                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3241
                                  ___________

Reeva Whitworth Lindsay, surviving      *
spouse of John Whitworth, deceased;     *
John Whitworth, Jr., surviving son of   *
John Whitworth, deceased;               *
                                        *
            Appellants,                 *   Appeal From the United States
                                        *   District Court for the
      v.                                *   Eastern District of Missouri.
                                        *
Safeco Insurance Company of             *
America; OneBeacon Insurance            *
Company, formerly known as              *
Hawkeye Insurance Company;              *
                                        *
             Appellees.
                                  ___________

                            Submitted: March 15, 2006
                               Filed: May 17, 2006
                                ___________

Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.

      Reeva Whitworth Lindsay appeals the district court’s1 summary judgment grant
in favor of Safeco Insurance Company and OneBeacon Insurance Company in this


      1
        The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
declaratory action. The district court concluded that coverage did not exist under the
liability policies issued by the insurers. We affirm.

                                 BACKGROUND

       On December 3, 1996, John Whitworth was killed while driving an all terrain
vehicle (ATV) he intended to purchase from Guy Westmoreland. Whitworth was
driving the ATV home to obtain the purchase money when the ATV’s brakes failed
and he was struck by a tractor trailer. Guy Westmoreland had displayed the ATV for
sale at his automobile repair shop, Guy Westmoreland’s Auto Service. Prior to her
husband’s death, Lindsay and Whitworth had purchased one vehicle and test driven
another that Guy Westmoreland had displayed for sale at his repair shop. The ATV
was not owned by the repair shop, but had been originally purchased by Guy
Westmoreland for personal use at his family farm. Bronnie Westmoreland was not
involved in the sale of the ATV and did not know it was for sale or how long it had
been at the repair shop.

       Whitworth’s widow, Reeva Lindsay, brought a wrongful death suit against Guy
and Bronnie Westmoreland, d/b/a Guy Westmoreland’s Auto Service, in Missouri
state court. On October 7, 2002, the state court entered a default judgment on
Lindsay’s behalf in the amount of $3 million. Lindsay subsequently filed this
declaratory judgment action to recover proceeds from liability policies issued by
Safeco and OneBeacon to Westmoreland Service, Inc. and Guy Westmoreland’s Auto
Service, respectively.

       Westmoreland Service, Inc. is controlled by Guy Westmoreland’s parents,
Louis and Joyce Westmoreland, and is a distinct and separate entity from Guy
Westmoreland’s Auto Service. Neither Guy Westmoreland’s Auto Service, nor Guy
or Bronnie Westmoreland, owned any interest in Westmoreland Service. At the time
of the accident, Westmoreland Service, Inc. owned real property located at 6018 and

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6020 North Broadway in St. Louis, Missouri. Westmoreland Service operated a
convenience store at 6018 and leased the 6020 property to Guy Westmoreland, where
he operated his automobile repair garage.

      Westmoreland Service was not a party to the wrongful death suit. The Safeco
policy listed “Westmoreland Auto Service” as the insured. It listed the type of
business covered as a grocery store and self-service station and listed the insured’s
address as 6018 North Broadway for the effective period that covered the date of the
accident. On October 22, 1996, commercial auto coverage was deleted from the
Safeco policy.

       The OneBeacon policy listed the insured as Guy Westmoreland and the
insured’s address as 6020 N. Broadway. The type of business listed was noted as
“REPAIR SHOP-MAJOR.” The OneBeacon policy provided coverage for liability
resulting from the use of vehicles “specifically described” in the policy and non-
owned vehicles used in the garage business. Safeco and OneBeacon separately moved
for summary judgment. Both insurers alleged that the policies issued to
Westmoreland Service and Guy Westmoreland’s Auto Service, respectively, did not
provide coverage for the damages awarded in the wrongful death suit. The district
court granted both motions, and Lindsay appeals.

                                    DISCUSSION

       “We review the district court’s grant of summary judgment de novo,” viewing
the facts in the light most favorable to the non-moving party. Grabovac v. Allstate
Ins. Co., 426 F.3d 951, 955 (8th Cir. 2005). Summary judgment is appropriate where
“there is no genuine issue as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We apply Missouri
substantive law in this diversity case and review the district court’s application of



                                          -3-
Missouri law and contract interpretation de novo. Freeman v. State Farm Mut. Auto.
Ins. Co., 436 F.3d 1033, 1034-35 (8th Cir. 2006).

