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Columbia Mutual Insurance Co. v. Heriford

Court of Appeals of Missouri, Southern District, Second Division

March 29, 2017

COLUMBIA MUTUAL INSURANCE COMPANY, Plaintiff-Appellant,
v.
LESLIE HERIFORD and CRYSTAL LEE, Defendants-Respondents.

         APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY Honorable R. Craig Carter

          GARY W. LYNCH, P.J.

         Columbia Mutual Insurance Company ("Columbia Mutual") filed this action against Crystal Lee ("Lee") seeking a declaratory judgment that Leslie Heriford ("Leslie") was not an insured under Delcia Heriford's ("Delcia") insurance policy related to an automobile accident involving Lee and Leslie.[1] Both parties moved for summary judgment and, based upon its findings of fact, the trial court entered judgment in Lee's favor. Columbia Mutual appeals, arguing that the trial court erred in entering judgment in favor of Lee and denying Columbia Mutual's cross-motion[2] because: (1) "[Leslie] is not an insured entitled to coverage under [Delcia's] personal umbrella policy in that the Toyota truck driven by [Leslie] at the time of the accident that injured [Lee] was not owned by [Delcia][;]" and (2) "[Leslie] is not an insured entitled to coverage under [Delcia's] personal umbrella policy in that according to the undisputed deposition testimony of Delcia and Leslie, he was not a resident of [Delcia's] household[.]" Because neither party's summary judgment motion established a right to judgment as a matter of law, we reverse the trial court's judgment in part and remand the case for further proceedings consistent with this opinion.

         Factual and Procedural Background

         Columbia Mutual's petition sought a judgment declaring that Leslie "is not an insured pursuant to [its] Policy[.]" In its petition, Columbia Mutual alleged as facts, among others, entitling it to its requested relief that "[Delcia] was not the 'owner' of the Truck pursuant to the Policy, " and that "[Leslie] was not a resident of [Delcia's] household at the time of the Accident." Lee's answer denied both allegations and affirmatively stated "that [Delcia] was the owner, and/or an owner, of the truck."

         Lee and Columbia Mutual filed cross motions for summary judgment on the petition. The facts set out in Lee's statement of uncontroverted material facts (SUMF) establish the following.[3] Lee was injured in a motor vehicle wreck when Leslie, driving a Toyota Tacoma (the "truck"), crossed the center line and hit Lee's vehicle head-on. Leslie's grandmother, Delcia, purchased the truck for Leslie to drive and they agreed that Leslie would pay Delcia back. At the time of the wreck, Leslie had been driving the truck for more than a year but had made no payments to Delcia. Department of Motor Vehicle records[4] list Delcia as the owner and registrant of the truck. The certificate of title to the truck states, "OWN-NAME HERIFORD LESLIE TOD HERIFORD DECLIA [sic]" and Delcia's address is listed as the owner's address. Leslie had a room at Delcia's house, stayed the night there some, ate there, and did all of his laundry there.

         Delcia had multiple insurance policies potentially related to the truck. The property damage insurance carrier, Dairyland, paid Delcia for the truck after it was totaled in the wreck. Delcia kept those funds. Delcia also had the policy at issue with Columbia Mutual (the "policy"). Lee made a demand for the policy limits and was declined because Columbia Mutual claimed Leslie was not an insured under the policy.

         "Insured" is defined in the policy as "1. You. 2. A 'family member'. 3. Any person using an 'auto', 'recreational motor vehicle', or watercraft, which is owned by you[.]" "Owner" is not defined in the policy. "Family member" is defined as "a resident of [the insured's] household who is: 1. Your relative, including a ward or foster child; or 2. Under the age of 21 and in the care of you or an 'insured' who is age 21 or over." "Resident" is also not defined in the policy.

         In ruling on the parties' cross motions for summary judgment, the trial court made a finding of fact that Delcia was an "owner" of the truck and therefore Leslie was an insured under the policy. The court also made a finding of fact that Leslie was a resident of Delcia's household and concluded that also made him an insured under the policy. Accordingly, the trial court granted judgment in favor of Lee and denied Columbia Mutual's motion for summary judgment. Columbia Mutual timely appeals that judgment.

         Standard of Review and Applicable Rule 74.04 Principles

Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (internal citations omitted). "The language of Rule 74.04 establishes the boundaries of Missouri's summary judgment practice."[5] Id. at 380.

• Facts come into a summary judgment record only via Rule 74.04(c)'s numbered-paragraphs-and-responses framework.
• Courts determine and review summary judgment based on that Rule 74.04(c) record, not the whole trial court record.
• Affidavits, exhibits, discovery, etc. generally play only a secondary role, and then only as cited to support Rule 74.04(c) numbered paragraphs or responses, since parties cannot cite or rely on facts outside the Rule 74.04(c) record.
• To come full circle, summary judgment rarely if ever lies, or can withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) numbered paragraphs and responses alone.

Jones v. Union Pac. R.R. Co., SD34184, 2016 WL 6081830, at *1 (Mo.App. S.D. Oct. 18, 2016) (internal quotation marks and footnotes omitted).

         In developing the Rule 74.04(c) record, the parties are required to support each stated material fact with specific references to attached pleadings, discovery, exhibits, or affidavits. Rule 74.04(c)(1), (2), and (3). The function of the specifically referenced evidentiary material is, depending upon which party is asserting the material fact, to "demonstrate the lack of a genuine issue, " as to that particular material fact or to demonstrate that it "remains in dispute." Id. Regardless of what evidentiary material is attached to the parties' statements of facts, however, only those material facts set forth in the parties' statements of facts may be considered in determining whether summary judgment is appropriate. Lackey v. Iberia R-V Sch. Dist., 487 S.W.3d 57, 62 (Mo.App. 2016) ("[S]ummary judgment rarely if ever lies, or can withstand appeal, unless it flows as a matter of law from appropriate Rule 74.04(c) numbered paragraphs and responses alone.").

         "A material fact in the context of summary judgment is one from which the right to judgment flows." Goerlitz v. City of Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011) (citing ITT Commercial Fin. Corp., 854 S.W.2d at 378 ("The burden on a summary judgment movant is to show a right to ...


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