JOHN MICHAEL BESHEARS, )

Individually, and as ) Personal Representative of the Estate of ) SUE ELLEN BESHEARS, ) ) Plaintiffs-Respondents, ) ) No. SD32903 v. ) Filed: 7-16-15 ) SHELTER MUTUAL INSURANCE ) COMPANY, ) ) Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Gregory Stremel, Associate Circuit Judge

AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS Shelter Mutual Insurance (Shelter) appeals from a judgment ordering it to pay an additional $100,000 in underinsured motorist (UIM) benefits to John Michael Beshears, individually, and as personal representative of the estate of Sue Ellen Beshears,

deceased. 1 This controversy arose because Shelter claimed th at it was entitled to reduce its limit of liability by the $100,000 recovered fr om the tortfeasor’s insurer. After the parties filed cross motions for summary judgment, t he trial court denied Shelter’s motion

1 Because John and Sue Ellen share the same surnam e, we will refer to them individually by their given names for clarity and c ollectively as the Beshears.2

and granted John’s motion. The court decided that Shelter owed additional UIM benefits due to an “inherent ambiguity” in its policy

. The material facts are not in dispute. On June 26, 2009, John was the driver and Sue Ellen was the passenger in their 2009 Toyota Ca mry. That vehicle was struck by a 1993 Lincoln Town Car driven by Bobby Thomas (Thoma s), who ran a stop sign. Thomas had a State Farm auto liability policy with limits of $50,000 per person and $100,000 per accident. As a result of the accident , Sue Ellen was killed and John sustained serious bodily injuries. The parties sti pulated that, for purposes of this litigation, the damages from John’s personal injury claim and Sue Ellen’s wrongful death claim each exceeded $300,000 and together exceeded $600,000. Following the accident,

John reached a settlement with Thomas that resulted in State Farm paying its $100,000 per accident policy limits ($50,000 for John’s pers onal injury claim and $50,000 for Sue Ellen’s wrongful death claim). At the time of the accident, the Beshears were insu red by a policy issued by Shelter, No. 24-1-4521635-5, which provides UIM cov erage. In pertinent part, the “Auto Policy Declarations” (the Declarations) state: “Un derinsured Motorist Cov A Limit $250,000 Per Person $500,000 Per Accident A-577.7- A $17.00.” The Endorsement states, in pertinent part:

MISSOURI UNDERINSURED MOTORIST ENDORSEMENT Endorsement Number Limits of Liability A-577.7-A Same as Coverage A Limits A-577.8-A $____Per Person, $____Per Accident (This coverage applies only when the endorsement nu mber and limits of liability are stated in the Declarations .)

INSURING AGREEMENT If: (a) an insured sustains bodily injury as a result o f an accident involving the use of an underinsured motor vehicle ; and3 (b) the owner or operator of that underinsured motor vehicle is legally obligated to pay some or all of the insured’s damages ,

we will pay the uncompensated damages , subject to the limit of our liability stated in this coverage. No insurance is provided under this coverage until settlements or payment of judgments have exhausted the limits of all liabi lity bonds and policies that apply to the insured’s damages

. ADDITIONAL AND REPLACEMENT DEFINITIONS USED IN THIS ENDORSEMENT As used in this coverage,

.... (3) Uncompensated damages means the portion of the damages that exceeds the total amount paid, or payable, to an insured by, or on behalf of, all persons legally obligated to pay those damages

.... LIMITS OF OUR

LIABILITY The limits of liability for this coverage are state d in the Declarations and are subject to the following limitations: .... (4) The limits are reduced by the amount paid, or p ayable, to the insured for damages by, or for, all persons who: (a) are legally liable for the bodily injury to that insured ; or (b) may be held legally liable for the bodily injury to that insured

. (Emphasis in original.) After State Farm paid the limits of Thomas’ liabil ity policy, John made a claim against Shelter for UIM coverage. Shelter paid $20 0,000 to John for his personal injury claim and $200,000 to John for Sue Ellen’s wrongful death claim. Shelter determined that $400,000 figure by reducing the stated $500,00 0 per accident limit to account for the $100,000 paid to John by State Farm. According to Shelter, subparagraph (4) of the limit of liability provision in the UIM Endorsement autho rizes that $100,000 set-off.4

Thereafter, John filed the underlying lawsuit agai nst Shelter. John claimed that he was entitled to recover the full $500,000 per accid ent policy limit for UIM coverage from Shelter. The parties filed cross-motions for summa ry judgment. John argued that the setoff provision in Shelter’s UIM Endorsement could no t be enforced due to ambiguities in the policy. The trial court granted John’s motion and denied S helter’s motion. The court determined that there was an “inherent ambiguity” i n Shelter’s policy, in that “the Declaration page of the policy clearly indicates th ere is underinsured motorist coverage of $250,000 per person/$500,000.00 per accident, wi th no language in the Declaration page indicating there would be any off-set.” The c ourt therefore ordered Shelter to pay the additional $100,000 in UIM benefits. This appe al followed. Summary judgment is appropriate when there is no ge nuine issue of material fact, and the moving party is entitled to judgment as a m atter of law. Rule 74.04(c); ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp

. , 854 S.W.2d 371, 381–82 (Mo. banc 1993). 2 The amount of UIM benefits provided by Shelter’s policy to John involves “the interpretation of an insurance policy , which is a question of law that [an appellate court] reviews de novo .” Karscig v. McConville , 303 S.W.3d 499, 502 (Mo. banc 2010); see Rutledge v. Bough , 399 S.W.3d 884, 886 (Mo. App. 2013). Shelter contends the trial court erred in declaring that the policy provided an additional $100,000 in UIM coverage because: The applicable UIM limit is $400,000, which Shelter has paid, in that the limit of liability stated in the Declarations for U IM Coverage is $500,000, and in that the policy clearly and unambiguously pr ovides for a reduction, or “setoff,” of the declared UIM coverage limit equ al to the amount paid by [liability insurer] to the Beshears.

