author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri ex rel. Jeremiah W. (Jay) NIXON, Attorney General, State of Missouri, Respondent, v. Tony KOONCE, Appellant.
    No. WD 64353.
    Missouri Court of Appeals, Western District.
    May 31, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      Tony Koonce, Bowling Green, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Paul Harper, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: EDWIN H. SMITH, C.J., and HOLLIGER and HOWARD, JJ.
   EDWIN H. SMITH, Chief Judge.

Tony Koonce appeals, pro se, from a judgment of the Circuit Court of Cole County in favor of the respondent, the State of Missouri, on its petition for reimbursement, pursuant to the Missouri Incarceration Reimbursement Act (MIRA), §§ 217.825-.841, for the costs of his incarceration in the Missouri Department of Corrections (DOC). The appellant was convicted in 1986, in the Circuit Court of the City of St. Louis, of two counts of forcible rape, one count of forcible sodomy, and one count of attempting to commit forcible sodomy. He was sentenced to serve concurrent prison terms of thirty years on each count in the DOC, which sentences he began serving in 1986.

The appellant raises three points on appeal. In Point I, he claims that the trial court erred in entering judgment in favor of the State on its MIRA petition because the court lacked personal jurisdiction due to insufficient service of process, in accordance with § 217.835.2. In Point II, he claims that the trial court erred in entering judgment in favor of the State on its MIRA petition because it violated § 217.831.3, which requires a threshold amount that must be available for the recovery of incarceration expenses before the Attorney General can file a MIRA petition. In Point III, he claims that the trial court erred in ordering him to pay the full filing fee for this appeal because it violated § 506.369, which limits an inmate’s filing fee to a partial assessment based on the activity of his correctional center account for a six-month period preceding the filing of the appeal.

We affirm.

Facts

On January 31, 1986, the appellant was ordered to serve, pursuant to his convictions of two counts of forcible rape, one count of forcible sodomy, and one count of attempting to commit forcible sodomy, concurrent prison terms of thirty years on each count in the DOC. He is currently serving those sentences, which commenced in 1986, at the Northeast Correctional Center in Bowling Green, Missouri.

On December 5, 2003, the State filed, in the Circuit Court of Cole County, a MIRA petition seeking reimbursement for the appellant’s cost of incarceration. The appellant was served with the petition by certified mail, addressed to him personally. The petition alleged that the State expends approximately $13,000 per year for each inmate in the custody of the DOC, and that it had expended, to date, $163,194.81 in incarcerating the appellant. The petition further alleged that the appellant had a balance of $2,199.51 in his correctional center account.

On December 8, 2003, the trial court entered an order directing the appellant to show cause why an order should not be entered appropriating his assets to reimburse the State for the cost of his incarceration and appointing a receiver for the funds in the appellant’s inmate account. The order further directed the appellant to respond by February 18, 2004.

On January 12, 2004, the appellant filed a response to the trial court’s show cause order. In his response, the appellant claimed that the State was not entitled to reimbursement because the State had failed to comply with the statutory requirements of MIRA. Specifically, he alleged that the State could not seek reimbursement in accordance with MIRA in that the amount in his correctional center account was $2,199.51, which was less than 10% of the estimated costs of two years of incarceration, and less than 10% of the estimated costs of his entire incarceration. The appellant asked the court to dismiss the respondent’s petition.

On January 13, 2004, the State filed a “response to defendant’s motion to dismiss,” alleging that, in addition to the $2,199.51 in the appellant’s correctional center account, at the time the petition was filed, the account activity demonstrated consistent monthly deposits of $230 since May of 2003. From this, the State alleged that the appellant had an income stream sufficient to pay, within a five-year period, either ten percent of the estimated costs of the appellant’s incarceration, or ten percent of such costs for two years, whichever was less, as required by § 217.831.3.

On February 2, 2004, the appellant filed a supplemental response to the trial court’s show cause order, in which he responded to the issues raised by the State in its response. The appellant contended that any allegation of a future income was merely speculative, and that the monthly deposits were gifts from family and friends, which could be discontinued at any time due to economic hardships or other reasons.

On February 18, 2004, the trial court heard the State’s petition. On the same date, the court entered a judgment for the State, finding that the appellant had $2,053.28 in his correctional center account, and that ninety percent of that account, or $1,847.96, was subject to reimbursement, under the MIRA. The court ordered the inmate finance officer of the DOC to pay $1,847.96 from the appellant’s inmate account into the Inmate Incarceration Reimbursement Act Revolving Fund, established by § 217.841.1. The court also entered judgment against the appellant for reimbursement of future costs of his incarceration.

This appeal followed.

I.

In Point I, the appellant claims that the trial court erred in entering judgment in favor of the State on its MIRA petition because the court lacked personal jurisdiction due to insufficient service of process in that the respondent’s petition was not served by registered mail addressed to the chief administrator of the correctional center where he was incarcerated, as required by § 217.835.2. We disagree.

Section 217.835.2 provides, inter alia, that a petition for the reimbursement of incarceration costs “shall be served upon the person personally, or, if the person is confined in a state correctional center, by registered mail addressed to the person in care of the chief administrator of the state correctional center where the person is housed.” In this case, even though the appellant was “confined in a correctional center,” the petition was mailed to him personally, via certified mail, rather than to the chief administrator of the facility by registered mail. The appellant contends that the trial court’s judgment is void because of this failure to comply with the service provisions of § 217.835.2.

The appellant is raising the issue of service of process and personal jurisdiction for the first time on appeal. However, Rule 55.27(g) provides, in pertinent part:

(1) A defense of:
(A) Lack of jurisdiction over the person,
(B) Insufficiency of process,
(C) Insufficiency of service of process
is waived if it is:
(A) Omitted from a motion in the circumstances described in Rule 55.27(f), or
(B) Neither made by motion under this Rule 55.27 nor included in a responsive pleading.

Thus, the appellant waived his claim that the trial court lacked personal jurisdiction due to the insufficiency of the service of process, as provided in § 217.835.2. See In Interest of J.D.B., 836 S.W.2d 520, 521 (Mo.App.1992); State ex rel. Buffington v. Gaertner, 657 S.W.2d 957, 958 (Mo. banc 1983).

Point denied.

II.

In Point II, the appellant claims that “[t]he trial court erred in granting respondent’s Petition for Reimbursement under the Missouri Incarceration Reimbursement Act, Section 217.825 through 217.845, RSMo.2000, in that the state lacked legal authority to grant respondent’s petition.” The fact that the appellant is proceeding pro se does not excuse him from complying with the briefing requirements of Rule 84. Boyer v. City of Potosi 77 S.W.3d 62, 68 (Mo.App.2002). Point II fails to substantially comply with Rule 84.04(d), governing proper Points Relied On (PRO).

Rule 84.04(d)(1) provides:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].”

