# In the Missouri Court of Appeals

Eastern District DIVISION TWO
EXOTIC MOTORS , ) No. ED 108090 ) Appellant , ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) Honorable Stanley J. Wallach ZURICH AMERICAN INSURANCE CO. , ) ) Respondent

. ) FILED: March 10, 2020

Introduction Exotic Motors appeals from the motion court’s grant of summary judgment to Zurich American Insurance Company (“ Zurich ”) on Exotic Motors’s claim under the False Pretense Coverage clause of its insurance policy (the “Policy”). The False Pretense Coverage clause provid es an insured with coverage for “acquired" autos when the insured suffers a loss when “acquiring” an auto from a seller who lacked legal ti tle or authority to transfer ownership. Exotic Motors was a victim of a fraud. After paying a substantial sum to a third party to purchase an automobile, Exotic Motors n ever received possession of the purchased auto. Zurich
denied Exotic Motors’ s claim under the Policy on the grounds that Exotic Motors never obtained possession of the car, and therefore the car was not an “acquired” vehicle under the Policy. The
motion court agreed and granted summary judgment in favor of Zurich. In its sole point on

a ppeal, Exotic Motors maintains that the meaning of the term “acquire” under the Policy
include s a purchas e of a v ehicle , even though the purchaser never receiv es physical possession or2

legal title. T he motion court correctly found that Exotic Motors’ s cla im was not covered under the Policy because the plain and ordinary meaning of the term “acquire” requires the exercise of possession and control over the subject property . Because Exotic Motors never obtained possession or control over the car it attempte d to purchase , th e motion court properly granted summary judgment in favor of Zurich . Accordingly, we affirm the motion court’s judgment. Factual and Procedural History In July 2017, Exotic Motors attempted to purchase a 2015 Mercedes

- Benz SL63 AMG (the “V ehicle”) from an individual calling himself Robert Weir (“Weir”). Exotic Motors and
Weir negotiated the sale through emails and text messages. In these communications, Weir provided Exotic Motors with what he claimed was the Vehicle’s license plate inf ormation and certificate of title. Exotic Motors agreed to pu rchase the Vehicle for $90,100 and entered into a purchase agreement and bill of sale. 1 Exotic Motors then wired the $90,100 to Weir’ s bank
account and attempted to make arrangements to pick up the Vehicle. However, when Exotic Motors tried to contact Weir to finalize the details, Weir could not be reached. A criminal investigation revealed that Weir had been using an alias, never had legal title to the Vehicle, and that the Vehicle’s vehicle identification number (“ VIN ”) and license plate information belonged to third parties with no knowledge of Weir’s actions.
Exotic Motors made a claim for loss under its auto

- dealers Policy issued by Zurich , effective from February 1, 2017 through Februar y 1, 2018. The Policy’s False Pretense

1 The appellate record contains filings from the cross

- motions for summary judgment, including the Petition as an exhibit. However, Exotic Motors did not attach to the record on appeal evidence of its agreement with the seller. We will not consider evidence that is not in the record. Mo. R . Civ. P. Rule 81.12 (2020) ; United Fire & Cas. Co. v. Hall , 536 S.W.3d 738, 742 n.5 (Mo. App. S.D. 2017) (“[A] n exhibit omitted from the record on appeal ma y be treated by an appellate court either a s immaterial to the issues presented or as supp orting the judgment of the [motion] court. ”). Likewise, the record on appeal does not contain a complete copy of the Policy. The parties agree that our review is limited to the excerpted False Pretense Cover age provision of the Policy

. See Rule 81.12; United Fire & Cas. Co. , 536 S.W.3d at 742 n.5.3

Coverage includes the following provision under Section 1, Covered Autos Coverages, Paragraph F. Physical Damage Coverage : 1. The following is added: a. Any “auto” you have acquired is a covered “auto” under False Pretense Coverage. b. We will pay for “loss” to a covered “auto” under False Pretense Coverage caused by: (1) Your voluntary parting with evidence of title to or possession of the covered “auto”

. . . [.] (2) Your acquiring an “auto” from a seller who did not have legal title or authority to transfer ownership of that property. (3) The unauthorized retention (without intent to return) of a covered “auto” by: (a) Your customer . . . [.] (b) Any person to whom you furnish a covered “auto” for their regular use. (emphases added). Zurich denied coverage, stating that the loss was not covered because Exotic
Motors never “ acquired” the Vehicle. Exotic Motors subsequently brought suit against Zurich for breach of contract and vexatious refusal to pay. Exotic Motors moved for summary judgment, and Zurich cross - moved for summary judgment. Zurich provided the following two statements of uncontroverted facts in support of its motion for summary j udgment that coverage should be denied : (1) Exotic Motors never took or had physical possession over the subject auto, and (2) Exotic Motors never took or had legal title to the subject auto, as the prospective seller never had good title to give.
The moti on court granted summary judgment in favor of Zurich . In its final judgment,
the motion court found that the word “acquired” was not ambiguous . In reaching its decision,
the motion court relied on Shaffer v. Federated Mut. Ins. Co. , 903 S.W.2d 600 (Mo. A pp. S.D. 1995), in which false pretense coverage depending on a similarly

