Gary D. Witt, Judge
Diane Lawson ("Lawson") and Heather Burlingame ("Burlingame") appeal from the trial court's summary judgment rulings in favor of Mendota Insurance Company ("Mendota") arising out of an action for wrongful death. In the proceedings below, based on stipulated facts, the trial court found that a personal automobile insurance policy between Lawson's deceased husband and Mendota was clear and unambiguous, that the policy was valid and enforceable, and that Mendota had no duty to defend or indemnify. The trial court thus denied Lawson's and Burlingame's motions for summary judgment, granted Mendota's motion for summary judgment, and granted Mendota's motion to dismiss Lawson's counter-claim. Lawson and Burlingame appeal these rulings. We affirm.
The key facts are stipulated by the parties. On June 3, 2012, Terry W. Lawson ("Terry")
Mendota brought a declaratory judgment action seeking a declaration of its rights and obligations under the Policy. Inter alia, Mendota sought a judicial declaration that no liability coverage exists for any wrongful death claims, that the policy exclusions are valid and enforceable, that the policy exclusions apply to the facts of this case, that Mendota has no duty to defend the personal representative of Terry's estate, and that Mendota has no duty to indemnify the personal representative of Terry's estate.
Lawson filed a counter-claim against Mendota under Section 379.200
As noted above, Mendota, Lawson, and Burlingame each filed motions for summary judgment based on the stipulated facts and the terms of the Policy, and Mendota filed a motion to dismiss Lawson's counter-claim. The trial court granted Mendota's motion for summary judgment, overruled Lawson's and Burlingame's motions for summary judgment, and dismissed Lawson's counter-claim.
The following provisions from the Policy are at issue:
Lawson and Burlingame bring three points of error, the first two asserting that the trial court erred in finding the Policy valid and enforceable and granting summary judgment in favor of Mendota and denying Lawson's and Burlingame's motions for summary judgment and dismissing Lawson's counter-claim. In their first point, more specifically, the appellants argue that the Policy's owned-auto exclusion violates the Missouri Motor Vehicle Financial Responsibility Law ("MVFRL") because the Policy designates that coverage is granted with respect to the Chevrolet and because Section 303.190.2 accordingly requires that the Policy provide coverage. In their second point, the appellants argue that the Policy is ambiguous because when the insuring agreement and the owned-auto exclusion are considered together, the Policy purports to provide coverage to the named insured for the use of any auto but then attempts to take away that coverage. In the third point, the appellants argue that the trial court erred in dismissing Lawson's counter-claim because it states a claim upon which relief can be granted.
We address the issues out of order, first resolving the threshold matter of whether the Policy's insuring agreement in the Liability portion applies to this accident. We then address whether Exclusion B applies (Point II) and whether the MVFRL applies (Point I).
Our Supreme Court has set forth our standard for reviewing summary judgment rulings:
Bob DeGeorge Assoc.'s, Inc. v. Hawthorn Bank, 377 S.W.3d 592, 596 (Mo. banc 2012) (quoting ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993)) (citations and internal quotation marks omitted).
Additionally, the interpretation of an insurance policy is a question of law that we also determine de novo. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007) (citations omitted); Blumer v. Auto. Club Inter-Ins. Exch., 340 S.W.3d 214, 218 (Mo.App.W.D.2011) (holding that where "resolution of the case involves the interpretation of an insurance contract, we give no deference to the circuit court as contract interpretation is a question of law").
Given that the issue is solely one of interpretation of an insurance policy, we note at the outset that "[w]e read a contract as a whole and determine the intent of the parties, giving effect to that intent by enforcing the contract as written." Thiemann v. Columbia Pub. Sch. Dist., 338 S.W.3d 835, 840 (Mo.App.W.D.2011) (citation omitted). Put another way, "[w]e do not interpret insurance policy provisions in isolation but rather evaluate the policy in terms of a whole." Durbin v. Deitrick, 323 S.W.3d 122, 125 (Mo. App. W.D. 2010) (citing Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009)).
