In the 

Missouri Court of Appeals 

Western District

MENDOTA INSURANCE COMPANY,

Respondent,

v.

DIANE LAWSON, ET AL.,

Appellants.

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WD77483 Consolidated with 

WD77484

OPINION FILED: March 24, 2015

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Justine E. Del Muro, Judge

Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and 

Gary D. Witt, Judge

Diane Lawson ("Lawson") and Heather Burlingame ("Burlingame") appeal from 

the trial court's summary judgment rulings in favor of Mendota Insurance Company 

("Mendota") arising out of an action for wrongful death. In the proceedings below, based 

on stipulated facts, the trial court found that a personal automobile insurance policy 

between Lawson's deceased husband and Mendota was clear and unambiguous, that the 

policy was valid and enforceable, and that Mendota had no duty to defend or indemnify. 

The trial court thus denied Lawson's and Burlingame's motions for summary judgment, 

granted Mendota's motion for summary judgment, and granted Mendota's motion to 
2

dismiss Lawson's counter-claim. Lawson and Burlingame appeal these rulings. We 

affirm.

FACTUAL AND PROCEDURAL HISTORY

The key facts are stipulated by the parties. On June 3, 2012, Terry W. Lawson 

("Terry")1and Jeffery King ("King") were killed in an automobile accident when a 2001 

Chevrolet S-10 pickup truck (the "Chevrolet"), owned and operated by Terry, struck a 

ditch and overturned. Terry's wife, Lawson, is King's natural mother. She filed a 

wrongful death action against Terry's personal representative, Burlingame.2 Lawson 

alleged that Terry's negligent conduct caused King's wrongful death. Lawson obtained a 

judgment of more than three million dollars finding that Terry was negligent and that the 

negligence caused King's death.

Two automobiles, a 2005 Dodge Stratus (the "Dodge") and a 2006 Pontiac GT 

(the "Pontiac"), were listed in the declarations section of Lawson's policy with Mendota 

(the "Policy"). The Policy provided liability coverage of $25,000 per person and $50,000 

per occurrence for those two vehicles. Additionally, the Chevrolet was a declared vehicle 

in a separate policy that Terry held with Progressive Casualty Insurance Company 

("Progressive"). The parties settled regarding all matters concerning the Progressive 

policy, and Progressive is not part of this appeal. 

Mendota brought a declaratory judgment action seeking a declaration of its rights 

and obligations under the Policy. Inter alia, Mendota sought a judicial declaration that 

 

1 We refer to Terry by his first name to distinguish him from his wife, the named party. No disrespect or 

familiarity is intended.

2 Burlingame was substituted for Douglass F. Noland as Terry's personal representative. The substitution 

does not affect the merits of the case.
3

no liability coverage exists for any wrongful death claims, that the policy exclusions are 

valid and enforceable, that the policy exclusions apply to the facts of this case, that 

Mendota has no duty to defend the personal representative of Terry's estate, and that 

Mendota has no duty to indemnify the personal representative of Terry's estate. 

Lawson filed a counter-claim against Mendota under Section 379.2003for bad 

faith failure to defend Burlingame in the underlying action that led to the judgment of 

more than three million dollars because Mendota had agreed to defend Burlingame only 

under a reservation of rights. Lawson alleged that Mendota is obligated to indemnify 

Terry's personal representative under the policy for damages flowing from its breach of 

the duty to defend and provide coverage.4 

As noted above, Mendota, Lawson, and Burlingame each filed motions for 

summary judgment based on the stipulated facts and the terms of the Policy, and 

Mendota filed a motion to dismiss Lawson's counter-claim. The trial court granted 

Mendota's motion for summary judgment, overruled Lawson's and Burlingame's motions

for summary judgment, and dismissed Lawson's counter-claim. 

Pertinent Policy Language

The following provisions from the Policy are at issue:

 

3 All statutory references are to RSMo 2000 as currently supplemented unless otherwise indicated.

4 Trial court rulings on several additional pleadings in favor of Mendota are not part of this appeal: inter 

alia, Lawson filed a cross-claim against Burlingame for equitable garnishment as part of the same pleading as her 

counter-claim against Mendota. Burlingame filed an answer to Lawson's cross-claim for equitable garnishment and 

a counter-claim against Mendota for bad faith. Burlingame's counter-claim alleged inter alia that Mendota had had 

the opportunity to control and manage litigation surrounding the underlying accident, that it did not agree to defend 

or indemnify Burlingame, and that it wrongfully denied coverage and failed to settle Lawson's claims. Burlingame 

sought damages for the bad-faith denial of a defense without reservation and indemnity and for its bad-faith refusal 

to settle, actual damages, punitive damages, and costs.
4

DEFINITIONS

J. "Your covered auto" means:

1. Any vehicle shown in the Declarations.

2. A "newly acquired auto".5

* * * * 

LIABILITY

* * * *

INSURING AGREEMENT

A. We will pay damages for "bodily injury" (Coverage A) or "property 

damage" (Coverage B) for which any "insured" becomes legally 

responsible because of an auto accident. . . . 

