                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3452
                                   ___________

Estate of Buford L. Anderson,         *
                                      *
            Plaintiff–Appellant,      *
                                      *    Appeal from the United States
      v.                              *    District Court for the Western
                                      *    District of Missouri.
Safeco Insurance Company of Illinois, *
                                      *
            Defendant–Appellee.       *
                                 ___________

                             Submitted: April 15, 2009
                                Filed: May 29, 2009
                                 ___________

Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
                         ___________

MELLOY, Circuit Judge.

       The Estate of Buford L. Anderson (the “Estate”) filed Missouri state-law claims
for breach of contract and vexatious refusal to pay against Safeco Insurance Company
of Illinois (“Safeco”). The district court1 granted summary judgment in favor of
Safeco, and the Estate appeals. We affirm.




      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
                                          I.

       Buford Anderson was riding in a car driven by his ex-wife, Janice Anderson,
when flood waters swept the car off of a private drive. Mr. Anderson was thrown
from the vehicle and ultimately died. At the time of the incident, the vehicle Ms.
Anderson was driving was insured by Sagamore Insurance Company (“Sagamore”).
The Estate sent a letter to Sagamore seeking to recover damages under the policy and
stating that Ms. Anderson was at fault for the accident. Sagamore denied the claim,
stating “that the main contributing factor” to the accident was “poor repairs to the
driveway” and that “the contractor that repaired the driveway [was] the liable party.”
Sagamore did not deny that Ms. Anderson’s policy was in full force and effect at the
time of the accident or that the accident was the type of risk against which the policy
generally insured. Rather, Sagamore disputed that Ms. Anderson was at fault for the
accident as required to trigger liability under the policy.

      At the time, pursuant to Missouri law, Mr. Anderson had an auto-insurance
policy with Safeco that included uninsured-motorist coverage. See Mo. Rev. Stat. §
379.203. After receiving Sagamore’s letter denying “payment,” the Estate filed a
claim with Safeco. It submitted Sagamore’s response as evidence that Safeco was
now responsible for payment under Mr. Anderson’s uninsured-motorist policy
provisions.

      The Safeco policy, in relevant part, provided:

      A. [Safeco] will pay damages which an insured is legally entitled to
      recover from the owner or operator of an uninsured motor vehicle
      because of bodily injury:

             1. Sustained by the insured; and

             2. Caused by an accident.

      ....

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      C. “Uninsured motor vehicle” means a land motor vehicle or trailer of any type:

             1. To which no bodily injury liability bond or policy applies
             at the time of the accident. . . . [or]

             4. To which a bodily injury liability bond or policy applies
             at the time of the accident, but the bonding or insuring
             company:
                             a. denies coverage . . . .

        Safeco denied coverage on March 27, 2007, finding that the Sagamore “letter
clearly indicate[d] the host vehicle was insured at the time of this loss” and that the
Estate had failed to present sufficient documentation that the death “was the result of
an auto accident caused by an uninsured motor vehicle.” Safeco cited to Part C.1 of
its insurance policy. The Estate responded to Safeco’s denial of coverage on April 9,
2007, by asserting Safeco’s liability under Part C.4 of the policy. The Estate claimed
that Part C.4(a) “specifically provides that an ‘uninsured motor vehicle’ includes, as
being within coverage, a tortfeasor whom has liability insurance, but the underwriter
of which denies liability.” Safeco refused payment, and the Estate then filed suit for
breach of contract and vexatious refusal to pay.

                                           II.

       “We review a grant of summary judgment de novo, using the same standard as
the district court.” Murray v. Am. Family Mut. Ins. Co., 429 F.3d 757, 762 (8th Cir.
2005). The Estate contends that Ms. Anderson’s vehicle was an “uninsured motor
vehicle” within the meaning of the Safeco policy. Sagamore did not dispute the fact
that Ms. Anderson was covered by its policy; it denied payment because it contested
her liability for the accident. Nevertheless, the Estate argues that Sagamore’s denial
of liability is, in effect, a denial of “coverage” under Part C.4(a) of the Safeco policy.
Safeco counters that the definition of “coverage” in Part C.4(a) does not include
instances in which an insurer denies that the insured was at fault and refuses payment

                                           -3-
for a claim on a liability-related basis. We agree with Safeco and find the Estate’s
argument unavailing.

       The policy does not specifically define the term “coverage.” “When
interpreting language of an insurance policy that is not defined,” Missouri law
instructs us to “give a term its ordinary meaning unless it plainly appears that a
technical meaning was intended.” Mansion Hills Condo. Ass’n v. Am. Family Mut.
Ins. Co., 62 S.W.3d 633, 638 (Mo. Ct. App. 2001) (citing Martin v. U.S. Fid. and
Guar. Co., 996 S.W.2d 506, 508 (Mo. 1999) (en banc)).

