State ex rel. Country Mut. Ins. Co. v. May

• Decision Date: 06 April 2021
• Docket Number: No. SC 98650,SC 98650
• Citation: 620 S.W.3d 96
• Parties: STATE EX REL. COUNTRY MUTUAL INSURANCE COMPANY, Relator, v. The Honorable Brian H. MAY, Respondent.
• Court: Missouri Supreme Court

620 S.W.3d 96

STATE EX REL. COUNTRY MUTUAL INSURANCE COMPANY, Relator,

v.The Honorable Brian H. MAY, Respondent.

No. SC 98650

Supreme Court of Missouri, en banc.

Opinion issued April 6, 2021

The insurance company was represented by Richard I. Woolf and Lisa A. Larkin of Baker Sterchi Cowden & Rice LLC in St. Louis, (314) 345-5000.

Woodson was represented by Michael Rene Durham, Richard K. Dowd, Doublas P. Dowd and Alex R. Lumaghi of Dowd & Dowd PC in St. Louis, (314) 621-2500.

Patricia Breckenridge, Judge

COUNTRY Mutual Insurance Co. petitions this Court for a writ to prohibit the Honorable Brian H. May (Respondent) from taking any action in the case other than granting its timely filed application for a change of judge. Rule 51.05 provides intervenors with the right to a change of judge, and, after COUNTRY Mutual was granted leave to intervene, it filed a timely application for a change of judge. Upon COUNTRY Mutual's filing of its application for change of judge, Respondent had no authority to take any action in the case other than to grant the application. Therefore, Respondent is directed to vacate his orders entered after COUNTRY Mutual filed its application for change of judge and to sustain the application for change of judge. The preliminary writ in prohibition is made permanent.

Factual and Procedural Background

COUNTRY Mutual issued a homeowner's insurance policy to Silver Franklin. While the policy was in effect, Mr. Franklin worked for Action ATM, Inc., servicing ATMs in the St. Louis area. In August 2015, Mr. Franklin visited a St. Louis QuikTrip to service the ATM located there. At the QuikTrip, Mr. Franklin became engaged in an altercation with another man, Donte Woodson, and negligently discharged his firearm, fatally wounding Mr. Woodson.

Mr. Woodson's parents, Ithiwa Woodson and Robert Beene, filed a wrongful death suit against Mr. Franklin,¹ and the parties subsequently entered into a contract to limit recovery under section 537.065.² Pursuant to the terms of the section 537.065 agreement, Mr. Franklin consented to judgment in the parents’ favor, and, in exchange, the parents agreed to limit their recovery on that judgment to the proceeds of his COUNTRY Mutual policy and his employer's commercial policy. The parents notified COUNTRY Mutual of the section 537.065 agreement within 30 days of entering into the contract. Upon receiving notice, COUNTRY Mutual filed a motion to intervene and stay the proceedings while its contractual obligation to provide coverage was determined in a declaratory judgment action pending in federal court.

On December 17, 2019, Judge David Lee Vincent III sustained COUNTRY Mutual's motion to intervene but overruled its motion to stay the proceedings. Judge Vincent then entered an order of recusal on December 20, and the case was reassigned to Respondent on December 23. On January 16, 2020, COUNTRY Mutual filed an application for change of judge under subdivisions (a) and (b) of Rule 51.05.

Although Respondent noted COUNTRY Mutual had timely filed its application for change of judge pursuant to Rule 51.05, he entered an order denying the application. The order indicated Respondent interpreted section 537.065.2 to give insurers the right to intervene but the statute did not abrogate prior case law that prohibited insurers from participating in litigation after refusing to defend without reservation. After Respondent denied COUNTRY Mutual a change of judge, COUNTRY Mutual attempted to conduct discovery by noticing up the video deposition of Mr. Franklin. Mr. Franklin filed a motion to quash the deposition, and, at the motion hearing, Respondent stated the reasoning behind his denial of COUNTRY Mutual's application for a change of judge applied equally to its attempt to conduct discovery. Respondent ruled COUNTRY Mutual was not entitled to participate in the litigation beyond intervening pursuant to section 537.065.2. Consequently, Respondent entered an order quashing COUNTRY Mutual's notice of the video deposition.

COUNTRY Mutual filed a petition for a writ of prohibition in the court of appeals, which was denied. It then filed a petition for a writ of prohibition in this Court, seeking (1) to prevent Respondent from taking any action in the case other than granting its application for change of judge and (2) to "allow [COUNTRY Mutual's] substantive participation in discovery and any hearing or trial in this matter." This Court issued a preliminary writ of prohibition.

