Ryan Ferguson v. St. Paul Fire and Marine Insurance Company

In the
Missouri Court of Appeals
Western District
RYAN FERGUSON, )
)
Respondent-Appellant, ) WD82090 Consolidated with
) WD82197
v. )
) OPINION FILED:
ST. PAUL FIRE AND MARINE ) December 10, 2019
INSURANCE COMPANY, ET AL., )
)
Appellants-Respondents. )

Appeal from the Circuit Court of Boone County, Missouri
The Honorable Glen A. Dietrich, Judge

Before Division Three: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony
Rex Gabbert, Judge

St. 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.

Factual Background1

On 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.

On 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.2 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 judgment.

1
The facts set out in the circuit court's judgment are undisputed.
2
The case was captioned as Ryan Ferguson v. John Short, et al., Case No. 2:14-CV-04062-NKL. The
district court's findings and judgment are not before us on appeal. Furthermore, the Insurers do not dispute that they
are bound by any facts that were determined in the underlying district court case that were necessary to the
judgment. Allen v. Bryers, 512 S.W.3d 17, 33 (Mo. banc 2016).

2
 During the course of the lawsuit, Columbia and its officers entered into a partial

settlement agreement with Ferguson under section 537.065.3 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.

Columbia 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 policies.

Under the terms of its policy, St. Paul agreed to:

3
All statutory citations are to RSMo 2016 unless otherwise indicated.

3
 pay amounts any protected person[4] 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; and
 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 property damage.

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.
 Humiliation.

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.

(emphasis added).

At some point, St. Paul merged with Travelers, and Columbia renewed its St. Paul

policy under the Travelers'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. . . ."

4
The circuit court found that the officers were protected persons under the policy, which is not challenged
on appeal.

4
(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.

Each 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.

On July 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

5
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.

Analysis

The 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 ambiguous.

On his 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.

Standard of Review

Appellate 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

6
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 propriety of an appealable order

granting summary judgment to another party." Id. (internal quotation omitted). Therefore,

we must decide if either party is entitled to judgment as a matter of law.

Insurers' Point One

In their first point on appeal, the Insurers allege the circuit court misapplied the law

in finding the Insurers owed an obligation to indemnify and defend5 Ferguson for a portion

of the district court's judgment. The Insurers argue that no covered injury or damage

"happened" during the policy period, and for that reason neither of the Insurers' policies

provide coverage.

Because at the time Columbia renewed its LEL coverage in October 2010, Travelers

offered to enforce the broader of the two policies, we must first determine which of the two

policies offers broader indemnification to the insured officers for these claims. There are

generally two types of LEL policies: "act-based" and "injury-based." WILLIAM G. BECK

ET AL., NEW APPLEMAN ON INSURANCE LAW LIBRARY EDITION, § 34.03[1][a] (Jeffrey E.

Thomas & Aviva Abramovsky eds., 2019). "Act-based" policies are triggered when an

"allegation or existence of one of the policy's defined or enumerated 'acts' [arises] during

the policy period." Id. "Injury-based" policies are triggered at the "happening of an

enumerated 'injury' during the policy period." Id.

5
The circuit court judgment does not address whether the Insurers owed a duty to defend but instead found
that "[Insurers] must indemnify the [o]fficers for part of Ferguson's judgment." The issue of whether the Insurers
owe a duty to defend is not addressed in either Ferguson's or the Insurers' briefs; therefore, we will not address this
issue.

7
 Under an injury-based insuring agreement, the material requirement to
invoke coverage is the allegation or existence of one of the policy’s defined
or enumerated “injuries” during the policy period. Whether or not the causal
act or acts that gave rise to the injury occurred during the policy period is
irrelevant to the coverage analysis undertaken with a true injury-based
insuring agreement.

Id. at § 33.04[1][a][ii](internal footnote omitted).

Pursuant to its terms the St. Paul policy applies to "covered injury or damage that .

. . happens while this agreement is in effect." Similarly, the Travelers policy specifies that

it "applies to 'bodily injury,' 'property damage' and 'personal injury' only if . . . [t]he 'bodily

injury,' 'property damage' or 'personal injury' occurs during the policy period." Therefore,

we find that both policies are "injury-based," but the Travelers policy contains an important

limitation which does not appear in the St. Paul policy. Travelers specifies that "[a]ll

[injury] caused by the same 'wrongful act' or 'related wrongful acts' will be deemed to occur

when the first part of such [injury] occurs." The St. Paul policy does not contain a similar

"deemer" clause.