Thus, the rule requires that a proper PRO must: (1) identify the ruling or action of the trial court that is being challenged on appeal; (2) state the legal reason or reasons for the claim of reversible error; and (3)explain in summary fashion why, in the context of the case, the legal reason or reasons support the claim of reversible error. Lombardo v. Lombardo, 120 S.W.3d 232, 247 (Mo.App.2003). Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made. Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo.App.2000). The failure to comply with Rule 84.04(d) warrants dismissal of the appeal. Young v. Ernst, 113 S.W.3d 695, 697 (Mo.App.2003).

The appellant’s PRO in Point II fails to explain in summary fashion why, in the context of this case, the legal reason or reasons support the claim of reversible error. His PRO is nothing more than an abstract statement of the law, which is unacceptable in satisfying the requirements of Rule 84.04(d). Lombardo, 120 S.W.3d at 247. This alone would be sufficient to dismiss the appellant’s claim of error. Young, 113 S.W.3d at 697. However, we will review a PRO that does not technically comply with Rule 84.04(d), as long as we are able to ascertain the issues being raised to some degree of certainty by reading the PRO in conjunction with the argument thereon and provided that in doing so we are not forced to become an advocate for the appellant, which we cannot do. Loumiet v. Loumiet, 103 S.W.3d 332, 345 (Mo.App.2003).

Reading the appellant’s PRO in conjunction with his argument thereon, it is apparent that he is claiming that the trial court’s MIRA judgment for the State violated § 217.831.3, which provides that, if the Attorney General:

has good cause to believe that an offender or former offender has sufficient assets to recover not less than ten percent of the estimated cost of care of the offender or ten percent of the estimated cost of care of the offender for two years, whichever is less, or has a stream of income sufficient to pay such amounts within a five-year period, the attorney general may seek to secure reimbursement for the expense of the state of Missouri for the cost of care of such offender or former offender.

The appellant contends that, pursuant to this section, a MIRA judgment could not issue against him, unless the State first showed that he had assets subject to MIRA reimbursement, which were sufficient to satisfy the applicable 10% threshold requirement of § 217.831.3, and that the State had failed in that burden. In other words, he is contending that the 10% requirement is a threshold amount that is a condition precedent to a MIRA reimbursement. The State contends, however, that the 10% threshold requirement of § 217.831.3 is not a condition precedent to a MIRA reimbursement, but is simply a condition precedent to the filing of a MIRA petition by the Attorney General. We agree.

In determining the issue presented, we necessarily must interpret § 217.831.3. Statutory interpretation is purely a question of law, which we determine de novo. Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo.App.2002). When interpreting a statute, we are to determine the intent of the legislature, giving the language used its plain and ordinary meaning, and give effect to that intent, if possible. State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo. banc 1997). If the intent of the legislature is clear and unambiguous, giving the language used in the statute its plain and ordinary meaning, then we are bound by that intent and cannot resort to any statutory construction in interpreting the statute. Baxley v. Jarred, 91 S.W.3d 192,196 (Mo.App.2002).

In 1988, the Missouri General Assembly enacted the MIRA, which is found in §§ 217.825 to 217.841. Pursuant to the MIRA, every offender is required to complete a standard form regarding his assets upon being sentenced to imprisonment in the DOC. §§ 217.829.1-3. An “offender” is defined in § 217.827(5) as “any person who is under the jurisdiction of the department and is confined in any state correctional center or is under the continuing jurisdiction of the department!.]” The “department” is the “department of corrections of this state [DOC][.]” § 217.827(3). Pursuant to § 217.831.1, the director of the DOC is required to “forward to the attorney general a report on each offender containing a completed form ... together with all other information available on the assets of the offender and an estimate of the total cost of care for that offender.” The Attorney General may then investigate or cause to be investigated the forms that have been forwarded. § 217.831.2. And if, upon completing his investigation, the Attorney General has good cause to believe that the offender has sufficient assets to recover at least “ten percent of the estimated cost of care of the offender or ten percent of the estimated cost of care of the offender for two years, whichever is less, or has a stream of income sufficient to pay such amounts within a five-year period,” he “may seek to secure reimbursement” for the cost of the offender’s care. § 217.831.3.

Pursuant to § 217.835.1, the Attorney General is authorized to:

file a complaint in the circuit court for the county or city from which a prisoner was sentenced or in the circuit court in the county or city of the office of the director of the department, against any person under the jurisdiction of the department stating that the person is or has been an offender in a state correctional center, that there is good cause to believe that the person has assets, and praying that the assets be used to reimburse the state for the expenses incurred or to be incurred, or both, by the state for the cost of care of the person as an offender.

Once a complaint is filed, the circuit court is required to issue an order to show cause why the complaint should not be granted. § 217.835.2. After a hearing on the complaint and order, the court shall order reimbursement to the State, provided: “it appears that the person has any assets which ought to be subjected to the claim of the state pursuant to the provisions of sections 217.825 to 217.8U” § 217.835.3 (emphasis added). In claiming as he does, the appellant is asking us to interpret this italicized phrase of the statute as requiring proof of compliance with the 10% threshold requirement of § 217.831.3 for a MIRA judgment to issue.

Section 217.831.3 provides, in pertinent part, that: “the attorney general may seek to secure reimbursement for the expense of the state of Missouri for the cost of care of such offender or former offender.” (Emphasis added.) In using the term “may,” it is clear that the legislature intended that the Attorney General would have discretion in whether to seek a MIRA reimbursement. Pfefer v. Bd. of Police Comm’rs, 654 S.W.2d 124, 128 (Mo.App.1983) (stating that the use of the word “may” in a statute confers discretion). However, it is also clear that it intended that this discretion would not be unfettered. This is made clear by the “if” language of the statute. Section 217.831.3 begins:

If the attorney general upon completing the investigation under subsection 2 of this section has good cause to believe that an offender or former offender has sufficient assets to recover not less than ten percent of the estimated cost of care of the offender or ten percent of the estimated cost of care of the offender for two years, whichever is less, or has a stream of income sufficient to pay such amounts within a five-year period....

(Emphasis added.) The “if’ indicates that the Attorney General’s discretion in seeking a MIRA reimbursement is predicated on his having a good faith belief that the requisite enumerated conditions of the statute have been met. See Baxley, 91 S.W.3d at 198 (stating that the term “if’ signifies a condition precedent). In other words, the legislature intended that the Attorney General’s discretion to file a MIRA petition would not vest unless and until the conditions precedent of the statute were met. However, once those conditions are met, it is clear that the legislature intended that he have unfettered discretion whether to file such a petition.

In State Treasurer v. Cuellar, 190 Mich.App. 464, 476 N.W.2d 644, 645 (1991), the Michigan Court of Appeals was called upon to interpret a section of the State Correctional Facility Reimbursement Act, M.S.A. § 28.1701 et seq., the functional equivalent of the MIRA. The court first opined that the Act “was designed to regulate the responsibilities of certain state officials and to provide procedures for securing reimbursement for expenses incurred by the state.” We believe that this characterization would accurately describe the purpose of the MIRA. The court was asked to interpret M.S.A. 28.1703(2) of the Act, a similarly worded statute to § 217.831.3. Section 28.1703(2) provided:

If the attorney general ... has good cause to believe that a prisoner has sufficient assets to recover not less than 10% of the estimated cost of care of the prisoner or 10% of the estimated cost of care of the prisoner for 2 years, whichever is less, the attorney general shall seek to secure reimbursement for the expense of the state of Michigan for the cost of care of that prisoner.

