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McDonald v. Zurich American Insurance Co.

United States District Court, W.D. Missouri, Western Division

July 2, 2015

ZACHARIE M. McDONALD, Plaintiff,
v.
ZURICH AMERICAN INSURANCE COMPANY, Defendant.

ORDER

SARAH W. HAYS, Magistrate Judge.

On May 16, 2014, plaintiff Zacharie M. McDonald filed suit in the Circuit Court of Jackson County, Missouri, against defendant Zurich American Insurance Company for equitable garnishment, pursuant to ยง 379.200 RSMo. The action was removed to this court on June 19, 2014.

On January 7, 2015, defendant filed a Motion for Summary Judgment (doc #17). Defendant argues that it is entitled to judgment for two reasons: (1) plaintiff's equitable garnishment action is defective because Justin Jenkins is not named as a defendant as required by Missouri's equitable garnishment statute; and (2) Mr. Jenkins was not insured under the policy because he was not acting within the course and scope of his employment at the time of the accident and was not, therefore, a permissive user of the van. (Defendant's Suggestions in Support of Its Motion for Summary Judgment (doc #18) at 14)

In addition to responding to defendant's motion for summary judgment (doc #26), plaintiff has filed a motion for leave to file an amended complaint (doc #21) so that she may join Mr. Jenkins as a defendant.

I. FACTS

There is no factual dispute with respect to defendant's first argument for summary judgment, i.e. that plaintiff's equitable garnishment action is defective because Justin Jenkins is not named as a defendant as required by Missouri's equitable garnishment statute. This argument will be ruled based on the following facts as set out by defendant:

1. On December 30, 2011, Plaintiff Zacharie McDonald ("Plaintiff") filed suit against Justin Jenkins and Roto-Rooter Services Company ("Roto-Rooter") in the Circuit Court of Jackson County, Missouri, Case No. 1116-CV35042 (the "Underlying Action") alleging she sustained injury in a March 5, 2011, motor vehicle accident in Kansas City, Kansas, when a van owned by Roto-Rooter and driven by Mr. Jenkins turned from a gas station into her lane of traffic (the "Accident").
2. On July 2, 2013, Roto-Rooter filed a Motion for Summary Judgment in the Underlying Action.
3. On July 31, 2013, without responding to the Motion for Summary Judgment, and prior to any ruling by the Court, Plaintiff voluntarily dismissed Roto-Rooter.
4. Plaintiff and Mr. Jenkins then executed an agreement pursuant to Section 537.065 of the Missouri Revised Statutes, and on October 2, 2013, Plaintiff took a $225, 000 judgment against Mr. Jenkins in the Underlying Action (the "Judgment").
5. The instant equitable garnishment action was originally filed on May 16, 2014, in the Circuit Court of Jackson County, Missouri, Case No. 1416-CF11717.
6. Plaintiff contends that a policy of insurance issued to Chemed Corporation ("Chemed"), Policy No. BAP XXXXXXX-XX with effective dates of April 1, 2010, to April 1, 2011 ("Policy"), provides coverage to Mr. Jenkins for the Accident, and she seeks to collect the Judgment entered in the Underlying Action pursuant to Section 379.200 of the Missouri Revised Statutes.
7. Mr. Jenkins is not named as a defendant in this action.[1]
8. Roto-Rooter is a named insured under the Policy.
9. Mr. Jenkins is not a named insured under the Policy.
10. Apart from the named insured, the Policy only provides coverage to individuals who have permission to operate a covered vehicle.
11. The Policy contains the following relevant provisions:
SECTION II - LIABILITY COVERAGE
A. Coverage
We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto"...
We have the right and duty to defend any "insured" against a "suit" asking for such damages.... However, we have no duty to defend any "insured" against a "suit" seeking damages for "bodily injury" or "property damage"... to which this insurance does not apply....
1. Who Is An Insured
The following are ...

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