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Missouri Court of Appeals

Southern District

Division Two

VANESSA HARTWELL, )

 )

Appellant, )

 )

vs. ) No. SD36561

 )

AMERICAN FIDELITY ASSURANCE COMPANY, ) FILED: September 17, 2020

 )

Respondent. )

APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY

Honorable C. Wade Pierce, Judge

REVERSED AND REMANDED

Vanessa Hartwell (“Hartwell”) appeals the trial court’s judgment granting Rule 74.04 

summary judgment in favor of American Fidelity Assurance Company (“AFA”) on Hartwell’s

petition for breach of insurance contract (Count I) and vexatious refusal to pay an insurance 

claim (Count II).

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 In three points, Hartwell contends that the trial court erred in granting

summary judgment because (1) “the trial Court failed to construe a policy ambiguity against 

[AFA]”; (2) “ [AFA] did not state or support multiple elemental, material facts necessary for a 

proper summary judgment record under Rule 74.04(c)’s numbered-paragraphs-and-responses 

framework” and “a genuine issue of material fact exists”; and, (3) [Hartwell]’s Count II for 

vexatious refusal does not fail where [Hartwell]’s count for breach of contract does not fail.” 

 1 All Rule references are to Missouri Court Rules (2019). 
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Determining that Hartwell’s second and third points are meritorious, we reverse the trial court’s 

judgment and remand the case for further proceedings consistent with this opinion.

Factual and Procedural Background

The following background is undisputed. Hartwell was the holder of and an insured 

under an insurance policy issued by AFA (“the Policy”) that was in full force and effect for the 

dates at issue. Hartwell filed an insurance claim with AFA seeking the “Hospital Confinement 

Benefit” under the Policy for a period of hospitalization from June 11, 2018, through July 4, 

2018. AFA agreed with Hartwell that she was hospitalized at Saint Francis Medical Center 

(“SFMC”) from June 11, 2018, through June 19, 2018, and paid the benefits Hartwell claimed 

for those dates. It denied, however, that she was entitled to the Hospital Confinement Benefit for

the remainder of the days at issue, June 20, 2018, to July 4, 2018.

AFA’s answer to Hartwell’s petition contains the following affirmative allegations. The

Policy provides that eligibility for the Hospital Confinement Benefit requires that the insured be 

confined as a patient in a “Hospital” as defined within the Policy (“the Hospital definition”). 

Furthermore, the Hospital definition contains language excluding from that term an institution 

used by the insured as “a place for rehabilitation” or as “an extended care facility for the care of 

convalescent, rehabilitative or ambulatory patients.” With respect to the portion of Hartwell’s

claim for Hospital Confinement Benefits that it denied, AFA alleged,

Based on the information provided to AFA by [SFMC] on multiple occasions, 

[Hartwell] was inpatient from June 20, 2018 to July 4, 2018 at a rehabilitation 

facility located on the [SFMC] grounds and her stay during this time was used by 

her as “a place for rehabilitation” and/or “an extended care facility for the care of 

convalescent, rehabilitative or ambulatory patients.”

AFA filed a motion for summary judgment on both counts in Hartwell’s petition on the 

basis of its affirmative allegations that, for the period in which Hartwell is seeking benefits, she 
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was not confined as a patient in a Hospital. The trial court ultimately granted this motion and 

entered judgment accordingly.

Hartwell now timely appeals the trial court’s judgment in favor of AFA. Additional 

relevant facts are provided below, as we discuss Hartwell’s three points relied on.

Standard of Review

“The interpretation of an insurance policy, and the determination whether coverage and 

exclusion provisions are ambiguous, are questions of law that this Court reviews de novo.” 

Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010). “Where, as here, the trial court granted 

summary judgment, this Court also applies a de novo standard of review.” Id. This means we 

“give no deference to the trial court’s decision[,]” but rather “employ the same criteria the trial 

court should have used in deciding whether to grant the motion.” Haulers Ins. Co., Inc. v. 

Pounds, 272 S.W.3d 902, 904 (Mo. App. 2008) (internal citations omitted).