(Emphasis added.) Apparently focusing on the term “shall,” the Michigan Court of Appeals read the section as providing that the “Attorney General must seek reimbursement when the assets of the prisoner are such that a recovery of not less than ten percent of the cost of care is possible.” Cuellar, 476 N.W.2d at 645 (emphasis added). The court, however, determined that the section did not bar the filing of a petition if the threshold amount was not met, leaving that to the discretion of the Attorney General. Id.

Unlike the Michigan statute, § 217.831.3 substitutes “may” for “shall” meaning that in Missouri, if the conditions precedent of § 217.831.3 are met, the Attorney General is not mandated to file a MIRA petition, but that his discretion to do so is triggered. And, conversely, unlike under the Michigan statute, where the Attorney General has discretion as to whether to file a petition if the threshold test is not met, under the Missouri statute, if the conditions precedent are not satisfied, the Attorney General has no authority or discretion to file a MIRA petition. Obviously, by setting forth in the statute the conditions under which the Attorney General has discretion to file a MIRA petition, the legislature intended that unless those conditions were met, he was without authority to act. This would be in keeping with an intent to provide a cost-effective reimbursement procedure — limiting MIRA actions by the Attorney General to cases in which he has a reasonable belief that a recovery of a minimal amount of the cost of care of an offender is possible so as to justify exercising his discretion to file such an action. See Pous v. Dir. of Revenue, 998 S.W.2d 129, 131-32 (Mo.App.1999) (interpreting the phrase, “good cause to believe,” in § 302.291, as a reasonable belief that the Director should exercise the discretion granted to her under the statute).

Having determined that the 10% requirement threshold of § 217.831.3 speaks only to the power of the Attorney General to file a MIRA petition, the question becomes, in determining the appellant’s claim in this point, whether the language of § 217.835.3, directing when a MIRA judgment may issue, “if it appears that the person has any assets which ought to be subjected to the claim of the state pursuant to the provisions of sections 217.825 to 217.841,” can be read, as the appellant is necessarily contending, as requiring that the conditions precedent of § 217.831.3 have to be proven before a judgment may issue. In other words, the question is whether, as the appellant is contending, § 217.831.3, in addition to being a limitation on the Attorney General’s authority to file a MIRA petition, is a limitation on the assets of an offender subject to MIRA reimbursement.

We would first note that although § 217.835.3 references the “provisions of sections 217.825 to 217.841,” which absent any other qualifying language would include § 217.831.3, that reference is in the context of determining whether the offender “has any assets which ought to be subjected to the claim of the state.” Thus, the reference to the “provisions of sections 217.825 to 217.841,” in § 217.835.3 cannot be said to mandate the proof of all those provisions for a MIRA judgment to issue. Rather, the reference, in the context given, would be limited to those provisions of the Act addressing the assets that are subject to MIRA reimbursement. In that regard, as we discuss, supra, § 217.831.3, by its express terms, does not deal with what assets of the offender are subject to MIRA reimbursement, but deals solely with the authority of the Attorney General to file a MIRA petition. Hence, the language of § 217.835.3 in question cannot be read, as the appellant necessarily contends, as requiring the State to meet the conditions precedent of § 217.831.3 in determining, in accordance with § 217.835.3, whether he has assets subject to MIRA reimbursement so as to issue a judgment thereon.

Further reason for interpreting § 217.835.3 as not requiring proof that the offender has assets sufficient to satisfy the 10% threshold requirement of § 217.831.3 before a MIRA judgment can issue, can be found in the fact that this requirement, logically, has no relation to the offender’s ability to pay, but only to what the State can, at a minimum, expect to recover. As such, it is clear that the legislature intended it as a cost-effective limitation on the Attorney General’s authority to seek a MIRA reimbursement. Logically, the legislature did not want the Attorney General expending the State’s limited resources in seeking reimbursement without some reasonable expectation of a minimum return. That being said, it would make no sense that at the hearing stage, after the Attorney General has already committed time and money to pursue the action, that the limitation would then be invoked to deny reimbursement, defeating the very purpose of the limitation — to prevent the Attorney General from pursuing offenders from whom there was no reasonable likelihood of a recovery sufficient to justify the State’s expenses in pursuing him.

Although not expressly arguing the point, the appellant seems to be suggesting, among other things, by his argued-for interpretation of § 217.831.3 and § 217.835.3, that the 10% threshold requirement of § 217.831.3 is intended as a protection to the offender by limiting the extent to which the State could deplete his assets in recovering the cost of incarceration. Such a suggestion is illogical. The 10% threshold requirement is a function of the cost of incarceration, not an offender’s ability to pay. As such, its application, unlike § 217.833, limiting the offender’s assets subject to reimbursement to 90%, does not set a minimum as to the assets of the offender that are subject to reimbursement. It is, as we point out, supra, simply a cost-effective measure imposed by the legislature to ensure that the State gets a reasonable return on the monies expended by the Attorney General in seeking MIRA reimbursements.

In light of the foregoing, there is no merit to the appellant’s claim that the trial court’s MIRA judgment was erroneous in that the record did not support the fact that at the time of the hearing he had sufficient assets to satisfy the 10% threshold requirement of § 217.831.3. The only question that would remain would be whether he had any assets subject to MIRA reimbursement, and the appellant does not challenge that fact. The appellant does not claim that the Attorney General did not satisfy the conditions precedent of § 217.831.3 for filing a MIRA petition so as to void the petition and the subsequent judgment. Even if he had, however, his claim would not be successful.

The parties agree that the appellant, at the time of the filing of the petition, had $2,199.51 in his correctional center account and that, for purposes of the MIRA, the account funds were considered “assets,” as defined in § 217.827(l)(a). The parties also agree that, for the purposes of § 217.831.3, the applicable 10% threshold amount for filing would be 10% of the estimated cost of the appellant’s care for two years, $2,600 (.10 x $26,000), because $2,600 is less than 10% of the cost of his total care, $16,319.48 (.10 x $163,194.81). Pursuant to § 217.833.1, not more than ninety percent of the appellant’s assets could be used for MIRA reimbursement. At the time of the filing of the petition, the appellant’s assets consisted solely of his correctional center account, which had a balance of $2,199.51. Hence, applying the 90% limitation, $1,979.56 of the funds in the appellant’s account at that time was subject to MIRA reimbursement.

