author: TAYLOR, Judge.

text:
    COMMONWEALTH of Kentucky, TRANSPORTATION CABINET, Appellant, v. William WEINBERG, Appellee.
    No. 2003-CA-001464-MR.
    Court of Appeals of Kentucky.
    Oct. 29, 2004.

      W. David Shearer, Jr., Christopher G. Newell, John W. Harrison, Jr., Louisville, KY, for appellant.
    Daniel F. Dotson Whitesburg, KY, for appellee.
    Bill Weinberg, Hindman, KY, pro se,
    Before JOHNSON and TAYLOR, Judges; EMBERTON, Senior Judge.

      . Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes 21.580.

   OPINION

TAYLOR, Judge.

The Commonwealth of Kentucky, Transportation Cabinet (the Cabinet) brings this appeal from a February 27, 2002, judgment of the Knott Circuit Court. We affirm in part and reverse in part.

On September 15, 1993, William Weinberg was cited for speeding 16-25 mph over the speed limit in Fayette County, Kentucky, and was convicted of the violation in the Fayette District Court on October 5,1993. On March 22,1994, Weinberg was again cited for speeding 16-25 mph over the speed limit in Fayette County and was convicted of the violation in the Fay-ette District Court on March 31, 1994. Consequently, Weinberg was assessed six points per speeding violation and, thus, accumulated twelve points in a two-year period.

Under 601 Ky. Admin. Regs. (KAR) 13:025 (the point system), the accumulation of twelve or more points within a period of two years constituted cause for suspension of an individual’s driving privilege. The Cabinet sent Weinberg notice that he had accumulated twelve points within two years and notice of a show cause hearing as to why his driving privilege should not be suspended. See 601 KAR 13:025 § 12. At the hearing, Weinberg put on evidence, and the Cabinet elected to offer no evidence other than the two traffic convictions. Eventually, Weinberg was found to have accumulated twelve points in a two-year period and, thus, to be an habitually reckless or negligent driver. See Kentucky Revised Statutes (KRS) 186.570(l)(d). Weinberg was offered probation in lieu of suspension, but he refused. Thereupon, Weinberg’s driving privilege was suspended for a period of six months.

Weinberg filed a written “grievance” with the Cabinet and also filed a complaint in the Knott Circuit Court on May 26, 1994. See 601 KAR 13:025 § 12. In the complaint, Weinberg claimed he was denied a due process hearing by the Cabinet; 601 KAR 13:025 was arbitrary and capricious because it failed to use accident-cause statistics in assessing points for traffic violations; and the regulation was unconstitutional. On February 27, 2002, the circuit court entered judgment in favor of Weinberg. Therein, the court concluded 601 KAR 13:025 amounted to an arbitrary exercise of power because the point system failed to rely upon accident-cause statistics as mandated by the regulation. This appeal follows.

Our review of an administrative agency’s decision focuses upon arbitrariness. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm’n, Ky.App., 379 S.W.2d 450 (1964). Arbitrariness has many facets; most notable are whether the agency acted in excess of granted powers, whether procedural due process was afforded the parties, and whether the administrative agency’s decision was supported by substantial evidence. Athough never specifically articulated by a Court of this Commonwealth, it is axiomatic that failure of an administrative agency to follow its own rule or regulation generally is per se arbitrary and capricious. See State ex rel. Wyoming Workers’ Compensation Div. v. Brown, 805 P.2d 830 (1991); 2 Am.Jur.2d Administrative Law § 499 (2004). With the forgoing legal authority in mind, we shall undertake an analysis of 601 KAR 13:025.

The Cabinet derived its specific authority to promulgate 601 KAR 13:025 from KRS 186.400 and KRS 186.570. KRS 186.400 specifically grants the Cabinet the authority to promulgate regulations to carry out the directives of KRS 186.570. KRS 186.570(l)(d) provides, in part, that the Cabinet may suspend an operator’s license if the Cabinet has reason to suspect that a “person is an habitually reckless or negligent driver of a motor vehicle or has committed a serious violation of the motor vehicle laws.”

In an effort to fulfill the directives of KRS 186.570(l)(d), the Cabinet promulgated 601 KAR 13:025 (the point system), which provides in part:

This regulation specifies the driver licensing point system in which traffic offense convictions are assigned a certain number of points, according to the seriousness of the offense as determined by either accident-cause statistics or by statute. Certain offenses have proven so dangerous that they are made cause for suspension periods rather than point accumulation. The purpose of the point system is to establish a criterion whereby the discretion allowed the Transportation Cabinet in determining the “habitually reckless or negligent driver” or the “serious violator” is not exercised arbitrarily and capriciously, but each license holder will be treated like every other one, and each will know or can determine his point status at any given time, (emphasis added).

From the above regulatory language, it is clear that 601 KAR 13:025 mandated the creation of a point system whereby a specific traffic offense would be assigned a certain number of points based upon the seriousness of that offense as determined by accident-cause statistics. Stated differently, ■ accident-cause statistics were to be utilized to assign the number of points to a particular traffic offense. Presumably, if a specific traffic offense had a higher percentage of accidents attributed to it, the offense would be assigned a higher number of points. In contrast, if a traffic offense is associated with a lower number of accidents, the offense would be assigned a lower number of points. Under 601 KAR 13:025, an operator’s driving privilege may be suspended if he accumulates twelve points in a two-year period or if he is convicted of certain “serious violations of the motor vehicle laws.”

As 601 KAR 13:025 specifically mandated the use of accident-cause statistics, it was incumbent upon the Cabinet to have followed such mandate in creating the point system. Upon review of the record as a whole, the evidence overwhelmingly demonstrates the Cabinet did not utilize accident-cause statistics in creating the point system under 601 KAR 13:025.

In its judgment, the circuit court specifically outlined the abundant evidence demonstrating the Cabinet’s failure to utilize accident-cause statistics:

8. The Cabinet has failed in its burden to show that the point system in effect at the time involved herein was reasonable, was not arbitrary and capricious and was based on accident-cause statistics, as required by 601 KAR 13:025. Sandra Garman Pullen Davis, a staff assistant for the Secretary of Transportation, testified that she was the author of all of the regulations pertaining to the point system from 1984 up until the date of her deposition, including 601 KAR 13:025. She further testified that none of the changes in the point system which she made were based upon any research relating to accident-cause statistics and that she had been provided with no information concerning accident-cause statistics to assist her in her preparation of the regulations. Mr. Steve Coffey, Assistant Director of the Division of Driver’s Licensing, testified that he was aware of no research since 1984 that had been done with regard to the point system, although he was aware of an earlier study by Ken Agent. Mr. Coffey testified that Mr. Agent’s recommendations were not implemented. Coffey further testified that he had no personal knowledge of any accident-cause statistics in the Department and that no research had been done pertaining to accident-cause statistics in the five (5) years preceding this action. The Defendant’s own expert, Ken Agent, testified that from 1979 until the time of his deposition he was aware of no one who had done any work on accident-cause statistics relating to the point system.
9. Plaintiffs expert Dr. James McKnight, founder and President of the National Public Services Research Institute and a person who has done numerous studies for the National Highway Traffic Safety Administration, testified that there was no empirical evidence to support Kentucky’s point system as being based on accident-cause statistics. In short, the overwhelming evidence of record allows for no other conclusion but that the Defendant did not follow its own regulations in failing to base its point system on accident-cause statistics.

We must conclude, as did the circuit court, the evidence overwhelmingly establishes the Cabinet failed to follow 601 KAR 13:025 by not utilizing accident-cause statistics in creating the point system. As the Cabinet failed to follow its own regulation, we are of the opinion the Cabinet acted arbitrarily and capriciously in creating the point system contained in 601 KAR 13:025. We, thus, hold 601 KAR 13:025 to be invalid. Our opinion, however, is narrowly limited to invalidating that version of 601 KAR 13:025 adopted on August 9, 1990, and in effect until February 9, 1997.

We make one last observation. In its judgment, the circuit court specifically directed:

2. The Defendant is instructed to revamp its point system, 601 KAR 13:025, to place it in compliance with its regulation which requires that the points be based upon either accident-cause statistics or statute. In the absence of statutory changes, the Cabinet is instructed to retain nationally recognized experts to examine the Kentucky point system from the standpoint of national accident-cause statistics and Kentucky accident-cause statistics and to implement at the earliest feasible date, a new point system based upon valid and reliable accident-cause statistics;
3. In the meantime, the Court finds that the hearing afforded the Plaintiff and others like him violate the Kentucky and the United States due process requirements under both Constitution^] and the Court orders the Cabinet to treat the presumption created by the satisfaction of the requisite number of points under the Kentucky point system as a rebuttable presumption, rather than an irrebuttable presumption, until such time as the Cabinet has demonstrated to the Court that Kentucky’s point system is reasonably related to valid, reliable, and current accident-cause statistics.

The circuit court required the Cabinet to “revamp” 601 KAR 13:025 by utilizing accident-cause statistics and to implement a rebuttable presumption at its hearings. Effective February 10, 1997, 601 KAR 13:025 was amended, and the mandate that the point system be based upon accident-cause statistics was deleted therefrom. In view of such substantive amendment, the circuit court’s directive that the Cabinet revamp 601 KAR 13:025 utilizing accident-cause statistics is now moot.

As to the circuit court’s implementation of the rebuttable presumption, we conclude this was error. Because 601 KAR 13:025, as adopted on August 9, 1990, has been invalidated, there existed no lawful point system in Kentucky from August 9, 1990, to February 9, 1997. Since no legitimate point system existed, there, likewise, existed no need or requirement for a hearing upon accumulation of points under the invalid point system. Therefore, the implementation of a rebuttable presumption is erroneous.

In sum, we hold 601 KAR 13:025, as adopted August 9, 1990, to be invalid and affirm the circuit court’s decision upon this issue. We, however, reverse the part of the circuit court’s decision that directed the Cabinet to “revamp” 601 KAR 13:025 and to implement a rebuttable presumption.

For the foregoing reasons, the judgment of the Knott Circuit Court is affirmed in part and reversed in part.

ALL CONCUR.

      . We refer to 601 Ky. Admin. Regs. (KAR) 13:025 as it existed at the time of Weinberg's traffic violations in 1993 and 1994. This version of 601 KAR 13:025 was adopted on August 9, 1990. 601 KAR 13:025 was later amended effective February 10, 1997, which is the version currently in effect.

