missouri case law requires that the court review the entire policy to determine if there's two competing provisions in this case there are two competing provisions that must be analyzed so i'm going to briefly address while the court committed in error and secondly because this is the novo review analyzed those two provisions to help the court determine why there is an ambiguity at the trial court level both the all state and the appellant rice argued two provisions the definition of insured and the permissive use provision in appellant or unhappily all states arguments they argued in simultaneously order in their statement of facts the definition of insured and the definition of permissive use rice did the same thing in her argument the two statement of facts right back to back the definition of insured and the definition of permissive use allstate in their argument in summary judgment addressed the interplay between these two rice in her argument addressed the interplay between insured and permissive use unfortunately the definition there is no mention of this second provision which is the permissive use or the losses we will cover under cover jex of in fact reading from the court's opinion appendix page ninety nine as a result the definition of of state law that is not what missouri state law says you should do and not what was argued either by all state or rice so let's look at that ambiguity analyzing both of those  there's no dispute here coming from the rices that the driver of this vehicle mr reid was an insured person so this court would analyze the insured person deaf mission as a trial court you would find no coverage what i think was missing from the trial court's level with this court must do is analyze the second provision in relationship and so that we look at what the missouri case law says is first we must determine if there is any ambiguity and that ambiguity according to the missouri supreme court is if coverage is given in one place yet taken away in another look at the permissive use language that are you look them are you looking at bad in the excess purely for the umbrella policy and so that would lead me to if we look at what that premise of you says says we will cover that's the promise of giving coverage at the missouri supreme court is looking for we will cover read alan this is completely different because permissive use provision in alice in the liability policy and the insurer attempted to reach out and drag it into the and substituted here everybody agrees that understood would is the insured personal activities of the underwoods including permissive use of the land did all owned by the under well that's what we have here obviously permissive the use invokes a third party it makes no sense for this provision to be able to say under woodgate permissive used to the under why have wired to keep two words personal was the only issue that to be addressed the person like to video what we did argue was that you had to have a third party involved and as a permissive use and that's what we're arguing here and so that under missouri law if you give it in by all states paragraph twenty nine in their declaratory judgment appendix page five and six cited that specific provision rights cited that specific provision and was not addressed in fact ignored by the trial core some of the confusion that arises in this case was because at the case below there was argument presented by ms rice that the excess umbrella policy was a following policy that followed the the auto policy and it is not it is a stand alone policy that does not follow the terms of the auto policy as i got of the impression that we were the least for then again i don't see any preferred he did not discuss that in the opinion his self he did recognize that the court when analyzing an insurance contract must consider the entire policy and not just isolated while the joys of the law and all of us do that i want you all ri me and i mean the issue was raised just about errantly address for the district court to correct well my response is that the district court obviously determined that the language didn't alter the definition of the let's try to forget what the district or didn't think why hasn't the plain language of coverage actually help that along among the coverages provided for the insured person is liability resulting from the personal activity of giving someone else permission to use their vehicle well and that to me is what the plain language says what the plain language says your honor i believe when consider with the policy is the whole including the definition of who is liability resulting you know from an occurrence and so forth exactly all right in the personal activities that are covered clude liability resulting from the permissive use that is the use of a vehicle on by the insured person being operated by someone else with the insured person permission exactly and what that sensor is what they're saying is your honor is that the underwoods are protected from liability that arises from a language not of individual it's we're going to cover the occurrence arising that that's a term of art in insurance it is and it says arising only out of personal activities of an inch or which defines us as a personal liability policy rather than a business policy and it says that personal activities of the insurer will include claims arising out of permissive use of one of their vehicles for example  there is not going to be an argument in chorus saying hey you got sued because somebody else was driving your car not because you were driving your car that's not a person like to many of you will now what would you know you were by heavily on alan that's completely distinguish policies and that settlement was reached and miss rice received three hundred fifty thousand dollars the only issue here is does this personal umbrella policy provide additional are still your client your client paid on the deals with this with identical facts and nearly identical language is the all state vs hendrix case and that is a georgia case it is not a missouri case but that case dealt with identical facts to this situation and dealt with identical language with the only difference being that rather then the term permissive use that dealt that one included language regarding the lending a table and the lending of a vehicle language is simply more broad than permissive use