Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County. Honorable
Lawrence J. Permuter, Jr.
S. ODENWALD, Judge
Hong Lu ("Lu") appeals the trial court's grant
of summary judgment in favor of insurer Automobile Club
Inter-Insurance Exchange ("ACHE") in her action for
equitable garnishment. Lu was awarded a judgment against
Crystal Gunckel ("Gunckel") for damages suffered by
Lu while Gunckel was driving her boyfriend's Ford Focus,
which the boyfriend had recently purchased from his father.
On appeal, Lu contends that the trial court erred in granting
summary judgment for ACHE because Gunckel was an insured
under the father's automobile insurance policy. Lu
alternatively argues that the insurance coverage on the Ford
Focus was in force on the date of the accident because
Section 303.210 required ACHE to give ten days' notice
to the Director of Revenue (the "Director") before
ACHE could terminate insurance coverage on the Ford Focus,
which did not occur here. The material facts are not
genuinely disputed. Because Gunckel was not an insured under
the father's policy, and because Section 303.210 did not
require ACHE to give notice of its actions to the Director,
the trial court did not err in granting summary judgment for
ACHE. We affirm.
and Procedural History
dispute centered around ACIIE's liability on an
automobile insurance policy. Viewed in the light most
favorable to Lu, the record contains the following
issued an automobile insurance policy to Thomas Sanders
("Father") and his wife, who were the named insureds.
The policy ran from June 3 through December 3, 2014, and
listed Father's Ford Focus (the "Ford") as an
November 20, 2014, Father sold the Ford to his son, Jonathan
Sanders ("Son"). Father and Son executed the
certificate of title originally issued to Father for the
Ford, and then Father permanently relinquished possession of
the vehicle to Son. Five days later Father informed ACHE of
the Ford's sale. ACHE amended Father's policy to
remove the Ford from the policy's declarations page,
effective November 20, 2014.
days after the sale, on November 26, Lu was involved in a car
accident with Gunckel. Gunckel was Son's girlfriend at
the time and was driving the Ford with Son's permission.
Gunckel was not a member of Father's
the accident, Lu sued Gunckel for the property damage to her
vehicle stemming from the collision and was awarded a
judgment for $15, 078. Subsequently, Lu sued ACHE for
equitable garnishment under Section 379.200. Lu claimed that
ACHE was liable for the damage caused by Gunckel under
Father's automobile insurance policy. The relevant policy
provisions will be discussed in detail below. Lu and ACHE
filed cross-motions for summary judgment. Without
explanation, the trial court granted ACIIE's motion,
denied Lu's motion, and entered judgment in favor of ACHE
and against Lu. This appeal follows.
sole point on appeal, Lu argues that the trial court erred in
granting summary judgment in favor of ACHE. Lu contends that
because Gunckel was an insured under Father's policy at
the time of the accident, ACHE insured against Gunckel's
negligence. Lu alternatively asserts that even if the revised
terms of the policy no longer covered the Ford, the original
coverage nevertheless was still in place because Section
303.210 required ACHE to continue coverage on the Ford for
ten days after ACHE notified the Director that the Ford was
removed from Father's policy, which did not occur here.
considering an appeal from a grant of summary judgment, our
review is essentially de novo. ITT Commercial Fin, Corp,
v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.
banc 1993). As the trial court's judgment is founded on
the record submitted and the law, we need not defer to the
trial court's order granting summary judgment.
Id. We review the record in the light most favorable
to the party against whom judgment was entered, and the
non-movant receives the benefit of all reasonable inferences
from the record. Id. We will affirm where the
pleadings, depositions, affidavits, answers to
interrogatories, exhibits, and admissions establish that no
genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Stanbrough v.
Vitek Solutions, Inc., 445 S.W.3d 90, 96 (Mo.
App. E.D. 2014).
Rule 74.04(c),  a defending party-here, ACHE-may establish
the right to judgment as a matter of law by demonstrating:
(1) facts negating any one of the elements of the
non-movant's claim; (2) "that the non-movant, after
an adequate period for discovery, has not been able and will
not be able to produce sufficient evidence to allow the trier
of fact to find the existence of any one" of the
elements of the non-movant's claim; or (3) "that
there is no genuine dispute as to the existence of the facts
necessary to support movant's properly pleaded
affirmative defense." Goerlitz v. City of
Marwille, 333 S.W.3d 450, 453 (Mo. banc 2011) (quoting
ITT Commercial Fin. Corp.. 854 S.W.2d at 381).
"Each of these three methods individually
'establishes the right to judgment as a matter of
the defending party establishes this prima facie case, the
burden shifts to the non-movant. ITT Commercial Fin.
Corp., 854 S.W.2d at 381. At this point, "the
non-movant's ow/y recourse is to show-by affidavit,
depositions, answers to interrogatories, or admissions on
file-that one or more of the material facts shown by the
movant to be above any genuine dispute is, in fact, genuinely
disputed." Id. (Emphasis in original.) The
non-movant may not rest on mere allegations or denials of
fact; the response shall set forth specific facts with
evidentiary support showing that there is a genuine issue for
trial. Id.; Rule 74.04(c)(2).
Lu asserted a claim against ACNE for equitable garnishment
under Section 379, 200. In a suit for equitable garnishment,
the injured party can seek recovery against the
tortfeasor's insurer. Carroll v. Missouri
Intergovernmental Risk Mgmt. Ass'n. 181 S.W.3d 123,
126 (Mo. App. W.D. 2005). "An equitable garnishment
action consists of proof that plaintiff has obtained a
judgment in his favor against an insurance company's
insureds during the policy period and the injury is covered
by the insurance policy." Peck v. Alliance Gen. Ins.
Co.. 998 S.W.2d 71, 74 (Mo. App. E.D. 1999).
support the grant of summary judgment, ACHE argues that the
undisputed facts negated Lu's equitable-garnishment
claim. See Goerlitz. 333 S.W.3d at 453. ACHE asserts
that Father's policy did not cover Gunckel's use of
the Ford because the evidence is undisputed that Gunckel was
not an insured under Father's policy at the time of the
accident. Thus, because Father's policy did not cover
Gunckel when the accident occurred, Lu could not assert an
equitable-garnishment claim against ACHE.
the other hand, maintains that Gunckel was an insured under
Father's policy. But even if Gunckel was not an insured,
Lu argues that ACHE was still liable because the Motor
Vehicle Financial Responsibility Law
("MVFRL") required continued coverage on the vehicle
for ten days after ACHE notified the Director that the Ford
was removed from coverage under Father's policy. Parties
are free to contract as to the terms of an automobile
insurance policy, but only to the extent that the contract
complies with the MVFRL. Wilson v. Traders Ins. Co.,
98 S.W.3d 608, 613 (Mo. App. S.D. 2003). Because the accident
occurred within six days ...