Because of this "deemer" clause, the Travelers policy clearly limits coverage in

cases like this one, where an insured's actions cause injury over an extended period of time.

Therefore, under the Travelers policy, coverage is triggered only if the injury "first" occurs

during its coverage period. Because St. Paul's policy lacks a similar "deemer" clause, we

conclude that St. Paul's policy provides broader coverage for these claims, and the district

court's judgment must be analyzed under its terms.

As stated previously, St. Paul's policy provides coverage:

for covered injury or damage that:
 results from law enforcement activities or operations by or for you;

8
  happens while this agreement is in effect; and
 is caused by a wrongful act that is committed while conducting law
enforcement activities or operations.

Injury or damage means bodily injury, personal injury, or property damage.

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.
 Humiliation.

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.

(emphasis added).

"The interpretation and meaning of an insurance policy is a question of law."

Mansion Hills Condo. Ass'n v. Am. Family Mut. Ins. Co., 62 S.W.3d 633, 636 (Mo. App.

E.D. 2001). Insurance policies are contracts and a court must start with the language

contained within the policy in determining its meaning. Progressive Preferred Ins. Co. v.

Reece, 498 S.W.3d 498, 502 (Mo. App. W.D. 2016). "The words of a policy must be given

their plain and ordinary meaning consistent with the reasonable expectation and objectives

of the parties, unless it is obvious that a technical meaning was intended." Drury Co. v.

Mo. United Sch. Ins. Counsel, 455 S.W.3d 30, 36 (Mo. App. E.D. 2014). When a policy

defines a term, courts will normally look to that definition and nowhere else to determine

9
its meaning. Mansion Hills Condo. Ass'n, 62 S.W.3d at 638. However, when terms are

undefined we give terms their ordinary meaning, which is the meaning that the average

layperson would reasonably understand, and "to determine the ordinary meaning of a term,

this Court consults standard English language dictionaries." Martin v. U.S. Fid. & Guar.

Co., 996 S.W.2d 506, 508 (Mo. banc 1999).

The term "injury or damage" is defined as "bodily injury, personal injury or property

damage." As Ferguson suffered no property damage as defined by the policy, Ferguson

bears the burden to demonstrate the insurers have a duty to indemnify under either the

"personal injury" provision or the "bodily injury" provision.

A. Indemnification under the "Personal Injury" Provision

"Personal injury means injury, other than bodily injury, caused by" enumerated acts

including "malicious prosecution" and "violation[s] of civil rights protected under federal,

state, or local law."6 The district court stated on the record that "I've already made it clear

that this award is for damages for a violation of [Section] 1983, the constitutional violations

that have been agreed to by [Columbia] for purposes of settlement only." The policy does

not define "injury," but the dictionary defines "injury" as:

1a: an act that damages, harms, or hurts: an unjust or undeserved infliction of
suffering or harm
1b: a violation of another's rights for which the law allows an action to recover
damage or specific property or both: an actionable wrong
2: hurt, damage, or loss sustained.

6
Ferguson's district court claims arose under 42 U.S.C. § 1983, and the district court found that the officers
violated his civil rights in that the officers fabricated evidence, recklessly or intentionally failed to investigate other
suspects, engaged in malicious prosecution, conspired to deprive Ferguson of his constitutional rights, and arrested
Ferguson falsely.

10
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 1164 (2002)

(emphasis added). No Missouri court has interpreted this specific contract language, and

we look to other jurisdictions as persuasive authorities.

In Travelers Indemnity Company v. Mitchell, 925 F.3d 236, 239 (5th Cir. 2019),

three men: Ruffin, Bivens, and Dixon were coerced into confessing to the crime of rape,

but all three were exonerated by DNA decades later. Their estates brought charges against

officers for "civil rights violations, including coercing confessions, fabricating evidence,

withholding exculpatory evidence, and prosecuting without probable cause." Id. at 240.