The State concedes that the portion of the appellant’s account subject to reimbursement was not sufficient to satisfy the applicable 10% threshold requirement of § 217.831.3. However, it argues that a MIRA filing was still authorized by § 217.831.3 in that it complied with the alternative means test of that statute. In that regard, the State points to the fact that, under § 217.831.3, a MIRA filing is authorized where either the appellant has sufficient assets to meet the applicable 10% threshold amount “or has a stream of income sufficient to pay such amounts within a five-year period.” The State argues that the evidence was sufficient for the trial court to find that the Attorney General, as required by § 217.831.3, had a good faith belief, at the time of filing of the MIRA petition, that the appellant had monthly income of $230, which when coupled with the amount available from his correctional center account, was sufficient to reimburse the State, within five years, the applicable 10% threshold amount.

At the time the State’s MIRA petition was filed, the appellant’s account record reflected, beginning in May of 2003, monthly deposits of $230. The State contends that these deposits constituted a stream of income sufficient to satisfy the requirements of § 217.831.3 for the filing of a MIRA petition. The appellant claims, however, that the monthly deposits were gifts from his family, and, therefore, did not constitute a “stream of income” for the purposes of § 217.831.3, because such gifts could stop being made at any time.

“A stream of income,” for purposes of § 217.831.3, is defined in § 217.827(l)(a)c as coming “from any source whatsoever, including a salary, wages, disability, retirement, pension, insurance or annuity benefits or similar payments.” Monthly deposits to the appellant’s account would qualify as income under this definition. The appellant, however, asks us to find otherwise, arguing on appeal that the deposits were gifts, not income. However, he points to nothing in the record to support his argument. He just asks us on blind faith to accept his argument, substituting our judgment for that of the trial court. We cannot do that. See Midwest Asbestos Abatement Corp. v. Brooks, 90 S.W.3d 480, 485 (Mo.App.2002) (stating that the appellate court must defer to the trial court on factual issues and cannot substitute our judgment for that of the trial judge).

The appellant is required to furnish a record sufficient to allow us to determine the claims he raises on appeal. Rule 81.12(c); McAllister v. McAllister, 101 S.W.3d 287, 292-93 (Mo.App.2003). The record on appeal is utterly devoid of any evidence that would establish the actual source or nature of the monthly deposits to his account. It is possible that this issue was addressed at the evidentiary hearing, which the trial court was required by § 217.835 to hold on the respondent’s petition, and which took place on February 18, 2004. However, the appellant did not include a transcript of the hearing in the record on appeal, and thus, failed to satisfy the duty imposed by Rule 81.12(c). Mo. Employers Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 624 (Mo.App.2004). We, therefore, must presume that the contents of such a transcript would be favorable to the trial court’s decision and unfavorable to the appellant. In re Marriage of Gerhard, 34 S.W.3d 305, 307 (Mo.App.2001).

It is the appellant’s burden on appeal to demonstrate that the trial court’s judgment was incorrect on any basis supported by the record and the applicable law. Landry v. Miller, 998 S.W.2d 837, 840 (Mo.App.1999). The appellant has failed to demonstrate that the trial court erred in entering its judgment in favor of the State on its MIRA petition.

Point denied.

III.

In his third point, the appellant claims that the trial court erred in ordering him to pay the full filing fee for this appeal because § 506.369 limits an inmate’s filing fee to a partial assessment based on the activity of the inmate’s correctional center account for the six-month period preceding the filing of the appeal. Specifically, he contends that the record indicates that his account, during the applicable period of time, was such that he should have not been required to pay the full amount of the filing fee. We disagree.

Section 506.369 provides, in pertinent part:

1. If the court receiving a motion pursuant to section 506.366 determines that an offender is unable to pay the full amount of court costs due with respect to a case, the court shall assess a partial payment of the twenty percent of the greater of the following:
(1) The average monthly deposits to the offender’s account for the six-month period immediately preceding the fifing of the complaint or notice of appeal requiring the payment of a fee; or
(2) The average monthly balance in the offender’s account for the six-month period immediately preceding the fifing of the complaint or notice of appeal requiring the payment of a fee.

Based on this statute, the State contends that the appellant is not entitled to relief because the record does not indicate that he provided the trial court with a certified copy of his correctional center account statement for the six-month period preceding the fifing of his notice of appeal, as required by § 506.366. That section provides:

An offender seeking to bring a civil action or to appeal a judgment in a civil action without the prepayment of fees or security due to indigency shall submit a request to the court to proceed without the prepayment of fees. The request shall include a certified copy of the offender’s correctional center account statement, which shall be provided by the department of corrections for the six-month period immediately preceding the fifing of the petition or notice of appeal.

§ 506.366.

Section 506.369.1 makes it clear that the requirements of § 506.366 must be met in order for a court to assess a partial payment of court costs. There is nothing in the record indicating that the appellant provided the trial court with the required documentation.

Point denied.

Conclusion

The MIRA judgment of the Circuit Court of Cole County for the State is affirmed.

HOLLIGER and HOWARD, JJ., concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . Rule 55.27(f) provides: “A party who makes a motion under this Rule 55.27 may join with it any other motions herein provided for and then available to the party. If a parly makes a motion under this Rule 55.27 but omits therefrom any defense or objection then available that this Rule 55.27 permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Rule 55.27(g)(2) on any of the grounds there stated.”

      . The State expends approximately $13,000 per year for each inmate in the custody of the DOC.

      . As noted supra, the trial court found that, at the time of the hearing, the appellant had $2,053.28 in his correctional center account, of which $1,847.96 was available for reimbursement.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joyce REESE, Teresa Reese, and April Reese-Imbrogno, Respondents, v. UNITED STATES FIRE INSURANCE COMPANY, Appellant, Charles Mizer, Defendant.
    No. WD 63555.
    Missouri Court of Appeals, Western District.
    June 30, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 30, 2005.
    Application for Transfer Denied Nov. 1, 2005.

      John E. Turner, Timothy W. Monsees, Kansas City, MO, for Respondents.
    David R. Buchanan, Dennis J. Cassidy, Kansas City, MO, T. Michael Ward, St. Louis, MO, for Appellant.
    Before HOWARD, P.J., and ULRICH and BRECKENRIDGE, JJ.
   PER CURIAM.

Appellant United States Fire Insurance Company (“USF”) appeals from a judgment in the Circuit Court of Jackson County, which awarded Respondents Joyce Reese, Teresa Reese, and April Reese-Imbrogno (“the Reeses”) an equitable garnishment of $1,000,000 against USF pursuant to section 379.200 as a result of judgments against KCR International Truck, Inc., and Charles Mizer for the wrongful death of Gerald Reese. USF argues three points on appeal. In Point I, USF argues the trial court erred in denying USF’s motion to set aside the December 31, 2002 judgment and to quash the Reeses’ equitable garnishment action against USF, because the trial court lacked subject matter jurisdiction, in that the Reeses previously obtained satisfaction of their damages resulting from their decedent’s wrongful death, and as a result, the July 23, 2001 judgment against Charles Mizer, for which the Reeses seek equitable garnishment, is null and void. In Point II, USF argues the trial court erred in entering judgment in favor of the Reeses and against USF, because coverage for Charles Mizer under the liability insurance policy was precluded, in that Mizer was a fellow employee of Gerald Reese and the policy includes an unambiguous “fellow employee” exclusion, such that parol evidence should not be considered. In Point III, USF argues the trial court erred in denying USF’s motion to set aside the December 31, 2002 judgment and to quash the Reeses’ equitable garnishment action against USF, because the trial court lacked subject matter jurisdiction, in that the Reeses’ allegations against Charles Mizer failed to meet the “something extra” required to take a tort action outside the purview of Workers’ Compensation Law, and as a result, the July 23, 2001 judgment, for which the Reeses seek equitable garnishment, is null and void. For the reasons set forth below, the judgment of the trial court is affirmed.

