        IN THE MISSOURI COURT OF APPEALS
                WESTERN DISTRICT

DYLAN MARTIN, BY AND THROUGH               )
HIS NATURAL MOTHER AND NEXT                )
FRIEND ROSE MARTIN, AND ROSE               )
AND ROY MARTIN,                            )
                                           )
              Appellants,                  )
                                           )
vs.                                        )       WD78545
                                           )
AUTO OWNERS INSURANCE                      )       Opinion filed: January 12, 2016
COMPANY,                                   )
                                           )
              Respondent.                  )


      APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI
              THE HONORABLE ROBERT L. KOFFMAN, JUDGE

                 Before Division One: Anthony R. Gabbert, Presiding Judge,
                   Victor C. Howard, Judge and Cynthia L. Martin, Judge

       Dylan Martin and his parents Rose and Roy Martin appeal from the trial court’s grant of

summary judgment to Auto Owners Insurance Company (hereinafter “Owners”) on the issue of

stacking the underinsured motorist coverages in the Martins’ automobile insurance policy. The

Martins claim that ambiguities in the language of the policy should be construed against Owners

and that the policy should be interpreted to allow the stacking of underinsured motorist

coverages.

       We reverse the trial court’s grant of summary judgment to Owners.
Background

       This action arises out of an automobile accident that occurred in 2010 in Pettis County,

Missouri. Dylan Martin was crossing a rural highway to board a school bus, when a vehicle

driven by Laura Loyd struck him. Ms. Loyd was insured by State Auto Insurance Company

(hereinafter “State Auto”). Dylan suffered bodily injury and there is no dispute that the amount

of damages he suffered exceeds $300,000.

       At the time of the collision, Ms. Loyd had a State Auto automobile liability insurance

policy with a bodily injury liability limit of $100,000, which was paid to Dylan as a result of his

personal injuries.

       At the time of the accident, the Martins held an automobile insurance policy issued

through Owners (hereinafter “the Policy”), that included underinsured motorist (hereinafter

“UIM”) coverage. The Policy insured three automobiles owned by the Martins. The Policy

declaration pages list UIM coverage separately under each vehicle and show a separate premium

charged for each vehicle. The Policy declarations pages also list “$100,000 person/$300,000

occurrence” under each vehicle and next to each of the three separate UIM premiums.

       The parties do not dispute that Ms. Loyd was an underinsured motorist under the terms of

the Policy. Also, the parties do not dispute that Dylan was “occupying” an “other automobile”

within the definitions of the Owners UIM coverage at the time he was struck by Ms. Loyd.

Dylan made an UIM claim to Owners. Thereafter, Dylan and Owners entered into a settlement

agreement that was approved by the trial court, which provided that Owners agreed to pay Dylan

$100,000 UIM benefits. Then the Martins filed a declaratory judgment action against Owners,

requesting that the trial court declare that they were entitled to additional UIM coverage based on

the Policy covering three vehicles, each providing UIM coverage of $100,000 per person.


                                                2
Owners filed a motion for summary judgment arguing the Policy’s terms unambiguously limit

the Martins to a maximum UIM payment of $100,000.

       The relevant portion of the UIM limits of liability and “anti-stacking” language in the

Policy reads:

       4. LIMIT OF LIABILITY
           a. Subject to the limits of liability stated in the Declarations for Underinsured
              Motorist Coverage, our limit of liability shall not exceed the lowest of:
              (1)    The amount by which the Underinsured Motorist Coverage limits
                     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; or
              (2)    The amount by which compensatory damages, including but not
                     limited to loss of consortium, because of bodily injury exceed the
                     total limits of such bodily injury liability bonds and liability
                     insurance policies.

           b.    The Limit of Liability is not increased because of the number of:
                (1) Automobiles shown or premiums charged in the Declarations;
                (2) Claims made or suits brought;
                (3) Persons injured; or
                (4) Automobiles involved in the occurrence

