Mоlly Trow (“Plaintiff’) seeks damages from Defendants for personal injuries sustained in an auto accident.
The dispositive question presented, albeit in two separate points relied on, is whether the Greene County court’s finding that Charles drove the subject vehicle without Defendants’ permission precludes Plaintiff from now asserting Defendants entrusted Charlеs with the automobile. We answer, “Yes.” We affirm.
FACTS
On March 15, 1995, Plaintiff sustained injuries when a vehicle she was driving collided with a 1988 Ford Escort driven by Charles, who was killed in the accident. Three of his four passengers were Charles’ siblings and they sustained severe injuries.
Steven W. Worley (“Steven”), Charles’ father, owned the 1988 Escort. On the accident date, the Escort was one of four motor vehicles Steven and his wife (“Pauline”) had insured with American Fаmily Insurance Company (“AFI”). Besides liability coverage, the policy provided $50,000 of per person uninsured motorist coverage on each of the four vehicles insured.
Originally, AFI asserted the position its liability coverage on the Escort did not apply because Charles was an excluded driver under an endorsement to its insurance contract.
Once API’s declaratory judgment suit was at issue, several parties moved for summary judgment.
“Two very interesting points that we could bring up to go along with the excluded driver is the fact that 1. according to our insured, it appears that he did not give permission to Charles to drive the vehicle and Charles was explicitly told not to driver [sic] the vehiсle, therefore, being a non-permissive driver. 2., it appears that Charles was using excessive force or threatened the previous driver, Steven [,Jr.], that if he did not let him drive that he would cause physical harm. This would show that it was a strong arm tactic, therefore, again, we could deny based on this type of situation.”
Collette’s deposition testimony confirmed what he had recorded in his memo regarding Charles’ nonpermissive driving of the Escort.
On July 13, 1999, the Greene County circuit court entered a summary judgment which adjudged, inter alia, Charles was an uninsured motorist under AFI’s policy. Factual findings undergirding this decision include the following:
“FINDS that ... Charles ... was driving the 1988 Ford Escort without the express or implied permission of Steven ..., Pauline ..., Steven [,Jr.] or anyone.”
“FINDS that the Named Driver Exclusion of the Policy denies liability coverage to any vehicle operated by Charlеs.... ”
“FINDS that the Policy denies liability coverage to any person operating a vehicle without the permission from the person having lawful possession.”
“FINDS that at the time of the ... collision, no automobile liability insurance policies were in effect providingliability coverage to Charles ... because he was not an ‘insured person’ under [AFI’s] policy.”
During the pendency of AFI’s declaratory judgment suit, Plaintiff sued Steven, Pauline, and Steven, Jr. (“Defendants”) in Dallas County, Missouri, on the theory that Defendants had negligently entrusted the Ford Escort to Charles. This case was decided adversely to Plaintiff when Defendants’ motion for summary judgment was sustained on April 19, 2000. The trial court ruled that “[pjursuant to the Doctrine of Collateral Estoppel, Plaintiff is precluded from re-litigating the issue found in the Judgment by the Circuit Court of Greene County ... finding that Charles ... did not havе express or implied permission to operate Defendants’ vehicle. Therefore, Defendants did not entrust their vehicle to Charles.” Plaintiffs appeal to this court followed.
DISCUSSION AND DECISION
“The doctrine of collateral estoppel, commonly known as issue preclusion, precludes the same parties from relitigating issues previously adjudicated between ... [them] or those in privity with them.” Robin Farms, Inc. v. Beeler,
PLAINTIFF’S POINT I “ULTIMATE FACT” ARGUMENT
Under Point I, Plaintiff first argues reversible error occurred when the summary judgment was entered on collateral estop-pel grounds because permission was not an ultimate issue of fact in the AFI case. Plaintiff insists “the key issue before the [AFI] court was the validity of the insurance policy’s Named Driver Exclusion.” To support her argument, Plaintiff cites Abeles v. Wurdack,
“In [AFI], the court’s task was to decide whether the Named Driver Exclusion ... in ... the [AFI] ... policy, which purported to exclude coverage for Charles ..., was enforceable. Irrespective of how ‘permission’ was defined in the insurance policy, the named driver exclusion was sufficient in and of itself to support the Greene County Court’s ruling that Charles ... was an uninsured motorist. The Court’s finding on ‘permission’ was not necessary, and thus, not essential, in order for the Court to enter its judgment. Thus, any ruling regarding ‘permission’ cannot be an ultimate issue in [Plaintiffs] case.”
