MODIFIED

May 27, 2014

 

 

In the 

Missouri Court of Appeals 

Western District

JIMMIE LEE TAYLOR,

Appellant,

v.

THE BAR PLAN MUTUAL 

INSURANCE COMPANY, ET AL.,

Respondents.

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WD76380

OPINION FILED: April 29, 2014

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Sandra Midkiff, Judge

Before Special Division: Cynthia L. Martin, Presiding Judge, Gary D. Witt, Judge and 

Zel M. Fischer, Special Judge

This case involves the interpretation of an insurance contract providing coverage 

for legal malpractice. Appellant Jimmie Lee Taylor ("Taylor"), upon the advice of his 

now-disbarred attorney, made several loans to the law firm of the attorney and to a 

separate entity, which was also a client of the attorney. After both the attorney and the 

other entity defaulted on the loans, Taylor prevailed in a civil action against the attorney

for malpractice. In this subsequent equitable garnishment action, the attorney's insurer, 
2

Respondent The Bar Plan Mutual Insurance Company ("The Bar Plan"), was granted

summary judgment. Taylor appeals. We reverse.

FACTUAL AND PROCEDURAL HISTORY1

This matter arises from an attorney's representation of a client in the midst of 

numerous significant ethical breaches. The facts are not in dispute. In September 2006, 

Taylor, the trustee and sole beneficiary of the Jimmie Lee Taylor and Leilla V. Taylor 

Revocable Trust (the "Trust"),

2

retained James C. Wirken ("Wirken") of the Wirken Law 

Group as his attorney to handle certain legal claims regarding the management of the 

Trust. Wirken's legal representation continued into 2008 and included matters relating to 

estate planning and estate administration. Throughout the extended legal representation,

Taylor came to rely on the advice of Wirken.

Wirken was the 100 percent equity owner in the Wirken Law Group. Although he 

has since been disbarred, during all relevant times, Wirken was licensed to practice law in 

Missouri, and Wirken Law Group was a Missouri professional corporation engaged in the 

practice of law. The Bar Plan is an insurance company doing business in Missouri and 

sold Wirken and the Wirken Law Group their professional liability insurance.

The underlying dispute arose from two sets of loans made by Taylor (from the 

Trust) and facilitated by and on the advice of Wirken: three loans went directly to Wirken 

Law Group, and three loans to Longview Village Development Company ("Longview"). 

 

1 We view the facts and all reasonable inferences in the light most favorable to the party against whom the 

summary judgment was entered. Mo. Pub. Entity Risk Mgmt. Fund v. Am. Cas. Co. of Reading, 399 S.W.3d 68, 73 

(Mo. App. W.D. 2013).

2 Taylor is the son of Leilla V. Taylor, who died in 2007. Wirken's representation also included Taylor's 

wife, Cindy Taylor, who is not a party to this appeal.
3

On the latter three loans, Wirken received a "finder's fee" from Longview for securing the 

loans.

Loans to the Wirken Law Group 

Prior to April 5, 2007, while Wirken was representing Taylor and the Trust, 

Wirken approached Taylor about the Trust loaning money to the Wirken Law Group. 

Wirken did not inform Taylor that the Wirken Law Group was strapped for cash and 

needed additional funding for its needs and for his personal expenses. Unknown and 

undisclosed to Taylor, Wirken had approached multiple lending institutions for loans and 

had been rejected, Wirken's personal assets were heavily leveraged, and Wirken also had 

unpaid loans from multiple other clients. Wirken falsely indicated to Taylor that he had 

multiple contingent fee cases that had already been settled but not yet paid, the proceeds 

of which would be sufficient to repay the loans to the Trust. 

The Wirken Law Group borrowed money from Taylor three times in 2007. The 

agreements were executed by way of promissory notes, guaranteed by Wirken personally, 

but Taylor took no security interest in any of Wirken's assets or in the Wirken Law Group

or its assets. Those three loans totaled $250,000, each with ten percent interest until 

default and fifteen percent thereafter. The three notes all provided that a reasonable 

attorney fee was due in the event the notes were placed for collection. 

When Wirken was drafting these notes and advising as to the method of 

repayment, Taylor believed that Wirken was his lawyer and was acting in his and the 

Trust's best interests. Wirken conceded that he was the attorney for Taylor and the Trust

and had a fiduciary duty to them as clients. Nonetheless, Wirken never suggested that 
4

Taylor seek the advice of an uninterested lawyer before entering into these transactions, 

nor did he make any written disclosure regarding his ethical obligations under the Code 

of Professional Responsibility when engaging in a business transaction with a client. 

Taylor was never repaid for these three loans. 

Loans to Longview 

As for the three loans to Longview, sometime prior to May 24, 2007, Wirken 

advised Taylor that Longview was seeking short-term lenders for its projects and 

encouraged him to become a lender. Longview was another of Wirken's clients. Wirken 

advised Taylor that any loans to Longview would be secured by the personal guaranty of 

Jeffrey Montgomery, a Kansas City Royals baseball player, implying that Wirken would 

review the paperwork to assure that the personal guaranty was included.

3

 Taylor loaned 

Longview a total of $261,740 in the three 2007 loans. Wirken drafted all of the 

agreements. The agreements were executed by way of promissory notes, bore interest at 

the rates of thirty-two to thirty-six percent, and provided for reasonable attorney fees 

upon default. 

The first loan was executed May 24, 2007 and was for $150,000. Per the trial 

court's judgment, that loan was "memorialized by a note from Longview." It bore thirtytwo percent interest, was due August 24, 2007, and required reasonable attorney fees in 

the event of default. The first ninety days of interest were paid in advance and subtracted 

from the loan amount, so that funding the note only required $138,000.

 

3

Jeffrey Montgomery paid Taylor $50,000 to be released from any obligation on all three notes.
5

The documents signed by Longview included an executed promissory note and a 

second mortgage on certain real property that Wirken informed Taylor "will be recorded 

in Johnson County, Kan." Taylor's check for $138,000 was payable to The Wirken Law 

Group Trust Account and was used to fund the loan. Taylor later learned that the 

mortgagor of the property serving as collateral for the $150,000 loan did not own the 

property offered as security, that the mortgage was never recorded, and that Wirken did 

not confirm ownership of the property or the recording of the mortgage prior to Wirken 

funding the loan from the Wirken Law Group Trust Account. Taylor also later learned 

that Wirken was paid a "finder's fee" for delivering Taylor as a lender and that Longview 

owed Wirken money at the time that Wirken brought Longview to Taylor's attention. 

The second loan Taylor made to Longview was executed June 6, 2007 for 

$90,000, payable to the Wirken Law Group Trust Account. It bore thirty-six percent 

interest, was due July 7, 2007, and provided for the payment of reasonable attorney fees 

in the event of default. This note was secured in part by the pledge of a Smith-Barney 

account. Taylor later learned that the Smith-Barney account did not exist and that

Wirken had not confirmed its existence prior to funding the loan from his trust account. 

As for the third loan, on June 22, 2007, per Wirken's instruction, Taylor loaned 

Longview $21,740 with an interest rate of thirty-six percent, due on July 22, 2007. The 

loan was also funded with a check to Wirken's trust account and provided for a recovery 

of attorney fees in the event of default. 

The Trust was never repaid for these three loans.

