SHELTER INSURANCE COMPANY,       )
                                 )
      Plaintiff-Appellant,       )
                                 )
vs.                              )              No. SD33552
                                 )
JEANIE VASSEUR,                  )
MATTHEW VASSEUR, by and thru his )
Guardian ad Litem, ADAM VASSEUR, )              Filed: January 29, 2016
CHARLOTTE VASSEUR,               )
JACKIE STRYDOM,                  )
ANDREA POSTELWAIT,               )
SARITA VASSEUR, and              )
MICHAEL VASSEUR,                 )
                                 )
      Defendants-Respondents.    )

          APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY

                          Honorable William E. Hickle


REVERSED AND REMANDED IN PART AND AFFIRMED IN PART

       On May 19, 2015, this Court issued an opinion in this cause. On September

22, 2015, the Supreme Court of Missouri sustained an application for transfer to

that court. On January 26, 2016, the Supreme Court entered an order

retransferring the cause to this Court. The following is now adopted as the

opinion of this court.
        Shelter Mutual Insurance Company ("Shelter") appeals from the trial

court's judgment against Shelter in a declaratory action case. Shelter raises six

points on appeal. Shelter's first two claims have merit, but the remainder of the

claims either are not preserved for appellate review or are moot. Thus, we

reverse in part and affirm in part.

                        Factual and Procedural Background

        Jeanie Vasseur was married to Elmer Vasseur. Jeanie and Elmer had one

minor son, Matthew, and one adult son, Adam.1 On August 8, 2010, Matthew

was driving Adam's 2006 Honda ATV on Missouri State Highway AA. Elmer was

riding on the ATV behind Matthew. Matthew failed to negotiate a turn, causing

the ATV to run off the road and hit a sign. Matthew was injured, and Elmer died

at the scene.

        At the time of the accident, Jeanie and Elmer had one farm owners'

insurance policy and three automobile insurance policies issued by Shelter.

Elmer and Jeanie were the named insureds on each of the policies. After the

accident, Jeanie, Matthew, Adam, and other members of Elmer's family

("Respondents") sought the policy limits under each of the policies.

        On March 3, 2011, Shelter filed a petition for declaratory judgment against

Respondents seeking a declaration that there was no coverage under any of the

policies. Shelter argued there was no coverage under the farm owners' insurance

policy because Elmer was an insured under the farm owners' insurance policy

and because the farm owners' insurance policy contained exclusions regarding



1The individuals involved are referred to by their first names because they all have the same last
name. No disrespect is intended.

                                                 2
bodily injury to an insured. Shelter argued there was no coverage under the

automobile insurance policies because the ATV was not a "Motor Vehicle" as that

term was defined in the automobile insurance policies.

      After discovery, the parties filed a joint stipulation of facts and cross-

motions for summary judgment. The trial court found the exclusions in the farm

owners' insurance policy were ambiguous, and ordered summary judgment in

favor of Respondents.

      The trial court then found that a genuine issue of material fact remained

regarding whether the ATV was a "Motor Vehicle" under the terms of the three

automobile insurance policies. A bench trial was held on May 6, 2014. After

receiving evidence, the trial court found the ATV was a "Motor Vehicle" and

entered judgment for Respondents on all counts in Shelter's petition. Shelter

appeals.

                 Point I and Point II: Elmer Is an Insured

      In its first and second points, Shelter argues the trial court erred in finding

the farm owners' insurance policy provided both coverage to Matthew for

damages arising out of the injuries and death of Elmer and for medical payments

arising out of the injuries and death of Elmer because such damages were

excluded from coverage under two different exclusions in section II of the farm

owners' insurance policy. We agree.

      When the trial court grants summary judgment, the appellate court

"applies a de novo standard of review." Burns v. Smith, 303 S.W.3d 505, 509

(Mo. banc 2010). Additionally, "interpretation of an insurance policy is a

question of law, and the trial court receives no deference where resolution of the

                                         3
controversy is a question of law." State Farm Mut. Auto. Ins. Co. v.

Stockley, 168 S.W.3d 598, 600 (Mo. App. E.D. 2005) (quoting Automobile

Club Inter-Ins. Exch. v. Medrano, 83 S.W.3d 632, 637 (Mo. App. E.D.

2002)).

       "In construing the terms of an insurance policy, this court 'applies the

meaning which should be attached by an ordinary person of average

understanding if purchasing insurance and resolves ambiguities in favor of the

insured.'" Affirmative Ins. Co. v. Broeker, 412 S.W.3d 314, 318 (Mo. App.

E.D. 2013) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo.

banc 2007)). An ambiguity exists when "the policy is reasonably open to

different constructions." Id. (quoting National Union Fire Ins. Co. v.

