Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Boone County, Missouri The
Honorable Glen A. Dietrich, Judge
Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony
Rex Gabbert, Judge
D. Witt, Judge
Paul Fire & Marine Insurance Company ("St.
Paul") and Travelers Indemnity Company
("Travelers") (collectively "the
Insurers") appeal from the Circuit Court of Boone
County's judgment of partial summary judgment in favor of
Ryan Ferguson awarding an equitable garnishment in the amount
of $5, 354, 000.00. The Insurers raise two allegations of
error and request this Court reverse the judgment and direct
the circuit court to enter summary judgment in their favor.
In his cross-appeal, Ferguson raises one allegation of error
and asks this Court to order the circuit court to amend its
judgment to award prejudgment and post-judgment interest at
the statutory rate of nine percent. We affirm.
March 10, 2004, Ferguson was arrested and charged with
robbery and homicide in Boone County, Missouri, and was
convicted on October 21, 2005. He was incarcerated from the
date of his arrest until his conviction was vacated on
November 12, 2013. Ferguson v. Dormire, 413 S.W.3d
40 (Mo. App. W.D. 2013). The State elected not to retry
Ferguson on the charges, and he was discharged from custody.
March 10, 2014, Ferguson initiated a lawsuit against the City
of Columbia ("Columbia") and five of its police
officers in the U.S. District Court for the Western District
of Missouri alleging the officers violated Ferguson's
constitutional rights and engaged in malicious
prosecution. Columbia tendered the defense of the
action to the Insurers under its insurance policies and the
Insurers denied coverage. First, the Insurers asserted that
the underlying 'wrongful acts' committed by the
officers occurred two years before St. Paul's policy was
in effect. Second, the Insurers asserted that "injuries
for malicious prosecution and related civil rights violations
are manifest at the time of indictment or arraignment,"
and because Ferguson was arraigned two years before St.
Paul's policy was in effect, neither insurer owed a duty
to defend the suit or indemnify the officers for the
the course of the lawsuit, Columbia and its officers entered
into a partial settlement agreement with Ferguson under
section 537.065. The agreement provided that Columbia would
pay Ferguson $500, 000 and another insurance company, which
is not a party to this appeal, would pay Ferguson a minimum
of $2, 250, 000 regardless of any subsequent damage award.
Columbia and its officers did not contest liability, and the
district court held a bench trial to determine damages. On
July 10, 2017, the district court found the officers and
Columbia liable for the constitutional violations and awarded
Ferguson a sum of $10, 000, 000, providing $1, 000, 000 in
damages for each year of Ferguson's incarceration.
Additionally, the district court awarded $150, 000 for
Ferguson's cost of defense in the criminal trial and
$854, 000 in attorneys' fees for the civil action.
Ferguson's total award was $11, 004, 000.00.
and its officers were insured by Law Enforcement Liability
("LEL") insurance policies through St. Paul from
October 1, 2006, through October 1, 2010, and insured by a
similar LEL policy through Travelers from October 1, 2010,
through October 1, 2011. As a judgment creditor, Ferguson
petitioned the circuit court for an equitable garnishment
against the Insurers on January 5, 2018. Ferguson and the
Insurers filed cross-motions for summary judgment. The
parties stipulated that the facts were undisputed, and the
only issue before the circuit court was the extent of
coverage provided by St. Paul's and Travelers's
the terms of its policy, St. Paul agreed to:
pay amounts any protected person is legally required to pay
as damages for covered injury or damage that:
• results from law enforcement activities or operations
by or for [Columbia];
• happens while this agreement is in effect;
• is caused by a wrongful act that is committed while
conducting law enforcement activities or operations.
[St. Paul will] consider damages to include the
attorneys' fees of the person or organization bringing
the claim if such fees are awarded, or paid in a settlement,
for covered injury or damage. . . .
Injury or damage means bodily injury, personal injury, or
Bodily injury means any harm to the health of other persons.