The government entities that employed the officers were insured by St. Paul, which had

identical language to the policy in the instant case. Id. at 240-41. The court ultimately

held:

Th[e] temporal requirement [that injury or damage happen while this
agreement is in effect] applies only to the injury. The two other requirements
for coverage—that the injury resulted from the insured's "law enforcement
activities" and was "caused by a wrongful act that is committed while
conducting law enforcement operations"—do not have a temporal limitation.
[The insurer] thus bargained for an injury-based trigger of coverage, not an
act-based trigger. Under the policy's plain terms, [the insurer] must defend[7]
any claim in which covered injuries occurred [during the policy period],
regardless of when the wrongful causal act occurred.
Id. at 241.

7
Mitchell, 925 F.3d at 240, addressed whether the insurer owed a duty to defend. "An insurer's duty to
defend and duty to indemnify are separate and distinct." Arch Ins. Co. v. Sunset Fin. Svcs, Inc., 475 S.W.3d 730,
733 (Mo. App. W.D. 2015). "The duty to indemnify is determined by the facts as they are established at trial or as
they are finally determined by some other means, for example through summary judgment or settlement." Lee's
Summit v. Mo. Public Entity Risk Mgmt, 390 S.W.3d 214, 219 (Mo. App. W.D. 2012). The duty to indemnify arises
when the insured suffers covered losses. Trainwreck W. Inc. v. Burlington Ins. Co., 235 S.W.3d 33, 44 (Mo. App.
E.D. 2007). In Mitchell, 925 F.3d at 240, the duty to defend arose when the complaint made allegations that, if
proven, would be covered by the policy; therefore, if the insured were found liable for damages in a court judgment,
as in this case, then the insurer would have a duty to indemnify.

11
 Further, the Mitchell court found that the allegations did not trigger a duty to defend

under the definition of "personal injury" because the definition was connected to the torts

of false arrest and false imprisonment. Id. The court reasoned that "false imprisonment

consists of detention without legal process, [and] a false imprisonment ends once the victim

becomes held pursuant to such process." Id. (quoting Wallace v. Kato, 549 U.S. 384, 389

(2007)). The court held that "[t]he inception of legal process predated the [insurers'] policy

period by decades, so the policy does not cover injuries for a claim of false arrest or

imprisonment. Id. (emphasis added). The court ultimately held that St. Paul had a duty to

defend because the three men's injuries fell under the definition of "bodily injury," because

the men had suffered physical and mental ailments related to their prison conditions. Id.

241-42. See also Chi. Ins. Co. v. City of Council Bluffs, 713 F.3d 963, 974 (8th Cir. 2013)

(Bye, J., dissenting in part and concurring in part) (as opposed to an "occurrence-based"

policy, "the Admiral policies plainly and unambiguously include 'damage sustained during

the policy term' arising out of a malicious prosecution as a coverage-triggering occurrence,

separate and apart from the malicious prosecution itself;" the policy was triggered

throughout the wrongful incarceration because the plaintiffs "sustained damage arising out

of the malicious prosecution from 1978 through 2003, the year the two men were finally

released from prison").8

8
"[W]e are not bound to follow Eighth Circuit precedent, [but] we look respectfully to such opinions for
such aid and guidance as may be found therein." Host v. BNSF Ry. Co., 460 S.W.3d 87, 102 (Mo. App. W.D. 2015)
(internal citation and quotation marks omitted). The majority in Chicago Insurance Company, 713 F.3d at 970-71,
held that there was "no meaningful distinction" between a policy that had deemed all damages to occur at the onset
of injury and a policy that covered "injuries or damages" without a "deemer" clause. 713 F.3d at 970-71. We find
the dissent more persuasive.

12
 A key distinction between Ferguson's claims and the claims raised in Mitchell is that

Ferguson's claims arise under the tort of malicious prosecution instead of false arrest or

false imprisonment. The torts of false arrest and false imprisonment end at the time of

legal process authorizing the victim's continued detention, but unlike injuries flowing from

false arrest or imprisonment, which terminate when the victim's continued detention is

authorized by legal process, in a malicious prosecution case involving incarceration the tort

is not completed, and the accrual of injury does not cease, until the criminal proceeding

terminates in the victim's favor. A proceeding ends in the victim's favor when a final

judgment is entered on the merits, dismissed by the court with prejudice, or by

abandonment of the action. Linn v. Moffitt, 73 S.W.3d 629, 633 (Mo. App. E.D. 2002);

see also Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) ("[A] successful malicious

prosecution plaintiff may recover, in addition to general damages, 'compensation for any

arrest or imprisonment, including damages for . . . loss of time and deprivation of the

society.'") Ferguson's conviction was vacated on November 12, 2013, and the State elected

not to retry him. Therefore, Ferguson's malicious prosecution claim did not accrue until

that time, and in accord with Mitchell, any "personal injury" incurred before November 12,

2013 is covered under the policy so long as the injury was sustained during the policy

period.

