ROY L. WISE, ) ) Plaintiff-Appellant, ) ) v. ) ) BRENT R. THORNHILL, ) No. SD33715 ) Filed: 12-31-15 Defendant, ) ) and SAVERS PROPERTY & CASUALTY ) INSURANCE CO., ) ) Defendant-Respondent. )
APPEAL FROM THE CIRCUIT C OURT OF LAWRENCE COUNTY Honorable Jack A. L. Goodman, Circuit Judge
AFFIRMED This appeal arises out of a lawsuit filed by Roy Wise (Wise) against Brent Thornhill (Thornhill) and Savers Property and Casualty Insurance Company (Savers) to recover damages resulting from a single-ve hicle accident. The first amended petition alleged that: (1) Thornhill’s negligent operatio n of a fire truck injured his co-employee, Wise; and (2) the uninsured motorist (UM) be nefits in Savers’ policy provided coverage for Wise’s damages. The trial court decide d Savers’ policy provide d no UM coverage for2 the accident. The court granted summary judgment to Savers, and the claim against Thornhill was voluntarily dismissed wit hout prejudice. This appeal followed. Wise argues that the trial court misapplied the law because Savers’ policy does provide UM coverage of his clai m. We disagree and affirm. Factual and Procedural Background Both parties agree that this case presents a question of law arising from the following undisputed facts. Thornhill and Wise were co-employee members of the Halltown Volunteer Fire Department (hereinaft er referred to as Employer). On June 7, 2011, Thornhill was driving a fire department truck in his capacity as a volunteer fireman, and co-employee Wise was a passenger in that vehicle. The truck ran off the road and overturned, causing se rious bodily injuries to Wise . The workers’ compensation insurer for Employer paid approxima tely $100,000 in benefits to Wise. At the time of the accident, the fire tr uck was insured via a business auto policy issued by Savers. Employer was named insured on the policy. Wise made a claim against the liability coverage of Employer’ s policy, which was denied by Savers based upon: (1) the Employee Indemnification and Employer’s Liability exclusion; (2) the Fellow Employee exclusion; (3) the Injury to Volunteer Firemen exclusion; and (4) the Emergency Services – Volunteer Firefight ers’ and Workers’ Injuries exclusion. 1 Wise then made a claim under the UM coverage of Employer’s policy. The coverage provision stated that Savers would pay all sums th e insured was legally entitled to recover as compensatory damages from th e owner or driver of an uninsured motor vehicle. In relevant part, the UM coverage defined an uninsured motor vehicle as one

1 There is no dispute that one or more of these provisions preclude Wise from the scope of the liability cove rage of Employer’s policy.3 “for which no ... policy ... provides at least the amounts required by the applicable law” or “[f]or which an insuring ... company denies coverage[.]” Wise and Savers each filed a motion for su mmary judgment. The trial court made the following ruling: [T]he relevant inquiry in this case to determine if uninsured motorist coverage shall be extended under the facts and policy at issue is whether the fire truck was insured, despite ex clusions of coverage under specific facts. In this case, although this insurance policy purchased by the [Employer] fire department did not provide coverage for [Wise’s] injuries sustained in the course of his service while the fire truck was driven by Defendant Thornhill, his fellow firefi ghter, coverage clearly existed for the fire truck. Therefore, this court, in accordance with Missouri law and precedent, must and hereby does de ny Plaintiff’s Motion for Summary Judgment ... and sustain DefendantSavers Motion for Summary Judgment on its Counterclaim. This appeal by Wise followed. Standard of Review Summary judgment is appropriate when ther e is no genuine issue of material fact, and the moving party is entitled to j udgment as a matter 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 Whether Savers’ policy provides UM coverage to Wise involves the interpretation of an insurance policy, which is a question of law that an appellate court reviews de novo

. Shelter Mut. Ins. Co. v. Bedell , 459 S.W.3d 524, 526-27 (Mo. App. 2015). Discussion and Decision Wise contends the trial court misapplie d the law by granting Savers’ motion for summary judgment. Wise argue s that, after Savers denied coverage, the fire truck met