- worded policy ’s use of the word “acquiring” was denied on the basis of the insured dealership never havi ng acquired the
vehicles where the dealership paid a wholesaler for vehicles t hat were never delivered

. Shaffer4

interpreted the ordinary meaning of “acquire” using Webster’s Third New International Dictionary, which defined the term as “to come into possession, control, or power of disposal of, often by some uncertain or unspecifie d means.” Id. at 607. Shaffer therefore held that because the insured did not come to possess the vehicles, have control over them, or have the power to dispose of them, the insured never acquired the vehicles and was thus not afforded coverage
under the policy. Id. Relying on that Missouri precedent , the motion court determined that because Exotic Motors never gained possession or control over the Vehicle, Exotic Motors never “acquired” the Vehicle under the language of the Policy and thus its loss was not covered by the Policy’s False Pretense Coverage provision. Exotic Motors now appeals. Point on Appeal In its sole point on appeal, Exotic Motors argues the motion court erred in granting summary judgment in favor of Zurich because the term s “acquire d ” and “acquiring” in the Policy

are ambiguous and should be construed in favor of coverage.
Standard of Review We review a circuit court’s grant of summary judgment de novo. Swadley v. Shelter
Mut. Ins. Co. , 513 S.W.3d 355, 357 (Mo. banc 2017) (internal citation omitted) . Interpreting the terms of an insurance policy presents a question of law and is also reviewed de novo. Id.
Discussion Because the point on appeal alleges ambiguity in the terms of an insurance policy, we
must first determi ne whether the language of the policy is ambiguous. Allstate Ins. Co. v.
Ibrahim , 243 S.W.3d 452, 45 6

– 5 7 (Mo. App. E.D. 2007)

. Absent an explicit finding of ambiguity, we then proceed in deciding wh ether coverage exists when the p olicy language is given its plain and ordinary meaning. Id.5

“ An ambiguity exists when the contract language is duplicitous, indistinct, or uncertain, leaving its interpretation open to different constructions. ” Foremost Signature Ins. Co. v. Montgomery , 266 S.W.3d 868, 872 (M o. App. E.D. 2008) (citing Krombach v. Mayflower Ins.
Co. , 827 S.W.2d 208, 210 (Mo. banc 1992 ) ). “ The fact that a term remains undefined in a policy does not necessarily render it ambiguous [.]” Am. Family Mut. Ins. Co. v. Peck , 169 S.W.3d 563, 567 (Mo. App. W.D. 2005) (internal citations omitted)

. Similarly, “[t] he fact that the parties disagree as to the correct interpretation of insurance policy language does not render the policy ambiguous. ” Foremost Signature Ins. Co. , 266 S.W.3d at 873 ( citing She lter Mu t

. Ins. Co. v.
Ballew , 203 S.W.3d 789, 794 (Mo

. App. W.D. 2006) ). Further, “[a] court may not use its inventive powers to create an ambiguity where none e xists[.] ” Id. at 872 ( internal quotation omitted). Where an insurance policy’s terms are fou nd to be ambiguous, we construe the ambiguity against the insurer. Id. at 872 (citing Krombach , 827 S.W.2d at 210) ; see also Burns v. Smith , 303 S.W.3d 505, 509

– 10 (Mo. banc 2010) ( reviewing an exclusionary clause for ambiguity, which is strictly construed against the drafter). Where no ambiguity is found , we will enforce an insurance policy according to its terms , applying the plain and ordinary meaning as understood by lay persons buying insurance, “consistent with the reasonable expectations,

o bjecti ves, and intent of the parties.” Foremost Signature Ins. Co. , 266 S.W.3d at 871 ( internal
citation s omitted); see also Swadley , 513 S.W.3d at 357 (internal citation omitted )

. Here, Exotic Motors asserts that the term “acquire” in the Policy is ambi guous and should be construed in favor of coverage. The Policy provides that “[a] ny ‘auto’ you have acquired is a covered ‘auto’ under False Pretense Coverage. ” (emphasis added). The Policy further states that the Insurer “will pay for ‘loss’ to a covere d ‘auto’ under False Pretense Coverage caused b y . . . [y]our acquiring an ‘auto’ from a seller who did not have legal title or authority to transfer6