In so doing, we give the language in an insurance contract its plain and ordinary meaning. Thiemann, 338 S.W.3d at 840 (citation omitted). "If, giving the language used its plain and ordinary meaning, the intent of the parties is clear and unambiguous, we cannot resort to rules of construction to interpret the contract." Id. Mere disagreement over the interpretation of the terms of a contract does not create an ambiguity. Id. In examining whether the language used in an insurance policy is ambiguous, the language is normally considered in the light in which it would normally be understood by the
If the policy does not contain an ambiguity, the insurance contract will be enforced as written. Fanning v. Progressive N.w. Ins. Co., 412 S.W.3d 360, 364 (Mo.App. W.D. 2013) (citing Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379, 382 (Mo. banc 1991)). Where an ambiguity exists, we construe the policy language against the insurer. Blumer, 340 S.W.3d at 218 (citation omitted). "An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy." Seeck, 212 S.W.3d at 132. "This rule is especially
"To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy." Fanning, 412 S.W.3d at 364 (citation omitted). We apply "the meaning which would be attached by an ordinary person of average understanding if purchasing insurance" and we resolve "ambiguities in favor of the insured." Id. (citing Seeck, 212 S.W.3d at 132).
Ambiguities are construed in favor of the insured because:
Fanning, 412 S.W.3d at 364(citing Golden Rule Ins. Co. v. R.S., 368 S.W.3d 327, 334 (Mo.App.W.D.2012)).
We first address whether the accident falls within the purview of the insuring agreement. The appellants argue that the Chevrolet meets the broad definition of "any auto," while Mendota argues that "coverage for liability in the [Chevrolet] is not afforded under the Mendota Policy because the [Chevrolet] is not listed on the Declarations; it does not qualify as a `covered auto'" [sic].
"[T]he insured bears the burden of proving coverage under an insurance policy." Fischer v. First Am. Title Ins. Co., 388 S.W.3d 181, 187 (Mo.App. W.D.2012) (citation omitted). However, "[i]n general, an insurance policy is a contract to afford protection to an insured and will be interpreted, if reasonably possible, to provide coverage." Shiddell v. Bar Plan Mut., 385 S.W.3d 478, 483 (Mo.App. W.D.2012) (citation omitted). As noted above, the Policy's insuring agreement for Liability coverage states:
And
(Emphasis added.)
Given that under the insuring agreement, Mendota provides liability coverage for the "insured's" use of "any auto," the only question in our initial determination of coverage is whether the Chevrolet fits the description of being "any auto."
Even though "your covered auto" is defined in the policy, "any auto" is not a defined term in this policy. When "a policy does not define a term, a court is free to give the term a reasonable construction." Fischer, 388 S.W.3d at 187 (citation omitted). In the process, "the trial court must
Here, in according the Policy language its plain and ordinary meaning, one need not consult a dictionary to understand that a reasonable layperson would read "any auto" to include coverage of "any auto," which necessarily encompasses the Chevrolet. In so holding, we note that a determination that "any auto" means only the two vehicles listed on the declarations page would render superfluous or ambiguous the term "any vehicle" in Exclusion B. That exclusion states that there is no liability coverage for
This plain and ordinary reading of the Policy language is additionally in accord with the industry's custom of providing coverage to occasional or incidental use of vehicles other than those listed on the declarations page. See Dutton v. Am. Family Mutual Ins. Co., 454 S.W.3d 319, 322-23 (Mo. banc 2015) (quoting State Farm Mut. Auto. Ins. Co. v. W. Cas. & Sur. Co., 477 S.W.2d 421, 424 (Mo. banc 1972), which noted that the purpose of "non-owned auto" or "drive other cars" provisions is to cover occasional or incidental use of other cars without payment of additional premium but to exclude coverage for habitual use of other cars). See also Shelter Mut. Ins. Co. v. Sage, 273 S.W.3d 33, 39 (Mo.App.W.D.2008).
