Full Opinion (html_with_citations)

                            MISSOURI COURT OF APPEALS
                                WESTERN DISTRICT

YOLANDA BELL,                                    )
                                                 )
                       Appellant,                )    WD85804
                                                 )
v.                                               )    OPINION FILED:
                                                 )
SHELTER GENERAL INSURANCE                        )    December 12, 2023
COMPANY,                                         )
                                                 )
                       Respondent.               )
                                                 )

                 Appeal from the Circuit Court of Jackson County, Missouri
                             Honorable John Torrence, Judge

                Before Division One: Edward R. Ardini, Jr., Presiding Judge,
                   Anthony Rex Gabbert, Judge, and Janet Sutton, Judge

       Yolanda Bell (Bell) appeals following the Jackson County Circuit Court’s judgment

dismissing without prejudice her class action petition on behalf of herself and all others similarly

situated alleging Shelter General Insurance Company (Shelter) breached its contractual duties

under the insurance policy. Bell alleged a breach of contract in that Shelter failed to include

sales tax and all fees as part of its loss claims payments upon the loss of an insured vehicle. Bell

appeals, arguing the circuit court erred in dismissing her amended petition alleging that Shelter

breached its contractual duties under the insurance policy because her claim was well-pleaded

and reasonably interpreted Shelter’s vehicle insurance policy as requiring payment of sales tax
and fees where the insurer elects to pay the “comparable value” of the vehicle. We reverse and

remand.

                              Factual and Procedural Background

       As stated in her amended petition, Bell insured a 2007 Land Rover Range Rover SC with

Shelter when, in February 2018, the vehicle sustained damage. Bell then filed a claim for

coverage of the property damage with Shelter, and Shelter determined the vehicle was a total

loss. Shelter valued the vehicle at $11,467.00 and added $559.00 as a condition adjustment,

bringing the total adjusted vehicle value to $12,026.00.

       Shelter then paid Bell the market value for the vehicle, $12,026.00, added $11.00 in fees,

and subtracted the policy’s deductible of $250.00. Thus, Bell received a total payment of

$11,787.00. This payment, however, did not include sales tax and, as Bell alleges, the payment

also underpaid her fees, arguing the fees necessary to acquire ownership of another vehicle

ranged from $38.75 to $71.75.

       In February 2022, Bell filed a class-action petition and later filed an amended petition in

June 2022. In the amended petition, Bell alleged Shelter breached its contractual duties in failing

to pay her and all similarly situated insureds the sales tax and all fees owed as stated in Shelter’s

insurance policy. Bell did not claim that she acquired a replacement vehicle nor that she actually

incurred costs from sales taxes and fees. Rather, Bell alleged that Shelter determined the cost to

repair the vehicle was too expensive and elected to pay Bell the “comparable value” of her

vehicle under the policy. Bell relied on sections 6(c) and 6(d) of the insurance policy:

               (6) Comparable value means the depreciated worth of a covered auto or
       part immediately before the accident; plus the reasonable charges required to
       pay for any of the following that apply to the claim:
               ...
               (c) Sales tax or luxury vehicle tax you must incur to acquire ownership of
       another auto or part to replace a covered auto or part with one of equal value; and



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                (d) Other taxes or fees you must incur to acquire ownership of another
         auto or part to replace a covered auto or part with one of equal value.

         Bell alleged that the “comparable value” under the Shelter policy included sales tax and

any other taxes and fees that she would incur at a future date to acquire a new vehicle of equal

value. Bell alleged that she and all class members are entitled to damages in the amount of sales

tax and fees, less any amount in sales tax or fees already paid by Shelter, along with prejudgment

interest, post-judgment interest, costs, and attorneys’ fees.

         In June 2022, Shelter filed a motion to dismiss Bell’s amended petition and submitted

suggestions in support. Shelter argued Bell, who had the burden of pleading facts which would

establish coverage, failed to allege any of the necessary circumstances for Shelter to have paid

her sales tax or fees under the insurance policy. Shelter argued that Bell failed to state a claim

for breach of contract because Bell did not plead that she acquired a replacement vehicle of equal

value and therefore did not incur reasonable charges for sales tax and fees.