ownership of that property. ” (emphasis added). Exotic Motors argues that a reasonable meaning
of the term “ acquire ” includes “purchasing” and that by wiring the purchase money to the purported seller, Exotic Motors thereby “acquired” the Vehicle under the terms of the Policy.
Zurich contends, and the motion court agreed, that the plain meaning of “acquire” does not
encompass purchasi ng the Vehicle. Relying on Webster ’s definition of “ acquire ” and judicial precedent interpreting “acquire” in an automobile insurance policy under similar facts in Shaffer , the motion court found the unambiguous plain meaning of “acquire” is to come into possession, control, or power of disposal over. The motion court further found that Exotic Motors did not “acquire” the Vehicle because Exotic Motors never took physical or legal possession of the Vehicle, and thus the Vehicle was not a covered auto under the Policy.
In our de novo review , w e find the term “acquire” in the Policy to be un ambiguous. First,
as the motion court recognized, the alleged ambiguity of “acquire” within an automobile insurance policy’s false pretense coverage has been previously addressed by the So uthern District. In that case, interpreting a similarly

- worded policy provision , Southern District explained:
To enable plaintiffs to qualify for coverage under A.1.b., it was necessary for plaintiffs to sustain a loss to any auto that resul ted from plaintiffs’ “acquiring” the auto from a seller who did not have legal title. Webster’ s Third New In ternational Dictionary def ines “acquire” as follows: “ to come into possession, control, or power of disposal of, often by some uncertain or unspecified means.” Setting aside the matter of the [other vehicle claim] for a moment, plaintiffs did not acquire any of the other nine vehi cles listed on Exhibits 3 and 5. Plaintiffs did not come into possession of any of them . Indeed, there was no showing that any of them existed. At no time did plaintiffs control any of the nine vehicles. Plaintiffs did not have the power to dispose of any of the nine vehicles. The transactions between plaintiffs and [the seller] with respect to them were void and unlawful. Plaintiffs did not acquire from [the seller] any of those vehicles. They acquired only two pieces of paper, each purporting to li st five specific vehicles.7

This court holds that there was no coverage under A.1.a. because none of the [ten] vehic les was a “covered auto.” This court holds there was no coverage under A.1.b. with respect to nine of the [ten] vehicles, those other than the [other vehicle] , beca use plaintiffs did not “acquire” any of the nine vehicles.
Shaffer , 903 S.W.2d at 603, 60 7 ( denying coverage under an automobile insurance policy for a

“‘ loss’ to any ‘auto’ under False Pretense Coverage that results from your acq uiring the ‘auto’ from a seller who did not have legal title” ); 2 s ee also Frank Shoop, Inc. v. TIG Ins. Co. , 2007

- CA

- 000691

- MR, 2009 WL 874535, at *5 (Ky. App. Apr. 3, 2009) (citing Shaffer , 903 S.W.2d at 607) (analogizing to Shaffer and denying false pretense coverage under a similarly

- worded policy defini n g a covered auto as any acquired auto where the insured car dealer obtained financing for a sale with a broker who provided fraudulent vehicle information, failed to complete the s ale, and pocketed the dealer’s money). Shaffer offers relevant judicial precedent , yet b ecause “[a] term may be deemed ambiguous in the context of one insurance polic y, and not ambiguous in another[,] ” we nonetheless look beyond Shaffer to the current con text. Am. Family Mut. Ins. Co. , 169 S.W.3d at 568 (internal citation omitted)

. Here, the Policy refers both to “acquired” vehicles, which are considered covered automobiles under False Pretense Coverage, as well as to the triggering condition for the cla im made based on Exotic Motors’s “acquiring” the Vehicle from a seller who did not have legal title or authority to transfer ownership of that property. Exotic Motors maintains that because the
P olicy does not define the word “ acquire” then the word is ambiguous. However, the lack of a definition in the Policy for a given term does not mean the term is necessarily ambiguous. Id. at

2 The false pretense coverage provision in Shaffer relevant to the present case, A.1.b, applied to “any auto,” while here the Policy’s False Pretense Coverage appl ies to “acquired autos.” See Shaffer , 903 S.W.3d at 607. Shaffer also concluded there was no coverage under a different provision of false pretense coverage, A.1.a, because it only provided coverage for “covered ‘autos,’” defined as “owned autos; autos l eft with you on consignment for sale; autos which have been repossessed and ar e held by you for sale, storage or safekeeping.” Id.8

567 (internal citation omitted) . Nor may we create ambiguity where no ne exists. Foremost Signature Ins. Co. , 266 S.W.3d at 872

– 73 ( internal citation omitted) ; Family Mut. Ins. Co. , 169
S.W.3d at 567 (internal citation omitted)