      . Our analysis is solely confined to the version of 601 KAR 13:025 that was adopted on August 9, 1990, and was the version in effect at the time of Weinberg's traffic violations.

      . Under 601 KAR 13:025, serious violations include racing, speeding 26 mph or more over the speed limit, and attempting to elude law enforcement by use of a motor vehicle.

      . We do not pass upon the validity of the current version of 601 KAR 13:025 as amended effective February 10, 1997. The 1997 amendment deleted the mandate that the point system be based upon accident-cause statistics.

      . 601 KAR 13:025 currently states that it is necessary to establish an equitable driver’s license point system to punish a driver who violates traffic laws. The points are then utilized to determine if a person is an "habitually reckless or negligent driver” for which penalties may be imposed upon his driving privilege.


source: Caselaw Access Project

author: BUCKINGHAM, Judge.

license: Public Domain

text:
    Thomas STEPHENS, Appellant, v. Timothy DENISON, Appellee.
    No. 2003-CA-002109-MR.
    Court of Appeals of Kentucky.
    Nov. 5, 2004.
    Thomas Stephens, St. Mary, pro se.
    Paul S. Gold, Louisville, for appellee.
    Before BUCKINGHAM, MINTON, and TAYLOR, Judges.
   OPINION

BUCKINGHAM, Judge.

Thomas Stephens was convicted of obtaining a controlled substance by fraud and of being a first-degree persistent felony offender (PFO I) and was sentenced to twenty years in prison following a jury trial in the Bullitt Circuit Court. He claims that his predicament was caused by the legal malpractice of the attorney representing him, Timothy Denison. Stephens filed a malpractice claim against Denison in the Jefferson Circuit Court, but the court granted Denison’s summary judgment motion. We affirm.

A Bullitt County grand jury initially indicted Stephens for the offense of obtaining a controlled substance by fraud. It later indicted him for PFO I. He retained Denison to represent him on the charges. Stephens was convicted on both counts after a jury trial in October 1997 and was sentenced to an enhanced term of twenty years in prison. His conviction was upheld on direct appeal by the Kentucky Supreme Court in an unpublished opinion.

While Stephens’s direct appeal was pending before the supreme court, he filed a civil suit in the Jefferson Circuit Court against Denison claiming malpractice. Stephens asserted that Denison failed to notify him that the Commonwealth had made a plea offer under which he could have pled guilty to the obtaining a controlled substance by fraud charge and received a two-year sentence, with the Commonwealth agreeing not to bring the PFO charge. Stephens alleged that he was not informed of this offer until it was too late to accept it. Further, he claimed that Denison was under the influence of cocaine during the trial.

The circuit court awarded summary judgment in Denison’s favor in an opinion and order entered on July 19, 2000. The court reasoned that Stephens’s claim was barred by the applicable statute of limitation. However, this court reversed the judgment and remanded the case to the circuit court. See Stephens v. Denison, Ky.App., 64 S.W.3d 297 (2001).

Denison subsequently filed a renewed motion for summary judgment. He argued that Stephens’s failure to identify an expert witness to support his claim and his failure to obtain postconviction relief barred any claim of legal malpractice. Stephens filed a response arguing that no expert testimony was necessary to support his claim and that his failure to obtain postconviction relief did not bar his claim because the issue was the length of his sentence, not his innocence.

On September 9, 2003, the circuit court entered an order granting Denison’s renewed summary judgment motion. The court reasoned that expert testimony was necessary to prove Stephens’s claim of legal malpractice and that Stephens had failed to identify any expert witness. The court did not address Denison’s argument that Stephens’s failure to obtain postcon-viction relief also barred the claim. This appeal by Stephens followed.

Stephens argues on appeal that the circuit court erred in granting Denison’s renewed summary judgment motion based on Stephens’s lack of an expert witness to support his claim. He maintains that expert witness testimony was not necessary in order for a jury to determine whether Denison failed to inform him of the plea offer while it was still in effect and whether such alleged failure helped prove the elements necessary to support a legal malpractice claim. Thus, he contends that this court should reverse the judgment and remand the case for trial.

In order to support a claim of legal malpractice, a plaintiff must prove “1) that there was an employment relationship with the defendant/attorney; 2) that the attorney neglected his duty to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances; and 3) that the attorney’s negligence was the proximate cause of damage to the client.” Marrs v. Kelly, Ky., 95 S.W.3d 856, 860 (2003), quoting Stephens, 64 S.W.3d at 298-99. Because there is no question that there was an employment relationship with Denison and Stephens, the issue is whether expert witness testimony was necessary for Stephens to prove that Denison neglected his duty to exercise ordinary care and that Deni-son’s negligence was the proximate cause of damage to Stephens.

The question of whether expert testimony is always required in legal malpractice actions is apparently one of first impression in Kentucky. Kentucky has adopted an exception that allows medical malpractice claims to proceed without expert testimony where the negligence is so apparent that a layperson with general knowledge would have no difficulty recognizing it. See Jarboe v. Harting, Ky., 397 S.W.2d 775, 778 (1965); Harmon v. Rust, Ky., 420 S.W.2d 563, 564 (1967); Maggard v. McKelvey, Ky.App., 627 S.W.2d 44, 49 (1981). A similar result has been reached in dental malpractice actions. See Butts v. Watts, Ky., 290 S.W.2d 777, 779 (1956).

Because Kentucky courts allow medical and dental malpractice claims to proceed absent expert testimony where the negligence is so apparent that a layperson with general knowledge would have no difficulty recognizing it, we see no reason why such a rule should not be extended to legal malpractice claims. Stephens’s allegation that Denison failed to communicate a plea offer to him until such time as it could no longer be accepted would fall within the aforementioned exception. Thus, his failure to identify an expert witness is not, by itself, fatal to his claim. Therefore, we conclude that the circuit court erred in granting summary judgment in favor of Denison based solely on Stephens’s failure to identify an expert witness.

Although we have concluded that the circuit court erred in granting Deni-son’s summary judgment motion based on Stephens’s failure to have an expert witness to support his claim, we nevertheless believe the court, for a different reason, correctly granted the motion. Although the court did not address Denison’s argument that Stephens was required to obtain postconviction relief as a prerequisite to bringing his malpractice claim, we believe the argument has merit. In Ray v. Stone, Ky.App., 952 S.W.2d 220 (1997), this court addressed the issue in a case involving facts similar to those in this case. In the Ray case, Ray pled guilty to the charge of trafficking in a controlled substance (cocaine) and was sentenced to nine years in prison pursuant to a plea agreement with the Commonwealth. DUI and PFO I charges were dismissed under that agreement. Ray’s postconviction motions to have the judgment vacated or set aside were unsuccessful.

Ray alleged that the attorney representing him negligently performed his professional duties and responsibilities, and Ray filed a civil action in the circuit court alleging legal malpractice. The attorney moved the court to grant him summary judgment. The circuit court granted the motion, and Ray appealed.

On appeal this court affirmed the circuit court’s summary judgment and stated that “[tjhere being no fact question concerning his innocence, public policy compels us to conclude that any acts or omissions by attorney Stone are not the cause of Ray’s alleged damages. Instead, Ray must accept as the sole, proximate, and producing cause of the indictment, conviction, and resultant incarceration, his own unlawful conduct.” Id. at 224. This court further stated that it supported the public policy that prohibits financial gain resulting directly or indirectly from criminal acts. Id.

Quoting In re Laspy’s Estate, 409 S.W.2d 725, 728 (Mo.App.1966), this court reasoned that allowing Ray to maintain a malpractice action against his attorney would allow him “to profit ... or take advantage of his own wrong, or to found a claim upon his iniquity or to acquire property by his own crime.” 952 S.W.2d at 224. This court further explained that “[bjefore it can be demonstrated that the attorney’s actions were the proximate cause of his damages, the plaintiff must establish his innocence.” Id. Finally, based on Ray’s guilty plea and the lack of a fact issue concerning his innocence, the court reasoned that the attorney was entitled to summary judgment. Id. at 225.

A case with facts similar to those in this case was before the Ohio Supreme Court in Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989). In that case Krahn’s attorney did not communicate a plea offer by the prosecutor to dismiss Krahn’s charges in return for her willingness to testify against another of her attorney’s clients. As a result, Krahn later pled guilty to a misdemeanor offense pursuant to her attorney’s advice and without the benefit of knowing the plea offer. Krahn then retained another attorney and filed a civil action against her first attorney for legal malpractice arising from his representation of her in the criminal case.

The case eventually came before the Ohio Supreme Court, which affirmed a lower appellate court’s reversal of a summary judgment in favor of the attorney. Quoting from the lower appellate court, the Ohio Supreme Court reasoned that Krahn’s injury “is not a bungled opportunity for vindication, but a lost opportunity to minimize her criminal record.” Id. at 1061. The court reasoned that the situation was similar to that in civil cases where the attorney fails to disclose a settlement offer. Id. The court concluded that “a plaintiff need not allege a reversal of his or her conviction in order to state a cause of action for legal malpractice arising from representation in a criminal proceeding.” Id.

Despite the holding of the Ohio Supreme Court in the Krahn case, a majority of states that have addressed the issue have concluded that postconviction relief is a prerequisite to maintaining a legal malpractice action arising out of criminal representation. See Canaan v. Bartee, 276 Kan. 116, 72 P.3d 911, 914 (2003). In the Canaan case, the Kansas Supreme Court stated that many courts have cited equitable principles, such as a concern that a defendant should not be allowed to profit from his or her illegal conduct and that it is improper to shift the burden of responsibility for the crime away from the criminal and to his attorney, as a justification for the exoneration rule. Id. at 916. Further, the court held that “without exoneration, it cannot be said that the attorney’s actions were the proximate cause of the guilty criminal’s injury.” Id. The court concluded that unless the defendant obtained relief from his conviction or sentence, then his own actions are presumed to be the proximate cause of his injury. Id.

We agree with the principles discussed by the Kansas Supreme Court in the Canaan case and followed by a panel of this court in the Ray case. Therefore, because Stephens has not obtained exoneration from his conviction and sentence through postconviction relief, he may not maintain a cause of action against Denison for legal malpractice. In short, the circuit court properly awarded summary judgment in Denison’s favor because there was no genuine issue of material fact in this regard. See Kentucky Rules of Civil Procedure (CR) 56.03.

