American Family Mut. Ins. Co. v. Lacy

• Decision Date: 30 July 1991
• Docket Number: No. WD,WD
• Citation: 825 S.W.2d 306
• Parties: AMERICAN FAMILY MUTUAL INSURANCE CO., Appellant, v. William S. LACY (Defendant Ad Litem), Defendant, State Farm Insurance Co., Middlewest Freightways, Inc., Gelco Leasing, Inc., Liberty Mutual Insurance Co., Harvey Cullen and Mary Lou Cullen, John L. Turner and Joyce L. Turner, United States Fidelity and Guaranty Co., Respondents. 43112.
• Court: Missouri Court of Appeals

Page 306

825 S.W.2d 306

AMERICAN FAMILY MUTUAL INSURANCE CO., Appellant, v. William S. LACY (Defendant Ad Litem), Defendant,

State Farm Insurance Co., Middlewest Freightways, Inc.,

Gelco Leasing, Inc., Liberty Mutual Insurance Co., Harvey

Cullen and Mary Lou Cullen, John L. Turner and Joyce L.

Turner, United States Fidelity and Guaranty Co., Respondents.

No. WD 43112.

Missouri Court of Appeals,

Western District.

July 30, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Oct. 1, 1991.

Application for Transfer Sustained Nov. 19, 1991.

Case Retransferred March 24, 1992.

Court of Appeals Opinion Readopted April 1, 1992.

John Edmund Turner, Kansas City, for appellant.

William S. Lacy, defendant ad litem (appointed counsel).

Keith Alan Cary and Phillip B. Grubaugh, Kansas City, for State Farm Ins.

Jeffrey Thomas O'Connor, Kansas City, for Middlewest Freightways, Inc.

John Charles Bragg, Grandview, for Harvey and Mary Lou Cullen.

Loeb H. Granoff, Kansas City, for John L. and Joyce L. Turner.

John H. Altergott, Jr. and Cary W. Miller, Kansas City, for U.S. Fidelity and Guar.

Before SHANGLER, P.J., and KENNEDY and FENNER, JJ.

SHANGLER, Judge.

The plaintiff American Family Mutual Insurance Company brought a petition for a declaratory judgment that the acts of its insured, Timothy C. Stoffers, in colliding with a vehicle operated by John L. Turner and occupied by Harvey H. Cullen were intentional and, therefore, excluded from coverage. The insured Stoffers died in the collision, and John Turner and Joyce Turner, his wife, and Harvey Cullen and Mary Lou Cullen, his wife, all made claims against William S. Lacy, as defendant ad litem, in a pending suit. Harvey Cullen also made a claim for workers' compensation benefits for injuries from the collision and that insurer, United States Fidelity and Guaranty Company, gave notice to plaintiff American Family of its assertion of a lien upon the claim made by Cullen against American Family. The vehicle being driven by John Turner was damaged. It was owned by Gelco Vehicle Leasing and at the time of the collision was leased to Middlewest Freightways, Inc.

American Family joined as defendants in the declaratory judgment action Lacy as defendant ad litem, and John and Joyce Turner, Harvey and Mary Lou Cullen, USF & G, Gelco and Middlewest, as those who had claimed against the plaintiff American Family under the policy issued to Stoffers, now deceased. ¹

The policy of insurance issued to Stoffers by American Family contained this exclusion from coverage:

This policy does not apply to:

. . . . .

2. Bodily injury or property damage caused by an intentional act of, or at the direction of, an insured person even if the actual injury or damage is different than that which was expected or intended. [original emphasis]

The defendants Middlewest Freightways, Gelco Leasing, Liberty Mutual and USF & G moved for summary judgment at the close of discovery. The basis for the motion was that, from the evidence known, "there [was] no genuine issue of material fact that the plaintiff's insured, Stoffers, did act with specific intent to cause harm to a third party." The trial court determined there was no genuine issue of material fact as to whether the insured Stoffers acted intentionally within the exclusionary clause in the policy, and entered summary judgment on the motion. The plaintiff American Family appeals. ²

The party who moves for summary judgment bears the burden to show that no genuine issue of material fact remains, and so is entitled to judgment as a matter of law. Rule 74.04(c); Schwartz v. Larson, 797 S.W.2d 828, 832[6-11] (Mo.App.1990). That burden has two components: the initial burden of production, a burden, which if satisfied, shifts to the nonmoving party, and the ultimate burden of persuasion, which never shifts from the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). It is the scheme of the summary judgment rule that in a case, such as here, where the nonmoving party [American Family] bears the burden of proof at trial on an essential issue, that party may not rest on its pleadings to defeat the motion for summary judgment, but must "set forth specific facts showing that there is a genuine issue for trial." Rule 74.04(e). In the absence of such a response, "summary judgment, if appropriate, shall be entered against [such party]." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) ³; St. Charles County v. Dardenne Realty Co., 771 S.W.2d 828, 830[4-6] (Mo. banc 1989); Rule 74.04(e).