The Insurers rely in part on St. Paul Fire & Marine Insurance Company v. City of

Waukegan, 82 N.E.3d 823, 838 (Ill. App. Ct. 2017), where the Court held that an identical

LEL policy was not triggered because "[t]he law enforcement activity on which those

claims were based occurred before the policies took effect." (emphasis added). There the

13
court relied on Indian Harbor Insurance Company v. City of Waukegan, 33 N.E.3d 613

(Ill. App. Ct. 2015), which construed a policy that covered wrongful acts which "must

occur during the policy period." Id. at 832; Indian Harbor, 33 N.E.3d at 616. Further, the

court relied on the reasoning of St. Paul Fire & Marine Insurance Company v. City of Zion,

18 N.E.3d 193 (Ill. App. Ct. 2014). In City of Zion, 18 N.E.3d at 199, the court interpreted

an LEL policy, identical to the instant case, and looked to when the "occurrence trigger[ed]

insurance coverage of a malicious-prosecution claim." Most recently in Sanders v. Illinois

Union Insurance Company, No. 124565, 2019 WL6199651, at *5 (Ill. Nov. 21, 2019), the

Illinois Supreme Court noted the policy's classification as an "occurrence-based policy"

weighed heavily into its decision, when it held that malicious prosecution occurred at "the

time of prosecution." The importance the Court placed on the type of policy it was

interpreting further calls into question the reasoning in City of Zion and Indian Harbor,

where the courts applied "act-based" or "occurrence-based" principles to this specific

"injury-based" policy.

The Insurers also rely on St. Paul Guardian Insurance Company v. City of Newport,

No. 2:17-cv-00115-DLB-CJS, 2019 WL 6317873, *11 (E.D. Ky. July 31, 2019), appeal

docketed, No. 19-5948, (6th Cir. Aug. 27, 2019), where the court found that an insurer did

not have a duty to defend or a duty to indemnify when an individual was wrongfully

convicted before the inception of an identical policy. The court found that "to 'happen'

means 'to take place, to come to pass, occur (typically expressing simple occurrence, with

little or no implication of causality); to ensue as an effect or result.'" Id. at *8. (citing

Happen, Oxford English Dictionary Online (3d. ed. 2013)). The court also "recognize[d]

14
that every day [the plaintiff] spent in prison, [he] suffered from injury; obviously, wrongful

imprisonment and the resultant physical and dignitary harms that accompany such

confinement represents a continuous and ongoing injury." Id. Yet, despite the fact that the

court found that the plaintiff "suffered from injury" "every day he spent in prison," and that

he suffered from a "continuous and ongoing injury" throughout his confinement, the court

concluded that the plaintiff's "injuries happened decades earlier and [merely] persisted until

[his] release from prison and exoneration." Id.

We agree that incarceration is a "physical and dignitary harm" and it causes

"continuous and ongoing injury." However, we respectfully disagree with the Newport

court's conclusion because it is inconsistent with the policy's language and Missouri case

law. Under Missouri law, in contract cases the language of the contract is our first – and

often, our only – resort. We interpret contracts as a layperson would understand them and

use dictionaries to determine the meanings of terms when the insurance contract does not

provide a definition. Martin, 996 S.W.2d at 508; see, TIG Ins. Co. v. City of Elkhart, 122

F. Supp.3d 795, 804 (N.D. Ind. 2015) (“[I]t is the language of the insurance contract that

governs coverage, not some blanket judge-made rule.”). The Newport court disregarded

the plain language of the policy and the dictionary definition of "happen" and applied

various legal precedents to conclude the injury "happened" decades prior to the issuance

of the policy. See Mitchell, 925 F.3d at 241-42; City of Zion, 18 N.E.3d at 200; City of

Waukegan, 82 N.E.3d at 835-36; Sarsfield v. Great Am. Ins. Co. of N.Y., 833 F.Supp.2d

125, 130-31 (D. Mass. 2008). We fail to see how a court can recognize that a plaintiff

"suffer[s]" a "continuous and ongoing injury" every day they are imprisoned, and yet

15
conclude that injury did not "happen" throughout his or her incarceration. Because a

layperson purchasing an insurance policy would not and cannot be expected to know the

intricacies of these legal precedents, we decline to adopt the Newport court's reasoning.