. Instead, w e give undefined terms their pla i n and ordinary meanings. See Foremost Signature Ins. Co. , 266 S.W.3d at 871 ; see also Peter s v. Emp’rs Mut. Cas. Co. , 853 S.W.2d 300, 302 (Mo. banc 1993). As Exotic Motors notes, our inquiry is not to arrive at a technical meaning of “acquire”
but rather determine the ordinary meaning of the term . “ To determine the ordinary meaning of a

term [in an insurance policy] , this Court consults standard English language dictionaries. ” Farmland Indus., Inc. v. Republic Ins. Co. , 941 S.W.2d 505, 508 (Mo. banc 1997) (citing Peters , 853 S.W.2d at 303 , 303 n.2 ) ( other internal citations omitted). Although Exotic Motors disputes
the motion court’s reliance on the definitions in Webster’s Third New International Dictionar y and Black’s Law Dictionary, Eleventh Edition, courts do not favor “dictionary shopping” and we
do n ot find that Exotic Motors has justified overturning significant precedent and legal scholarship on the appropriateness of courts using these dictionaries to resolve question s of ambiguity. See id. (citing Peters , 853 S.W.2d at 303, 303 n.2 ) ( noting Peter s rejected an insurer’ s technical definition purportedly used within the insurance industry and instead a dopted
the definition from Webster’ s Third New International Dictionary and other standard English language dictionaries) ; s ee also State v. Stewart , 5 60 S.W.3d 531, 5 38 (Mo. banc 2018) ( Draper, J., dissenting) (discussing the Supreme Court of Missouri’s recognized use of both Black’s Law Dictionary and Webster’s Third New Inte rnational Dictionary from 1993 ); AAA Laundry & Linen Supply Co. v. Dir. of Revenue , 425 S.W.3d 126, 132 (Mo. banc 2014) (de scribing Webster’s Third as “ the institutional dictionary of choice ” of the Supreme Court of Missouri ); James J. Brudney & Lawrence Baum, Oasi s or Mirage: The Supreme Court’s Thirst for9

Dictionaries in the Re hnquist and Roberts Eras , 55 W M
. & M ARY L. R EV . 483, 529 (2013) (observing that Webster’s Third is the dictionary most often cited by Justices of the United States Supreme Court). Not only is the legal precedent extensive, but Webster’s Third New International Dictionary is especially well

- suited to the task of determining plain meaning. Specifically, l egal scholars have noted that, unlike some dictionaries that solely prescribe “correct” usage, Webster’s Third “take[s] a more descriptiv e approach, recounting actual usage, regardless of whether it is technically correct.” Hon. Jack L. Landau, An Introduction to Oregon Constitutional Interpretation , 55 W ILLAMETTE L. R EV
. 261, 280 (2019) (explaining the basis for
the Oregon Supreme Court’s preference for Webster’s Third in interpret ing ordinary meaning);
see also Thomas R. Lee & Stephen C. Mouritsen , Judging Ordinary Meaning , 127 Y ALE L.J. 788, 8 09 (2018) (noting Webster’s Third “expressly disavows any attempt to establish a ‘hierarchy of importance’ among different senses [of word meanings]”). Judicial reliance on a

non - technical dictionary like Webster’s offers reliability and replicability, tw o important criteria for ensuring fairness and predictability to litigants in the justice system . These cornerstones of reliability are lacking with internet searches for definitions, as advocated by Exotic Motors . T he top hit of an internet browser sear ch is problematic in that the substance of the search is always changing based on the time, location, and user search history, among other unknown criteria in the search engine’s black

- box algorithm. See Alice A. Wang, Googling for Meaning: Statutory
Inte rpretation in the Digital Age , 125 Y ALE L.J. F ORUM 267, 269, 279

– 80 (2016) ( acknowledging that some have raised concerns about courts interpreting plain meaning using

user - generated internet resources like Wikipedia or Urban Dictionary, which may “lack the necessary safeguards to prevent abuse” ); see also Lee & Mouritsen , 127 Y ALE L.J. at 812, 868

–10

69 ( criticizing courts interpreting plain meaning using Google’s search algorithms as unscientific in their inability to be replicated and also recognizing that “[t]he law puts limits on judicial analysis of matters that exceed the bounds of the briefing and record in a particular case” including, arguab ly, corpus linguistics research ). 3 Thus, we use Webster’s Third to delineate the

“ definitional possibilities ” 4 of the term at issue. See Farmland Indus., Inc. , 941 S.W.2d at 508

. Within the context of the Policy providing insurance for vehicles , the ordinary meaning of having “acquire d ” or “acquiring” a vehicle is not ambiguous. Webster’s Third defines “acquire ” as “to come into possession, con trol, or power of disposal of often by some uncertain or unspecified means[.]” W EBSTER ’ S T HIRD N EW I NTERNATIONA L D ICTIONARY OF THE E NGLISH L ANGUAGE U NABRIDGED 18 (2002). 5 We acknowledge that Exotic Motors is able to perform an internet and dictionary search and propose an alternative definition of “acquire” in which paying
for an item is sufficient to indicate the item was acquired . We reject, however, the proposition
that such usage is a common sense , rationale inte rpretation for “ acquire” in an automobile insurance policy or that the Policy language is ambiguous. 6 See Foremost Signature Ins. Co. ,

