SHELTER INSURANCE COMPANY, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD33552
)
JEANIE VASSEUR, ) Filed: May 19, 2015
MATTHEW VASSEUR, by and thru his )
Guardian ad Litem, ADAM VASSEUR, )
CHARLOTTE VASSEUR, )
JACKIE STRYDOM, )
ANDREA POSTELWAIT, )
SARITA VASSEUR, and )
MICHAEL VASSEUR, )
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY
Honorable William E. Hickle
REVERSED AND REMANDED IN PART AND AFFIRMED IN PART
Shelter Mutual Insurance Company ("Shelter") appeals from the trial
court's judgment against Shelter in a declaratory action case. Shelter raises six
points on appeal. Shelter's first two claims have merit, but the remainder of the
claims either are not preserved for appellate review or are moot. Thus, we
reverse in part and affirm in part.
1
Factual and Procedural Background
Jeanie Vasseur was married to Elmer Vasseur. Jeanie and Elmer had one
minor son, Matthew, and one adult son, Adam.1 On August 8, 2010, Matthew
was driving Adam's 2006 Honda ATV on Missouri State Highway AA. Elmer was
riding on the ATV behind Matthew. Matthew failed to negotiate a turn, causing
the ATV to run off the road and hit a sign. Matthew was injured, and Elmer died
at the scene.
At the time of the accident, Jeanie and Elmer had one farm owners'
insurance policy and three automobile insurance policies issued by Shelter.
Elmer and Jeanie were the named insureds on each of the policies. After the
accident, Jeanie, Matthew, Adam, and other members of Elmer's family
("Respondents") sought the policy limits under each of the policies.
On March 3, 2011, Shelter filed a petition for declaratory judgment against
Respondents seeking a declaration that there was no coverage under any of the
policies. Shelter argued there was no coverage under the farm owners' insurance
policy because Elmer was an insured under the farm owners' insurance policy
and because the farm owners' insurance policy contained exclusions regarding
bodily injury to an insured. Shelter argued there was no coverage under the
automobile insurance policies because the ATV was not a "Motor Vehicle" as that
term was defined in the automobile insurance policies.
1The individuals involved are referred to by their first names because they all have the same last
name. No disrespect is intended.
2
After discovery, the parties filed a joint stipulation of facts and cross-
motions for summary judgment. The trial court found the exclusions in the farm
owners' insurance policy were ambiguous, and ordered summary judgment in
favor of Respondents.
The trial court then found that a genuine issue of material fact remained
regarding whether the ATV was a "Motor Vehicle" under the terms of the three
automobile insurance policies. A bench trial was held on May 6, 2014. After
receiving evidence, the trial court found the ATV was a "Motor Vehicle" and
entered judgment for Respondents on all counts in Shelter's petition. Shelter
appeals.
Point I and Point II: Elmer Is an Insured
In its first and second points, Shelter argues the trial court erred in finding
the farm owners' insurance policy provided both coverage to Matthew for
damages arising out of the injuries and death of Elmer and for medical payments
arising out of the injuries and death of Elmer because such damages were
excluded from coverage under two different exclusions in section II of the farm
owners' insurance policy. We agree.
When the trial court grants summary judgment, the appellate court
"applies a de novo standard of review." Burns v. Smith, 303 S.W.3d 505, 509
(Mo. banc 2010). Additionally, "interpretation of an insurance policy is a
question of law, and the trial court receives no deference where resolution of the
controversy is a question of law." State Farm Mut. Auto. Ins. Co. v.
Stockley, 168 S.W.3d 598, 600 (Mo. App. E.D. 2005) (quoting Automobile
3
Club Inter-Ins. Exch. v. Medrano, 83 S.W.3d 632, 637 (Mo. App. E.D.
2002)).
"In construing the terms of an insurance policy, this court 'applies the
meaning which should be attached by an ordinary person of average
understanding if purchasing insurance and resolves ambiguities in favor of the
insured.'" Affirmative Ins. Co. v. Broeker, 412 S.W.3d 314, 318 (Mo. App.
E.D. 2013) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo.
banc 2007)). An ambiguity exists when "the policy is reasonably open to
different constructions." Id. (quoting National Union Fire Ins. Co. v.
Maune, 277 S.W.3d 754, 758 (Mo. App. E.D. 2009)). "However, when the
insurance policy is unambiguous, the court will enforce the policy according to its
terms." Id. at 318-19. Furthermore, "[a] court is not permitted to create an
ambiguity or distort the language of an unambiguous policy in order to enforce a
particular construction that it deems more appropriate." Progressive
Northwestern Ins. Co. v. Talbert, 407 S.W.3d 1, 9 (Mo. App. S.D. 2013)
(quoting Lynch v. Shelter Mut. Ins. Co., 325 S.W.3d 531, 535 (Mo. App. S.D.