The final case the insurer's rely on is Lee's Summit v. Missouri Public Entity Risk

Management, 390 S.W.3d 214, 219 (Mo. App. W.D. 2012), where we determined when an

occurrence-based policy was triggered in cases of malicious prosecution. In that case,

Theodore White ("White") brought suit under Section 1983 for inter alia malicious

prosecution, wrongful conviction and imprisonment, conspiracy, and suppression of

evidence. Id. at 217. Missouri Public Entity Risk Management ("MOPERM") insured the

City of Lee's Summit, whose police department investigated White, who was prosecuted

three times.9 Id. MOPERM's policy provided coverage for each "occurrence," which was

defined as "an act . . . that results in injury or damages." Id. at 218. However, the policy

also contained a "deemer" clause which provided that "all injuries or damages arising out

of continuous or repeated exposure to substantially the same general conditions shall be

considered as arising out of one occurrence." Id. (emphasis added). We concluded that

the "circumstances justifying application of a multiple trigger [were] absent," and because

MOPERM's policy was not in effect at the time White was originally charged with the

criminal offense, therefore MOPERM did not have a duty to indemnify under the terms of

the policy. Id. at 222.

9
In 1999, White was convicted at his first trial, but the conviction was later reversed. White's second trial
in 2004 resulted in a hung jury, and White was acquitted at his third trial in 2005. Lee's Summit, 390 S.W.3d at 217.

16
 Lee's Summit is easily distinguished based on the language of the policy at issue in

that case. In Lee's Summit, the court construed an occurrence-based policy rather than an

injury-based policy, and MOPERM's policy contained a "deemer" clause. In sharp

contrast, St. Paul's policy plainly and unambiguously provides coverage if “covered injury

or damage . . . happens while this agreement is in effect," and the policy does not deem all

injury caused by a single wrongful act to have occurred when the first such injury is

experienced. The policy at issue before us defines "injury" as "hurt, damage, or loss

sustained." supra. Ferguson testified that he did not have any physical injuries during his

incarceration, but at a minimum, Ferguson sustained the loss of liberty, loss of time, and

deprivation of society each day of his incarceration and the district court divided the

damages related to the year in which they were sustained. Therefore, we conclude that

Ferguson met his burden to demonstrate the Insurers have a duty to indemnify Columbia

for Ferguson's personal injuries.

B. Indemnification under the "Bodily Injury" Definition

Ferguson is entitled to an equitable garnishment if he can demonstrate that he

suffered "bodily injury" during the policy period, and the policy defines "bodily injury" as

"harm to the health of other persons," and "harm" includes "mental anguish, distress, injury,

or illness" and "emotional distress."

In Mitchell, 925 F.3d at 241-42, the court held that St. Paul had a duty to defend

because the three men's injuries fell under the definition of "bodily injury," because the

men had suffered physical and mental ailments related to their prison conditions. Dixon

alleged that he suffered multiple ailments caused by "his confinement, including staph

17
infections, chest pains, dizziness, convulsions, blurry vision, infections, . . . and suicidal

depression." Id. at 242. Dixon suffered "mental anguish, embarrassment, humiliation,

[and] emotional distress" when his petitions for early release were denied. Id. "Bivens

contracted Hepatitis C, which was not properly treated. This hepatitis in turn led to a

number of medical problems, including cirrhosis of the liver in 2008 followed by liver

cancer." Id.

In the instant case, Ferguson testified that he "was permanently damaged as a result

of [his] incarceration" but admitted he did not sustain any physical injuries during that time.

Ferguson further testified:

You can't forget the things that you saw in prison. I can't forget sitting in my
cell, hearing squeaks above me in the cell above me and hearing people fight
and somebody screaming for help and knowing there's nothing you can do
about it.

I can't forget sitting in the cell thinking that my [cellmate] at any point in
time was going to try to kill me because he didn't like the way that I lived, he
didn't like the fact that I left water on the sink, and those tense moments that
you couldn't escape from. . . . And I've had to accept the reality that, no matter
how hard I've tried to avoid thinking about these things and living with this
reality, those are the memories that I have been given.

