ROBERT S. BARNEY, Presiding Judge.

This appeal arises out of cross-petitions for declaratory judgment filed by Appellant Donna Ledbetter ("Insured") and Respondent Hartford Underwriters Insurance Company ("Hartford") followed by cross-motions for summary judgment relating to whether Insured was entitled to underinsured motorist ("UIM") coverage under the terms of her automobile policy with Hartford which covered a total of four vehicles.

The genesis of this litigation arose from a vehicular accident wherein Insured was injured when her 1990 Ford Bronco II was struck by a 1998 Dodge Ram SST operated by Danny Harris ("Mr. Harris"). Insured was operating in the course and scope of her employment with the United States Postal Service at the time of the accident. Insured brought suit against Mr. Harris for the personal injuries she suffered in the accident. Mr. Harris was covered by a Cornerstone National Insurance liability policy with limits of $50,000.00 for injuries sustained by one person in a motor vehicle accident. This suit was settled against Mr. Harris in exchange for the policy limits of $50,000.00 and a release of liability from Insured and dismissal of the lawsuit. Additionally, Insured received certain Workers' Compensation benefits from the United States Department of Labor as the result of the accident.

At the time of the accident, Insured had an insurance policy ("the Policy") with Hartford. Insured claimed entitlement to UIM coverage under the terms of the Policy, which provided $50,000.00 UIM coverage on each of her four covered vehicles totaling $200,000.00. Hartford maintained that its policy provided UIM coverage only with stated limits of $50,000.00 per person and $100,000.00 per accident. In its petition against Insured, Hartford noted that Insured "has claimed that the vehicle operated by Mr. Harris is an [UIM] vehicle under the terms of the . . . Policy and has further claimed a right to stack the [UIM] coverage available for the four vehicles covered under the . . . [P]olicy." Hartford denied "that the vehicle operated by Mr. Harris is an [UIM] vehicle under the terms of the . . . [P]olicy and, further denie[d] a right to stack the [UIM] coverages." Despite Insured's argument to the contrary, Hartford insisted that even if the Policy provided UIM coverage, Hartford would be "entitled to a reduction of the amount due for any amounts paid or due to payment for worker's compensation."

Insured filed her "Answer and Counterclaim" in which she brought one count for declaratory judgment and one count for $200,000.00 in damages for her injuries from the accident. Hartford then filed its "Motion for Summary Judgment" on April 20, 2010, and on May 14, 2010, Insured filed her own motion for summary judgment which was apparently limited to Count I of her counterclaim.1

On September 29, 2010, the trial court entered its Judgment in which it found, inter alia, that "the vehicle operated by Mr. Harris . . . fails to meet the . . . [P]olicy's definition of [an UIM] vehicle;" that "there is no right to recovery of [UIM] coverage in this matter;" and that there was "no right to stack the [UIM] coverage provided by the [Policy]." The trial court then entered judgment "in favor of [Hartford] and against [Insured]." This appeal followed.

In pertinent part the Policy set out:

This is the most we will pay regardless of the number of:

(Emphasis added.)

In part pertinent to our review, Insured's first point relied on asserts the trial court erred in granting Hartford's motion for summary judgment. Insured asserts that the language of the Policy's "OTHER INSURANCE" clause pertaining to UIM coverage "was ambiguous which ambiguity is to be resolved in favor of coverage. . . ." Specifically she makes the following reviewable argument:

In response to Insured's assertions, citing Rodriguez v. General Accident Ins. Co., 808 S.W.2d 379, 382 (Mo. banc 1991), Hartford maintains Mr. Harris was not an UIM as defined in the Policy because Mr. Harris had liability limits of $50,000.00, which it paid; that the Policy defined an UIM vehicle as one with liability limits less than the limits of its policy; and, since the limits of the Policy were the same as those in Mr. Harris's policy, Mr. Harris could not have been considered as being "underinsured."3 Hartford also sets out that Ritchie v. Allied Prop. and Cas. Ins. Co., 307 S.W.3d 132 (Mo. banc 2009), does not assist Insured because in Ritchie the claimant was a passenger in a non-owned vehicle, whereas Insured was not occupying a non-owned vehicle when the accident took place.4

Appellate review of a grant of summary judgment is de novo. ITT Comm'l Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment "is the undisputed right to judgment as a matter of law; not simply the absence of a fact question." Id. at 380. Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6). A genuine issue means that the issue is a "real and substantial one . . . consisting not merely of conjecture, theory and possibilities." ITT Comm'l, 854 S.W.2d at 378. A genuine issue "exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Id. "When the underlying facts are not in question, disputes arising from the interpretation and application of insurance contracts are matters of law for the court.'" Grable v. Atlantic Cas. Ins. Co., 280 S.W.3d 104, 106 (Mo.App.2009) (quoting Fed. Ins. Co. v. Gulf Ins. Co., 162 S.W.3d 160, 164 (Mo. App.2005)).

