author: BOOKER T. SHAW, Presiding Judge.

text:
    STATE of Missouri ex rel. Emmett WILLIAMS, et al., Petitioners, v. The Honorable William LOHMAR, Judge, Circuit Court, St. Charles County, Division I, Respondent.
    No. ED 85700.
    Missouri Court of Appeals, Eastern District.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 5, 2005.
    Application for Transfer Denied May 31, 2005.

      Richard L. Hughes, St. Louis, MO, Michael Nolan, Clayton, MO, for petitioners.
    Stephen J. Bronis, Miami, FL, Stephen A. Ecenia, Tallahassee, FL, James C. Thoele, Clayton, MO, for respondent.
   OPINION

BOOKER T. SHAW, Presiding Judge.

Emmett Wiliams, et al., (“Relator”) filed a petition for writ of prohibition seeking to prevent the Honorable William Lohmar (“Respondent”) from allowing discovery of nonparty medical records in a wrongful death action. Our preliminary order of prohibition is made absolute.

The underlying action is for the wrongful death of Relator’s wife (“Decedent”) alleging medical malpractice against J. Stephen Scott, M.D. and Roger de la Torre, M.D. (“Defendants”) during laparo-scopic bariatric surgery in April 2000. James M. Balliro, M.D. (“Dr.Balliro”) was named as Relator’s retained medical expert. Defendants deposed Dr. Balliro on July 28, 2004. During his deposition, Dr. Balliro testified Defendants violated the standard of care during Decedent’s bariatic surgery by failing to oversew the gastric bypass anastomosis. The anastomosis is surgically stapled and the issue is whether the staple line should be oversewn with a suture by the surgeon to prevent leakage. Dr. Balliro testified as follows:

Q. When you oversew the anastomosis, what do you write in your operative report?
A. Oh, it’s the same thing every time. The anastomosis is oversewn cir-cumferentially with interrupted 3-0 GI silk Lembert suture. That’s capital L-E-M-B-E-R-T.
Q. And is that what you write or dictate in every operative note for bar-iatric surgery?
A. Yeah. Every single one of 2400 plus.

After Dr. Balliro’s deposition, Defendant Dr. de la Torre filed a motion seeking the appointment of a commissioner for the purpose of administering oaths and presiding over the taking of an out-of-state deposition. Respondent granted this motion, and a commissioner was appointed. Dr. de la Torre subsequently sought the issuance of a subpoena duces tecum to take the deposition of the custodian of records for Capital Regional Medical Center (“CRMC”) in Leon County, Florida. The subpoena duces tecum was issued, requesting:

All operative reports prepared by [Dr. Balliro] relative to laparoscopic/bariatric surgical procedures performed by Dr. Balliro between April 26, 1998 and April 26, 2000. All patient identifying information may be redacted from the reports.

Relator filed a motion to quash the subpoena and for a protective order. The custodian of records for CRMC filed an affidavit indicating Dr. de la Torre’s subpoena sought over three hundred documents which were in off-site storage. The custodian of records stated not only would personnel have to travel to the off-site facility to review the documents to determine whether they were responsive to the request, but also retrieval of the documents would cost from $1.00 to $14.00 per document. Further, the custodian of records expressed concerns about serious logistical and financial burdens placed upon CRMC to comb through the documents, to ensure there were no Health Insurance Portability and Accountability Act (“HIP-PA”) violations by producing the documents, redact all identifying information, and provide notice to the patients that their medical records were being examined.

Dr. de la Torre filed suggestions in opposition, after which a hearing was held on Relator’s motion to quash. Respondent denied Relator’s motion to quash, stating, “the information sought by Defendant de la Torre (Dr. Balliro’s laparoscopic/baria-tric operative reports between April 26, 1998 and April 26, 2000, with all patient identifying information redacted) is neither privileged nor burdensome, but rather is relevant and discoverable.” Relator then sought a writ of prohibition with this Court.

Writs of prohibition are not issued as a matter of right; rather, whether a writ should issue in a particular case is a question left to the sound discretion of the court in which a petition has been filed. State ex rel. Boyle v. Sutherland, 77 S.W.3d 736, 737 (Mo.App. E.D.2002). Generally, writs of prohibition are issued when they fall within one of three categories: (1) where there is a usurpation of judicial power because the trial court lacks either personal or subject matter jurisdiction; (2) where there exists a clear excess of jurisdiction or abuse of discretion such that the trial court lacks the power to act as contemplated; or (3) where there is no adequate remedy by appeal. State ex rel. Director of Revenue v. Mobley, 49 S.W.3d 178, 179 (Mo. banc 2001).

A writ of prohibition is the proper remedy for curing discovery rulings that exceed a trial court’s jurisdiction or constitute an abuse of discretion. State ex rel. Tennill v. Roper, 965 S.W.2d 945, 947 (Mo.App. W.D.1998). “Trial courts rule on discovery requests in the first instance, and appellate courts will prohibit the trial court from acting only in rare circumstances where the trial court abuses its discretion.” State ex rel. Health Midwest Development Group, Inc., v. Daugherty, 965 S.W.2d 841, 844 (Mo. banc 1998). Relator has the burden of showing that the trial court’s ruling is beyond the bounds of judicial discretion. Id.

Relator raises several grounds upon which he claims Respondent has abused his discretion in denying the motion to quash and ordering the production of Dr. Balliro’s operative notes to determine whether Dr. Balliro states in every instance that he oversews the gastric bypass anastomosis. We need only address his first argument to dispose of this issue. In his first argument, Relator claims the discovery of these medical records constitutes a fishing expedition which would not provide any evidence for cross-examination because the materials are collateral and irrelevant. Respondent claims this material is relevant because it goes to the issue of the standard of care with respect to bariatric surgeries and can be used as rebuttal evidence as to whether Dr. Balliro in fact oversews the gastric bypass anasto-mosis in every instance.

As a general rule, contradiction is not allowed on collateral matters. Cline v. William H. Friedman & Associates, Inc., 882 S.W.2d 754, 760 (Mo.App. E.D. 1994). “The test of whether the matter is collateral for purposes of testimonial impeachment is whether or not ‘the party seeking to introduce it ... would be entitled to prove it as part of his [or her] case. If a fact may be shown in evidence for any purpose independent of contradiction, it is not collateral.’ ” Overfield v. Sharp, 668 S.W.2d 220, 223 (Mo.App. W.D.1984) (quoting Frechin v. Thornton, 326 S.W.2d 122, 126 (Mo.1959)). Thus, if a party has been permitted in the trial court’s discretion to cross-examine a witness as to a collateral matter, the cross-examiner is bound by the witness’s answers and will not be permitted to offer evidence to contradict the witness relative to such answers. Cline, 882 S.W.2d at 760.

Relator relies on Cline to support his contention. In Cline, this Court reversed a jury verdict after the trial court erroneously admitted extrinsic evidence to contradict the defendant-doctor’s response elicited during cross-examination concerning whether he had encountered a particular ailment prior to the case at bar. Id. This Court held whether defendant-doctor had encountered the ailment previously was a collateral matter that could not be rebutted by extrinsic evidence. Id.

Respondent urges us to follow State ex rel. Lester E. Cox Medical Center v. Keet, 678 S.W.2d 813 (Mo. banc 1984). In Keet, the Missouri Supreme Court held non-party patient records of the defendant-doctor may be relevant or lead to the discovery of evidence relevant to the plaintiffs malpractice claims. Id. at 815. Respondent believes whether Dr. Balliro oversews the gastric bypass anastomosis in every instance is relevant to determining what the standard of care is during bariatric surgery. We disagree.

The case at bar is distinguishable from Keet because Dr. Balliro is Relator’s retained expert, not a defendant who allegedly committed medical malpractice. Dr. Balliro’s non-party patient operative notes would not uncover any relevant material with respect to Dr. de la Torre’s defense at trial. Moreover, whether Dr. Balliro made a notation in his operative notes regarding oversewing the gastric bypass anastomosis in every instance is a collateral matter, because Dr. de la Torre would not have to prove or disprove this fact as a part of his case in order to prevail. See Cline, 882 S.W.2d at 760. Therefore, we hold the trial court abused its discretion by denying Relator’s motion to quash the subpoena duces tecum and appointing a commissioner to conduct the out-of-state deposition. Based on the foregoing, we need not address the additional grounds upon which Relator sought relief.

Writ of prohibition made absolute.

GEORGE W. DRAPER III, C.J., and LAWRENCE E. MOONEY, J., concur.

      . An anastomosis is an opening created by surgery between two or more normally separated spaces or organs. Stedman’s Medical Dictionary 70 (27th ed.2000).


source: Caselaw Access Project

author: PATRICIA BRECKENRIDGE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Gregory S. BARLOW, Appellant.
    No. WD 62681.
    Missouri Court of Appeals, Western District.
    Feb. 28, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2005.
    Application for Transfer Denied May 31, 2005.

      Rebecca Kurz, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before HOWARD, P.J., BRECKENRIDGE and ELLIS, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Gregory S. Barlow appeals his convictions and sentences for the class A felony of murder in the first degree, under section 565.020, RSMo 2000; the felony of armed criminal action, under section 571.015; and the class C felony of arson in the second degree, under section 569.050. Mr. Barlow claims that the trial court erred in accepting the jury’s guilty ver-diets on each count because the court’s polling procedure coerced a dissenting juror into agreeing with the other jurors. Mr. Barlow also claims the trial court plainly erred in permitting certain portions of the State’s closing argument. Because this court finds that the polling procedure was not coercive and the trial court did not plainly err in permitting the State’s closing argument, the judgment is affirmed.

Factual and Procedural Background

Mr. Barlow does not challenge the sufficiency of the evidence to support his convictions. The evidence, in the light most favorable to the judgment, was that in late 2001, Mr. Barlow befriended Jack Meagher, whom he had met at a local restaurant. Mr. Barlow began doing handyman work for Mr. Meagher for pay. Two days before New Year’s Day, Mr. Barlow moved into Mr. Meagher’s house because Mr. Barlow was homeless at the time and living in a shelter. Their association soured after Mr. Barlow moved in, however, and he moved out of the house and back into the homeless shelter approximately two weeks later.

On January 21, 2002, Mr. Barlow returned to Mr. Meagher’s house. While there, Mr. Barlow grabbed a hammer off of a bookshelf and struck Mr. Meagher in the head with it. He continued to strike Mr. Meagher even after Mr. Meagher had fallen to the ground, bleeding. Mr. Barlow struck Mr. Meagher in the head with the hammer at least ten times. During the attack, Mr. Meagher did not ever hit Mr. Barlow back. When he was finished striking Mr. Meagher, he sat down for a long time, unsure of what to do next.

