Court of Appeals of Missouri, Western District, Fourth Division
February 2, 2016.
Final until expiration of the rehearing period. See MO R RCP
Rule 84.16 regarding unpublished opinions.
from the Circuit Court of Pettis County, Missouri. Honorable
Robert Lawrence Koffman, Judge.
Appellant: Mark Kempton, Sedalia, MO.
Respondent: William Crawford, Kansas City, MO.
Division Four: Alok Ahuja, Chief Judge Presiding, Thomas H.
Newton, Judge, and Charles H. McKenzie, Special Judge. Ahuja,
C.J., and McKenzie, Sp.J. concur.
H. Newton, Judge.
Cody Warden appeals from the trial court's summary
judgment in favor of Shelter Mutual Insurance Company
allowing Shelter to reduce the Underinsured Motorist (UIM)
coverage limit by the amount Mr. Warden received from an
underinsured motorist's liability insurer via the set-off
language, and prohibiting Mr. Warden from stacking and
three additional Shelter policies providing UIM coverage.
appeal arises from Mr. Warden's suit to recover UIM
benefits for injuries he sustained when he was struck by a
car as a pedestrian. Mr. Warden sued Shelter, seeking
$400,000.00 in UIM coverage under his four Shelter policies.
The parties filed cross-motions for summary judgment,
stipulating to the following material facts: (1) Mr. Warden
was insured for the purposes of UIM coverages under four
Shelter policies, each of which provided UIM coverage of
$100,000.00 per person and $300,000.00 per accident; (2) Mr.
Warden was struck by an " underinsured motor
vehicle" operated by Jesse Anglen; (3) Mr. Warden
recovered $25,000.00 from Mr. Anglen's liability insurer,
and (4) Mr. Warden demanded that Shelter pay $400,000.00 in
UIM coverage available under his four policies. In response,
Shelter paid Mr. Warden $75,000.00, equaling the $100,000.00
less the $25,000.00 he recovered from Progressive Insurance,
Mr. Anglen's insurer. The trial court ruled that
Progressive's $25,000.00 payment reduced (set-off)
Shelter's $100,000.00 UIM limit and that the four Shelter
policies did not stack. This appeal followed.
Insurance policy interpretations are questions of law that
appellate courts review de novo. Seeck v. Geico
General Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007).
Where the trial court granted summary judgment, we also apply
a de novo standard of review. Long v. Shelter
Ins. Companies, 351 S.W.3d 692, 695-96 (Mo. App. W.D.
2011). " In construing the terms of an insurance policy,
this Court applies the meaning which would be attached by an
ordinary person of average understanding if purchasing
insurance, and resolves ambiguities in favor of the
insured." Seeck., 212 S.W.3d at 132 (Mo. banc
2007). " Language is ambiguous if it is reasonably open
to different constructions." Id.
The purpose of underinsured motorist coverage is to provide
insurance coverage for insureds who have been bodily injured
by a negligent motorist whose own automobile liability
insurance coverage is insufficient to pay for the insured
person's actual damages." Wasson v. Shelter Mut.
Ins. Co., 358 S.W.3d 113, 117 (Mo. App. W.D. 2011).
" To determine whether an insurance policy provides
coverage, we look to the insurance contract itself."
Long, 351 S.W.3d at 701. " Courts are not to
interpret the provisions of an insurance policy in isolation
but rather are to examine the policy as a whole."
Wasson, 358 S.W.3d at 121.
If the language in an insurance contract is clear and
unambiguous, this [c]ourt must construe the contract as
written. Gavan v. Bituminous Cas. Corp., 242 S.W.3d
718, 720 (Mo. banc 2008). " The policy 'must be
given effect according to the plain terms of the agreement,
consonant with the reasonable expectations, objective, and
intent of the parties." Wasson, 358 S.W.3d at
120 (citing Long, 351 S.W.3d at 701). " We look
to definitions in insurance policies to guide our
interpretation, but when words or phrases are not defined in
the policy, we look to the plain meaning of words and phrases
as it would have been understood by an ordinary person of
average understanding when buying the policy."
Id. (citing Jones v. Mid-Century Ins. Co.,
287 S.W.3d 687, 690 (Mo. banc 2009)). " While ambiguity
exists if the term is 'reasonably open to different
constructions,'... an unreasonable alternative
construction will not render the term ambiguous."
Gavan, 242 S.W.3d at 720 (quoting Seeck,
212 S.W.3d at 132). " Courts will not distort the
language of an
unambiguous insurance policy in order [to] create an
ambiguity where none exists." Wasson, 358
S.W.3d at 121. " If an insurance policy is unambiguous,
we enforce the policy as written." Long, 351
S.W.3d at 701. However, if " the policy is ambiguous,
... the ambiguity will be resolved in favor of the coverage
for the insured." Seeck, 212 S.W.3d at 134.
first point, Mr. Warden argues that the trial court erred in
finding that the set-off language reduced the UIM coverage
limit by the amount Mr. Warden received from Progressive
because the set-off language is ambiguous. He contends the
language is ambiguous because any ordinary person of average
understanding would interpret the UIM endorsement to mean
that Shelter will reduce the uncompensated damages payable to
an insured by any payment from a liability insurer rather
than reduce such a payment from the UIM coverage limit.
[T]he existence of UIM coverage and the ability of an insurer
to set off stated coverage '" are determined by the
contract entered between the insured and the insurer."
'" Long, 351 S.W.3d at 702 (quoting
Ritchie v. Allied Prop. & Cas. Ins. Co., 307
S.W.3d 132, 135 (Mo. banc 2009) (quoting Rodriguez v.
Gen. Acc. Ins. Co. of Am., 808 S.W.2d 379, 383 (Mo. banc
1991))). Thus, we begin our analysis with Shelter's
This coverage provides a monetary benefit that supplements
the amount paid to an insured when he or she sustains a
covered bodily injury. It does not cover claims based on
property damage. It is important to note that the sections
headed: " LIMITS OF OUR LIABILITY" and "
INSURANCE WITH OTHER COMPANIES" reduce the total limits
provided under this endorsement by the amount paid to an
insured by the person(s) who caused the injury, or paid under
another insurance policy.. You should, therefore, purchase
this coverage with a monetary limit in the amount you want to
ensure is ...