The judgment of the Jefferson Circuit Court is affirmed.

MINTON, Judge, concurs.

TAYLOR, Judge, concurs in result only.

      . An appellate court may affirm a trial court for any reason sustainable in the record. See Kentucky Farm Bureau Mut. Ins. Co. v. Gray, Ky.App., 814 S.W.24 928, 930 (1991).

      . The court in the Canaan case cited numerous opinions from other jurisdictions that held that a plaintiff must show exoneration by postconviction relief before maintaining a cause of action for legal malpractice. See id. at 915-16.


author: JAMES M. SMART, JR., Judge. PER CURIAM.

text:
    Kimberly HARRIS, Appellant, v. Dale Franklin HOLLINGSWORTH, Respondent.
    No. WD 63095.
    Missouri Court of Appeals, Western District.
    July 13, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2004.
    Application for Transfer Denied Dec. 21, 2004.

      Stephen G. Mirakian, Cheryl A. Pilate, Co-Counsel, Kansas City, MO, for appellant.
    George E. Kapke, Independence, MO, for respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH, and JAMES M. SMART, Jr., JJ.
   JAMES M. SMART, JR., Judge.

This is an appeal of a dismissal of an action for civil damages filed by Kimberly Harris, who alleges she was the victim of childhood sexual abuse. The trial court dismissed plaintiffs action against her father, Dale F. Hollingsworth, on the grounds that the claims are barred by the statutes of limitations. Ms. Harris appeals.

Factual Background

On May 1, 2002, Kimberly Harris filed a petition against her father, Dale F. Holl-ingsworth, the pertinent portions of which alleged the following:

1. Her father sexually abused her from approximately 1971, when she was seven years old, to approximately 1978, when she was fourteen years old.
2. The abuse included fondling, assault, rape, battery, oral sex and uncon-sented-to sexual intercourse.
3. In addition to the sexual abuse, her father also inflicted other physical and emotional abuse on Ms. Harris.
4. As a result of the abuse, Ms. Harris suffered emotional trauma, including fear, depression and anxiety “throughout her childhood and adolescence.”
5. As an adult Ms. Harris has also ' suffered the ongoing effects of the abuse.
6. In June, 1999 [when plaintiff was approximately 35 years of age], Ms. Harris was diagnosed with major depression and post-traumatic stress disorder by a clinical psychologist. As a result of the evaluation and treatment provided her, she learned that her psychological disorders were caused by the sexual and physical abuse inflicted by Hollingsworth during her childhood.
7. She did not remember the facts involved in the incidents any earlier than June 1,1999.

The defendant moved to dismiss the petition on the grounds that her claims, filed more than 22 years after the last act of the alleged abuse, were barred by the applicable statutes of limitation. The trial court granted the motion to dismiss. Plaintiff appeals.

On appeal, plaintiff contends that the court erred in dismissing her cause of action because, even though she filed her action when she was approximately 37 years of age, the petition was filed less than three years after the date plaintiff “discovered or reasonably should have discovered” that her injuries or illness were caused by childhood sexual abuse. Plaintiff focuses on the language of section 537.046.2, adopted by the Missouri legislature in 1990, which adopted a new and specific limitations rule for claims of childhood sexual abuse. Under that statute, the victim has three years after he or she has discovered or reasonably should have discovered that the injuries or illness were caused by the sexual abuse. Relying on that statute, Ms. Harris contends that her cause of action did not accrue until June 1, 1999. Her petition was filed within three years thereafter. Thus, she asserts that it was timely under section 537.046.2.

Section 537.046, after defining the terms “childhood sexual abuse” and “injury or illness,” provides as follows:

In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within five years of the date that plaintiff attains the age of 18 or within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs.

Plaintiff alleges that she did not discover until June 1, 1999, that childhood sexual abuse caused her injuries. The petition does not, on its face, make clear that she “reasonably should have discovered” the causal connection earlier. Thus, if section 537.046 is applicable to this claim, the trial court erred in dismissing the petition.

First, however, we must determine whether her claim was arguably still viable when section 537.046 became effective. Section 537.046 does not apply retroactively to resuscitate claims that were already barred at the time it became effective. Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338, 342 (Mo.banc.1993). If the statute does not apply because the action in question was already barred prior to August 28, 1990, then plaintiff receives no benefit from section 537.046 and the cause of action remains barred. Id.

The petition shows that plaintiff was born in approximately 1964. Plaintiff would have attained the age of 21 year's (the age of majority pursuant to section 516.170) in approximately 1984. At that time, the applicable statutes of limitation were section 516.140 (prescribing the statutes of limitation for battery); section 516.120 (prescribing the statutes of limitation for other personal injury); section 516.100 (specifying the test for determining the accrual of a cause of action); and section 516.170 (providing that the statute of limitations does not begin to run as to a minor until the attainment of the age of 21 years).

Whether the two-year statute (for battery) or the five-year statute (for other personal injuries) applies depends upon the facts alleged. Sheehan v. Sheehan, 901 S.W.2d 57, 58 (Mo. banc 1995). Generally, acts of sexual abuse involve acts of touching, and hence are battery actions. See id; K.G. v. R.T.R., 918 S.W.2d 795, 797 (Mo. banc 1996). In this case, the petition itself and the recitation in plaintiffs brief show that, as far as the claims of sexual abuse, we are dealing with battery claims. A petition may not be dismissed due to a limitations bar unless it clearly establishes “ ‘on its face and without exception’ that it is barred.” Sheehan, 901 S.W.2d at 59. In this case, there is no claim of sexual abuse which is not at its essence an unconsented touching. Accordingly, for purposes of our analysis of the’ pre-1990 status of these claims for sexual abuse, we must assume the two-year statute was applicable. See K.G., 918 S.W.2d at 799.

If plaintiffs damage from the sexual abuse became “capable of ascertainment” before her 21st birthday, then the limitations period for the sexual abuse would have expired, at the latest, two years from her 21st birthday. See §§ 516.100 and 516.140. The petition alleges that plaintiff has suffered both in her childhood and as an adult from the damage caused by the sexual abuse. The petition states that plaintiff suffered emotional trauma, including fear, depression and anxiety throughout her childhood, adolescence, and adulthood.

Under section 516.100, the cause of action accrues not when the wrong is done or the breach of duty occurs, but “when the damage resulting therefrom is sustained and is capable of ascertainment.” This is an objective test to be decided as a matter of law by the trial court. Anderson v. Griffin, Dysart, Taylor, Penner & Lay, P.C., 684 S.W.2d 858, 861 (Mo.App.1984). The cause accrues when the damage “can be discovered or made known.” Carr v. Anding, 793 S.W.2d 148, 150 (Mo.App.1990). The right to sue arises when the fact of damage is “capable of ascertainment,” even though not actually discovered or ascertained. See Vandenheuvel v. Sowell, 886 S.W.2d 100, 102 (Mo.App.1994). Generally, the sexual abuse itself is “capable of ascertainment” immediately, and the damage therefrom is “capable of ascertainment” as soon as the emotional turmoil appears. H.R.B. v. Rigali, 18 S.W.3d 440, 443 (Mo.App.2000). Therefore, under the accrual test of section 516.100, a claim of childhood sexual abuse would be barred two years after plaintiff attained the age of 21.

As we have noted, the test for accrual as to childhood sexual abuse claims was altered by the legislature in section 537.046. The statute, which became effective August 28, 1990, specifies that actions should be brought within five years after the plaintiff attains the age of 18 or within three years after the date plaintiff “discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs.” § 537.046.2. The legislature opted to use this alternative accrual test for childhood sexual abuse claims instead of the “capable of ascertainment” test. The caveat we must keep in mind in our analysis, however, is that the discovery test adopted in the statute applies only if the cause of action was still viable as of the effective date of the statute in 1990. Doe, 862 S.W.2d at 340-42.

In this case, while the petition does not specify certain dates, we can discern the following facts:

1. If Plaintiff was seven years old in 1971 as alleged in the petition, Plaintiff was approximately 26 years of age at the time of the effective date of the statute, August 28,1990.
2. Plaintiff suffered damage from the childhood sexual abuse throughout her childhood, adolescence, and adulthood.
3. At some point during her childhood, Plaintiff unconsciously repressed all memories of the abuse itself, although she continued to suffer damage from the abuse in the form of depression, anxiety and emotional distress.
4. Although subjectively she did not connect the sexual abuse to the emotional damage, and hence did not discover or ascertain the damage, the damage was objectively “capable of ascertainment” before her 21st birthday.
5. Because, under section 516.170, the limitations period for plaintiffs claim did not begin to run until she attained the age of 21 years (in approximately 1985), her claims were not barred until 1987 (to the extent that her claims were battery claims).

Because Ms. Harris’ claims for childhood sexual abuse were clearly barred pri- or to the effective date of section 537.046, the passage of that section did not avail her of additional time in which to bring her action. The trial court properly determined in its review of the petition that the petition clearly establishes “on its face and without exception” that the action for childhood sexual abuse is barred. See Sheehan, 901 S.W.2d at 59.

The petition also contains a reference to “other physical and emotional abuse” inflicted on Ms. Harris. Because this is an attempt to plead “other personal injury,” any such claims of abuse, to the extent that they were sufficiently pleaded, were subject to the five-year limitations period of section 516.120. Because these were not claims of “childhood sexual abuse” within the meaning of section 537.046, the limitations period could not be extended by section 537.046. Therefore, these claims are also currently barred.

Accordingly, we affirm the judgment dismissing the petition.

HOLLIGER and ULRICH, JJ., concur.

On Motion for Rehearing

PER CURIAM.

In her motion for rehearing, appellant argues that this court failed to give her the benefit of the inference that her repressed memory prevented ascertainment of injury. She argues that recent decisions of the Missouri Supreme Court require that inference.

It is clear that, as of 1987, Missouri did not apply the “discovery test” to repressed memories, but at that time still applied the test of whether an injury was “capable of ascertainment.” See, e.g., Vandenheuvel v. Sowell, 886 S.W.2d 100, 101-102 (Mo.App.1994). Repressed memory also did not defer accrual under the “capable of ascertainment” test. Id. Appellant points to Sheehan v. Sheehan, 901 S.W.2d 57 (Mo. banc 1995), however, as suggesting that the Missouri Supreme Court now considers repressed memory as not capable of ascertainment and, accordingly, asks that we grant rehearing or transfer to the Supreme Court.

