1 PROGRESSIVE PREFERRED ) INSURANCE COMPANY, ) ) Plaintiff-Respondent, ) ) v. ) N o. SD35929 ) JEFFREY MASON, ) Filed: September 10, 2019 ) Defendant-Appellant, ) ) and ) ) TERRY OZBORN and MATTHEW ) OZBORN, ) ) Defendants. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Mark A. Powell
AFFIRMED Jeffrey Mason (“Injured Party”) a ppeals the trial court’s entry of summary judgment in favor of Progressive Preferre d Insurance Company (“Progressi ve”) in a declaratory judgment action in which Injur ed Party sought an additional $50 ,000 in liability coverage from a Progressive automobile policy issued to Terry Ozborn (“T erry”) and Matthew Ozborn (“Matthew”), father and son. 1 Injured Party claims the policy affords Terry up to

1 Solely for the sake o f clarity, we refer to the Ozborns by the ir first names. No familiarity or disrespect is intended.2 $50,000 in additional liability covera ge for Terry’s permissive use of a vehicle he did not own – a Ford F150 (“the truck ”) owned by Matthew – based upon o perator’s liability coverage the policy provided to T erry for a vehicle Terry owned that was not involved in the accident. Because the policy at issue sati sfied the requirements of the M otor Vehicle Financial Responsibility Law (“MVFRL” 2 ), and the trial court corre ctly ruled that no additional liability coverage was availa ble due to the policy’s unambiguou s anti-stacking language, we must affirm.
The Uncontroverted Material Facts Injured Party was hurt in February 2015 (“the accident”) while assisting Terry and Matthew in moving a refrigerato r out of a storage unit and into the back of a trailer attached to the truck. When Terry and Matthew moved a desk to access th e refrigerator, slabs of concrete became dislodged and fell onto Injured Party. Injured Party claimed that the accident occurred due to the joint negligence of Terry and Matt hew and arose out of their use of the truck. Terry and Matthew were both named insureds in a single insuranc e policy issued by Progressive (“the Policy”), and t he Policy was in effect at the time of the accident. The Policy provided liability coverage for two vehicles: (1) the t ruck being used at the time of the accident titled in Matthew’ s name; and (2) a 1994 Saturn SL 2 4D (“the Saturn”) titled in Terry’s name that was not being us ed at the time of the acciden t. The Policy contained liability insurance lim its of $50,000 per person and $100,000 p er accident for bodily injury claims. The Policy also include d an anti-stac king provision th at limited Progressive’s liability to the bodily injury l iability limits for any single accident, regardless of the number

2 See sections 303.010 – 303.370. Unless otherwise noted, all statu tory citations are to RSMo 2016.3 of vehicles or persons covere d under the policy. Injured Party claimed that his injuries exceeded $100,000, and he sought payment for those injuries via the bodily injur y liability coverage provided by the Policy. In exchange for a “ PARTIAL RELEASE [,]” Progressive pa id Injured Party $50,000, which represented “the fu ll amount of one set of Bodil y Injury Liability limits under [the Policy],” with the unde rstanding that In jured Party could litigate or further negotiate his claim that he wa s entitled to a second set of bod ily injury liability limits under the Policy. Injured Party then filed a cross- petition for declaratory judgm ent 3 that alleged “he is entitled to recover the limits of $50,000 from the liability co verage for [Terry]’s liability on the coverage for the Saturn for [Injured Party]’s remaining cla ims for damages against [Terry].” Progressive denied that it owed any additional liabi lity coverage under the Policy beyond the $50,000 it had already pai d, contending that the Pol icy does not provide additional liability covera ge beyond its limit of $50,000 per p erson under the Policy’s antistacking provisions. The parties pr esented the issue to the tr ial court for its decision via competing motions for summary judgment. In Injured Party’s response t o Progressive’s motion, and in his own motion for summary judgment (“Injured Party ’s Motion for Summary Judgment” ), Injured Party denied that his claim involved any stack ing of liability coverages. R ather, Injured Party claimed that the first $50,000 paid by Pr ogressive was based upon the t ruck’s liability coverage and “he was entitled” to a second “set[] of each-person Progressive limits from [the Policy] on

