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HAULERS INSURANCE COMPANY, INC.,  )
)
  Plaintiff - Respondent, )
)

vs. )  No. SD29068
)
PHILLIP POUNDS, a/k/a PHILIP POUNDS,  )
)
  Defendant - Appellant, )

) LARRY SADLER, ESTATE OF )  Opinion filed: PHILLIP AUSTIN POUNDS, a/k/a ) December 31, 2008 PHILIP POUNDS, RODNEY SMITH, ) and ESTATE OF NANCY AVILA, )
)
Defendants. )

APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY
Honorable John M. Beaton, Associate Circuit Judge
REVERSED AND REMANDED
Haulers Insurance Company, Inc. ("Haulers") filed a petition for declaratory
judgment to determine whether a policy exclusion relieved it of any duty to provide
coverage and a defense to its named insured, Rodney Smith ("Father"), for a claim
involving Father's daughter, Nancy Avila ("Daughter").1  After conducting discovery, both parties asserted there were no material facts in dispute, and each filed a motion claiming they were entitled to judgment in their favor as a matter of law.  Father now appeals the trial court's judgment granting Haulers motion for summary judgment and denying Father's.  Because Haulers has not proven, as a matter of law, that the policy exclusion it relies on precludes coverage, we reverse and remand.  
I. Standard of Review
In determining whether a trial court has properly granted summary judgment, we use a de novo standard of review and give no deference to the trial court's decision. City of Springfield v. Gee, 149 S.W.3d 609, 612 (Mo. App. S.D. 2004); Murphy v. Jackson Nat'l Life Ins. Co., 83 S.W.3d 663, 665 (Mo. App. S.D. 2002). Instead, we employ the same criteria the trial court should have used in deciding whether to grant the motion.  Barekman v. City of Republic, 232 S.W.3d 675, 677 (Mo. App. S.D. 2007) (citing Stormer v. Richfield Hosp. Services., Inc., 60 S.W.3d 10, 12 (Mo. App. E.D. 2001)). We view the record in the light most favorable to the party against whom judgment was entered -- according that party the benefit of all favorable inferences that may reasonably be drawn from the record -- then determine whether the moving party was entitled to prevail as a matter of law.  Id. (citing ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)).  

II. Facts and Procedural Background
Father's automobile insurance policy from Haulers ("the policy") provided coverage for himself and for members of his family who resided with him. On March
1 Because many of the people referred to in this case are family members and may share the same name, we refer to several of them by either their title or first name to prevent possible confusion.  In so doing, we intend no disrespect.
28, 2005, Daughter resided with Father and was thereby considered an "insured" under
the policy. On that tragic day, Daughter and her sixteen-year-old friend, Philip Austin Pounds ("Philip"), were killed in an automobile accident when the vehicle in which they were traveling ran into the back of another vehicle on a public highway.  At the time of the collision, Daughter was driving Philip's car (a vehicle actually owned by Philip's father), and Philip was in the passenger seat.  Daughter was fifteen years old and did not have a driver's license.  
Philip's father thereafter filed a suit against Father (as the personal representative of Daughter's estate) for the wrongful death of Philip on the grounds that his death had been caused by Daughter's negligence.  Father then made a demand upon Haulers to provide him with a defense in the case and pay any resulting monetary damages as provided in the policy.
Haulers denied coverage and filed its petition for declaratory judgment.  Haulers based its denial of coverage on a provision in the policy that states: "We do not provide Liability Coverage for any 'insured': . . . [u]sing a vehicle without a reasonable belief that that 'insured' is entitled to do so. . . ."  Father's single point on appeal alleges the trial court erred by finding Haulers had met its burden of proof that the quoted exclusion barred coverage under the undisputed facts.