* * * *

B. "Insured" as used in these coverages means:

1. You for the ownership, maintenance or use of any auto or 

"trailer".6

* * * *

 

5 This definition of "Your covered auto" is from the "Missouri Specialty Automobile Amendatory 

Endorsement - Personal Auto Policy," which is located after the body of the policy that contains the signatures of the 

"Secretary" and "President" of Mendota. The definition of "Your covered auto" in the main body of the Policy 

differs slightly as follows: "2. Any of the following types of vehicles on the date you become the owner: a. a 

private passenger auto; or b. a pickup or van." The parties raise no issue of ambiguity relating to the difference 

between the definition that is part of the main body of the policy and the definition in the "Missouri Specialty 

Automobile Amendatory Endorsement - Personal Auto Policy."

6 Again, this definition of "insured" is from the "Missouri Specialty Automobile Amendatory Endorsement 

- Personal Auto Policy." The definition of "Insured" in the main body of the Policy differs slightly as follows: 

"'Insured' as used in these coverages means: 1. You or any 'family member' for the ownership maintenance or use of 

any auto or 'trailer'". Again, the parties raise no issue of ambiguity relating to the difference between the definition 

that is part of the main body of the policy and the definition in the lengthy "Missouri Specialty Automobile 

Amendatory Endorsement - Personal Auto Policy."
5

EXCLUSIONS

* * * *

B. We do not provide Liability Coverages for the ownership, 

maintenance or use of:

2. Any vehicle, other than "your covered auto", which is:

a. owned by you; or

b. furnished or available for your regular use.

* * * *

OVERVIEW OF ISSUES

Lawson and Burlingame bring three points of error, the first two asserting that the 

trial court erred in finding the Policy valid and enforceable and granting summary 

judgment in favor of Mendota and denying Lawson's and Burlingame's motions for 

summary judgment and dismissing Lawson's counter-claim. In their first point, more 

specifically, the appellants argue that the Policy's owned-auto exclusion violates the 

Missouri Motor Vehicle Financial Responsibility Law ("MVFRL") because the Policy 

designates that coverage is granted with respect to the Chevrolet and because Section 

303.190.2 accordingly requires that the Policy provide coverage. In their second point, 

the appellants argue that the Policy is ambiguous because when the insuring agreement 

and the owned-auto exclusion are considered together, the Policy purports to provide 

coverage to the named insured for the use of any auto but then attempts to take away that 

coverage. In the third point, the appellants argue that the trial court erred in dismissing 

Lawson's counter-claim because it states a claim upon which relief can be granted. 
6

POINTS I and II

We address the issues out of order, first resolving the threshold matter of whether 

the Policy's insuring agreement in the Liability portion applies to this accident. We then 

address whether Exclusion B applies (Point II) and whether the MVFRL applies (Point I).

Standard of Review7

Our Supreme Court has set forth our standard for reviewing summary judgment 

rulings: 

Summary judgment is appropriate only when the moving party 

demonstrates that there is no genuine dispute as to the facts and that the 

facts as admitted show a legal right to judgment for the movant. The 

movant bears the burden of establishing both a legal right to judgment and 

the absence of any genuine issue of material fact required to support the 

claimed right to judgment. The propriety of summary judgment is purely 

an issue of law, and this Court's review is essentially de novo. As the trial 

court's judgment is founded on the record submitted and the law, an 

appellate court need not defer to the trial court's order granting summary 

judgment.

Bob DeGeorge Assoc.'s, Inc. v. Hawthorn Bank, 377 S.W.3d 592, 596 (Mo. banc 2012) 

(quoting ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 

380 (Mo. banc 1993)) (citations and internal quotation marks omitted). 