 
6

Subsequent Litigation

Taylor filed an action against Wirken and the Wirken Law Group, alleging breach 

of fiduciary duties to him as his lawyer in representing him and causing him to fund the 

various loans.4 The Bar Plan provided Wirken and the Wirken Law Group a defense 

against Taylor's suit, but it reserved the right to deny coverage if the court entered 

judgment against either defendant for acts or omissions its policy did not cover. Wirken 

requested that The Bar Plan either withdraw its reservation of rights or withdraw from the

defense. The Bar Plan withdrew its defense, and Wirken and the Wirken Law Group 

hired their own counsel.

After a bench trial, the trial court entered judgment in favor of Taylor. As to the 

first set of loans, the trial court found that an attorney-client relationship existed, that 

Wirken drew the notes memorializing the loans to the Wirken Law Group, and that 

Wirken breached his fiduciary duty to Taylor.

5

 As to the second set of loans, the trial 

court also determined that the attorney-client relationship was in force during the loan 

transaction with Longview and that Wirken "was performing legal services . . . by 

passing documents [from Longview to Taylor] through his offices, by implying that 

Wirken would review the paperwork and the transaction details to see that Taylor's 

interests were served, and by serving as the vehicle for funding the loans from Taylor to 

Longview." The trial court also determined that Wirken breached his fiduciary duty by 

 

4 Taylor was the sole beneficiary of the Trust and was thus entitled to receive the unpaid loans owed to the 

Trust.

5

For reasons we discuss, infra, the legal theory pursued by Taylor and the Trust is significant. To find a 

breach of fiduciary duties, the trial court in Taylor's action against Wirken and The Wirken Law Group had to find 

the existence of an attorney-client relationship, and defalcation in the provision of legal services in violation of that 

fiduciary relationship.
7

neglecting to tell Taylor about the fee he received from Longview and that Longview was 

indebted to Wirken. The trial court found that Wirken's breach of his fiduciary duties 

was the proximate cause of Taylor's damages. Accordingly, the trial court assessed

damages based on the face value of the loans plus interest and attorney fees in the amount 

of $415,971.69 on the loans to the Wirken Law Group and in the amount of $524,873.13 

on the loans to Longview. 

Taylor then filed an equitable garnishment action6against The Bar Plan, which is 

the subject of this appeal, seeking to recover the damages assessed in the judgment 

against Wirken and the Wirken Law Group. The trial court in the garnishment action 

determined that Wirken and the Wirken Law Group were engaged in the provision of 

legal services to Taylor in connection with efforts to document the various loans and/or 

collateral security for the loans, thus bringing the activity within the coverage expressed 

by the insuring agreement,7but it was subject to a policy exclusion. Specifically, the trial 

 

6 An equitable garnishment action is a means by which an injured party can seek recovery against a 

tortfeasor's insurer. § 379.200. All statutory references are to RSMo 2000 as currently supplemented unless 

otherwise indicated.

7 The portion of the policy under which the trial court found coverage contracted that The Bar Plan "will 

pay on behalf of an Insured all sums, subject to the Limit(s) of Liability, Exclusions and terms or conditions 

contained in this Policy, which an insured shall be legally obligated to pay as Damages as a result of CLAIMS . . . 

by reason of any act or omission by an Insured acting in a professional capacity providing Legal Services." The 

question of coverage is not an issue on appeal. In fact, that question was necessarily determined by the trial court in 

Taylor's underlying lawsuit in light of his election to pursue a claim for recovery on the defaulted notes on a theory 

of breach of fiduciary duty in the provision of legal services, in lieu of, by way of example, a theory of breach of 

contract on the notes themselves. See, supra, note 5. Because the trial court in the underlying lawsuit determined 

that Wirken and The Wirken Law Group had provided legal services to Taylor in connection with the various loans, 

The Bar Plan was estopped from challenging this determination in the equitable garnishment proceeding. See

Assurance Co. of Am. v. Secura Ins. Co., 384 S.W.3d 224, 232 (Mo. App. E.D. 2012) ("One who has undertaken to 

indemnify another against loss arising out of a certain claim and has notice and opportunity to defend an action 

brought upon such a claim is bound by the judgment entered in such action, and is not entitled, in an action against 

him for breach of his agreement to indemnify, to secure a retrial of the material facts which have been established by 

the judgment against the person indemnified.") (quoting 17 LEE R. RUSS, COUCH ON INSURANCE sec. 239:73 

(3d ed. 1995)).

Because the factual issues necessarily determined in the underlying lawsuit effectively predisposed the trial 

court's coverage determination in the equitable garnishment case, we are not permitted to assess whether the trial 
8

court granted summary judgment to The Bar Plan, determining that the activity was 

excluded by Section III(B)(4) of the policy, which states that for "ANY CLAIM BASED 

UPON OR ARISING OUT OF...[a]n Insured’s capacity as...[a] legal representative of 

investors in regard to and resulting in investment in an enterprise in which an Insured 

owns an equity interest or for which the Insured receives a fee or commission from an 

Entity other than the investor.”

Taylor appeals from the summary judgment in the equitable garnishment action.

ANALYSIS

Taylor argues that the trial court erred in entering summary judgment in favor of 

The Bar Plan on the ground that the phrase "resulting in investment in an enterprise" in 

the exclusion is ambiguous. Taylor additionally argues: (1) that a covered concurrent 

proximate cause will result in coverage even if another cause is excluded, (2) that The 

Bar Plan's asserted exclusion is not applicable because the Wirken Law Group is a 

professional corporation in which non-lawyers are legally barred from "investing," and 

(3) that additional ambiguity arises because the exclusion is dependent on other 

"capacities" in that it combines multiple, separate exclusions by use of the word "and." 

Because we agree with Taylor that the phrase "resulting in investment in an enterprise" 

and the terms "investment" and "investor" are ambiguous as used within the policy and 

thus that The Bar Plan did not meet its burden of establishing that the exclusion applied,

the cause is reversed and remanded.

 

court's entry of summary judgment in favor of The Bar Plan could be alternatively affirmed because it erroneously 

found that Wirken's efforts in securing and documenting the loans, particularly the Wirken Law Group loans, were 

covered legal services. This opinion therefore assumes, without analyzing or deciding, that Wirken's activities were 

within the coverage of The Bar Plan policy. 
9

Standard of Review

Our Supreme Court has set forth our standard of review: 

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 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 

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

As the appeal concerns whether policy language is ambiguous, 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). In so doing, 
10

we give the language in an insurance contract its plain and ordinary meaning. Id. "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 no ambiguity exists, the insurance contract will be enforced 

as written. Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379, 382 (Mo. banc 

1991) (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 (citation omitted); see 

also Mendota Ins. Co. v. Ware, 348 S.W.3d 68, 71 (Mo. App. 2011) (stating that, the 

"insured is entitled to a pro-coverage interpretation of an insurance policy if the terms are 

susceptible of two possible interpretations and there is room for construction") (internal 

citations and quotations omitted). We resolve "ambiguities in favor of the insured." 

Fanning v. Progressive Nw. Ins. Co., 412 S.W.3d 360, 364 (Mo. App. W.D. 2013) 

(citations omitted). "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). 

Put another way, Missouri strictly construes exclusionary clauses against the 

drafter. Manner v. Schiermeier, 393 S.W.3d 58, 62 (Mo. banc 2013) (citation omitted). 
11

"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. We construe ambiguities in favor of the insured for two

reasons:

(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.

Golden Rule Ins. Co. v. R.S., 368 S.W.3d 327, 334 (Mo. App. W.D. 2012) (citation 

omitted) (emphasis added).

