Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of Monroe County Hon. Frederick P.
G. DOWD, JR, Judge
Brothers, Inc. ("Appellant"), appeals from a
summary judgment in favor of State Farm Fire & Casualty
Company ("State Farm"). We reverse and remand for
further proceedings consistent with this opinion.
contracted with Quinn Pork to have Quinn Pork provide certain
services related to Appellant's pigs. Pursuant to the
contract, Quinn Pork was to utilize its own facilities in
caring for the pigs and was required to provide daily care
and management of the pigs placed in Quinn Pork's
facility while they are fed. All of its services were to be
performed consistent with "good husbandry
practices." Quinn Pork was required to check the pigs at
least twice daily "to observe and monitor health"
and to notify Appellant "at the first sign of sickness
or other unusual conditions." Thereafter, Quinn Pork
tended to the pigs at its grower nursery, and Appellant
retained ownership of the pigs. Quinn Pork involved Buckman
Farms and Kendrick Nutrient Management, LLC, in the care of
the pigs. All of Appellant's 1, 073 pigs subsequently
suffocated when the ventilation was cut off due to the
nursery being pumped to remove manure from the
filed the underlying action, alleging breach of contract and
negligence claims against Quinn Pork for the loss of the
pigs. Prior to trial, Appellant and Quinn Pork entered into
an agreement under Section 536.065 whereby Appellant agreed
not to pursue a judgment against the personal assets of Quinn
Pork or Alan Quinn or by seeking a lien or other encumbrance
against Quinn Pork or Alan Quinn's property. Quinn Pork
agreed that there was sufficient evidence to make a
submissible case and agreed not to oppose Appellant's
efforts to obtain a judgment, and Appellant agreed to limit
its collection efforts to any of Quinn Pork's insurance
coverage, including the policy issued by State Farm.
bench trial, the trial court entered judgment in favor of
Appellants. In its judgment, the court found that Quinn Pork
made representations to Appellant that it "would provide
the facilities, buildings, utilities, equipment, bedding,
water, daily care and management of the pigs consistent with
good husbandry" and further represented that it
"would check the pigs at least twice daily to observe
and monitor their health." The trial court then noted
that Quinn Pork "hired agents and independent
contractors to perform the work on the facilities" in
its care. The trial court found that Quinn Pork was negligent
in selecting "said independent contractors and
subcontractors" and that the agents were
"incompetent to perform the work for which they were
hired." The trial court found that Quinn Pork should
have known that the agents were incompetent but "failed
to observe and supervise the work or to investigate the
qualifications of said individuals." As a direct result
of its negligence, Appellant suffered damages in the amount
of $127, 526.05. Judgment was entered in favor of Appellant
in this amount plus interest at a rate 5.15% per
Appellant brought an equitable garnishment action against
State Farm, alleging that State Farm issued a general
liability insurance policy to Quinn Pork in effect on the day
the pigs suffocated and that the policy provided coverage for
Quinn Pork's negligence related to the incident.
Appellant sought judgment against State Farm in the amount of
the judgment against Quinn Pork in the underlying action.
Farm argues Appellant's claims against it are barred by
an exclusionary provision in the insurance policy it issued
to Quinn Pork. In particular, State Farm relies upon the
following provision in that policy:
. . .
2. Coverage L-Farm Liability does not apply to:
. . .
c. property damage to property rented to, occupied or used by
or in the care of the insured. This exclusion does not apply
to property damage ...