Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lu v. Automobile Club Inter-Insurance Exchange

Court of Appeals of Missouri, Eastern District, Fourth Division

November 22, 2016

HONG LU, Appellant,
v.
AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, and CRYSTAL GUNCKEL, Respondents.

         Appeal from the Circuit Court of St. Louis County. Honorable Lawrence J. Permuter, Jr.

          KURT S. ODENWALD, Judge

         Introduction

         Appellant 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[1] 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.

         Factual and Procedural History

         The dispute centered around ACIIE's liability on an automobile insurance policy. Viewed in the light most favorable to Lu, the record contains the following uncontroverted facts.

         ACHE issued an automobile insurance policy to Thomas Sanders ("Father")[2] 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 insured vehicle.

         On 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.[3] 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.[4]

         Six 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 household.[5]

         After 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.

         Point on Appeal

         In her 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.

         Standard of Review

         When 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).

         Discussion

         Under Rule 74.04(c), [6] 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 law.'" Id

         Once 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).

         Here, 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).

         To 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.

         Lu, on 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")[7] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.