We disagreе with Plaintiff when she asserts the AFI court’s task was to decide the validity of the exclusionary clause, and the ruling regarding “permission” was not an ultimate issue in the case. To explain why Plaintiff is mistaken, we pause briefly to discuss the two clauses implicated when the AFI court made its analysis.
Missouri’s public policy, as evidenced by the Motor Vehicle Financial Responsibility Law (MVFRL), “is to make sure that people who are injured on the highways may collect damage awards, within limits, against negligent motor vehicle operators.” Halpin v. American Family Mut. Ins. Co.,
Here, Charles was not a “named insured” under the AFI policy; consequently, his coverage, if any, had to be found in the omnibus clause. Therefore, the court’s initial focus had to be on' the omnibus clause. If the omnibus clause did not extend coverage tо Charles, any question regarding the validity of the exclusionary clause became moot. To decide whéther Charles was insured under the omnibus clause meant the AFI court had to decide if Charles had permission to drive the Escort. Thus, contrary to what Plaintiff argues, the omnibus clause of the policy and whether Charles had permission to drive were the initial focal points, not the exclusionary clause.
The AFI сourt found AFI’s policy did not extend coverage “to any person operating a vehicle without the permission of the person having lawful possession.” This was an obvious reference to the omnibus clause of the subject policy. An omnibus clause which does not extend coverage to a nonpermissive driver is not invalid as against public policy. State Farm Fire & Cas. Co. v. Ricks,
The finding by the AFI court that Charles was driving without permission meant the omnibus clause did not extend coverage to Charles; consequently, the validity or invalidity of the exclusionary question became a moot issue. Under the circumstances, resolution of the permission issue by the AFI court was “essential to [the] decision” that Charles wаs uninsured; therefore, permission was an “ultimate issue of fact” per the Abeles definition. 285 5.W.2d at 548[7]. We disagree with Plaintiff when she asserts otherwise. We deny this part of Plaintiffs first point.
PLAINTIFF’S POINT I “IDENTITY OF ISSUE” ARGUMENT
Before a court can properly apply the collateral estoppel doctrine, it must be shown, inter alia, “the issue presented in the prior adjudication was identical with the issue presented in the present action.” Atlanta Cas. Co. v. Stephens,
Plaintiff attempts to develop this claim of trial court error with arguments such as thesе:
“Each and every one of [the] issues [in the AFI case] involves the question of insurance coverage and not entrustment. Negligent entrustment was in no way at issue in that case. The question of ‘permission’ decided by Greene County Circuit Court in [AFI ] applied only to permission as it related to an automobile insurance policy, not a tort action for negligent entrustment.”
[[Image here]]
“Molly Trow, however, raises an issue distinctly seрarate from that central to [AFI’s] Declaratory Judgment Action (the tort of negligent entrustment vs. a question of insurance coverage).”
[[Image here]]
“Plaintiff Trow is not litigating whether her injuries are covered under [AFI’s] automobile policy, but whether Respondents’ actions constituted negligence en-trustment.”
Contrary to what Plaintiff argues, collateral estoppel principles were not inappositive because the AFI court’s finding of nonpermissive driving came in a suit over insurance coverage, whereas Plaintiffs suit sought damages via the tort theory of negligent entrustment. Such argument fails because it confuses “issue preclusion” (collateral estoppel) with “claim preclusion” (res judicata). “The principle of issue preclusion applies with equal force whether the second action is on the same or a different claim.” Consumers Oil Co. v. Spiking,
POINT I CLAIM THAT THE PRIOR ADJUDICATION WAS AMBIGUOUS
Before the collateral estoppel doctrine is triggered, the record must show the issue claimed to be identical when presented in the second case was “unambiguously decided” in the first case. Shores v. Express Lending Services, Inc.,
As yet another part of Point I, Plaintiff insists ambiguity did exist in the AFI court’s judgment; consequently, collateral estoppel was not warranted, and the trial court erred in applying the doctrine. Plaintiff supports her claim of ambiguity by relying heavily on Herrera v. Reicher,
Plaintiff asserts the circumstances here are akin to the situation in Herrera, in that
To recount Plaintiffs argument is to reveal its fallacy and the inapplicability of Hen"era. As explained earlier, whether Charles had permission to drive was the ultimate fact issue which drove the AFI decision. Thus, if Charles did not have permission to drive the Escort, the omnibus clause did not extеnd coverage to him and that was the end of the analysis. We explained why this is so earlier in the opinion. Further explanation is not required. Under the circumstances, the judgment in the AFI case was not ambiguous. Point I is denied.