       We agree with the district court’s conclusion that it would be “unreasonable in
the context of uninsured motorist insurance to define ‘coverage’ to include a denial
by the liability insurer of the insured’s fault in the accident.” To allow for such a
definition would conflate “coverage” with “liability” when the two are not
synonymous. See Black’s Law Dictionary (8th ed. 2004) (defining “coverage” as
“[i]nclusion of a risk under an insurance policy; the risks within the scope of an
insurance policy,” and “liability” as “[t]he quality or state of being legally obligated
or accountable”). Several courts have noted this distinction in pointing out that
“coverage” relates to whether the policy was intended to apply to a particular claim,
whereas “liability” addresses the viability of the claim on the facts. See Clark v.
Prudential Prop. & Cas. Ins. Co., 66 P.3d 242, 245 (Idaho 2003) (denying uninsured-
motorist coverage when the insurer did not deny coverage but denied liability,
concluding that “[c]overage relates to whether [the insured] has insurance to cover the
accident, and liability relates to whether [the insured] was at fault, thus triggering the
insurer’s obligation to pay”); Noel v. Metro. Prop. & Liab. Ins. Co., 672 N.E.2d 119,
121 (Mass. App. Ct. 1996) (“There is a distinction between a denial of coverage by
an insurer and denial of a claim on the ground that its insured is not legally
responsible.”); Page v. Ins. Co. of N. Am., 64 Cal. Rptr. 89, 94 (Cal. Ct. App. 1967)
(“‘Coverage’ and ‘claim’ are by no means synonymous . . . .”); cf. Stotts v.
Progressive Classic Ins. Co., 118 S.W.3d 655, 663 (Mo. Ct. App. 2003) (“[T]he
uninsured motorist provisions . . . expressly provide[] that a motor vehicle is
                                           -4-
considered uninsured where ‘no bodily injury liability bond or policy applies at the
time of the accident.’ . . . [I]t is clear and unambiguous that if any liability policy
provided coverage for the . . . vehicle at the time of the accident, it was not uninsured
for purposes of the uninsured motorist coverage . . . .” (emphasis added)). Because
Sagamore denied payment on the basis that the insured, Ms. Anderson, was not at
fault but did not dispute that the accident was generally covered by the policy, we find
that there was no denial of “coverage” within the meaning of Safeco’s definition of
“uninsured motor vehicle.” Safeco thus had no obligation to pay the Estate for its
claim.

       The Estate further argues that Safeco is estopped from arguing that Ms.
Anderson did not meet the definition of “uninsured motor vehicle” under Part C.4(a)
of the Safeco policy because Safeco failed to reference this provision in its March 27,
2007, letter denying coverage. We also find this argument without merit. Safeco
properly informed the Estate that it did not believe that the accident involved an
“uninsured motor vehicle” within the meaning of Part C because Ms. Anderson had
an insurance policy in place. Safeco was not required to anticipate the Estate’s
erroneous argument that it was asserting liability specifically under Part C.4 because
the definition of “coverage” encompassed a tortfeasor with liability insurance but
whose underwriter denied liability in that particular instance. This creative use of
estoppel is simply an incorrect application of the law, and, as Safeco notes, “[w]aiver
and estoppel operate, when applicable, to preserve rights already acquired . . . and not
to create new rights, new causes of action.” Associated Indem. Corp. v. Miller-
Campbell Co., 596 S.W.2d 383, 389 (Mo. 1980) (en banc) (quotation omitted). Even
assuming, then, that Safeco erred in failing to inform the Estate that it was denying
coverage specifically under Part C.4(a), its failure to raise this defense in its denial
letter does not change the meaning of “coverage” in the policy so as to allow the
Estate to prevail.

      Finally, because the Estate has neither established that uninsured-motorist
coverage exists nor alleged that Safeco engaged in inappropriate tactics when seeking
                                          -5-
to avoid payment, it cannot establish Safeco’s liability for vexatious refusal to pay.
See Cedar Hill Hardware and Const. Supply, Inc. v. Ins. Corp. of Hannover, 563 F.3d
329, 351 (8th Cir. 2009) (“[This court was] unable to locate any Missouri cases in
which an award based on a vexatious refusal . . . was unaccompanied by an underlying
finding of coverage,” but noting dicta that may provide for recovery when the
insurer’s attitude is “recalcitrant” (citing Dewitt v. Am. Family Mut. Ins. Co., 667
S.W.2d 700, 710 (Mo. 1984))); Stotts, 118 S.W.3d at 661 (setting forth the elements
of a vexatious-refusal-to-pay claim, which includes a showing that the claimed loss
was a covered loss under the policy). The district court thus did not err in granting
summary judgment in favor of Safeco.

                                         III.

       Having considered all of the claims presented, we affirm the judgment of the
district court.

                       ______________________________




                                         -6-