Background

Gerald Reese was killed in an accident on March 17, 1995, when a load of rock from a dump truck was dumped onto him while he was working for Barber & Sons quarry. Charles Mizer (“Mizer”) was driving the dump truck at the time of Gerald Reese’s death. Gerald Reese was the husband of Joyce Reese and the father of Teresa Reese and April Reese-Imbrogno. When the fatal accident occurred, Mizer was driving a dump truck that was owned by Barber & Sons.

At the time of Gerald Reese’s death, Barber & Sons carried a Business Auto Insurance policy with USF. The insurance policy provided, in relevant part:

A. COVERAGE

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto.”
1. WHO IS AN INSURED
The following are “insureds”:
a. You for any covered “auto.”
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow
B. EXCLUSIONS
This insurance does not apply to any of the following:
3. WORKERS’ COMPENSATION
Any obligation for which the “insured” or the “insured’s” insurer may be held hable under any workers’ compensation, disability benefits or unemployment compensation law or any similar law.
4. EMPLOYEE INDEMNIFICATION AND EMPLOYER’S LIABILITY
“Bodily Injury” to:
a. An employee of the “insured” arising out of and in the course of employment by the “insured”; or
b. The spouse, child, parent, brother or sister of that employee as a consequence of paragraph a. above.
This exclusion applies:
(1) Whether the “insured” may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone who must pay damages because of the injury.
5. FELLOW EMPLOYEE
“Bodily Injury” to any fellow employee of the “insured” arising out of and in the course of the fellow employee’s employment.

Following the accident, the Reeses received workers’ compensation benefits from Barber & Sons. The Reeses also filed a civil lawsuit for the wrongful death of Gerald Reese against Mizer and KCR International Truck, Inc. (KCR), in the Circuit Court of Jackson County, which was assigned case number CV97-8519. The Reeses dismissed Mizer from that case and proceeded to trial against KCR. The jury returned a verdict finding both KCR and Gerald Reese 50% at fault and finding the Reeses’ damages to be $2,000,000. Based on comparative fault, the net recovery to the Reeses was $1,000,000, and the trial court judge entered judgment in that amount for the Reeses and against KCR on September 23,1999.

On or about September 23, 1999, the Reeses instituted another lawsuit in the Circuit Court of Jackson County against Mizer seeking damages for the wrongful death of Gerald Reese, designated case number 99CV-220923. The Reeses brought the lawsuit in their individual capacities, seeking consequential damages resulting from Gerald Reese’s death. The Estate of Gerald Reese was not a party to the lawsuit. Mizer tendered the defense of the Reeses’ wrongful death suit to USF, but USF denied coverage and declined to defend Mizer. The Reeses and Mizer then entered into agreement pursuant to section 537.065 to limit the Reeses’ recovery to insurance proceeds. On July 23, 2001, the Circuit Court of Jackson County entered a $2,000,000 judgment in favor of the Reeses and against Mizer in accordance with the terms of the agreement to limit recovery to any applicable liability insurance policies.

The Reeses then filed an equitable garnishment action against USF. The Reeses sought to have the judgment against Mizer made applicable through a finding that USF’s policy covered the judgment plus interest. USF filed a counterclaim for Declaratory Judgment seeking a determination of no coverage under the policy.

The trial court conducted a bench trial of the equitable garnishment action beginning on October 15, 2002. USF acknowledged at the trial that Mizer was covered by the insurance policy unless that coverage was precluded by an exclusion. After the opening statements by the Reeses and USF and the admission of evidence and deposition testimony, the trial was adjourned to allow USF to conduct discovery on whether the amount of the underlying judgment was reasonable. The trial was reconvened on November 12, 2002, at which point USF informed the court it would not be contesting the reasonableness of the underlying judgment.

On December 31, 2002, the trial court entered judgment in favor of the Reeses and against USF in the amount of $1,000,000, which is the amount of USF’s policy limit. The trial court also found that interest on the judgment was covered under USF’s policy and entered judgment in favor of the Reeses for the interest which was running on the underlying judgment entered on July 23,2001.

USF appealed the December 31, 2002 judgment to this court, but the case was remanded because the judgment was not final. USF had filed a counterclaim for declaratory judgment seeking a finding of no coverage that had not been decided by the trial court. On remand, USF and the Reeses filed a joint motion to amend the December 31, 2002 judgment so it would be final for purposes of appeal. USF then withdrew its support of the joint motion to amend and filed a separate motion to set aside the December 31, 2002 judgment and quash the Reeses’ equitable garnishment action. USF contended in its motion that the trial court lacked subject matter jurisdiction in the equitable garnishment action because the trial court lacked subject matter jurisdiction over Mizer in the underlying wrongful death judgment entered on July 23, 2001. USF asserted that the Reeses had previously obtained a judgment against another tortfeasor, thus depriving the trial court of jurisdiction in the Reeses’ wrongful death action against Mizer. USF further asserted that the July 23, 2001 judgment was null and void. The trial court conducted a hearing on this matter on October 9, 2003.

On December 3, 2003, the trial court entered an amended judgment in favor of the Reeses and against USF. The amended judgment: (1) denied USF’s motion to set aside the December 31, 2002 judgment and quash the Reeses’ equitable garnishment action, (2) entered judgment in favor of the Reeses and against USF in the amount of $1,000,000 (liability limit under the business auto policy) plus interest on the full amount of the July 23, 2001 judgment, and (3) certified the December 3, 2003 amended judgment as final under Rule 74.01(b). This appeal follows.

Subject Matter Jurisdiction

(Points I and III)

USF argues two points challenging the subject matter jurisdiction of the Reeses’ equitable garnishment action. In Point I, USF argues the trial court lacked subject matter jurisdiction because the Reeses previously obtained satisfaction of their damages resulting from their decedent’s wrongful death. In Point III, USF argues the trial court lacked subject matter jurisdiction because the Reeses’ allegations against Charles Mizer failed to meet the “something extra” required to take a tort action outside the purview of Workers’ Compensation Law.

Subject matter jurisdiction may be raised at any time, including for the first time on appeal. Romero v. Kansas City Station Corp., 98 S.W.3d 129, 133 (Mo.App. W.D.2003). “Dismissal for lack of subject-matter jurisdiction is proper whenever it appears, by suggestion of the parties or otherwise, that the court is without jurisdiction.” Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo.banc 2003); Rule 55.27(g)(3). “Generally, the decision to dismiss for lack of subject-matter jurisdiction is a question of fact left to the sound discretion of the trial court, and it will not be reversed on appeal absent an abuse of that discretion.” Mo. Soybean, 102 S.W.3d at 22. However, when “the facts are uncontested, a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo." Id.

