Hudson Specialty Ins. Co. v. Brash TYGR, LLC

Decision Date04 May 2012
Docket NumberCase No. 11–00306–CV–W–SWH.
PartiesHUDSON SPECIALTY INSURANCE COMPANY, Plaintiff, v. BRASH TYGR, LLC, et al., Defendants.
CourtU.S. District Court — Western District of Missouri

OPINION TEXT STARTS HERE

Meghan E. Lewis, Dale Lee Beckerman, Deacy & Deacy, LLP, Kansas City, MO, for Plaintiff.

Brian S. Franciskato, Dean Nash, Nash & Franciskato Law Firm, L. Benjamin Mook, Peterson & Associates, Kansas City, MO, for Defendants.

ORDER

SARAH W. HAYS, United States Magistrate Judge.

On March 30, 2012, the Court entered an order denying that portion of Defendants' Motion for Summary Judgment which sought to preclude the Court from considering insurance coverage issues on a theory based on the doctrine of collateral estoppel. ( See Order, doc. # 47) The Court then held oral argument on Plaintiff's Motion for Summary Judgment and the remaining issues in Defendants' Motion for Summary Judgment. Based upon the pleadings and arguments of the parties, the Court concludes that there are no material, undisputed facts with respect to the insurance coverage issues. For the following reasons, the Court grants Defendants' Motion for Summary Judgment and denies Plaintiff's Motion for Summary Judgment.

I. UNDISPUTED FACTS
A. Facts Relating to the Sonic Drive–In

1. Brash Tygr, LLC, is a Missouri Limited Liability Company. (Articles of Organization, attached as Exhibit C to doc. # 9) (Plaintiffs' Uncontroverted Facts (hereinafter “PUF”) # 10, doc. # 9)

2. Brash Tygr, LLC, has owned and operated the Sonic Drive–In of Carrollton, Missouri since 1994. (G. Roush's Dec. 10, 2010 Affidavit, ¶¶ 5 & 6, attached as Exhibit D to doc. # 9) (PUF # 11, doc. # 9) 3. On August 3, 2009, Brash Tygr, LLC, did business as Sonic Drive–In of Carrollton, Missouri. (Exhibit 1, Finding 5; Exhibit 4, ¶ 5; Exhibit 5, ¶ 5) (Defendants Uncontroverted Facts (hereinafter “DUF”) # 4, doc. # 13)

4. Roush Investments, Inc. is a Missouri Corporation. (G. Roush Dep. 19:3–16, attached as Exhibit E to doc. # 9) (PUF # 12, doc. # 9)

5. Roush Investments, Inc. owns a 70% interest in Brash Tygr, LLC. (G. Roush Dep. 21:11–15, 23:12–21, attached as Exhibit E to doc. # 9) (PUF # 13, doc. # 9)

6. George Roush and Sharon Roush each own 50% of Roush Investments, Inc. (G. Roush Dep., 30:24–31:4, attached as Exhibit E to doc. # 9) (PUF # 14, doc. # 9)

7. George Roush is the President of Roush Investments, Inc. (Affidavit of G. Roush at ¶ 3, attached as Exhibit D to doc. # 9) (PUF # 15, doc. # 9)

8. George Roush works at Sonic Drive–In of Carrollton, Missouri, pays the bills owed by Sonic, writes the payroll checks for employees of Sonic, has the authority to sign checks on behalf of Sonic, and authority to hire the general manager of Sonic. (G. Roush Dep. 34:35–35:3, 35:17–37:2, attached as Exhibit E to doc. # 9) (PUF # 17, doc. # 9)

9. Jeff Ports, through the entity KEP Holdings, Inc. owns a 20% interest in Brash Tygr, LLC. (G. Roush Dep. 20:4–17, 22:21–23, attached as Exhibit E to doc. # 9) (PUF # 18, doc. # 9)

10. Brandon Roush owns a 5% interest in Brash Tygr, LLC. (G. Roush Dep. 21:11–15, attached as Exhibit E to doc. # 9) (PUF # 19, doc. # 9)

