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Griffitts v. Old Republic Insurance Co.

Court of Appeals of Missouri, Southern District

September 19, 2017

RICKY LEE GRIFFITTS, Plaintiff-Appellant,



          DON E. BURRELL, J.

         This appeal is from the last of a series of related cases, and we begin with a brief overview. Ricky Lee Griffitts ("Plaintiff") was rear-ended ("the collision") by James M. Campbell ("Campbell"), [1] an employee of BNSF Railway Company ("BNSF"). Campbell, who was intoxicated at the time, was driving a Chevy Silverado leased by BNSF ("the Silverado"). Plaintiff sued Campbell and BNSF for negligence in Greene County circuit court case no. 0931-CV04244 ("Case #1"). BNSF removed the case to the U.S. District Court for the Western District of Missouri, which ultimately found that Campbell was not acting within the course and scope of his employment at the time of the collision and entered summary judgment in favor of BNSF on Plaintiff's respondeat superior-based claim.[2]

         Plaintiff then filed a negligence suit solely against Campbell in Greene County circuit court case no. 1131-CV03896 ("Case #2"). BNSF and its insurer, Old Republic, filed a motion to intervene in Case #2 for the purpose of seeking a stay of the case until a ruling could be made in a pending declaratory judgment action brought by BSNF and Old Republic seeking to determine what, if any, duty they owed to Campbell arising from Plaintiff's negligence suit against Campbell. Plaintiff voluntarily dismissed Case #2 prior to any rulings being entered by the trial court.

         In December 2012, Plaintiff filed his third negligence suit against Campbell in Greene County circuit court case no. 1231-CV17408 ("Case #3"). BNSF and Old Republic again moved to intervene in an attempt to stay the case. The trial court eventually denied those motions, and, after a bench trial, entered a $1.475 million judgment in favor of Plaintiff against Campbell.[3] After that judgment went unsatisfied for 30 days, Plaintiff filed the instant equitable garnishment case against BNSF and Old Republic (collectively, "Defendants") pursuant to section 379.200 on the ground that Campbell was an insured under the omnibus clause of the insurance policy issued to BNSF by Old Republic ("the Policy").[4]

         The equitable garnishment was tried to the court, which was tasked with deciding the factual dispute about whether Campbell had BNSF's permission to use the Silverado at the time of the collision. That question of fact was answered in the negative when the trial court entered its November 10, 2016 judgment in favor of Defendants.[5]

         In six points relied on, Plaintiff timely appeals. Finding no merit in any of his points, we affirm.[6]

         Applicable Governing Law & Principles of Review

         "In an equitable garnishment action brought directly against an insurer, the plaintiff must prove that a judgment was obtained against an insurance company's insured during the policy period and that the injury is covered by the policy." Taylor v. Bar Plan Mut. Ins. Co., 457 S.W.3d 340, 344 (Mo. banc 2015) (citing section 379.200). "The requirement of 'permissive use' of a motor vehicle in an omnibus or non-owned vehicle clause of an automobile insurance policy to limit liability coverage is a question of fact which may be satisfied by a showing of either express or implied permission." State Farm Mut. Auto. Ins. Co. v. Scheel, 973 S.W.2d 560, 567 (Mo. App. W.D. 1998). The person seeking coverage has the burden of proving that coverage exists. Id. at 568.

         This Court will affirm the judgment in an equitable garnishment action "unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." McDonald v. Ins. Co. of State of Pa., 460 S.W.3d 58, 64 (Mo. App. W.D. 2015). The interpretation of an insurance policy is a question of law reviewed de novo with no deference owed to the trial court's interpretation. Kretsinger Real Estate Co. v. Amerisure Ins. Co., 498 S.W.3d 506, 510 (Mo. App. W.D. 2016). A claim that the trial court erroneously declared or applied the law is also reviewed de novo. Randall v. Randall, 497 S.W.3d 850, 854 (Mo. App. W.D. 2016). In contrast, "[c]redibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness[, ]" and we must defer to those determinations. Coursen v. City of Sarcoxie, 124 S.W.3d 492, 494-95 (Mo. App. S.D. 2004).

