Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Jackson County, Missouri The
Honorable Kenneth R. Garrett, III, Judge
Before: Thomas H. Newton, Presiding Judge, and James Edward
Welsh and Karen King Mitchell, Judges
King Mitchell, Judge
and William Kerns appeal from the grant of summary judgment
in favor of Alliance Indemnity Company (Insurer) on their
claim for uninsured motorists benefits under their automobile
insurance policy with Insurer. Cherity Kerns was involved in
a head-on collision in the state of Kansas between a rental
car she was driving and a car owned by one person but
operated by another. Kerns obtained a judgment in Kansas
against the operator of the other vehicle for negligence and
against the owner of the other vehicle for negligently
entrusting the vehicle to the operator at the time of the
accident. Under Kansas law, each tortfeasor was assessed 50%
liability for the total of Kerns's damages. But neither
the owner nor the operator had liability insurance.
Accordingly, Kerns sought to recover the maximum uninsured
motorist benefits provided by her policy against each
tortfeasor. She also sought to stack the coverage provided
for each of three automobiles covered by Insurer's policy
for a total of six times the per-person limit of liability
provided in the uninsured motorist coverage portion of the
policy. Both parties sought summary judgment. The court below
granted Insurer's motion and denied Kerns's motion.
Finding no error, we affirm.
Kerns, a Kansas resident, was injured in an automobile
accident that occurred in Kansas, while she was operating a
rental car that was registered in Missouri. Kerns and her
husband filed a lawsuit in Kansas and obtained a judgment
against the two uninsured persons who caused that
accident-the operator of the other vehicle (for general
negligence) and the owner of the other vehicle (for negligent
entrustment). The court entered judgment against each
tortfeasor separately in the amount of $1, 405, 791.65.
time of the accident, the Kernses had an automobile policy
issued by Insurer in Kansas that included uninsured motorist
("UM") coverage of $100, 000 per person and $300,
000 per accident; the policy covered three separate vehicles.
The Kernses submitted a UM claim to Insurer and Insurer paid
them $100, 000-the per-person limit of UM coverage under the
policy. The Kernses then filed a lawsuit in Jackson County,
Missouri, against Insurer seeking additional UM coverage from
Insurer, arguing they were entitled to stack coverage based
on the number of vehicles insured under the policy and the
number of uninsured persons who caused the accident.
Kernses filed a motion for partial summary judgment, arguing
that, under Kansas law, Insurer was required to provide
benefits related to each of the two uninsured motorists
deemed at fault in the accident. The Kernses then filed a
second motion for summary judgment, arguing that because of
an ambiguity in the policy language, Insurer was required to
stack the uninsured motorist benefits provided for each of
the three vehicles insured in the policy. Insurer responded
to the motions, including the statements of uncontroverted
material facts, acknowledging that most were, in fact,
uncontroverted. Insurer then submitted additional
uncontroverted material facts of its own, which the Kernses
conceded, wholesale, were uncontroverted.
then filed a suit in Kansas against the Kernses, seeking a
declaratory judgment on the exact same issue of UM coverage
and benefits, while simultaneously seeking a stay of the
Missouri lawsuit filed by the Kernses. All. Indem. Co. v.
Kerns, 360 P.3d 491, *1 (Kan.Ct.App. 2015). Insurer
obtained summary judgment in its favor in the Kansas
declaratory judgment action, and the Kernses appealed.
Id. While the Kansas appeal was pending, the
Missouri circuit court, sua sponte, lifted the
previously granted stay. Id. at *2. The Missouri
court then denied both of the Kernses' motions for
partial summary judgment. Following the Missouri court's
ruling, the Kansas Court of Appeals dismissed the pending
appeal as moot. All. Indem. Co., 360 P.3d 491 at *2.
then filed the motion at issue in this appeal-a motion to
dismiss or grant judgment on the pleadings in favor of
Insurer on the Kernses' claims. The motion cited the
circuit court's earlier rulings, denying the Kernses'
motions for partial summary judgment on the ground that
Kansas law applied and precluded the recovery sought. Insurer
also filed suggestions in support of its motion, with
attached exhibits. The Kernses filed a responsive motion,
arguing that, because of the attached exhibits, Insurer's
motion was improperly submitted as a motion for judgment on
the pleadings and should, therefore, be either denied or
treated as a motion for summary judgment as required by Rule
55.27(b). The circuit court entered an order,
notifying the parties that it would treat Insurer's
motion as a motion for summary judgment under Rule 74.04, and
it then set a "briefing schedule" following the
deadlines set forth in Rule 74.04.
receiving suggestions in support of summary judgment from
Insurer and suggestions in opposition from the Kernses, the
court entered summary judgment in favor of Insurer, finding
that Kansas law applied and prohibited the stacking sought by
the Kernses. The Kernses appeal.
