M.O. v. GEICO Gen. Ins. Co., WD84722

CourtCourt of Appeal of Missouri (US)
Writing for the CourtEDWARD R. ARDINI, JR., JUDGE
PartiesM.O., Respondent, v. GEICO GENERAL INSURANCE COMPANY AND GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellants.
Decision Date07 June 2022
Docket NumberWD84722

M.O., Respondent,
v.

GEICO GENERAL INSURANCE COMPANY AND GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellants.

No. WD84722

Court of Appeals of Missouri, Western District, Second Division

June 7, 2022


APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE S. MARGENE BURNETT, JUDGE

Before Karen King Mitchell, Presiding Judge, Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge

EDWARD R. ARDINI, JR., JUDGE

Government Employees Insurance Company and GEICO General Insurance Company (collectively "GEICO") appeal the judgment of the Circuit Court of Jackson County confirming an arbitration award finding against GEICO's insured-M.B. ("Insured")-and in favor of M.O. Insured and M.O. were in a romantic relationship. After M.O. contracted anogenital human papillomavirus ("HPV"), she submitted a settlement offer to GEICO, asserting Insured negligently infected her with the disease during sexual encounters in his automobile, and that Insured's GEICO-issued automobile insurance policy provided coverage for her injuries and losses. GEICO denied coverage and rejected her settlement offer.

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Insured and M.O. entered into an agreement pursuant to section 537.065, RSMo, [1] and agreed to arbitrate M.O.'s claims. The arbitrator found Insured negligently infected M.O. with HPV and awarded her $5.2 million in damages. Thereafter, M.O. filed this action in the trial court. GEICO moved to intervene and M.O. moved to confirm the arbitration award. The trial court granted both motions on the same date and entered judgment in favor of M.O. consistent with the arbitration award. GEICO appeals, asserting the trial court erred in confirming the arbitration award without giving GEICO a meaningful opportunity to defend its interests. For the reasons stated below, we affirm.

Factual and Procedural Background

In November of 2017, M.O. and Insured began a romantic relationship. Effective at that time was an automobile insurance policy issued by GEICO to Insured.

On February 25, 2021, M.O. submitted to GEICO a copy of a petition she intended to file against Insured, and made a final settlement offer to resolve her "claims against [Insured] for the applicable limits of $1m."[2] The petition attached to the settlement offer alleged that during "November and early December of 2017," Insured and M.O. engaged in unprotected sexual activities in Insured's vehicle, and during those sexual encounters, Insured "negligently caused or contributed to cause [M.O.] to be infected with HPV by not taking proper precautions and neglecting to inform and/or disclose his diagnosis," despite "having knowledge of his condition."

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M.O. alleged that as a result of Insured's negligence, she incurred, and will incur, "past and future medical expenses," as well as "past and future mental and physical pain and suffering." On April 7, 2021, GEICO denied coverage and refused M.O.'s settlement offer. GEICO also initiated a declaratory judgment action in federal court to establish the parties' rights and obligations under the insurance policy.

Meanwhile, on March 11, 2021, M.O. and Insured entered into a Contract to Limit Recovery to Specified Assets and Arbitration Agreement Pursuant to Section 537.065 RSMo ("065 Agreement").[3] On May 17, 2021, M.O. and Insured arbitrated M.O.'s claims, and the arbitrator thereafter issued his "Findings, Conclusions, and Award."

The award first described procedural aspects of the arbitration proceeding, including that: (1) Prior to the arbitration, Insured submitted an Arbitration Statement detailing his defense; (2) Both parties presented opening statements at the arbitration; (3) Insured was given the opportunity to cross-examine M.O.'s witnesses and elicit testimony for Insured's defense; (4) Insured submitted as exhibits three internet articles discussing HPV; (5) M.O. requested an award of $9.9 million in damages in her closing argument; and (6) In his closing argument, Insured disputed that he was aware he could transmit HPV to M.O., M.O. received HPV from him, he had a duty to disclose such diagnosis to M.O., and the amount of damages.

As to his substantive findings, the arbitrator determined that: (1) "there was sexual activity in [Insured's] automobile in November/December of 2017 which occurred in Jackson County, Missouri"; (2) the sexual activity in Insured's vehicle "directly caused, or directly contributed to

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cause, M.O. to be infected with HPV"; (3) Insured knew he had "been told that his throat cancer tumor was diagnosed as HPV positive"; (4) Insured should have disclosed his diagnosis to M.O. prior to the sexual activity that occurred, but he did not; and (5) Insured "was negligent and is liable for causing M.O. to contract HPV." The arbitrator found that "an amount that would fairly and justly compensate Plaintiff, M.O., for all of her damages and injuries is $5, 200, 000," and entered an award in that amount "in favor of Plaintiff M.O. and against the Defendant [Insured]."

