Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Mark A.
Hopkins ("Insured") appeals a declaratory judgment
ruling that his motorcycle insurer, Progressive Max Insurance
Company ("Progressive"), was entitled to set-offs
from its underinsured motorist ("UPM") liability
limit under the terms of its insurance policy ("the
Policy"). The judgment resulted from cross-motions for
summary judgment, and the following material facts are not in
riding his motorcycle, Insured was struck by a vehicle
operated by another motorist ("Tortfeasor").
Insured was seriously injured and sustained damages exceeding
$127, 000. Tortfeasor had liability insurance provided by
Farmers Insurance ("Farmers"), and it paid Insured
$25, 000 - the per-person bodily injury limit under its
policy ("the bodily injury set-off). Shortly after the
collision occurred, Progressive paid Insured $2, 500 - the
medical payments coverage limit provided under the Policy
("the med-pay set-off').
subtracting the set-offs from the Policy's $100, 000 UTM
coverage limit, Progressive ultimately paid Insured $72, 500
in UIM benefits. Believing himself entitled to receive the
full UTM coverage benefit as stated on the declarations page
of the Policy without any set-offs, Insured timely appealed
the judgment. Because the Policy unambiguously provided for
the set-offs, we affirm.
Principles of Review
review of a summary judgment is essentially de novo. ITT
Commercial Fin. Corp. v. Mid-Am Marine Supply Corp., 854
S.W.2d 371, 376 (Mo. banc 1993). We view the record in the
light most favorable to the non-moving party, drawing all
inferences in that party's favor. Id. We will
uphold the grant of summary judgment only if there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Mat 380.
interpretation of an insurance policy is also a question of
law that we review de novo. Seeck v. Geico Gen. Ins.
Co., 212 S.W.3d 129, 132 (Mo. banc 2007). In so doing,
we apply the meaning '"which would be attached by an
ordinary person of average understanding if purchasing
insurance, '" (quoting McCormack Baron Mgmt.
Services, Inc. v. Am. Guarantee & Liability Ins.
Co., 989 S.W.2d 168, 171 (Mo. banc 1999)), and
"[we] [resolve] ambiguities in favor of the
insured." Id. An ambiguity exists if the
language '"is reasonably open to different
constructions.'" Id. (quoting Gulf Ins.
Co. v. Noble Broadcast, 936 S.W.2d 810, 814 (Mo. banc
1997)). "Courts are not to interpret the provisions of
an insurance policy in isolation but rather are to examine
the policy as a whole." Wasson v. Shelter Mut. Ins.
Co., 358 S.W.3d 113, 121 (Mo. App. W.D. 2011).
'"If the language in an insurance contract is clear
and unambiguous, this Court must construe the contract as
written[.]'" Gavan v. Bituminous Cos.
Corp., 242 S.W.3d 718, 720 (Mo. banc 2008) (quoting
Bellamy v. Pacific Mut. Life Ins. Co., 651 S.W.2d
490, 495 (Mo. banc 1983)).
the heading "Outline of coverage"
the Policy's declarations page states: "All
limits listed below are subject to all terms, conditions,
exclusions and applicable reductions described in the
[P]olicy." The UPM coverage limit is listed
therein as "$100, 000 each person/$300, 000 each
III(B) - UNDERINSURED MOTORIST COVERAGE of the Policy
provides, in pertinent part:
The limit of liability shown on the declarations page for
Underinsured Motorist Coverage will be reduced by all sums:
1. paid because of bodily injury by or on
behalf of any persons or organizations that may be legally
responsible, including, but not limited to, all sums paid