In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
HONG LU, ) No. ED104I97
)
Appellant, )
)
vs. ) Appeal from the Circuit Court
) of St. Louis County
AUTOMOBILE CLUB INTER- )
INSURANCE EXCHANGE, )
)
and ) Honorable Lawrence J. Permuter, Jr.
)
CRYSTAL GUNCKEL, )
)
Respondents. ) FILED: November 22, 2016
lntroduction
Appellant Hong Lu (“Lu”) appeals the trial court’s grant of summary judgment in favor
of insurer Automobile Club Inter-Insl.lrance Exchangc (“ACIIE”) in her action for equitable
garnishment Lu Was awarded ajudgment against Crystal Gunckel (“Gunckel”) for damages
suffered by Lu while Gunckel was driving her boyfriend’s Ford Focus, which the boyfriend had
recently purchased from his father. On appeal, Lu contends that the trial court erred in granting
summaryjudgment for ACIIE because Gunckel Was an insured under the father’s automobile
insurance poiicy-. Lu alternatively argues that the insurance coverage on the Ford Focus was in
force on the date of the accident because Section 303.210l required ACHE to give ten days’
notice to the Director of Revenue (the “Director”) before ACIIE could terminate insurance
coverage on the Ford Focus, which did not occur here. The material facts are not genuinely
disputed Because Gunckel was not an insured under the father’s poiicy, and because Section
303.210 did not require ACIIE to give notice of its actions to the Director, the trial court did not
err in granting summary judgment for ACIIE. We affirm.
Factual and Procedural Historv
The dispute centered around ACIIE’s liability on an automobile insurance policy.
Viewed in the fight most favorable to Lu, the record contains the following uncontroverted facts.
ACIIE issued an automobile insurance policy to Thomas Sanders (“Father”)2 and his
wife, who were the named insureds The policy ran from June 3 through December 3, 2014, and
listed Father’s Ford Focus (the “Ford”) as an insured vehicle.
On Novernber 20, 2014, Father sold the Ford to his son, Jonathan Sanders (“Son”).
Father and Son executed the certificate of title originally issued to Father for the Ford, and then
Father permanently relinquished possession of the vehicle to Son.3 Five days later Father
informed ACIIE of the Ford’s sale. ACIIE amended Father’s policy to remove the Ford from the
policy’s declarations page, effective November 20, 2014.4
1 Ail statutory references are to RSMo (2000), unless otherwise noted.
2 We use “Falher" and “Son” for Thomas and Jonathan Sanders to provide ciarity. We intend no disrespect
3 ACilE submitted this proposed undisputed material fact: “On November 20, 2014, Thomas T. Sanders sold his
2003 Ford Focus to his son, Jonathan T. Sanders and permanently relinquished possession at that time.” Lu objected
to the authenticity of the underlying exhibit in her response, but did not otherwise dispute ACIIE’s proposed
uncontroverted fact. The trial court subsequently granted leave for ACIIE to file a certified copy of the executed
certificate of title, which ACIIE did, and Lu made no further objections Thus, we treat both the certificate of title
and the fact that Father permanentiy relinquished possession of the Ford as undisputed facts. Rule 74.04(0)(2).
4 Son registered the Ford after the accident, and the State of Missouri issued him a new certificate of title on
December S, 20|4.
Six days after the sale, on Novernber 26, Lu was involved in a car accident with Gunckel.
Gunckel was Son’s girlfriend at the time and was driving the Ford with Son’s permission.
Gunckel was not a member of Father’s household5
After the accident, Lu sued Gunckel for the property damage to her vehicle stemming
from the collision and was awarded ajudgment for $15,078. Subsequently, Lu sued ACIIE for
equitable garnishment under Sectlon 379.200. Lu claimed that ACIIE was liable for the damage
caused by Gunckel under Father’s automobile insurance policy. The relevant policy provisions
will be discussed in detail below. Lu and ACIIE filed cross-motions for summary judgment
Without explanation, the trial court granted ACIIE’s motion, denied Lu’s motion, and entered
judgment in favor of ACIIE and against Lu. This appeal follows.