Eventually, Mr. Barlow decided to wrap Mr. Meagher’s body in Saran Wrap, cover it with a blanket, tie a rope around the blanket, and put the body in the trunk of Mr. Meagher’s car. Mr. Barlow drove around, found a storm sewer, and threw Mr. Meagher’s body in the storm sewer. Mr. Barlow then went back to Mr. Meagher’s house, retrieved Mr. Meagher’s Amoco card, and used it to buy gasoline. At some point, Mr. Barlow also changed his clothes. Mr. Barlow took the gasoline to Mr. Meagher’s house, poured the gasoline all over the house, and set on fire the house and the clothes he was wearing when he murdered Mr. Meagher. Next, he drove around and tried to sell Mr. Meagher’s car. When he was unable to sell the car, he parked it in a parking lot and left it. Mr. Barlow rinsed off the hammer and disposed of it in a convenience store trash can.

Meanwhile, members of the Kansas City Fire Department were dispatched to Mr. Meagher’s home. They found heavy fire damage to all four sides of the home, and the roof had collapsed. The house was so badly damaged that the investigator was unable to determine the origin of the fire. Because Mr. Meagher’s body was not discovered in the rubble of the house, his family made a missing person report with the Kansas City Police Department.

On January 24, 2002, Mr. Barlow drove up to the remains of Mr. Meagher’s home and approached Mr. Meagher’s niece, Michelle Tagg. Mr. Barlow told Ms. Tagg his name and said he was there to see if Mr. Meagher had any work for him because he needed the money. Mr. Barlow feigned surprise upon hearing that the house had burned down. He told Ms. Tagg that it had been a week and a half since he had last been to the house and, at that time, he and Mr. Meagher had argued. When Ms. Tagg asked him if he knew where Mr. Meagher might have gone, Mr. Barlow told her he thought Mr. Meagher had gone to Brazil to work for HUD. When questioned by the police a few weeks later, Mr. Barlow told a similar story and offered a phony theory as to who might have started the fire.

Mr. Meagher’s body was discovered in a sewer filtration system on February 6, 2002. On February 19, 2002, Mr. Barlow was again interviewed by the police. This time, however, he gave a detailed, videotaped confession in which he described the events leading up to the murder, the murder itself, and his actions afterwards. In his confession, he did not implicate anyone else in the murder. The State charged Mr. Barlow with one count of murder in the first degree, one count of armed criminal action, and one count of arson in the second degree. A jury trial was held.

During the trial, Mr. Barlow’s version of events changed entirely from that contained in his videotaped confession. Mr. Barlow testified that a man he had met at the homeless shelter, James Miles, had murdered Mr. Meagher. Mr. Barlow testified that, on the night of the murder, he and Mr. Miles went to Mr. Meagher’s house to pick up some of Mr. Barlow’s clothes and ask for work. According to Mr. Barlow, when he went into Mr. Meagher’s house, Mr. Meagher insulted him and his girlfriend. Mr. Meagher also started poking Mr. Barlow in the groin area. Mr. Barlow grabbed the hammer, and a struggle ensued. To defend himself, Mr. Barlow hit Mr. Meagher one time in the back of the head with the hammer. Mr. Barlow then dropped the hammer, and the two men continued to struggle. According to Mr. Barlow, Mr. Meagher would not let go of him. At some point, Mr. Miles walked in, grabbed the hammer, and repeatedly hit Mr. Meagher in the head until he was dead. Because he was “kind of a little bit scared” by Mr. Miles’ actions, Mr. Barlow claimed that he merely went along with Mr. Miles’ directions to dispose of Mr. Meagher’s body in a storm sewer and burn down Mr. Meagher’s house. Mr. Barlow testified that he failed to mention Mr. Miles’ involvement in the murder earlier because he was afraid of Mr. Miles.

The jury found Mr. Barlow guilty on all charges. The court accepted the jury’s verdicts and sentenced Mr. Barlow to life imprisonment without the possibility of probation or parole for murder in the first degree; life imprisonment for armed criminal action; and seven years in prison for arson in the second degree. The sentence for armed criminal action was to run consecutively to the sentence for murder in the first degree. Mr. Barlow appeals.

No Error in Accepting Guilty Verdicts

In his first point, Mr. Barlow claims that the trial court erred in accepting the guilty verdicts because the court violated the procedure for questioning a dissenting juror during polling of the jury. After the court read the jury’s verdicts, Mr. Barlow requested that the jury be polled. The court polled the jury:

THE COURT: All right. Ladies and gentlemen, the Court’s going to poll the jury. As I call your name, if you would, please answer yes or no whether the verdicts that were published were the verdicts to which you agreed. Mr. Reed?
JUROR NO. 1: Yes.
THE COURT: Mr. Willis?
JUROR NO. 2: Yes.
THE COURT: Mr. Tranchilla?
JUROR NO. 3: Yes.
THE COURT: Ms. McWilliams?
JUROR NO. 4: No.
THE COURT: Ms. Regan?
JUROR NO. 5: Yes.
THE COURT: Ms. Pennington?
JUROR NO. 6 Yes.
THE COURT: Ms. Knelt rolled, [sic]
JUROR NO. 7: Yes.
THE COURT: Ms. Overbay?
JUROR NO. 8: Yes.
THE COURT: Mr. Bingham?
JUROR NO. 9: Yes.
THE COURT: Mr. Smith?
JUROR NO. 10: Yes.
THE COURT: Mr. Larson?
JUROR NO. 11: Yes, sir.
THE COURT: Mr. McCreary?
JUROR NO. 12: Yes.
THE COURT: Ms. McWilliams?
JUROR NO. 4: Yes.
THE COURT: Was that your verdict? Did you agree to the verdicts that I read?
JUROR NO. 4: Yes.
THE COURT: All three of them?
JUROR NO. 4: Yes.
THE COURT: All right. Upon your unanimous decision, the Court will accept [the] verdicts of the jury in this cause, [and] will enter the same as the judgment in this case.

The court then thanked the jurors and discharged them. After the court recessed, defense counsel approached the bench and said, ‘Tour Honor, it’s clear there’s ambiguity in the polling versus the verdict, at least in my mind, and for that reason I ask for a mistrial at this point.” The court responded, “All right. The request for mistrial is denied. I did ask the juror that created the ambiguity a second time in fact several questions. As far as the Court’s concerned there is no ambiguity, and I find it to be a unanimous verdict.”

On appeal, Mr. Barlow argues that the trial court ignored the procedure required in Rule 29.01(d), which provides that if, upon polling a jury, “there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged.” Mr. Barlow contends that the trial court’s questioning of Ms. McWil-liams was coercive because there was no ambiguity in her initial response that she did not agree with the verdicts and, by completing the polling and re-questioning her, the court placed additional pressure on her to agree with the other jurors.

“A coerced verdict does not represent the jury’s true unanimous concurrence.” State v. Dodd, 10 S.W.3d 546, 552 (Mo.App.1999). The trial court’s questioning a juror in open court about the juror’s decision, however, is not “inherently coercive.” Id. In reviewing the propriety of such questioning, this court “must distinguish between a trial court’s effort to eliminate confusion and its attempt to compel a juror to change his vote or to coerce a unanimous verdict.” Id. “A trial court errs if it continues to question a juror after that juror’s answers clearly evince disagreement with the verdict.” Id. If the juror’s uncertainty is the product of confusion and not dissent, the trial court can question the juror “to obtain clarity.” Id. The trial court is permitted to “make inquiry in a genteel, polite, non-leading and non-coercive manner that will clarify a juror’s response.” State v. Hatch, 724 S.W.2d 643, 645 (Mo.App.1986). “In evaluating the polling procedure, an appellate court must give deference to the views of the trial judge who was present at the scene on whether the juror’s ultimate acquiescence in the verdict was free from pressure from the court.” Dodd, 10 S.W.3d at 552.

In this case, the court heard from the foreperson that the jury had reached a unanimous verdict. Upon polling the jury, however, Ms. McWilliams’ response of “No” indicated that the jury’s verdict was not unanimous. Mr. Barlow argues that, at this point, the court could not question Ms. McWilliams further because her “No” response clearly indicated her disagreement with the verdict. He relies on State v. Conway, 740 S.W.2d 320, 322-24 (Mo.App.1987), to support this argument. In Conway, the dissenting juror indicated three times that the guilty verdict was not her verdict and the trial court acknowledged that the juror was “clear on” what the court was asking her. Id. at 322-23. Yet, the trial court polled the remaining jurors and then further questioned the dissenting juror before the juror finally said that her verdict was guilty. Id. at 323. On appeal, the Eastern District of this court held that the polling procedure was coercive because the trial court had “received an unequivocal answer that [the juror] did not concur in the guilty verdict on Count II” but, nevertheless, further questioned the juror until it got the “ ‘right answer.’ ” Id. at 323-24.

That is not what happened here. The court’s further questioning of Ms. McWil-liams was not an attempt to coerce her into voting for a guilty verdict after she had repeatedly and unequivocally indicated that her vote was not guilty. Rather, the court’s further questioning was an attempt to clarify what Ms. McWilliams’ actual verdict was. “Rule 29.01(d) does not deny the trial court the right to inquire and determine if, in fact, there is a lack of unanimity....” Hatch, 724 S.W.2d at 645. There are occasions when, because of a juror’s demeanor or tone of voice, a one-word response, like the “No” Ms. McWilliams gave in this case, may require clarification or confirmation. See State v. Frederick, 783 S.W.2d 469, 471-72 (Mo.App.1990) (permissible for trial court to clarify juror’s initial ‘Yes” response); Hatch, 724 S.W.2d at 645 (permissible for trial court to clarify juror’s initial “No” response); and State v. Jackson, 522 S.W.2d 317, 321 (Mo.App.1975) (permissible for trial court to clarify juror’s initial “No” response). The trial court was permitted to inquire further of Ms. McWilliams to clarify if, by her “No” response, she meant, “No, I did not agree to guilty verdicts.” Indeed, the court’s questions to Ms. McWilliams, ‘Was that your verdict?”; “Did you agree to the verdicts that I read?”; and “All three of them?,” show that clarification was all the court was seeking. None of the questions were coercive, nor did the questions suggest, in any way, that the court was trying to compel Ms. McWilliams to change her vote to make the guilty verdicts unanimous. See Hatch, 724 S.W.2d at 645.