"`Whether an insurance policy is ambiguous is a question of law.'" Todd v. Missouri United School Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007) (quoting Martin v. U.S. Fidelity and Guar. Co., 996 S.W.2d 506, 508 (Mo. banc 1999)). "A policy is ambiguous if `there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy.'" Merlyn Vandervort Investments, LLC v. Essex Ins. Co., Inc., 309 S.W.3d 333, 336 (Mo. App.2010) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). "`[I]f a contract promises something at one point and takes it away at another, there is an ambiguity.'" Seeck, 212 S.W.3d at 133 (quoting Lutsky v. Blue Cross Hosp. Serv., Inc., 695 S.W.2d 870, 875 (Mo. banc 1985)). "Language in an insurance policy is ambiguous if it is reasonably open to different constructions, and the language used will be viewed in the light of the meaning that would ordinarily be understood by a layman who bought and paid for the policy." Hobbs v. Farm Bureau Town & Country Ins. Co., 965 S.W.2d 194, 197-98 (Mo.App.1998). "If the policy is unambiguous, the policy will be enforced according to its terms." Merlyn, 309 S.W.3d at 336. "If the [policy] is ambiguous, it will be construed against the insurer." Peters v. Employers Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. banc 1993). As previously set out, here the sole issue for our consideration is whether or not the trial court erred when it determined Insured was not entitled to UIM coverage under the terms of the Policy.5

The Policy under consideration provides under paragraph A of the "LIMIT OF LIABILITY" provision found in "SECTION II-UNDERINSURED MOTORISTS COVERAGE" that

It is undisputed that Insured received $50,000.00 from Mr. Harris in settlement of her claim against him. Viewed in isolation, the foregoing provision would appear to preclude Insured from being entitled UIM coverage under her Policy. However, "[c]ourts should not interpret policy provisions in isolation but rather evaluate policies as a whole." Ritchie, 307 S.W.3d at 135.

We, again, observe that there is language which sets out under the "OTHER INSURANCE" provision of the Policy that "[a]ny insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance providing such coverage on a primary basis." We also observe that in Goza v. Hartford Underwriters Ins. Co., 972 S.W.2d 371, 372 (Mo.App.1998), the insured ("Goza")

(Emphasis added.) The issue then became whether Goza was entitled to coverage for her damages under the UIM provision of her policy with Hartford. Goza, 972 S.W.2d at 371. Following a bench trial on stipulated facts, the trial court held that the "OTHER INSURANCE" clause of Goza's policy created an ambiguity in the UIM provisions which required those provisions to be construed in favor of coverage for Goza. Id. at 373-74. On appeal, the reviewing court affirmed the trial court's ruling. Id. at 375.

The Hartford policy in Goza provided essentially the same definition of an "`Underinsured motor vehicle'" in paragraph "C" of its UIM provision as the provision found in Insured's policy. Likewise, the Goza policy and Insured's policy contained similar language in its paragraph "A" of the "`LIMIT OF LIABILITY'" provision which set out that "`[t]he limit of liability shown in the Declarations for each person for [UIM] Coverage is our maximum limit of liability for all damages arising out of bodily injury sustained by any one person in any one accident.'" Id. at 373. Additionally, under its "`OTHER INSURANCE'" provision the Hartford policy in Goza set out that

Id. (emphasis added). The reviewing court in Goza cited to Zemelman v. Equity Mut. Ins. Co., 935 S.W.2d 673, 677 (Mo. App.1996), for the proposition that "since [UIM] coverage can reasonably be interpreted as providing `coverage for a vehicle that you do not own,' the above-noted language could reasonably be interpreted as providing underinsured coverage which is in excess to amounts recovered from the tortfeasor."6 Goza, 972 S.W.2d at 373-74. The reviewing appellate court then found this gave rise to an ambiguity that had to be resolved in favor of the insured such that it found there was UIM coverage, despite the fact that Goza was driving her own insured vehicle, as was the driver in Zemelman, at the time of her accident. Id. at 375.

Here, as in Goza, "an objective examination of the `excess' language of the Other Insurance clause suggests not just that this language might reasonably be interpreted by an average lay person to mean underinsured coverage was excess to amounts recovered from the tortfeasor. . .," it also could be interpreted "to mean that this language prevailed over the preceding and apparently conflicting language contained in the [P]olicy's definition of underinsured and Limits of Liability sections." Id. This created an ambiguity which must be resolved in favor of Insured and in favor of UIM coverage under the terms of the Policy. Id. Hence, here, the trial court erred in granting summary judgment in favor of Hartford by determining that Insured had no right to recover UIM coverage under the Policy. Insured's Point One has merit.

The trial court's grant of summary judgment is reversed and remanded for further proceedings consistent with this opinion.

LYNCH and BURRELL, JJ., concurs.