       Unambiguous insurance contract terms are given their plain meaning and
enforced as written, while ambiguous terms are construed against the insurer. Rice
v. Fire Ins. Exch., 946 S.W.2d 40, 42 (Mo. Ct. App. 1997). Determination of whether
insurance contract language is ambiguous is a question of law. Id. A term is
ambiguous if it is subject to “duplicity, indistinctness or uncertainty.” Mo. Employers
Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 625 (Mo. App. Ct. 2004). Mere
disagreement by the parties regarding a contract term’s interpretation does not render
the term ambiguous. Id. “A court may not create an ambiguity in order to distort the
language of an unambiguous policy, or in order to enforce a particular construction
which it might feel is more appropriate.” Rice, 946 S.W.2d at 44. In order to prove
that coverage exists, Lindsay must establish “issuance and delivery of the policy of
insurance, payment of the premium, a loss caused by a peril insured against, notice of
loss and proof of the loss to the insurer as required by the terms of the policy.”
Kauble v. MFA Mut. Ins. Co., 637 S.W.2d 831, 832-33 (Mo. Ct. App. 1982).

The Safeco Policy

       The Safeco policy listed the insured as “Westmoreland Auto Service,” and the
insured’s address as 6018 N. Broadway, Saint Louis, Missouri (J.A. Vol. II at 172,
174.) Safeco moved for summary judgment on the basis that it issued the policy to
the property owner, Westmoreland Service, Inc., not to Guy or Bronnie
Westmoreland, or Guy Westmoreland’s Auto Service. Lindsay presented no evidence
that Guy Westmoreland’s Auto Service was the actual insured or paid the premiums
on the policy. Rather, Lindsay argues that the similarity in the name of the insured
and Guy Westmoreland’s Auto Service creates an ambiguity in the insurance contract
that should be construed against the insurer according to the rules of construction.



                                         -4-
        As the district court correctly noted, the policy, considered in its entirety,
illustrates that the insured was a convenience store, operated by Westmoreland
Service at 6018 N. Broadway, not the repair shop operated by Guy Westmoreland at
6020 N. Broadway. See Rice, 946 S.W.2d at 42 (contract interpretation requires
consideration of the contract as a whole.). Accordingly, the Safeco policy is
unambiguous and we enforce it as written. Guy Westmoreland’s Auto Service was
not the insured, and therefore is not entitled to liability coverage under the policy.

       Additionally, at the time of the accident, no commercial auto coverage existed
under the Safeco policy. Thus, even if we construed the policy to list Guy
Westmoreland’s Auto Service as the insured, the policy did not provide coverage for
injuries related to vehicles owned by the insured. The district court correctly
concluded that Safeco was entitled to summary judgment as a matter of law, because
the Safeco policy did not provide coverage for the type of loss sustained.

The OneBeacon Policy

       Guy Westmoreland was the named insured in the OneBeacon policy.
Nonetheless, in order to recover the proceeds under the OneBeacon policy, Lindsay
must show that policy provided coverage for the loss sustained. See Kauble, 637
S.W.2d at 832-33. The OneBeacon policy provided liability coverage for bodily
injury or property damage “resulting from ‘garage operations’ other than ownership,
maintenance or use of ‘covered autos.’” (J.A. Vol. I at 129.) The policy defined
“garage operations” as:

      the ownership, maintenance or use of locations for garage business and
      that portion of the roads or other accesses that adjoin these locations.
      “Garage operations” includes the ownership, maintenance or use of




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      “autos” indicated in SECTION I of this Coverage Form as covered
      “autos.” “Garage operations” also include all operations necessary or
      incidental to a garage business.

(Id. at 155 (emphasis added).)