On May 24, 2021, M.O. provided written notice to GEICO that she and Insured had entered into an agreement pursuant to section 537.065. The following day, M.O. initiated this action by filing her Petition for Damages in the trial court.[4] On June 10, 2021, GEICO discovered the existence of this lawsuit by monitoring Case.net (Missouri state courts' automated case management system). On June 18th, GEICO filed a motion to intervene.

On June 22nd, M.O. filed a response to GEICO's motion to intervene and a motion to confirm the arbitration award. In her motion to confirm the award, M.O. asserted she and Insured had agreed "that after an arbitration award is issued, [M.O.] will immediately seek to have the award confirmed . . . and reduced to judgment . . . and that neither party will seek judicial review of the award or attempt to have the award set aside, modified, amended or changed in any way unless by express written agreement of each party." On June 29th, GEICO filed a reply in support of its motion to intervene. On July 2nd, the trial court granted M.O.'s motion to confirm the arbitration award and entered judgment in favor of M.O. and against Insured in the amount of $5, 200, 000. The trial court adopted and incorporated the findings and conclusions of the arbitration award, and stated the award was attached to the judgment as Exhibit A. No exhibit was attached

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to the judgment. Also on July 2nd, after entering judgment, the trial court entered an order granting GEICO's motion to intervene.

On July 30th, GEICO filed a motion for leave to conduct discovery, a motion for new trial, and a motion to vacate the arbitration award. In the latter two motions, GEICO asserted that the arbitration award and judgment confirming it should be vacated because the award "was procured by collusion, fraud, [and] undue means," it was "contrary to public policy and §§ 537.065 and 435.350," it was the result of an invalid and unenforceable arbitration agreement, and it violated GEICO's due process rights and right to access the courts. The parties submitted additional briefing on GEICO's motions. On September 8, 2021, the trial court summarily denied all of the motions and entered a "Judgment Nunc Pro Tunc," attaching the arbitration award that was inadvertently omitted from the original judgment.

GEICO appeals, asserting three claims of error relating to the trial court's confirmation of the arbitration award-specifically, to the timing of the trial court's confirmation.[5] GEICO asserts that by confirming the arbitration award without giving GEICO a meaningful opportunity to defend its interests and develop facts and arguments pre-judgment, the trial court acted in contravention of section 537.065 and Rule 52.12 (Point I), section 435.405 (Point II), and state and federal constitutional provisions guaranteeing due process and access to the courts (Point III).

Standard of Review

"As in any court-tried case, we will affirm a trial court's judgment confirming an arbitration award unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Loveland v. Austin, 626 S.W.3d 716, 728 (Mo. App. E.D. 2021);

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see also § 435.440.2 (An appeal from an order confirming an arbitration award "shall be taken in the manner and to the same extent as from orders or judgments in a civil action.").

Point I

In its first point, GEICO asserts the trial court erred by confirming the arbitration award because section 537.065 and Rule 52.12 "give intervenors the right to meaningfully participate in the case, in that GEICO was prevented from developing facts and arguments pre-judgment." GEICO asserts that, by granting its motion to intervene after entry of judgment, the trial court deprived GEICO of the ability to participate in discovery, submit motions, "or litigate before the Trial Court." However, we find that neither the applicable version of section 537.065 nor Rule 52.12 provides GEICO with any such rights.

"Since its original enactment in 1959, § 537.065 has permitted an injured party and a tort-feasor to agree that, if the injured party obtains a judgment against the tort-feasor, the injured party will seek to collect on the judgment only from 'the specific assets listed in the contract,' and from 'any insurer which insures the legal liability of the tort-feasor.'" Knight ex rel. Knight v. Knight, 609 S.W.3d 813, 821 (Mo. App. W.D. 2020) (quoting § 537.065.1). Section 537.065 has been amended twice: once in 2017 and once in 2021. GEICO concedes that the 2021 amendments to the statute-which provide additional rights to insurers-are not applicable here; rather, the version in effect from August 28, 2017 until August 27, 2021 applies. See also Britt v. Otto, 577 S.W.3d 133, 136 n.1 (Mo. App. W.D. 2019) (applying the version of section 537.065 that was in effect on the date when the parties entered into...

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