## IN THE MISSOURI COUR T OF APPEALS WESTERN DISTRICT MONTE YAGER, JR. , Appellant ,

v. SHELTER GENERAL INSURANCE COMPANY and SHELTER MUTUAL INSURANCE COMPANY , Respondents . ) ) ) ) ) ) ) ) ) WD 77868
F ILED : May 5, 2015

Appeal from the Circuit Court of Clinton County The Honorable Richard B. Elliott , Judge Before Division Four: Alok Ahuja, C.J., Joseph M. Ellis, J. , and Marco A. Roldan, Sp. J. Monte Yager , Jr., was injured in a 2011 motor vehicle accident. He r eceiv ed partial compensation for his injuries from an insurance policy covering the car that struck his motorcycle

. Yager t he n filed an equitable garnishment action , seeking additional insurance coverage under policies which insur ed other vehicles owned by the ca r driver ’s family . The circuit court concluded that there was no coverage under the other policies. Yager appeals. We affirm.2 Factual Background On August 27, 20 11 , Skyl a r Trail struck Yager while driving in Clinton County. Skylar 1 was driving a 1994 Honda Civic owned by her parents, Melvin and Tina Trail. Yager was riding a motorcycle.
T he Civic was insured by Shelter General Insurance Company . The Civic policy was subject to a $50,000 per

- person limit of liability for bodily injury claims

. Skyla r was named as an “additional listed insured” on the Civic policy ; her parents Melvin and Tina were listed as “named insureds

. ” Although Skylar did not own a vehicle, t he Trail family owned three other vehicles insured by Shelter: a 2000 Ford F

- 350, a 201 0 Kia Forte, and a 1998 Ford Mustang. 2 We refer to the policies insuring these other vehicles

– none of which were involved in the August 2011 accident

– as the “other Shelter policies.” As with the Civic policy, Melvin and Tina Trail are listed as “name d insureds” on each of the other Shelter policies , and Skyl a r Trail is listed as an “ additional listed insured ” o n each policy

. Yager and Shelter entered into an agreement pursuant to §§ 537.060 and 537.065, RSMo, under which Yager agreed not to seek recovery for his injuries from the Trails’ personal assets , but instead only to seek recovery from their insurance coverage

. The circuit court approved a stipulated judgment against Skylar Trail in favor of Yager. Shelter paid Yager $50,000 under the Ci vic policy , equal to the per

- person policy limit applicable to bodily injury claims. Shelter denied liability, however, under the other Shelter policies. Yager then filed an equitable

1 Skylar Trail and her parents share the same surname. To avoid confusion, we sometimes refer to the Trails by their first names. We intend no familiarity or disrespect.

2 The policies insuring the Honda Civic and Ford Mustang were issued by Shelter General Ins urance Company, while the policies insuring the Ford F

- 350 and Kia Forte were issued by Shelter Mutual Insurance Company. Both Shelter General and Shelter Mutual are respondents in this appeal. Because the issues presented do not require us to distinguis h between the two entities, we refer to the m collectively as “Shelter.”3

garnishment action pursuant to § 379.200 , RSMo against Shelter , seekin g further recover y under the other Shelter policies. Shelter filed a motion for summary judgment , which was denied. The parties la ter appeared before the circuit court for a bench trial. Yager tendered to the court a joint stipulation of facts, and cop ies of the four Shelter insurance policies. Neither party presented additional evidence. The circuit court ’s judgment concluded that Yager “was not entitled to receive bodily injury liability coverage under any of the Othe r Shelter Policies because Skyla r Trail did not meet the definition of an ‘insured ’ under the Other Shelter Policies.” The court concluded that Skylar was not entitled to coverage under the other Shelter policies because at the time of the accident she was not operating the “described a uto” listed in any of the other Shelter policies; nor was she driving a “non

- owned auto.” Yager appeals. Analysis Yager argues that the other Shelter policies each provide coverage for the August 2011 accident in which he was injured, and that the limits o f the other Shelter policies should be “stacked” to provide coverage equal to the policies’ combined per

- person limits of liability for bodily injury claims

. Resolution of this appeal requires us to interpret the language of the other Shelter policies in light of the facts to which the parties stipulated in the circuit court. This presents solely a question of law, which we review de novo