Reasonable Attorney Standard

Before we can proceed with our review of the terms of this policy we must first 

determine the proper lens through which we view its terms. While the review of an 

insurance policy is normally based on the understanding of a reasonable lay person, when 

reviewing a policy of legal malpractice, the only possible purchasers of the policy would 

be attorneys. Our review hinges on what an average insured would believe the policy 

language means. Shiddell v. The Bar Plan Mut. Ins. Co., 385 S.W.3d 478, 485 (Mo. App. 

W.D. 2012) (stating that a dictionary definition was "consistent with what an ordinary 

person purchasing the policy would understand . . . and certainly what an ordinary 

attorney would understand"). A reasonable insured in the context of legal malpractice 

insurance is a reasonable attorney because only attorneys purchase legal malpractice 
12

insurance. Of course in the context of other types of insurance (such as automobile 

insurance), an ordinary person of average understanding if purchasing insurance would 

not be subject to the reasonable attorney standard, regardless of whether the person who 

bought the insurance happened to be an attorney. 

On this issue of first impression, we determine that the proper lens for review of a 

legal malpractice insurance policy would be through the eyes of a reasonable attorney 

who purchased the insurance.8 This principle is consistent with precedent of the Supreme 

Court of Missouri. See Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 

(Mo. banc 2009) ("[I]n 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 . . . .") (emphasis added); Robin v. Blue Cross Hosp. Serv., Inc., 

637 S.W.2d 695, 698 (Mo. banc 1982) (stating that terms are given "'the meaning that 

would ordinarily be understood by the layman who bought and paid for the policy'") 

(emphasis added; citation omitted). 

Discussion

The isolated issue we address is whether The Bar Plan met its burden of 

establishing that the policy it drafted excluded the loans that Taylor made to Wirken and 

Longview. The contested exclusion states as follows:

THIS POLICY DOES NOT PROVIDE COVERAGE FOR ANY CLAIM 

BASED UPON OR ARISING OUT OF: . . . 

 

8 The parties in their briefing and argument spend considerable time focusing on how Taylor and Wirken 

would have categorized these loans at the time they were entered into. This likewise applies the wrong standard of 

review, because our review is restricted to what a reasonable attorney would have believed the policy covered or 

excluded at the time the policy was purchased, not at the time the disputed transaction was entered into. 
13

B. An Insured’s capacity as . . .

4. A legal representative of investors in regard to and resulting in 

investment in an enterprise in which an Insured owns an equity interest or 

for which the Insured receives a fee or commission from an Entity other 

than the investor.

Taylor argues that The Bar Plain did not meet its burden because the terms 

"investors" and "investment in an enterprise," neither of which is defined in the policy,

are ambiguous inasmuch as they must encompass within their definitions "loans" in order 

to apply to the facts at issue. The trial court found that the three loans to Wirken were 

excluded by the policy because Wirken acted "as a legal representative for Mr. Taylor 'in 

regard to and resulting in investment in an enterprise in which an Insured owns an equity 

interest'" because Wirken owned 100 percent equity interest in The Wirken Law Group. 

As for the Longview loans, the trial court found that "Wirken received a commission fee 

from Longview" and thus the loans to Longview were "investments 'for which the 

Insured receives a fee or commission from an Entity other than the investor.'" Though 

the trial court's findings appear to have accurately honed in on the uncontested fact that 

Wirken had an equity interest in the Wirken Law Group, and that Wirken received a 

commission on the Longview loans, the trial court offered no explanation for its 

conclusion that Wirken's legal services in connection with the loans were provided to an

"investor" with regard to and "resulting in investment in an enterprise." Of course, the 

intended meaning of these terms is controlling here.

The operative policy exclusion applies only if the insured attorney acted as a legal 

representative of "investors . . . resulting in investment in an enterprise." We must read 
14

the words of the exclusion and the contract as a whole and in proper context. Thiemann, 

338 S.W.3d at 840. In so doing, we agree with Taylor that The Bar Plan did not meet its 

burden of establishing that a reasonable attorney purchasing this insurance9 would have 

reasonably understood that legal services provided to document loans being made by a 

client would be excluded because the loans are "investments in an enterprise." For 

reasons explained below, either the policy exclusion is simply not applicable to these 

facts or it cannot be enforced because it is ambiguous.

The distinction between financing a business or enterprise through equity versus

debt runs throughout the law. An attorney purchasing a policy through The Bar Plan may 

understand a financing that provides an equity or ownership interest to be "resulting in 

investment in an enterprise" with capital investments, various stocks, securities, shares,

and other partnership or membership interests at stake as being the most common 

examples. The return on these investments is typically tied to the performance of the 

enterprise.

10

 All financing does not necessarily constitute an "investment in an 

 

9

In many instances the purchaser of legal malpractice insurance is a law firm consisting of more than one 

attorney and the firm and the individual attorneys are purchasing this insurance to protect the firm and the individual 

attorneys from liability brought on by the legal malpractice of one of the attorneys employed by the firm. 

10 Within, for example, the Investment Company Act of 1940, 15 U.S.C. § 80a-3, "investment company" is 

defined in part as an entity engaging in the business of investing or reinvesting or trading in securities. Similarly, 

under the Securities Exchange Act of 1934, in determining whether a contract, transaction, or scheme is an 

"investment contract" within the definition of "securities," one element is that there will be the expectation that 

profits will be derived from the entrepreneurial or managerial efforts of others. SEC v. W.J. Howey & Co., 328 U.S. 

293, 298-99 (1946); Reves v. Ernst & Young, 494 U.S. 56, 64 (1990); Long v. Shultz Cattle Co., 881 F.2d 129, 132 

(5th Cir. 1989) (citing 15 U.S.C. §§ 77b(1) and 78c(a)(10)). Along that line, multiple provisions of the Revised 

Statutes of Missouri require "investment advisors" to register with the U.S. Securities and Exchange Commission. 

See, e.g., sections 103.032 and 166.415.5. 

It would be hasty and incorrect to conclude that a note is always a security. The U.S. Supreme Court

fashioned a multi-part test for determining whether a note constitutes a security pursuant to the Securities Exchange 

Act. Reves, 494 U.S. at 65-69. The Reves Court noted that "[i]f the seller's purpose is to raise money for the general 

use of a business enterprise or to finance substantial investments and the buyer is interested primarily in the profit 

the note is expected to generate, the instrument is likely to be a 'security.' If the note is exchanged to facilitate the 

purchase and sale of a minor asset or consumer good, to correct for the seller's cash-flow difficulties, or to advance 
15

enterprise," however. Loans similar to those in the case at bar operate differently because 

they do not confer equity or ownership interests and instead constitute a business's debt. 

In short, loans are not always included among types of "investments." See, e.g., In re 

Keisker's Estate, 168 S.W.2d 96 (Mo. 1943) (noting that the terms "loan" and "invest" are 

often incorrectly used interchangeably; statute used the word "invest" to denote the idea 

of purchase, and "loan" to denote idea of making a loan rather than purchase); In re Terry 

Mfg. Co., Inc., No. 03-32063, 2007 WL 274319, at *8 (Bankr. M.D. Ala. Jan. 25, 2007) 

(noting that the "term investment is ambiguous, as it can mean either debt or equity");

Engelking v. Inv. Bd., 458 P.2d 213, 219 (Idaho 1969) (distinguishing the terms "loan" 

and "investment"); In re Owen's Estate, 36 N.Y.S.2d 60, 62 (N.Y. Sur. 1942) (holding 

that "[t]he word ‘investment’ is a vague term and no general rule can be laid down as to 

its meaning"); Reves, 494 U.S. at 62 (holding that notes are "used in a variety of settings, 

not all of which involve investments"). 