Mr. Barlow also argues that the trial court’s decision to finish polling the jury before further questioning Ms. McWilliams was coercive. Mr. Barlow again relies on Conway, which stated that the trial court “should promptly question a juror to clarify the verdict prior to completing the poll. Otherwise a juror could feel pressured by the court or his co-jurors to reach a unanimous verdict....” 740 S.W.2d at 324. While immediately questioning a juror to dispel confusion may be preferable, Conway did not deem it per se reversible error to continue the poll before seeking clarification of a juror’s response. Moreover, the majority of courts from other jurisdictions that have addressed this issue did not deem continued polling per se reversible error but, rather, considered the facts and circumstances of each case to determine whether the polling procedure was coercive. See, e.g., United States v. Gambino, 951 F.2d 498, 501-02 (2nd Cir.1991); United States v. Fiorilla, 850 F.2d 172, 176 (3rd Cir. 1988); Amos v. United States, 496 F.2d 1269, 1272-73 (8th Cir.1974); State v. McCrimmon, 187 Ariz. 169, 927 P.2d 1298, 1301 (1996); State v. Keaulana, 71 Haw. 81, 784 P.2d 328, 329 (1989); State v. Lee, 131 Idaho 600, 961 P.2d 1203, 1209-10 (Ct.App.1998). Contra United States v. Spitz, 696 F.2d 916, 917 (11th Cir.1983). One of the circumstances deemed significant in Gambino, Fiorilla, Amos, and Lee, all of which involved polling rules virtually identical to Missouri’s Rule 29.01(d), was the lack of a contemporaneous objection by defense counsel to continued polling. Gambino, 951 F.2d at 501-02; Fiorilla, 850 F.2d at 176; Amos, 496 F.2d at 1273; Lee, 961 P.2d at 1210. The lack of a contemporaneous objection “permits an inference that the procedures utilized did not appear coercive at the time.” Amos, 496 F.2d at 1273. All of the circumstances in this case, including Mr. Barlow’s failure to object contemporaneously to continued polling, support a finding that Ms. McWil-liams was not pressured into acquiescing in the guilty verdicts. The polling procedure was not coercive. Mr. Barlow’s first point is denied.

No Plain Error in State’s Closing Argument

In his second point, Mr. Barlow claims that the trial court plainly erred when it allowed the prosecutor to argue that there was no evidence, other than Mr. Barlow’s testimony, that Mr. Miles was responsible for the murder of Mr. Meagher and to argue that Mr. Barlow was responsible for all ten blows to Mr. Meagher’s head. Mr. Barlow asserts that the State’s argument was plain error because evidence in support of Mr. Barlow’s defense, a statement Mr. Miles had made to police, was excluded by the trial court when the State objected to its admission. Mr. Barlow argues that, “[e]ven though Missouri law clearly prohibits a prosecutor from arguing an adverse inference from a defendant’s failure to present evidence which was excluded by the trial court,” the State deliberately and improperly asserted that there was no evidentiary support for Mr. Barlow’s defense when the State knew that the supporting evidence existed but was excluded by the court.

Mr. Barlow’s defense at trial was that Mr. Miles was the “ring leader” and primarily responsible for Mr. Meagher’s murder and “subsequent attempts to cover up the homicide.” Mr. Barlow testified that his involvement in disposing of Mr. Meagher’s body and setting fire to his house was motivated by fear. In closing argument, he characterized Mr. Miles, not Mr. Barlow, as the “cold-blooded killer” who, fortunately, was in jail.

In support of this defense, during trial, Mr. Barlow attempted to elicit testimony about a statement Mr. Miles made to the police in which he incriminated himself. The State objected to evidence of the statement because it was inadmissible hearsay. In an offer of proof, Mr. Barlow presented evidence that, in Mr. Miles’ statement to police, he admitted that he hit Mr. Meagher on the left side of his foi’e-head two or three times with the claw end of a hammer to put him “out of his misery” and that it was his idea to dispose of Mr. Meagher’s body in a storm sewer. In arguing that Mr. Miles’ statement was admissible, defense counsel argued that he was not offering Mr. Miles’ statement for the truth of the statements, but instead to “show what [the] detective did in terms of his integrity of the investigation.” After the offer of proof and argument of counsel, the trial court sustained the State’s objection. In its ruling, the court stated it was excluding Mr. Miles’ statement because it was not exculpatory, citing State v. Hutchison, 957 S.W.2d 757, 761 (Mo. banc 1997). Mr. Miles’ statement was marked as an exhibit and made a part of the record for the offer of proof.

On appeal, Mr. Barlow does not challenge the trial court’s ruling excluding Mr. Miles’ statement. Instead, he claims that the trial .court should have, sua sponte, taken action to prevent the State from arguing in closing that there was no evidence to support Mr. Barlow’s defense that Mr. Miles was the “ring leader” in the murder and that Mr. Barlow was responsible for all ten blows to Mr. Meagher and must have deliberated because of the number of blows. The specific statements about which Mr. Barlow complains were made by the State in its rebuttal closing argument. The prosecutor stated:

Ladies and gentlemen, before we get into the deliberate acts of [Mr. Barlow], let’s address this information about Miles. There’s no evidence to support this Miles accusation. The only evidence you have is coming from this defendant. The guy, you could tell by his actions and his words on the stand[,] wasn’t telling you the truth today. This is a case about actions and words, and let’s think about this defendant’s actions and words.

The prosecutor went on to discuss Mr. Barlow’s disposing of Mr. Meagher’s body, destroying the crime scene, attempting to sell Mr. Meagher’s car, communicating to Mr. Meagher’s relatives that he did not know what happened to Mr. Meagher, and Mr. Barlow’s lying to the police. The prosecutor next addressed the issue of deliberation:

Ladies and gentlemen, there’s no doubt that there’s deliberation. When does the deliberation clock start to tick? Does it start to tick when he’s going over there? Yeah. But you don’t believe that. Does it start to tick as a big, young 28-year-old man stands in front of a 61-year-old smaller man and walks over to a bookshelf and grabs a hammer. {Snaps}. No matter how brief. Deliberation.
If you don’t believe — does deliberation happen the first time he raises that hammer? This guy, raises that hammer and strikes the victim in the head? {Snaps}. What about two, three — and remember, this is a hammer on a 61-year-old man’s head. He’s not standing.
You heard Dr. Young. There’s no defensive wounds. He got thumped and he dropped.
Hit No. 2, 3, 4, all the way through to at least 10. The deliberation clock started to tick way before that. This isn’t an act of a man who just snapped out of rage. The guy doesn’t have a nick on his shoulders, on his back, his stomach. Everything was concentrated right on his head.
He was deliberate. He was cool. He knew what he was doing. I’m going to kill this man. I’m going raise this hammer not once but at least ten times, and I’m going to smash his head.

(Emphasis added.)

Mr. Barlow did not object to these remarks by the prosecutor, nor did he include them in his motion for new trial. Accordingly, Mr. Barlow requests plain error review. A claim that is not properly preserved is reviewable only for plain error. Rule 30.20. Plain error relief is appropriate only if this court determines that Mr. Barlow has suffered a “manifest injustice .or a miscarriage of justice” as a result of the alleged error. Id. “Relief should rarely be granted on assertions of plain error committed during closing arguments.” State v. Barnett, 980 S.W.2d 297, 306 (Mo. banc 1998). This is because improper comments made during closing argument usually do not affect the substantial rights of a defendant. State v. Strubberg, 616 S.W.2d 809, 818 (Mo. banc 1981). The improper argument must have had “a decisive effect on the jury’s determination” to constitute plain error. State v. Hall, 982 S.W.2d 675, 683 (Mo. banc 1998).

Mr. Barlow argues that the State’s argument constituted an improper comment on excluded evidence. A prosecutor is not permitted “to ‘comment on or refer to evidence or testimony that the court has excluded.’ ” State v. Weiss, 24 S.W.3d 198, 202 (Mo.App.2000). In particular, the State may not intentionally misrepresent the facts in closing argument by informing the jury that no evidence exists when evidence was offered by the defendant but the State successfully caused the evidence to be excluded. Id. at 203-04. “Whether that error requires reversal depends on the circumstances of the particular case, and particularly on the strength of the other evidence and whether the prosecutor intentionally misrepresented the facts in making the comment.” Id. at 202.

Looking first at the prosecutor’s comment, “There’s no evidence to support this Miles accusation. The only evidence you have is coming from this defendant,” Mr. Barlow argues that this is a deliberate misrepresentation because the State knew that Mr. Miles’ excluded statement would support Mr. Barlow’s defense that Mr. Miles was the ring leader in Mr. Meagher’s murder. In his statement to police, Mr. Miles admitted that he hit Mr. Meagher in the head two or three times with the claw end of the hammer after Mr. Barlow’s blows to put Mr. Meagher “out of his misery” and that it was his idea to dispose of the body in a storm sewer.

Contrary to Mr. Barlow’s assertions, however, Mr. Miles’ admissions in his excluded statement did not support the theory that Mr. Miles was the “ring leader” in the murder. These admissions would have shown only that Mr. Miles joined Mr. Barlow in the murder and participated in covering up the murder. Contrary to Mr. Barlow’s characterization of Mr. Miles as the “ring leader,” Mr. Miles’ excluded statement to the police was that, prior to going to Mr. Meagher’s house, Mr. Barlow told him that Mr. Meagher was a child molester and was not treating Mr. Barlow right, and that Mr. Barlow was thinking about “just getting rid of him altogether.” Mr. Miles said that Mr. Barlow told him “how he wanted to do it” and that Mr. Barlow “was gonna take care of the whole thing and [Mr. Miles] had nothing to worry about.” Mr. Miles said that Mi’. Barlow also told him that “he was a green beret and he knew how to do this and he knew how to do that and that he would be just a few seconds” in killing Mr. Meagher.

The only evidence that Mr. Miles was the “ring leader” did, in fact, come from Mr. Barlow, who made such a claim in his direct testimony. Therefore, the prosecutor’s comment that there was no evidence to support Mr. Barlow’s accusation about Mr. Miles, other than Mr. Barlow’s testimony, was not a misrepresentation of excluded evidence but, rather, was based on the evidence presented at trial. “Prosecutors are entitled to argue matters supported by the evidence or matters reasonably inferable from the record.” State v. Mease, 842 S.W.2d 98, 110 (Mo. banc 1992). “That includes pointing out to the jury an absence of evidence to support a theory suggested by the defendant.” Id. The trial court did not plainly err in permitting this argument.

The other comment Mr. Barlow alleges was improper was the prosecutor’s argument, “He was deliberate. He was cool. He knew what he was doing. I’m going to kill this man. I’m going to raise this hammer not once but at least ten times, and I’m going to smash his head.” Mr. Barlow contends this comment was a misrepresentation of excluded evidence because it implied that he was responsible for all of the blows to Mr. Meagher’s head. In Mr. Miles’ excluded statement, he admitted that he hit Mr. Meagher two or three times with the hammer after Mr. Barlow did. Mr. Barlow claims that a reasonable inference from Mr. Miles’ excluded statement was that Mr. Barlow did not intend to kill Mr. Meagher with his blows, but Mr. Miles intended to and did kill Mr. Meagher with his two or three blows.