. “When a case is tried on stipulated facts, the only issue we review on appeal is whether the tri al court reached the proper legal conclusions from the stipulated facts.” City of St. John v. Brockus , 434 S.W.3d 90, 93 (Mo. App. E.D. 2014) (citation and internal quotation marks omitted); accord , Dry v. United Fire & Cas. Co. , 420 S.W.3d 593, 594 (Mo. App. S.D. 2013).4

Similarly, “ [w] here

. . . resolution of the case involves the interpretation of an insurance contract, we give no deference to the circuit court as contract interpretation is a question of law that we review de novo

. ” Blumer v. Auto. Club Inter

- Ins. Exch. , 340 S.W.3d 214, 218 (Mo. App. W.D. 2011) ; see also , e.g. , Taylor v. Bar Plan Mut. Ins. Co. , No. SC94250, 2015 WL 1094848,
at *2 (Mo. banc March 10, 2015) (“ Interpretation of an insurance policy and the determination of whether provisions are ambiguous are questions of law, subject to de novo review ”). In construing the terms of an insurance policy, this Court applies the meaning which would be attached by an ordinary person of average understanding if purchasing insurance. The general rule in interpreting insurance contracts is to give the language of the policy its plain meaning. If language in an insurance policy is ambiguous, this Court resolves the ambig uity against the insurer

- drafter. An ambiguity exists only when a phrase is reasonably open to different constructions. Absent an ambiguity, however, Missouri appellate courts do not resort to canons of construction. If the policy ’ s language is unambiguo us, it must be enforced as written. In addition, courts may not unreasonably distort the language of a policy or exercise inventive powers for the purpose of creating an ambiguity where none exists. Definitions, exclusions, conditions, and endorsements a re necessary provisions in insurance policies. If they are clear and unambiguous within the context of the policy as a whole, they are enforceable. Allen v. Continental W. Ins. Co. , 436 S.W.3d 548, 553

- 54 (Mo. banc 2014) (citations and internal quotation marks omitted). The relevant terms of the other Shelter policies are identical. The insuring clause of each polic y provides that

Subject to the limits of our liability for [the bodily injury and property damage] coverages stated in the Declarations , we wi ll pay damages for an insured , if (a) that insured is legally obligated to pay those damages ; and (b) the accident that caused those damages arose out of the ownership or use of the described auto or a non - owned auto

.5

The bold

- faced terms are specifically defined in the policies. For purposes of the present dispute, the critical definitions are the definitions of an “insured,” the “described auto , ” and a “non

- owned auto.” Melvin and Tina Trail are listed as “named insureds” on each of the other Shelter pol icies, while Skylar is listed as an “additional listed insured” in each policy. Skylar falls within the policies’ definition of a “Category 2” insured. With respect to “Category 2,” the policy provides that “ [i] ndividuals listed in the Declarations as an ‘additional listed insured’
who do not own a motor vehicle . . . [¶] are insureds for claims resulting from their use of the described auto and non - owned autos

. ” Under both the insuring agreement and the definition of “Category 2” insureds, Skylar

w as entitled to coverage under the other Shelter policies for bodily

- injury liability arising out of her use of the “ described auto” or a “non

- owned auto.” The other Shelter policies define the

“ described auto” as “the vehicle described in the Declaration s , but only if a named insured

owns that vehicle.” Yager does not contend that the Civic which was involved in the accident

wa s a “described auto” under any of the other Shelter policies. The circuit court also concluded that the Civic was not a “non

- owne d auto” under the other Shelter policies. The policies define a “ non - owned auto ” as
any auto being used , maintained , or occupied with permission , other than: (a) the auto listed in the Declarations ; ( b) an auto owned by any insured or a resident of any insured’s household; or (c) an auto that you or any resident of your household has general consent to use . The Civic is unambiguously excluded from the definition of a “non

- owned auto” by
virtue of sub

- paragraph (b) of this definition. The Civic was in fact “owned by any insured”

–6

namely, by Skylar’s parents Melvin and Tina Trail. Although Skylar may be the relevant “insured” for purposes of obtaining coverage for the August 2011 accident , sub