This case differs from Sheehan, a case involving childhood sexual abuse and repressed memory, in that in Sheehan the petition did not state the date that the plaintiff sustained damage. Although the petition stated that plaintiff “sustained and suffered and continues to sustain and suffer ... consequential injuries and damages,” id. at 58, the petition did not specify when the injuries were ascertainable. The Court thus determined that the petition was “ambiguous” as to when she objectively could have ascertained the fact of damage. The only date alleged in that case was “that she involuntarily repressed conscious memory until August 1990 or thereafter.” Id. at 59. Because of the ambiguity, the Court was required to construe the petition in the plaintiffs favor. Thus, the court reversed the dismissal and remanded the case for further proceedings.

While the Court in Sheehan did not specifically hold that in cases of repressed memory the date the injury is sustained may be later in time than the battery, the court in a later decision regarded Sheehan as so holding. K.G. v. R.T.R., 918 S.W.2d 795, 798 (Mo. banc 1996). Here, the allegation is that plaintiff suffered damage from the sexual abuse during her childhood and adolescence and it has continued into adulthood. Ms. Harris knew she had suffered damage and knew she had been victimized, but because it was too painful to retain the memories, she repressed the memory of the events.

Traditionally, absence of memory alone, occurring after the tortious act, does not defer either the accrual of the cause of action or the running of the statute. Because of the ambiguity in the petition in Sheehan, it was unclear whether Sheehan signaled a change in the proposition. Then, in 1996, the Court decided KG., supra. In that case, the Court again reviewed the dismissal of a petition alleging childhood sexual abuse. The thirty-year-old plaintiff, K.G., alleged that she was abused between the ages of three and seven. Plaintiff alleged she involuntarily repressed conscious memory of these events until January of 1989, but had no conscious memory of the identity of the perpetrator until December of 1990. The trial court applied the two-year statute of limitations for battery, tolling the statute for minority reasons until the plaintiffs 21st birthday. The Court in KG. cited Sheehan for the proposition that “it is the memory of the consequential injury and damages, not the memory of the identity of the perpetrator,” that triggers the running of the statute of limitations. K.G., 918 S.W.2d at 798. The Court in KG. affirmed the trial court’s dismissal of the petition. The Court said that in giving plaintiffs petition its broadest possible in-tendment, “one might conclude” that she first “became aware” of her injury in January 1989 Id. The Court in K.G. refused to extend the accrual of the cause of action to the date she recovered the memory of the identity of the perpetrator but was willing, at least for purpose of argument, to allow her until she “became aware” of her injury. Id. Because K.G. did not file her petition within two years of when she allegedly recalled the fact of abuse (without recalling the perpetrator), the dismissal of the petition was held proper.

Missouri law relating to the accrual of a cause of action for childhood sexual abuse was arguably altered in 1995 and 1996 through the decisions in Sheehan and K.G. These cases suggest that under § 516.100, in cases of repressed memory, childhood sexual abuse claims may not accrue until awareness of the fact of the sexual battery is recovered. However, at the same time, the cause of action may accrue and expire before the plaintiff recovers the memory of the identity of the abuser. See K.G., 918 S.W.2d at 798.

In H.R.B. v. Rigali, 18 S.W.3d 440 (Mo.App.2000), a childhood sexual abuse claim was brought by a man who had repressed, for twenty-eight years, memories of sexual abuse perpetrated by a priest in St. Louis. The plaintiff obtained a verdict against the archdiocese for intentional failure to supervise the priest. On appeal, the defendant contended that the trial court erred in submitting the claim because the claim was barred by limitations in that the claim had accrued at the time of the sexual abuse and that the only applicable tolling was the tolling until the age of majority. In that case, the Eastern District found that the plaintiff, who was thirteen or fourteen at the time of the abuse, had “full knowledge of the events and knew they were wrongful” at the time the abuse occurred. Id. at 444. The court held that at that time the cause of action accrued because the plaintiffs damages were sustained and capable of ascertainment. Id. Accordingly, the court found the claim was time-barred and reversed the judgment against the archdiocese. The Supreme Court declined to grant plaintiffs application for transfer in H.R.B.

H.R.B. casts doubt on the otherwise arguable effect of Sheehan and K.G. in that, by the definition of the phrase “repressed memory,” one would think that there is always, at the time of the act of abuse (unless the child is then unconscious or very, very young) “full knowledge” of the abuse. One would assume that the memory repression is not simultaneous with the abuse, but only comes after the event. This would suggest that memory repression does not involve an issue of accrual but rather should be an issue of tolling.

We need not decide the full implications of Sheehan and K.G., and the potential applicability to this case because even if the Supreme Court’s rulings in 1995 and 1996 constitute a substantive change in the law of accrual of a cause of action for childhood sexual abuse, this change also would, it seems, be governed by the rule of Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338 (Mo. banc 1993). In other words, Sheehan and K.G. would not be applied retroactively to resuscitate a claim already time-barred.

Doe v. Roman Catholic Diocese holds that legislative changes since an action was barred under old law cannot resuscitate a previously barred cause of action. Appellant fails to show that prior to Sheehan in 1995 Missouri considered repressed memory as deferring the accrual of a cause of action for childhood sexual abuse until the memory was recovered. Vandenheuvel indicated that as of 1994 repressed memory did not delay the accrual of a cause of action under 516.100. We believe, accordingly, this appellant’s memory recovery was too late to authorize an action under the law existing prior to 537.046, enacted in 1990, and too soon to allow her to bring an action under Section 537.046 itself. We believe the petition unambiguously indicates facts leading to the conclusion that the claim was time-barred in 1987.

There are strong public policy reasons on both sides of the issue of how repressed memory should be handled, making the issue particularly appropriate for legislative determination. The legislature has addressed the matter in Section 537.046. Because of Doe, however, that statute can apply only to claims still viable at the time of the effective date of the statute.

For all the foregoing reasons, we deny rehearing and transfer in this case.

      . Section 516.371, which provides that the limitation on actions for incest shall be ten years, does not enter into our analysis because it was not enacted until 1989, by which time the claims were already barred.

      . Plaintiff-Appellant, in describing the abuse in the petition, states: "The abuse included fondling, assault, rape, battery, oral sex and unconsented-to sexual intercourse.”

      . Sometimes the difference between accrual of a cause of action and the tolling of a limitations period seems to be blurred in the discussion. Perhaps "repressed memory” is not really an issue of accrual, as discussed infra.

      . It can also be confusing when we talk in terms of “awareness” (a subjective factor) rather than using the phrase "capable of ascertainment,” which is an objective standard.

      . The legislature also adopted Section 516.371 in 1989 (the ten year statute of repose or statute of limitations, depending on interpretation of the statute) mentioned in K.G. and addressed in Ridder v. Hibsch, 94 S.W.3d 470 (Mo.App.2003).


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, ex rel. ACTING PUBLIC COUNSEL John COFFMAN, Appellant, v. PUBLIC SERVICE COMMISSION OF the STATE of Missouri, et al., Respondents.
    Nos. WD 63133, WD 63134, WD 63135.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2004.
    Application for Transfer Denied Dec. 21, 2004.

      Michael F. Dandino, Senior Public Counsel, Jefferson City, for appellant.

      David A. Meyer, Jefferson City, for respondent PSC.
    Mark W. Comley, Jefferson City, for respondent AT & T.
    Carl J. Lumley, Leland B. Curtis, St. Louis, for respondent MCI.
    Lisa C. Hendricks, Overland Park, KS, for respondent Sprint Communications.
    Before LOWENSTEIN, P.J., and EDWIN H. SMITH and HOWARD, JJ.
   EDWIN H. SMITH, Chief Judge.

AT & T Communications of the Southwest, Inc (AT & T), Sprint Communications Company, L.P. (Sprint), and MCI WorldCom Communications, Inc. (MCI) (collectively referred to as the Companies) filed, pursuant to § 392.500, proposed tariff revisions with the Public Service Commission (Commission), seeking to add monthly surcharges that would apply to certain customers in Missouri. The Office of the Public Counsel (OPC) filed several motions objecting to the proposed tariff revisions and seeking hearings thereon, as provided by § 392.230.3. The Commission denied the OPC’s motions and approved the requested tariff revisions of the Companies. The OPC appealed the Commission’s decisions to the Circuit Court of Cole County, which affirmed the actions of the Commission.

The OPC raises five points on appeal in each of which they claim that the Commission erred in approving the proposed tariff revisions requested by the Companies. In Point I, it claims that the Commission erred because its decision violated § 392.200 in that, in approving the requested surcharges, the Commission failed to consider whether they were just, reasonable, and non-discriminatory. In Point II, it claims that the Commission erred because its decision violated § 392.200 in that no reasonable justification was shown by the Companies for the disparate treatment of similarly situated customers with respect to the surcharges. In Point III, it claims that the Commission erred because its finding that the surcharges were just and reasonable were not supported by substantial and competent evidence. In Point IV, it claims that the Commission erred because its decision violated § 254(g) of the Federal Telecommunications Act of 1996, 47 U.S.C. §§ 151 et seq., prohibiting carriers from charging higher interstate rates based on geography and location in that the “surcharges applied to Missouri customers and not to all other state customers and had the impact of Missouri customers paying effectively higher rates for interstate toll.” In Point V, it claims that the Commission erred because its decision was not supported by adequate findings of fact and conclusions of law, as required by §§ 386.420.2 and 536.090, in that it failed to make any findings as to the facts on which its conclusion that the surcharges were just and reasonable was based.

We reverse and remand.

Facts

AT & T’s Proposed Tariff Revisions

On August 14, 2001, AT & T submitted proposed tariff revisions, including:

A monthly service charge will be applied to AT & T customers who are presub-scribed to AT & T for interLATA service. This monthly service charge is applied if a customer has $1.00 or more of billable charges and credits on their bill, including, but not limited to, monthly recurring charges, minimum usage, or single bill fee charges. This charge does not contribute towards the minimum monthly usage charge.
Customers in AT & T’s Lifeline program and Federal Price Protection Plan, as well as those customers making less than $1.00 worth of long distance calls a month, are exempt from this service charge. Customers who have AT & T Local Service are also excluded from this charge
Per Month
Per Account $1.95

At approximately the same time, it sent a postcard to customers who were pre-sub-scribed for inter-LATA long distance, explaining that it was imposing the surcharge on them to recover access charges that it was required to pay to local exchange carriers in Missouri for the use of the local network in completing in-state long distance calls:

Your local telephone company in Missouri currently charges AT & T to carry your in-state long distance calls over their lines. As a result, AT & T will begin to include in your monthly bill a $1.95 In-State Connection Fee, starting September 15, 2001.