         Relying on the same sections 6(c) and 6(d) of the insurance policy, Shelter argued that,

under the policy’s plain language, Bell needed to actually incur charges for sales tax and fees

before Shelter’s insurance coverage would be triggered for these costs. Because Bell never

acquired a replacement auto, Bell never incurred the “reasonable charges” for sales tax or fees as

required by sections 6(c) and 6(d), 1 triggering Shelter’s obligation to pay, therefore there was no

breach of contract alleged.




1
    The Shelter vehicle insurance policy stated:

         (44) Reasonable charges means the lesser of:

         (a) The amount for which we can discharge the insured’s entire obligation to the
             person providing the goods and services; or



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         In July 2022, Bell filed her suggestions in opposition to Shelter’s motion to dismiss.

Again, Bell argued that Shelter’s vehicle insurance policy’s plain language did not require her to

have first purchased a replacement vehicle for Shelter to owe her sales taxes and fees. Bell

further articulated that because section 6(a) and 6(b) used past-tense verbiage while sections 6(c)

and 6(d) used future tense, then 6(c) and 6(d) must refer to the future sales taxes and fees that

could be incurred by the insured. 2 Bell argued that Shelter’s failure to pay her sales tax and fees

for her damaged vehicle “constitute[d] a clear and straightforward breach of contract.”

         In October 2022, the circuit court granted Shelter’s motion to dismiss Bell’s amended

petition and did so without prejudice. 3 The circuit court dismissed Bell’s petition without a

hearing and, in its order, the circuit court stated it had reviewed the relevant points and

authorities as well as the specific policy language, but provided no further explanation for its

decision beyond stating that Bell’s petition did not state a claim for relief.




         (b) The charges incurred for goods and services that, in our judgment, are within
             the range of charges for the same or similar goods and services, in the
             geographic area where the services are rendered or the goods are purchased.
2
    Sections 6(a) and 6(b) read as follows:

         (a) Incurred cost for the necessary towing of a covered auto from the place where
             the accident occurred;

         (b) Incurred cost for necessary storage of a covered auto from the day you make a
             claim under this policy until we offer to settle that claim.
3
  “Generally, a dismissal without prejudice is not a final, appealable judgment.’’ Pride v. Boone
Cnty. Sheriff’s Dep’t,
667 S.W.3d 210
 (Mo. App. W.D. 2023). “However, when the court
dismisses the petition without prejudice for failure to state a claim and the plaintiff elects to stand
on her petition rather than pleading additional facts, the judgment of dismissal constitutes an
appealable adjudication on the merits.”
Id.
 Because Bell decided to stand on her first amended
petition rather than amending it, her appeal is properly before this Court.



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       Bell appeals. Additional facts necessary to the disposition of the case are included below

as we address Bell’s point on appeal.

                                          Legal Analysis

       In her sole point on appeal, Bell argues that the circuit court erred in dismissing her

amended petition alleging that Shelter breached its insurance policy contract by failing to include

sales tax and fees as part of its payment compensating for the loss of her vehicle. Bell argues

that her allegations were well-pleaded and that she reasonably interpreted the “comparable

value” of a vehicle to include payment of sales tax and fees necessary to acquire a replacement

vehicle. We agree the circuit court erred in dismissing Bell’s petition, and reverse the circuit

court’s order granting Shelter’s motion to dismiss.4

       “We review de novo a circuit court’s judgment sustaining a motion to dismiss on the

pleadings.” Lee v. Missouri Dep’t of Transp.,
618 S.W.3d 258
, 261 (Mo. App. W.D. 2021). See

Forester v. May,
671 S.W.3d 383
, 386 (Mo. banc 2023). “When considering whether a petition

states a claim upon which relief can be granted, th[is] Court reviews the plaintiff’s petition to

determine if the facts alleged meet the elements of a recognized cause of action, or of a cause of

action that might be adopted in th[e] case.” Forester, 671 S.W.3d at 386 (internal quotation and

citation omitted). We “may not weigh the factual allegations to determine whether they are

credible or persuasive.” Murray-Kaplan v. NEC Ins., Inc.,
617 S.W.3d 485
, 491 (Mo. App. E.D.