3 Exotic Motors ineffectively directs us to other sources that lack replicability or reliability, such as requesting that this Court “[s]imply Google” the term at issue and providing web addresses without permalinks or time and date attestations. For exampl e, “https://en.oxforddictionaries.com/definition/acquire” is not a reference to the Oxford English Dictionary but instead automatically redirects to lexico.com/definition/acquire, which errantly defines British rather than American usage. Even if we selec t the American English definition on the site, which here is the same, Lexico describes itself as a new collaboration between Dictionary.com and Oxford University Press

. Although Dictionary.com traces its roots to reputable publishers like Random House, A merican Heritage, and Harper Collins, it is an unpublished online dictionary. Exotic Motors does not persuasively argue how these sources introduce ambiguity nor why a court should rely on them. 4 Hon. Jack L. Landau, 55 W ILLAMETTE L. R EV

. at 280 ( noting dictionaries list “definitional possibilities”). 5 Webster’s second definition is “to come to have as a characteristic, attribute, trait, or ability often by sustained effort[.]” 6 W hile Exotic Motors maintains that “acquiring” could mean “purchasing” or “ buying,” the benefit of this comparison is not self

- explanatory and does not necessarily aid Exotic Motor s ’s argument , because the plain meaning of “purchase” or “buy” may similarly impl y a n exchange or completed transaction of paying money and obtaining something in return. See W EBSTER ’ S T HIRD 306, 1844 (listing among the definitions of “ purchase: ” to acquire (real estate) by any means oth er than descent or inheritance; to obtain (as merchandise) by paying money or its equivalent: buy for a price; to ob tain (something desired) by an outlay ( as of labor, danger, sacrifice); to constitute the means or medium for buying (something); and defining “ buy ” as “ to get possession or ownership of by giving or agreeing to give money in exchange : purchase ” )

.11

266 S.W.3d at 873 ( citing Shelter Mut. Ins. Co. , 203 S.W.3d at 794) (“T he fact that the parties disagree as to the corre ct interpretation of insurance policy language does not render the policy ambiguous. ”). We are not persuaded that “acquiring” a piece of personal property, like a vehicle, presents any confusion giving rise to ambiguity. A vehicle is neither virtual nor intangible, such as stake in a business enterprise or a trade secret. See, e.g. , Cent. Tr. & Inv. Co. v. Signalpoint Asset Mgmt., LLC , 422 S.W.3d 312, 3 22 (Mo. banc 2014) ( discussing acquisition
of knowledge of a trade secret involving a physical client list ). Unlike situations involving intangible concepts that may warrant a broader meaning of “acquire” in their particular contexts, here, the object of acquisition is a vehicle

— specifically, a 2015 Mercedes

- B enz SL63.
Webste r’s definition of “acquire” has been repeatedly used to determine its ordinary meaning not only for vehicles but also for other tangible things. See , e.g. , State ex rel. Broadway

- Wa shington
Assoc s . , Ltd. v. Manners , 186 S.W.3d 272, 275 (Mo. banc 2006) (cit ing M ERRIAM W EBSTER U NABRIDGED D ICTIONARY ( 3rd ed. ) ) (abrogated on other grounds) (using Webster’s definition of

“ acquire” to in terpret its undefined use in a statute concerning eminent domain ); State v. Estep , 552 S.W.3d 183, 185 (Mo. App. S.D. 2018) (citing State v. Myers , 386 S.W.3d 786, 794 (Mo. App. S.D. 2012) (en banc) (citing M ERRIAM

– W EBSTER ’ S C OLLEGIATE D ICTIONARY ( 11th ed. 2005)) ) (using Webster’s definition of “acquire” to interpret the meaning of “receives” in the criminal statute for receip t of stolen property). The understanding of an ordinary person of what it means to acquire a vehicle is to obtain physical or perhaps even legal possession of it

— how that possession came to be is the part that “acquire” leaves open, such as through theft. See Citizens Disc. & Inv. Corp. v. Wood , 435 S.W.2d 717, 721 (Mo. App. S.L.D. 1968) (implying theft where “[w] hat he said was that he to ok possession of it on that day [but] [o]ne may acquire possession of a motor vehicle by me ans other than that of purc hase”).12