On September 4, 2001, the OPC filed a motion asking the Commission to enter an order suspending AT & T’s proposed tariff revisions and to hold evidentiary, public hearings on the matter. In the motion, the OPC alleged that the proposed surcharge was unjust, unreasonable, and discriminatory, in violation of § 392.200, in that it imposed a surcharge “without regard to customer actual usage,” meaning that customers with low-volume toll calling would be assessed the same surcharge as customers with considerable or high-volume toll calling.

On September 7, 2001, the Staff filed a response to the motion, recommending that the Commission approve the proposed tariff revisions. In support of its recommendation, the Staff argued that the proposed surcharge was not discriminatory, noting that customers have the ability to switch service providers, and that the Commission does not typically scrutinize the rate structure of competitive long distance providers beyond compliance with a few limited rate requirements identified in § 392.500. On September 13, 2001, the Commission suspended the proposed tariff revisions until November 17, 2001, and ultimately suspended them until December 22, 2001.

On October 31, 2001, the Commission held a question and answer session on the proposed tariff revisions. At the proceeding, Michael Dandino of the OPC offered additional arguments against the proposed surcharge. Dandino argued that the proposed surcharge would discriminate against rural customers because it would exempt customers with AT & T local service, and AT & T local service is only available to customers in the St. Louis and Kansas City metropolitan areas. Dandino also argued that, although the surcharge was described as an in-state connection fee, “it draws from a charge that applies for any billings for interstate services, too, so, effectively, they are increasing interstate rates,” in violation of § 254(g) of the Federal Telecommunications Act. In addition, Dandino argued that the surcharge would be unreasonably discriminatory if it applied only to residential customers, as there was no rational basis for differentiating between residential and business customers.

On November 13, 2001, AT & T filed a “post-hearing” brief in which it claimed that the exemption of its local customers from the surcharge was not unreasonably discriminatory because “AT & T does not incur that same access expense when AT & T is both the local and the toll provider,” and because AT & T is “waiving the proposed charge to local customers in an effort to sell more services to customers.” AT & T further argued:

AT & T’s proposed tariff recovers the cost of the interstate and intrastate access differential in the manner in which the costs are truly incurred. AT & T is doing this to avoid unfairly penalizing toll users, especially high volume toll users, who implicitly subsidize low volume and no volume toll customers. Inflating per-minute rates forces these customers to pay a disproportionate amount relative to the actual cost of serving these customers. It is also the high volume residential toll customers that look to other technologies such as wireless or Internet long distance because it is more economical than paying high per minute charges because it more [sic] economical for them to do. Out of competitive necessity AT & T must develop a rate structure that reduces the incentive for high volume customers to shop elsewhere. This charge does that.

As to the OPC’s argument that the proposed surcharge discriminated against rural customers, AT & T argued:

This type of non-traffic sensitive rate element is far less discriminatory than the current access regime that recovers non-traffic sensitive costs through traffic-sensitive, per minute rates. As stated above, it is this regime that unfairly penalizes toll users, especially high volume user, including those in rural areas.

In its brief, AT & T also disputed the OPC’s claim that the proposed surcharge discriminated against residential customers, arguing that it was a valid distinction insofar as “[i]t is a fact that business customers pay different rates than residential customers.”

On the same date, the OPC filed its “post-hearing brief,” arguing again that the proposed surcharge was discriminatory, because it applied only to residential customers and not to business customers:

There is no reasonable justification or public policy reason for this discriminatory treatment. Business customers may very well “vote with their feet” ... if a surcharge is applied since business customers will seek out a competing carrier with lower costs. Unfortunately, residential customers are not usually “sophisticated” telecommunications customers and for a variety of reasons (lack of information or interest, inertia, fear of change) are less likely to switch carriers.

On December 13, 2001, the Commission entered an order approving the proposed tariff effective December 22, 2001. In its order, the Commission determined that §§ 392.500 and 392.230.3 provide that “so long as they comply with the requirements of the law, tariff sheets filed by a company may be an adequate record for review.” The Commission then stated:

The only exception to this procedure is under Section 392.200 when (i) a proposed tariff is not just and not reasonable; (ii) customers do not pay the same amount for the same service given to other customers (iii) undue or unreasonable preference or advantage is given to any customer; (iv) geographic deaverag-ing of rates occurs; and (v) the company violates its duty to transmit without delay the messages of other telephone companies. None of the exceptions apply here.

This determination was followed by what the Commission denominated its “Findings of Fact,” which are quoted in their entirety as follows:

Because AT & T’s proposed rate increase of $1.95 applies only to a competitive service, consumers are free to obtain service from an alternate provider if they object to the rate.
AT <& T’s proposed tariff sheets exempt low-income and low-volume users of telecommunications, which, if “discriminatory,” is “reasonable discrimination” as a matter of public policy.
AT & T’s direct mail notice was clear that this charge would apply to any AT & T customer (with the noted exceptions) who had more than $1.00 in charges billable by AT & T. The notice also informed each customer of a toll-free number and a website where customers could learn more about the charge.

On February 14, 2002, the OPC filed, pursuant to § B86.510, a petition for writ of review in the Circuit Court of Cole County. On June 27, 2003, the circuit court entered a judgment affirming the decision of the Commission.

Sprint’s Proposed Tariff Revisions

On May 20, 2002, Sprint proposed tariff revisions to recover access charges which Sprint was required to pay to local exchange carriers in Missouri for the use of the local network in completing an in-state long distance call. The proposed tariff revisions included the following surcharge:

Inr-State Access Recovery Charge
The In-State Access Recovery charge will be assessed monthly on all Dial 1 Sprint accounts for which local service is not provided by a Sprint company.
.1 Monthly Recurring Charge $1.99

At approximately the same time, Sprint mailed a notice of the proposed surcharge to the affected customers, who are all Missouri “Dial 1 Sprint” customers presub-scribed for long distance toll service, and who do not have local services provided by a Sprint company. The notice stated:

For customers residing in the state of Missouri, your Sprint long-distance invoice will increase by $1.99, due to a new monthly charge called In-State Access Recovery. This charge is based on the access charges that Sprint pays to the local phone company to utilize its local phone lines. This charge will be applied beginning on invoices dated July, 2002.

On June 13, 2002, the OPC filed a motion asking the Commission to enter an order suspending Sprint’s proposed tariff revisions, and to hold evidentiary and public hearings on the matter. The motion alleged that the proposed surcharge violated § 392.200 because each affected customer would pay “the same amount no matter how many toll calls are made and no matter how long the calls are.” Consequently, the motion claimed, “[t]he charge results in an unreasonable and prejudicial disadvantage for a class of Sprint presub-scribed customers that have a low amount or no toll calling while customers with considerable toll calling are given an undue and unreasonable preference and advantage by paying the same amount per month.” The motion also alleged that the proposed surcharge violated § 254(g) of the Federal Telecommunications Act of 1996, in that it would require Sprint customers in Missouri to pay more per minute for toll service than Sprint customers in another state.

The Commission suspended the tariff until July 31, 2002. On June 21, 2002, the Staff filed a response to the motion, recommending that the Commission approve the proposed tariff revisions. In support of its recommendation, the Staff noted that Sprint’s customers “may choose to switch long distance carriers and, thereby, allow the competitive marketplace to regulate the charges.” Sprint filed its response to the OPC’s motion on the same date, arguing that its proposed tariff revisions should be approved for the same reasons that AT & T’s proposed tariff revisions were approved.

On July 23, 2002, the Commission entered an order approving the proposed tariff effective July 31, 2002. The order contained no findings of fact denominated as such, but included the following statements:

The Commission has reviewed all the relevant factors surrounding this proposed charge including Sprint’s tariff submission, the motion to suspend, Staffs recommendation, and the various other responsive pleadings. Because Sprint’s proposed rate increase of $1.99 applies only to a competitive service, consumers are free to obtain service from an alternate provider if they object to the rate. Considering the competitive climate in which this service is offered, the Commission finds that the allowing full and fair competition to substitute as regulation will ensure that consumers pay only reasonable rates. Staff stated that it found Sprint’s exception of the charge for Sprint’s local service customers to be a concern, however, Staff did not believe Sprint should be treated differently than other carriers similarly situated. Staff also notes that monthly recurring charges and surcharges are common in the telecommunications industry. Sprint cites several instances where “the Commission has routinely approved ... [or allowed to become effective] interexchange tariffs that offer discounts or that waive various charges to customers who purchase local services from the same company.” Thus, the Commission finds that this charge does not provide any “undue or unreasonable preference or advantage” to any customer.

On September 10, 2002, the OPC filed, pursuant to § 386.510, a petition for writ of review in the Circuit Court of Cole County. On June 27, 2003, the circuit court entered a judgment affirming the decision of the Commission.

MCI’s Proposed Tariff Revisions

On August 2, 2002, MCI submitted proposed tariff revisions, which contained the following surcharge:

Instate Access Recovery Fee
MCI® is charged to originate and terminate it’s instate log distance calls over other companies [sic] networks. MCI will assess a monthly fee to residential customer [sic] to recover these charges. Customers will be exempt from this charge during any monthly billing period where their MCI spending is less than $1.00.
Residential Customers
An Instate Access Recovery Fee of $1.95 per account per month will be applied to invoices of customers of the following residential services under this tariff.
Option A (Dial One/Direct Dial)
Option B (Credit Card) — etc.

MCI requested that the tariff become effective on September 3, 2002.