2021). Further:

       A motion to dismiss for failure to state a claim on which relief can be granted is
       solely a test of the adequacy of the petition. When considering whether a petition
       fails to state a claim upon which relief can be granted, this Court must accept all


4
  In a motion to reconsider taken with the case and in its brief, Shelter asks that we reconsider
our May 2023 order granting Bell’s motion to set aside the appeal’s dismissal that reinstated
Bell’s appeal. We decline Shelter’s request and deny Shelter’s motion.



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       properly pleaded facts as true, giving the pleadings their broadest intendment, and
       construe all allegations favorably to the pleader.

Lee, 618 S.W.3d at 261 (quoting Mitchell v. Phillips,
596 S.W.3d 120
, 122–23 (Mo. banc 2020))

(emphasis added). See Forester, 671 S.W.3d at 386. “In other words, the claimant merely must

allege facts sufficient to state a cognizable cause of action.” Lee, 618 S.W.3d at 261 (citation

omitted).

       We review the petition “in an almost academic manner, to determine if the facts alleged

meet the elements of a recognized cause of action or of a cause that might be adopted in that

case.” Moore v. Armed Forces Bank, N.A.,
534 S.W.3d 323, 326
 (Mo. App. W.D. 2017)

(quoting Keveney v. Missouri Mil. Acad.,
304 S.W.3d 98, 101
 (Mo. banc 2010)). “The essential

elements of a breach of contract action include: ‘(1) the existence and terms of a contract; (2)

that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the

contract by the defendant; and (4) damages suffered by the plaintiff.’”
Id.
 (quoting Keveney,
304 S.W.3d at 104
).

       Shelter argues that Bell did not plead the elements necessary for a breach of contract

action because Bell did “not allege: (1) that she actually paid or incurred any sales tax or fees; (2)

that she acquired ownership of another auto to replace the Range Rover; or (3) that such a

replacement auto was one of equal value to the Range Rover.” Thus, Bell did not meet her

burden “to plead facts establishing [that] each of these three circumstances exist, so as to trigger

coverage for sales tax and fees, ‘and thereby state a claim upon which relief may be granted.’”

       In the amended petition, however, Bell, on behalf of herself and all others similarly

situated, pled the elements necessary for a breach of contract action under her insurance policy

interpretation. Bell pleaded: (1) the existence and terms of the Shelter vehicle insurance policy

between herself, as well as all class members, and Shelter insurance; (2) Bell and all class



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members “made a claim determined by Shelter to be a first-party loss under the insurance policy

and determined by Shelter to be a covered claim”; (3) Shelter did not pay or underpaid sales

taxes and fees in the loss claim payments; and (4) Bell and all class members were damaged and

entitled to damages in the amount of the sales tax and fees, less any amount in sales tax or fees

already paid, along with prejudgment interest, post-judgment interest, costs, and attorneys’ fees

allowable by law. Thus, giving the pleadings their broadest intendment and construing all

allegations favorably to Bell, Bell sufficiently pled the elements for a breach of contract claim.

       “The interpretation of an insurance policy is a question of law.” Murray-Kaplan, 617

S.W.3d at 493. Long v. Shelter Insurance Companies articulates the standard for interpreting

whether an insurance policy provides coverage:

               To determine whether an insurance policy provides coverage, we look to
       the insurance contract itself. If an insurance policy is unambiguous, we enforce
       the policy as written. The insurance policy must be given effect according to the
       plain terms of the agreement, consonant with the reasonable expectations,
       objectives and the intent of the parties. We look to definitions in insurance
       policies to guide our interpretation, . . . but when words or phrases are not defined
       in the policy, we look to the plain meaning of words and phrases as it would have
       been understood by an ordinary person of average understanding when buying the
       policy. 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, and resolves ambiguities in favor of the
       insured.