11. Tyler Roush owns a 5% interest in Brash Tygr, LLC. (G. Roush Dep. 21:11–15, attached as Exhibit E to doc. # 9; T. Roush Dep. 67:20–68:7, attached as Exhibit F to doc. # 9) (PUF # 20, doc. # 9)

12. On August 3, 2009, Sharon Roush was an employee of Brash Tygr, LLC. (Defendant Brash Tygr, LLC's Responses to Plaintiffs' Requests for Admission at ¶ 15, attached as Exhibit 4 to doc. # 19)(DUF # 16, doc. # 10; DUF # 17, doc. # 19)

13. On August 3, 2009, Tyler Roush was not an employee of Sonic and received no income from Sonic other than any profits from his 5% ownership share of Brash Tygr. (Exhibit D to doc. # 9 at ¶¶ 7–10; Exhibit H to doc. # 9 at ¶ 2) (PUF # 36, doc. # 9)

14. Tyler Roush was last employed by Sonic in 1990. (Exhibit H to doc. # 9 at ¶ 3; Exhibit D to doc. # 9 at ¶ 10)(PUF # 37, doc. # 9)

B. Facts Relating to the Operation Agreement of Brash Tygr, LLC

14. On August 3, 2009, Tyler Roush was a Managing Member of Brash Tygr, LLC. 1 (Findings of Fact and Conclusions of Law, Miller v. Roush, Case No. 09CR–CC00147–01, Circuit Court of Ray County, April 21, 2011, at Finding 1, 3 and 4 attached as doc. # 19–1; Operation Agreement of Brash Tygr, Limited Liability Company, ¶ VII. 1, p. 8, attached as Exhibit 2; Defendants' Answer to Plaintiffs' Second Amended Petition in the Underlying Action, ¶ 68, attached as Exhibit 3; Defendant Brash Tygr LLC's Responses to Plaintiffs' Requests for Admission in the Underlying Action, ¶ 1, attached as Exhibit 4; Defendant Tyler Roush's Responses to Plaintiffs' Requests for Admission in the Underlying Action, ¶ 1, attached as Exhibit 5) (DUF # 1, doc. # 13)

16. Managing Member is defined by the Operation Agreement as “A Member selected to manage the affairs of the Company under Article VII hereof.” (Article I DEFINITIONS, ¶ 31 of the Operation Agreement of Brash Tygr, attached as Exhibit 2 to doc. # 19)

17. Article VII of the Operation Agreement provides in part:

1. Original Managing Members–The ordinary and usual decisions concerning the business affairs of the Company shall be made by the Managing Members. There shall be three Managing Members who must be Members of the Company. The initial Managing Members shall be:

Roush Investments, Inc.

Brandon Roush

Tyler Roush

2. Term of Office as Managing Member–No Managing Member shall have any contractual right to such position. Each Managing Member shall serve until the earliest of:

2.1 the Dissociation of such Managing Member;

2.2 removal of the Managing Member.

3. Authority of Members to Bind the Company–The Members hereby agree that only the Managing Members and authorized agents of the Company shall have the authority to bind the Company. No Member other than a Managing Member shall take any action as a Member to bind the Company, and shall indemnify the Company for any costs or damages incurred by the Company as a result of the unauthorized action of such Member. Each Managing Member has the power, on behalf of the Company, to do all things necessary or convenient to carry out the business and affairs of the Company, including, without limitation: ...

(Operation Agreement of Brash Tygr, doc. # 19–2)

C. Facts Relating to the August 3, 2009 Accident

18. On or about August 3, 2009, Tyler Roush was operating a 1996 Lincoln Town Car in Carrollton, Missouri when he was involved in an accident with Lloyd Miller, a pedestrian at the time of the accident. (First Amended Petition at ¶ 19, attached as Exhibit A to doc. # 9) (PUF # 3, doc. # 9)