On August 8, 2002, the OPC filed a motion asking the Commission to enter an order suspending MCI’s proposed tariff revisions, and to hold evidentiary and public hearings on the matter. The motion alleged that the proposed surcharge violated § 392.200 because the surcharge would be applied “as a flat rate without regard to the type, amount and duration of toll calls and the resultant access charges incurred by the company, if any.” The motion claimed the proposed surcharge “results in an unreasonable and prejudicial disadvantage for a class of MCI WorldCom presub-scribed customers that have a low amount or no toll calling,” and that customers “with considerable toll calling are given an undue and unreasonable preference and advantage by paying the same amount per month as those customers with low volume.” The motion also alleged that the proposed surcharge violated § 254(g) of the Federal Telecommunications Act of 1996, in that the surcharge would not be levied on similarly situated customers in other states. In addition, the motion asserted that, between them, AT & T, Sprint, and MCI have over a 70% market share of residential customers in Missouri, making it difficult for those customers to switch to a competitor in order to avoid the surcharge.

On August 19, 2002, the Staff filed a response to the motion, recommending that the Commission approve the proposed tariff revision. In support of its recommendation, the Staff noted that MCI’s customers “may choose to switch long distance carriers and, thereby, allow the competitive marketplace to regulate the charges.” MCI also filed a response to the OPC’s motion, in which it argued that its proposed surcharge was similar to AT <& T’s and Sprint’s proposed surcharges, which were approved by the Commission, and MCI should not be treated any differently.

On August 27, 2002, the Commission entered an order approving the proposed tariff revisions effective September 3, 2002. The Commission found that MCI had complied with the technical requirements of § 392.500.2, and it determined that the proposed surcharge was just and reasonable, stating:

Because MCI WorldCom’s proposed monthly service charge of $1.95 applies only to a competitive service, consumers are free to obtain service from an alternate provider if they object to the charge. Considering the competitive climate in which this service is offered, the Commission finds that the allowing full and fair competition to substitute as regulation will ensure that consumers pay only reasonable rates. As Staff noted, monthly recurring charges and surcharges are common in the telecommunications industry and MCI WorldCom should not be treated differently than other similarly situated telecommunications companies.

On October 10, 2002, the OPC filed, pursuant to § 386.510, a petition for writ of review in the Circuit Court of Cole County. On August 1, 2003, the circuit court entered a judgment affirming the decision of the Commission.

This appeal followed.

I.

Before addressing the OPC’s Points Relied On, a brief discussion of the Commission’s regulation of telecommunication companies is necessary.

Pursuant to § 392.361.1, the Companies sought and received classification as “competitive telecommunication companies,” which is not challenged on appeal. With respect to such companies, the Commission, pursuant to § 392.361.5:

may ... suspend or modify the application of its rules or the application of any statutory provision contained in sections 392.200 to 392.340, except as provided in section 392.390. The commission may suspend different requirements for different telecommunications companies, if such different treatment is reasonable and not detrimental to the public interest.

The use of the word “may” in § 392.361.5 indicates that the Commission has the discretion to choose whether to suspend the specified rules and statutes in a particular proceeding. Pfefer v. Bd. of Police Comm’rs, 654 S.W.2d 124, 128 (Mo.App.1983).

Although authorizing the Commission to suspend or modify the application of any statutory provision with respect to a competitive telecommunication company, § 392.361.5 makes it clear that the Commission may not suspend the application of § 392.390, which provides, in pertinent part:

Except as provided in subsection 1 of section 392.520, a telecommunications company shall at a minimum:
(5) Be subject to the provisions of subsections 2, 3, 4 and 5 of section 392.200, so far as such provisions are applicable to a telecommunications company.

Thus, even if a telecommunications company is classified as competitive pursuant to § 392.361.1, it is still subject to the provisions of § 392.200.2, .3, .4, and .5. Thus, pursuant to § 392.200.2, such companies may not charge any customer more or less for any service than it charges any other customer; pursuant to § 392.200.3, such companies may not give any undue or unreasonable preference to any customer, or subject any customer to any undue or unreasonable prejudice or disadvantage; pursuant to § 392.200.4, such companies may not discriminate based on geographic area or other market segmentation; and, pursuant to § 392.200.5, such companies may not charge a different price for equivalent service over equivalent distances without filing the appropriate tariff. It is, of course, significant that § 392.390.5 omits any reference to § 392.200.1, which requires that all of a telecommunications company’s charges must be “just and reasonable.” The express mention of one thing in a statute implies exclusion of another. Mo. Bd. of Registration for the Healing Arts v. Levine, 808 S.W.2d 440, 443 (Mo.App.1991). Thus, it appears that the legislature intended that it was within the discretion of the Commission to decide whether to apply to a competitive telecommunication company, in a given proceeding, the requirements of § 392.200.1.

With the foregoing to guide us, we now turn to the appellant’s Points Relied On. And, because Point II is dispositive of this appeal, we address it alone.

In Point II, the OPC claims that the Commission erred in approving the proposed tariff revisions requested by the Companies because its decision violated § 392.200 in that no reasonable justification was shown by the Companies for the disparate treatment of similarly situated customers with respect to the surcharges. Specifically, the OPC claims that there was nothing in the record to justify assessing low-volume customers the same surcharges as high-volume customers, applying the surcharges to residential customers only, and exempting the carriers’ local service customers from the surcharges. Before the Commission, the OPC argued that this disparate treatment was a discriminatory act in violation of § 392.200.2 and .3. On appeal, the OPC argues that the:

PSC’s orders did not disclose any valid justification or basis for allowing the carriers to single out these low volume toll customers and residential customers for discriminatory treatment and extra charges. There was no justification for the preferential treatment of the carriers’ local exchange customers. The orders do not state how and in what manner this discriminatory method of assessing a cost recovery charge for access fees are [sic] reasonable and proper and in the public interest.

Essentially, the OPC is arguing that the PSC’s orders approving the Companies requested surcharges contained cursory findings which did not articulate any facts from which the Commission reached its ultimate conclusion that there was a reasonable justification for the ■ disparate treatment of residential, low volume, and rural customers.

Whether a case is contested or uncontested, this court has held that the requirements of §§ 386.420.2 and 536.090 apply such that the Commission’s decision or order is required to be in writing, including findings of fact and conclusions of law. State ex rel. Coffman v. Pub. Serv. Comm’n, 121 S.W.3d 534, 542 (Mo.App.2003); AT & T Communications of the Southwest, Inc. v. Pub. Serv. Comm’n, 62 S.W.3d 545, 546-47 (Mo.App.2001); State ex rel. Noranda Aluminum, Inc. v. Pub. Serv. Comm’n, 24 S.W.3d 243, 244-45 (Mo.App.2000). The Commission’s findings cannot be “completely conclusory.” AT & T, 62 S.W.3d at 546; State ex rel. Noranda Aluminum, 24 S.W.3d at 244-45. They “must articulate the ‘basic facts from which [the Commission] reached its ultimate conclusion’ regarding disposition of the case. While detailed factual summaries are not needed there, nevertheless, must be sufficient findings of fact to determine how the controlling issues were decided by the Commission.” State ex rel. Coffman, 121 S.W.3d at 542 (citations omitted).

Neither the Commission’s July 23, 2002 order approving Sprint’s proposed tariff revisions nor its August 27, 2002 order approving MCI’s proposed tariff revisions contain findings of fact. Rather, the orders simply contain a general discussion of the parties’ positions and a brief explanation of which position the Commission deemed correct. This does not satisfy the requirement that the Commission articulate the basic facts from which it reached its decision. State ex rel. Noranda Aluminum, 24 S.W.3d at 245-47.

As to the Commission’s December 13, 2001 order approving AT & T’s proposed tariff revisions, the Commission found:

Because AT & T’s proposed rate increase of $1.95 applies only to a competitive service, consumers are free to obtain service from an alternate provider if they object to the rate.
AT & T’s proposed tariff sheets exempt low-income and low-volume users of telecommunications, which, if “discriminatory,” is “reasonable discrimination” as a matter of public policy.
AT & T’s direct mail notice was clear that this charge would apply to any AT & T customer (with the noted exceptions) who had more than $1.00 in charges billable by AT & T. The notice also informed each customer of a toll-free number and a website where customers could learn more about the charge.

The Commission also found, with respect to § 392.200, that:

[t]he only exception to [the statutory scheme that proposed tariff revisions submitted by competitive telecommunications companies will be approved by the Commission if they comply with the provisions of § 392.500] is under Section 392.200 when (i) a proposed tariff is not just and not reasonable; (ii) customers do not pay the same amount for the same service given to other customers (iii) undue or unreasonable preference or advantage is given to any customer; (iv) geographic deaveraging of rates occurs; and (v) the company violates its duty to transmit without delay the messages of other telephone companies. None of the exceptions apply here.

Any fair reading of the Commission’s order reveals that it does not articulate, as required, the factual basis for its conclusion that the alleged disparate treatment of residential, low volume, and rural customers was not a violation of § 392.200.2 and .3 as claimed by the OPC.

The Commission’s orders also fail to articulate the factual basis for the Commission’s conclusion that the proposed tariff revisions are just and reasonable, as the OPC claims in Point V. As we explained, supra, § 392.390.5 leaves it to the Commission to decide, in its discretion, whether to impose, in a given proceeding, the “just and reasonable” requirements of § 392.200.1 on a telephone company which has been classified as competitive for the purposes of § 392.361. In this case, it is clear from the Commission’s December 13, 2001 order approving AT <& T’s proposed tariff revisions, in which the Commission determined that the proposed tariff revisions did not run afoul of any of the provisions of § 392.200, that the Commission considered not only the OPC’s claims that the proposed tariff revisions were discriminatory in violation of § 392.200.2 and .3, but also, in its discretion, the OPC’s claim that the proposed tariff revisions were not just and reasonable, in violation of § 392.200.1. The Commission’s conclusion that the proposed tariff revisions were just and reasonable was not accompanied by sufficiently detailed findings to permit this court to conduct a meaningful review.

For the foregoing reasons, we find that the Commission, in approving the surcharges sought by the Companies, failed to make sufficient findings of fact and conclusions of law to justify its orders. As such, we must reverse and remand for the Commission to make findings of fact and conclusions of law as required. Century State Bank v. State Banking Bd. of Mo., 523 S.W.2d 856, 861 (Mo.App.1975). On remand, the Commission may reopen the case and hear additional evidence, if a majority of the Commission desires to do so. Id. Otherwise, it may make the required findings of fact and conclusions of law based on the evidence already presented. Id.

Conclusion

The Commission’s orders approving the Companies’ proposed tariff revisions are reversed, and the cause is remanded to the Commission with directions to make findings of fact and conclusions of law in accordance with this opinion.