2010)); see also Burns, 303 S.W.3d at 511 ("this Court will not add language to a
policy.").
As part of the farm owners' insurance policy, Jeanie and Elmer purchased
$100,000 worth of personal liability insurance and $1,000 worth of medical
payments to others insurance. These coverages were in section II of the policy.
The coverage provision for personal liability ("Coverage E") provided that Shelter
would "pay all sums arising out of any one loss which an insured becomes legally
obligated to pay as damages because of bodily injury or property damage and
4
caused by an occurrence covered by this policy." (Emphasis omitted). As
applicable to this case, the coverage provision for medical payments to others
("Coverage F") provided that Shelter would pay medical expenses arising from
bodily injury sustained somewhere other than the premises if that injury was
"caused by the activities of an insured, or a farm employee, or a residence
employee in the course of employment by an insured[.]" (Emphasis omitted).
The exclusions for section II were organized in three paragraphs, each
with several numbered sub-paragraphs.2 The first paragraph ("Exclusion Group
A") began with the phrase "Under Personal Liability and Medical Payments To
Others, we do not cover" and listed several types of risks typically covered by
other types of insurance, as well as an intended acts exclusion. (Emphasis
omitted). The second paragraph ("Exclusion Group B") began with the phrase
"Under Personal Liability we do not cover" and listed several types of property
damage, bodily injury for which there was workers' compensation payable, and in
sub-paragraph 9 specifically excluded, "[b]odily injury to: (a) you; (b) your
relatives residing in your household; and (c) any other person under the age of 21
residing in your household who is in your care or the care of a resident relative."
(Emphasis omitted). The third and final paragraph ("Exclusion Group C") began
with the phrase "Under Medical Payments To Others, we do not cover" and in
sub-paragraph 2, listed several types of risk typically covered by other insurance
and excluded "bodily injury to any insured under parts (a), (b) and (c) of the
definition of insured." (Emphasis omitted).
2The pages of the farm owners' policy setting out the exclusions at issue in this point are
reproduced in the appendix to this opinion.
5
At the summary judgment stage, Shelter argued no payment was due
under the coverage for personal liability because of sub-paragraph 9 contained
within Exclusion Group B. Shelter argued no payment was due under the
coverage for medical payments to others because of sub-paragraph 2 contained
within Exclusion Group C. The trial court disagreed, and entered summary
judgment in favor of Respondents.
The trial court's entry of summary judgment with respect to the farm
owners' insurance policy was incorrect because it ignored the plain language of
the policy. The farm owners' insurance policy states that Exclusion Group A
applies to both the personal liability coverage and the medical payments to others
coverage, Exclusion Group B applies to the personal liability coverage, and
Exclusion Group C applies to the medical payments to others coverage. The plain
meaning of that list results in three possible applications:
1. If an individual seeking coverage purchases personal liability
coverage—Coverage E—only, the applicable exclusions are
those in Exclusion Group A and Exclusion Group B.
2. If an individual seeking coverage purchases medical liability
coverage—Coverage F—only, the applicable exclusions are
those in Exclusion Group A and Exclusion Group C.
3. If an individual seeking coverage purchases both personal
liability coverage and medical liability to others coverage, all
the exclusions listed apply, but only to the respective
coverages as indicated, i.e., Exclusion Group A and Exclusion
Group B to personal liability coverage and Exclusion Group
6
A and Exclusion Group C to medical liability to others
coverage.
This interpretation gives effect to the plain meaning of the language used. Under
that meaning, there is no bodily injury coverage or medical payment coverage for
Elmer because Elmer was a named insured.
Respondents attempt to avoid this conclusion by looking at the positioning
of the language in the document. They suggest that the positioning of the various
clauses renders them ambiguous. They state, "the only sensible interpretation of
this language is that [Exclusion] Group A applies to policies with both coverages,
while [Exclusion] Group B applies to policies insuring only liability, and
[Exclusion] Group C applies to policies insuring only medical payments." Thus,
they conclude that since Respondents purchased both coverages and since the
exclusions upon which Shelter relies were not in Exclusion Group A then none of
the exclusions apply in this case.
This argument fails because the policy language is not susceptible to the
interpretation Respondents suggest. To create the meaning suggested by
Respondents, additional language would have to be added to the policy. As
written, the policy simply says that the exclusions in Exclusion Group A apply to
both coverages, the exclusions in Exclusion Group B apply to only personal
liability coverage—Coverage E—and the exclusions in Exclusion Group C apply to
only to medical liability to others coverage—Coverage F. The language is not
conditioned on which coverages were purchased. There is nothing in that
language to suggest that the exclusions change when an insured purchases both
coverages. To reach the result Respondents want, the policy would have needed
7
to include additional language. That language is not in the policy, and this Court
will not add it. See Burns, 303 S.W.3d at 511.