Maune, 277 S.W.3d 754, 758 (Mo. App. E.D. 2009)). "However, when the

insurance policy is unambiguous, the court will enforce the policy according to its

terms." Id. at 318-19. Furthermore, "[a] court is not permitted to create an

ambiguity or distort the language of an unambiguous policy in order to enforce a

particular construction that it deems more appropriate." Progressive

Northwestern Ins. Co. v. Talbert, 407 S.W.3d 1, 9 (Mo. App. S.D. 2013)

(quoting Lynch v. Shelter Mut. Ins. Co., 325 S.W.3d 531, 535 (Mo. App. S.D.

2010)); see also Burns, 303 S.W.3d at 511 ("this Court will not add language to a

policy.").

       As part of the farm owners' insurance policy, Jeanie and Elmer purchased

$100,000 worth of personal liability insurance and $1,000 worth of medical

payments to others insurance. These coverages were in section II of the policy.

The coverage provision for personal liability ("Coverage E") provided that Shelter

                                         4
would "pay all sums arising out of any one loss which an insured becomes legally

obligated to pay as damages because of bodily injury or property damage and

caused by an occurrence covered by this policy." (Emphasis omitted). As

applicable to this case, the coverage provision for medical payments to others

("Coverage F") provided that Shelter would pay medical expenses arising from

bodily injury sustained somewhere other than the premises if that injury was

"caused by the activities of an insured, or a farm employee, or a residence

employee in the course of employment by an insured[.]" (Emphasis omitted).

        The exclusions for section II were organized in three paragraphs, each

with several numbered sub-paragraphs.2 The first paragraph ("Exclusion Group

A") began with the phrase "Under Personal Liability and Medical Payments To

Others, we do not cover" and listed several types of risks typically covered by

other types of insurance, as well as an intended acts exclusion. (Emphasis

omitted). The second paragraph ("Exclusion Group B") began with the phrase

"Under Personal Liability we do not cover" and listed several types of property

damage, bodily injury for which there was workers' compensation payable, and in

sub-paragraph 9 specifically excluded, "[b]odily injury to: (a) you; (b) your

relatives residing in your household; and (c) any other person under the age of 21

residing in your household who is in your care or the care of a resident relative."

(Emphasis omitted). The third and final paragraph ("Exclusion Group C") began

with the phrase "Under Medical Payments To Others, we do not cover" and in

sub-paragraph 2, listed several types of risk typically covered by other insurance



2The pages of the farm owners' policy setting out the exclusions at issue in this point are
reproduced in the appendix to this opinion.

                                                 5
and excluded "bodily injury to any insured under parts (a), (b) and (c) of the

definition of insured." (Emphasis omitted).

       At the summary judgment stage, Shelter argued no payment was due

under the coverage for personal liability because of sub-paragraph 9 contained

within Exclusion Group B. Shelter argued no payment was due under the

coverage for medical payments to others because of sub-paragraph 2 contained

within Exclusion Group C. The trial court disagreed, and entered summary

judgment in favor of Respondents.

       The trial court's entry of summary judgment with respect to the farm

owners' insurance policy was incorrect because it ignored the plain language of

the policy. The farm owners' insurance policy states that Exclusion Group A

applies to both the personal liability coverage and the medical payments to others

coverage, Exclusion Group B applies to the personal liability coverage, and

Exclusion Group C applies to the medical payments to others coverage. The plain

meaning of that list results in three possible applications:

       1.     If an individual seeking coverage purchases personal liability

              coverage—Coverage E—only, the applicable exclusions are

              those in Exclusion Group A and Exclusion Group B.

       2.     If an individual seeking coverage purchases medical liability

              coverage—Coverage F—only, the applicable exclusions are

              those in Exclusion Group A and Exclusion Group C.

       3.     If an individual seeking coverage purchases both personal

              liability coverage and medical liability to others coverage, all

              the exclusions listed apply, but only to the respective

                                          6
              coverages as indicated, i.e., Exclusion Group A and Exclusion

              Group B to personal liability coverage and Exclusion Group

              A and Exclusion Group C to medical liability to others

              coverage.

This interpretation gives effect to the plain meaning of the language used. Under

that meaning, there is no bodily injury coverage or medical payment coverage for

Elmer because Elmer was a named insured.

       Respondents attempt to avoid this conclusion by looking at the positioning

of the language in the document. They suggest that the positioning of the various

clauses renders them ambiguous. They state, "the only sensible interpretation of

this language is that [Exclusion] Group A applies to policies with both coverages,

while [Exclusion] Group B applies to policies insuring only liability, and

[Exclusion] Group C applies to policies insuring only medical payments." Thus,

they conclude that since Respondents purchased both coverages and since the

exclusions upon which Shelter relies were not in Exclusion Group A then none of

the exclusions apply in this case.