       Lindsay argues that since Guy Westmoreland allegedly sold vehicles from the
repair shop on a regular basis, the sale of those vehicles was necessary or incidental
to the garage operations. Determining whether this accident arose out of garage
operations requires consideration of the circumstances of the case “and whether it can
be said to be a natural and necessary incident or consequence of the operation of the
service station even though not a foreseen or expected consequence of that operation.”
State Farm Mut. Auto. Ins. Co. v. Mid-Continent Cas. Co. of Tulsa, OK, 378 S.W.2d
232, 236 (Mo. Ct. App. 1964) (considering coverage exclusion in a personal
automobile policy for accidents “arising out of the operation of a service station”).
Several courts have considered what is “necessary and incidental” to a garage
business. See, e.g., Rhinehart v. Anderson, 985 S.W.2d 363, 370 (Mo. Ct. App. 1998)
(concluding that evidence that the vehicle involved in the accident was being used for
garage-related trips was sufficient to survive summary judgment); Am. Econ. Ins. Co.
v. Otte, 869 S.W.2d 179, 181 (Mo. Ct. App. 1993) (holding that garage owner’s sale
of vehicle involved in accident was insufficient to show that it was necessary and
incidental to garage operations, especially in light of the fact that the garage owner
declined to purchase coverage that specifically covered vehicles held out for sale); see
also United Fire & Cas. Co. v. N.H. Ins. Co., 684 F. Supp. 1030, 1032-33 (W.D. Mo.
1988) (finding that delivery of vehicle, by detailing company employee, to car
dealership was necessary and incidental to detailing company’s business, not to the
garage operations of the dealership); Farmers Alliance Mut. Ins. Co. v. Reeves, 775
P.2d 84, 86 (Col. Ct. App. 1989) (holding that accident was covered because the
vehicle involved in the accident was at the garage to be repaired); Lonergan v.
Nationwide Mut. Ins. Co., 663 A.2d 480, 484 (Del. Super. Ct. 1995) (finding that
where vehicle was used for garage business use and personal use, coverage did not

                                          -6-
extend to accident that occurred during personal use); Am. Hardware Mut. Ins. Co.
v. Darv’s Motor Sport’s, Inc., 427 N.W.2d 715, 717-18 (Minn. Ct. App. 1998)
(concluding that promotional use of insured-owned motorcycle was necessary or
incidental to motorcycle sales and repair business).

      Lindsay cites Rhinehart in support of her claim that the OneBeacon policy
provided coverage under the garage operations exception. Rhinehart also involved a
wrongful death suit plaintiff attempting to collect damages from a garage
owner/defendant’s insurance company under the “garage operations” clause of the
insurance contract. 985 S.W.2d at 365. The similarities to this case, however, end
there. In Rhinehart, the garage owner was driving the vehicle at the time of the
accident and using the vehicle for garage-related tasks. Id. at 370. Here, the vehicle
was a personal vehicle displayed for sale on the repair shop premises, and Lindsay
presented no evidence that Westmoreland used the ATV for garage business.

       We find the Otte case from Missouri directly on point. In Otte, an individual
was injured while test driving a dune buggy owned by a repair shop owner. 869
S.W.2d at 180. The dune buggy was not used for garage-related purposes. Id. The
garage owner claimed that the injuries were covered under the garage operations
clause in his liability insurance policy, because modifications made to the dune buggy
by the garage owner were “necessary or incidental” to his garage operations. Id. The
garage owner alleged that “necessary or incidental” language was ambiguous and
should be construed in favor of coverage. The Otte court rejected the garage owner’s
argument because he declined to purchase available coverage that would have covered
the accident. Id. “We recognize that the established rule is to construe in favor of
coverage, however, . . . that rule is inapplicable where the policy form clearly provides
the insured an opportunity to obtain the specific coverage claimed for an additional
premium.” Id. at 181.




                                          -7-
       The OneBeacon policy includes an option to purchase coverage of liabilities
related to “DEALERS ‘AUTOS’ AND ‘AUTOS’ HELD FOR SALE BY NON-
DEALERS.” (J.A. Vol. I at 128.) The corresponding number for that type of
coverage, “31,” is not listed on the declarations page of the policy. (Id. at 121-22.)
Accordingly, though available, this coverage was not part of the policy at the time of
the accident.

       Finally, there is nothing in the record connecting the ATV in question to the
vehicle repair operations performed by Guy Westmoreland’s Auto Service. The
evidence presented by Lindsay illustrates, at most, that Guy Westmoreland was
attempting to expand his auto repair service to also deal in used vehicles. If this is the
case, the “dealer” insurance coverage offered by OneBeacon would have covered the
accident. Unfortunately, Westmoreland chose to not purchase this coverage.
Accordingly, the district court correctly concluded that the OneBeacon policy did not
provide coverage for the losses here.

                                   CONCLUSION

     For the above stated reasons, the grant of summary judgment in favor of Safeco
and OneBeacon is affirmed.
                      ______________________________




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