The trial court erred in finding the policy language was ambiguous. Point I
and Point II are granted.
Point III, Point IV, and Point V: Denial of a Motion for Summary
Judgment Is Not Appealable
In its third, fourth, and fifth points, Shelter challenges the trial court's
determination regarding coverage under the three automobile insurance policies.
Specifically, Shelter argues "[t]he trial court erred in granting summary judgment
to Respondents and denying [Shelter's] motion for summary judgment on the
issue of . . . coverage under three auto insurance policies[.]" These points do not
present any question for appellate review because they do not challenge a ruling
in an appealable order or a ruling upon which an appealable order was based.
The points each challenge two of the trial court's actions. First, the points
challenge the trial court's grant of summary judgment to Respondents regarding
coverage under the automobile insurance policies. However, as Respondents
correctly note, the trial court did not grant summary judgment on those issues.
Rather, those claims were denied by the trial court on the summary judgment
motion and were decided only after a court trial. Thus, the first portion of each of
these points challenges a ruling that was never made.
8
The second portion of each point challenges the denial of Shelter's motion
for summary judgment regarding the automobile insurance policies.3 The
general rule is that "an order denying a motion for summary judgment is not a
final judgment and therefore is not reviewable on appeal." Reeves v. Allstate
Ins. Co., 327 S.W.3d 592, 598 (Mo. App. S.D. 2010). Indeed, there is an
exception to this rule "where the merits of the denied motion for summary
judgment are intertwined with the propriety of an appealable order granting
summary judgment to another party[.]" Id. Here, however, there was no grant
of summary judgment regarding the issues raised in these points; the issues
addressed in these points were resolved by judgment after trial.4 Thus, the
exception does not apply.
Point III, Point IV, and Point V are denied.
Point VI: Uninsured Motorist
In its final point, Shelter argues the trial court erred in finding coverage
under both the farm owners' insurance policy and the uninsured motorist
coverage of the automobile insurance policies because if there were coverage
3
In the reply brief, Shelter notes its incorrect statement of the procedural posture, but maintains
the denial of the motion for summary judgment was nevertheless incorrect and merits reversal.
Shelter's treatment of this problem in its reply brief does not rectify the situation for two reasons.
First, Shelter still challenges the denial of the motion for summary judgment, which is not an
appealable order. In fact, Shelter does not even attempt to argue the exception to the general rule
applies. Second, even if Shelter had modified its argument to present a reviewable claim, this
Court could not address the claim. "A reply brief is to be used only to reply to arguments raised
by respondents, not to raise new arguments on appeal." Kells v. Missouri Mountain
Properties, Inc., 247 S.W.3d 79, 84 n.7 (Mo. App. S.D. 2008). The reason for this rule is that "a
respondent has no opportunity to address" an argument presented for the first time in a reply
brief. Berry v. State, 908 S.W.2d 682, 684 (Mo. banc 1995). "Assignments of error set forth
for the first time in the reply brief do not present issues for appellate review." Id. (quoting In re
Gilbert, 563 S.w.2d 768, 771 (Mo. banc 1978)).
4 Shelter does not challenge the judgment entered after trial in any of these three points.
9
under the farm owners' insurance policy, then the ATV was not an uninsured
motor vehicle under the automobile insurance policies. Given our resolution of
Point I and Point II, this claim is moot.
Decision
The trial court's judgment with respect to the farm owners' insurance
policy is reversed, and the case is remanded with directions to the trial court to
enter judgment in favor of Shelter with respect to the farm owners' insurance
policy consistent with this opinion. In all other respects, the trial court's
judgment is affirmed.
MARY W. SHEFFIELD, P.J. – OPINION AUTHOR
NANCY STEFFEN RAHMEYER, J. – CONCURS in separate opinion
GARY W. LYNCH, J. – CONCURS
10
APPENDIX
11
12
13
SHELTER INSURANCE COMPANY, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD33552
)
JEANIE VASSEUR, ) Filed: May 19, 2015
MATTHEW VASSEUR, by and thru his )
Guardian ad Litem, ADAM VASSEUR, )
CHARLOTTE VASSEUR, )
JACKIE STRYDOM, )
ANDREA POSTELWAIT, )
SARITA VASSEUR, and )
MICHAEL VASSEUR, )
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY
Honorable William E. Hickle
CONCURRING
I concur. I write separately only to point out that the trial court’s interpretation
that the language of the Farm Policy is ambiguous is understandable. I believe the policy
is not as clearly written as it should be, but I cannot conclude that the drafting is
“ambiguous.”
Nancy Steffen Rahmeyer, J. - Concurring Opinion Author
1