Indeed, it is notable that Exotic Motors does not argue that “acquire” is ambiguous
because it could mean to receive either physical possession of or legal title to the Vehicle , because Missouri law does recognize a separation of those two concep ts. See , e.g. , Am. Econ.
Ins. v. Paul , 872 S.W.2d 4 96 , 499 (Mo. App. E.D. 1994) (holding that the insured was covered by the policy where the undefined t erm “acquire ownership” was given its ordinary meaning
such that the insured acquired ownership of the vehicle as well as insurable interest therein when
she got physical possession of the vehicle , even though the seller failed to notarize her sign ature when assigning the title); see also Hamilton Music, Inc. v. Gordon A. Gundaker Real Estate Co.,
Inc. , 666 S.W.2d 840, 843 (Mo. App. E.D. 1984) (internal quotation omitted) (using Black’s Law Dictionary in a real property case to determine that “acquire” “ does not necessarily mean that title has passed” as one can acquire phy sical possession before acquiring ownership of it ). Plainly, Exotic Motors does not point to the separation of legal title and physical possession as a source of ambiguity because the plain and ordinary meaning of “acquired” encompasses both , yet neither are availing to trigger coverage under the Policy because Exotic Motors concedes it
neither too k legal title to the Vehicle nor p hysically received the Vehicle

. Further, our determination that “acquire” is not ambiguous does not render the Policy’s
False Pretense Coverage meaningless. See Allstate Ins. Co. , 243 S.W.3d at 457 (internal citation omitted) (noting “ proper interpretation of insurance policies requires that we seek to harmonize all provisions of the policy and to avoid leaving some provisions without function or sense ”). For example, False P retense C overage under the Policy may apply where a dealer’ s customer drives away with a vehi cle during a test

- drive or , particularly relevant here, where the insured acquires physical possession but not le gal title to the vehicle. See Shaffer , 903 S.W.2d at 606 (discussing situations where false pretense coverage may exist differentiated from where the13

insured receives neither physical nor legal possession); s ee also, e. g. , Nudi Auto RV & Boat Sales, Inc. v. John Deere Ins. Co. , 7 65 N.E.2d 1163 , 116 5

– 6 6, 1169

– 72 ( Ill. App. 2002) (finding false pretense coverage existed under nearly identical policy language, which the parties agreed presented no ambiguity, where an auto dealer purchased and received physica l possession of vehicles from an auto broker who went out of business and never delivered the vehicles’ titles, which the auto dealer then had to procure from the auction house itself as the auto broker never
had the titles ); Heshion Motors, Inc. v. Trinity Universal Ins. Co. , 618 P.2d 327 , 330 ( Kan . App. 1980), judgment aff’d and modified , 625 P .2d 437 ( Kan. 1981) ( noting coverage may exist for
vehicles taken from an insured by means of false pretenses as long as the insured satisfie d the exclusionary clause by having had v alid title to

— or , as modified, being due to receive valid title
with in fifteen days of delivery of

— the covered auto prior to the loss ). Having determined that there is no ambiguity, we enforce the Policy according i ts terms using their plain and ordinary meanings as understood by l ay people buying automobile insurance, “consistent with the reasonable expectations, objecti ves, and intent of the parties.” Foremost Signature Ins. Co. , 266 S.W.3d at 871 (internal citatio n omitted)

. Here, the facts of the case underscore the need for Exotic Motors to have demonstrated possession or control over the Vehicle in order for the Vehicle to be a covered auto under the Policy. The summary - judgment
record reflects that all negotiations for the Vehicle were made through text, email, or other non

personal contact. The purported seller provided vehicle information to Exotic Motors that was connected to an unrelated third party’s vehicle, and ultimately Exoti c Motors cannot verify the
Vehicle as described and for which he seeks loss coverage ever existed

. 7 Critically, Exotic

7 We not e that although Exotic Motors is a retailer and wholesaler in the automotive industry who presumably routinely purchases automobile insurance, we employ the standard for a lay person’s understanding of purchasing automobile insurance

. See Foremost Signatur e Ins. Co. , 266 S.W.3d at 871

.14

Motors admits it had neither physical or legal possession of the Vehicle. Exotic Motors attempted to arrange transport of the Vehicle, which perhaps could have demonstrated control
over the Vehicle , but Exotic Motors was unable to do so

. Exotic Motors’s wiring payment to the purported seller and attempting to arrange for the Vehicle’s transport is not evidence that Exotic
Motors ever had possession, control, or the power over disposal of the Vehicle under the plain meaning of “acquire.” In denying coverage under the express terms of the Policy, we very much appreciate the
unfortunate series of events that led to Exotic Moto r s’s present ci rcumstances and financial loss

. Nevertheless, our determination of coverage under the Policy must be based on the express language of the Policy governing the claims between Exotic Motors and Zurich

. See Allstate
Ins. Co. , 243 S.W.3d at 457

. Accordingly, b ecause we find the Vehicle was not a covered auto under the unambiguous plain meaning of “acquire” in the Policy, we hold coverage was properly denied. Point denied

. Conclusion The judgment of the motion court is affirmed.

_____________________________________ KURT S. ODENWALD, Judge
Philip M. Hess, P.J., concurs . Lisa P. Page, J., dissents in a separate opinion

.

