This Article examines the Missouri Supreme Court’s decision in Shahan v. Shahan. What is interesting about the court’s decision is the approach the court used to achieve the desired result. In insurance law, generally, a court cannot use the doctrines of waiver and estoppel to create coverage where coverage did not previously exist under the express terms of the insurance policy. The court in Shahan, notwithstanding Missouri’s adherence to the majority approach, underwent an analysis of a rule that was based on waiver and estoppel despite the fact that a favorable ruling for the insured would contradict the general principle that estoppel and waiver cannot be used to create coverage. Because the majority failed to adhere to the traditional application of the rule and presume prejudice when an insurer denies liability on one ground and subsequently tries to deny liability on a different ground, contradiction of the general principle that waiver and estoppel cannot create coverage would have to wait for another day. Under Shahan, however, one could argue that creating coverage through waiver and estoppel is not prohibited in Missouri; but unfortunately for insureds in Missouri, proving waiver and estoppel after Shahan will not be an easy task.

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