LOWENSTEIN, P.J., and HOWARD, J., concur.

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

      . For some reason, in clause (v), the Commission paraphrases the provisions of § 392.200.6 instead of § 392.200.5.

      . Section 392.361.1 provides:
      A telecommunications company may file with the commission a petition to be classified as a competitive telecommunications company or a transitionally competitive telecommunications company under this section, or to have services classified as competitive or transitionally competitive telecommunications services under this section. The office of public counsel may initiate classification proceedings by petition. The commission may initiate classification proceedings on its own motion. The commission may require all telecommunications companies potentially affected by a classification proceeding to appear as par-
      ties for a determination of their interests.


author: JOSEPH M. ELLIS, Chief Judge.

text:
    FARM BUREAU TOWN & COUNTRY INSURANCE COMPANY OF MISSOURI, Respondent, v. Charles W. BARKER and Jo Ann Barker, Appellants.
    No. WD 63009.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2004.
    Application for Transfer Denied Dec. 21, 2004.

      Bruce A. Bailey, Warrensburg, MO, for appellants.
    David R. Buchanan, Kansas City, MO, for respondent.
    Before JOSEPH M. ELLIS, Chief Judge, PATRICIA BRECKENRIDGE, Judge and THOMAS H. NEWTON, Judge.
   JOSEPH M. ELLIS, Chief Judge.

Charles W. Barker and Jo Ann Barker (“the Barkers”) appeal the grant of summary judgment to Farm Bureau Town & Country Insurance Company of Missouri (“Farm Bureau”) on their contract claim against Farm Bureau to recover $100,000 in benefits under the terms of the second of two separate underinsured motorist (“UIM”) insurance policies issued to them by Farm Bureau. After the parties filed cross-motions for summary judgment, the Circuit Court of Lafayette County entered summary judgment in favor of Farm Bureau, determining that the language of the policies in question unambiguously disallowed stacking of UIM coverages. In this appeal, the Barkers claim the circuit court erred in entering summary judgment against them because the policies were ambiguous with regard to the total amount of UIM coverage provided. As we find that there was no ambiguity, we affirm the trial court’s grant of summary judgment to Farm Bureau.

The facts of this case are not in dispute. The Barkers are the parents of Joni Barker, a young woman who died on July 19, 2000, when a vehicle being driven by Jody Jackson left an eastern Jackson County, Missouri roadway and struck a 38-inch diameter utility pole. Joni Barker was a passenger in the vehicle, which was not owned by Joni Barker or her parents. Jackson, who survived the accident, was insured by State Farm under an insurance policy with a per-person liability limit of $50,000. State Farm paid its policy limits to the Barkers. Before the fatal accident, Farm Bureau had sold to the Barkers two separate automobile insurance policies insuring two separate vehicles owned by them, neither of which was involved in the accident. Each of the policies provided the Barkers with UIM coverage limited to $100,000 per person and $300,000 per accident. Both UIM policies were in effect at the time of the accident.

Farm Bureau paid the Barkers $100,000 under the terms of one of the UIM policies (policy number APV 0217995 02), contending that it had thereby met all of its contractual obligations to them. However, the Barkers subsequently sought to “stack” the per-person limits of both UIM coverages, arguing that they were entitled to an additional $100,000 payment from Farm Bureau under the terms of the other UIM policy (policy number APV 0026239 04). The parties filed competing motions for summary judgment. Farm Bureau contended that since the per-person limits of the two UIM policies could not be stacked, it had already paid the Barkers all of the UIM benefits to which they were entitled and did not owe them anything under policy number APV 0026239 04. The Barkers asserted that the UIM limits of the two policies could be stacked and, as such, Farm Bureau’s previous $100,000 payment did not relieve it of all of its contractual obligations to them. On June 12, 2003, the circuit court sustained Farm Bureau’s motion and denied the Barkers’ motion, ruling that the subject policies unambiguously prohibited stacking of per-person UIM policy limits and entering judgment in favor of Farm Bureau. It is from this judgment the Barkers appeal.

As stated by the Missouri Supreme Court in Harjoe v. Herz Financial, 108 S.W.3d 653 (Mo. banc 2003), the standard of review governing this case is as follows:

When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered. Additionally the non-movant is afforded the benefit of all reasonable inferences contained in the record. Review is de novo. Because the trial court makes its decision based upon the record submitted and the law, this Court need not defer to the order of the trial court granting summary judgment. Generally, summary judgment allows a trial court to enter judgment for a party where they have demonstrated a right to a judgment as a matter of law based upon facts about which there is no genuine dispute. The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question.

Id. at 654 (internal citations and quotation marks omitted). Thus, ‘“[a] movant is entitled to summary judgment if the motion for summary judgment and the response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Butler v. Burlington N. & Santa Fe Ry. Co., 119 S.W.3d 620, 621 (Mo.App. W.D.2003) (quoting Peck v. Alliance Gen. Ins. Co., 998 S.W.2d 71, 74 (Mo.App. E.D.1999)).

In their sole point on appeal, the Barkers claim the trial court erred in sustaining Farm Bureau’s motion for summary judgment because the insurance policies in question were ambiguous with regard to the total amount of UIM coverage in that the “Other Insurance” clause of the policies provided excess coverage for a non-owned vehicle.

Before addressing the point, we briefly set forth the applicable rules of insurance contract construction under Missouri law. The language used in an insurance policy is to be given its plain meaning. Robin v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 698 (Mo. banc 1982). The plain meaning of the words and phrases used in an insurance policy is not determined in isolation, but with reference to the context of the policy as a whole. Watters v. Travel Guard Int’l, 136 S.W.3d 100, 108 (Mo.App. E.D.2004). Thus, in determining the meaning of the words and phrases of an insurance policy, “the court will not isolate ambiguous phrases, but will read the policy as a whole giving every clause some meaning if it is reasonably able to do so.” Mazzocchio v. Pohlman, 861 S.W.2d 208, 210-11 (Mo.App. E.D.1993).

Whether an insurance policy is ambiguous is a question of law. Gulf Ins. Co. v. Noble Broad., 936 S.W.2d 810, 813 (Mo. banc 1997). The provisions of an insurance policy are ambiguous when, due to duplicity, indistinctness, or uncertainty in the meaning of the words used, the policy is reasonably open to different constructions. Krombach v. Mayflower Ins. Co., 827 S.W.2d 208, 210 (Mo. banc 1992). “Where provisions of an insurance policy are ambiguous, they are construed against the insurer.” Id. However, “ ‘the courts are not authorized to pervert language or exercise inventive powers for the purpose of creating an ambiguity when none exists.’ ” State Farm Mid. Auto. Ins. Co. v. Ward, 340 S.W.2d 635, 639 (Mo.1960) (quoting Lynch v. Nat’l Life & Accident Ins. Co., 278 S.W.2d 32, 34 (Mo.App. E.D.1955)). That is to say, “[a] court is not permitted to create an ambiguity in order to distort the language of an unambiguous policy, or, in order to enforce a particular construction which it might feel is more appropriate.” Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379, 382 (Mo. banc 1991). “Where language in an insurance contract is unequivocal, it is to be given its plain meaning notwithstanding the fact that it appears in a restrictive provision of a policy.” Harrison v. MFA Mutual Ins. Co., 607 S.W.2d 137, 142 (Mo. banc 1980). When an insurance policy is unambiguous, “the rules of construction are inapplicable, and absent a public policy to the contrary, the policy will be enforced as written.” Krombach, 827 S.W.2d at 210.

Furthermore, “in the absence of public policy considerations, an insured and an insurer are free to define and limit coverage by their agreement. There are no statutory requirements in Missouri for underinsured motorist coverage. Therefore, the existence of the coverage and its ability to be stacked are determined by the contract entered between the insured and the insurer.” Rodriguez, 808 S.W.2d at 383 (citing Noll v. Shelter Ins. Co., 774 S.W.2d 147, 151 (Mo. banc 1989)). Accordingly, in Missouri, stacking of UIM policy limits is not allowed where the policies in question unambiguously prohibit it. Rodriguez, 808 S.W.2d at 383-84.

Farm Bureau contends that the “anti-stacking” provisions found in both policies at issue in this case clearly and unambiguously precluded stacking of the per-person UIM policy limits. In relevant part, the anti-stacking provision found in the “GENERAL PROVISIONS” section of both of the Barkers’ policies reads as follows:

TWO OR MORE AUTO POLICY LIMITS
If this policy and any other auto insurance policy issued to you by us apply to the same accident, the maximum limit of our liability under all policies will not exceed the highest applicable Limit of Liability under any one policy.

Farm Bureau reasons that since both policy number APV 0217995 02 and policy number APV 0026239 04 were issued to the Barkers by Farm Bureau and applied to the same accident (i.e., Joni Barker’s July 19, 2000 accident), its maximum UIM liability limit under both policies cannot exceed $100,000, which is the highest applicable per-person UIM limit of liability under any one of the policies.

Although the courts of this state have apparently never had occasion to decide this precise issue, courts from other jurisdictions interpreting automobile insurance policies containing anti-stacking provisions worded either identically or almost identically to those in the Barkers’ two policies have concluded that they were clear and unambiguous and, therefore, should be enforced as written to preclude stacking of separate UIM coverages. See, e.g., Guidant Specialty Mut. Ins. Co. v. Overley, No. 99-3317, 2000 WL 1475780, at *2, 2000 U.S.App. LEXIS 24932, at * 7 (10th Cir. Oct. 5, 2000); Ga. Farm Bureau Mut. Ins. Co. v. Shook, 215 Ga.App. 66, 449 S.E.2d 658, 659 (1994); Willison v. Economy Fire & Cas. Co., 294 Ill.App.3d 793, 229 Ill.Dec. 26, 690 N.E.2d 1073, 1076, 1077 (1998); Union Ins. Co. v. Stanage, 454 N.W.2d 736, 739 n. 3 (S.D.1990); and Kendziora v. Church Mut. Ins. Co., 263 Wis.2d 274, 661 N.W.2d 456, 465 (2003).

