Hong Lu v. Automobile Club Inter-Insurance Exchange and Crystal Gunckel

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