           ....

           e. When Underinsured Motorist Coverage applies to two or more
              automobiles, the limit of liability stated for “each person” shall not be
              stacked to provide higher limits of liability than would apply if coverage
              applied to only one automobile.
The UIM other insurance provision reads:

       5. OTHER UNDERINSURED MOTORIST COVERAGE

          The Underinsured Motorist Coverage provided by this endorsement to persons
          occupying your automobile shall be primary, and with regard to persons
          occupying any other automobile, such coverage shall be excess over all other
          applicable underinsured motorists coverage. However, if there is other
          underinsured motorist coverage which applies on a primary basis to your
          automobile, we shall pay only our share of the damages. Our share shall be
          the ratio of our limit of liability to the total limits of all underinsured motorist
          coverage which applies. Total damages payable shall be considered not to


                                                 3
          exceed the limit of the applicable policy which has the highest limit of liability
          for underinsured motorist coverage.

       The trial court granted summary judgment in favor of Owners, reasoning that the Policy

       leaves no question as to the limits of liability regardless of how the premiums
       were charged. The policy clearly and unequivocally reads that the charging of
       multiple premiums does not operate to permit stacking. The anti-stacking
       language in the UIM endorsement reinforces that conclusion. At the time of the
       purchase of the policy, the insured could not have reasonably had any other
       understanding.

Standard of Review

       This appeal involves the propriety of the trial court’s grant of summary judgment based

on the interpretation of an insurance contract. Summary judgment is appropriate when there is

no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

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

1993). We will review the factual record in the light most favorable to the party against whom

the trial court granted summary judgment. Niswonger v. Farm Bureau Ins., 992 S.W.2d 308,

312 (Mo. App. E.D. 1999). The propriety of a summary judgment is purely a question of law.

Id. As such, our review is essentially de novo. Id. Trial courts frequently use summary

judgment in the context of insurance coverage disputes. Id. The interpretation of an insurance

contract is a question of law. Id. When interpreting an insurance policy, we read the policy as a

whole. E. Attucks Cmty. Hous., Inc. v. Old Republic Sur. Co., 114 S.W.3d 311, 319 (Mo. App.

W.D. 2003).

Appeal

       The Martins argue the trial court erred in finding that they could not stack the

underinsured motorist coverage for the Martins’ three insured vehicles, because the Policy’s




                                                4
other insurance provision creates an exception to the Policy’s anti-stacking language and creates

an ambiguity in the Policy as a whole, which must be construed in favor of the insured.

       Stacking is defined as an insured’s ability to obtain benefits either from more than one

insurance policy, as when the insured has two or more separate vehicles under separate policies,

or from multiple coverages within a single policy, as when an insured has one policy that covers

more than one vehicle. Niswonger, 992 S.W.2d at 313. “UIM coverage [is] in the nature of

floating, personal accident insurance rather than insurance on a particular vehicle, and thus

follow[s] the insured individual wherever he goes.” Id. Unlike uninsured motorist coverage,

Missouri has no statutory requirements for UIM coverage and no public policy requirement that

UIM coverage be stacked. Id. at 313-14. We determine the ability to stack UIM coverages by

the terms of the contract entered into between the insurer and the insured. Id. at 314. If policy

language is unambiguous in forbidding stacking, we will not create extra coverage. If policy

language is ambiguous, we will construe the policy in favor of the insured and allow stacking.

Id.