Additionally, the interpretation of an insurance policy is a question of law that we 

also determine de novo. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 

2007) (citations omitted); Blumer v. Auto. Club Inter-Ins. Exch., 340 S.W.3d 214, 218 

(Mo. App. W.D. 2011) (holding that where "resolution of the case involves the 

 

7 Although the general rule is that an order denying a motion for summary judgment is not appealable, this 

court can review such an order when the merits of the denied motion are "intertwined with the propriety of an 

appealable order granting summary judgment to another party." Eldridge v. Columbia Mut. Ins., 270 S.W.3d 423, 

425-26 (Mo. App. W.D. 2008). Here, the merits are intertwined and the denials of Lawson's and Burlingame's 

motions for summary judgment are properly before this court. 
7

interpretation of an insurance contract, we give no deference to the circuit court as 

contract interpretation is a question of law").

General Principles of Interpretation

Given that the issue is solely one of interpretation of an insurance policy, we note 

at the outset that "[w]e read a contract as a whole and determine the intent of the parties, 

giving effect to that intent by enforcing the contract as written." Thiemann v. Columbia 

Pub. Sch. Dist., 338 S.W.3d 835, 840 (Mo. App. W.D. 2011) (citation omitted). Put 

another way, "[w]e do not interpret insurance policy provisions in isolation but rather 

evaluate the policy in terms of a whole." Durbin v. Deitrick, 323 S.W.3d 122, 125 (Mo. 

App. W.D. 2010 (citing Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 

(Mo. banc 2009)).

In so doing, we give the language in an insurance contract its plain and ordinary 

meaning. Thiemann, 338 S.W.3d at 840 (citation omitted). "If, giving the language used 

its plain and ordinary meaning, the intent of the parties is clear and unambiguous, we 

cannot resort to rules of construction to interpret the contract." Id. Mere disagreement 

over the interpretation of the terms of a contract does not create an ambiguity. Id. In 

examining whether the language used in an insurance policy is ambiguous, the language 

is normally considered in the light in which it would normally be understood by the lay 

person who bought and paid for the policy. Blumer, 340 S.W.3d at 218 (citation 

omitted).

If the policy does not contain an ambiguity, the insurance contract will be enforced 

as written. Fanning v. Progressive N.w. Ins. Co., 412 S.W.3d 360, 364 (Mo. App. W.D. 
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2013) (citing Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379, 382 (Mo. 

banc 1991)). Where an ambiguity exists, we construe the policy language against the 

insurer. Blumer, 340 S.W.3d at 218 (citation omitted). "An ambiguity exists when there 

is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy." 

Seeck, 212 S.W.3d at 132. "This rule is especially applicable where insurance is first 

'granted' and is then followed by provisions limiting or avoiding liability." Rice v. Shelter 

Mut. Ins. Co., 301 S.W.3d 43, 47 (Mo. banc 2009) (citation omitted). When determining 

whether an ambiguity exists, "'[w]ords or phrases in an insurance contract must be 

interpreted by the court in the context of the policy as a whole and are not to be 

considered in isolation.'" Fanning, 412 S.W.3d at 364 (citing Miller v. Ho Kun Yun, 400 

S.W.3d 779, 784 (Mo. App. W.D. 2013)).

"To test whether the language used in the policy is ambiguous, the language is 

considered in the light in which it would normally be understood by the lay person who 

bought and paid for the policy." Fanning, 412 S.W.3d at 364 (citation omitted). We 

apply "the meaning which would be attached by an ordinary person of average 

understanding if purchasing insurance" and we resolve "ambiguities in favor of the 

insured." Id. (citing Seeck, 212 S.W.3d at 132). 

Ambiguities are construed in favor of the insured because:

(1) insurance is designed to furnish protection to the insured, not defeat it; 

ambiguous provisions of a policy designed to cut down, restrict, or limit 

insurance coverage already granted, or which introduce exceptions or 

exemptions, must be strictly construed against the insurer; and (2) as the 

drafter of the policy, the insurance company is in the better position to 

remove the ambiguity from the contract. 
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Fanning, 412 S.W.3d at 364 (citing Golden Rule Ins. Co. v. R.S., 368 S.W.3d 327, 

334 (Mo. App. W.D. 2012)).

Insuring Agreement

We first address whether the accident falls within the purview of the insuring 

agreement. The appellants argue that the Chevrolet meets the broad definition of "any 

auto," while Mendota argues that "coverage for liability in the [Chevrolet] is not afforded 

under the Mendota Policy because the [Chevrolet] is not listed on the Declarations; it 

does not qualify as a 'covered auto'" [sic]. 

"[T]he insured bears the burden of proving coverage under an insurance policy." 

