Geisner v. Budget Rent a Car of Missouri
| Decision Date | 03 August 1999 |
| Docket Number | ED75325 |
| Citation | 999 S.W.2d 265 |
| Parties | This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Jeffrey Geisner, Keith Geisner, a Minor by his Next Friend, Janis Geisner, Al Geisner, and Janis Geisner, Plaintiffs/Respondents, v. Budget Rent a Car of Missouri, Defendant/Appellant, and Thomas E. Hudson, Intervenor/Respondent. Case Number: 75325 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Cape Girardeau County, Hon. William L. Syler
Counsel for Appellant: Jerry M. Merrell
Counsel for Respondent: J. Michael Ponder
Opinion Summary: Budget Rent A Car (Budget) appeals the summary judgments entered in favor of the Geisner family (Plaintiffs) and Thomas E. Hudson (Passenger) in their actions for equitable garnishment of an insurance policy.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Southern Division holds: (1) No genuine issue of material fact remained as to the reasonableness of a section 537.065 settlement contract between Plaintiffs and Budget's insured, where Budget neither pleaded nor offered evidence that the contract was unreasonable. (2) Budget was not prejudiced by the trial court's finding that the judgment against Budget's insured was reasonable. (3) No genuine issue of material fact remained as to whether Budget received timely notice of Plaintiffs' action against Budget's insured because Budget neither pleaded nor proved prejudice. (4) The trial court erred in entering summary judgments against Budget in excess of its limits of liability under the insurance policy. (5) The trial court erred in awarding Plaintiffs compound interest on their judgment, where no exception to the rule against compound interest applied.
Opinion Vote: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Rhodes Russell, P.J., and Mooney, J., concur.
Budget Rent A Car ("Budget") appeals the summary judgments entered in favor of the Geisner family ("Plaintiffs") and Thomas E. Hudson ("Passenger"),1 in their actions for equitable garnishment of an insurance policy pursuant to section 379.200 RSMo 1994.2 We affirm in part and reverse in part and remand.
When considering appeals from summary judgments, the record is viewed in the light most favorable to the non-movant, and the non-movant is given the benefit of all reasonable inferences. J.M. v. Shell Oil Co., 922 S.W.2d 759, 761 (Mo. banc 1996). If a genuine issue of fact exists, summary judgment cannot be granted. Hallmark v. Haenni, 904 S.W.2d 31, 33 (Mo. App. 1995).
The relevant facts are as follows. Passenger rented a car from Budget. The next day, Passenger's wife ("Driver") was involved in a two car automobile accident while driving the rental car. Passenger was with her in the car at the time of the accident and sustained injuries from the accident. Jeffrey Geisner and Keith Geisner, a minor, were in the other car and were also injured.
At the time of the accident, Driver was covered by a $750,000 automobile liability insurance policy issued to Budget by Associated International Insurance Company ("Associated"). Under the policy, Budget was liable for the first $250,000 of any covered loss, as a self-insured endorsement.
Budget received notice of the accident the day it happened and denied coverage three weeks later. Plaintiffs filed suit against Driver for injuries sustained in the accident by Jeffrey and Keith Geisner. Budget learned of the action only 16 days before trial. Prior to trial, Plaintiffs entered into a settlement contract with Driver, pursuant to section 537.065 RSMo 1986, whereby any judgment obtained against Driver would be satisfied against only Budget or any insurance company insuring Budget. Driver also assigned Plaintiffs all her rights against Budget and Associated. Driver did not admit liability and the settlement contract states that she "continues to deny that she was at fault...."
After a bench trial the court held Driver to be at fault and entered judgment in favor of Plaintiffs as follows: $100,000 for Jeffrey Geisner, $100,000 for Keith Geisner, and $15,000 for their parents. Subsequent to that judgment, Passenger brought an action against Driver and Jeffrey Geisner for injuries Passenger sustained in the accident. Passenger dismissed his claim against Geisner with prejudice and entered into a settlement contract with Driver pursuant to section 537.065. Following a bench trial, the court entered judgment for Passenger against Driver for $100,000.
Plaintiffs brought this equitable garnishment action pursuant to section 379.200 to satisfy their judgment against Driver. Passenger intervened in the case seeking the same remedy. Budget then filed a third party claim against State Farm Mutual Automobile Insurance Company seeking a declaration that Driver's State Farm liability insurance policy provided primary coverage for the loss in question and Budget's coverage was excess or non-existent. State Farm filed a motion for summary judgment, arguing that Budget's coverage was primary and in the amount of $250,000. The trial court granted State Farm summary judgment against Budget and certified it as final pursuant to Rule 74.01(b). Budget appealed the judgment and we affirmed. Geisner v. Budget Rent A Car of Missouri, 967 S.W.2d 95 (Mo. App. 1998).
Plaintiffs and Passenger then filed motions for summary judgment against Budget, claiming that no genuine issue of material fact remained after the trial court determined that Budget provided coverage to Driver. The trial court entered summary judgment for Plaintiffs in the amount of $215,000 plus annually compounded interest from January 6, 1994, and for Passenger in the amount of $100,000 plus compound interest.
In its first point, Budget claims the trial court erred in entering summary judgment for Plaintiffs because a material fact existed as to whether the settlement contract between Plaintiffs and Driver was reasonable and enforceable. As Budget elected not to participate in Plaintiffs' action against Driver, it bore the burden of proving the unreasonableness of the settlement contract. Gulf Ins. Co. v. Noble Broadcast, 936 S.W.2d 810, 816 (Mo. banc 1997). Budget, however, neither raised the issue in its answer to Plaintiffs' petition,3 nor presented evidence of the contract's unreasonableness. Accordingly, there was no genuine issue of material fact as to the reasonableness of the settlement contract between Plaintiffs and Driver. Point denied.
In its second point, Budget argues that the trial court erred in finding that Plaintiffs' judgment against Driver was reasonable because no evidence supported that finding. In view of our holding above that Budget failed to put the reasonableness of the settlement contract in issue, Budget cannot have been prejudiced by the trial court's finding. Point denied.
In its third point, Budget argues that the trial court erred in entering summary judgment for Plaintiffs because an issue of material fact remained as to whether Budget received sufficient notice of Plaintiffs' action against Driver. An insurer must plead prejudice resulting from an insured's failure to provide timely notice of a claim as an affirmative defense. Weaver v. State Farm Mut. Auto. Ins. Co., 936 S.W.2d 818, 821 (Mo. banc 1997). Budget failed to plead prejudice resulting from Driver's alleged failure to provide timely notice of Plaintiffs' action against her. Accordingly, whether Budget received timely notice of Plaintiffs' claims was immaterial. Point denied.
Budget next argues that the trial court erred in entering summary judgment for Plaintiffs and Passenger in an aggregate amount exceeding Budget's self-insured retention on the Associated policy. We agree. This Court specifically held that under Budget's self-insured retention it is responsible for only the first $250,000 of exposure on the Associated policy. Geisner v. Budget Rent A Car of Missouri, 967 S.W.2d at 97. However, after this Court affirmed State Farm's summary judgment, the trial court held Budget liable to Plaintiffs and Passenger in an aggregate amount of $315,000, excluding interest.
In Corder v. Morgan Roofing Co., 195 S.W.2d 441, 448 (Mo. 1946), the Missouri Supreme Court held that proceedings under the general execution garnishment statute4 are "only for the purpose of reaching and applying the amount due on an insurance policy to the satisfaction of their judgment." Id. at 448 (emphasis in original). An insurer may not...
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