Contrary to Mr. Barlow’s claim, the argument by the State concerning whether Mr. Barlow deliberated was not an intentional misrepresentation that there was no evidence when excluded evidence existed. These challenged comments occurred when the State was arguing that the evidence at trial supported a finding that Mr. Barlow had deliberated. There was no statement in this portion of the argument that there was no evidence, other than Mr. Barlow’s testimony, that anyone else struck Mr. Meagher with the hammer. The evidence at trial, particularly Mr. Barlow’s videotaped confession, fully supported the State’s theory that it was Mr. Barlow who intentionally killed Mr. Meagher by repeatedly striking him with the hammer. Mr. Barlow confessed that he took the hammer and hit Mr. Meagher “a lot,” causing Mr. Meagher to fall to the ground. Mr. Barlow further admitted that he continued to hit Mr. Meagher, who was unarmed and bleeding, even- after Mr. Meagher had fallen to the ground. The prosecutor’s comment, that Mr. Barlow coolly and deliberately smashed Mr. Méagher’s head with a hammer ten times with the intent to kill him, was a reasonable inference from this evidence and was not a misrepresentation of excluded evidence. The State was entitled to argue the evidence and all reasonable inferences from the evidence. Mease, 842 S.W.2d at 110. The trial court did not plainly err in permitting this argument.

The judgment is affirmed.

All concur.

      . All statutory references are to the Revised Statutes of Missouri 2000.

      . Gambino, Fiorilla, and Amos involved Federal Rule of Criminal Procedure 31(d), which provides, in pertinent part:
      (d) Jury Poll.... If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.

        Lee involved Idaho Criminal Rule 31(d), which provides, in pertinent part:
      (d) Poll of Jury.... If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or it may be discharged.


author: JOSEPH M. ELLIS, Judge.

text:
    Chastity VEGA, Respondent, v. SHELTER MUTUAL INSURANCE COMPANY, Appellant.
    No. WD 64135.
    Missouri Court of Appeals, Western District.
    March 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 3, 2005.
    Application for Transfer Denied May 31, 2005.

      James C. Spangler, Sedalia, MO, for appellant.

      Mark D. Pfeiffer, Columbia, MO, for respondent.
    Before HAROLD L. LOWENSTEIN, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Shelter Mutual Insurance Company appeals the trial court’s judgment in favor of Chastity Vega for $50,000 in underinsured motorist coverage as a result of an accident in which Ms. Vega was injured.

On June 22, 2001, John and Chastity Vega were husband and wife. John owned a 1988 Chevy S10 pickup, and Chastity owned a 1993 Dodge Shadow. Both vehicles were insured by Shelter. On that day, Chastity was operating her 1993 Dodge Shadow in a southbound direction just outside of Hallsville, Missouri. At the same time, Robert Hartley was traveling northbound when he negligently crossed the centerline and collided with Chastity’s vehicle. As a result of the collision, Chastity sustained fractures to her left pelvis, right knee, and left elbow. She also had a significant forehead laceration and additional soft tissue injuries. She incurred medical bills totaling $74,196.96, and it was stipulated that Chastity’s damages as a result of the car wreck were in excess of $75,000. Additional facts will be detailed as needed later in this opinion.

Mr. Hartley was insured by State Farm Insurance Company. In light of Mr. Hart-ley’s negligence, State Farm immediately tendered its policy limits of $25,000 to Chastity. On July 2, 2001, counsel for Chastity made demand on Shelter for un-derinsured motorist coverage of $50,000. On July 6, 2001, Shelter issued a denial of coverage letter for the underinsured motorist coverage requested. Thereafter, Chastity filed the instant action against Shelter in two counts, the first being for breach of contract and the second for negligent misrepresentation.

On March 12, 2004, the case was tried to the court sitting without a jury upon a stipulation as to some facts, as well as testimonial and documentary evidence. On March 31, 2004, the trial court entered its judgment on Count I (breach of contract) in favor of Chastity Vega, awarding her damages in the amount of $50,000 plus interest, at the rate of 9% per annum, from July 6, 2001, until the date the judgment is satisfied. The court ruled in favor of Shelter on Count II (negligent misrepresentation). Shelter brings this appeal from the judgment on Count I.

Shelter presents one point on appeal. It contends the trial court erred in entering judgment in favor of Chastity Vega on Count I of the First Amended Petition because the Shelter policy covering her vehicle did not contain underinsured motorist (hereafter “TJIM”) coverage and the UIM coverage in John Vega’s Shelter policy does not apply when an insured (Chastity, in this case, under the definition in the policy) occupies a motor vehicle other than an “insured auto,” which she owns, and Chastity’s 1993 Dodge Shadow was not an “insured auto” as defined by the policy.

The issue in. this case is whether Chastity’s injuries were covered by underinsured motorist coverage on either her 1993 Dodge Shadow or her husband’s 1988 Chevy S10. The interpretation of the meaning of an insurance policy is a question of law. Heringer v. American Family Mut. Ins. Co., 140 S.W.3d 100, 102 (Mo.App. W.D.2004). “On appeal, questions of law receive de novo review, giving no deference to the trial court’s decision.” Boulevard Inv. Co. v. Capitol Indem. Corp., 27 S.W.3d 856, 858 (Mo.App. E.D. 2000).

The general rules for interpretation of contracts apply to insurance policies. If an insurance policy is unambiguous, it is enforced as written absent a statute or public policy requiring coverage. If the language of the policy is ambiguous, it is construed against the insurer. An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of words used in the contract. The language of an insurance policy is ambiguous when it is reasonably and fairly open to different constructions. To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy. Where an insurer seeks to avoid coverage under a policy exclusion, it has the burden of proving the applicability of the exclusion.
Generally, if a term is defined in an insurance policy, a court will look to that definition and nowhere else. If a term within an insurance policy is clearly defined, the policy definition controls. If a conflict arises between a technical definition of a term and the meaning of the term which would reasonably be understood by the average lay person, the lay person’s definition will be applied, unless it is obvious the technical meaning was intended.

Heringer, 140 S.W.3d at 102-03 (internal citations and quotations omitted).

Initially, we must address a matter disputed by the parties, and that is whether John and Chastity had two insurance policies with Shelter, one on each vehicle, or one policy covering two vehicles. Shelter contends that there were two policies, one on each vehicle. Respondent argues, and the trial court found, that there was one policy covering two vehicles. The trial court apparently based its finding on (1) Chastity’s testimony that she and John only received one copy of Shelter’s policy form number A-20-A (albeit they did receive separate Declarations pages and billings), (2) the fact that the policy numbers listed on the Declarations pages were identical except for the last numbers in each, 24-1-3753230-1 and 24-1-3753230-2, and (3) testimony from Shelter agent Holsinger that the first ten numbers of a policy number are known as a “family number,” and the last number is a “unit number.” Respondent further argues that the trial court’s determination that there was one policy was a factual finding to which we must defer pursuant to Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The whole issue of one policy or two is a red herring. The parties agree that there was a separate Declarations page for each vehicle, and those pages are part of the record on appeal. Both Declarations pages reflect the policy form number of which it is a part, that being Shelter policy form number A-20-A. That is the printed policy form that was provided to John and Chastity, and it doesn’t really matter whether they received one or two copies of the policy form because that policy form contained the insuring agreement that covered both vehicles. The very first sentence on page 1 of policy form A-20-A, appearing immediately after the heading “THE INDEX” and the sub-caption “WHERE CAN YOU FIND IT,” states: “Declarations — The insured vehicle, policy period, coverages and amount of insurance you have.” Following this on page 1 is the remainder of the index and then the very first paragraph on page 2 provides, in pertinent part:

AGREEMENT
We agree to insure you according to all the terms of this policy,
(1) in reliance on your statements in the Application and in any Application for Change and in the Declarations, made a part hereof, and
(2) based on your payment of the premium.
When you pay the premium, this policy provides the insurance you chose, as shown in the Declarations.

The policy language states in clear and unequivocal terms that the Declarations page is part of the insuring agreement (policy form number A-20-A) and describes (a) the vehicle insured, (b) the term of the policy, (c) what coverages apply to that vehicle, and (d) the amount of insurance. The policy language then goes on to declare that, when the premium is paid, the policy provides the insurance “as shown in the Declarations.” There is no ambiguity here; there is no “duplicity, indistinctness, or uncertainty in the meaning of words used in the contract.” Heringer, 140 S.W.3d at 103.

“The interpretation of policy terms, which are not ambiguous, is a question of law and, as such, an appellate court is not required to defer to the findings of the trial court.” Knipp v. Truck Ins. Exch., 857 S.W.2d 281, 284 (Mo.App. W.D.1993). Since there was a Declarations 'page for the 1993 Dodge Shadow in Chastity’s name and a separate one for the 1988 Chevy S10 in John’s name; each of them listed the policy period, coverages, and amount of insurance provided for the respective vehicle; and each contained a different policy number, it is clear that there were two policies of insurance, one on each vehicle. Consequently, the trial court’s finding in this case that there was one policy covering two vehicles is contrary to the provisions of the policies themselves and, therefore, was erroneous as a matter of law.

Having determined that there were two separate policies, we next look to the Declarations pages for each to determine whether either or both provided UIM coverage. Review of the coverages for Chastity’s Dodge Shadow reveals that she carried bodily injury, property damage, medical payments, uninsured motorist, accidental death, comprehensive, and emergency road service. The policy did not include underinsured motorist coverage.

The policy on John’s Chevy S10 pickup, however, included coverage for bodily injury, property damage, medical payments, uninsured motorist, accidental death, emergency road service, and underinsured motorist, with limits on the latter of “$50,-000 each person, $100,000 each accident.” So the ultimate question in the case before us is whether the UIM coverage in John’s policy provided coverage to Chastity for the UIM loss she sustained in her 1993 Dodge Shadow on June 22,2001.

UIM coverage is provided in an endorsement to Shelter policy form number A-20-A. Shelter contends the UIM coverage in John’s policy is inapplicable because exclusionary language in the UIM endorsement precludes coverage under the facts of this case, specifically because Chastity was operating a vehicle she owned at the time of the accident. The exclusionary language in question provides that UIM coverage does not apply:

To bodily injury to an insured while occupying a motor vehicle (other than an insured auto) owned by you or a relative.

Chastity, on the other hand, argues that Shelter’s reading of the exclusion ignores the parenthetical phrase in the exclusion, in particular the use of the indefinite article “an,” as opposed to the definite article “the.” She contends that by using “an,” the policy contemplates multiple persons that could qualify as the “insured,” and multiple automobiles that could qualify as the “insured auto” under the terms of the policy. Noting that she and John insured both their vehicles with Shelter, she reasons that there were multiple “insured autos.” Consequently, Chastity concludes that she “sustained bodily injuries as defined by the insurance policy; she was ‘an’ insured as defined by the insurance policy; she occupied a motor vehicle that she owned; but, most importantly, she occupied “an” insured auto. Therefore, the exclusion ... does not apply to the instant case.”

