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Byers v. Auto-Owners Insurance Co.11/21/2003
terial fact and that summary judgment was an appropriate remedy for either party, depending upon the resolution of two issues: 1) whether the law of Tennessee or Arkansas applied to the insurance coverage issue, and 2) whether Klein was a permissive user under the law of Tennessee or Arkansas.
Our review is essentially de novo . ITT Commercial Finance v. Mid-Am Marine Supply , 854 S.W.2d 371, 376 (Mo. banc 1993). The propriety of summary judgment is purely an issue of law; therefore, we need not defer to the trial court's order. Id . This court's criteria for ascertaining the propriety of summary judgment are the same as those that a trial court initially uses. Quaker Oats Co. v. Stanton , 96 S.W.3d 133, 136 (Mo. App. W.D. 2003). Consequently, our only question is whether the trial court drew the proper legal conclusion from the stipulated facts and cross motions for summary judgment on undisputed facts. Even if "the parties in cross motions for summary judgment would agree that all facts undisputed," the proceeding is not converted to a non-jury trial under Rule 73.01 ; the standard remains that which is applicable to any grant of summary judgment. Quaker Oats, 96 S.W.3d at 136.
Auto-Owners brings three points on appeal. First, Auto-Owners
contends that under a conflict of laws analysis, the trial court erred in applying Arkansas law rather than Tennessee law to the issue of which individuals would be covered as insureds under the policy at issue. The trial court found that Section 193 of the Restatement (Second) of Conflicts Law (1971), which discusses applying the law of the principal location of the insured risk, is controlling over the "significant contacts" section found in Section 188. Therefore, the trial court applied Arkansas law and determined that Klein was a permissive user of the vehicle under the Arkansas "initial-permission" rule. Had the trial court found Tennessee law to be controlling, Auto-Owners would have prevailed. Tennessee does not follow the initial-permission rule, but instead has adopted the "specific purpose rule," under which the issue is whether the permittee was given general custody of the car or limited permission to use the car. Estate of Adkins v. White Consol. Indus. Inc., 788 S.W.2d 815, 819 (Tenn. App. 1989).
To commence the analysis we turn to Section 188 and Section 193 of the Restatement (Second) of Conflict of Laws , both of which have been adopted by Missouri. Crown Center Redevelopment Corp. v. Occidental Fire & Cas. Co., 716 S.W.2d 348, 358 (Mo. App. W.D. 1986). Auto-Owners concedes that the nature of this matter, an action on an automobile liability insurance contract, requires that the choice of law analysis begin with Section 193.
While both Section 188 and Section 193 are contained in Chapter 8 of the Restatement entitled "Contract," Section 188, "Law Governing the Absence of Effective Choice by the Parties," is located in Title A, the " General Principles" portion of the chapter. Section 193, "Contracts of Fire, Surety or Casualty Insurance," is located in Title B, which addresses "particular contracts."
Section 193 provides:
The validity of a contract of fire, surety or casualty insurance and the rights created thereby are determined by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in Section 6 . . . .
Clearly, under Section 193, Arkansas was the principal location of the insured risk of this particular automobile during the term of the
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