Discussion

Point 1 – The Hospital Definition is not Ambiguous

In her first point, Hartwell contends as follows:

The trial court erred in entering summary judgment in [AFA]’s favor on 

[Hartwell]’s breach of contract Count I because the trial Court failed to construe a 

policy ambiguity against [AFA] in that the [P]olicy gives then takes away a 

benefit where the [P]olicy benefit section promises payment in the event the 

insured is confined in a Hospital and charged room and board; one definition 

section of the [P]olicy provides for the hospital [Hartwell] was confined in to fit 

the definition of what “Hospital means” vesting the benefit; however, a 

subsequent definition section providing for what “Hospital shall not mean” 

attempts to take away the benefit if the very same hospital is used by the insured 

as “a place for rehabilitation.”

We disagree. 

“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, and 
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resolves ambiguities in favor of the insured.” Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 

132 (Mo. banc 2007) (internal quotation marks and citations omitted). “An ambiguity exists 

when there is duplicity, indistinctness, or uncertainty in the meaning of the language of the 

policy.” Id. (internal quotation marks omitted). If an “insurance clause appears to provide 

coverage but other clauses indicate that such coverage is not provided, then the policy is 

ambiguous, and the ambiguity will be resolved in favor of coverage for the insured.” Id. at 134. 

However, “[t]he mere presence of an exclusion does not render an insurance policy ambiguous.”

Floyd-Tunnell v. Shelter Mut. Ins. Co., 439 S.W.3d 215, 221 (Mo. banc 2014). “An insured 

cannot create an ambiguity by reading only a part of the policy and claiming that, read in 

isolation, that portion of the policy suggests a level of coverage greater than the policy actually 

provides when read as a whole.” Owners Ins. Co. v. Craig, 514 S.W.3d 614, 617 (Mo. banc 

2017).

With these principles in mind, we turn to the Hospital definition, which states, in toto: 

HOSPITAL means a licensed institution which: 

(a) has on its premises: 

(1) laboratory, X-ray equipment and operating rooms where major surgical 

operations maybe [sic] performed by licensed Physicians; 

(2) permanent and full-time facilities for the care of overnight resident bed 

patients under the supervision of a licensed Physician; 

(3) 24-hour-a-day nursing service by graduate registered nurses; and 

(4) the patient’s written history and medical records; 

or:

(b) is accredited by the Joint Commission on Accreditation of Hospitals.

The term Hospital shall not include an institution used by You as:

(a) a place for rehabilitation;
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(b) a place for rest or for the aged;

(c) a nursing or convalescent home;

(d) a long term nursing unit or geriatrics ward; or

(e) an extended care facility for the care of convalescent, rehabilitative or 

ambulatory patients.

(Emphasis added.)

Hartwell argues that, under the Hospital definition, an institution’s satisfaction of the first 

part of the definition (detailing inclusion criteria for a licensed institution), when first considered, 

provides coverage under the Policy’s Hospital Confinement Benefit, but that if that same 

institution also satisfies the second part of the definition (detailing exclusion criteria for 

institutions used by the insured in certain manners), when thereafter considered, then the second 

part takes away the coverage provided by the first part. This, according to Hartwell, without any 

citation to supporting authority, means that the definition is ambiguous. This argument is 

incorrect, however, because Hartwell reads the two parts of the Hospital definition in isolation, 

instead of reading them together as required. 

No duplicity, indistinctness, or uncertainty exists between the first and second parts of the 

Hospital definition. The first part is concerned with certain prescribed institutional 

characteristics and the second part is concerned with proscribed manners in which the insured 

used the institution. When read as a whole, see Owners Ins. Co., 514 S.W.3d at 617, it requires

that, in order to qualify for inclusion within the Hospital definition, a licensed institution must 

satisfy the definition’s first part but an institution is excluded from that term if it is used by the 

insured in any manner described in the definition’s second part. Thus, to an ordinary person of 

average understanding, an institution qualifies under the Hospital definition if it (1) satisfies the 

definition’s first part and (2) was not used by the insured in a manner proscribed in the second 
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part. The same person would also understand that, in a different context, an institution, although 

meeting the Hospital definition’s first part, does not qualify as a Hospital if it was used by an 

insured in a manner described and excluded by the second part. 

Where there is no ambiguity in an insurance policy, a court enforces the policy as written. 