POINT II: DID “NONPERMISSION” RULING NEGATE NEGLIGENT EN-TRUSTMENT?
When Defendants moved for summary judgment, it was not necessary to controvert each element of Plaintiffs negligence entrustment claim in order to establish their right to summary judgment.
“[A] ‘defending party’ may establish a right to judgmеnt by showing (1) facts that negate any one of the claimant’s element facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements.... ”
Id. at 381[16].
Here, the summary judgment for Defendants was based on the court’s finding that Defendants negated the third element of Plaintiffs negligеnt entrustment claim (as listed in Evans,
In effect, Plaintiffs second point reprises his first point claim that the trial court erred in entering summary judgment for Defendant because there was no substantive evidence which successfully negated [the entrustment] element of [Plaintiffs] prima facie case. As we understand it, Plaintiff contends the trial court erred when it “extrapolated” the “no permission” finding in the AFI case to mean there was “no entrustment” in Plaintiffs case. Continuing, Plaintiff argues:
“[T]he question as to which facts constitute entrustment is debatable, and therefore a genuine issue of material fact exists. In Sansonetti v. City of St. Joseph, [976 S.W.2d 572 (Mo.App.1998) ] ... the court says ‘an owner of an automobile may be hable for negligent en-trustment if he, knowingly or having the means of knowledge, turns his car over,to a driver who is incompetent by reason of age, inexperience habitual recklessness .... ’ ‘Turns his car over,’ the language used by the Scmsonetti court, is broader than granting someone ‘permission .... ’ Whether the facts that led to Charlеs ... operating the 1988 Ford Escort constituted entrustment under a negligent entrustment cause of action is a disputed material fact for which no meaningful discovery has been conducted to date.”
If Plaintiff is saying the trial court erred because “permission” is not the equivalent of “entrustment,” we agree that no Missouri cases directly hold, in this factual context, that the terms “entrustment” and “permission” signify identical definitions. Hоwever, there is persuasive authority suggesting there is no practical difference in the two terms.
For instance, the Evans court, in analyzing the tort of negligent entrustment, cited with approval, Restatement (Second) of Torts § 390 (1965), and illustrations at 316.
We also note the Evans opinion set out a verdict-directing instruction and gave reasons for holding the instruction erroneous; however, the court did not criticize use of the phrase “defendant leased the ... truck” or suggest, on retrial, it would be necessary to use the phrase “defendant entrusted ... the truck.” Id. at 326.
In Bell v. Green,
In Amador v. Lea’s Auto Sales and Leasing,
In Bishop v. Morich,
We find in the foregoing authorities ample support for the trial court’s implicit finding that the terms “entrustment” and “permission” denote identical terms in the factual context of this case. The trial court did not err when it granted summary judgment for Defendants based on its finding that the doctrine of collateral estoppel precluded Plaintiff from relitigating the issue of Charles’ nonpermissive driving in this negligent entrustment case. Point II is denied.
The judgment is affirmed.
Notes
. In this opinion, when referring to defеndants individually we call them “Steven,” "Pauline,” and "Steven, Jr.” Collectively, we call them "Defendants.”
. The "Named Driver Exclusion Endorsement” to the policy provided: "This policy does not apply under any of the coverage to any vehicle in the care, custody or control of, or while operated by WORLEY, ALLEN CHARLES or any other person with his or her permission or at his or her direction.”
. AFI cited Ingram v. Shelter Mut. Ins. Co.,
. Molly Trow and her insurer, Windsor Group, Inc., were parties to the AFI case. As part of its judgment, the AFI court denied Windsor's motion for summary judgment against AFI, and also denied Windsor’s motion for summary judgment with respect to its cross-claim against Molly.
. Hatpin held that, to the extent that household exclusion clauses purport to exclude the
. Presumably, Plaintiff argues this because the two causes of action are not the same; therefore, the issues could not be "identical.”
. The essential elements of a negligent en-trustment claim are (1) the entrustee is incompetent by reason of age, inexperience, habitual recklessness, or otherwise; (2) the entrustor knew or had reason to know of the entrustee’s incompetence; (3) there was an entrustment of the chattel; and (4) the negligence of the entrustor concurred with the conduct of the entrustee as a proximate cause of the harm to the plaintiff. Evans v. Allen Auto Rental and Truck Leasing, Inc.,
. Restatement (Second) of Torts § 390 (1965) provides:
"One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.” (Emphasis supplied).
. Other terms used in the Restatement illustrations are "gives,” "lends,” "rents,” and "sells or gives.”