3 Progressive had initiated the d eclaratory judgment case based upon a claim that Injured Party’s injuries did not arise out of the ownership, maintenance, or use of the truc k and were therefore excluded by the Policy. The parties eventually negotiated a resolution of the coverage issue, which resulted in Progressive tendering the $50,000 per person bodily-i njury liability limits to Injure d Party.4 the basis that [the Policy] provi ded excess coverage with respe ct to [Terry] as owner of [the Saturn] listed on [the Policy].” I n the alternative, Injured P arty argued that he was entitled to an additional $25,000 as the min imum required by the MVFRL f or the same reasons. 4 The trial court granted Progressi ve’s Motion for Summary Judgme nt and denied Injured Party’s Motion for Summary Judgment, declaring “[the Po licy] . . . does not owe a second set of $50,000 each-person liability limits for the bodi ly injury claim of [Injured Party] against [Terry] aris ing out of the February 23, 2015 acc ident.” The trial court further concluded that “the unambiguous a nti-stacking language in [the Policy] . . . applies, and the liability limits . . . do not stack.” Analysis Summary judgment is appropriate w hen there is no dispute as to the material facts and the movant has established a right to judgme nt as a matter of law. ITT Commercial Finance v. Mid–America Marine, 854 S.W.2d 371, 381–82 (Mo. banc 1993). In the present case, as the parties co ncede, there is no dispute as to the material f acts. Both issues involve only the interpretation of an insurance policy, which is a question of law that this Co urt reviews de novo. See McCormack Baron Manageme nt Services, Inc. v. American Guarantee & Liability Ins. Co., 989 S.W.2d 168, 171 (Mo. banc 1999). Karscig v. McConville , 303 S.W.3d 499, 502 (Mo. banc 2010).
Point 1 Injured Party’s first point claims [t]he trial court erred in gra nting summary judgment in favor o f Progressive based on the anti-st acking provision in [the Policy ], because the MVFRL requires all automobile l iability insurance policies issu ed in this state to provide owner’s coverage or operator’s c overage as def ined in Section 303.190 RSMo., in that [the Policy] herein provided bot h types of coverage and the undisputed mater ial facts establish as a matte r of law that [the Policy] provides an additional $50,000 excess limit under the operator’s coverage issued to Terry on his Sa turn for any claims against h im individually arising out of his permissive but negligent use of a vehicle he did

4 The trial court’s judgment did not explicitly address this alt ernative claim, but it was implicitly denied by its ruling in favor of Progressive’s claim that the $50,000 already paid was all that was due.5 not own, and thus [Injured Party] is not stacking, adding, comb ining[,] or multiplying the same type of coverage with itself. We disagree. Injured Party argues that, by c hoosing to combine what would ot herwise have been two separate policies – one for the truck and one for the Satur n – into a single insurance contract, Progressive “chose t o list both Matthew and Terry as named insureds and provided them both with owner’s coverage a nd operator’s coverage.” Inju red Party claims the operator’s coverage for Terry on t he Saturn “is a separate and distinctly different type of coverage from the protection Ter ry received under the [truck]’s owner’s coverage as a permissive user insured for his use of [the truck].” That argument fails to recognize that the Policy explicitly and unambiguously 5 restricts coverage for bodil y injury to a single $50,000 paymen t per person, per accident, regardless of the number of ins ureds or number of covered autos involved. In addition to listing Matthew and Terry as named insureds, the truck and the Saturn as covered autos, and a $50,000 per person/$100,000 per acciden t limit of liability to others for bodily injury, the pertinent Policy terms are as follows: Outline of general policy coverages
All limits listed below are s ubject to all terms, conditions, e xclusions and applicable reductions de scribed in the policy. General policy coverages appl y to all listed vehicles unless in dicated otherwise. With the exception of Uninsured Motorist coverage, no limit of liability shall be multiplied, added to itself, or combined or stacked with itself. The Uninsured Motorist coverage limit may be stacked w ith itself only to the extent required by law.

. . . . LIMITS OF LIABILITY

5 Injured Party does not claim that any language in the Policy i s ambiguous.6 Subject to the General Definitions, to all the terms, condition s, and limitations of Part VI – Duties In Case Of An Accident Or Loss, to all the ter ms, conditions, and limitations of Part VII – General Provisions, and to all the te rms, conditions, exclusions, limitations, and applic able reductions described in this Part I, the limit of liability shown on the declarations page for Liability Coverage is the most we will pay regardless of the number of:
1. policies issued by us ; 2. claims made; 3. covered autos ; 4. insured persons ; 5. lawsuits brought; 6. vehicles involved in the accident; or 7. premiums paid. In no event shall the limit of liability be multiplied, added t o itself, or combined or stacked with itself.
If your declarations page shows a split limit:
1. subject to the General Definitio ns, to all the terms, condition s, and limitations of Part VI – Duties In Case Of An Accident Or Loss, to all the ter ms, conditions, and limitations of Part VII – Gen eral Provisions, and to all th e terms, conditions, exclusions, limitations and applic able reductions described in this Part I, the amount shown for “each person” is the most we will pay for all damages due to bodily injury to one person resulting from any one accident;

. . . . The “each person” limit of liabil ity applies to the total of al l claims made for bodily injury to a person and all claims of others derived from such bodily injury [.]