Peters v. Employers Mut. Casualty. Co., 853 S.W.2d 300, 302 (Mo. banc.1993). Because there 

is no ambiguity in the Policy as alleged, Hartwell’s first point is denied. 

Point 2 – AFA Failed to Make a Prima Facie Showing of Right to Judgment on Count I

Having determined that the Hospital definition is not ambiguous, we next turn to 

Hartwell’s second point relating to the application of that definition to the summary judgment 

record. This point consists of two, separate arguments contending as follows: 

The trial court erred in entering summary judgment in [AFA]’s favor because 

[AFA] was not entitled to summary judgment in that [1] [AFA] did not state or 

support multiple elemental, material facts necessary for a proper summary 

judgment record under Rule 74.04(c)’s numbered-paragraphs-and-responses 

framework (thus not entitled to summary judgment as a matter of law) and [2] a 

genuine issue of material fact exists as to [Hartwell]’s usage of [SFMC].

(Emphasis added.)

“A summary judgment can only be granted if there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law.” Empire Dist. Elec. Co. v. 

Coverdell, 484 S.W.3d 1, 7 n.9 (Mo.App. 2015) (emphasis added) (internal quotation marks 

omitted). Here, Hartwell’s first argument is focused on the latter requirement—whether AFA 

was entitled to judgment as a matter of law. Hartwell essentially argues that AFA’s motion for 

summary judgment failed to make a prima facie showing of a right to judgment as a matter of 

law under the Hospital definition because its statement of uncontroverted material facts 

(“SUMF”) omitted the material fact that between June 20, 2018, through July 4, 2018, she used
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SFMC as either “a place for rehabilitation” or “an extended care facility for the care of 

convalescent, rehabilitative or ambulatory patients.” We agree. 

Summary judgment practice requires that the movant attach to the motion for summary 

judgment a SUMF that “state[s] with particularity in separately numbered paragraphs each 

material fact as to which movant claims there is no genuine issue, with specific references to the 

pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such 

facts.” Rule 74.04(c)(1). The following principles underscore the SUMF’s importance in 

summary judgment:

• Facts come into a summary judgment record only via Rule 74.04(c)’s numberedparagraphs-and-responses framework. 

• Courts determine and review summary judgment based on that Rule 74.04(c) 

record, not the whole trial court record. 

• Affidavits, exhibits, discovery, etc. generally play only a secondary role, and 

then only as cited to support Rule 74.04(c) numbered paragraphs or 

responses, since parties cannot cite or rely on facts outside the Rule 74.04(c) 

record. 

• To come full circle, “summary judgment rarely if ever lies, or can withstand 

appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) 

numbered paragraphs and responses alone.”

Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo.App. 2016) (footnote references 

omitted).

When the alleged uncontroverted material facts in a movant’s SUMF and accompanying 

supporting documentation establish the movant’s right to judgment as a matter of law, the 

movant has made a prima facie showing of a right to judgment under Rule 74.04(c)(1). See ITT 

Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 

1993). “Conversely, if a movant’s motion for summary judgment fails to make that Rule 

74.04(c)(1) prima facie showing of a right to judgment as a matter of law, any further inquiry 
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into the summary judgment record should end and the motion for summary judgment should be 

denied.” Columbia Mutual Insurance Company v. Heriford, 518 S.W.3d 234, 241 (Mo.App. 

2017) (citing ITT Commercial Fin. Corp., 854 S.W.2d at 381). Only when the movant has 

made a prima facie showing does “the burden shift[] to the non-movant to show that ‘one or 

more of the material facts shown by the movant to be above any genuine dispute is, in fact, 

genuinely disputed.’” Great Southern Bank v. Blue Chalk Construction, LLC, 497 S.W.3d 

825, 829 (Mo.App. 2016) (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 381). 

In support of its motion for summary judgment, AFA attached a SUMF containing ten 

numbered paragraphs. The factual allegations of those paragraphs are as follows: 

1. [Hartwell] made a claim for Hospital Confinement Benefits under Policy # 

325141402 (the “Policy”) regarding her confinement at facilities operated by 

[SFMC] from June 11 to July 4, 2018. 

2. Beginning June 11, [Hartwell] was confined at the [SFMC] Orthopedic 

Institute, until her discharge from that unit June 19, 2018. 