In giving the language of the insurance contract its plain and ordinary meaning, we 

note the following illustration. If a business owner is asked to list a business's "debts," the 

owner will list the business's banker, the revolving operating loan, the Mastercard, Visa,

and/or American Express, and the business's other creditors. However, if a business 

owner is asked to list the business's "investors," the owner will list the stockholders, 

 

some other commercial or consumer purpose, on the other hand, the note is less sensibly described as a 'security'" 

(emphasis added). Another factor in the Reves Court's determination that notes were securities in that case was that 

was there was "common trading" of the notes and that they were offered and sold to a broad segment of the public. 

Id. at 68. 

Fortunately, our question presented does not entail application of the multi-factor test, and we note the 

cases and statutes only to highlight the lack of conclusiveness and the indistinctness of the matter. For our purposes, 

perhaps what best summarizes Reves was the Court's observation that "common stock is the quintessence of a 

security . . ., but the same simply cannot be said of notes, which are used in a variety of settings, not all of which 

involve investments." Id. at 62 (emphasis added). 
16

partners, and members (either active or passive) -- those with equity or ownership 

interests. It would be a complete stretch for any business owner to consider the credit 

card company, banker, lender, or other creditor an "investor" in the business or enterprise. 

In fact, the definition of "enterprise" in Black's Law Dictionary, Ninth Edition, is 

consistent with this point. "Enterprise" is therein defined as a "venture or undertaking 

especially one involving financial commitment." This definition suggests a financial 

commitment more in line with ownership or management control, and not simple loans.

All six loans in this case were simple, unsecured loans that charged interest 

according to the terms of the promissory notes but in no way evidenced a transaction 

"resulting in investment in an enterprise." These loans did not confer to Taylor any 

property or ownership interest other than the right to be repaid with interest. To be sure, 

Taylor never obtained the right to share in the profits of either business. Were it the case 

that the policy exclusion defined "investment" to include loans or omitted the phrase 

"resulting in investment in an enterprise," our resolution of whether such a loan is 

included in that exclusion may differ. But as noted above, as the drafter of the policy, the 

insurance company was in the better position to remove the ambiguity from the contract,

Golden Rule, 368 S.W.3d at 334, and the ambiguous language that The Bar Plan drafted 

instead creates indistinctness and uncertainty.

The Bar Plan's failure to draft unambiguous policy language and thus meet its 

burden of establishing that the exclusion applied is also evident in the duplicity of 

definitions for investment in Black's Law Dictionary. The first definition of investment 

is an "expenditure to acquire property or other assets in order to produce revenue; a 
17

capital outlay." That first definition includes three examples of the term: (1) a "fixeddollar investment," which is "an investment whose value is the same when sold as it was 

when purchased," as in "bonds held to maturity, certain government securities, and 

savings accounts"; (2) a "fixed-income investment," which is an "investment (including 

preferred stock) that pays a fixed dividend throughout its life and is not redeemable 

unless the corporation makes a special call"; (3) a "net investment," which is an 

"investment (including preferred stock) that pays a fixed dividend throughout its life and 

is not redeemable unless the corporation makes a special call." Black's second definition 

of "investment" is the "the asset acquired or the sum invested" and contains no examples. 

Here, the only example in the first definition that arguably could encompass these

particular interest-bearing loans falls within "fixed-dollar investments," perhaps most 

akin to the ownership of a "savings account."11 But whether the rest of the first definition 

includes the loans at issue here as investments is unclear when read with the policy 

language in mind. Viewed in the context of the exclusion, which is that the loan must 

"result[] in investment in an enterprise," no property or other assets were acquired to 

produce revenue when Taylor made his loans with either Wirken or Longview by way of 

promissory notes. It is true that the right to repayment set out in the note may be viewed 

as an asset in certain contexts, but as set out above, it does not follow that a creditor or 

other lender necessarily becomes an investor by acquiring an asset. Quite simply, Taylor 

 

11 The dissent argues that, "The fact that at least one of the Longview loans closely resembled the purchase 

of a 'zero-coupon bond' demonstrates the complexity of these transactions." However, the fact that none of these 

loans was a "zero-coupon bond" helps demonstrate the simplicity of these transactions. More to the point, a bond is 

a quintessential security, so far removed from a simple loan that one would not reasonably confuse the two or infer 

that a loan can be an "investment in an enterprise" solely because a bond is an example of an investment. 
18

acquired no interest in any enterprise when he loaned money to Wirken Law Group and 

to Longview, and it would be absurd to expect either Wirken Law Group or Longview to 

consider Taylor an investor as equally as it would be absurd to consider a credit card 

company or any other such creditor an investor. See Mendota, 348 S.W.3d at 71 (holding 

that the insured is entitled to a pro-coverage interpretation if the terms are susceptible of 

two possible interpretations and there is room for construction).

In viewing the language of the exclusion as a whole, it thus appears that the trial 

court simply missed a step in its analysis. While it is true that Wirken facilitated business 

transactions between Taylor and Wirken Law Group and between Taylor and Longview, 

it is not the case that those transactions involved Wirken acting as a legal representative 

for an investor "resulting in investment in an enterprise," which is the language of the 

policy exclusion and our context for the ambiguous term. Strictly construing this 

exclusion against the insurer, as we must, Golden Rule, 368 S.W.3d at 334, it is at least 

reasonable under the legal definition of "investment" that an ordinary purchaser of The 

Bar Plan policy would not reasonably understand based on these transactions that Taylor 

was an "investor investing in an enterprise." Rather, an ordinary insured under The Bar 

Plan would reasonably believe he was providing routine legal services to a client to 

document simple loans. Stated again and most basically, under common usage, the loans 

did not result in investment in an enterprise in which the attorney owns an equity 

interest or for which the attorney receives a fee or commission from the entity.

That an ordinary purchaser of The Bar Plan policy would not reasonably 

understand this exclusion to apply is particularly obvious as to the loans to Wirken's 
19

practice. Any purchaser of the policy would be well aware of the impossibility of Taylor 

entering into a transaction "resulting in investment in an enterprise" where the enterprise 

in question is a legal corporation. § 356.111.1(1) (stating that a professional corporation 

may issue shares, rights, or options to purchase shares only to those authorized to render 

the "professional service permitted by the articles of incorporation"). In other words, 

although the Wirken Law Group was financially indebted to Taylor, Taylor (a nonlawyer) was prohibited by statute from entering any transaction resulting in an equity or 

ownership investment in the Wirken Law Group. The base question is this: Would a 

reasonable attorney think that a non-lawyer can invest in his or her law firm? No. Would 

a reasonable attorney think that a non-lawyer can make a loan, profitable or not, to a law 

firm? Yes. Can a non-lawyer invest in a law firm? No. Thus, a reasonable attorney 

purchasing this policy may not read the exclusion to include a loan to an entity the lender 

cannot legally invest in.

As noted above, we strictly construe exclusionary clauses against the drafter and 

place the burden of showing that an exclusion to coverage applies on the insurer because 

insurance is designed to furnish protection for an insured, not defeat it, and because 

the insurer created the policy language and was in the better position to cure any 

deficiency. Golden Rule, 368 S.W.3d at 334. We particularly note the difficulty of 

members of a multi-person practice who were not cognizant of the malfeasant actions of 

one member to guess at the meaning and application of the proffered exclusion after the 

fact.
20

We further note that, in arguing that the loans at issue met the policy definition of 

"investment in an enterprise," The Bar Plan does not seek to elevate the transactions at 

issue from anything other than mere loans. In other words, The Bar Plan does not argue 

that the transactions, particularly with respect to Longview, were a specific type of 

investment cloaked as a loan. To be clear, the undisputed facts are that all of the loans 

contained fixed interest rates, and the record nowhere indicates that the returns were 

dependent on the performance of any acquired assets. Compare Minn. Lawyers Mut. Ins. 