. . . . An auto and attached trailer are considered one auto . Therefore, the lim its of liability will not be increased for an accident involving an auto that has an attached trailer

. Based upon these Policy provisions , the trial court correctly c oncluded that the “unambiguous anti-stacking la nguage in [the Policy] . . . appli es, and the liability limits under [the Policy] do not stack.”7 Injured Party nonetheless argues that the Policy contains two i nsuring agreements which provide both owner’s coverage and operator’s coverage for each Matthew and Terry and that Progressive “should not be able to deny the operator’s coverage protection it wrote for Terry as a named insured for the Saturn simply because Terr y is also provided protection as a permissive user of [the truc k] under Matthew’s owner’s cov erage.” Injured Party claims that [n]othing in either insuring agr eement plainly states nor even suggests that when there are two named insureds who are each jointly and severally liable for a single accident t hat they will not each remain ful ly insured for their individual liability sep arately and to the full extent of the stated limits of liability insurance coverage unde r both applicable insuring agr eements, which promise each named insured the protection of both operato r’s and owner’s policy coverage. The MVFRL includes provisions fo r two types of liability polici es, an owner’s policy or an ope rator’s policy, either of which will satisfy the requi rements of the MVFRL.
Wilson v. Traders Ins. Co. , 98 S.W.3d 608, 616 (Mo. App. S.D. 2003); section 303.190.1. Injured Party does not argue tha t the Policy fails to satisfy e ither of these requirements, rather, he incorrectly argues that, based upon its particular l anguage, the Policy must satisfy
both

. Even if the Policy language affo rded the “excess” liability cov erage Injured Party claims he is due, “excess insurance coverage is not subject to the minimum financial requirements of section 303.190[.]” American Standard Ins. Co. v. Hargrave , 34 S.W.3d 88, 92 (Mo. banc 2000); see also Wilson , 98 S.W.3d at 616; sec tion 303.190.7. Rather, “[t]he public policy of this state is satisfied when there is a n owner[’]s policy of liability insurance sufficient to meet the m inimum requirements of Missou ri’s financial responsibility law.” First Nat’l Ins. Co. of Am. v. Clark , 899 S.W.2d 520, 523 (Mo. banc8 1995). “What the MVFRL requires is that each valid owner’s or operator’s policy provide the minimum liability limits specified, $25,000 for bodily inju ry to or death of one person in any one accident and $50,000 for bodily injury to or death of t wo or more persons in any one accident.” Hargrave , 34 S.W.3d at 92 (emphasis added). And the $50,000/$100,000 provided in the Policy is twice the minimum liability coverage required by the MVFRL. The Karscig case Injured Party nearly exc lusively relies upon as supportin g his position is distinguishable. The S upreme Court of Missouri in Karscig “held that when there are two policies covering a single au tomobile, both an ow nership policy and an operator’s policy, anti-stacking pr ovisions contained in the po licies are void and both must pay the statutory minimum required by the MVFRL.” O’Rourke v. Esurance Ins. Co. , 325 S.W.3d 395, 398 (Mo. App. E .D. 2010) (citing Karscig , 303 S.W.3d at 501). But the Karscig decision was based upon the fact tha t the driver had a separat e operator’s policy that attempted to exclude coverage fo r injuries arising out of her u se of a vehicle she did not own – thereby failing to satisfy the M VFRL’s requirements for an op erator’s policy. Karscig , 303 S.W.3d at 504. As subsequent cases have recogn ized, the defining characteristi c of the Karscig case was that it involved two separate insurance policies , a situation not present here. Allstate Prop. & Cas. Ins. Co. v. Davis ex rel. Davis , 403 S.W.3d 714, 716–17 (Mo. App. W.D. 2013). Davis ’s observations in this regard are particularly relevant to the instant case. Conversely [to the facts in Karscig ], in the case presentl y at bar, there is no separate operator’s policy at issu e that would require Allstate to provide the minimum liability coverage under the MVFRL. Rather, this case involves a single policy issued to Simpson’s Parents under which Allstate has already provided the minimum liabilit y coverage for Appellant’s bodily injuries. Thus, the Court’s holding in Karscig places no obligation upon Allstate to provide additional liabil ity coverage to Simpson.9 Id. at 718. Here, as in Davis , there is no separate operator’s insurance policy that would r equire that separate policy to provide additional coverage under the M VFRL. See also O’Rourke , 325 S.W.3d at 398 (declining to extend Karscig to a situation where one policy covered two vehicles, only one of which was involved in the accident). Whi le Injured Party may be correct that the Policy at issu e is both an operator’s policy a nd an owner’s policy, 6 we need not decide that issue as it “is inconsequential in determining whether the policy should not be enforced as written as bei ng violative of the MVFRL.” State Farm Mut. Auto. Ins. Co.
v. Scheel , 973 S.W.2d 560, 567 (Mo. App. W.D. 1998). Because the Policy complies with the relevant owner’s pr ovisions in the MVFRL 7 – and Injured Party makes no argument otherwise – it need not also c omply with the MVFRL’s operator’s requirements. Clark , 899 S.W.2d at 523.
In Scheel , the Eastern District summari zed the issue as follows: Because we find the policy in question here is both an owner’s and operator’s policy and there is no challenge to any pr ovision as to its own er’s policy coverage as violating the MVFRL, then the fact that the policy’s exclusion for the unauthorized use of a non- owned vehicle may violate the MVFRL as to an operator’s policy only is inc onsequential in determining whether the policy should not be enforced as wr itten as being violative of the MVFRL. 973 S.W.2d at 567 (footnote omitted). See also Sisk v. American Family Mut. Ins. Co. , 860 S.W.2d 34, 35-36 (Mo. App. E.D. 1993) (noting that nothing in the MVFRL requires a policy to be both an owner’s and an operator’s policy); Shelter Mut. Ins. Co. v. Ridenhour , 936 S.W.2d 857, 858 (Mo. App. E.D. 1997) (finding that policy d id not violate MVFRL