It includes care, loss of services, or death that results
from such harm.
Harm includes any of the following:
• Physical harm, sickness, or disease.
• Mental anguish, distress, injury, or illness.
• Emotional distress.
Personal injury means injury, other than bodily
injury, caused by any of the following wrongful acts:
• False arrest, detention, or imprisonment.
• Malicious prosecution. . . .
• Violation of civil rights protected under any
federal, state, or local law.
point, St. Paul merged with Travelers, and Columbia renewed
its St. Paul policy under the Traveler's name. At the
time of renewal, Travelers offered to "adjust any claims
under [the] new Travelers policy based upon the terms and
conditions of either [the] expiring St. Paul policy or [the]
new Travelers policy, whichever is broader. . .
." (emphasis added). Like the St. Paul policy, the
Travelers policy covers "'bodily injury',
'property damage' or 'personal injury' 
caused by a 'wrongful act' committed by [Columbia] or
on [Columbia's] behalf while conducting law enforcement
activities or operations." Additionally, the Travelers
policy contained, what is commonly referred to as a
"deemer" clause, which states that "[injuries]
caused by the same 'wrongful act' or 'related
wrongful acts' will be deemed to occur when the first
part of such [injury] occurs." Because of the
"deemer" clause in the Travelers policy, the
circuit court found that St. Paul's policy provided
broader coverage for the claims in this action. For this
reason, the court applied the terms of St. Paul's
coverage for all five policy years.
policy had self-insurance retention endorsements, which
reduced the Insurers' liability. St. Paul's policy
had a $500, 000 self-insurance retention for each policy
year, and Travelers had a $500, 000 self-insurance retention
for each wrongful act. The court found that St. Paul's
policy would have reduced the Insurers' liability by $2,
500, 000 and Travelers would have only reduced the
Insurers' liability by $500, 000, and therefore the court
found that Travelers's coverage was broader for the
purposes of the self-insurance retention. The court used the
Travelers's self-insurance retention provisions in
calculating its award.
25, 2018, the circuit court awarded Ferguson partial summary
judgment and ordered equitable garnishment against the
Insurers for $5, 354, 000.00. In calculating the award, the
circuit court assessed $1, 000, 000 for each of the five
years that Ferguson was incarcerated within the policy period
and assessed $854, 000 in attorneys' fees for a sum of
$5, 854, 000, which was then reduced by $500, 000 pursuant to
the self-insurance retention provision of the policy. The
court also awarded "interest calculated at the statutory
rate applicable to federal district court judgments."
The court made an alternative finding that the St. Paul's
policy language was ambiguous because the policy lacked
"a temporal requirement stating when a 'wrongful
act' must occur for there to be coverage, nor [did the
policy] predicate coverage on the date of 'first
injury.'" Both parties appealed.
Insurers allege two points of error on appeal. First, they
argue that the circuit court misapplied the law asserting
that coverage under St. Paul's policy was not triggered
because Ferguson's injury "happened" before the
policy period began. Second, they argue that the circuit
court incorrectly found that St. Paul's policy was
cross appeal, Ferguson raises one point alleging that the
circuit court erred because it awarded interest at the
"interest calculated at the statutory rate applicable to
federal district court judgments" rather than awarding
prejudgment and post-judgment interest at the rate of nine
percent as required by section 408.040.
review of the grant of summary judgment is de novo.
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary
judgment will be affirmed if the movant is entitled to
judgment as a matter of law and no genuine issues of material
fact exist. Id. at 377. Here, the parties agree that
there are no genuine issues of material fact, and each party
argues they are entitled to judgment as a matter of law.
"Generally, an order denying a party's motion for
summary judgment is not a final judgment and is therefore not
subject to appellate review." Schroeder v.
Duenke, 265 S.W.3d 843, 850 (Mo. App. E.D. 2008).
"However, the denial of a motion for summary judgment
may be reviewable when, as in this case, the merits of the
motion for summary judgment are intertwined with the