Fischer v. First Am. Title Ins. Co., 388 S.W.3d 181, 187 (Mo. App. W.D. 2012) (citation 

omitted). However, "[i]n general, an insurance policy is a contract to afford protection to 

an insured and will be interpreted, if reasonably possible, to provide coverage." Shiddell 

v. Bar Plan Mut., 385 S.W.3d 478, 483 (Mo. App. W.D. 2012) (citation omitted). As 

noted above, the Policy's insuring agreement for Liability coverage states:

We will pay damages for "bodily injury" (Coverage A) or "property 

damage" (Coverage B) for which any "insured" becomes legally 

responsible because of an auto accident. . . . 

And

"Insured" as used in these coverages means:

1. You for the ownership, maintenance or use of any auto or "trailer" . . . 

(Emphasis added.)
10

Given that under the insuring agreement, Mendota provides liability coverage for 

the "insured's" use of "any auto," the only question in our initial determination of 

coverage is whether the Chevrolet fits the description of being "any auto." 

Even though "your covered auto" is defined in the policy, "any auto" is not a 

defined term in this policy. When "a policy does not define a term, a court is free to give 

the term a reasonable construction." Fischer, 388 S.W.3d at 187 (citation omitted). In 

the process, "the trial court must consider the whole document and the natural and 

ordinary meaning of the language." Id. (citation omitted).

Here, in according the Policy language its plain and ordinary meaning, one need 

not consult a dictionary to understand that a reasonable layperson would read "any auto" 

to include coverage of "any auto," which necessarily encompasses the Chevrolet. In so 

holding, we note that a determination that "any auto" means only the two vehicles listed 

on the declarations page would render superfluous or ambiguous the term "any vehicle" 

in Exclusion B. That exclusion states that there is no liability coverage for "Any vehicle, 

other than 'your covered auto' that is . . . owned by you . . . ." (emphasis added). If, as 

Mendota argues, there is no liability coverage for any vehicles aside from the Dodge and 

the Pontiac, there would be no need for that exclusion, and more specifically, no need for 

the term "any vehicle" to be included in that exclusion.8

 

8 The policy examined in Eldridge contained some of the some phrasing in its definition of "insured" as in 

the case at bar. 270 S.W.3d at 426-27. The expanded definition in Eldridge is a clear example of the insurer's intent 

to contrast the undefined term "any auto" with the defined term "your covered auto." The definition of "insured" in 

Eldridge was: 

1. You for the ownership, maintenance or use of any auto or "trailer". 

2. Any "family member":

a. Who does not own an auto, for the maintenance or use of any auto or "trailer". 

b. Who owns an auto, but only for the use of "your covered auto"
11

This plain and ordinary reading of the Policy language is additionally in accord 

with the industry's custom of providing coverage to occasional or incidental use of 

vehicles other than those listed on the declarations page. See Dutton v. Am. Family 

Mutual Ins. Co., No. SC 94075, 2015 WL 468715, *3 (Mo. banc Feb. 3, 2015) (quoting

State Farm Mut. Auto. Ins. Co. v. W. Cas. & Sur. Co., 477 S.W.2d 421, 424 (Mo. banc 

1972), which noted that the purpose of "non-owned auto" or "drive other cars" provisions 

is to cover occasional or incidental use of other cars without payment of additional 

premium but to exclude coverage for habitual use of other cars). See also Shelter Mut. 

Ins. Co. v. Sage, 273 S.W.3d 33, 39 (Mo. App. W.D. 2008). 

Given that an insurance policy is interpreted, if reasonably possible, to provide 

coverage, and in light of the insurance industry's custom of providing some liability 

coverage of vehicles not included in the declarations page, we hold that the coverage of 

the Chevrolet was within the purview of the insuring agreement in the liability portion of 

the Mendota policy. 

Exclusion B

Having determined that the Chevrolet was within the purview of the liability 

insuring agreement of the Policy, we turn to Exclusion B. The meat of the appellants' 

second point on appeal is that Exclusion B is ambiguous when read with the insuring 

 

3. Any person using "your covered auto"... 

4. ....

5. For any auto or "trailer", other than "your covered auto", any other person or organization 

but only with respect to legal responsibility for acts or omissions of you or any "family member" 

for whom coverage is afforded under this Part.

270 S.W.3d at 426-27 (emphases added).
12

agreement because the contract "purports to provide coverage to the named insured for 

the use of any auto but then attempts to take away that coverage" by means of the ownedauto exclusion.

Missouri strictly construes exclusionary clauses against the drafter. Manner v. 