Point on Appeal
in her sole point on appeal, Lu argues that the trial court erred in granting summary
judgment in favor of ACIIE. Lu contends that because Gunckel Was an insured under Father’s
policy at the time of the accident, ACHE insured against Gunckel’s negligence Lu alternatively
asserts that even if the revised terms of the policy no longer covered the Ford, the original
coverage nevertheless was still in place because Section 303.210 required ACHE to continue
coverage on the Ford for ten days after ACIiE notified the Director that the Ford was removed
from Father’s policy, which did not occur here.
5 ACIIE supported this fact with an affidavit from Father. In her response to ACllE’s proposed fact, Lu objected
that the issue of whether Gunckel was a member of Father’s household called for a legal conclusion. This objection
was irnproper: “Whether a person lived in another’s household is a question of fact.” Reed v. Am. Standard Ins.,
231 S.W.3d 851, 853 (Mo. App. W.D. 2007). Lu did not otherwise submit evidence to create a dispute as to this
fact. Rulc 74.04(0)(2). Because I_.u failed to create a genuine dispute, we accept as undisputed that Gunckel was not
Father’s household member.
Standard of Review
When considering an appeal from a grant of summaryjudgment, our review is essentially
de novo. ITT Commercial Fin. Corn. v. Mid-Am. Marine Supplv Corp., 854 S.W.Zd 371, 376
(Mo. banc 1993). As the trial court’s judgment is founded on the record submitted and the law,
we need not defer to the trial court’s order granting summary judgment I_d. We review the
record in the light most favorable to the party against whom judgment was entered, and the non-
movant receives the benefit of all reasonable inferences from the record. ch We will affirm
where the pleadings, depositions, aftidavits, answers to interrogatories, exhibits, and admissions
establish that no genuine issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Stanbrough v. Vitek Solutions. Inc.. 445 S.W.3d 90, 96 (Mo. App.
E.D. 2014).
Discussion
Under Rule '74,04(0),6 a defending party_here, ACIIE_may establish the right to
judgment as a matter of law by demonstrating: (1) facts negating any one of the elements of the
non~movant’s claim; (2) “that the non-movant, after an adequate period for discovery, has not
been able and will not be able to produce sufficient evidence to allow the trier of fact to find the
existence of any one” of the elements of the non-movant’s claim; or (3) “that there is no genuine
dispute as to the existence of the facts necessary to support movant’s properly pleaded
affirmative defense.” Goerlitz v. Citv of Maryville. 333 S.W.3d 450, 453 (Mo. banc 2011)
(quoting ITT Commercial Fin. Corp., 854 S.W.Zd at 381). “Each of these three methods
individually ‘establishes the right to judgment as a matter of law.”’ I_d.
6 All rule references are to Mo. R. Civ. P. (2016).
Once the defending party establishes this prima facie case, the burden shifts to the non-
movant. ITT Commercial Fin. Corp., 854 S.W.2d at 381. At this point, “the non-movant’s only
recourse is to show_by affldavit, depositions, answers to interrogatories, or admissions on
file_that one or more of the material facts shown by the movant to be above any genuine
dispute is, in fact, genuinely disputed.” l_c_l_. (Emphasis in original.) The non-movant may not
rest on mere allegations or denials of fact; the response shall set forth specific facts with
evidentiary support showing that there is a genuine issue for trial. Ld.; Rule 74.04(c)(2).
Here, Lu asserted a claim against ACIIE for equitable garnishment under Section
379.200. ln a Suit for equitable garnishment, the injured party can seek recovery against the
tortfeasor’s insurer. Carroll v. Missouri Intergovernmental Risk Mgmt. Ass’n, 181 S.W.3d 123,
126 (Mo. App. W.D. 2005). “An equitable garnishment action consists of proof that plaintiff has
obtained ajudgment in his favor against an insurance company’s insureds during the policy
period and the injury is covered by the insurance policy.” Peck v. Alliance Gen. Ins. Co.. 998
S.W,Zd 71, 74 (Mo. App. E.D. 1999).
To support the grant of sulnrnaryjudgment, ACIIE argues that the undisputed facts
negated Lu’s equitable-gainishment claim. §e_e Goerlitz, 333 S.W.3d at 453. ACIIE asserts that
Father’s policy did not cover Gunckel’s use of the F ord because the evidence is undisputed that
Gunckel was not an insured under Father’s policy at the time of the accident. Thus, because
Father’s policy did not cover Gunckel when the accident occurred, Lu could not assert an
equitable-garnishment claim against ACIIE.
Lu, on the other hand, maintains that Guncl