When Ferguson was asked, "In prison, was there stimulus that caused you to become

hyperaware of noises and that sort of thing?" he testified:

The fact that they never ceased I think is something that is definitely part of
that. In prison, jail, especially the hole, people are up all night, they're
talking, they're yelling at each other, they're cussing each other out, they're
having –they're playing chess from cell to cell. . . . And so all day long, this
is all you're hearing is this barrage. And it's a concrete box, and it
reverberates. And then again at night and you're trying to go to some sleep,
and it continues.

18
When Ferguson was asked, "Did you have any experiences, specific experiences while you

were incarcerated where you were in fear of your life?" Ferguson responded, "Quite a few.

Quite a few." He described one incident with a cellmate that drew "imaginary lines," and

when Ferguson crossed one of the lines his cellmate would "snap out in an instant." The

cellmate told him that if Ferguson continued "sitting on this chair and looking at the wall,

[the cellmate] thinks I'm looking at him, that [the cellmate's] going to have to basically kick

my a** and get rid of me." Ferguson described a potential altercation as a "fight to the

death. It's you or it's them, and the consequence is either you're dead or you're getting

another charge. . . ."

Ferguson also described being in "double solitary," where he was in a "box" with

another prisoner "24/7." He described the situation as:

[W]hen that happens with another person in the cell with you and they're
losing their minds and you're watching it, and they're starting to throw stuff
around and they're cussing out the [correctional officers] and the
[correctional officers] tell you to lock down, and if you don't put the
handcuffs on, then they're going to spray you and mace you and give you a
violation. But if you do put the handcuffs on, then that guy is going to attack
you with handcuffs on, and it's going to take the [correctional officers] awhile
to open the door.

He also described another situation where a cellmate "had a lock in his sock, and he was

ready to go at any time." The cellmate wanted one of his friends to be placed in his cell

and wanted Ferguson to request a different assignment. The cellmate attempted to "drive

[Ferguson] crazy" so that Ferguson would start a fight and the cellmate could retaliate by

striking Ferguson with the lock in his sock.

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 Ferguson's testimony is similar to that in Mitchell, where he establishes distinct

harms suffered during his incarceration. We further find that the events illustrated in

Ferguson's testimony are examples of "mental anguish, distress, [or] injury" as

contemplated by the parties in the policy's definition of "bodily injury." Therefore, we

conclude that Ferguson met his burden to demonstrate the Insurers have a duty to

indemnify Columbia for Ferguson's bodily injuries.

C. Application

We recognize that it may raise concerns that we hold a policy provides coverage for

injuries resulting from a wrongful act which occurred before the policy incepted. However,

we are bound to apply the language of the policy as it is written, and as explained in detail

above, the St. Paul policy plainly and unambiguously provides coverage for injuries

sustained during the policy period even though the wrongful acts occur before the policy

period. Concerns over pre-existing torts can be addressed in other ways—such as through

requests for disclosure during the insurance application process; exclusions for wrongful

acts, injuries, or losses known to the insured at the time the policy is issued; and through a

"deemer" clause, etc. We will not address concerns over pre-existing wrongs by distorting

the plain meaning of the language which St. Paul chose to employ to describe its coverage

obligations. An insurance company is perfectly capable of providing limitations on its

coverage within the language of its policy, such as the limitations contained in the Travelers

policy at issue in this case, and they are also perfectly capable of providing broader

coverage than is required by the law regarding specific causes of action.

20
 Under the policy terms, the Insurers have a duty to indemnify Columbia for

Ferguson's injuries or damages sustained during the policy period. The circuit court found

that Ferguson sustained injuries or damages during the policy period between 2006 and

2011 under both the "personal injury" and "bodily injury" provisions. The district court

awarded Ferguson $1,000,000 for each year of incarceration for a total sum of $10,000,000.

Because Ferguson suffered injury and damage during each of the five policy years, the

circuit court properly attributed only $5,000,000 of this award to St. Paul's garnishment.

The district court also awarded Ferguson $150,000 for expenses incurred during his

original criminal trial and $854,000 in attorney's fees for the civil action in its damages

calculation. The circuit court did not include the criminal trial expenses in this equitable

garnishment, because those damages preceded the policy period, but included the attorneys'

fees for the civil action.10

Therefore, Insurers have a duty to indemnify Columbia and its officers for the sum

of $5,854,000 reduced by the "self-insured retention" clause. Each policy contains a "self-

insured retention" clause, and the trial court applied the retention clause in the Travelers

policy because it was broader, which reduced the Insurers' duty to indemnify by

$500,000.11 Thus, the circuit court's equitable garnishment of $5,354,000 was proper. The

Insurers' Point One is denied.