Co. v. Ahrens, 432 Fed.App'x. 143, 148 (3rd Cir. 2011) (holding that speculative 

investments were not converted to loans and so fell within policy exclusion where the 

"clients expected to profit from . . . success in the gold and commodities futures market, 

and . . . their expected returns depended upon that success, not on an interest rate").12

Similarly, we do not find persuasive The Bar Plan's reliance on Vaughn v. 

Guarino-Sanders, 478 Fed.App'x. 310 (6th Cir. 2012),13 where the Sixth Circuit 

considered the very same exclusion. Unlike the case at bar, the parties in Vaughn did not 

contest that the transaction at issue, the purchase of "membership in limited-liability 

companies as vehicles to buy Florida real estate," in which the insured attorney owned an 

equity interest, was an investment. Id. at 310. If anything, Vaughn underscores the 

difference between becoming a member in a company and simply extending credit to a 

business. Further, as the ambiguity at issue in this case was not even raised in Vaughn, 

that case is irrelevant to our analysis.

 

12 Although it is denominated an unpublished federal opinion, we know of no rule prohibiting our citation 

to this case, in contrast to Missouri Supreme Court Rule 84.16(b), which prohibits the citation of unpublished 

Missouri opinions.

13 Id.
21

In its characterization of our holding, the dissent charges that "Wirken created and 

had control of the undisputed facts of his own legal malpractice insurance question." 

However, the dissent fails to acknowledge that the fact of the malpractice (and thus of 

coverage) is not an issue in this equitable garnishment action, having already been 

determined in the underlying action in a manner that binds the insurer. The dissent's 

analysis fails to apply -- let alone acknowledge -- black-letter law that the insurer bears 

the burden of showing that an exclusion applies to defeat coverage, and that in sustaining 

that burden, policy language is strictly construed against the insurer.

14

 We do not accept 

as a "given" the premise of the dissent that a reasonable attorney would not expect 

coverage under the circumstances of this case. To the contrary, we believe a reasonable 

attorney would expect the provision of legal services in connection with assisting a client 

in making loans to be covered under a malpractice policy, and would not expect that 

coverage to be negated by an exclusion for "investments in an enterprise." 

Taylor should not suffer when Wirken's misdeeds were contemplated in the policy

or at least were not shown by the insurer to be excluded therefrom. The paying policy 

holder, despite his covered, undisputed malpractice, and the victim, should not suffer 

because of the insurer's careless drafting and/or its failure to define "investment" if the 

insurer indeed meant to exclude the transactions at issue.

 

14 Indeed, instead of recognizing and applying black-letter law regarding the burden of proof and the dictate 

that exclusions are strictly construed against an insurer, the dissent relies on The Bar Plan Mut. Ins. Co. v. 

Chesterfield Mgmt. Assocs., 407 S.W.3d 621, 629 (Mo. App. E.D. 2013), for broad language regarding policy 

ambiguities that is quoted from California jurisprudence. But Chesterfield and the California case on which it 

depends concern ambiguities as to coverage (an issue not before this court), not as to an exclusion (the issue that we 

must address). We prefer to rely on recognized tenets from Missouri jurisprudence that squarely apply to how we 

are to confront insurance policy exclusions. 
22

We thus determine as a matter of law that the policy exclusion set out in The Bar 

Plan's policy was indistinct and therefore ambiguous as to whether it included the loans at 

issue. The Bar Plan bore the burden of showing that an exclusion to coverage applies and 

did not meet that burden. To the contrary, the terms "investment" and "investor" are 

ambiguous as there is "duplicity, indistinctness, or uncertainty in the meaning of the 

language in the policy," Seeck, 212 S.W.3d at 132, and the terms are not applicable to the 

facts at bar when read in the context of the entire exclusion, which entails that the 

transaction result in "an investment in an enterprise." 

CONCLUSION

The trial court's judgment is reversed and remanded for proceedings consistent 

with this opinion.

__________________________________

Gary D. Witt, Judge

Martin, Presiding Judge, joins in the majority opinion

Fischer, Special Judge, concurs in part and dissents in part in separate opinion
 

 

In the 

Missouri Court of Appeals 

Western District

JIMMIE LEE TAYLOR,

Appellant,

v.

THE BAR PLAN MUTUAL 

INSURANCE COMPANY, ET AL.,

Respondents.

)

)

)

)

)

)

)

)

)

)

WD76380

OPINION FILED: April 29, 2014

CONCURRING IN PART AND DISSENTING IN PART OPINION

I agree with the circuit court that the "legal representative of investors" exclusion 

unambiguously excludes coverage, and, therefore, I respectfully dissent from the result of 

the principal opinion. I concur with the principal opinion that the standard for 

determining whether an ambiguity exists in a legal malpractice insurance policy is 

whether a reasonable attorney would conclude that coverage exists for the advice given 

or the conduct of the attorney. I dissent from the principal opinion's holding that the 

phrase "investment in an enterprise" is ambiguous due to the existence of multiple 

definitions of the word "investment." The circuit court concluded that no reasonable 

attorney who read the policy could believe that the investment advice given would be 

covered by this malpractice insurance policy. My view of this case is consistent with the 
2

circuit court in that the six loans James C. Wirken advised his client to make were 

"investments in enterprises" within the meaning of the policy exclusion. Therefore, I 

would affirm the circuit court's judgment that denied Jimmie Lee Taylor's claim for 

equitable garnishment against The Bar Plan Mutual Insurance Company ("The Bar 

Plan").

Factual Background

Taylor seeks to recover from The Bar Plan under a legal malpractice insurance 

policy for the actions of Wirken, the insured and now-disbarred attorney. Wirken 

advised Taylor to make several loans to his own law firm, the Wirken Law Group, P.C., 

and to another of Wirken's clients, Longview Village Development Company 

("Longview"). Three loans went to the Wirken Law Group, and three went to Longview. 

Wirken was the sole owner of the Wirken Law Group. Longview paid Wirken a 

commission based fee for delivering Taylor as a lender. The loans never were repaid, 

and Taylor sued Wirken for breach of fiduciary duty. 

Prior to the six loans, Wirken represented Taylor regarding general estate planning 

and administration matters. According to the Second Amended Petition in the underlying 

lawsuit against Wirken for breach of fiduciary duty, at some point Taylor "sought the 

advice of [Wirken] regarding the investment of" the trust assets. Also according to 

Taylor's Second Amended Petition in the underlying lawsuit, when Wirken approached 

Taylor about lending money to Longview, Wirken advised him "that he was aware of a 

tremendous investment opportunity." The circuit court in the underlying case held a 

bench trial on the claim for breach of fiduciary duty. The circuit court determined that 
3

Wirken was acting within the scope of an attorney-client relationship with Taylor 

regarding all six loans, and it entered judgment against Wirken and the Wirken Law 

Group. The circuit court assessed damages based on the face value of the six notes plus 

interest and attorney fees, totaling $940,844.82. 