- paragraph (b) plainly states that a vehicle is not a “non

- owned auto” if it is owned by “ any ” insured, not just by the insured seeking coverage. The word “any” is commonly used, and understood, by laypersons

. 3 Other cases recognize that a reference to “any insured” in a policy exclusion unambiguously def

eats coverage where one insured’s actions fall within the exclusion, even though a different insured is seeking policy coverage. See Am. Family Mut. Ins. Co. v. Copeland

- Williams , 941 S.W.2d 625, 628

- 30 (Mo. App. E.D. 1997); Am. Family Mut. Ins. Co. v.
Mo ore , 912 S.W.2d 531, 534

- 35 (Mo. App. W.D. 1995). A s used in the “non

- owned auto”
definition , the phrase “owned by any insured” unambiguous ly excludes coverage for liabilities arising from the use of a vehicle , if one or another of the several persons listed as an “insured” owns the vehicle in question , even though the vehicle owner is not the insured seeking coverage

. Even if we focus on Skylar as the relevant insured, sub

- paragraph (b) still excludes the Civic from the definition of a “non

- owned aut o .” Sub

- paragraph (b) provides that a vehicle is not a “non

- owned auto” if it is “ owned by . . . a resident of any insured’s household .” In this case, it is undisputed that Melvin and Tina Trail are residents of Skylar Trail’s household.
Because the Civ ic is “owned by a resident of [Skylar Trial]’s household,” it is excluded from the definition of a “non

- owned auto” for this additional reason. 4

3 The other Shelter policies provide that words which are not defined in the policies should be given “their common dictionary meaning.” The word “any” is defined as “one indifferent ly out of more than two,” “one or some indiscriminately of whatever kind”; the dictionary explains that “any” is “used as a function word esp[ecially] in interrogative and conditional expressions to indicate one that is not a particular or definite individ ual of the given category but whichever one chance may select.” W EBSTER ’ S T HIRD N EW I NT ’ L D ICTIONARY at 97 (1993 unabridged ed.).

4 The Civic would also be excluded from the definition of a “non

- owned auto” by virtue of sub

- paragraph (c) of the definition, if Skylar Trail had the “general consent to use” the Civic. The other Shelter policies define “general consent” to mean “the autho rization of the owner of an auto for another to use it on one or more occasions without the necessity of obtaining permission for each use
. General7

The Southern District found a very similar definition of a “non

- owned auto” to be “plain and unambiguous,” hold ing that there was “ no conflict between the definition of non

- owned automobile and the meaning which would reasonably be understood by the average lay person. ” Schuster v. Shelter Mut. Ins. Co. , 857 S.W.2d 381, 384 (Mo. App. S.D. 1993)

. 5 The Missouri Supr eme Court recently explained why auto liability insurance policies often exclude coverage for other vehicles owned by an insured: The purpose of the “drive other cars” provision in an automobile liability policy is to cover occasional or incidental use of other cards [sic] without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase in the premium. [¶] That is, one cannot simply buy a po licy of insurance on one vehicle and then argue that the policy covers other vehicles that the insured also owns but chose not to insure. The policy only provides coverage of owned cars that are insured under a policy as well as an insured’s operation of other cars so long as they are not owned and uninsured by the policy. Dutton v. Am. Family Mut. Ins. Co. , 454 S.W.3d 319 , 32 3 (Mo. banc 2015) (citation, emphasis, and internal quotation marks omitted); see also , e.g. , Shelter Mut. Ins. Co. v. Sage , 273 S.W.3d 33, 39 (Mo. App. W.D. 2008) (“ the purpose of the non

- owned automobile clause was to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude coverage for habitual use of other cars, which would in crease the risk on the insurance

consent can be expressed or implied.” Mysteriously, the parties did not develop evidence in the trial cour t concerning whether Skylar had “general consent” to use her parents’ Honda Civic.