2 All rule references are to Missouri Court Rules ( 2015). All statutory references are to RSMo (2000).5

To support this argument, Shelter cites our opinion s in Shelter Mut. Ins. Co. v. Straw , 334 S.W.3d 592 (Mo. App. 2011), and Lynch v. Shelter Mut. Ins. Co. , 325 S.W.3d 531 (Mo. App. 2010). Shelter’s argument fails because the set-off analysis used in these opinions has been overruled sub silentio by our Supreme Court’s later decision in

Manner v. Schiermeier , 393 S.W.3d 58 (Mo. banc 2013). 3 Manner’s American Family policies provided him wit h a total of $300,000 in UIM coverage. As an additional insured on his fath er’s American Standard policy, Manner also had an additional $100,000 of UIM cover age. Manner had $1,500,000 in total damages. He received $100,000 from the tortf easor’s insurer. Id . at 60-61. Each of

the insurers claimed it was entitled to reduce its UIM limits by the amount paid by the tortfeasor. Our Supreme Court held that “because [ Manner’s] unrecovered damages exceed the total liability limits of the stacked po licies, the insurers are not entitled to

offset the amount recovered from other tortfeasors against those liability limits.” Id . at

60. We set forth in full the discussion of that is sue from Manner : C. Offset is Not Permitted. Insurers assert that, because the limits of liabili ty provision in the policies’ underinsured motorist endorsement states that under insured motorist coverage will be reduced by a “payment made or amou nt payable by or on behalf of any person or organization which may be l egally liable, or under any collectible auto liability insurance, for loss caused by an accident with an underinsured motor vehicle,” the $100,000 that t he tortfeasor’s insurer paid should offset the amount [Manner] can recover under the underinsured motorist endorsement. The Court rejects this argument. The policy promise s to pay the listed limits of liability, not simply the listed limits o f liability reduced by the

3 After Lynch and Straw were decided by our district, the Western District reached the opposite conclusion about whether there was an ambiguity in Shelter’s policy concerning the UIM set-off provision. See Long v. Shelter Ins. Cos. , 351 S.W.3d 692, 702-05 (Mo. App. 2011); Wasson v. Shelter Mut. Ins. Co. , 358 S.W.3d 113, 121-26 (Mo. App. 2012). The analysis of the set-off issue in Long and Wasson is consistent with the rationale adopted by our Supreme Court in Manner

.6 amount paid by the tortfeasor. Insurers’ construct ion of the policy would permit the policy to promise to pay the full limits of liability and yet these limits never would be paid as the amount of liabili ty promised always would be reduced by the recovery from the other dri ver. 8

8 This is because, if the amount recoverable under t he insurance policy always is reduced by the amount co llected by the tortfeasor, an insured never could recover t he entire liability limit set out in the underinsured motoris t endorsement because, by definition, an underinsured motorist is someone who paid something toward the insured’s damages, although not enough to satisfy t hose damages nor enough to exceed the insured’s underins ured motorist limits.

As Ritchie noted, this conflict at best creates an ambiguity that must be resolved in favor of coverage up to the amount list ed in the limits of liability section if “after deducting the amounts a lready paid, damages equaling or exceeding those limits are still outsta nding.” Ritchie, 307 S.W.3d at 140. Here, [Manner’s] damages were $1.5 million. Reduci ng those damages by the $100,000 paid by the tortfeasor leaves a remain ing $1.4 million in damages, which far exceeds the $400,000 he can reco ver under the policies. The full limits of the limits of liabilit y, therefore, are recoverable.

Id . at 66. Manner

now controls the analysis of the set-off issue and is dispositive here. 4 As the trial court correctly determined, there is a n inherent ambiguity in the UIM coverage of Shelter’s policy for the reason explain ed in Manner . Because the parties stipulated that the damages for John’s personal inj ury claim and Sue Ellen’s wrongful death claim each exceeded $300,000, there is at lea st $100,000 in uncompensated damages that can be recovered from Shelter’s UIM co verage. Shelter’s point is denied. That being said, there is one other matter requiri ng our attention. As noted above, the trial court’s judgment ordered that $50,000 of Shelter’s UIM coverage be paid to John as personal representative of Sue Ellen’s estate. As Shelter correctly argues in its brief, the right to recover UIM benefits for Sue Ellen’s d eath accrues to the statutory

4 To the extent Lynch and Straw conflict with Manner , our opinions in those cases should no longer be followed.7

beneficiaries listed in § 537.080, rather than to h er estate. See Sullivan v. Carlisle , 851 S.W.2d 510, 513 (Mo. banc 1993). Therefore, the tr ial court’s judgment is affirmed as modified. We affirm that part of the judgment orde ring Shelter to pay $50,000 in UIM benefits to John for his personal injury claim. We affirm the trial court’s decision that Shelter must pay an additional $50,000 in UIM benef its for Sue Ellen’s wrongful death claim, but the judgment must be modified to pay tha t additional sum to John in his capacity as a representative of the class of person s entitled to recover for Sue Ellen’s wrongful death pursuant to § 537.080. The cause is remanded for entry of an amended judgment in conformity with this opinion.

JEFFREY W. BATES, P.J. – OPINION AUTHOR DON E. BURRELL, J. – CONCUR MARY W. SHEFFIELD, J. – CONCUR