Taylor then sought to collect on the judgment by suing The Bar Plan directly in 

this action for equitable garnishment. See § 379.200, RSMo 2000. The Bar Plan moved 

for summary judgment, arguing that Taylor's claim was barred by the "legal 

representative of investors" exclusion. The circuit court's grant of summary judgment 

expressly stated:

The court concludes that coverage is defeated by the unambiguous 

language of the policy exclusion in Section III(B)(4). Section III(B)(4) of 

the policy states:

THIS POLICY DOES NOT PROVIDE COVERAGE FOR ANY 

CLAIM BASED UPON OR ARISING OUT OF:

B. An insured's capacity as:

4. A legal representative of investors in regard to 

and resulting in an investment in an enterprise 

in which an Insured owns an equity interest or 

for which the Insured receives a fee or 

commission from an Entity other than the 

investor.

In the loans to Wirken Law Group, it is undisputed that Mr. Wirken had a 

100% equity ownership interest in Wirken Law Group. The loans to his 

law firm fall squarely within the exclusion when he acted as a legal 

representative for Mr. Taylor "in regard to and resulting in investment [sic] 

in an enterprise in which an Insured owns an equity interest." The loss on 

Counts I and II of the Taylor judgment is excluded from coverage by this 

exclusion.
4

As to the Longview Loan transactions, it is undisputed that Mr. 

Wirken received a commission fee from Longview for Plaintiff's 

investments. Wirken describes in his deposition testimony his belief (or 

assumption) that the "finder's fee" checks he received amount to 5% of the 

loans made by Taylor. These loans were thus investments "for which the 

Insured receives a fee or commission from an Entity other than the 

investor." The loss arising from the Longview loan transactions and loss 

thereon are excluded under the provisions of Section III B(4) [sic] policy 

exclusion.

(Amended Judgment & Order Granting Def. The Bar Plan Mut. Ins. Co.'s Mot. for 

Summ. Judgment at 11-12, L.F. 506-07, Mar. 27, 2013.) Taylor appeals.

Standard of Review

The trial court makes its decision to grant summary judgment based 

on the pleadings, record submitted, and the law; therefore, this Court need 

not defer to the trial court's determination and reviews the grant of 

summary judgment de novo. In reviewing the decision to grant summary 

judgment, this Court applies the same criteria as the trial court in 

determining whether summary judgment was proper. Summary judgment 

is only proper if the moving party establishes that there is no genuine issue 

as to the material facts and that the movant is entitled to judgment as a 

matter of law. The facts contained in affidavits or otherwise in support of a 

party's motion are accepted as true unless contradicted by the non-moving 

party's response to the summary judgment motion. Only genuine disputes 

as to material facts preclude summary judgment. A material fact in the 

context of summary judgment is one from which the right to judgment 

flows.

A defending party . . . may establish a right to summary judgment by 

demonstrating: (1) facts negating any one of the elements of the nonmovant's claim; (2) that the non-movant, after an adequate period for 

discovery, has not been able and will not be able to produce sufficient 

evidence to allow the trier of fact to find the existence of any one of the 

elements of the non-movant's claim; or (3) that there is no genuine dispute 

as to the existence of the facts necessary to support movant's properly 

pleaded affirmative defense. Each of these three methods individually 

establishes the right to judgment as a matter of law.

The record below is reviewed in the light most favorable to the party 

against whom summary judgment was entered, and that party is entitled to 
5

the benefit of all reasonable inferences from the record. However, facts 

contained in affidavits or otherwise in support of the party's motion are 

accepted as true unless contradicted by the non-moving party's response to 

the summary judgment motion.

Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011) (internal citations 

and quotation marks omitted).

Both the interpretation of an insurance policy and the determination of whether 

exclusion provisions are ambiguous are issues of law, subject to de novo review. 

Mendenhall v. Prop. & Cas. Ins. Co. of Hartford, 375 S.W.3d 90, 92 (Mo. banc 2012).

Analysis

In an action for equitable garnishment brought directly against an insurer pursuant 

to § 379.200, RSMo 2000, recovery depends on whether the insurance policy provides 

coverage. Noll v. Shelter Ins. Cos., 774 S.W.2d 147, 150 (Mo. banc 1989). The sole 

issue in this case is whether the "legal representative of investors" exclusion applies. 

Section III(B)(4) of the policy provides as follows:

This policy does not provide coverage for any claim based upon or arising 

out of . . . [a]n Insured's capacity as . . . [a] legal representative of investors 

in regard to and resulting in an investment in an enterprise in which an 

Insured owns an equity interest or for which the Insured receives a fee or 

commission from an Entity other than the investor.

I concur with the principal opinion that the standard for determining whether 

ambiguity exists in a legal malpractice insurance policy is whether a reasonable attorney 

would conclude that coverage would be available pursuant to the terms of the policy. 

Shiddell v. The Bar Plan Mut. Ins. Co., 385 S.W.3d 478, 485 (Mo. App. 2012) 

(emphasizing what an ordinary attorney would understand the policy to mean). I also 
6

agree that this standard is consistent with the Supreme Court of Missouri's decisions in 

Ritchie v. Allied Prop. & Cas. Ins. Co., 307 S.W.3d 132, 135 (Mo. banc 2009), and Robin 

v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 698 (Mo. banc 1982). 

This rule makes sense as a general matter. Contract disputes are generally 

confined to determining the rights of the contracting parties and any third-party 

beneficiaries, assignees, or delegatees. Accordingly, a contract's terms should be 

interpreted to attribute the meaning those people would give them, not the meaning the 

average person in society would give them. See Chochorowski v. Home Depot U.S.A., 

404 S.W.3d 220, 226 (Mo. banc 2013) ("[T]he primary rule of contract interpretation is 

that courts seek to determine the parties' intent and give effect to it.") (emphasis added). 

This principle is especially apparent when the dispute concerns whether an attorney has 

acted within the scope of an exclusion in a legal malpractice insurance policy. The 

attorney should not be permitted to act in a way that a reasonable attorney would 

conclude falls outside the scope of coverage, then subject his or her malpractice insurer to 

liability just because a reasonable layperson might believe that terms in a policy 

exclusion are ambiguous. 

The principal opinion concludes that the phrase "investment in an enterprise" is 

ambiguous, and must be construed against The Bar Plan as the drafter of the policy, 

because the term "investment" can be defined in different ways. I agree with the circuit 

court that this exclusion is not ambiguous as applied to the particular transactions at issue 

in this case. A reasonable attorney would not conclude that Wirken's actions would be 

covered by his malpractice insurance policy because it is clear that the loans in this case 
7

were investments in enterprises. No reasonable attorney in Wirken's position would 

conclude they were not. The plain language of the policy exclusion bars Taylor's 

equitable garnishment claim against The Bar Plan.

This court should not resort to canons of construction when the contract provision 

is clear and unambiguous. State Farm Mut. Auto. Ins. Co. v. Ballmer, 899 S.W.2d 523, 

525 (Mo. banc 1995). Where no ambiguity exists, the court should not distort policy 

language to create one. Shahan v. Shahan, 988 S.W.2d 529, 535 (Mo. banc 1999); 

Shiddell, 385 S.W.3d at 485 ("Rules of construction are . . . only to be utilized where an 

ambiguity already exists."). The circuit court determined the applicable exclusion was 

unambiguous, so it correctly did not resort to any rules of construction. 