6 The Court in Karscig stated that it did “not know of a situation in which a policy c an be both an owner’s and an operator’s policy[,]” 303 S.W.3d at 503 n.7, but our high co urt has also stated that “[m]any policies . . . contain provisions making them both an owner’s and an operator’ s policy.” Clark , 899 S.W.2d at 523. 7 The requirements for an owner’s policy are set forth in sectio n 303.190.2, and those applicable to an operator’s policy are contained in subsection .3 of that sectio n.10 where it met the requirements for an owner’s policy but not an operator’s, because, “[i]n order to comply with the MVFRL one must have a policy which is either an owner’s policy or an operator’s policy”). Injured Party contends that, under Karscig , he would be entitled to two liability payments if only these identical coverages at issue were contai ned in two separate policies, and therefore Progressive must not be allowed to escape its con tractual duties simply by combining the coverages into one policy. Even if the first por tion of that contention were correct (a question we need not de cide here), “[p]arties to an ‘insurance contract may agree to such terms and provisions as th ey see fit to adopt, subject only to the requirements that the contract is lawful and reasonable.’” Sisk , 860 S.W.2d at 36 (quoting American Family
Mut. Ins. Co. v. Ward , 789 S.W.2d 791, 795 (Mo. banc 1990)). Here, both Matthew and Terry and th eir respective vehicles were covered in a single insurance policy, the language of which prohibite d the stacking of liability coverage. While the result is not a desirable one for Injured Party under the u nique circumstances of the accident that occurred in this c ase, the contract is not unlawf ul, and we must therefore enforce its terms as written. Point 1 fails.
Point 2 Point 2 claims [t]he trial court erred in gr anting summary judgment in favor of Progressive based on the anti-st acking provision in Progressive ’s insurance policy, because the MVFRL requires all liability insurance poli cies issued in this state to provide at le ast $25,000 per person of bodily inj ury liability coverage on each vehicle it insures, in that even after Progres sive paid its primary coverage limit of $50,000 for [Matthew’s and Terry’s] j oint and several liability arising from th eir use of [the truck], Progre ssive still owes at least the MVFRL’s required m inimum liability limit of $25,000 a s excess11 operator’s coverage provided on Ter ry’s Saturn for any claims a gainst him individually arising out of his permissive but negligent use of a vehicle he did not own. As already noted, the MVFRL requi res that each “owner’s or oper ator’s policy provide the minimum liabil ity limits specified, $25,000 for bod ily injury to or death of one person in any one accident and $50,000 for bodily injury to or death of two or more persons in any one accident.” Hargrave , 34 S.W.3d at 92; section 303.190.1. As Injured Party concedes, he received $50,000 in bod ily injury liability paymen ts under the Policy, which insured both Matthew and Terr y. Having already received $50,00 0 -- more than the minimum amount required by the M VFRL -- and any additional paym ent for bodily injury being unambiguously excluded by the Policy, Injured Party is no t entitled to an additional $25,000. 8
Point 2 is denied.
Point 3 Point 3 claims the trial court erred in denying Injured Party’s Motion for Summary Judgment. Injured Party rightly acknowledges that “[t]he decis ion in this case is simply binary.” Having concluded that the trial court did not err in granting Progressive’s motion for summary judgment, Point 3 fails accordingly. The judgment of the trial court is affirmed. DON E. BURRELL, J. – OPINION AUTHOR DANIEL E. SCOTT, P.J. – CONCURS JEFFREY W. BATES, J. – CONCURS

8 Injured Party acknowledges that his arguments supporting Point 2 rely “on the same statutes, cases and logic as set forth in Point 1[.]”