Defendant-appellant, State Automobile & Casualty Underwriters, (hereinafter State Auto) appeals from an order overruling its motion for summary judgment on its cross-claim against the Subscribers of the Automobile Club Inter-Insurаnce Exchange (hereinafter Auto Club) and from a directed verdict entered in favor of defendant, Auto Club.
The facts in the underlying case are as follows: Plaintiff, Tеresa Ann Stege Sto-verink, was a passenger along with James Arthur Morgan and Mary Schone in a car involved in a one vehicle accident. Mary Schone is thе daughter of Kenneth and Agnes Schone who were issued a policy by the Auto Club on the 1964 Oldsmobile involved in the accident.
Plaintiffs, Teresa Stoverink, and her father, Irwin Stegе, filed a personal injury suit against Morgan alleging he was driving at the time of the accident. Morgan claimed he was entitled to a defense and indemnity under the Schone’s policy issued by defendant, Auto Club. Subsequently, the Auto Club filed a declaratory judgment action in St. Louis County naming Teresa Stoverink, her father Irwin Stege, James Morgan, and Mary Schone as defendants. Stoverink’s insurer, State Auto, was not a named defendant in this action. Said petition sought a determination as to whether James Morgan or Mary Schone was driving the automobile at the time of the accident in question and if Morgan was driving whether he was covered under the policy issued by the Auto Club. A jury detеrmined Morgan was in fact the driver and the court thereafter determined the Auto Club’s policy did not afford him coverage. Defendants filed motions for a new trial whiсh were denied and the judgment was not appealed. Plaintiffs joined State Auto contending they were entitled to recover under their uninsured motorist provision sinсe Morgan had been determined to be an uninsured motorist. Plaintiffs were awarded a total of $75,500.00. Judgment was entered in favor of Stoverink against State Auto for $30,000.00, the аmount of its unin
State Auto now appeals the denial of its motion for summary judgment and the granting of defendant Auto Club’s motiоn for a directed verdict on three grounds. Specifically, State Auto maintains (1) the trial court erred in overruling its motion for summary judgment in that there was no question of fact as to the permissive use of the automobile and that as a matter of law § 303.190(2)(2) RSMo 1978 requires the Auto Club policy to provide liability coverage, (2) the trial court erred in refusing to admit into evidence certain depositions taken in the previous declaratory judgment action involving the construction of the same liability policy and (3) the trial court erred in granting defendant Auto Club’s motion for a directed verdict in that State Auto is the real party in interest, is not bound by the previous dеclaratory judgment action, and is therefore, not barred from relitigating the issue of the Auto Club’s coverage.
The threshold question in this case is whether State Auto in its subrogation action acquires only derivative rights from its insured and is therefore, bound by the previous declaratory judgment finding that James Morgan was not covered by defendant Auto Club’s policy. In defense of this, State Auto argues it is not bound by the declaratory judgment since it was not a named party and had no notice of the proceeding until its final determination. See Rule 87.04 V.A.M.R.
This would normally be true. It is clear, however, the only basis set forth for State Auto’s cross-claim is that of subrogation. It is also well established that in such an action a party makes a claim through a derivative right acquiring no greater rights in law or equity than the party for whom it was substituted and therefore, cannot make a claim its subrogor could not make. See United States v. United Services Automobile Association,
In the instant case, plaintiffs Teresa Stoverink’s and Irwin Stege’s claim to any coverage under defendant Auto Club’s policy was determined against them in a three-day trial resulting in a judgment that Morgan was not covered under said policy’s Omnibus Clause. Since this judgment was not appealed and is final, plaintiffs, Teresa Stoverink and Irwin Stege, are bound by its determination and are estopped from relitigating the issue of coverage under thе Auto Club’s policy. As such, State Auto, in its position as subrogee “stands in the shoes” of its insureds and is also estopped from collaterally attacking said judgment.
Furthermorе, there is sufficient privity between plaintiffs and State Auto in order for us to apply the principles of res judicata and collateral estoppel. Civiс Plaza National Bank of Kansas City v. University Nursing Home, Inc.,
State Auto urges us to circumvent the basic principles of subrogation on the basis that it is founded upon principles of justice and equity in оrder to compel the ultimate discharge of a debtor obligation by the one who in fairness and in good conscience should pay for it. Cole v. Morris,
Accordingly, the directed verdict granted in favor of defendant, Auto Club, is affirmed. Since State Auto, because of its status as subrogee, had no right to reliti-gate the issue of Morgan’s coverаge or attack the prior declaratory judgment action, it was not entitled to summary judgment in its favor. Clearly, State Auto could not establish, as a matter of law, thаt Morgan was covered by defendant Auto Club’s policy. Finally, in light of the views expressed in this opinion, whether the depositions in question should have been admitted into evidence is a point we need not reach. The judgment is affirmed in all respects.