The principal opinion invokes the canon of construction contra proferentum and 

holds that the "legal representative of investors" exclusion does not bar Taylor's claims 

because the court should construe it narrowly against the drafter of the insurance policy 

and in favor of coverage. It holds that the phrase "investment in an enterprise" is 

ambiguous because a reasonable attorney could conceivably conclude that an investment 

does not mean a loan but only a purchase of an equity interest in a business. In my view, 

the insurance policy's use of such a broad phrase as "investment in an enterprise," without 

limiting its definition, prohibits such a restrictive reading in this case. I agree with the 

circuit court that the "legal representative of investors" exclusion is clear and 

unambiguous when applied to the facts of this case because it would be apparent to any 

reasonable attorney that each of the loans Wirken advised Taylor to make was an 
8

"investment in an enterprise" and that Wirken's actions were excluded from insurance 

coverage.

As the principal opinion notes, there are several different dictionary definitions for 

the term "investments." The Bar Plan presents the first definition of "investment" listed 

in Webster's Third New International Dictionary: "an expenditure of money for income 

or profit or to purchase something of intrinsic value[;] a capital outlay." Webster's Third 

New International Dictionary 1190 (1993). Taylor argues that an investment requires a 

purchase of something, and he urges a definition of "invest" that can be found in the 

American Heritage Dictionary: "to purchase with the expectation of benefit." American 

Heritage Dictionary 922 (5th ed. 2011).1 Black's Law Dictionary provides a definition 

that seems to encompass both: "An expenditure to acquire property or assets to produce 

revenue; a capital outlay." Black's Law Dictionary 902 (9th ed. 2009).

Despite the existence of multiple definitions, they are not competing definitions, 

as the principal opinion suggests. The definitions are not exclusive of one another. They 

show only that the term is broad—an investment is both an outlay of funds with the 

expectation that some income or profit will result and a purchase with the expectation to 

receive a benefit. The policy exclusion at issue here does not provide a specific, 

restrictive definition otherwise, and it does not confine its use of the word "investment" 

to only purchases of assets. Rather, the policy exclusion adopts the word "investment" 

itself, in all its breadth. 

 

1 Notably, the American Heritage Dictionary also provides a substantially identical definition to the 

Webster's definition, which does not mention a "purchase." It is listed as the first definition of "invest": "To commit 

(money or capital) in order to gain a financial return: invested their savings in stocks and bonds." American 

Heritage Dictionary, at 922.
9

As a result, a reasonable attorney would not have concluded that the policy 

exclusion's use of the phrase "investment in an enterprise" meant that a purchase was the 

only type of investment excluded from coverage. It would be unreasonable to conclude 

that the term investment means only a purchase of something simply because the 

dictionary states that an investment can be an outlay of funds with the expectation of a 

return and also a purchase of assets with the expectation of a return. It is a broad term 

that means both, which does not make it ambiguous. See The Bar Plan Mut. Ins. Co. v. 

Chesterfield Mgmt. Assocs., 407 S.W.3d 621, 629 (Mo. App. 2013) (stating that 

"'[m]ultiple or broad meanings do not necessarily create ambiguity'" because "there is 

often a deliberate purpose in using a word with a broad meaning or multiple meanings in 

a contract, namely to achieve a broad purpose").

Moreover, nothing about the phrase "investment in an enterprise" inherently 

suggests a purchase of an equity interest, as the principal opinion holds. Although the 

purchase of stock in a particular business with an expectation to make a return would 

surely qualify, the principal opinion provides no satisfactory reason for concluding that a 

loan for the same amount of money to a particular business with an expectation to make a 

return does not qualify in equal measure. The principal opinion assumes that the average 

business would list loans as debts and not also as investments but provides no support for 

that proposition. Slip op. at 15-16. The same is true regarding its assumption that equity 

investments are the "most common examples" of investments. Id. at 14. 

Even if these assumptions are correct, and even assuming they suggest businesses 

do not consider their lenders to be investors as a general matter, a particular loan to a 
10

particular business may still obviously be an investment. And although it is true that the 

value of an equity interest in a business is tied to the business's performance, so is the 

value of the right to repayment of a loan—as evidenced by the interest rate, which 

reflects the calculated risk that the borrower will default. A reasonable attorney would 

not have given the investment advice that Wirken gave in this case, but a reasonable 

attorney who was acting in his or her professional capacity to give investment advice 

would assume "investment in an enterprise" to mean both a purchase of stock and a loan 

of money to a particular business.2 

In the same vein, the principal opinion's conclusion that a reasonable attorney 

would know that a layperson cannot invest in a law firm begs the central question.3 

Section 356.111.1, RSMo 2000, would prevent a layperson from obtaining an ownership

interest in securities of a professional corporation, but the statute says nothing of who can 

invest in a professional corporation. "A professional corporation may issue shares, 

fractional shares, rights or options to purchase shares, and other securities only to the 

following: ...." Id. By stating that § 356.111.1 precluded Taylor from investing in the 

 

2 To illustrate, the definition of investment provided by Black's Law Dictionary uses "bonds held to 

maturity" as an example of an investment. Black's Law Dictionary, at 902. It defines a "bond" as a "written promise 

to pay money or do some act if certain circumstances occur or a certain time elapses." Id. at 200. Clearly an 

investment in an enterprise can include providing debt financing to a business; it is not limited to the purchase of an 

equity share in a business. The principal opinion draws an empty distinction. As previously mentioned, the fact that 

"investment in an enterprise" can mean providing both debt and equity financing to a particular business does not 

make the phrase ambiguous. See Chesterfield Mgmt. Assocs., 407 S.W.3d at 629.

Likewise, nothing about the word "enterprise" suggests an investment must be a purchase of an equity 

share in a business. The principal opinion inexplicably comes to that conclusion from use of the phrase "financial 

commitment," presumably by some dictionary. Slip op. at 16. The ninth edition of Black's Law Dictionary defines 

"enterprise" as "[a]n organization or venture, esp. for business purposes;" it does not define it as one involving a 

"financial commitment." Black's Law Dictionary, at 611. Regardless, a loan is a financial commitment even though 

it must be paid back, and there is no tenable argument that the Wirken Law Group and Longview were not 

"enterprises."

3 The principal opinion states the following as its rationale: "Would a reasonable attorney think that a nonlawyer could invest in his or her law firm? No. Would a reasonable attorney think that a non-lawyer can make a 

loan, profitable or not, to a law firm? Yes. Can a non-lawyer invest in a law firm? No." Slip op. at 19.
11

Wirken Law Group, the principal opinion assumes its conclusion—that the definition of 

an investment in a professional corporation is limited to a purchase of an equity share. 

As noted, the policy does not restrict the word "investment" to this narrow definition.

Although loans may not always be considered investments for all purposes, this 

does not make the policy ambiguous.4 It is sufficient that no reasonable attorney would 

conclude that the loans in this case were not investments. The principal opinion holds 

that the exclusion is ambiguous because, at the time the insurance policy was drafted, an 

attorney conceivably might conclude, in the abstract, that some loan somewhere may not 

be considered an investment. Slip op. at 11 n.8 (stating that the court's standard of review 

is limited to what the parties would believe the contract means at the time of contracting). 

But coverage disputes are not resolved in the abstract. Wirken created and had control of 

the undisputed facts of his own legal malpractice insurance coverage question. The 

investment advice that Wirken gave to Taylor was to make six loans and receive a return

on his money. There is no doubt that each loan constituted an "expenditure of money for 

income or profit."5 Webster's Third New International Dictionary, at 1190.