2 All rule references are to Missouri Court Rules (2015). All statutor y references are to RSMo (2000) unle ss otherwise indicated.4 the policy’s definition of an uninsured motor vehicle. Wise relies upon Viessman v. Allstate Insurance Company , 825 S.W.2d 349 (Mo. App. 1992), to support his argument. Savers, on th e other hand, argues that Seymour v. Lakewood Hills Association , 927 S.W.2d 405 (Mo. App. 1996), is contro lling because: (1) it involved the same type of policy exclusions at issue here; (2) the policy in Seymourused identical language to define an uninsured motor vehicle; and (3) the Seymourcourt distinguished Viessman because that case involved a household ex clusion. We agree with Savers and affirm.
In Viessman , Mrs. Viessman was a passenge r in a car being driven by her husband. She was injured in a single-vehicle acc ident. The Viessmans’ insurer, Allstate, denied liability coverage based upon a household exclusion. 3 The definition of an uninsured motor vehicle in Allstate’s UM c overage included “a motor vehicle for which the insurer denies coverage[.]” Viessman , 825 S.W.2d at 350. A llstate denied Mrs. Viessman’s claim for UM coverage. On appeal, this district held that Mrs. Viessman was entitled to UM coverage becau se Allstate’s policy did not contain language excluding a vehicle insured under the liability coverage from the definition of an uninsured motor vehicle. Id . at 353.
In Seymour , Reliable Garbage Disposal, Inc. (Reliable) owned a garbage truck used in its business. Ohio Casualty issued an automobile insurance policy covering the garbage truck. The liability coverage of the policy contained a fellow employee exclusion. The UM coverage defined an unins ured motor vehicle to include one “[f]or

3 In Halpin v. American Family Mut. Ins. Co. , 823 S.W.2d 479 (Mo. banc 1992), household exclusions were partially invali dated, as contrary to public policy, up to the mandatory limits of automobile liabi lity insurance requ ired by § 303.190.2 RSMo (1986).5 which an insuring or bonding company denies coverage or becomes insolvent.” Seymour , 927 S.W.2d at 408. Seymour and Marchbanks were employees of Reliable. Seymour was injured when the garbage truck, being driven by co-employee Marchbanks, struck a tree. Ohio Casualty denied liabi lity coverage for Marchbanks. Seymour then claimed the denial of coverage entitled him to UM coverage because the garbage truck met the policy definition of an uninsured motor vehicle. The trial court determined that the garbage truck was not an uninsured motor vehicle, and Seymour appealed. Id . at 407-
08. The eastern district of this Court affi rmed the trial court’s judgment. The Seymourcourt first noted that, “[i]n determining what constitutes an uninsured motor vehicle, the focus is on the vehicle and no t whether the driver is uninsured under the circumstances of any particular accident. An uninsured motor vehicle is one which is not insured.” Id . at 408 (internal citation omitted). Because the garbage truck was insured by a liability policy at all relevant times, it was an insured vehicle “even though Seymour’s status as a fellow employee of Marchbanks prevents his recovery under the policy.” Id . The Seymour court also noted that the fe llow employee exclusion was authorized by § 303.190.5. 4 “[I]f we were to hold th at Seymour should fall within uninsured motorist coverage, the effectwould be to nullify the fellow employee exclusion from liability covera ge, giving the insured protecti on he did not bargain for.” Seymour , 927 S.W.2d at 408. The Seymour court distinguished Veissman for the following reasons:

4 In relevant part, this su bsection of the statute states that “[s]uch motor vehicle liability policy need not insu re any liability pursuant to any workers’ compensation law nor any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic, of the insured ....” Id

.6 Seymour maintains that because the Ohio Casualty policy, too, did not contain a specific exclusion for the ga rbage truck, following the reasoning of Viessman , the denial of coverage based on the fellow employee exclusion makes the truck an uninsured motor vehicle. While persuasive in the household exclusion situation wh ere recovery outside the policy is futile since it must inevitably come to the injured party from the resources of his own household, this result loses its ap peal in the cont ext of a fellow employee exclusion. The purpose underl ying this exclusion has been stated or recognized to be that of di stinguishing the employer’s liability to his employees from that of his liab ility to the general public, thereby relieving the employer of the oner ous requirement of insuring his employees under his public liability insurance policy, such employees being already protected by the worke r’s compensation statutes. As we noted above, the logical result of holdi ng that uninsured motorist benefits are applicable to Seymour would be to abrogate the fellow employee exclusion from the liability coverage of the policy. This would place a double burden on the employer and provide a double benefit to plaintiffs like Seymour. Such could not have been the intent of the legislature in enacting § 379.203, as § 303.190.5 expressly approves the fellow employee exclusion in liability polici es. Although the uninsured motorist provision of the policy here, as in Viessman , did not include a specific exclusion for the vehicle involve d, that omission cannot justify interpretation of the denial of covera ge clause so as to invalidate the agreement of the parties that fellow employees injured on the job are not covered by the policy. Requiring uninsured moto rist coverage in the household exclusion context may provide the only recovery possible for a party injured by the tor tious act of a family member. In the fellow employee exclusion situation, however, uninsured motorist benefits would merely provide double benefits and burdens. Seymour , 927 S.W.2d at 409 (internal citation omitted). We agree with that reasoning.
Because Seymour supports the trial co urt’s ruling here and Viessman is distinguishable, we deny Wise’s point and affirm the judgment.

JEFFREY W. BATES, J. – OPINION AUTHOR DANIEL E. SCOTT, P.J. – CONCUR MARY W. SHEFFIELD, C.J. – CONCUR