The Barkers do not dispute this. Instead, they claim that a different section of their policies contains language which makes them ambiguous when considered as a whole. In particular, the Barkers point to the following language from the UIM endorsements of both their policies:

OTHER INSURANCE
If there is other applicable insurance available under one or more policies or provisions of coverage:
A.Any recovery for damages under all such policies or provisions of coverage may equal, but not exceed, the highest applicable limit for any one vehicle under any insurance providing coverage on either a primary or excess basis.
B. Any insurance we provide with respect to a vehicle you do not own will be excess over any collectible insurance providing coverage on a primary basis.
C. If the coverage under this policy is provided:
1. On a primary basis, we will pay only our share of the loss that must be paid under insurance providing coverage on a primary basis. Our share is the proportion that our Limit of Liability bears to the total of all applicable Limits of Liability for coverage provided on a primary basis.
2. On an excess basis, we will pay only our share of the loss that must be paid under insurance providing-coverage on an excess basis. Our share is the proportion that our Limit of Liability bears to the total of all applicable Limits of Liability for coverage provided on an excess basis.

The Barkers argue that since “Section B makes the UIM excess coverage under [their] policies, this might reasonably be interpreted by an average layperson to prevail over [the] preceding and conflicting anti-stacking language in the general ‘Two or More Auto Policy Limits’ section” of their policies, at least where a vehicle not owned by the insureds is involved. They rely on Niswonger v. Farm Bureau Town & Country Insurance Co., 992 S.W.2d 308 (Mo.App. E.D.1999), in which the Eastern District, with one judge dissenting, held that the insureds were entitled to stack the UIM coverages under their three separate Farm Bureau policies.

The Barkers’ reliance on Niswonger is misplaced, however, because the language of the UIM endorsements in that case was much different than that of those in the case sub judice. In Niswonger, the “other insurance” clause in the UIM endorsement read as follows:

In the event there is other like or similar insurance applicable to a loss covered by this endorsement, this company shall not be liable for more than the proportion which this endorsement bears to the total of all applicable limits. However, any insurance provided under this endorsement for a person insured while occupying a non-owned vehicle is excess of any similar insurance.

Id. at 315 (emphasis in original). The Niswonger majority found that the emphasized sentence “could reasonably be construed as superseding certain other policy provisions which would normally and otherwise apply,” namely, the anti-stacking provision found in the main body of each policy. Id. at 315-16 (emphasis in original). The majority in Niswonger also stressed that the emphasized sentence: (1) was the very last sentence of the entire endorsement, and as such was to be construed “in favor of the insured” to the extent there was “a question concerning which preceding phrase or phrases it modifies,” id. at 315 & n. 5; and (2) began with the word “However,” which is “a word of exclusion, indicating an alternative intention, a contrast with a previous clause and a modification of it under other circumstances.” Id. at 316 & n. 7. For all these reasons, the Niswonger majority reasoned that the emphasized sentence “could easily be interpreted by a lay person to mean that it prevails and takes precedence over the policy’s prior anti-stacking language whenever the accident is one where the insured was occupying a non-owned vehicle.” Id. at 316 (emphasis in original). Ultimately, the majority concluded: “We find that the last sentence of the Original UIM Endorsement creates a genuine ambiguity in this case, because from the perspective of an average lay person that sentence, when read in conjunction with the policy as a whole, could be interpreted as superceding the anti-stacking provisions which might normally and otherwise apply.” Id. at 318.

It is readily apparent that there is no such potential for confusion here. The sentence which was found to be offensive in Nisivonger is not present in the Barkers’ UIM endorsements, but was replaced by entirely different (and much clearer) language — namely, Sections A through C as set forth above. In particular, we think Section A, which was simply not present in the UIM endorsements construed in Nis-wonger, dispels the ambiguity and potential confusion found in the Nisivonger policy. Section A makes it perfectly clear that whether the other applicable UIM insurance is considered primary or excess coverage, any recovery from Farm Bureau for damages under all such policies may not exceed the highest applicable limit for any one vehicle. That is to say, far from introducing any ambiguity when there is a covered accident involving a non-owned vehicle, as was found to be the case by the Niswonger majority, the UIM endorsement here actually reiterates and reinforces the provisions of the unambiguous anti-stacking clause found in the “GENERAL PROVISIONS” section of both of the Barkers’ policies. To hold otherwise would be to distort the plain meaning of the language in the policies and create an ambiguity where none exists.

The Barkers also argue that Section C2 of the “OTHER INSURANCE” clause in the UIM endorsements of their policies is ambiguous and conflicts with the anti-stacking provision in the “GENERAL PROVISIONS” section. They claim that under Section C2, Farm Bureau’s “proportionate share” is $100,000 under policy number APV 0217995 02, and an additional $100,000 under policy number APV 0026239 04. That being the case, the Barkers’ argument continues, to “provide for payment of $200,000 under the Other Insurance ‘proportionate share’ language and then to limit the potential recovery under the anti-stacking language [in the general provisions section] is ambiguous.” In support of their argument, the Barkers rely on another Eastern District case, Clark v. American Family Mutual Insurance Co., 92 S.W.3d 198 (Mo.App. E.D.2002).

However, the Barkers’ reliance on Clark is also misplaced because, just as was the case with Niswonger, the language of the UIM endorsements in Clark was also much different than that of those in the case sub judice. In Clark, the “other insurance” clause in the UIM endorsement stated:

If there is other similar insurance on a loss covered by this endorsement, we will pay our share according to this policy’s proportion of the total limits of all similar insurance. But, any insurance provided under this endorsement for an insured person while occupying a vehicle you do not own is excess over any similar insurance.

Id. at 201 (emphasis in original). The court in Clark began its analysis by distinguishing Niswonger on its facts. Id. at 202-03. It then went on to observe: “The stated maximum of each [UIM] endorsement is $50,000.00. If each endorsement is considered, however, the ‘total limit of all similar insurance’ is $100,000.00 and American Family’s proportionate share is $50,000.00 under one policy and $50,000.00 under the other.” Id. at 203. Finally, the court in Clark found that the first sentence of the “other insurance” clause was ambiguous because there were “two possible ways to read the policy as to how to calculate coverage in this situation: (1) the insured may recover the proportionate share regardless of the stated maximum; or (2) the insured may only recover the stated maximum regardless of the proportionate share.” Id. The Eastern District resolved this “conflict between the proportionate share language and the anti-stacking clause by viewing the proportionate share language as overriding the anti-stacking clause in situations where there is more than one policy providing underinsured motorist insurance[,]” id., ultimately holding that the Clarks were thereby entitled to stack their two separate $50,000 UIM coverages and recover $100,000 in UIM benefits. Id. at 204.

The policies in this case do not suffer from the infirmities identified in Clark. To begin with, as we have previously held supra, Section A unambiguously resolves any purported “conflict” between the “OTHER INSURANCE” clause of the UIM endorsement and the anti-stacking clause found in the “GENERAL PROVISIONS” section of the Barkers’ policies by clearly specifying that regardless of whether the other applicable UIM insurance is considered primary or excess coverage, any recovery from Farm Bureau for damages under all such policies may not exceed the highest applicable limit for any one vehicle. That is to say, unlike the policies construed in Clark, there is only one reasonable way to read the policies here, which is that the insured may recover from Farm Bureau only the highest applicable (per-person or per-accident) limit for any one vehicle regardless of the proportionate share.

Furthermore, as argued by Farm Bureau, even if Section A was absent, the proportionate share provision of the UIM endorsement’s “other insurance” clause construed in Clark is materially different than the one here. As recounted supra, in Clark, the provision at issue was as follows: “If there is other similar insurance on a loss covered by this endorsement, we will pay our share according to this policy’s proportion of the total limits of all similar insurance.” (Emphasis added.) Here, however, the proportionate share of the loss payable by Farm Bureau is not determined by reference to “this policy” or “the total limits of all similar insurance.” Instead, Section C2 specifies that Farm Bureau’s proportional share for UIM coverage provided on an excess basis is to be determined by reference to the “share of the loss that must be paid under insurance providing coverage on an excess basis,” which is defined as the “the proportion that our Limit of Liability bears to the total of all applicable Limits of Liability for coverage provided on an excess basis.” (Emphasis added.) These differences are significant and distinguish the Clark policy from that in the instant appeal. By virtue of the “TWO OR MORE AUTO POLICY LIMITS” anti-stacking provision found in the “GENERAL PROVISIONS” section of the Barkers’ policies, on the facts of this case (i.e., where Farm Bureau itself issued both UIM policies at issue), the phrases “our Limit of Liability” and “total of all applicable Limits of Liability” both encompass only the highest applicable UIM policy limit for any one of the Barkers’ vehicles. Thus Farm Bureau’s proportionate share is limited to a maximum of $100,000, rather than $200,000, as claimed by the Barkers. In contrast, by broadly referring to “this policy’s proportion of the total limits of all similar insurance,” in Clark, American Family left itself open to a construction that its proportionate share was $100,000 ($50,000 for each vehicle), rather than only $50,000. In this case, however, to apply the Clark rationale we would not only have to ignore Section A, but would also have to judicially broaden the language of Section C2, which is nowhere near the same as the corresponding provision in the American Family policy at issue in Clark. Point denied.

For the foregoing reasons, the trial court did not err in finding that the Barkers’ policies were not ambiguous in prohibiting stacking of the separate UIM coverages. Accordingly, we affirm the trial court’s grant of summary judgment to Farm Bureau.

All concur.

      . That provision was as follows: "OTHER AUTOMOBILE INSURANCE IN THE COMPANY — With respect to any occurrence, accident, death or loss to which this or any other automobile insurance policy issued to the named insured or spouse by the company also applies, the total limit of the company's liability under all such policies shall not exceed the highest applicable limit of liability or benefit under any one such policy.” Id. at 314-15.

      . We note that neither of these factors are present in the case sub judice.

      . Unlike the plaintiff in Niswonger, the plaintiff in Clark was not occupying a non-owned vehicle at the time of the accident in question. Id. at 202. Because Mr. Clark was not occupying a non-owned vehicle, the court reasoned, "the second sentence of the Other Insurance provision does not apply and cannot be used to create an ambiguity allowing stacking” under Niswonger. Id. at 203.

      . The anti-stacking provision in the American Family policies at issue in Clark was as follows: "We will pay no more than these máxi-mums no matter how many vehicles are described in the declarations, insured persons, claims, claimants or policies or vehicles are involved in the accident.” Id. at 201 (emphasis removed). The court in Clark did not find this clause to be ambiguous.

      . Farm Bureau’s motion to strike the Barkers' reply brief, which we took with the case, is denied.