FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason Brown
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"),
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.
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.
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. 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").
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.
points relied on, Plaintiff timely appeals. Finding no merit
in any of his points, we affirm.
Governing Law & Principles of Review
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.
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).
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.
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.
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.
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.
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.
2 - Stare Decisis
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).
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).
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