Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Ste. Genevieve County Honorable
Wendy W. Horn
M. HESS, JUDGE
Worley ("Appellant") appeals from the entry of
summary judgment in the Circuit Court of Ste. Genevieve
County on Appellant's claim for damages under an
insurance contract with Cornerstone National Insurance
Company ("Respondent") for underinsured motorist
("UIM") coverage. Appellant's sole point of
error is the trial court erred by failing to determine she
was entitled to the full UIM coverage under her policy.
Appellant asserts the UIM limit of liability section of her
policy was ambiguous, and therefore should be construed in
favor of coverage. We agree with Appellant that due to an
ambiguity under Respondent's interpretation of the
policy, Appellant is entitled to full UIM coverage.
Accordingly, we reverse and remand.
parties stipulated to the following facts. Appellant was
walking on Basler Drive in Ste. Genevieve, Missouri, when she
was struck by a vehicle driven by Donna Bullard
("Tortfeasor"). As a direct result of the
negligence of Tortfeasor, Appellant sustained injuries to her
head, lower back, right knee, and left elbow. Consequently,
Appellant suffered pain, disability, and anxiety, and
incurred medical charges in excess of $100, 000.
was personally insured under an insurance policy (the
"Policy") with Respondent at the time of the
accident. The Policy included $100, 000 of UIM coverage.
recovered a settlement from Tortfeasor's insurance
carrier for $50, 000 dollars, which represented the limits of
liability of Tortfeasor's insurance policy. Appellant
then sought recovery from Respondent under the UIM coverage
in the Policy
determined that it was entitled to a $50, 000 reduction in
its policy limit of UIM coverage because Tortfeasor's
insurance carrier already paid Appellant $50, 000. This would
mean Appellant could only recover $50, 000 under the
Policy's UIM coverage.
filed a vexatious refusal to pay claim against Respondent.
The parties reached a compromise agreement, wherein Appellant
agreed to dismiss her vexatious refusal claim, and Respondent
agreed to stipulate both that Tortfeasor was an underinsured
motorist under the Policy, and Appellant's damages were
in excess of $150, 000.
parties filed motions for summary judgment. The parties
agreed the only issue presented was whether Appellant is
entitled to UIM Policy limit proceeds of $100, 000, or
whether Respondent is entitled to a $50, 000 reduction,
resulting in a judgment against Respondent of $50, 000.
oral arguments on the parties' motions, the trial court
entered judgment in favor of Respondent and ordered
Respondent to pay $50, 000 to Appellant. This appeal follows.
appellate court reviews the trial court's grant of
summary judgment de novo. ITT Comm'l Fin. Corp. v.
Mid-American Marine Supply Corp., 854 S.W.2d. 371, 376
(Mo. banc 1993). Summary judgment is appropriate when no
genuine issue of material fact exists and the movant is
entitled to judgment as a matter of law. Taylor v. Zoltek
Companies, Inc., 18 S.W.3d 541, 543 (Mo. App. E.D.
interpretation of an insurance policy is also a question of
law that this Court determines de novo. Seeck v. Geico
General Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007).
"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.'" Jones v. Mid-Cent. Ins. Co.,
287 S.W.3d 687, 690 (Mo. banc 2009). Furthermore, we resolve
ambiguities in favor of the insured. Id.
ambiguity exists when there is duplicity, indistinctness, or
uncertainty in the meaning of the language in the policy.
Language is ambiguous if it is reasonably open to different
constructions." Id. at 690 (quoting
Seeck, 212 S.W.3d at 132). "Moreover, [i]f a
contract promises something at one point and takes it away at
another, there is an ambiguity." Id.
The reasons why ambiguities are construed in favor of the
insured include the following:
(1) insurance is designed to furnish protection to the
insured, not defeat it; ambiguous provisions of a policy
designed to cut down, restrict, or limit insurance coverage
already granted, or which introduce exceptions or exemptions,
must be strictly construed against the insurer; and (2) as
the drafter of the policy, the insurance company is in the
better position to remove the ambiguity from the contract.
Golden Rule Ins. Co. v. R.S., 368 S.W.3d
327, 334 (Mo. App. W.D. 2012) (quoting Pruitt v. Farmers
Ins. Co., 950 S.W.2d 659, 664 (Mo. App. S.D. 1997).
sole point on appeal is the trial court erred by failing to
determine she was entitled to the full $100, 000 UIM coverage
under the Policy. Specifically, Appellant argues the UIM
limit of liability section of the Policy was ambiguous and
therefore should be construed in her favor. Respondent
contends the limit of liability section unambiguously
informed Appellant the limit of liability for UIM coverage
was subject to a reduction by any and all sums paid by a
liable tortfeasor to Appellant.
The limit of liability section states, in relevant part:
B. When two limits of liability are shown in the Declarations
for Underinsured Motorist Coverage:
The limit of liability shown in the
for each person for this 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 this coverage is
our maximum limit of liability for all damages ...