         The Evidence

         Viewed in the light most favorable to the judgment, and ignoring all contrary evidence, Kretsinger, 498 S.W.3d at 510, the following is a summary of the relevant evidence adduced at trial. Campbell, a resident of Tennessee, was the foreman of a crew that traveled the central United States replacing worn railroad ties. BNSF provided Campbell a truck to use for his job. In early March 2009, Campbell asked for and received permission from his supervisor to use his work truck to commute between his home in Tennessee and a worksite in Springfield, Missouri. When at home, Campbell did not have permission to use the work truck for personal matters.

         On March 14th, while in Tennessee, Campbell took his work truck to a body shop to have some damage repaired. BNSF provided the Silverado to Campbell as a replacement work vehicle while the work truck was in the shop. On March 16, 2009, Campbell, who had the day off from work, drove the Silverado from his Tennessee home to Springfield. When Campbell arrived in Springfield, he parked the Silverado at his motel with the intention of leaving it there for the remainder of the day. At approximately 3:30 p.m., Campbell met up with others at the motel, where he ate barbecue, played video games, and drank beer, whiskey, and vodka.

         After Campbell's drinking bout at the motel, Roy Donaldson ("Donaldson"), a co-worker and assistant foreman, along with another co-worker, escorted Campbell back to his room. Campbell was carrying a bottle of alcohol and was slurring his speech. Donaldson instructed Campbell to stay in his room, and Campbell soon fell asleep.

         Later that evening, at around 8:30 p.m., Campbell awoke and left his motel room. He got into the Silverado and drove north on Glenstone Avenue, the street adjacent to the motel. Shortly thereafter, the collision occurred. Plaintiff was stopped at a stop light when the Silverado struck the rear of his vehicle, and the Silverado ultimately came to rest in the parking lot of an adjacent Ruby Tuesday's restaurant.

         When police responded to the scene, Campbell admitted that he "recently" had been drinking, and he felt like he was under the influence of alcohol. The police arrested Campbell, and subsequent testing revealed that his blood alcohol content was 0.182%. Campbell ultimately pleaded guilty to felony leaving the scene of an accident and felony second-degree assault, and he was ordered to pay Plaintiff $45, 000 in restitution. Campbell admitted at trial that he was not authorized to use the Silverado at the time of the collision. Additional evidence relevant to the disposition of each point will be set forth in our analysis below.


         Point 2 - Stare Decisis

         For ease of analysis, we address Plaintiff's points out of order. Point 2 claims the trial court erroneously declared the law in "entering its amended judgment" because it did not "apply the doctrine of stare decisis" by failing to apply Missouri law and public policy as set forth in United Fire & Cas. Co. v. Tharp, 46 S.W.3d 99 (Mo. App. S.D. 2001).

         Point 2 is not preserved for appellate review because it does not "[i]dentify the trial court ruling or action that" Plaintiff challenges. Rule 84.04(d)(1)(A); see also State v. Cmty. Alt. Mo., Inc., 267 S.W.3d 735, 747 (Mo. App. S.D. 2008) (a point that "does not identify a trial court ruling or action that is contended to be erroneous as required by Rule 84.04(d)(1)(A) . . . preserves nothing for this court's review"). "The error contemplated by Rule 84.04(d) in a court-tried case is not the judgment itself but the trial court's actions or rulings on which the adverse judgment is based[.]" Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 283 n.2 (Mo. App. E.D. 1999). By claiming the entire judgment as the error challenged, Plaintiff's point sets forth only an abstract statement of law divorced from any ruling of the trial court. Such abstract statements of law fail to comply with Rule 84.04(d). Shellenberger v. Shellenberger, 931 S.W.2d 483, 484 (Mo. App. S.D. 1996).

         Point 2 is denied.

         Point 3 - ...

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