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 COURT 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-vehicle accident. The first amended petition 

alleged that: (1) Thornhill’s negligent operation of a fire truck injured his co-employee, 

Wise; and (2) the uninsured motorist (UM) benefits in Savers’ policy provided coverage 

for Wise’s damages. The trial court decided Savers’ policy provided no UM coverage for 
2 

the accident. The court granted summary judgment to Savers, and the claim against 

Thornhill was voluntarily dismissed without prejudice. This appeal followed. 

Wise argues that the trial court misapplied the law because Savers’ policy does 

provide UM coverage of his claim. 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 (hereinafter 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 serious bodily injuries to Wise. The workers’ compensation 

insurer for Employer paid approximately $100,000 in benefits to Wise. 

At the time of the accident, the fire truck 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 Firefighters’ 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 the insured was legally entitled 

to recover as compensatory damages from the 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 coverage 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 summary 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 exclusions 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 firefighter, coverage clearly existed for 

the fire truck. Therefore, this court, in accordance with Missouri law and 

precedent, must and hereby does deny Plaintiff’s Motion for Summary 

Judgment ... and sustain Defendant Savers Motion for Summary 

Judgment on its Counterclaim. 

This appeal by Wise followed. 

Standard of Review 

Summary judgment is appropriate when there is no genuine issue of material fact, 

and the moving party is entitled to judgment 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 misapplied the law by granting Savers’ motion for 

summary judgment. Wise argues that, after Savers denied coverage, the fire truck met 

 2

 All rule references are to Missouri Court Rules (2015). All statutory references 

are to RSMo (2000) unless 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 the other hand, argues that Seymour v. Lakewood Hills 

Association, 927 S.W.2d 405 (Mo. App. 1996), is controlling because: (1) it involved the 

same type of policy exclusions at issue here; (2) the policy in Seymour used identical 

language to define an uninsured motor vehicle; and (3) the Seymour court distinguished 

Viessman because that case involved a household exclusion. We agree with Savers and 

affirm. 

In Viessman, Mrs. Viessman was a passenger in a car being driven by her 

husband. She was injured in a single-vehicle accident. The Viessmans’ insurer, Allstate, 

denied liability coverage based upon a household exclusion.3

 The definition of an 

uninsured motor vehicle in Allstate’s UM coverage included “a motor vehicle for which 

the insurer denies coverage[.]” Viessman, 825 S.W.2d at 350. Allstate denied Mrs. 

Viessman’s claim for UM coverage. On appeal, this district held that Mrs. Viessman was 

entitled to UM coverage because 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 uninsured 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 invalidated, as contrary to public policy, up to 

the mandatory limits of automobile liability insurance required 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 liability 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 affirmed the trial court’s judgment. The 

Seymour court first noted that, “[i]n determining what constitutes an uninsured motor 

vehicle, the focus is on the vehicle and not 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 fellow employee exclusion was 

authorized by § 303.190.5.4

 “[I]f we were to hold that Seymour should fall within 

uninsured motorist coverage, the effect would be to nullify the fellow employee 

exclusion from liability coverage, giving the insured protection 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 subsection of the statute states that “[s]uch motor vehicle 

liability policy need not insure 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 garbage 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 where 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 appeal in the context of a fellow 

employee exclusion. The purpose underlying this exclusion has been 

stated or recognized to be that of distinguishing the employer’s liability to 

his employees from that of his liability to the general public, thereby 

relieving the employer of the onerous requirement of insuring his 

employees under his public liability insurance policy, such employees 

being already protected by the worker’s compensation statutes. As we 

noted above, the logical result of holding 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 policies. Although the uninsured motorist 

provision of the policy here, as in Viessman, did not include a specific 

exclusion for the vehicle involved, that omission cannot justify 

interpretation of the denial of coverage 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 motorist coverage in the 

household exclusion context may provide the only recovery possible for a 

party injured by the tortious 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 court’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