19. On August 3, 2009, shortly before the accident, Tyler Roush made a deposit of Sharon Roush's check, at the request of his mother, to her personal account at Carroll County Trust Company. (T. Roush Dep. 87:18–88:1, attached as Exhibit F to doc. # 9; Polen Dep. 17:13–17, attached as Exhibit I to doc. # 9; Suess Dep. 78:21–79:17, attached at Exhibit S to doc. # 44–1) (PUF # 4, doc. # 9)

20. After leaving Carroll County Trust Company on August 3, 2009, Tyler Roush proceeded to the U.S. Post Office in Carrollton, Missouri to send personal mail for Sharon Roush. (T. Roush Dep. 84:20–22, 85:12–16, attached as Exhibit F to doc. # 9) (PUF # 5, doc. # 9)

21. As he was proceeding to the U.S. Post Office in the 1996 Lincoln Town Car, Tyler Roush was involved in the accident with Lloyd Miller. (T. Roush Dep. 88:18–89:22, T. Roush Affidavit at ¶ 10, attached as Exhibit H to doc. # 9: Suess Dep. 78:21–79:17, attached as Exhibit S to doc. # 44–1) (PUF # 6, doc. # 9)

22. The 1996 Lincoln Town Car operated by Tyler Roush on August 3, 2009 was owned by Tyler Roush and Sharon Roush. (Copy of Title for 1996 Lincoln Town Car, attached as Exhibit J to doc. # 9; S. Roush Dep. at 11:20–12:4, attached as Exhibit K to doc. # 9) (PUF # 7, doc. # 9)

D. Facts Relating to the Bank Bags

23. Brash Tygr, LLC, used bank bags provided by Carroll County Trust Company to make deposits to Brash Tygr, LLC's checking account at Carroll County Trust Company. (Hudson's Response to DUF # 5, doc. # 36)

24. On occasions before August 3, 2009, a representative of Brash Tygr, LLC, periodically went to Carroll County Trust to retrieve the Sonic bank deposit bags. (Hudson's Response to DUF # 6, doc. # 36)

25. While Tyler Roush was in Carroll County Trust Company on August 3, 2009, a bank employee handed him bank deposit bags for Sonic Drive–In of Carrollton, Missouri. (Exhibit F to doc. # 9 at 87:18–88:12, 81:7–18) (PUF # 41, doc. # 9)

26. Tyler Roush did not ask for the bank deposit bags when he was in Carroll County Trust Company on August 3, 2009. (Exhibit F to doc. # 9 at 81:7–18, 133:12–14) (PUF # 42, doc. # 9)

27. On August 3, 2009, Tyler Roush did not make any deposits for Brash Tygr, LLC d/b/a Sonic Drive–In of Carrollton, Missouri, at Carroll County Trust Company. (Exhibit I to doc. # 9 at 12:22–25; Exhibit H to doc. # 9 at ¶¶ 7, 8) (PUF # 43, doc. # 9)

28. Tyler Roush did not go to Carroll County Trust Company for any reason related to Sonic Drive–In of Carrollton, Missouri. (Exhibit H to doc. # 9 at ¶ ¶ 7–9, 17; Exhibit F to doc. # 9 at 84:20–22, 85:12–19, 87:25–88:1) (PUF # 44, doc. # 9)

29. No one involved in the operations of Brash Tygr on August 3, 2009 asked Tyler Roush to go to Carroll County Trust Company for a business purpose of Brash Tygr d/b/a Sonic Drive–In of Carrollton, Missouri. (Exhibit H to doc. # 9 at ¶ 5)(PUF # 45, doc. # 9)

30. Tyler Roush had never picked up bank deposit bags for Sonic Drive–In of Carrollton, Missouri before or after August 3, 2009. (Exhibit F to doc. # 9 at 80:25–81:13) (PUF # 46, doc. # 9) 31. Bank deposit bags from Carroll County Trust Company are not necessary to make deposits. (Exhibit I to doc. # 9 at 38:11–16; Exhibit D to doc. # 9 at ¶ 17) Carroll County Trust Company uses bank deposit bags as a form of advertising. (Exhibit I to doc. # 9 at 38:17–19)(PUF 49 and 50, doc. # 9)

32. Tyler...

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