In Peoples Bank v. Carter, 132 S.W.3d 302, 304 (Mo.App. W.D.2004), the appellant appealed the trial court’s denial of its motion to dismiss for lack of subject matter jurisdiction, as USF does in this case. Peoples Bank used the same standard of review as Missouri Soybean, and we now use the same de novo standard of review in this case.

In Point I, USF argues the trial court erred in denying USF’s motion to set aside the December 31, 2002 judgment and to quash the Reeses’ equitable garnishment action against USF. USF claims the trial court lacked subject matter jurisdiction, in that the Reeses previously obtained satisfaction of their damages resulting from their decedent’s wrongful death, and as a result, the July 23, 2001 judgment upon which the Reeses seek to equitably garnish is null and void.

In support of Point I, USF begins with the accepted notion that Missouri law prevents the Reeses from recovering more than the amount of damages sustained as a result of the wrongful death of Gerald Reese. In other words, double recovery is prohibited. USF points out that in the first wrongful death action, case number CV97-8519, the Reeses pursued claims against both KCR and Mizer, but the Reeses chose not to proceed to trial against Mizer in that cause of action, wherein the jury determined the Reeses’ damages to be $1,000,000 after the negligence of Gerald Reese was compared. USF claims that the Reeses were entitled to only one wrongful death action, but in spite of this, the Reeses obtained two judgments (case numbers CV97-8519 and 99CV-220923) for the wrongful death of Gerald Reese. According to USF, when the Reeses re-filed the second suit against Mizer, they were clearly seeking a double recovery of their damages, because the amount of damages they sought was the exact amount of the net damages awarded in the first case.

USF claims the trial court had no subject matter jurisdiction to entertain the Reeses’ equitable garnishment action, because the judgment against Mizer in case number 99CV-220923, which formed the basis for the Reeses’ garnishment action, was null and void, in that the Reeses previously obtained satisfaction of their damages in the first suit. USF claims there is evidence in the record that the Reeses were paid a substantial amount of money on their judgment against KCR in case number CV97-8519. The Reeses dispute this claim, and the record does not disclose anywhere that the Reeses’ damages have been satisfied.

The Missouri wrongful death statute, section 537.080.2, provides that “[o]nly one action may be brought under this section against any one defendant for the death of any one person.” Manes v. Depew, 987 S.W.2d 527, 529 (Mo.App. E.D.1999), held that section 537.080.2 “does not mandate that only one wrongful death action may be prosecuted for the death of a person when there is more than one defendant.” Manes allowed the plaintiffs to pursue a wrongful death claim against a defendant who was not a party to a previous wrongful death action arising from the same death. Id.

“In Missouri, an injured party may recover for any negligent act directly contributing to his injury, regardless of what other negligent act may contribute, concur, or cooperate to produce the injury, and may prove a cause of action against each person participating in a tort.” Kayes v. Kayes, 897 S.W.2d 51, 53 (Mo.App. E.D.1995). “Where two or more persons, although acting independently, are in combination the cause of a single injury to another, the injured person may recover for the entirety of the injury from any one or all of the tort-feasors whose acts have contributed thereto.” Koenig v. Babka, 682 S.W.2d 96, 99 (Mo.App. E.D.1984).

In the instant case, there is more than one defendant in the wrongful death of Gerald Reese. Under section 537.080.2, the Reeses are entitled to prove a cause of action against any and all defendants that have wrongfully caused the death of Gerald Reese. Although USF correctly argues that the Reeses are not entitled to double recovery of damages in their wrongful death suit, double recovery is not at issue in this case. The Reeses merely seek to have judgment entered against all defendants liable for Gerald Reese’s death. Therefore, the judgment against Mizer in case number 99CV-220923 was not null and void, and the trial court did not lack subject matter jurisdiction in either the Reeses’ wrongful death action against Mizer or in the Reeses’ equitable garnishment action against USF.

Point I is denied.

In Point III, USF argues the trial court erred in denying USF’s motion to set aside the December 31, 2002 judgment and to quash the Reeses’ equitable garnishment action against USF, because the trial court lacked subject matter jurisdiction, in that the Reeses’ allegations against fellow employee Charles Mizer failed to meet the “something extra” required to take a tort action outside the purview of Workers’ Compensation Law, and as a result, the July 23, 2001 judgment upon which the Reeses seek to equitably garnish is null and void.

In support of Point III, USF cites State of Missouri ex rel. Larkin v. Oxenhandler, 159 S.W.3d 417 (Mo.App. W.D.2005). In Larkin, an employee (“Larkin”) was operating a dump truck containing gravel and was preparing to back the truck up to the area where the gravel was to be dumped. Id. at 419. Another employee (“Blades”) walked behind the dump truck to flag down passing motorists, at which point the dump truck struck Blades and backed over him, causing his death. Id. Blades’ family sued Larkin for wrongful death. Id. Lar-kin filed a motion to dismiss for lack of subject matter jurisdiction, which the trial court denied. Id. at 420. Larkin then filed a writ of prohibition and a preliminary writ was issued. Id.

In making the writ absolute, this court held that “[a] co-employee cannot be held liable for failing to carry out the non-delegable duties of the employer.” Id. at 421. Larkin provided that “[i]n order to strip a co-employee of the immunity of the Workers’ Compensation Law, a petition must allege ‘something extra’ beyond a breach of general supervision and safety.” Id. Larkin noted that Missouri courts have applied the “something extra” rule on a “ ‘case by case basis.’ ” Id. (quoting State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 622 (Mo.banc 2002)). Larkin provides that “careless driving by a co-employee, without more, fails to meet the ‘something extra’ required to take a tort action outside the purview of the Workers’ Compensation Law.” Id. at 422.

Larkin cites Taylor v. Wallace, 73 S.W.3d at 622-23, which provides that “a simple allegation of negligent driving by a co-employee ... is not ‘something more’ than an allegation of a breach of the duty to maintain a safe working environment.” Taylor concluded that the “plaintiffs exclusive remedy [was] under the Workers’ Compensation Law, and the trial court lack[ed] subject matter jurisdiction to proceed further in [the matter], other than to dismiss it.” Id. at 623.

Larkin concluded that the trial court “lacked subject matter jurisdiction over the wrongful death action filed against Mr. Larkin.” Larkin, 159 S.W.3d at 424. Lar-kin also provided that Taylor and other cases with consistent holdings have “effectively overruled” Biller v. Big John Tree Transplanter Manufacturing & Truck Sales, Inc., 795 S.W.2d 630 (Mo.App. W.D.1990), “to the extent that [Biller ] is in conflict with modern precedent.” Id. at 423.

