

(quoting Dibrill v. Normandy Associates, Inc., 383 S.W.3d 77, 84-85 (Mo.App. E.D. 2012)).

       To establish a claim of negligence per se, the plaintiff must plead the following
       four elements: (1) the defendant violated a statute or regulation; (2) the injured
       plaintiff was a member of the class of persons intended to be protected by the
       statute or regulation; (3) the injury complained of was the kind the statute or
       regulation was designed to prevent; and (4) the violation of the statute or
       regulation was the proximate cause of the injury.

Dibrill, 383 S.W.3d at 84-85 (emphasis added).




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       We observe that none of these required elements are pled in Hente’s petition. Facts

which might support such a claim appear for the first time in his response to 21st Century’s

motion for summary judgment. Even there, on the record before us, required elements are

missing. Specifically, Hente points to sections 577.076.2, 304.160, 304.151, and 577.060 for the

proposition that “it is an incorrect statement of law” that “[t]here is no State Statute that requires

a person to stop and drag a deer off the side of the[]road after they hit a deer . . . .” Hente does

not specifically assert in his response to 21st Century’s statement of uncontroverted material

facts that the phantom uninsured motorist violated any of these statutes, that Hente was a

member of the class of persons intended to be protected by one of these statutes, that Hente’s

injuries were the kind one of the statutes was intended to prevent, or that the violation of such

statute was the proximate cause of Hente’s injuries.          Because of this deficiency, Hente’s

arguments on appeal fail to persuade us that the trial court erred in granting summary judgment

in favor of 21st Century on Count II. The trial court did not err in granting summary judgment

on Count II of Hente’s petition because there was no duty on the part of the alleged phantom

uninsured motorist to remove or warn of the deer in the road. Points 3 and 4 are denied.

       The judgment of the trial court is affirmed.


WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR

JEFFREY W. BATES, J. - Concur

DANIEL E. SCOTT, J. - Concur




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