Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Honorable
Joan L. Moriarty
B. SULLIVAN, P.J.
Parker (Appellant) appeals from the trial court's summary
judgment entered in favor of Enterprise Leasing Company of
St. Louis, LLC (Enterprise) and Elco Administrative Services
Company (ELCO) (collectively Respondents). We affirm.
and Procedural Background
March 6, 2013, Appellant rented a 2013 Ford Escape (Escape)
from Enterprise under a written rental agreement between
himself and Enterprise. Appellant declined to purchase
insurance coverage from Enterprise when he rented the Escape.
Appellant also declined the option to purchase supplemental
liability protection (SLP), which includes excess insurance
from a third-party insurance company by initialing the box
indicating this declination on the rental agreement. He also
signed the rental agreement and expressly indicated he had
read and agreed to the terms and conditions on Pages 1
through 4 of the agreement.
the MVFRL, the rental agreement provides:
7. Responsibility to Third Parties. Owner complies with
applicable motor vehicle financial responsibility laws as a
state certified self-insurer, bondholder, or cash depositor.
Except to the extent required by the motor vehicle financial
responsibility laws of the applicable state or otherwise by
law, Owner does not extend any of its motor vehicle financial
responsibility or provide insurance coverage to Renter,
AAD(s), passengers or third parties through this Agreement.
If valid automobile liability insurance or self-insurance is
available on any basis to Renter, AAD(s) or any other driver
and such insurance or self-insurance satisfies the applicable
state motor vehicle financial responsibility law, then Owner
extends none of its motor vehicle financial responsibility.
However, if Renter and AAD(s) are in compliance with the
terms and conditions of this Agreement and if Owner is
obligated to extend its motor vehicle financial
responsibility to Renter, AAD(s) or third parties, then
Owner's obligation is limited to the applicable state
minimum financial responsibility amounts. Unless required by
law, Owner's financial responsibility shall not extend to
any claim made by a passenger while riding in or on or
getting in or out of Vehicle. Owner's financial
responsibility shall not extend to liability imposed or
assumed by anyone under any worker's compensation act,
plan or contract. SEE PARAGRAPH 17 FOR INFORMATION ON
March 11, 2013, Appellant was involved in a motor vehicle
accident with Darion Clayborne (Clayborne), when Appellant
ran a stop sign at a high rate of speed in the Escape and
collided with Clayborne's car at the intersection of
Shreve and Margaretta Avenues. At the time of the accident,
Appellant maintained his own automobile liability insurance
policy through Benchmark Insurance Company (Benchmark), which
provided insurance coverage to Appellant for this accident.
April 25, 2014, Appellant's counsel Thomas Hershewe
(Hershewe), from Dollar, Burns & Becker, sent a letter to
ELCO's Maureen Gehbauer (Gehbauer), which stated:
"My client is willing to settle within the policy limits
for Twenty-Five Thousand Dollars ($25, 000.00)."
19, 2014, Appellant and Clayborne entered into a Section
537.065 agreementwhich provided, in pertinent part, that in
return for $15, 000 from Benchmark, Clayborne would not
pursue Appellant's personal assets and not enforce any
judgment by execution or garnishment against Appellant's
personal or real properties other than his insurance
policies. Appellant agreed to waive his right to contest
venue and trial by jury, agreed to a bench trial, and agreed
to accept representation from Dollar, Burns & Becker as
his counsel in the lawsuit brought by Clayborne. In addition,
he agreed that he would not accept a defense from Enterprise
2, 2014, Clayborne filed his Petition alleging he was injured
by Appellant's negligent operation of the Escape.
(Circuit Court of the City of St. Louis Case No.
1422-CC09095). On July 8, 2014, Hershewe called Gehbauer and
advised her Clayborne had filed suit against Appellant. On
July 9, 2014, Gehbauer responded to Hershewe that Benchmark
and not Enterprise had the duty to defend and indemnify
Appellant. On October 6, 2014, after a bench trial, judgment
on liability and damages was entered for Clayborne and
against Appellant for $575, 000 and post-judgment interest.
November 7, 2014, Clayborne filed a Section 379.200
garnishment action against Enterprise, ELCO, and Appellant
for the MVFRL $25, 000 limit. (Circuit Court of the City of
St. Louis Case No. 1422-CC10024). On November 13, 2014,
Appellant filed a cross-claim against Enterprise and ELCO for
bad faith failure to settle and breach of contractual duty to
defend. Enterprise and ELCO satisfied Clayborne's
garnishment claim against them for $25, 000, resulting in
Clayborne's voluntary dismissal of them from his
garnishment action with prejudice on October 30, 2015.
November 12, 2015, Enterprise and ELCO filed a motion for
summary judgment on Appellant's claims for breach of a
duty to defend and bad faith asserting neither Enterprise nor
ELCO had a contractual duty under the rental agreement or a
statutory duty under the MVFRL to defend Appellant, and
neither the rental agreement nor the MVFRL gave Enterprise or
ELCO the exclusive right to contest or settle any claims
against Appellant or ...