 

4 The Supreme Court of Missouri has found that loans may not always have been considered investments. 

See Hines v. Am. Sur. Co. (In re Keisker's Estate), 168 S.W.2d 96, 98-99 (Mo. 1943) (stating that the words "loan" 

and "invest" are often used interchangeably, but distinguishing an "investment in bonds of the United States" from a 

loan because the particular statute's use of the word "investment" contemplated a purchase); see also Oren v. C.I.R., 

357 F.3d 854, 857-58 (8th Cir. 2004) (holding that a shareholder's loan to a corporation does not constitute an 

investment for purposes of calculating the shareholder's income taxes, when the transaction was essentially a sham 

and the shareholder incurred no actual economic outlay); Ahrens v. Minn. Lawyers Mut. Ins. Co., 432 F. App'x 143, 

149-50 (3d Cir. 2011) (suggesting that loans may not always be considered investments for all purposes but holding 

that certain transactions were investments, as that term normally is used and as used in the legal malpractice 

insurance policy exclusion in that case, while emphasizing that the "insured's reasonable expectations" precluded 

coverage).

5 At least one of the Longview was a complex transaction, which illustrates why a reasonable attorney 

could only conclude that Wirken's advice was investment advice. Taylor paid $138,000 to Longview up front for a 

$150,000 loan, in effect paying the interest up front. Slip op. at 5. The whole amount of the loan was due all at 

once, three months later. Id. Although the parties did not arrange this transaction as the purchase of a bond, there is 

practically no difference. In a zero-coupon bond transaction, the purchaser (the lender) pays the issuer (the 
12

It is difficult to find a better word to describe the loans. One must affirmatively 

avoid using the word "investment." This is apparent from the fact that Taylor himself did 

not avoid using the term to describe the loans, and even Wirken described the Longview 

loans as "investments" when pitching the idea to Taylor. Taylor admitted in his Second 

Amended Petition in the underlying lawsuit that he had sought "investment advice" from 

Wirken and that "Wirken advised [Taylor] that he was aware of a tremendous investment 

opportunity" regarding the Longview loans. Although the subjective beliefs of neither 

Taylor nor Wirken are dispositive of what a reasonable attorney would believe, the fact 

that both parties referred to the loans colloquially as "investments" illustrates the strained 

logic required to conclude that these loans were anything but investments in two 

particular business enterprises. 

These six loans were investments in two enterprises—the Wirken Group and 

Longview. In my view, no reasonable attorney in Wirken's position could have 

concluded otherwise. There is no "indistinctness and uncertainty," and no one was 

required to "guess at the meaning" of the policy exclusion just because there is more than 

one dictionary definition of the word "investment." Slip op. at 16, 19. After reading 

what the policy excluded, any reasonable attorney would have concluded that advising 

 

borrower) something lower than the face value of the bond at the outset, in lieu of receiving the periodic interest 

payments typical of a run-of-the mill bond (known as "coupon" payments). Black's Law Dictionary, at 205. The 

effect is that the issuer pays the interest up front. Id. The bondholder turns a profit at maturity, assuming there is no 

default, when the issuer pays the bond's face value. Id. 

This was not a "simple loan," and the transaction sounds complicated because it was. Wirken and Taylor 

were required to analyze, or at least should have analyzed, the risk of default as reflected in (1) the high interest rate, 

(2) the short repayment period, and (3) the fact that the borrower was willing to pay the interest up front. Each 

suggests a higher risk of default. The principal opinion nonetheless holds that it is reasonable for a lawyer to 

conclude that advising his or her client to engage in the practical equivalent of a zero-coupon bond debt financing 

transaction to a particular business is not advising the client to make an investment in an enterprise.
13

Taylor to make these loans would not be covered by insurance. I would hold that the 

exclusion is clear and unambiguous and that the court must apply the plain language of 

the exclusion as it is written. Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718, 720 

(Mo. banc 2008).

The principal opinion insinuates that because the fact of malpractice is not at issue 

in this case, neither is the issue of whether Wirken's actions were covered by the 

insurance policy. Slip op. at 20-21 & n.14. The principal opinion's rationale is that the 

general insuring clause provides coverage of the malpractice and that the exclusion must 

be construed strictly against the drafter. But whether an exclusion applies is inherent in 

the question of whether the policy provides coverage. See Todd v. Mo. United Sch. Ins. 

Council, 223 S.W.3d 156, 163 (Mo. banc 2007) (holding that an insurance policy that 

provided for a broad grant of coverage in one provision with limits in separate exclusions 

was not ambiguous, and stating 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"). 

This court should not resort to canons of statutory construction when policy 

language is unambiguous. Gavan, 242 S.W.3d at 720; Ballmer, 899 S.W.2d at 525. 

When there is no ambiguity, the plain language governs. Id. It is irrelevant whether that 

plain language is in the general insuring clause or in a policy exclusion. See Todd, 223 

S.W.3d at 163. Insurance policies are routinely written with policy exclusions, and a 

reasonable attorney reading the policy would not have ignored the "legal representative 

of investors" exclusion in determining coverage. Contrary to the majority opinion's use 
14

of the phrase "burden of proof," this case was resolved as a pure question of law by the 

circuit court, which determined the policy provisions were unambiguous. See 

Mendenhall, 375 S.W.3d at 92 (stating that whether a policy exclusion is unambiguous is 

a question of law). The Bar Plan, based on undisputed facts, demonstrated that the policy 

unambiguously excluded coverage.

Summary and Conclusion

The "legal representative of investors" exclusion can be broken down into three 

elements. It excludes coverage for: (1) claims that are "based upon or aris[e] out of" the 

insured's capacity as a "legal representative of investors;" (2) when the representation was 

"in regard to and resulted in an investment in an enterprise;" and (3) when the insured 

either (a) "owns an equity interest" in the enterprise in which the investment was made or 

(b) "receives a fee or commission from an [e]ntity other than the investor" for the 

investment.

Here, it is undisputed that Wirken was a "legal representative" of Taylor because 

Wirken was acting within the scope of an attorney-client relationship regarding all six 

loans. The representation was in regard to and resulted in an "investment in an 

enterprise" because, as discussed, Taylor's interest-bearing loans to the Wirken Law 

Group and Longview were well within the definition of "investments in enterprises," as a 

reasonable attorney would understand that phrase. This made Taylor an "investor." As 

to the first set of three loans, Wirken was the sole owner of the Wirken Law Group—

which was "the enterprise invested in." And as to the second set of three loans, Wirkin 
15

received a commission based fee from Longview—which was "an Entity other than the 

investor." All three elements of the policy exclusion are met.6

In my view, the circuit court did not "miss a step" in its analysis. Slip op. at 18. It 

correctly determined that the loans were investments. I agree with the circuit court's legal 

conclusion that Wirken could not have reasonably expected that his actions in soliciting 

and facilitating loans from his client to his own law firm and to another client would be 

covered by his malpractice insurance policy, given the language of the policy exclusion. 

I would affirm the circuit court's judgment that The Bar Plan is entitled to judgment as a 

matter of law.

/s/ Zel M. Fischer

___________________________

Zel M. Fischer, Special Judge

 

6 Taylor also presents two claims that the principal opinion does not address: (1) that even if the policy 

exclusion is unambiguous, it does not apply to this claim, and summary judgment was inappropriate because some 

of Wirken's actions did not fall within the exclusion; and (2) that The Bar Plan did not prove that the exclusion 

applies because the policy's use of the word "and" to connect four different exclusions means The Bar Plan was 

required to meet all of them. These claims are also without merit. In light of the scope of the issues discussed in the 

principal opinion, I do not address these arguments here.