# In the Missouri Court of Appeals **Eastern District**

E XOTIC MOTORS, ) ) Appellant, ) ) vs. ) ) ZURICH AMERICAN INSURANCE CO. , ) ) Respondent. ) No. ED108090 Appeal f rom t he C ircuit C ourt of S t

. Louis C ounty Honorable Stanley J

. W allach

FILED: March 10, 2020
DI SSENT
I respectfully dissent. I would reverse the trial court’s grant of summary judgment in favor of Zurich American Insurance Company (“Zurich”) against Exotic Motors on their claim for False Pretense Coverage because the term “acqui ring ” as used in the insurance policy is ambiguous. Missouri courts, relying on the sound reasoning of Judge Learned Hand, apply the doc trine of contra proferentem more rigorously to insurance policies than other contracts,

r ecognizing the difference between the parties in their familiarity with the subject matter. Burns v. Smith , 303 S.W.3d 505, 512 (Mo. banc 2010) ( citing Gaunt v. John Hancock Mut. Life Ins.
Co. , 160 F.2d 599, 602 (2d Cir. 1947) (Hand, J.), followed in Krombach v. Mayflower Ins. Co., Ltd. , 827 S.W.2d 208, 211 (Mo. banc 1992)). Therefore, i t is well established that: [A]n insurance policy, being a contract designated to furnish protection, will, if reasonably possible, be construed so as to accomplish that object and not to defeat it. Hence, if the terms are susceptible of two possible interpretations and there is2 roo m for construction, provisions limiting, cutting down, or avoiding liability on the coverage made in the policy are construed most strongly against the insurer. Id

. (citing Farm Bureau Town and Country Ins. Co. of Mo. v. Schmidt , 751 S.W.2d 375, 376 (Mo. banc 1988)) (emphasis added)

. Moreover, “ a s the drafter, the insurer is in the better position to remove ambiguity from the contract. When there is an ambiguity, insureds are entitled to a resolution of that ambiguity consistent with their objective and reasonable expectations as to what coverage would be provided.” Id . (internal quotations omitted) (emphasis in original). The clause at issue specifically states Zurich “will pay for ‘loss’ to a covered ‘auto’ under False Pretense Coverage caused by: . . . [y]our acquiring an ‘auto’ from a seller who did not have legal title or authority to transfer ownership of that property.” The term “acquiring” is not defined in the policy. Exotic Motors claims the good faith purchase of the 2015 Mercedes SL63
AMG (“Mercedes”) constituted “acquiring” it for purposes of coverage under this clause. Zurich contends Exotic Motors never took “ legal or physical possession” of the Mercedes , thus it did not acquire the vehicle. A review of the False Pretense clause in the record before us reveals Zurich specifically used the term “possession ” in other provisions where it is necessary for coverage . However, Zurich did not expressly use either “ legal or physical possession” in this specific clause, yet asserts the court s should apply one term or the other to the ir policy. But, as the insurer, Zurich was in the better position to resolve any ambiguity by expre ssly so stating as set forth elsewhere within the False Pretense policy that possession was also required for this provision but chose not to do so. See Burns , 303 S.W.3d at 511 (insurer is in the better position to remove ambiguity from insurance contract).3 Instead, Zurich elected to use “acquire,” but did not define the term in the policy. In light of Zurich’s failure to expressly stat e “possession” was ne cessary for coverag e under the False Pretense clause , we look to well

- settled precedent which requir es our court to apply the meaning that would be attached by an ordinary person of average understanding in determining whether language is ambiguous. See Maher Bros., Inc. v. Quinn Pork, LLC , 512 S.W.3d 851, 856 (Mo. App. E.D. 2017) and Mendenhall v. Prop. & Cas. Ins. Co, of Hartford , 375 S.W.3d 90, 92 (Mo. banc 2012).
O ur court may consult dictionary definitions to ascertain the common meaning of a ter m if it is not defined in the policy

. See Maher Bros., Inc., 312 S.W.3d at 856

. However, in this matter the dictionary does not resolve

- but actually demonstrates

- the term’s ambiguity when applied to Zurich’s policy. See id

. Here, as the majority notes, Webster’s Third defines “acquire” as “to come into possession, control, or power of disposal of often by some uncertain or unspecified means[.]” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF
THE ENGLISH LANGUAGE UNABRIDGED 1 8 (2002). More specifically, Zurich’s own proffered application of this definition as “legal or physical possession” demonstrates the ambiguity in the False Pretense Coverage because the term “possession” itself is ambiguous, as illustrated by the potenti al for interpretation of the term to include either legal or physical possession, as a party may have legal possession of an item without physical possession and vice versa. In fact, the United States Supreme Court has unequivocally stated, “both in commo n speech and in legal terminology, there is no word more ambiguous in its meaning than possession.” Nat’l Safe Deposit Co. v. Stead , 232 U.S. 58, 67 (1914). As a result of Zurich’s failure to state “physical possession”