The problem with Chastity’s argument is that it overlooks the definitions contained in the policy and the endorsement. If a term in an insurance policy is clearly defined in the policy, this definition is controlling. State Farm Mut. Auto. Ins. Co. v. Ballmer, 899 S.W.2d 523, 525-26 (Mo. banc 1995).

The UIM endorsement defines insured auto to mean either: (a) the described auto, or (b) “a non-owned auto while being operated by you.” The Dodge Shadow was not an insured auto because it was not the described auto (defined in the policy as “the vehicle described in the Declarations”); the 1988 Chevy S10 pickup is the described auto in John’s Shelter policy. Likewise, the Dodge Shadow was not an insured auto under John’s Shelter policy because it was not a non-owned auto (meaning any auto other than the one described in the Declarations or an auto owned in whole or in part by any resident of the household of the insured named in the Declarations or his or her spouse). Chastity owned the Dodge Shadow, and she was a resident of the household of the insured named in the Declarations, that being John Vega. Finally, the definition of “insured auto” further reinforces this by specifically providing that “insured auto” does not include “any auto ... owned by a resident” of the household of the insured named in the Declarations. Thus, Chastity’s contention that the use of the indefinite article “an” before the term “insured auto,” as opposed to the definite article “the,” is without merit. In fact, because of the definitions in the policy, that choice of words is irrelevant.

Since we have determined that Chastity’s 1993 Dodge Shadow was not an “insured auto” as defined in the policy, we now apply the exclusionary provision as written to see if it excludes coverage for this event. The exclusion provides that UIM coverage does not apply to bodily injury to an insured (Chastity was an insured under the terms of the John’s policy) while occupying a motor vehicle (the 1993 Dodge Shadow) other than an insured auto (Chastity’s car was not an insured auto on John’s policy) owned by you (meaning John or Chastity). Parsed in this manner, it is apparent that the exclusion applies because Chastity was an insured occupying a motor vehicle that was not an insured auto that was owned by her. Consequently, the UIM coverage in John’s Shelter policy did not apply to Chastity’s injuries resulting from Robert Hartley’s collision with her vehicle on June 22, 2001.

Recognizing at least the possibility we would reach this conclusion, Chastity asserts alternatively that the trial court’s decision should be affirmed because Shelter’s policy is ambiguous. In fashioning this argument, she points first to the testimony of Christopher Schupp, a Shelter corporate representative, to the effect that it can be confusing trying to figure out when UIM coverage applies and when it doesn’t. Chastity then notes that if there is an ambiguity in an insurance contract, the contract must be construed against the insurer and in favor of the insured, citing Behr v. Blue Cross Hospital Service, Inc., 715 S.W.2d 251, 255 (Mo. banc 1986). She then refers us to Killian v. State Farm Fire & Casualty Co., 903 S.W.2d 215, 217 (Mo.App. W.D.1995), and Citizens Insurance Co. of New Jersey v. Kansas City Commercial Cartage, Inc., 611 S.W.2d 302, 307 (Mo.App. W.D.1980), for the proposition that this rule of construction is applied even more strongly against the insurer when the insurer is attempting to rely on an exclusion in an insurance policy. Conjoining the Schupp testimony with these two legal maxims, Chastity submits, for the same reasons set forth in her prior arguments, “that one reasonable interpretation of the UIM insurance contract language is that Shelter Insurance would not apply their exclusionary clause as long as you were occupying a vehicle that you insured with Shelter Insurance.”

In its Reply brief, Shelter responds by suggesting that Schupp’s testimony is irrelevant, that it does not matter how many witnesses testify that policy language is confusing, because the interpretation of the insurance policy language is a question of law to be determined by the court. Shelter further notes that the trial court specifically found that the policy was not ambiguous, a legal determination favorable to it, but asserts that it really doesn’t matter, because this court must review all such legal conclusions de novo.

Shelter is, of course, correct, as we have previously explained, in that interpretation of the meaning of an insurance policy is a question of law. Heringer, 140 S.W.3d at 102. Obviously, whether an insurance policy is ambiguous is likewise a question of law. Ware v. Geico Gen. Ins. Co., 84 S.W.3d 99, 102 (Mo.App. E.D.2002). And also, as we observed supra, “[o]n appeal, questions of law receive de novo review, giving no deference to the trial court’s decision.” Boulevard Inv. Co., 27 S.W.3d at 858. Thus, contrary to Chastity’s argument, Schupp’s testimony does not have any determinative effect on the issue, as it might on fact questions, nor do any trial court findings, because we review them de novo. Moreover, Chastity’s argument as to why the policy is ambiguous is the same as her interpretation of the policy that we have previously rejected. It overlooks the policy and UIM exclusion definitions.

Thus, we must reject Chastity’s contention that the policy is ambiguous. The simple “fact that the parties disagree on the interpretation of a term in an insurance policy does not render the term ambiguous.” Ware, 84 S.W.3d at 102. And, “[w]e may not create an ambiguity where none exists or rewrite a policy to provide coverage for which the parties never contracted, absent a statute or public policy requiring coverage.” Id.

Finally, there is a procedural matter that Chastity has raised for the first time in her brief on this appeal. She cites Century Fire Sprinklers, Inc. v. CNA/Transportation Insurance Co., 23 S.W.3d 874, 880 (Mo.App. W.D.2000), for the proposition that “an insurance policy exclusion is an affirmative defense that must be pled or may be waived” and argues that Shelter did not plead the UIM exclusion as an affirmative defense and, therefore, waived it. Consequently, she contends that the trial court’s decision should be affirmed even if we conclude, as we already have, that the exclusion bars recovery, because Shelter waived it as a defense.

Chastity emphasizes the first part of the holding in Century Fire Sprinklers, Inc., that an insurance policy exclusion is an affirmative defense that must be pled. Century Fire Sprinklers, Inc., 23 S.W.3d at 880. But the holding further states a failure to plead the exclusion as an affirmative defense may cause it to be waived. Id. In so holding, the court relied on Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993), among other cases. In Heins, the appellant asserted on appeal that MHTC’s claim of res judicata was waived because MHTC failed to plead it as an affirmative defense. 859 S.W.2d at 684-85. Our Supreme Court held that res judicata, like other affirmative defenses, must be pleaded and noted that MHTC did not plead it or take any “affirmative steps to raise its claim preclusion defense in a timely fashion.” Id. at 685. Nevertheless, the Court found that Heins had not objected to MHTC’s motion for judgment notwithstanding the verdict (based on res ju-dicata) on the grounds that the claim had been waived, but rather had addressed the substantive merits. Id. The Court likewise observed that Heins did not object to introduction of evidence at trial about the prior proceedings. Id. As a result, the Court declared that “the issue is deemed to have been tried by the implied consent of the parties and must be treated as though it had been raised in the pleadings.” Id.

The situation here is not unlike that in Heins. Chastity’s First Amended Petition did not specify under which Shelter insurance policy she was making her claim. Rather, it alleged that a claim was being made under “Policy No.: 24-1-375-3230” which, as noted supra, does not identify either policy, as they were number 24-1-375-8230-1 and 24-1-375-3230-2. Consequently, Shelter affirmatively stated in its Answer that there were two separate policies, one of which did not include UIM coverage. Moreover, Chastity knew that Shelter was relying on the exclusion and tried the case on that basis. Her attorney frequently referred to the exclusion from opening argument through closing argument and even introduced evidence regarding it, including Shelter’s July 6, 2001 letter denying coverage and the exclusion itself. Similarly, Chastity made no objections before or during the trial to Shelter’s reliance on the exclusion. Under these circumstances, we have no hesitation in saying, as the Heins Court did, that “the issue is deemed to have been tried by the implied consent of the parties and must be treated as though it had been raised in the pleadings.” 859 S.W.2d at 685.

While we are not unsympathetic to Chastity and the serious injuries she suffered, as noted supra, “[w]e may not create an ambiguity where none exists or rewrite a policy to provide coverage for which the parties never contracted, absent a statute or public policy requiring coverage.” Ware, 84 S.W.3d at 102. Accordingly, for all of the foregoing reasons, we must reverse the trial court’s judgment.

All concur.

      . For ease of identification, we will refer to Mr. and Mrs. Vega by their first names, John and Chastity, throughout this opinion. By doing so, we intend no disrespect.

      . The trial court’s March 31, 2004 judgment did not contain findings of fact and conclusions of law. However, on March 19, 2004, the trial court entered a rather informal "order” making certain factual findings, reciting what the judgment would be, and directing Plaintiff’s counsel "to file proposed judgment no later than 5 PM April 5, 2004, when Clerk shall deliver file to this ‘Division’ ” (sic).

      . Dave Holsinger did not testify at trial, but Plaintiff's counsel offered into evidence Plaintiff’s Exhibit 9, which contains excerpts from his deposition. Shelter objected to the admission of the deposition testimony and counsel for Plaintiff stated: "I would be happy to offer the full testimony, the entire transcript, if the Court prefers that.” The trial court ruled that the deposition would be admitted, subject to Shelter’s objection, and that the court would make an "ultimate” ruling later on the admissibility of the deposition testimony. There is no further indication in the record whether the court admitted or considered all, part, or none of the Holsinger deposition.

      . The definitions section of the policy points out that words shown in bold type face in the policy are defined terms.

      . As pointed out in note 3, supra, words in the policy in bold type face are defined in the definitions section of the policy. The UIM endorsement contains an “Additional Definitions” section defining certain words and phrases for purposes of their use in the UIM endorsement.


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    STATE ex rel. Thomas DIEHL, Relator, v. Honorable John F. KINTZ, Judge of the Circuit Court of St. Louis County, Missouri, Respondent.
    No. ED 84905.
    Missouri Court of Appeals, Eastern District, Writ Division Two.
    March 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 11, 2005.
    Application for Transfer Denied May 31, 2005.

      Michael D. Quinlan, St. Louis, MO, for relator.
    Jeffrey B. Hunt, Albert A. Miehenfelder, Jr., St. Louis, MO, for respondent.
    Bruce A. Morrison, Denise D. Lieberman, St. Louis, MO, for amicus curiae.
   LAWRENCE E. MOONEY, Presiding Judge.

In December of 2003, Thomas Diehl found himself embroiled in a dispute with a company, Fred Weber, Inc. Diehl went to a public hearing held at a local high school to oppose an' application for a trash transfer station. The company owned a sanitary landfill and also the property where a proposed trash transfer station was to be built and operated. Further, the company was the “managing member” of F.W. Disposal South, LLC, which had filed an application with the county health department to construct and operate the trash transfer station. The county health department, as required by law, held a public hearing regarding the proposed trash transfer station.

