242 S.W.3d 718 (Mo.banc. 2008), S.C. 88764, Gavan v. Bituminous Cas. Corp.

Docket Nº:S.C. 88764.
Citation:242 S.W.3d 718
Party Name:Bryan GAVAN, Appellant, v. BITUMINOUS CASUALTY CORPORATION, et al., Respondents.
Case Date:January 15, 2008
Court:Supreme Court of Missouri

Page 718

242 S.W.3d 718 (Mo.banc. 2008)

Bryan GAVAN, Appellant,



No. S.C. 88764.

Supreme Court of Missouri, En Banc.

January 15, 2008

Appeal from Circuit Court of St. Louis County, Hon. Barbara Ann Crancer.

Page 719

Matthew J. Padberg, Anna E. Spink, St. Louis, MO, for Appellant.

Joseph L. Leritz, St. Louis, MO, for Respondents.

Michael A. Dallmeyer, Adam R. Troutwine, Jefferson City, MO, for Amicus Curiae.



Bryan Gavan brought an action for declaratory judgment and equitable garnishment against Bituminous Casualty Corporation and Bituminous Fire & Marine Insurance Company to establish coverage and collect the proceeds under comprehensive general liability and umbrella insurance policies issued to Gavan's employer. The trial court entered summary judgment in favor of defendants, and Gavan appealed. After opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const. art. V, sec. 10. The judgment is affirmed.

From 1996 to 2000, Ste. Genevieve Building Stone Company periodically employed Gavan as its workload demanded. He was so employed on May 15, 2000, when, while working as a bricklayer, he was injured when a ladder on which he was standing collapsed. As a result of his injuries, Gavan sought and received workers' compensation benefits.

Gavan also brought suit against two co-employees, Brace and Gotsch, who worked at the construction site with Gavan, and he subsequently entered into a settlement agreement with them. Under the terms of the agreement, Brace and Gotsch consented to entry of judgment against them, provided that the judgment would only be satisfied from the proceeds of Ste. Genevieve's insurance policies. Thereafter, judgment was entered in favor of Gavan in the amount of $2,300,000, and Gavan then filed the action at hand against the defendant insurance companies. Gavan alleged that under the policies, defendants were required "to pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' . . ." and further alleged that Brace and Gotsch were "insured persons" under the policies.

Defendants denied coverage on the ground that the policies expressly exclude coverage for employees who cause bodily injury "to a 'co-employee' while that 'co-employee' is either in the course of his or her employment or performing duties related to the conduct of [the] business ...." The policies define "employee" to include a "leased worker," but not a "temporary worker." A leased worker is then defined as "a person leased to [the policyholder] by a labor leasing firm . . . to perform duties related to the conduct of [the] business," but the policies specify that a " '[l]eased worker' does not include 'temporary worker.' "Temporary worker," in turn, is defined as "a person who is furnished to [the policyholder] to substitute for a permanent 'employee' on leave or to meet seasonal or

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short-term workload conditions." (emphasis added).

In granting summary judgment for defendants, the trial court applied these policy definitions and determined that Gavan was a co-employee and that there was no coverage due to the co-employee exclusion. Gavan contends, however, that he was not a co-employee but rather a temporary worker and, as such, was not subject to the co-employee exclusion. Resolution of the case turns on the proper interpretation of the definition of "temporary worker" and, in particular, whether Gavan was a person who was "furnished" to the employer, Ste. Genevieve.

The standard of review for summary judgment is de novo. ITT Comm'l Fin. Corp. v. Mid

Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc...

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