Long v. Shelter Ins. Companies,
351 S.W.3d 692
, 701–02 (Mo. App. 2011) (internal quotation

marks and citations omitted). See also Burns v. Smith,
303 S.W.3d 505
, 509–13 (Mo. banc

2010) (explaining further proper insurance policy interpretation and resolution of policy

ambiguities under Missouri law); Seeck v. Geico Gen. Ins. Co.,
212 S.W.3d 129
, 132–34 (Mo.

banc 2007) (interpreting the meaning of an underinsured motorist insurance policy and resolving

ambiguities in favor of the insured).




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       Bell and Shelter propound two different interpretations of sections 6(c) and 6(d) in the

insurance policy. Both assert their interpretation relies on the plain language of the policy and

insist their reading—either requiring or not requiring the acquisition of a replacement vehicle—is

correct. Yet, whether the insurance coverage was triggered without Bell having actually

acquired a replacement vehicle is a question of law integral to Bell’s breach of contract claim.

See Murray-Kaplan, 617 S.W.3d at 493 (“The interpretation of an insurance policy is a question

of law.”).

       By construing all allegations favorably to Bell, as is the appropriate review for a motion

to dismiss, we find the policy language does not foreclose Bell’s claim. See Lee, 618 S.W.3d at

261 (quoting Mitchell, 596 S.W.3d 122–23) (emphasis added) (“[T]his Court must accept all

properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all

allegations favorably to the pleader.”). Giving the pleadings their broadest intendment, Bell’s

case theory may be supported by the insurance policy language.

       Bell’s amended petition survives a motion to dismiss if an ordinary person of average

understanding could interpret “comparable value” under sections 6(c) and 6(d) as requiring

Shelter pay sales tax and fees without the acquisition of a replacement vehicle. Bell’s amended

petition does not allege that she actually incurred sales tax or fees nor that she acquired a

replacement vehicle because neither is necessary under Bell’s contract interpretation of the

disputed insurance policy provision. It logically follows that Bell omitted this information

because it is unnecessary under Bell’s interpretation of sections 6(c) and 6(d). Bell, in fact,

conceded that she did not pay sales tax and fees on a replacement vehicle in her opposition to

Shelter’s motion to dismiss because her claim does not hinge on these facts. Again, Bell’s




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petition “merely must allege facts sufficient to state a cognizable cause of action.” Lee, 618

S.W.3d at 261 (citation omitted).

       In reviewing a motion to dismiss, we need not determine whether Bell or Shelter properly

interpreted sections 6(c) and 6(d) of the insurance policy and, thus, whether Shelter breached its

duty to Bell and other class members. Rather, the relevant question is whether Bell alleged facts

that, if eventually proven, would entitle Bell and other class members to relief on her claim that

Shelter breached the insurance policy. See Murray-Kaplan, 617 S.W.3d at 493. “This

distinction clarifies why courts must take the petition’s allegations as true, grant them their

broadest possible intendment, and construe all allegations favorably to the pleader.” Id.

       Giving the pleadings their broadest intendment and construing all allegations favorably to

Bell, her petition sufficiently alleges those facts necessary to forward her breach of contract

claim. We need not address whether Bell or Shelter correctly interpreted the vehicle insurance

policy, only that Bell alleged a plausible interpretation under the policy language as pleaded in

the amended petition when construing all allegations favorably to Bell. The appropriate

interpretation is a question of law for the circuit court to resolve in further proceedings but not on

a motion to dismiss. Bell’s amended petition is legally adequate, and the circuit court erred in

granting Shelter’s motion to dismiss.

                                            Conclusion

       We reverse and remand the circuit court’s judgment for further proceedings consistent

with this opinion.

                                               Janet Sutton, Judge

Edward R. Ardini, Jr., P.J., and Anthony Rex Gabbert, J. concur.




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