Schiermeier, 393 S.W.3d 58, 62 (Mo. banc 2013) (citation omitted). "The burden of 

showing that an exclusion to coverage applies is on the insurer." Id. The Manner court 

explicitly noted in the context of a summary judgment, which is the procedural juncture 

we face here, that the "burden was on the insurers to prove" that an exclusion applied. Id. 

at 60. Additionally, "[i]n Missouri, this rule is more rigorously applied in insurance 

contracts than in other contracts." Fanning, 412 S.W.3d at 364 (citing Long v. Shelter 

Ins. Co., 351 S.W.3d 692, 696 (Mo. App. W.D. 2011)). 

As our Supreme Court recently reiterated, however, the 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). The court noted:

Insurance policies customarily include definitions that limit words used in 

granting coverage as well as exclusions that exclude from coverage 

otherwise covered risks. While a broad grant of coverage in one provision 

that is taken away by a more limited grant in another may be contradictory 

and inconsistent, the use of definitions and exclusions is not necessarily 

contradictory or inconsistent. . . . Definitions, exclusions, conditions and 

endorsements are necessary provisions in insurance policies. If they are 

clear and unambiguous within the context of the policy as a whole, they are 

enforceable.

Id. (citation omitted; emphasis added).

As reproduced above, Exclusion B states:
13

We do not provide Liability Coverages for the ownership, 

maintenance or use of:

2. Any vehicle, other than "your covered auto", which is:

a. owned by you; or

b. furnished or available for your regular use.

As noted above, the purpose of "non-owned auto" or "drive other cars" provisions 

is to cover occasional or incidental use of other cars without payment of additional 

premium but to exclude coverage for habitual use of other cars. Non-owner exclusions 

thus "protect an insurer from a situation where an insured could purchase one policy for a 

described vehicle and be covered by the same policy without qualification while 

operating any and all other automobiles under his control or available for his use." 

Allstate Ins. Co. v. Ibrahim, 243 S.W.3d 452, 457 (Mo. App. E.D. 2007) (citation 

omitted). 

Here, in examining the appellants' brief, we note that Lawson and Burlingame 

point to no words or phrasing in Exclusion B in arguing that it is ambiguous. Nor do they 

argue that the Chevrolet meets the Policy definition of "your covered auto" so as to fall 

outside of the reach of the exclusion. Rather, they argue broadly that the exclusion is 

ambiguous because it "attempts to take away the promised coverage with respect to 

vehicles owned by Terry Lawson or furnished or available for his regular use." Without 

any particular words or phrase to examine, we hold that Exclusion B clearly and 

unambiguously informs the policyholder that there is no coverage for any vehicle owned 

by the insured other than "your covered auto." 

Lawson's and Burlingame's second point is denied.
14

MVFRL

Lawson and Burlingame argue in their first point that the trial court erred in ruling 

in favor of Mendota because Exclusion B violates the MVFRL, which requires minimal 

coverage. The appellants rely on rationale recently rejected by our Supreme Court in

Dutton. The Dutton holding disposes of the appellants' arguments: where a policy clearly 

and unambiguously excludes coverage for the insured's use of an owned vehicle not 

designated as a covered vehicle in the policy, the MVFRL does not require the statutory 

minimal coverage. 2015 WL 468715, at *4.

This point is denied.

POINT III

In their third point on appeal, Lawson and Burlingame argue that the trial court 

erred in dismissing her counter-claim against Mendota because Lawson stated a claim 

upon which relief could be granted under Section 379.200. 

Standard of Review

We review a trial court's grant of a motion to dismiss de novo. Ward v. W. Cnty. 

Motor Co., 403 S.W.3d 82, 84 (Mo. banc 2013) (citation omitted). When we review "the 

dismissal of a petition for failure to state a claim, the facts contained in the petition are 

assumed true and construed in favor of the plaintiffs." Id. "If the petition sets forth any 

set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a 

claim." Id.
15

Discussion

In an action for equitable garnishment under Section 379.200, a plaintiff "stands in 

the shoes of the insured, and his rights are no greater and no less than the insured's would 

have been in an action between the insured and the insurer" on the policy. Carroll v. Mo. 

Intergov'l Risk Mgmt. Ass'n, 181 S.W.3d 123, 126 (Mo. App. W.D. 2005) (citations 

omitted). Having determined supra that the policy effectively excludes coverage of the 

Chevrolet, any argument for equitable garnishment must fail as well. See Payne v. 

Grinnell Mut. Reinsurance Co., 716 F.3d 487, 491 (8th Cir. 2013). 

This point is denied.

CONCLUSION

The judgment of the trial court is affirmed.

__________________________________

Gary D. Witt, Judge

All concur