3. From June 20 to July 4, 2018, [Hartwell] was confined at the Inpatient 

Rehabilitation Facility [“IRF”]. 

4. SFMC’s [IRF] is a 24-bed unit dedicated to providing rehabilitation services. 

5. SFMC’s [IRF] is a distinct unit of SFMC with rooms located separately from 

other facilities or units at SFMC. 

6. [Hartwell] was admitted into the [IRF] “to participate in the rehabilitation 

program” and under “supervision by a rehabilitation physician.” 

7. The Policy provides that the Hospital Confinement Benefit will be paid if the 

policy holder is “confined as a patient in a Hospital due to an Accidental Injury or 

Sickness.” 

8. The Policy states that the term “Hospital” for purposes of the Policy does not 

include an institution used as “a place for rehabilitation” or “an extended care 

facility for the care of convalescent, rehabilitative or ambulatory patients.” 

9. Pursuant to the Policy, AFA paid all benefits owed to [Hartwell] for her 

confinement in the [SFMC] Orthopedic Institute from June 11 to June 19, 2018. 
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10. Pursuant to Sections 1 and 3 of the Policy, AFA paid Disability Benefits to 

[Hartwell] for her stay at the [IRF] from June 20, 2018 to July 4, 2018.[2]

(Specific references to supporting documents omitted.)

In Count I of her petition, Hartwell claims that she was entitled under the Policy to the 

Hospital Confinement Benefit for the period of June 20, 2018, through July 4, 2018. In 

attempting to refute this claim, paragraphs 3, 4, 5, and 6 of AFA’s SUMF allege that from June 

20, 2018, through July 4, 2018, Hartwell was confined in the IRF, which is described as “a 

distinct unit of SFMC” that is “dedicated to providing rehabilitation services[,]” and that she was 

“admitted” to the IRF “‘to participate in the rehabilitation program’ and under ‘supervision by a 

rehabilitation physician.’” In its SUMF paragraphs 7 and 8, AFA then references the Policy’s 

requirement that a Hospital Confinement Benefit requires that the insured be confined to a 

Hospital, the definition for which excludes “an institution used [by the insured] as ... “a place for 

rehabilitation ... or ... an extended care facility for the care of convalescent, rehabilitative or 

ambulatory patients.”

Even though AFA acknowledges in its SUMF paragraphs 7 and 8 the Policy’s 

exclusionary factual requirements in the Hospital definition, thereby conceding their materiality 

to its right to judgment based upon that definition, AFA nevertheless fails to state as an alleged 

material fact in its SUMF that Hartwell used SFMC in a manner proscribed in that definition. As 

Hartwell correctly asserts in her brief, AFA’s SUMF neither alleges nor addresses this 

requirement. SUMF paragraphs 3, 4, 5, and 6—at best—leave AFA to claim only a favorable

inference drawn therefrom that Hartwell used SFMC in a manner excluded by the Hospital 

definition. But, “in reviewing a motion for summary judgment, the opposite inference is 

 2 The Policy’s Schedule of Benefits provides that the Hospital Confinement Benefit is “2 times the Disability 

Benefit....” The Policy provides that the Hospital Confinement Benefit “will be paid in lieu of any other benefit 

payable under the Policy.”
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required: ‘the Court will review the record in the light most favorable to the party against whom 

judgment was entered.’” Rice v. Shelter Mut. Ins. Co., 595 S.W.3d 537, 542 (Mo.App. 2020) 

(quoting ITT, 854 S.W.2d at 376); see Harpagon MO, LLC v. Bosch, 370 S.W.3d 579, 582 

(Mo. banc 2012) (in reviewing grant of summary judgment “[a]ll reasonable inferences are 

drawn in favor of the non-movant.”).

AFA, in its brief, ignores and fails to address this deficiency in its SUMF. It focuses, 

instead, on the medical records that are referenced in the summary judgment record as 

supporting alleged material facts, asserting that

The undisputed facts here include both [SFMC] personnel’s descriptions of the 

[IRF] and medical records detailing the plaintiff’s actual use of the [IRF]. 