       This argument fails because the policy language is not susceptible to the

interpretation Respondents suggest. To create the meaning suggested by

Respondents, additional language would have to be added to the policy. As

written, the policy simply says that the exclusions in Exclusion Group A apply to

both coverages, the exclusions in Exclusion Group B apply to only personal

liability coverage—Coverage E—and the exclusions in Exclusion Group C apply to

only to medical liability to others coverage—Coverage F. The language is not

conditioned on which coverages were purchased. There is nothing in that

                                         7
language to suggest that the exclusions change when an insured purchases both

coverages. To reach the result Respondents want, the policy would have needed

to include additional language. That language is not in the policy, and this Court

will not add it. See Burns, 303 S.W.3d at 511.

       The trial court erred in finding the policy language was ambiguous. Point I

and Point II are granted.

   Point III, Point IV, and Point V: Denial of a Motion for Summary

                          Judgment Is Not Appealable

       In its third, fourth, and fifth points, Shelter challenges the trial court's

determination regarding coverage under the three automobile insurance policies.

Specifically, Shelter argues "[t]he trial court erred in granting summary judgment

to Respondents and denying [Shelter's] motion for summary judgment on the

issue of . . . coverage under three auto insurance policies[.]" These points do not

present any question for appellate review because they do not challenge a ruling

in an appealable order or a ruling upon which an appealable order was based.

       The points each challenge two of the trial court's actions. First, the points

challenge the trial court's grant of summary judgment to Respondents regarding

coverage under the automobile insurance policies. However, as Respondents

correctly note, the trial court did not grant summary judgment on those issues.

Rather, those claims were denied by the trial court on the summary judgment

motion and were decided only after a court trial. Thus, the first portion of each of

these points challenges a ruling that was never made.




                                           8
        The second portion of each point challenges the denial of Shelter's motion

for summary judgment regarding the automobile insurance policies.3 The

general rule is that "an order denying a motion for summary judgment is not a

final judgment and therefore is not reviewable on appeal." Reeves v. Allstate

Ins. Co., 327 S.W.3d 592, 598 (Mo. App. S.D. 2010). Indeed, there is an

exception to this rule "where the merits of the denied motion for summary

judgment are intertwined with the propriety of an appealable order granting

summary judgment to another party[.]" Id. Here, however, there was no grant

of summary judgment regarding the issues raised in these points; the issues

addressed in these points were resolved by judgment after trial.4 Thus, the

exception does not apply.

        Point III, Point IV, and Point V are denied.

                             Point VI: Uninsured Motorist

        In its final point, Shelter argues the trial court erred in finding coverage

under both the farm owners' insurance policy and the uninsured motorist

coverage of the automobile insurance policies because if there were coverage

under the farm owners' insurance policy, then the ATV was not an uninsured


3
  In the reply brief, Shelter notes its incorrect statement of the procedural posture, but maintains
the denial of the motion for summary judgment was nevertheless incorrect and merits reversal.
Shelter's treatment of this problem in its reply brief does not rectify the situation for two reasons.
First, Shelter still challenges the denial of the motion for summary judgment, which is not an
appealable order. In fact, Shelter does not even attempt to argue the exception to the general rule
applies. Second, even if Shelter had modified its argument to present a reviewable claim, this
Court could not address the claim. "A reply brief is to be used only to reply to arguments raised
by respondents, not to raise new arguments on appeal." Kells v. Missouri Mountain
Properties, Inc., 247 S.W.3d 79, 84 n.7 (Mo. App. S.D. 2008). The reason for this rule is that "a
respondent has no opportunity to address" an argument presented for the first time in a reply
brief. Berry v. State, 908 S.W.2d 682, 684 (Mo. banc 1995). "Assignments of error set forth
for the first time in the reply brief do not present issues for appellate review." Id. (quoting In re
Gilbert, 563 S.w.2d 768, 771 (Mo. banc 1978)).
4 Shelter does not challenge the judgment entered after trial in any of these three points.


                                                  9
motor vehicle under the automobile insurance policies. Given our resolution of

Point I and Point II, this claim is moot.

                                      Decision

       The trial court's judgment with respect to the farm owners' insurance

policy is reversed, and the case is remanded with directions to the trial court to

enter judgment in favor of Shelter with respect to the farm owners' insurance

policy consistent with this opinion. In all other respects, the trial court's

judgment is affirmed.



MARY W. SHEFFIELD, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

GARY W. LYNCH, J. – CONCURS




                                            10
APPENDIX




   11
12
13