Before, during, and after the hearing, Diehl distributed a handbill to many members of the public. Because this flyer is at the heart of this dispute, we reprint it in its entirety.

STOP FRED WEBER, INC.
THREE THINGS YOU CAN DO TO FIGHT
THE TRASH TERRORISTS.
1.Write to Dr. Jaequelynn Meeks, Director
St. Louis County Department of Health
111 South Meramec Ave.
Clayton, MO 63105
jaequelynn meeks@stlouisco.com
and Mr. Charlie A. Dooley, County Executive
St. Louis County Government Center
41 South Central Ave.
Clayton, MO 63105
cdooley@stlouisco. com
and Mr. Glen Powers, Director
St. Louis County Department of Planning
41 South Central Avenue
Clayton, MO 63105
glenn powers@stlouisco.com
2. If you currently use Midwest Waste, Excel, or Trash Taxi for your trash service, please consider a firm which does not use Fred Weber’s landfill— Throw N Go, Bob’s Disposal, Kraemer Hauling, or Diamond (aka IESI).
3. Contribute to Our Fight. Make your check payable to:
Subdivision Fee Collectors, Inc.
12570 Hibler Woods
St. Louis, MO 63141
(In the memo field write “Stop Fred Weber Fund”)
DON’T TRASH SOUTH COUNTY

The company filed suit twelve days after the public hearing claiming that the flyer was defamatory. In February of 2004, the company filed an amended petition, which added Diehl as a defendant and is the pleading at issue in this appeal. This pleading contains four counts. The first two counts plead actions in defamation and the third count pleads a civil conspiracy to defame. Each of these three counts requests actual damages in excess of $25,000.00, punitive damages of $5,000,000.00, and an award for costs, expenses, and attorneys’ fees. The final count requests an injunction that Diehl and others be enjoined from distributing the flyer and ordered to deliver any remaining flyers to the court for destruction.

Diehl filed a motion to dismiss, which was denied by the trial judge. Diehl then sought relief by extraordinary writ. This Court issued its preliminary writ in prohibition.

Review of a motion to dismiss for failure to state a claim is solely a test of the adequacy of a plaintiffs petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). It is assumed that all of the plaintiffs averments are true and the plaintiff is liberally granted all reasonable inferences therefrom. Id.

In Nazeri, the Missouri Supreme Court set forth certain standards when deciding if a statement is defamatory. Id. at 311. First, in determining whether a statement of fact is defamatory, the words must be stripped of any pleaded innuendo and construed in their most innocent sense. Id. The alleged defamatory words must also be considered in context, and the words are given their plain and ordinarily understood meaning. Id. The alleged defamatory words “ ‘are to be taken in the sense which is most obvious and natural and according to [the] ideas they are calculated to convey to those to whom they are addressed.’” Id. Although these standards are not “absolutely consistent,” “they should be read together.” Id. Whether the language at issue is defama-tory is a question of law. Sterling v. Rust Communications, 113 S.W.3d 279, 281 (Mo.App. E.D.2003).

The Court in Nazeñ also analyzed constitutionally protected expressions of opinion. Id. at 314. “The First Amendment’s guarantee of freedom of speech makes expressions of opinion absolutely privileged.” Id. However, the United States Supreme Court has rejected the notion that there is a wholesale defamation exemption for anything that might be labeled opinion, noting that expressions of opinion may often imply an assertion of objective fact. Id. (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1 (1990)). The test for an ostensible opinion is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. Id. “The issue of falsity relates to the defamatory facts implied by a statement — in other words, whether the underlying statement about the plaintiff is demonstrably false.” (Emphasis in original). Furthermore, “neither ‘imaginative expression’ nor ‘rhetorical hyperbole’ is actionable as defamation.” Id. In addition, a statement may only suggest to the ordinary reader that the defendant disagrees with the plaintiff’s conduct and used pejorative statements or vituperative language to express this disapproval. Henry v. Halliburton, 690 S.W.2d 775, 788-89 (Mo. banc 1985). “Courts should also examine the statements themselves to determine whether they are too imprecise.” Id. at 789.

We note initially the imprecise nature of the phrase “trash terrorists,” which the company posits as defamatory. Exactly what constitutes a “trash terrorist” is unclear. Indeed, given the imprecise nature of the phrase, it is uncertain how the truth or falsity of being a “trash terrorist” could be determined. The imprecise nature of the phrase “trash terrorists” notwithstanding, the phrase is not defamatory as a matter of law under the applicable standards. The company focuses on the word “terrorist.” But the term “terrorist” cannot be considered in isolation. As previously stated, the allegedly defamatory words must be taken in context. The flyer was distributed before, during, and after a public hearing regarding the proposed trash transfer station. The flyer asks people to write to certain county government officials, to consider ■ changing trash services, and to make a contribution. Certainly, if the flyer was factually claiming that the company kills and injures people, it would not urge the reader to merely write to the head of the St. Louis County Department of Planning. It is clear that the flyer is recommending action to oppose the proposed trash transfer station. Further, the flyer concludes by stating “DON’T TRASH SOUTH COUNTY.” The flyer is conveying the message that approval of the trash transfer station would have a negative impact on South County. Taken in context, the use of the phrase “trash terrorists” reflects the writer’s staunch opposition to the proposed trash transfer station.

In addition, the phrase “trash terrorists” is properly characterized as imaginative expression or rhetorical hyperbole. Again, taken in context and considering the surrounding circumstances, a reader of the flyer would not believe that the company is a terrorist. Rather, the reader would recognize the language as an epithet used to voice opposition to the proposed trash transfer station. Neither imaginative expression nor rhetorical hyperbole can support a claim for defamation. Nazeri, 860 S.W.2d at 314. The company’s petition fails to state a claim for defamation.

The company’s claim of civil conspiracy is based on its defamation claims. A civil conspiracy claim is not itself actionable in the absence of an underlying wrongful act or tort. Duggan v. Pulitzer Publishing Co., 913 S.W.2d 807, 811 n. 1 (Mo.App. E.D.1995). Because the company’s defamation claims fail to state a cause of action, the civil conspiracy claim also fails. Gettings v. Farr, 41 S.W.3d 539, 542 (Mo.App. E.D.2001). For the same reason, the company is not entitled to injunc-tive relief. The company’s petition fails to state a claim upon which relief can be granted.

We now consider whether issuing an extraordinary writ is a proper remedy in this case. We need not address amici’s contention that the company’s action is a SLAPP suit to determine whether an extraordinary writ should issue. Prohibition is a discretionary writ. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856 (Mo. banc 2001). Prohibition may be appropriate to prevent unnecessary, inconvenient, and expensive litigation. Id. at 857; State ex rel. Springfield Underground, Inc. v. Sweeney, 102 S.W.3d 7, 8-9 (Mo. banc 2003); State ex rel. Police Retirement System of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994); State ex rel. Griffin v. Belt, 941 S.W.2d 570, 572 (Mo.App. W.D.1997); State ex rel. City of Marston v. Mann, 921 S.W.2d 100, 101 (Mo.App.S.D.1996); State ex rel. Anheuser-Busch Inc. v. Mummert, 887 S.W.2d 736, 737 (Mo.App. E.D.1994). In exercising our discretion to issue a writ, however, we may consider the chilling impact that might be suffered in public discourse if the underlying meritless action were allowed to proceed.

The alleged defamation occurred before, during, and after a public hearing on the proposed trash transfer station. Public hearings are' conducted in part to encourage public discourse. Further, the free exchange of ideas between citizens and government is a hallmark of democracy. The Missouri Legislature, in enacting section 537.528 in 2004, has recognized the importance of expedited judicial consideration and prevention of unnecessary litigation expenses for actions seeking money damages from “a person for conduct or speech undertaken or made in connection with a public hearing or public meeting. ...” Although this statute was not in effect to grant Diehl an immediate remedy, the same concerns that animated the legislature in enacting this statute may guide the exercise of our discretion in issuing a writ.

We disagree with the company’s claim that issuing a writ of prohibition will open the floodgates in defamation cases. Rather, we hold that, under the circumstances in this particular case, issuing a writ of prohibition is the proper remedy. Accordingly, the preliminary order in prohibition is made absolute. The trial judge is prohibited from any further action in this case other than dismissing the company’s petition for failure to state a claim upon which relief may be granted.

CLIFFORD H. AHRENS, J., and BOOKER T. SHAW, J., concurs.

      . A scanned copy of the flyer appears in the appendix of this opinion.

      . In the original petition, the company named Subdivision Fee Collectors, Inc. and certain unknown and unidentified John Does as defendants. The company dismissed without prejudice Subdivision Fee Collectors, Inc. and dle John Doe defendants on March 4, 2004 and May 24, 2004, respectively.

      . .The company’s amended petition states that the flyer "was and is wholly false in that [the company] is not a terrorist, [the company] is not fanatical, [the company] has not killed or injured people at any time and [the company] does not hate the United States.”

      . In addition to "Libel” and "Slander,” the company's amended petition uses the terms "Trade Libel,” "Business Defamation,” and "Disparagement." The tort of injurious falsehood has been referred to by various names including trade libel and commercial disparagement. Cuba’s United Ready Mix, Inc. v. Bock Concrete Foundations, Inc., 785 S.W.2d 649, 651 (Mo.App.1990). Defamation analysis applies to the tort of injurious falsehood. Kennedy v. Microsurgery and Brain Research Institute, 18 S.W.3d 39, 43-44 (Mo.App. E.D.2000).

      . The company alleged in its petition that "certain Defendants made and uttered the statements contained in the offending flyer or similar statements, in words or in substance, orally on repeated occasions to members of the public” and "on several other occasions orally, certain Defendants maliciously spoke of and concerning [the company] in a disparaging, false and defamatory manner to members of the public, the press and the government.” Missouri requires fact-pleading and for a claim of slander there must be certainty as to what is charged as the slander. Rule 55.05; Nazeri, 860 S.W.2d at 313. The company merely alleges that there were "similar statements” as the flyer and sets forth nothing else other than the defendants speaking about the company in a disparaging manner. The latter allegation lacks the required specificity for a slander claim. As for the allegation that certain defendants made similar remarks as those in the flyer, we hold today that those words are not defamatory.

      . SLAPP is an acronym for strategic lawsuits against public participation, and lawsuits that are brought primarily in retaliation for activity in opposition to a plaintiff's business interests have been referred to as SLAPP suits. David J. Abell, Exercise of Constitutional Privileges: Deterring Abuse of the First Amendment — "Strategic Lawsuits Against Political Participation', 47 SMU L.Rev. 95 (1993).