III. Discussion
In general, "an insurance policy is a contract to afford protection to an insured and will be interpreted, if reasonably possible, to provide coverage."  Gibbs v. Nat'l Gen. Ins. Co., 938 S.W.2d 600, 605 (Mo. App. S.D. 1997).  Where an insurer seeks to deny coverage based on a policy exclusion, the burden of establishing that the exclusion
applies lies with the insurer.  Am. Family Mut. Ins. Co. v. Arnold Muffler, Inc., 21
S.W.3d 881, 883 (Mo. App. E.D. 2000).
Father cites our decision in McRaven v. F-Stop Photo Labs, Inc., 660 S.W.2d 459 (Mo. App. S.D. 1983), as support for the proposition that exclusionary clauses in insurance contracts are to be strictly construed against the drafter and then urges us to adopt "the construction most favorable to the insured."  This last request, however, can be granted only if we find the wording of the exclusionary clause to be ambiguous.
Exclusionary clauses in insurance contracts are to be strictly construed against the author thereof and if they are ambiguous, courts are compelled to adopt a construction favorable to the insured.  Insurance policies must be considered as a whole and reasonably interpreted so as to be consistent with the apparent object and intent of the parties thereto.  Such contracts should be considered as affording coverage whenever it is reasonably possible to do so and policy provisions which prove to be ambiguous may not be successfully used as policy defenses.
Id. at 462. (emphasis added).  See also Harrison v. Tomes, 956 S.W.2d 268, 270 (Mo. banc 1997).
"An insurance policy is ambiguous if its provisions are duplicitous or difficult to understand." Omaha Prop. & Cas. Ins. Co. v. Peterson, 865 S.W.2d 789, 790 (Mo. App. W.D. 1993).  The language "using a vehicle without a reasonable belief that the person is entitled to do so" was at issue in Peterson and our Court's Western District therein held:
The provision is not ambiguous.  It is relatively straightforward:  [the driver of the car] not only had to believe that she had a right to drive the car, but her belief had to be rational.
Id. The Peterson decision acknowledged that other jurisdictions had found similar language to be ambiguous, but did not find those decisions persuasive.
We rely instead on the decision of the Maryland Court of Appeals which construed an identical provision in General Accident Fire & Life Assurance Corporation, Ltd. v. Perry, 75 Md.App. 503, 541 A.2d 1340 (1988). The court concluded that the provision was not ambiguous and applied a two-part analysis:  (1) whether the driver had a subjective belief that he or she was entitled to use the car, and (2) whether this belief was reasonable. Id. at 1350. The court outlined these factors for determining whether a belief was reasonable:
1) Whether the driver had express permission to use vehicle;  2) whether the driver's use of the vehicle exceeded the permission granted; 3) whether the driver was "legally" entitled to drive under the laws of the applicable state;  4) whether the driver had any ownership or possessory right to the vehicle;  5) whether there was some form of relationship between the driver and the insured, or one authorized to act on behalf of the insured, that would have caused the driver to believe that he was entitled to drive the vehicle.
Id. at 791.
The language at issue in Peterson was practically identical to the language of
the policy exclusion in the instant case; the only difference being the use of the word
"person" there as opposed to "insured" here. The facts in Peterson were also strikingly
similar.  The car was owned by a mother who regularly permitted her son to use it.  Id.
at 790. One day while his mother was at work, the son allowed a friend of his to drive
the car and the friend was involved in an accident.  Id.   While the son's friend also did
not possess a valid driver's license, the court based its affirmation of the trial court's
summary judgment in favor of the insurance company on the fact that the friend's belief
that she was entitled to use the car as a result of the son's permission was irrational
because: 1) both the son and his friend admitted they knew that son did not have
permission to allow his friend to use the car; and 2) both knew the car's owner would
have disapproved of the friend's use of the car.  Id. at 791. Thus, the court found, under
those admitted facts, that the friend could not have had a "reasonable belief" that she
was entitled to drive the car.  Id.
We have no such admission in the instant case, and what Philip and Daughter
believed are unknown.  We are thus faced squarely with the question as to whether the
fact that Daughter was fifteen years old, unlicensed, and unable to legally drive any
automobile on the public roadways, is, of itself, sufficient as a matter of law to make
unreasonable any subjective belief she may have had that she was "entitled" to drive
Philip's car at the time of the collision.  We believe the answer to that question is "no."2
The Maryland Court of Appeals in Perry, the decision relied upon in Peterson,
acknowledged that "[o]rdinarily, when there are genuine disputes as to material facts the
question of the reasonableness of a driver's belief is one of fact."  Gen. Acc. Fire & Life
Assur. Corp., Ltd. v. Perry, 541 A.2d 1340, 1351 (Md. Ct. Spec. App. 1988). We also
2 In making this determination, we acknowledge that there is a split in authority among jurisdictions that have considered the matter. Compare Canadian Indem. Co. v. Heflin, 727 P.2d 35, 258 (Ariz. Ct. App. 1986) (noting that whether the unlicensed fifteen-year-old had a reasonable belief to drive the car is a question of fact), and Hurst v. Grange Mut. Cas. Co., 470 S.E.2d 659, 664 (Ga. 1988) (holding "it was error granting summary judgment to the insurer . . . when there was undisputed evidence that the non

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