In Biller, the decedent’s family brought a wrongful death suit against the decedent’s co-employee. Biller, 795 S.W.2d at 632. The co-employee was operating a tree transplanter with the decedent, and while the co-employee was operating the machine and unaware of the decedent’s whereabouts, the decedent was pinned under a stabilizer bar and crushed to death. Id. Biller held that “[p]ersonal tort liability may be imposed on the individual agent or corporate officer if it appears that the duty of care which was breached was one personally owed to the injured employee as a fellow employee.” Id. at 633. Biller concluded that the decedent’s family was “entitled as a matter of law” to maintain a civil action against the co-employee “for his negligence in failing to maintain a careful lookout for the safety of his co-worker.” Id. at 634.

USF argues that the facts in Larkin are similar to the facts in the instant case and that under Larkin, the trial court lacked subject matter jurisdiction in both the wrongful death action against Mizer and the equitable garnishment action against USF. USF claims that the Reeses have not distinguished Larkin from the present case or shown why Larkin should not be controlling, nor have the Reeses pleaded “something extra.” USF argues that the wrongful death judgment should be subject to collateral attack on the issue of whether the trial court, as opposed to the Missouri Division of Labor and Industrial Relations, maintained subject matter jurisdiction over the Reeses’ wrongful death claim against Mizer.

USF argues that Taylor and Larkin did not change Missouri law, but simply interpreted the law which had existed since at least 1982. In support of this argument, USF cites State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 180 (Mo.App. E.D.1982), in which the Eastern District held that a wrongful death suit brought by a decedent’s family against the decedent’s fellow employee was barred by the Workers’ Compensation Law. However, even if we were to accept USF’s reading of Gaert-ner, it would only demonstrate that there was a split in the districts on this issue. This court allowed a wrongful death suit against a decedent’s fellow employee in 1990 without the decedent’s family pleading “something extra.” Biller, 795 S.W.2d at 634.

USF contends that the judgment against Mizer was void and, therefore, is subject to a collateral attack. USF further argues that, as a matter of law, the Reeses cannot satisfy the indispensable prerequisite for a garnishment, namely a valid judgment against Mizer entered by a court with subject matter jurisdiction.

“In general, a final judgment is immune from collateral attack if the court had personal and subject matter jurisdiction and the judgment is not void on its face.” Telge v. Telge, 677 S.W.2d 403, 405 (Mo.App. W.D.1984). “A motion to quash execution of garnishment is a collateral attack on the judgment.” Div. of Employment Sec. v. Cusumano, 809 S.W.2d 113, 115 (Mo.App. E.D.1991). “Such a motion has merit only when the record affirmatively discloses that the judgment was void for lack of jurisdiction of the parties or subject matter.” Id.

In the instant case, the trial court had subject matter jurisdiction at the time the judgment was entered on July 23, 2001. Under present law, a trial court would not have subject matter jurisdiction over a wrongful death action brought against a fellow employee of a decedent without allegations of “something extra.” However, at the time the trial court entered its wrongful death judgment against Mizer, Biller had not yet been overruled by Taylor or Larkin. The trial court had jurisdiction when the wrongful death judgment was rendered against Mizer, based upon a reasonable good faith interpretation of Biller, which was existing precedent at the time. Therefore, there was a valid final judgment with valid subject matter jurisdiction before the law was changed. We hold that even if the law changes, as it did in this case, a judgment that had valid subject matter jurisdiction at the time it became final cannot be collaterally attacked. Otherwise, we are in a position of looking back at an un-appeal-ed final judgment and taking measure of it in the context of a subsequent change in the law. Such a “back to the future” analysis would leave innumerable prior judgments, which were valid at the time entered, subject to collateral attack, thereby preventing finality.

USF cites several cases in support of its argument that its collateral attack is proper because the judgment against Mizer is void: (1) First National Bank in Chester v. Conner, 485 S.W.2d 667, 671-72 (Mo.App.1972), provides that “[a] valid judgment and a consequent valid execution are indispensable prerequisites to a valid garnishment.” Conner also held that the trial court properly quashed execution on a garnishment where the underlying judgment was void. Id. at 672. (2) Taylor v. Taylor, 47 S.W.3d 377, 384 (Mo.App. W.D. 2001), which provides that a void judgment may be collaterally attacked and impeached at any time by any party whose rights are affected by the void judgment. (3) In re the Interest of A.H., 689 S.W.2d 771, 773 (Mo.App. W.D.1985), which provides that “a judgment entered without jurisdiction may be collaterally attacked.” (4) Hampton v. Hampton, 536 S.W.2d 324, 325-26 (Mo.App.1976), reversed the trial court’s overruling of ex-husband’s motion to quash execution of child support provisions of divorce decree because the decree was void for lack of jurisdiction.

The instant case is distinguishable from all of the cases cited by USF. The cases cited by USF allowed a collateral attack because the underlying judgments lacked subject matter jurisdiction at the time they were entered. In the instant case, subject matter jurisdiction was valid at the time the underlying wrongful death judgment was entered against Mizer, so USF may not collaterally attack the underlying judgment or quash the instant equitable garnishment action.

We also note that the Reeses’ petition filed against Mizer never alleged Gerald Reese was an employee of Barber & Sons at the time of the fatal accident. The petition, which USF declined to defend against, alleged that Mizer was employed by Barber & Sons, but did not explain the relationship between Gerald Reese and Mizer. Therefore, on its face, the Reeses’ petition filed against Mizer did state a cause of action.

Point III is denied.

Insurance Policy Exclusions

(Point II)

In Point II, USF argues the trial court erred in entering judgment in favor of the Reeses and against USF, because coverage for Charles Mizer under the liability insurance policy was precluded, in that Mizer was a fellow employee of Gerald Reese and the policy includes an unambiguous “fellow employee” exclusion.

“Whether or not the language of an insurance contract is ambiguous is a question of law.” Auto Owners Mut. Ins. Co. v. Sugar Creek Mem’l Post No. 3976, 123 S.W.3d 183, 186 (Mo.App. W.D.2003). “In reviewing the language of an insurance policy, this court need not give deference to the trial court’s interpretation. Rather, our review is de novo.” Nat’l Union Fire Ins. Co. v. City of St. Louis, 947 S.W.2d 505, 506 (Mo.App.E.D.1997).

USF cites four cases in support of Point II:(1) Zink v. Employers Mutual Liability Insurance Co. of Wisconsin, 724 S.W.2d 561, 562-63 (Mo.App. W.D.1986), held that a “fellow employee” exclusion similar to the one in the instant case excluded coverage for an employee’s death in a wrongful death claim arising out of an accident that occurred while a fellow employee was driving a truck owned by the employer. (2) Baker v. DePew, 860 S.W.2d 318, 321 (Mo.banc 1993), held that a “fellow employee” exclusion precluded coverage where an employee sustained serious back injuries while riding in an automobile driven by a fellow employee and owned by the employer. (3) State Farm Mutual Auto. Insurance Co. v. Bainbridge, 941 S.W.2d 546, 549 (Mo.App. W.D.1997), held that a “fellow employee” exclusion precluded coverage in a wrongful death claim by a decedent’s family where the decedent was killed in an automobile accident while riding in an automobile owned by the employer and driven by a fellow employee. (4) Short v. Safeco Insurance Co. of America, 864 S.W.2d 361, 362 (Mo.App. W.D.1993), held that a “fellow employee” exclusion precluded coverage where an employee sustained serious injuries while riding in an automobile driven by a fellow employee and owned by the employer. The fellow employee driving the automobile had fallen asleep at the wheel and lost control of the vehicle. Id. at 361.