Insurer's Point Two

10
Ferguson does not dispute the exclusion of the criminal trial expenses, and the Insurers do not
specifically dispute the inclusion of the attorneys' fees for the civil action other than their claim that they owe no
damages at all under the policy. Therefore, we will not address these issues further.
11
The Insurers have not challenged the application of the retention clause from the Travelers policy on
appeal, and therefore, we will not further address this issue.

21
 In their second point, the Insurers allege the circuit court erred in making an

alternative finding that the St. Paul insurance policy was ambiguous. Because the express

terms of the agreement unambiguously provided coverage for injuries or damages

sustained during the policy period, we need not address the issue of ambiguity in this case.

Point two is denied.

Ferguson's Point One

The circuit court entered its judgment awarding equitable garnishment "in the

amount of $5,354,000.00, plus interest calculated at the statutory rate applicable to federal

district court judgments." In his only point raised on in his cross-appeal, Ferguson alleges

the circuit court erred in failing to provide for prejudgment interest and post-judgment

interest at the rate of nine percent required by section 408.040.2 rather than the interest rate

set forth in the underlying federal court judgment. Ferguson requests this Court remand

with instructions to enter an amended judgment to the extent necessary for Ferguson to

collect prejudgment and post-judgment interest on the award at nine percent rather than

"statutory rate applicable to federal district court judgments." The Insurers argue that

Ferguson has not preserved this error for review. We agree.

Rule 78.0712 requires a motion for new trial to be filed in order to preserve issues

for appellate review in a jury tried case. Previously, it had been held that no motion for a

new trial or motion to amend the judgment was required in a case tried without a jury to

preserve issues for appeal. However, in December of 2016 the Supreme Court amended

12
All rule references are to Missouri Supreme Court Rules (2019).

22
the provision of Rule 78.07 to add language clarifying that in a case tried without a jury a

motion for new trial or motion to amend judgment was unnecessary only if "the matter was

previously presented to the trial court."13 In Kohner Properties Inc. v. Johnson, 553

S.W.3d 280, 287 n.5 (Mo. banc 2018)(per curiam), in reviewing a bench trial, the Court

wrote that because a party "failed to raise [an allegation of error] before the circuit court

even though she could have [and] failed to file an after-trial motion raising such a violation

. . . [the] contention [was] not preserved for review in this Court." We will not convict a

trial court of error for issues that were never presented to it. Bartsch v. BMC Farms, LLC,

573 S.W.3d 737, 743 (Mo. App. W.D. 2019). Similarly, Ferguson did not raise any

objection before the circuit court regarding the interest rate to be applied to the judgment,

nor did he file a motion for a new trial or a motion to amend the judgment properly putting

this issue before the trial court for determination. Therefore, this point is not preserved for

review.

Under Rule 84.13(c), we have discretion to review plain errors affecting substantial

rights "when the court finds that manifest injustice or miscarriage of justice has resulted

therefrom." Plain error review is rarely granted in civil cases. Mayes v. St. Luke's Hosp.

of Kansas City, 430 S.W.3d 260, 269 (Mo. banc 2014). We conduct plain error review "if

there are substantial grounds for believing that the trial court committed error that is

13
The amended subsection (b) of Rule 78.07 now provides, "(b) Except as otherwise provided in Rule
78.07(c), in cases tried without a jury or with an advisory jury, neither a motion for a new trial nor a motion to
amend the judgment or opinion is necessary to preserve any matter for appellate review if the matter was previously
presented to the trial court."

23
evident, obvious and clear and where the error resulted in manifest injustice or miscarriage

of justice." Id. (internal quotation marks omitted).

Ferguson did not suffer "manifest injustice or miscarriage of justice" as a result of

the circuit court's interest award. In fact, the court adopted the very language that Ferguson

requested in his proposed judgment submitted to the trial court on July 25, 2018. A party

cannot demonstrate manifest injustice, when that party receives the relief it requested.

Therefore, we decline plain error review.

Ferguson's Point One is denied.

Conclusion

The judgment of the circuit court is affirmed.

Gary D. Witt, Judge

All concur

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