Court of Appeals of Missouri, Eastern District, Division Two
from the Circuit Court of St. Louis County
D. Warner, Jr. Honorable
M. HESS, JUDGE
case involves an insurance coverage dispute between Jonathan
Loomis and State Farm Fire and Casualty Company ("State
Farm") arising out of events occurring in 2014 in
Wyoming. Loomis applied for an automobile insurance policy
from State Farm with underinsured motorist coverage in the
amount of $50, 000. Upon Loomis' application, a
"binder" of insurance was granted to Loomis, but
before the policy documents were issued, Loomis was involved
in an accident. Loomis settled with the at-fault driver for
her policy limits of $50, 000, and State Farm took the
position that since the at-fault driver's policy limits
were also $50, 000, Loomis did not have an underinsured
motorist claim. Loomis filed a petition for declaratory
judgment asking the court to declare that his State Farm
policy provided coverage exceeding $50, 000. Both parties
filed cross-motions for summary judgment, and the trial court
granted summary judgment in State Farm's favor. On
appeal, Loomis raises two points, arguing first his policy
unambiguously provides him underinsured motorist coverage in
the amount of his damages minus the $50, 000 collected from
the at-fault driver, and alternatively, that if his policy is
ambiguous, it should be construed in his favor to provide
underinsured motorist limits in excess of that provided by
the at-fault driver. For the reasons stated below, we reverse
September 7, 2016, Loomis filed an amended petition alleging
that "[o]n or about March 20, 2014, " he was
involved in an accident. State Farm admitted this allegation
in its answer to the amended petition.
filed a motion for summary judgment. In his motion,
memorandum in support thereof, and statement of
uncontroverted material facts, Loomis alleged that the
accident occurred March 20, 2014. In his statement of
uncontroverted material facts, however, Loomis also alleged
that "State Farm acknowledges that coverage was in force
and effect as of the accident of March 10,
2014" (emphasis added). To support this allegation,
Loomis referred to an affidavit attached as an exhibit from
State Farm representative Jessica Christianson in which
Christianson states coverage was cancelled March 12, 2014,
and "State Farm stipulates and agrees that coverage was
in force and effect as of the accident of March 10,
2014" (emphasis added). In response to Loomis'
statement of uncontroverted material facts State Farm
admitted the accident occurred on March 20, 2014, and also on
March 10, 2014. In addition, State Farm added a statement of
additional uncontroverted material facts in opposition to
Loomis' motion for summary judgment in which State Farm
alleged the accident occurred March 10, 2014. In response,
Loomis admitted the accident occurred March 10, 2014.
Farm also filed a motion for summary judgment. In State
Farm's motion, memorandum in support thereof, and
statement of uncontroverted material facts, State Farm
alleges that the accident occurred on March 20, 2014. In its
memorandum and statement of uncontroverted material facts,
State Farm also alleges coverage was canceled March 12, 2014,
and the accident occurred on March 10, 2014. In Loomis'
response to State Farm's statement of uncontroverted
material facts Loomis admitted the accident occurred on March
20, 2014, and on March 10, 2014.
the mutual inconsistencies in the accident date alleged, the
trial court entered judgment in favor of State Farm after
holding a hearing on the cross-motions for summary judgment.
Loomis appealed. On appeal, Loomis alleges in his statement
of facts that the accident occurred on March 10, 2014, while
State Farm alleges in its statement of facts that it occurred
on March 20, 2014.
review de novo the trial court's ruling on cross-motions
for summary judgment. Scottsdale Ins. Co. v. Addison Ins.
Co., 448 S.W.3d 818, 826 (Mo. banc 2014). Summary
judgment is appropriate if no genuine issues of material fact
exist and the movant is entitled to judgment as a matter of
law. ITT Commercial Fin. Corp. v. Mid-America Marine
Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
trial court's judgment is founded on the record submitted
and the law, an appellate court need not defer to a trial
court's order granting summary judgment. Id.
"[W]here the trial court, in order to grant summary
judgment, must overlook material in the record that raises a
genuine dispute as to the facts underlying the movant's
right to judgment, summary judgment is not proper."
Id. at 378.
"genuine issue" exists where the record contains
competent materials that evidence two plausible, but
contradictory, accounts of the essential facts. Id.
at 382. "[A]ny evidence in the record that presents a
genuine dispute as to the material facts defeats the
movant's prima facie showing." Id.
"Materials submitted by the movant that are, themselves,