      . Section 537.528 became effective in August 2004, and provides in part:
      1.Any action seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting, in a quasi-judicial proceeding before a tribunal or decision-making body of the state or any political subdivision of the state is subject to a special motion to dismiss, motion for judgment on the pleadings, or motion for summary judgment that shall be considered by the court on a priority or expedited basis to ensure the early consideration of the issues raised by the motion and to prevent the unnecessary expense of litigation. Upon the filing of any special motion described in this subsection, all discovery shall be suspended pending a decision on the motion by the court and the exhaustion of all appeals regarding the special motion.
      2. If the rights afforded by the section are raised as an affirmative defense and if a court grants a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment filed within ninety days of the filing of the moving party’s answer, the court shall award reasonable attorney fees and costs incurred by the moving party in defending the action. If the court finds that a special motion to dismiss or motion for summary judgment is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to the party prevailing on the motion.
      3. Any party shall have the right to an expedited appeal from a trial court order on the special motions described in subsection 2 of this section or from a trial court's failure to rule on the motion on an expedited basis.

      . The company’s motion to strike Diehl’s reply brief is denied.


author: KATHIANNE KNAUP CRANE, Judge.

text:
    FEDERAL INSURANCE COMPANY, Plaintiff/Respondent, v. GULF INSURANCE COMPANY, Defendant/Appellant.
    No. ED 84501.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 8, 2005.
    Application for Transfer to Supreme Court Denied April 19, 2005.
    Application for Transfer Denied May 31, 2005.

      Robyn Greifzu Fox, Catherine Yale Jo-chens, Moser and Marsalek, P.C., St. Louis, MO, Michael Resis, Julie P. Rubin, O’Hagan, Smith & Amundsen, L.L.C., Chicago, IL, for appellant.

      Edward Thomas Liese, Matthew Eddy, Alison Durphy, Holtkamp, Liese, Childress & Schultz, P.C., St. Louis, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

Defendant, Gulf Insurance Company (Gulf), appeals from the trial court’s entry of summary judgment in favor of plaintiff, Federal Insurance Company (Federal), on Federal’s claim for equitable contribution to the $2,900,000 that Federal paid on behalf of its insured under the excess coverage of its commercial umbrella policy to settle a personal injury action arising out of the death of Federal’s insured’s employee while working on a job for Gulfs insured pursuant to a contract between the insureds. We reverse and remand. Federal’s insured had agreed to indemnify Gulfs insured for all losses and liabilities arising out of the work under the contract unless Gulfs insured was solely at fault, and Federal’s insured purchased insurance from Federal to cover its contractual obligations. Because Federal’s insured was required to indemnify Gulfs insured, Federal was not entitled to equitable contribution from Gulf.

FACTUAL AND PROCEDURAL BACKGROUND

Federal’s motion for summary judgment was based on following stipulated facts. On January 20,1998, S.C. Sachs Company, Inc., (Sachs), as contractor, and Aqualon Company (Aqualon), a division of Hercules, Inc. (Hercules), entered into a contract (the contract) for Sachs to perform electrical work at the Aqualon facility. The contract between Sachs and Aqualon contained an indemnification provision, by which Sachs agreed to hold Aqualon and Hercules harmless for all liability for personal injury or death sustained by Sachs’ employees, as follows:

3.2 INDEMNITY.
(a) Contractor agrees to defend, indemnify and save Aqualon .. ■. [and Hercules] harmless from and against all liability, loss or expense ... because of personal injury (including death at any time resulting therefrom) or loss of or damage to property ... sustained by any person or persons ... arising out of, resulting from, or in consequence of the performance of the work under this Contract ... but excluding Claims caused by the sole act or omission (whether negligent or otherwise) of Indemnities.

The contract required Sachs to procure and maintain a comprehensive general liability policy with a minimum bodily injury limit of $500,000 per occurrence and an umbrella liability policy with a minimum coverage of $2,000,000 per occurrence. The contract required both policies to include Aqualon and Hercules as additional insureds on any claims arising out of or resulting from work performed under the contract. Sachs obtained a comprehensive general liability policy through Fireman’s Fund, with a per occurrence general liability limit of $1,000,000. In addition, Sachs obtained a commercial umbrella liability policy through Federal, with excess follow form liability insurance that provided $50,000,000 in coverage above the Fireman’s Fund policy. The Federal policy contains an “other insurance” provision, which provided:

Other Insurance
If other insurance applies to claims covered by this policy, the insurance under this policy is excess and we will not make any payments until the other insurance has been exhausted by payment of claims. This insurance is not subject to the terms or conditions of any other insurance.

Aqualon obtained a commercial excess occurrence policy from Gulf, which had a $12,000,000 limit above a $2,000,000 self-insured retention. The Gulf policy’s “other insurance” clause provided:

J. Other insurance
If other insurance applies to claims covered by this policy, the insurance under this policy is excess of such other insurance and we will NOT make any payments until the other insurance has been used up. This condition shall not apply, however, if the other insurance is specifically written to be excess over this policy.

Hercules and Aqualon qualified as “insureds” under the Fireman’s, Federal, and Gulf policies.

Pursuant to Hercules Purchase Order No. 4500169304, Sachs was to replace an electric pole at the Aqualon Facility. That purchase order also contained an indemnification provision, which provides in part:

[Sachs] shall indemnify, defend, and save [Aqualon] harmless from and against all liability, losses and expenses (including costs and attorney’s fees) for any suit, claim, settlement, award or judgment ... arising out of the failure of [Sachs] to comply with safety and security regulations, and out of any negligence on the part of [Aqualon], except to the extent such claim may be caused solely by the negligent act or omission of [Aqualon].

On August 16, 1999, Sachs employee Michael Ryals was electrocuted while working at the Aqualon Facility pursuant to the contract and purchase order between Sachs and Aqualon, and died as a result of this accident. Also as a result of the accident, the Occupational Safety and Health Administration (OSHA) issued a Citation and Notice of Penalty to Sachs in connection with its work under the contract and purchase order.

On October 10, 2001, the Circuit Court of St. Louis County approved a settlement of $8,500,000 to Mr. Ryals’ wife and children in full release of Hercules, Aqualon, and Sachs. Federal paid $2,900,000 and Fireman’s Fund paid $600,000 towards the court-approved settlement of the claim. There was no judicial determination that the accident was caused solely by the negligence of Aqualon or Hercules. The parties agree that the settlement was reasonable. While the settlement was being negotiated, Federal requested that Aqualon and Hercules contribute to the settlement, but both refused. During the settlement negotiations, Federal advised Gulf it would seek contribution from Gulf at a later date. Neither Aqualon nor Hercules contributed to the settlement.

Federal subsequently filed an Amended Petition for Contribution and Declaratory Judgment against Gulf to obtain contribution in the amount of $561,290, prejudgment interest, and a declaratory judgment on Gulfs obligation to contribute to the settlements. Gulf filed a motion for summary judgment based on its claim that the insurance payments to the settlement were made to satisfy Sachs’ contractual obligation to hold harmless Aqualon and Hercules from any liability for personal injury or death of Sachs employees. Federal filed a cross-motion for summary judgment based on its claim that Gulf was responsible for 12/62 of the $2,900,000 settlement, or $561,290. The trial court granted Federal’s motion and- awarded Federal $561,290 and prejudgment interest. Gulf appeals.

DISCUSSION

We review the grant of summary judgment de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). When the underlying facts are not in question, disputes arising from the interpretation and application of insurance contracts are matters of law for the court. Southeast Bakery Feeds v. Ranger Ins. Co., 974 S.W.2d 635, 638 (Mo.App.1998). In addition, summary judgment may properly resolve claims interpreting a contractual indemnification provision. Nusbaum v. City of Kansas City, 100 S.W.3d 101, 105 (Mo. banc 2003).

For its first point, Gulf contends that the trial court erred in finding that Federal was entitled to equitable contribution, because the rights and liabilities of Gulf and Federal were governed by the indemnity obligations of their respective insureds, in that Federal’s insured, Sachs, had specifically agreed to assume the tort liability of Gulfs insured, Aqualon, in an “insured contract,” and the liability was covered solely by the Federal policy. We agree.

A. General Rule — Equitable Contribution

The trial court’s award of equitable contribution to Federal was based on its application of a general rule governing “other insurance” clauses. Under this rule, if neither concurrent policy has an “other insurance” provision, both insurers are required to prorate in proportion to the amount of insurance provided by their respective policies. Arditi v. Massachusetts Bonding & Insurance Co., 315 S.W.2d 736, 743 (Mo.1958). When both policies contain similar “other insurance” clauses, the clauses are treated as mutually repugnant and are disregarded. Id. In this situation, the losses are prorated as though neither policy had an “other insurance” clause. Id. Arditi applies to concurrent primary policies, but this rule also applies to concurrent excess policies. Crown Center v. Occidental Fire & Cas. Co., 716 S.W.2d 348, 355 (Mo.App.1986); see also Planet Ins. Co. v. Ertz, 920 S.W.2d 591, 595 (Mo.App.1996). This rule requires the insurers to prorate the loss in proportion to the amount of coverage by their respective policies and allows the insurer paying more than its share of the claim to recover the excess paid from the other insurer.

B. Exception — Indemnity Agreements

However, an exception to this general rule has developed in situations in which “the policy of the insurer seeking to invoke the ‘other insurance’ clauses also covers another insured who is hable to indemnify the insured in the policy of the other insurer.” American Indem. Lloyds v. Travelers Property, 335 F.3d 429, 436 (5th Cir.2003) (predicting Texas law). “In a variety of commercial relationships, such as lessor-lessee and contractor-subcontractor, the contracts between the parties contain indemnification agreements in which one agrees to hold the other harmless for its own acts of negligence or that of its employees. Such contractual arrangements can nullify a right to contribution.” 15 Lee R. Russ & Thomas F. Segulla, Couch on Insurance 3D Section 218:19, p. 218-25 (1999). Thus, “an indemnity agreement between the insureds, or a contract ■with an indemnification clause, such as is commonly found in the construction industry, may shift an entire loss to a particular insurer notwithstanding the existence of an other insurance clause in its policy.” Id. at section 219.1, p. 219-7 citing J. Walters Const., Inc. v. Gilman Paper Co., 620 So.2d 219 (Fla.App. 1 Dist.1993) (applying Georgia law).