The evidence on which the summary judgment adjudication rests consisted of the affidavits of the litigants, the depositions and reports of the investigating officers, and other discovery materials. There is no contention on appeal that the movants for summary judgment failed their procedural burden to identify to the trial court the particular grounds for judgment as required by Rule 74.04(b) & (c). Nor was the nonmoving party formally remiss under Rule 74.04(e), but undertook response by reference to "specific facts" from the discovery materials to show that there was a genuine issue for trial. St. Charles County v. Dardenne Realty Co., 771 S.W.2d at 830[4-6].

The issue is simply whether the movant-defendants met their substantive burden to prove summary judgment under Rule 74.04 by showing that no issue of material fact remained, and so were entitled to judgment as a matter of law. Id.; Schwartz v. Lawson, 797 S.W.2d 828, 832[6-11] (Mo.App.1990). Once the movants presented to the court those components of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any" to show that there was no genuine issue of fact, they were entitled to judgment as a matter of law unless the nonmoving American Family, by affidavits or as otherwise provided in the summary judgment rule, responded to show by specific facts that a genuine issue for trial remained. Rule 74.04(c) & (e); Celotex Corp. v. Catrett, 477 U.S. at 323, 324, 106 S.Ct. at 2552, 2553; St. Charles County v. Dardenne Realty Co., 771 S.W.2d at 830[4-6]. If that response lacks or fails, "summary judgment, if appropriate, shall be entered against [the nonmoving party]." Rule 74.04(e); Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553; St. Charles County v. Dardenne Realty Co., 771 S.W.2d at 830[4-6].

The ground for summary judgment asserted by the movants was that under all the known evidence, identified and presented to the court on the motion, there was no genuine issue of material fact as to whether the insured Stoffers acted intentionally to cause harm to a third person within the meaning of the exclusionary clause of the insurance policy. The response by the nonmovant American Family against summary judgment was that a jury could infer an intentional act to produce harm from that same evidence so that a genuine issue of material fact remained for trial.

It is apparent that the litigants presented to the trial court on the motion not only all the evidence that was known, but all that was knowable. The incident from which the claims of the several defendants arise was the collision, head-on, between the Stoffers vehicle and the Turner vehicle. Stoffers ran a stop sign at high rate of speed, continued north on Holmes Road, crested a hill and then suddenly veered to the left, crossed the center line into the southbound lane and into the oncoming Turner vehicle. That mid-day episode was witnessed by two officers, deputy sheriff Cook and reserve officer Burton, who saw Stoffers run through the stop sign and then gave chase until the collision. They described pursuing the vehicle at speeds of up to 80 miles per hour with emergency lights and siren operating, catching up with Stoffers after a mile, but Stoffers refusing to slow, pull over or stop.

Cook and Burton gave their statements to Kansas City police officer Sandgren who investigated the casualty, as did Turner, the other driver, and also Crystal Stifter, who gave herself as a witness. Cook and Burton also prepared their official statements for the Cass County Sheriff's Office. The investigation report by Sandgren, as well as the reported statements by Cook, Burton, Stifter and Turner, and the separate official statements of Cook and Burton were all in evidence as deposition exhibits. The deposition testimony of Cook and Burton was in evidence separately, as was the affidavit of John L. Turner, a claimant against defendant ad litem Lacy, and a defendant in the declaratory judgment action.

The movants assert that these proofs affirmatively demonstrate that there is no evidence in the record to support a declaratory judgment that the insured Stoffers acted intentionally to harm to a third party within the meaning of the policy. American Family asserts the effect of the deposition testimony of reserve officer Burton and the official statement of deputy sheriff Cook as specific facts to show that that issue remained one of material fact so as to preclude summary judgment.

American Family cites the Burton deposition testimony that when he and Cook came to within 15 feet of Stoffers, he observed Stoffers looking at them in his rear-view mirror and at the pulsating emergency headlights, but without slowing or other indication of compliance. American Family cites also the narrative by Burton of the movements of the Stoffers Datsun and of the Turner Chevrolet as they come into collision:

Q. And did you see the Chevrolet before the collision?

A. Yes.

Q. Tell me what you saw it do?

A. Well, it was headed south, we were going north. We were in pursuit of this vehicle, being the red Datsun. He made an adjustment in steering so as to align his car up with the front of the other car.

The other car, being the Chevrolet, reacted by slowing down and pulling closer to the shoulder of the road. When he did...