Analysis

This Court has authority to issue and determine original remedial writs. Mo. Const. art. V, sec. 4.1. A writ of prohibition may issue "to remedy an excess of authority, jurisdiction, or abuse of discretion where the lower court lacks the power to act as intended." State ex rel. Manion v. Elliott , 305 S.W.3d 462, 463 (Mo. banc 2010). "The filing of a timely application for change of judge deprives the court of further authority to do anything in the case other than grant the application." Id.

COUNTRY Mutual claims Respondent exceeded his jurisdiction in denying its timely filed application for change of judge and continued to act in excess of his authority and jurisdiction³ in quashing its efforts to conduct discovery and otherwise participate in the litigation. It contends that, once it timely filed its application for change of judge, Respondent lost authority to take any action in the case other than to grant the application. Consequently, COUNTRY Mutual requests a writ of prohibition from this Court preventing Respondent from taking any action other than granting a change of judge.

Ithiwa Woodson,⁴ on behalf of Respondent, contends COUNTRY Mutual does not qualify as a "typical intervenor" because it would not defend Mr. Franklin without reservation. Ms. Woodson asserts section 537.065.2 conferred on COUNTRY Mutual the right to intervene but did not provide a right to participate further in the litigation because case law predating section 537.065.2 prohibits an insurer from both refusing to defend without reservation and interfering in the litigation.

Respondent overruled COUNTRY Mutual's application for a change of judge because he found COUNTRY Mutual waived any right to interfere in the litigation when it refused to defend Mr. Franklin without reservation. COUNTRY Mutual claims that, after its intervention under section 537.065.2, it has the right under this Court's rules to a change of judge regardless of whether it refused to defend without reservation.

Section 537.065.2 authorizes COUNTRY Mutual to intervene as a matter of right. Once the circuit court sustained its motion to intervene, COUNTRY Mutual's right to a change of judge and the procedure to obtain a change of judge was governed by Rule 51.05(d). Rule 51.05(d) expressly provides, "Application for change of judge may be made by one or more parties in any of the following classes: ... (5) intervenors." Rule 51.05(b) further establishes when an intervenor must file an application for change of judge:

In the case of intervenors, the application must be filed within 30 days of intervention or designation of the trial judge, whichever is later, but in no event may any intervening party obtain a change of judge pursuant to this Rule 51 unless the application is filed within 180 days of the designation of the trial judge.

The principles used to interpret this Court's rules are the same as those used to interpret statutes. State ex rel. Richardson v. May , 565 S.W.3d 191, 193 (Mo. banc 2019). Undefined terms within a rule are given their plain and ordinary meaning. Id. There is nothing in the text of Rule 51.05 that would indicate the term "intervenor" means anything other than its plain and ordinary meaning: one that intervenes. Intervenor , WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 1183 (3d ed. 2002). COUNTRY Mutual is an intervenor and, as such, falls squarely within Rule 51.05(d)’s provisions.

In denying COUNTRY Mutual's application for a change of judge, Respondent relied on Borgard v. Integrated National Life Insurance Co. , 954 S.W.2d 532, 535 (Mo. App. 1997), for authority that an insurer that declines to accept a defense without reservation forfeits the right to participate in the litigation. Respondent found Borgard ’s holding was "confirmed" in Aguilar v. GEICO Casualty Co. , 588 S.W.3d 195, 201 (Mo. App. 2019). Borgard and Aguilar addressed whether an insurer had a right to intervene, not whether an insurer had a right to a change of judge after intervening. Borgard , 954 S.W.2d at 534 ; Aguilar , 588 S.W.3d at 202. Borgard was decided prior to section 537.065.2's amendment to permit an insurer to intervene "as a matter of right" in any pending lawsuit involving its insured's claim of damages against a tortfeasor with whom the insured has entered into a contract authorized by section 537.065.1. See section 537.065.2. Aguilar addressed whether an insurer had a right to intervene when the insurer's application to intervene was not filed within 30 days after receipt of notice of the execution of a section 537.065.1 agreement. 588 S.W.3d at 199. In the underlying action, there was no dispute whether COUNTRY Mutual had a right to intervene; the circuit court sustained COUNTRY Mutual's motion to intervene pursuant to section 537.065.2 and that ruling has not been contested. On appeal, Respondent also cites Knight ex rel. Knight v. Knight , 609 S.W.3d 813, 820 (Mo. App. 2020), which rejected an insurer's claim that, after intervention as a matter of right pursuant to section 537.065.2, it was entitled to a jury trial at which it could dispute its insured's liability. Knight did not opine about the right to a change of judge expressly afforded to intervenors under Rule 51.05(d). Borgard , Aguilar and Knight , therefore, do not apply to the present matter.

Once the circuit court sustained its motion to intervene, COUNTRY Mutual was entitled to a change of judge, and the record in the underlying case shows its application was...