Shiddell v. Bar Plan Mutual
385 S.W.3d 478
Mo. Ct. App.2012Background
- Appellants sought equitable garnishment of Dysart Taylor’s malpractice policy limits after a § 537.065 settlement confirmed liability and damages of $4.5 million against Dysart Taylor for malicious prosecution.
- Dysart Taylor hired Bevan, a Cameron Mutual attorney, to challenge Appellants’ claims; Bevan filed a baseless suit alleging Airborne Express was added as an insured.
- Dysart Taylor and Bevan later dismissed their case; Appellants sued Dysart Taylor for malicious prosecution.
- The Bar Plan denied coverage based on a policy exclusion for dishonest, deliberately fraudulent, criminal, malicious, or deliberately wrongful acts, with a defense provision.
- The garnishment court concluded the exclusion applied to the judgment; Bar Plan moved for summary judgment and the circuit court affirmed.
- The appellate court reviews summary judgment de novo and agrees the policy exclusion precludes coverage for the malicious prosecution judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the policy exclusion is ambiguous. | Shiddell argues ‘malicious’ and ‘deliberately wrongful’ are ambiguous. | Bar Plan contends the exclusion is unambiguous and clearly excludes coverage. | Unambiguous; exclusion precludes coverage. |
| Whether Dysart Taylor was an innocent insured under the waiver. | Bevan’s knowledge should not be imputed, making Dysart Taylor an innocent insured. | Bevan’s knowledge is imputable to Dysart Taylor as agent for a corporation. | Knowledge imputed; not an innocent insured. |
| Whether the malice standard differs for attorneys in malicious prosecution. | Legal malice could show coverage if the act was not motivated by actual malice. | Missouri law requires legal malice for attorney's malicious prosecution to qualify. | Legal malice required; deliberate wrongful act meets exclusion. |
| Whether the trial court properly applied de novo review to grant summary judgment. | Garnishment should be determined by factual ambiguities in the record. | Court should apply contract interpretation to resolve exclusions. | Judgment affirmed; correct under de novo review. |
| Whether the settlement findings influenced coverage. | Findings of legal malice/innocent insured should affect coverage. | Findings are gratuitous and do not alter policy exclusion. | Findings do not defeat exclusion; coverage remains denied. |
Key Cases Cited
- Diehl v. Fred Weber, Inc., 309 S.W.3d 309 (Mo.App. E.D.2010) (malicious prosecution elements; standards for non-attorneys)
- King v. Young, 304 S.W.3d 224 (Mo.App. E.D.2009) (malice standard for attorney misconduct)
- Macke Laundry Serv. Ltd. Partnership v. Jetz Serv. Co., 931 S.W.2d 166 (Mo.App. W.D.1996) (attorney malice tests depending on client-provided vs. attorney-obtained facts)
- Burnett v. Griffith, 769 S.W.2d 780 (Mo.1989) (definition of deliberately wrongful act and malice)
- ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993) (summary judgment standard; record viewed most favorably to non-mover)
- Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718 (Mo. banc 2008) (rules of contract interpretation for unambiguous terms)
- Haulers Ins. Co. v. Pounds, 272 S.W.3d 902 (Mo.App. S.D.2008) (insurance policy ambiguity standard; burden on insurer to show exclusion applies)
- Kelly v. Marvin’s Midtown Chiropractic, LLC, 351 S.W.3d 833 (Mo.App. W.D.2011) (ambiguity rules; contract interpreted as written)