5 The definition at issue in Shuster provided that Non
- owned auto means any auto other than (a) the described auto, or (b) an auto owned in whole or in part by, or furnished or available for regular use of, either you or any resident of your household. 857 S.W.2d at 384

.8

company without the corresponding increase in the premium

. ” ) (citations and internal quotation mark s omitted). 6 Yager argue s that it is contrary to the expectations of a reasonable insured to exclude the Civic from the cate gory of “non

- owned auto s ,” when the relevant insured

– Skylar Trial

– did
not own it (or any car, for that matter). Yager argues that excluding the Civic from the definition of a “non

- owned auto” is inconsistent with the other Shelter policies’ definition s of “own” and “owner,” both of which refer to the holding of legal title or a leasehold interest. Y ager argues that “by virtue of the definition of ‘owner,’ [Skylar] is not an owner of the Honda Civic because
she did not have title to it.” App. Br. at 1 6. Thus, Yager argues, there is an ambiguity, because “[n]o reasonable person buying insurance would ever believe they were not a non

- owner of an auto they did not own.” Id. We recognize that
t he fact that a definition is clear and unambiguous does not end the inquiry as to the existence of an ambiguity until the court has reviewed the “ whole policy ” to determine whether there is contradictory language that would cause confusion and ambiguity in t he mind of the average policy holder. Miller v. Ho Kun Yun, 400 S.W.3d 779 , 786 (Mo. App. W.D. 2013) (citations omitted). This is not a case, however, in which the policy as a whole injects ambiguity into the clear and unambiguous definition of a “non

- ow ned auto.” Yager is correct that, under the other Shelter policies’ definitions, Skylar Trail did not “own,” and was not the “owner” of, the Civic. But as we have explained above, the policies’

6 Yager argues that, if the “non

- owned auto” definition is read to exclude the Civic, “[i]t is difficult to imagi ne a vehicle that would meet Shelter’s definition.” Reply Br. at 5. To the contrary, however, examples of the incidental use of non

- owned vehicles which the other Shelter policies might cover “are easy to imagine: for example, the insured ’ s use of a ren tal car, or of a vehicle belonging to a friend, when the insured is traveling, when the insured ’ s vehicle is under repair, or when the insured requires greater passenger or cargo capacity for a special errand. ” Dutton v. Am. Family Mut. Ins. Co. , No. WD74 940, 2014 WL 211453, at *13 (Mo. App. W.D. 2014) (Ahuja, J., dissenting).9

definition of a “non

- owned auto” does not require that the in sured seeking coverage “own” the accident vehicle. Instead, the policies exclude a vehicle from the definition of a “non

- owned auto” if it is “ owned by any insured ,” or is “owned by a resident of any insured’s household.” Given that Skylar and other fami ly members are all insured together under the other Shelter policies, it would not be unexpected that a vehicle owned by any one of the m would be excluded from the definition of a “non

- owned auto”

– particularly when the unambiguous policy language
says ex actly that. To adopt the reading Yager advocates would require us to rely on the definitions of “own” and “owner,” yet ignore the definition of “non

- owned auto.” “T he entire policy and not just isolated provisions must be considered ,” however. Floyd

- Tun nell v. Shelter
Mut. Ins. Co. , 439 S.W.3d 215, 217 (Mo. banc 2014) (citing Allen, 436 S.W.3d at 554). Under Yager’s reading, the other Shelter policies would insure Skylar for liabilities arising from her use of any motor vehicle whatsoever. T hat is not what the policies say. Yager also relies on the Supreme Court’s decision in M anner v. Schiermeier , 393 S.W.3d 58 (Mo. banc 2013). Manner , however, does not aid Yager’s position. In Manner , Nathan iel
Manner was involved in an accident while riding a motorcycle. Id. at 60. At the time of the accident, Manner was in the process of purchasing the motorcycle from his uncle. Id. a t 62

. Although Manner drove and insured the motorcycle, his uncle retained the title. Id. Manner sought coverage for his injuries under the underinsured motor vehicle coverage of policies insuring three other motor vehicles. Id. at 60

- 61. The insurer denied coverage, asserting that the motorcycle was a vehicle “owned” by Manner, which was not specifically insured under the policies in question. Id. at 61. T he insure r argued that “possession of and an interest in the [ motorcycle ] sufficient to allow [Manner] to obtain an insurance policy on it” was sufficient to
constitute “ ownership, ” despite the fact that Manner “did not have title to the vehicle or other10

indicia or ownership of it.” Id. at 62. The Supreme Court disagreed , holding that Manner’s interest in the motorcycle did not unambiguously constitute “ownership” sufficient to tri gger the policies’ exclusions. Id. at 62