[Hartwell]’s care during her stay at the [IRF] is detailed in her Post Admission 

Evaluation. Upon admission into the [IRF], [Hartwell] was deemed “sufficiently 

stable to participate in the rehabilitation program.” [Hartwell] required 

“supervision by a rehabilitation physician” and participated in “an intensive 

rehabilitation program.” 

(Record citations omitted.) It then goes on to fault Hartwell for not providing “any medical 

records demonstrating that she received any care other than rehabilitation while confined at the 

[IRF].”

This argument misses the mark for two reasons. First, AFA is required to make a prima 

facie showing of a right to judgment as a matter of law based upon its asserted uncontroverted 

material facts in its Rule 74.04(c) numbered paragraphs in its SUMF. See Sloan v. Farm 

Bureau Town & Country Ins. Co. of Missouri, 601 S.W.3d 314, 319 (Mo.App. 2020); Rice, 

595 S.W.3d at 542; Heriford, 518 S.W.3d at 241 (citing ITT Commercial Fin. Corp., 854 

S.W.2d at 381); Jones, 508 S.W.3d at 161. Thus, any facts contained in the “Post Admission 

Evaluation” exhibit, to the extent those facts are not otherwise expressly stated in AFA’s SUMF,

are not relevant to our Rule 74.04 analysis as to whether AFA made a prima facie showing of a 

right to judgment. 
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Second, when, and only when, AFA makes the necessary prima facie showing of a right 

to judgment as a matter of law based upon its SUMF does the burden shift to Hartwell to show 

that one or more of AFA’s material facts are genuinely disputed. See Great Southern Bank, 497 

S.W.3d at 829. As such, any documents Hartwell may include or omit in her response to AFA’s 

SUMF are also not relevant at this stage of our Rule 74.04 analysis. 

In sum, AFA’s Rule 74.04(c)(1) numbered paragraphs in its SUMF fail to support a 

prima facie showing of AFA’s right to judgment as a matter of law under the Hospital definition. 

Because the trial court’s summary judgment was inappropriate for this reason alone, we need not 

address Hartwell’s second argument that a genuine issue of material fact exists as to the manner 

in which Hartwell used the IRF. Point 2 is granted. 

Point 3 – Reversal of Summary Judgment on Count I Requires Reversal on Count II

We finally turn to Hartwell’s third and final point, Hartwell contends:

The trial court erred in entering summary judgment in [AFA]’s favor on 

[Hartwell]’s Count II because [AFA] was not entitled to summary judgment as a 

matter of law in that at least one issue of material fact remains and [Hartwell]’s 

Count II for vexatious refusal does not fail where [Hartwell]’s count for breach of 

contract does not fail.

We agree.

Section 375.420 provides for a cause of action against an insurance company for 

vexatious refusal to pay.3

 Such a claim is derivative to a claim for breach of contract. See Alessi 

v. Mid-Century Insurance Company, Inc., 464 S.W.3d 529, 533 (Mo.App. 2015); Fischer v. 

First Am. Title Ins. Co., 388 S.W.3d 181, 191 (Mo.App. 2012). As in Alessi, “[h]aving held that 

summary judgment was inappropriate on the breach-of-contract claim, we likewise reverse the 

 3 All statutory references to section 375.420 are to RSMo (2016).
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trial court’s grant of summary judgment on the derivative vexatious-refusal-to-pay claim.” 464 

S.W.3d at 533. Point 3 is granted. 

Decision

The trial court’s judgment in favor of AFA is reversed, and the case is remanded for 

further proceedings consistent with this opinion.4

GARY W. LYNCH, J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCURS

MARY W. SHEFFIELD, J. – CONCURS

 4 Hartwell filed a motion for attorney’s fees on appeal, citing Merseal v. Farm Bureau Town & Country Ins. Co. of 

Mo., 396 S.W.3d 467, 475 (Mo. App. 2013), and Stark Liquidation Co. v. Florists’ Mut. Ins. Co., 243

S.W.3d 385, 402 (Mo. App. 2007), for the proposition that a finding of vexatious refusal to pay under section 

375.420 entitles a claimant to attorney’s fees on appeal upon the same ground as the trial court level. Here, 

however, there has yet been no finding of a vexatious refusal to pay. Accordingly, Hartwell’s motion for attorney’s 

fees is premature and is denied without prejudice.