       In interpreting an insurance policy, we attempt to “give meaning to all terms and, where

possible, harmonize those terms in order to accomplish the intention of the parties.” Henges

Mfg., LLC v. Amerisure Ins. Co., 5 S.W.3d 544, 545 (Mo. App. E.D. 1999).            “An ambiguity

arises when there is duplicity, indistinctness, or uncertainty in the meaning of words used in the

contract.” Stewart v. Liberty Mut. Fire Ins. Co., 349 S.W.3d 381, 386 (Mo. App. W.D. 2011)

(internal quotation omitted). If an insurance policy promises something at one point in the

contract but then takes it away at another, there is an ambiguity. Id. Specifically, Missouri

courts have long followed the rule that “where the other insurance clause appears to provide

coverage that the limitation of liability clause is argued to prohibit; any resulting ambiguity will



                                                 5
be construed against the insurer.” Manner v. Schiermeier, 393 S.W.3d 58, 64 (Mo. banc 2013)

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

       In Ritchie, the limit of liability section of the underinsured policy contained a provision

stating that the per person limit of liability listed in the declarations was the most the insurer

would pay “regardless of the numbers of . . . [v]ehicles or premiums shown in the

[d]eclarations.” 307 S.W.3d at 136-37. The policy in Ritchie also contained an other insurance

clause, which stated in part “Any coverage we provide with respect to a vehicle you do not own

shall be excess over any other collectible underinsured motorist coverage.” Id. at 137. The

Ritchie court found that when the policy was read as a whole, the policy’s anti-stacking

provisions, which might normally and otherwise apply, could be reasonably interpreted as not

applying in the special situation where the insured is injured while occupying a non-owned

vehicle and there are multiple underinsured motorist coverages. Id. at 137-38. The resulting

ambiguity was resolved in favor of the insureds to allow stacking of the underinsured motorist

coverage. Id. at 138-39.

       In Manner, each of the insured’s four policies contained a “Two or More Cars Insured”

clause providing in relevant part that “The total limit of our liability under all policies issued to

you by us shall not exceed the highest limit of liability under any one policy.” 393 S.W.3d at 64.

The underinsured motorist endorsements to each policy contained an other insurance clause that

provided that “any insurance provided under this endorsement for an insured person while

occupying a vehicle you do not own is excess over any other similar insurance.” Id. at 65. The

Manner court found the analysis in Ritchie dispositive on the issue of stacking and held that the

above-quoted portion of the other insurance clause “appears to an ‘ordinary person of average

understanding’ to permit stacking because it states that ‘any coverage we provide with respect to



                                                 6
a vehicle you do not own shall be excess over any other collectible underinsured motorist

coverage.’” Id. at 66. The court further held that the inconsistency between that provision and

the “Two or More Cars Insured” provision resulted in an ambiguity that must be resolved in

favor of the insured, and therefore held that stacking was permitted under the four policies. Id.

       Subsequent to Ritchie and Manner, the Southern District of this Court reasoned that the

presence of an other insurance clause does not always render a policy ambiguous. Kennedy v.

Safeco Ins. Co. of Ill., 413 S.W.3d 14, 16 (Mo. App. S.D. 2013) (quoting Zemelman v. Equity

Mut. Ins. Co., 935 S.W.2d 673, 677 (Mo. App. W.D. 1996)). The Kennedy court held that “a

policy and its anti-stacking provisions (i.e., the terms that operate to preclude stacking) may be

clarified by adding an express no-stacking disclaimer.” Id. (emphasis in original). The policy in

Kennedy contained general provisions, stating in part: “In no event shall the limit of liability of

two or more motor vehicles or two or more policies be added together, combined, or stacked to

determine the limit of insurance coverage available to you or any insured.” Id. at 17. In the UIM

section it stated “If more than one vehicle is insured under this policy, or if more than one policy

issued to the insured applies to the same accident, the limits applicable to Underinsured Motorist

Coverage may not be stacked.” Id. The other insurance provision stated: “If there is other

applicable underinsured motorist insurance available under one or more policies or provisions of

coverage: … 2. Any underinsured motorist insurance we provide with respect to a vehicle you do

not own shall be excess over any collectible underinsured motorist insurance.” Id. at 16. The

Kennedy court rejected the insured’s argument that cases ruling in favor of stacking for the

insured pursuant to the rule that a policy promising something at one point then taking it away at

another results in an ambiguity were controlling because of the other insurance clause. Id. at 17.