- 63.
Manner has no relevance to this case. In Manner , “[t] he insurer s chose not to define the term ‘ owned ’ in the policies , ” and the Court was therefore left to rely on the common understanding of “ownership.” Id. at 60, 62. The Court recognized that “ the insurance polici es at issue could have defined ‘ owned, ’ for purposes of the underinsured motorist endorsement , to include all those who have an insurable interest in the vehicle .” Id. at 62 (footnote omitted).
I n contrast to Manner , the terms “own” and “owner” are defined in the other Shelter policies, and no one disputes that, under those definitions, the Civic was “owned” by Skylar Trail’s parents. The issue in this case is not how “ownership” should be define d . I nstead , the issue here is whether Melvin and Tina Trail’s admitted “ownership” of the Civic exclude s if from the definition of a “non

- owned auto.” Manner does not address the critical issue in this

case. Yager also argues that the other Shelter pol icies’ “declarations page [s] promise [ ] coverage to Skylar Trail but do [ ] not in any way describe [ ] the limitations on that coverage that are present within the definition of ‘non

- owned auto.’” App. Br. at 20. A ccording to Yager, there is an ambiguity that must be resolved in his favor , “because the declarations page indicates coverage in one amount that [Shelter] tries to avoid paying based on provisions contained elsewhere in the policy.” Id. at 17. There are at least two critical flaws in this argument. First, an examination of the declarations pages of the other Shelter policies does not given any indication that the policies’ provide any coverage for vehicles other than the described auto s . We fa il to see how a11

reasonable insured reviewing the declarations pages of the other Shelter policies could conclude that the policies provided coverage for other vehicles owned by members of the Trail family; frankly, there is nothing on the declarations page s which would alert a reader that the policies provide coverage even for the use of “non

- owned autos.” Second, Yager is simply mistaken in arguing that the coverage summary provided on a policy’s declarations page can create an ambiguity when construed in connection with the policy’s actual terms. I t is true that “[i]f a contract promises something at one point and takes it away at another, there is an ambiguity

. ” Seeck v. Geico Gen. Ins. Co. , 212 S.W.3d 129, 133 (Mo. banc 2007). The Supreme Court has em phasiz ed, h owever, that “[i] nsurance policies are read as a whole, and the risk insured against is made up of both the general insuring agreement as well as the exclusions and definitions.” Dutton , 454 S.W.3d at 324 ( citation and internal quotation mark s omitted). In particular , the Court has stressed that “ policies ’ declarations pages do not grant any coverage. The declarations state the policy ’ s essential terms in an abbreviated form, and when the policy is read as a whole, it is clear that a reader mu st look elsewhere to determine the scope of coverage .” Floyd

- Tunnell , 439 S.W.3d at 221 (citations omitted )

. 7 In short, t he other Shelter policies unambiguously exclude coverage for liabilit ies arising from Skylar’s use of the Honda Civic owned by h er parents. Because there is no coverage for the August 2011 accident under the other Shelter policies, we need not address Yager’s separate argument that coverage under the policies should be “stacked” or aggregated. Dutton , 454 S.W.3d at 321 n.2 (where “ there is only one applicable policy,” “the stacking issue is

7 Yager contends that this Court’s decision in Fanning v. Progressive N orthwestern Ins urance Co. , 412 S.W.3d 360 (Mo. App. W.D. 2013), holds that an ambiguity may exist where covera ge is described more broadly on a policy’s declarations page than in the policy itself. Fanning must be construed consistently with the Supreme Court’s later decisions in Dutton and Floyd

- Tunnell , however.12

irrelevant”); Bush v. Shelter Mut. Ins. Co. , 412 S.W.3d 336, 341 (Mo. App. W.D. 2013) (“Before stacking can be an issue, there must first b e applicable coverages to stack ”). Conclusion We affirm the circuit court’s judgment

.

__________________________________ Alok Ahuja, Chief Judge All c oncur.