a permissive user i can loan a vehicle to a and he is a permissive user but if he then in turn without my permission loans it to be of your argument are is that there would be no duty to defend here even though that would be precisely what the underwoods would be buying one for home personal protection which they would want from an excess power well now let's be clear are absolutely would be a duty to defend if the underwoods were the party that was being sued yes because the underwoods as the owner of the vehicle and the policy holder here have purchased this policy to protect them  who is at issue and there is no there is no coverage for that permissive driver because the language talks about that we will ensure the underwoods for claims arising out of permissive use of the curse well they played ability of the policy and again has to be analyzed not by pulling this clause out that has to be analyzed by the pulses the whole and obviously the parameters maximum during the policy period correct but that doesn't expand the definition of who will be covered by this policy that's the encourage that has to be made which says including the  well i believe my argument is the analysis of who actually is and insured under this policy is the is the definition of who is insured ambiguous by any other of engaging in activity which will lead lead to an accident and therefore the risk of long ability ok so so hold but but you're saying well yeah but they were really then that must be followed and there is no ambiguity in the definition of insured person again what this clause but by pulling it out and looking at it in isolation is directly contrary to the this sort of threat or somewhat counter to the proposition that insured person doesn't really mean shit person well no insured person doesn't mean insured person in this provision doesn't mean there is coverage for the for tie goes to the insured well my position of course would be that mr bose definition is not reasonable because what it is it requires this clause to be taken out of context of the other definitions that are seem to lean toward insurance coverage that is correct or going to and why isn't worst parts missing in this case that doesn't follow that most recently in jones eighty seven itself and again when this clause is measured as against the definition of who is actually insured under this policy then it is not ambiguous because it it does specifically state that it will cover occurrences arising out of the insured people's activities and that includes any claim against them for the permissive use of their vehicle because their personal activities would include per who when out and hurt somebody would you say this covers that if the underwoods were sued because of loaning that to a drunken teenager then absolutely because that would be a claim against the insurer there arose out of them granting permissive use of their vehicle ok but it would also recover the drunken teenager right i don't think the umbrella policy would bit but it's not a policy that that is required to protect permissive drivers as the outer policies are what this is this is something that the enter would spot protect them if they got sued out of their own activities and i understand that  is new and i was clearly this morning all that was clearly what we have here is two provisions that contradict each other and as was pointed out by code they absolutely do we believe they absolutely grant because here the word loss they say we will cover an occurrence the definition of occurrences they are we will cover that occurrence and that occur it should be covered under duty to defend and a duty to  as we cover under coverage xcel page four of the policy at dinham thirteen but i think if we follow the case law that was discussed in jones and other supreme court cases at the state of missouri if coverage granted in one place and taken away in the other just as we pointed out then that creates that ambiguity and the next question is what do we do with that ambiguity and i think that's what you're referring to the contra proffer into my argument is that if there's two possible interpretations then the tie goes to the person making the claim not the insurance company and what we have here is a beautiful argument about well it might cover negligent entrustment it might cover something else but we're could be all kinds of things and it's really for their protection not other people did and and here i think a reasonable insurer which is the question of missouri law would say we're seeking protection from any and all claims from any and all lawsuits we want broadest type of protection we're going out and buying more we want all the raindrops all right off let's take this case with one different fact the primary liability carrier was different and and the by the owners liability insured comes in the fans helps the fan there is that there is this three sixty seven five thirty seven point zero six five same part of this here's what i fear different what's what's missing out of that hypothetical if it's a nother company whatever company it's not a farm because state farm in this case oh my goodness we have liability oh my goodness are damages far exceed any amount of coverage last but they are a party to this insurance policy this says we will cover an occurrence and if you look at the definition of occurrence it's any accident it doesn't say that you got it you got an excellent case for access care was hendrix it's a different policy with different words interpreted under different was a different criteria i don't know i don't know if that was the same primary theory allstate had the primary there certainly makes a difference to the dynamics of the litigation but they are two different corporations two services a process two different shareholders agreement i'm sure there are that are in this case in this case allstate for the car insurance that it was is allstate and i'm just curious thing they ever heard of the accident was this lawsuit you'd say they're still coverage of the indemnity policy right i'm saying that is not what typically happens in a litigation like this but if that typically happened outside the bounds of something else they had no basis in the excess had no basis to be involved because as the insured the insured was there was no ensure there is no personal liability the insurer and the insured wasn't sued