                                                 7
       The Kennedy court reasoned that other decisions are not dispositive in the absence of

identical policy language, and that the focus must first be on policy language within document’s

four corners rather than primarily on case law. Id. The court observed that the policy before it

contained general anti-stacking provisions, an express anti-stacking disclaimer in its general

provisions, UIM-specific anti-stacking provisions, a UIM-specific express anti-stacking

disclaimer, and “[c]ommon-form” other insurance language, “which does not mention ‘stacking’

at all[.]” Id. at 17-18. It reasoned that a layperson could not reasonably think that “[c]ommon-

form other insurance language” would override the anti-stacking provisions and disclaimers

preceding it. Id. Rather than finding the contradictory policy language ambiguous, the Kennedy

court decided that to find an ambiguity in the policy would be to “distort policy language to

create ambiguity where none exists[.]” Id. Rather than construing the inconsistent provisions of

the policy in favor of the insured, the Kennedy court “harmonized” the “perceived

contradictions” in favor of the insurance company and concluded that stacking was not

permitted. Id.

       We see no substantive difference between the policy in Kennedy and those analyzed in

Ritchie and Manner. The court in Kennedy based its decision in large part on the theory that

more “no-stacking” clauses overcome the ambiguity created by an other insurance provision that

does not specifically mention stacking. The rule announced in Ritchie and Manner remains in

effect: where there is an ambiguity created between an other insurance provision of excess

coverage and anti-stacking provisions that attempt to take such coverage away, the ambiguity is

to be construed against the insurer, and the policies therefore must be allowed to be stacked

where the facts of the case would bring the insured within the scope of coverage under the other

insurance clause. 307 S.W.3d at 138-39; 393 S.W.3d at 66.



                                               8
       Here, the subject Policy contains an anti-stacking provision, an express anti-stacking

disclaimer, and an other insurance provision, in that order, all appearing in the UIM

endorsement. The express anti-stacking disclaimer states that when UIM coverage “applies” to

two or more automobiles, the limits shall not be stacked to provide higher liability limits than

would apply for only one automobile.        Read in isolation, this disclaimer is unambiguous.

However it is well-settled precedent that each policy must be interpreted as a whole. Manner,

393 S.W.3d at 65. In this context, the disclaimer directly conflicts with the very next provision

regarding other insurance. The other insurance provision indicates that the very UIM coverage

just mentioned, that which “applies” to two or more vehicles, when applied specifically to

persons occupying any other automobile, “shall be excess over all other applicable underinsured

motorists coverage.” (emphasis added).

       Just as in Ritchie, a reasonable reading of the provisions in the instant Policy

       suggest that the policy's anti-stacking provisions, which might normally and
       otherwise apply, do not apply in the special situation where the insured is injured
       while occupying a non-owned vehicle. Rather, an ordinary person of average
       understanding reasonably could interpret this other insurance provision to mean
       that when an injured insured is occupying a non-owned vehicle and there are
       multiple underinsured motorist coverages, as it is conceded there are here, then
       each of the underinsured motorist coverages are excess to the other, and,
       therefore, may be stacked.

307 S.W.3d at 137-38 (internal quotations omitted). We find the rule articulated in Ritchie and

Manner applicable to the present case: the promise of excess coverage in the other insurance

provision read in conjunction with the anti-stacking provision and disclaimer purporting to take

away such coverage create an ambiguity to be resolved in favor of the insured, who, without

contest, was a person “occupying any other automobile” at the time of his injury. Stacking of the

Martins’ underinsured motorist coverage for each of their three vehicles insured by the Owners




                                                 9
Policy is permitted. The trial court erred in granting summary judgment in favor of Owners.

The judgment is reversed and the matter remanded for proceedings consistent with this opinion.




                                            __________________________________________
                                            VICTOR C. HOWARD, JUDGE


All concur.




                                              10