- which is exactly and specifically what the insurer is seeking

- requires us to add missing language to their policy, and4 this we cannot do. See Messina v. Shelter Ins. Co. , 585 S.W.3d 839, 845 (Mo. App. W.D. 2019) (“It is well settled that a court will not add language to an insurance policy .”). As the drafter of the policy, Zurich was in the better position to and should have resolve d ambiguity in its

contract. Burns , 303 S.W.3d at 512. When there is an ambiguity, an insured is entitled to resolution of the ambiguity consistent with their objective and reasonable expectations regarding
coverage. Id . (emphasis in original). Exotic Motors’ position that i t is entirely reasonable to conclu de an ordinary person of average understanding would believe the term “acquiring” includes coverage for the good faith purchase of an auto

- without actual physical possession of it

- when contracting specifically for False Pretense coverage is a more cred ible interpretation of the term

. Zurich’s reliance on Shaffer v. Federated Mut. Ins. Co. , 903 S.W.2d 600 (Mo. App. S.D. 1995) is misplaced because it was not necessary for th at court to conduct an ambiguity analysis of “acquiring,” and thus does not hold the term unambiguous , no r does it hold the term is equivalent to “physical possession.” However, the facts and circumstances in this matter mandate a legal analysis of the term “acquiring” as used in this particular False Pretense policy, which is ambiguous because it is subject to two possible interpretations. While the coverage at issue in Shaffer was similar to the language in this case, the facts are very different. In Shaffer , the insured had “ only two pieces of paper, each purporting to list five specific vehicles,” and “ there was no showing that any of them existed

. ” Id . at 607. The insurance company specifically declined coverage on the basis of the insured’s verbal agreement to purchase the vehicles because there were no “contracts or receipts” evidencing the purchase. Id . at 604. As a result, Shaffer merely states plaintiffs did not “come into possession” of any of the vehicles. Id. at 607

. Based on these facts, Shaffer holds the plaintiffs did not meet the5 dictionary definition of “acquire” for the vehicles in question without engaging in an analysis of whether the term was ambiguous

. Shaffer’s holding is appropriate to the particular circumstances and l anguage considered in that case; however, it would be a misinterpretation and misapplication of the Southern District’s decision to permanently preclude an analysis of the

t erm “acquire” by strictly applyin g such a narrow interpretation to every policy thereafter. See Am. Family Mut. Ins. Co. v. Peck , 169 S.W.3d 563, 568 (Mo. App. W.D. 2005) (“A term may be deemed ambiguous in the context of one insurance policy, and not amb iguous in another.”).
H ere , Exotic Motors effectively demonstrate d it “acquired” the Mercedes. T he trial

court ’s own judgment found as undisputed fact s that Exotic Motors was in possession of license plate information and a certificate of title for the Mercedes while negotiating a good faith sale of the Mercedes through a series of e

- mails and text messages , stating, “[t]he parties entered into a written Purchase Agreement and Bill of Sale dated July 25, 2017 .” Furthermore, t he trial court specifically found that based upon these documents, Exotic Motors wired money in anticipation of delivery of the Mercedes

. The identifying information , negotiation, sale contract , and the ultimate transfer of $90,100.00 for the purchase of the Mercedes constitute significa ntly more evidence t hat Exotic Motors “acq uired” the Mercedes than the two lists obtained by the insured
in Shaffer

. Moreover, these circumstances are signif ican tly distinguishable because t oday , unlike
1995 when Shaffer was decided , so many c ar sales are conducted via the internet

. These transactions seldom include physical possession until the conclusion of the purchase process, and are fraught with the peril of a fraudulent conveyance , which is exactly what Exotic Motors was seeking to insu re with this policy

. Zurich clearly did not take issue with offering such coverage to Exotic Motors and accepting the premiums paid for it. See Burns , 303 S.W.3d at 5136 (“Clearly Farmers did not find it absurd to offer such coverage and accept Mr. Smith’s premiums for it.”). T hus , it is disingenuous for Zurich to now contend this False Pretense coverage would not protect their insured without specific and unambiguous pol icy language excluding such transactions by expressly requiring “ physical possession

. ” In conclusion, t his case presents the exact scenario that any lay person of average understanding would s eek to insure against with such a policy. Moreover, as the drafter of the insurance contract, Zurich should have specified that physical possession was a requirement of the policy. Zurich failed to remove the ambiguity in its policy ; therefore, Exotic Motors was entitled to a resolution of th e ambiguity consistent with the reasonable and objective expectation of coverage pursuant to this policy

. See Burns , 303 S.W.3d at 512. Thus, I would construe the language in the False Pretense Coverage in favor of coverage and reverse the trial court’s grant of summary judgment in favor of Zurich and remand for entry of judgment in favor of Exotic
Motors

.

____________________________________ Lisa P. Page, Judge