Kernses raise three points on appeal. First, they argue that
the circuit court erred in granting summary judgment for
Insurer because Insurer's motion failed to comply with
the requirements of Rule 74.04. Second, they argue that the
circuit court erred in granting summary judgment in favor of
Insurer and denying summary judgment to the Kernses on the
question of whether Insurer owed UM benefits for each of the
two separate tortfeasors. And, finally, they argue in their
third point that the circuit court erred in granting summary
judgment in favor of Insurer and denying summary judgment to
the Kernses on the issue of whether the policy was ambiguous
and permitted the Kernses to stack UM coverage for each of
the three vehicles covered by their policy.
Standard of Review
appellate court's review of the grant of summary judgment
is de novo." Energy Creates Energy, LLC v.
Heritage Grp., 504 S.W.3d 142, 147 (Mo. App. W.D. 2016).
"The record is reviewed in the light most favorable to
the party against whom judgment was entered, and the
non-movant is given the benefit of all reasonable inferences
from the record." Id. That being said,
"[f]acts set forth by affidavit or otherwise in support
of a party's motion are taken as true unless contradicted
by the non-moving party's response to the summary
judgment motion." Id. (quoting ITT
Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 376 (Mo. banc 1993)).
There was no violation of Rule 74.04.
their first point on appeal, the Kernses argue that
Insurer's motion to dismiss or for judgment on the
pleadings "was not in compliance with Rule 74.04 in that
[Insurer] failed to present a statement of uncontroverted
material fact, but instead, assumed that a decision
overruling [the Kernses'] motion for summary judgment
meant that summary judgment must be entered for
Insurer's motion was initially filed as a motion to
dismiss or enter judgment on the pleadings, Insurer included
exhibits with the motion. Rule 55.27(b) provides that,
[i]f, on a motion for judgment on the pleadings, matters
outside the pleadings are presented to and not excluded by
the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 74.04, and all
parties shall be given reasonable opportunity to present all
materials made pertinent to such a motion by Rule 74.04.
after Insurer filed its motion, the Kernses, citing Rule
55.27(b), asked that Insurer's motion be treated as one
for summary judgment. The circuit court agreed, gave all
parties notice of its intent to treat the motion as one for
summary judgment, and set a "briefing schedule" in
compliance with the deadlines imposed by Rule 74.04.
Thereafter, Insurer filed a supplemental brief in support of
its motion, which included a "statement of facts, "
setting forth nine distinct factual assertions in separately
numbered paragraphs with citations to the pleadings, motions,
and discovery in the case purportedly supporting the fact
Kernses argue that Insurer's motion failed to include a
"statement of uncontroverted material fact" as is
required by Rule 74.04. Rule 74.04(c) requires "[a]
statement of uncontroverted material facts [to] be attached
to the motion." It further requires the statement to
"state with particularity in separately numbered
paragraphs each material fact as to which movant claims there
is no genuine issue, with specific references to the
pleadings, discovery, exhibits or affidavits that demonstrate
the lack of a genuine issue as to such facts."
Insurer's statement of facts was not denominated as a
statement of uncontroverted material fact, it
plainly complied with Rule 74.04(c) in all other respects.
And the Kernses' response to Insurer's supplemental
brief acknowledged that each fact identified in Insurer's
statement of facts was, in fact, uncontroverted. The Kernses
then identified eight additional facts that they claimed were
material to the issues, all of which were accepted as
uncontroverted by Insurer in its reply. In short, there was
no violation of Rule 74.04(c).
The Relevant Policy Language
second and third points on appeal both relate to UM coverage
and benefits under Insurer's policy. The policy
declarations page indicates that the policy provided coverage
for liability, personal injury protection from both uninsured
and underinsured motorists, damage to covered automobiles,
and towing and labor. The limits of liability listed on the
declarations page for personal injury protection were
identified as "$100, 000/Person - $300,
000/Accident." In the Vehicle Schedule, the policy
indicates coverage for three separate vehicles, each
identified as having uninsured and underinsured motorist
coverage with the liability limits identified on the
declarations page. There is a separate premium identified for
each vehicle related to the uninsured/underinsured motorist
of the policy relates to Uninsured Motorists Coverage, but it
is subject to an endorsement related specifically to
uninsured motorists coverage in Kansas. The endorsement
provides that Insurer would "pay damages which an
'Insured' is legally entitled to recover from the
owner or operator of an 'uninsured motor vehicle' or
'underinsured motor vehicle' because of 'bodily
injury': 1. Sustained by an 'Insured'; and 2.
Caused by an accident."
Limit of Liability section provides:
A. The limit of liability shown in the Declarations for each
person for Uninsured Motorists Coverage is our maximum limit
of liability for all damages, including damages for care,
loss of services or death, arising out of "bodily
injury" sustained by any one person in any one accident.
Subject to this limit for each person, the limit of liability
shown in the Declarations for each accident for Uninsured
Motorists Coverage is our maximum limit of liability for all
damages for "bodily injury" resulting from any one
the most we will pay regardless of the number of: