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Gauert v. Chris-Leef General Agency Agency11/4/2003
Opinion Vote: AFFIRMED.
Smart, P.J. and Hardwick, J. concur.
Opinion:
Sharon Gauert appeals the trial court's grant of summary judgment in favor of Chris-Leef General Agency, Inc. on her claim of negligence in the procurement of general liability insurance. The judgment of the trial court is affirmed.
On March 31, 1992, Kansas City Oil Company (KCO) operated a gasoline station on Swope Parkway in Kansas City. At that time, Phil Collins owned all of the stock of KCO. Mr. Collins and his wife, Phyllis, owned the real estate on which the gasoline station was located. Tim Gauert was employed by KCO as an attendant at the gasoline station. On that day, while working for KCO, Mr. Gauert was shot to death in the course of a robbery at the gasoline station.
Sharon Gauert, Mr. Gauert's widow, filed a wrongful death action against the Collinses alleging that their negligence as landowners caused her husband's death. The parties entered into an agreement pursuant to section 537.065, RSMo 2000, wherein the Collins agreed to allow judgment to be taken against them in an amount to be determined by the trial court with recovery from them limited to their insurance coverage. The trial court approved the settlement of the parties, entered judgment against the Collinses, and awarded Mrs. Gauert damages in the amount of $2,400,867.22.
Thereafter, Mrs. Gauert, in her capacity as assignee of the Collinses, sued Chris-Leef alleging that the insurance agency, as the agent of KCO, negligently failed to have the Collinses named as additional insureds on the KCO commercial liability policy. Chris-Leef subsequently filed a motion for summary judgment. It argued that the facts were not in dispute and that it was entitled to judgment as a matter of law for four separate reasons. First, it contended that neither Sharon Javinsky nor her employer, Encore Insurance Agency, Inc., the insurance agent with whom the Collinses dealt, was the agent of Chris-Leef. Second, Chris-Leef argued that even if the Collinses had been named insureds on the policy, the assault and battery exclusion in the policy would have precluded coverage for the death of Tim Gauert. Third, it argued that because the claim of Mrs. Gauert against the Collinses was within the exclusive jurisdiction of the Labor and Industrial Relations Commission, the judgment entered in the case was void and, thus, did not injure the Collinses. Finally, Chris-Leef contended that the assignment to Mrs. Gauert of the Collinses' unliquidated claim against Chris-Leef was void. The trial court granted summary judgment in favor of Chris-Leef. This appeal by Mrs. Gauert followed.
Standard of Review
Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) . Summary judgment is upheld on appeal where the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377 . The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id. at 376. Facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Id.
A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant's cause of action; (2) the non-movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the t
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