“[M]ost, if not all, jurisdictions to have faced the question of whether an indemnification agreement could relieve particular insurers of an obligation to pay, without resort to a separate action to enforce the indemnification agreement, have answered in the affirmative.” St. Paul Fire & Marine Ins. v. Am. Intern. Spec. Lines, 365 F.3d 263, 272 (4th Cir.2004) (predicting Virginia law). These cases give “controlling effect to the indemnity obligation of one insured to the other insured over ‘other insurance’ or similar clauses in the policies of the insurers, particularly where one of the policies covers the indemnity obligation.” American Indem., 335 F.3d at 436. See also Wal-Mart Stores, Inc. v. RLI Ins. Co., 292 F.3d 583, 587 (8th Cir.2002) (predicting Arkansas law); Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal.3d 622, 119 Cal.Rptr. 449, 532 P.2d 97 (Cal.1975); Hartford Cas. Ins. Co. v. Mt. Hawley Ins. Co., 123 Cal.App.4th 278, 20 Cal.Rptr.3d 128 (Cal.Ct.App.2004); J. Walters, 620 So.2d at 221; Chubb Ins. Co. of Canada v. Mid-Continent Cas. Co., 982 F.Supp. 435, 438 (S.D.Miss.1997).

The rationale for this exception is to give effect to the insureds’ indemnity agreement. “To hold otherwise would render the indemnity contract between the insureds completely ineffectual and would obviously not be a correct result, for it is the parties’ rights and liabilities to each other which determine the insurance coverage; the insurance coverage does not define the parties’ rights and liabilities one to the other.” Chubb, 982 F.Supp. at 438. To apply the “other insurance” provisions to reduce the indemnitor’s insurer’s liability “would serve to abrogate the indemnity agreement between” the indemnitor and indemnitee owner. J. Walters, 620 So.2d at 221. “[T]o apportion the loss in this case pursuant to the other insurance clauses would effectively negate the indemnity agreement and impose liability on [owner’s insurer] when [owner] bargained with [contractor] to avoid that very result as part of the consideration for the construction agreement.” Rossmoor, 13 Cal.3d at 634, 119 Cal.Rptr. 449, 532 P.2d 97.

Further, failure to give effect to the indemnity agreement would result in circuitous litigation which would ultimately end with the excess carrier paying the settlement. Wal-Mart, 292 F.3d at 587; American Indem., 335 F.3d at 437. Courts should consider obligations under an indemnity agreement before allocating responsibility for the settlement liability according to the terms of the relevant policies. St. Paul, 365 F.3d at 277.

The sole case on which Federal relies to refute this body of law is Travelers v. American Equity, 93 Cal.App.4th 1142, 113 Cal.Rptr.2d 613 (Cal.Ct.App.2001). In that case, which involved a different type of indemnity agreement, the California Court of Appeals held that the indemnitor’s insurer was entitled to equitable contribution from the indemnitee’s insurer. Id. at 1157-58, 113 Cal.Rptr.2d 613. Travelers is not persuasive authority. It has been extensively analyzed by Hartford, a subsequent California Court of Appeals case, which distinguished some of its holdings and rejected others. 123 Cal.App.4th at 301-05, 20 Cal.Rptr.3d 128. It also conflicts in various respects with the cases from other jurisdictions holding that in-demnitor’s insurer is solely hable to cover a loss or liability. We do not need to address how Travelers differs from cases in other jurisdictions because, as distinguished and explained by Hartford, Travelers does not apply to the facts of this case.

Although no Missouri court has addressed this issue, we find the overwhelming authority that recognizes an exception to equitable contribution is persuasive and applicable to the resolution of the issues on this appeal.

C. Application of Exception

Whether an indemnity agreement is relevant and controls the obligations of the insurers depends upon the facts and circumstances of the particular case. Wal-Mart, 292 F.3d at 588; see also St. Paul, 365 F.3d at 271, 273-77; Rossmoor, 13 Cal.3d. at 633, 119 Cal.Rptr. 449, 532 P.2d 97. Wal-Mart identifies several considerations in this analysis that subsequent decisions have followed: 1) the validity of the indemnification agreement; 2) an insurance policy that covers the settlement; and 3) the intentions and relationships of the parties and the absence of unfair prejudice to the insurers. 292 F.3d at 587.

1. Validity and Enforceability of Indemnification Agreement

a. Validity

The first consideration is whether the indemnification agreement between the indemnitor and the indemnitee was valid. Wal-Mart, 292 F.3d at 587; St. Paul, 365 F.3d at 271. “Missouri law makes clear that ‘in a private contract, where the parties stand on a substantially equal footing, one may legally agree to indemnify the other against the results of the indemnitee’s own negligence.’ ” Nusbaum, 100 S.W.3d at 105 (quoting Kansas City Power & Light Co. v. Federal Const. Corp., 351 S.W.2d 741, 745 (Mo.1961)). That intention must be expressed in clear and unequivocal terms. Nusbaum, 100 S.W.3d at 105. Here the indemnity clause clearly and unequivocally requires Sachs to indemnify Aqualon, unless the loss or liability was caused by Aqualon’s sole negligence.

b. Enforceability

Federal makes two arguments against enforceability, neither of which has merit.

(1) No Prior Judicial Determination of Fault

Federal first argues that whether or not the indemnity language was valid, the enforceability of the indemnity clause could not be determined in the summary judgment action because a fact-finder in the underlying case never apportioned fault, citing Travelers, 93 Cal.App.4th at 1157-58, 113 Cal.Rptr.2d 613. The California appellate court in Travelers based its decision in part on the fact that no judicial determination of active or intentional negligence had been made, so no right to indemnity had been established. Id. No other jurisdiction to consider this issue has held that summary judgment is precluded in the absence of a judicial determination of fault. In St. Paul, 365 F.3d at 274, the U.S. Court of Appeals for the Fourth Circuit held that the trial court could determine on a motion for summary judgment that the settled liability in the underlying litigation did not arise from “fraud, gross negligence, or willful conduct.” See also American Indem., 335 F.3d at 441-42, distinguishing Travelers on this issue because it was based on principles of California law not followed in Texas.

■Further, Travelers has been distinguished in its own jurisdiction so that it does not apply when the issue ⅛ sole fault. In Hartford, the court pointed out that indemnity in Travelers was based on a finding of no active or intentional negligence, an issue that had not been litigated by the parties. 123 Cal.App.4th at 301, 20 Cal.Rptr.3d 128. In contrast, in Hartford, the indemnitee was entitled to indemnity unless the indemnitee was solely at fault. Id. at 282, 20 Cal.Rptr.3d 128. Hartford held that the questions of sole fault and the insured’s right to indemnity can be determined as matters of law on a motion for summary judgment between the insurers. Id. at 301-03, 20 Cal.Rptr.3d 128. Thus, even in California, the holding in Travelers that the indemnity agreement is not enforceable in the absence of a prior judicial determination of fault does not apply when the indemnity provision turns on sole fault and sole fault can be determined as a matter of law.

Hartford refutes Federal’s argument that the indemnity agreement between Sachs and Aqualon is irrelevant to this case because there was no judicial determination of fault. The indemnity agreement in the contract provides that Sachs is required to hold Aqualon harmless for all loss “but excluding claims caused by the sole act or omission ... of indemnit[e]es.” The indemnity agreement in the purchase order provides that Sachs is liable “except to the extent such claim may be caused solely by the negligent act or omission of [Aqualon].” In this case, Sachs was required to indemnify Aqualon unless Aqual-on was solely at fault. Although sole negligence is ordinarily a question of fact, it “ ‘may be determined as a matter of law, however, when the evidence is so clear and undisputed that reasonable persons could not disagree.’ ” Id. at 301, 20 Cal.Rptr.3d 128 (quoting Rossmoor, 13 Cal.3d at 629, 119 Cal.Rptr. 449, 532 P.2d 97).

Whether the undisputed facts showed that Aqualon was or was not solely at fault is an issue that the trial court could decide on a motion for summary judgment in this case.

(2) Waiver

Federal also argues that Aqualon waived its right to indemnification from Sachs by agreeing in the parties’ Settlement Agreement and Full and General Release to release Sachs from any causes of action for indemnity, and therefore the indemnification agreement no longer controls the allocation of insured liability. This argument has no merit. Federal and Gulf explicitly agreed that the settlement agreement would not constitute a waiver of their rights and defenses against each other:

It is the intention of Federal Insurance Companies and Gulf Insurance Group, with respect to any such claims, causes of action, or action against each other, to preserve all rights and/or defenses available under their respective insurance policies as of the time of the execution of this Agreement, and nothing contained herein should be construed as a waiver of any such rights and/or defenses as against each other.

Gulf preserved its defense to equitable contribution on the basis of the indemnity agreement by this language. See St. Paul, 365 F.3d at 274 n. 6.

2. Insurance Policy Covering Settlement

The next consideration is whether the excess carrier had provided the indemnitor with a policy that covered the settlement. Wal-Mart, 292 F.3d at 587. Federal does not dispute that its policy covered the settlement; rather, it claims that Gulfs policy also covers it.

3. Intentions and Relationship of Parties and Prejudice to Insurers

A third consideration is whether the indemnity agreement reflects the intentions of and relationship between the parties and does not unfairly prejudice the insurers. Wal-Mart, 292 F.3d at 587; St. Paul, 365 F.3d at 271. Aqualon and Sachs contracted to assign to Sachs and its insurers the risks of bodily injury that was not solely the result of an act or omission by Aqualon, including death, arising out of the contracted work. Aqualon required Sachs to obtain a minimum of $2,500,000 in contractual liability coverage. Aqualon elected not to insure the first $2,000,000 in loss beneath the Gulf policy. Aqualon’s substantial retained limit beneath the Gulf policy is consistent with the parties’ intention that Sachs obtain an excess policy with a $2,000,000 liability limit in addition to a primary policy and the expectation that Sachs, and its insurers, would indemnify Aqualon for the bodily injury or death of a Sachs employee while on Aqualon’s premises in the performance of the contracted work. The Fireman’s and Federal policies satisfied the insurance requirements for contractual liability.

Conclusion

Sachs’ obligation to indemnify. Aqualon requires Sachs’ insurers to cover the entire settlement amount. The trial court erred as a matter of law in allowing Sachs’ insurer, Federal, to obtain equitable contribution from Aqualon’s insurer, Gulf. Point one is granted.

The summary judgment entered by the trial court is reversed and the case is remanded.

PATRICIA L. COHEN, P.J. and ROBERT G. DOWD, JR., J., concur.

      . It had also paid $400,000 to another employee injured in the accident, thus meeting its $1,000,000 per occurrence coverage.

      . However, dissimilar “other insurance’’ clauses are not treated as mutually repugnant. State Farm Mut. Auto. Ins. Co. v. Western Cas. & Sur. Co., 477 S.W.2d 421, 426-27 (Mo. banc 1972); Planet Ins., 920 S.W.2d at 595.

      . Because we have found that point one requires reversal and remand, we do not reach Gulf's alternate claim for reversal contained in its second point.