Given that an insurance policy is interpreted, if reasonably possible, to provide coverage, and in light of the insurance industry's custom of providing some liability coverage of vehicles not included in the declarations page, we hold that the coverage of the Chevrolet was within the purview of the insuring agreement in the liability portion of the Mendota policy.
Having determined that the Chevrolet was within the purview of the liability insuring agreement of the Policy, we turn to Exclusion B. The meat of the appellants' second point on appeal is that Exclusion B is ambiguous when read with the insuring agreement because the contract "purports to provide coverage to the named insured for the use of any auto but then attempts to take away that coverage" by means of the owned-auto exclusion.
Missouri strictly construes exclusionary clauses against the drafter. Manner v. Schiermeier, 393 S.W.3d 58, 62 (Mo.
As our Supreme Court recently reiterated, however, the mere presence of an exclusion does not render an insurance policy ambiguous. Floyd-Tunnell v. Shelter Mut. Ins. Co., 439 S.W.3d 215, 221 (Mo. banc 2014). The court noted:
Id. (citation omitted; emphasis added).
As reproduced above, Exclusion B states:
As noted above, the purpose of "non-owned auto" or "drive other cars" provisions is to cover occasional or incidental use of other cars without payment of additional premium but to exclude coverage for habitual use of other cars. Non-owner exclusions thus "protect an insurer from a situation where an insured could purchase one policy for a described vehicle and be covered by the same policy without qualification while operating any and all other automobiles under his control or available for his use." Allstate Ins. Co. v. Ibrahim, 243 S.W.3d 452, 457 (Mo.App.E.D.2007) (citation omitted).
Here, in examining the appellants' brief, we note that Lawson and Burlingame point to no words or phrasing in Exclusion B in arguing that it is ambiguous. Nor do they argue that the Chevrolet meets the Policy definition of "your covered auto" so as to fall outside of the reach of the exclusion. Rather, they argue broadly that the exclusion is ambiguous because it "attempts to take away the promised coverage with respect to vehicles owned by Terry Lawson or furnished or available for his regular use." Without any particular words or phrase to examine, we hold that Exclusion B clearly and unambiguously informs the policyholder that there is no coverage for any vehicle owned by the insured other than "your covered auto."
Lawson's and Burlingame's second point is denied.
Lawson and Burlingame argue in their first point that the trial court erred in ruling in favor of Mendota because Exclusion B violates the MVFRL, which requires minimal coverage. The appellants rely on rationale recently rejected by our Supreme Court in Dutton. The
This point is denied.
In their third point on appeal, Lawson and Burlingame argue that the trial court erred in dismissing her counter-claim against Mendota because Lawson stated a claim upon which relief could be granted under Section 379.200.
We review a trial court's grant of a motion to dismiss de novo. Ward v. W. Cnty. Motor Co., 403 S.W.3d 82, 84 (Mo. banc 2013) (citation omitted). When we review "the dismissal of a petition for failure to state a claim, the facts contained in the petition are assumed true and construed in favor of the plaintiffs." Id. "If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim." Id.
In an action for equitable garnishment under Section 379.200, a plaintiff "stands in the shoes of the insured, and his rights are no greater and no less than the insured's would have been in an action between the insured and the insurer" on the policy. Carroll v. Mo. Intergov'l Risk Mgmt. Ass'n, 181 S.W.3d 123, 126 (Mo. App.W.D.2005) (citations omitted). Having determined supra that the policy effectively excludes coverage of the Chevrolet, any argument for equitable garnishment must fail as well. See Payne v. Grinnell Mut. Reinsurance Co., 716 F.3d 487, 491 (8th Cir.2013).
This point is denied.
The judgment of the trial court is affirmed.
All concur.
270 S.W.3d at 426-27 (emphases added).