USF argues the instant case is on point with Zink and Bainbridge because in those cases, the fellow employee exclusion was applied to preclude coverage for a wrongful death claim. USF also claims the instant case is analogous to Zink and Short, because the applicable exclusions in those cases prohibited the plaintiffs from recovering both workers’ compensation benefits and liability insurance proceeds. USF concludes that under Zink, Baker, Bainbridge, and Short, the “Fellow Employee” exclusion applies to preclude coverage.

The instant case is distinguishable from Zink, Baker, Bainbridge and Short. In all of those cases, the insurance policies unambiguously excluded coverage for injuries caused by a fellow employee while in the course of employment. However, the general validity of the fellow employee exclusion is not the dispositive issue in this case. In none of those cases did the interpretation of the policy language involve provisions in a policy where a consequential damage claim is specifically excluded in the employer’s liability section of the policy but not under the “Fellow Employee” exclusion in the instant case.

USF also argues that despite the fact that the decedent Gerald Reese, not the Reeses themselves, was a fellow employee of Mizer, the “Fellow Employee” exclusion still applies to the Reeses’ wrongful death suit against Mizer. USF contends that because the Reeses asserted a wrongful death claim against Mizer under section 537.080.1, they legally stepped into the shoes of Gerald Reese.

Section 537.080.1 provides, in relevant part:

Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been hable if death had not ensued shall be hable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:
(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive!.]

Missouri “courts have consistently denied a cause of action for wrongful death to the decedent’s estate, even when there is no surviving heir.” Sullivan v. Carlisle, 851 S.W.2d 510, 513 (Mo.banc 1993). “[A] wrongful death claim does not belong to the deceased.” Id. at 515. “The right of action is neither a transmitted right nor a survival right, but is created and vests in the survivors at the moment of death.” Id. “[A] wrongful death action belongs to the decedent’s survivors, not the decedent, and does not vest in the decedent’s estate.” Smith v. Tang, 926 S.W.2d 716, 719 (Mo.App. E.D.1996). In the instant case, Gerald Reese’s survivors, not his estate, brought the wrongful death action.

USF argues that there is no ambiguity between the “Employee Indemnification and Employer’s Liability” exclusion and the “Fellow Employee” exclusion. USF points out that the “Employee Indemnification and Employer’s Liability” exclusion applies to claims made against an employer while the “Fellow Employee” exclusion applies to claims made against a fellow employee. USF claims that no Missouri case has found any ambiguity in a “fellow employee” exclusion. However, USF also acknowledges that no Missouri case has considered the question of whether the inclusion of language relating to the spouse and children of the injured employee in the “Employee Indemnification and Employer’s Liability” exclusion renders the “Fellow Employee” exclusion ambiguous.

USF Business Auto Liability Exclusions

The two relevant exclusions, number four relating to employer’s liability and, number five relating to fellow employee’s liability, read as follows:

4. EMPLOYEE INDEMNIFICATION AND EMPLOYER’S LIABILITY 5. FELLOW EMPLOYEE
“Bodily Injury” to: “Bodily Injury” to any fellow employee of the “insured” arising out of and in the course of a. An employee of the “insured” arising out the fellow employee’s employment, of and in the course of employment by the “insured”; or
b. The spouse, child, parent, brother or sister of that employee as a consequence of paragraph a. above.

“In determining the intent of the parties to a contract, we review the terms of a contract as a whole, not in isolation.” Tuttle v. Muenks, 21 S.W.3d 6, 11 (Mo.App. W.D.2000). Each term of a contract “ ‘is construed to avoid an effect which renders other terms meaningless.’ ” Id. (quoting Ringstreet Northcrest, Inc. v. Bisanz, 890 S.W.2d 713, 718 (Mo.App. W.D.1995)).

The “Employee Indemnification and Employer’s Liability” exclusion in this case expressly excludes coverage for spouses, children, parents, and siblings of the employee as a consequence of the employee’s bodily injury. By contrast, the “Fellow Employee” exclusion does not expressly exclude coverage for spouses, children, parents, and siblings of the employee as a consequence of the employee’s bodily injury. Both exclusions appear immediately adjacent to each other in the policy. “[W]here a term is used in one phrase of a policy, its absence in another phrase is significant.” Williams v. North River Ins. Co., 579 S.W.2d 410, 412 (Mo.App. S.D.1979).

An ambiguity exists when the meaning of the language in the policy leads to “duplicity, indistinctness, or uncertainty” or “it is reasonably open to different constructions.” Krombach v. Mayflower Ins. Co., 827 S.W.2d 208, 210 (Mo.banc 1992). Ambiguous language must be construed against the insurer. Id. “This rule is especially applicable where insurance is first ‘granted’ and is then followed by provisions limiting or avoiding liability.” Irelan v. Standard Mut. Ass’n of Cassville, 379 S.W.2d 815, 819 (Mo.App.1964).

At the very least, exclusion number five, when read together with the other language of the policy, is reasonably and fairly open to different constructions. A side-by-side comparison of the adjacent exclusions makes it apparent that exclusion number four, dealing with claims brought against the employer, excludes consequential damage claims by family members, while exclusion number five does not. A reasonable person would find this absence of similar exclusionary language significant. The meaning of policy language is that which would reasonably be given by the ordinary person of average intelligence or common understanding, not in the manner of a painstaking lawyer. Id. at 818. The conclusion that exclusion number five does not exclude consequential damage claims by family members is a fair and reasonable interpretation of the policy.

In the instant case, there is, at a minimum, an ambiguity as to whether the “Fellow Employee” exclusion prohibits suits by spouses, children, siblings and parents of an injured employee. The specific preclusion of family members’ claims in the “Employee Indemnification and Employer’s Liability” exclusion and the subsequent absence of family members’ claims in the “Fellow Employee” exclusion should be strictly construed against USF and in favor of Mizer.

As the insurer, USF was in the position to draft an insurance contract that specifically precluded claims by family members under the “Fellow Employee” exclusion. USF could have eliminated this ambiguity by specifically precluding family members’ claims under both the “Fellow Employee” exclusion and the “Employee Indemnification and Employer’s Liability” exclusion. Because of USF’s failure to specifically preclude family members’ claims under the “Fellow Employee” exclusion, the trial court did not err in entering judgment against USF.

Point II is denied.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

      . Statutory references are to Revised Statutes of Missouri 2000.

      . Overruled on other grounds by Johnston v. Sweany, 68 S.W.3d 398, 404 (Mo.banc 2002).