Conclusion
The judgment of the trial court is affirmed.

bn JU <2 —

KURT S. ODENWALD, Judge

James M. Dowd, P.J., concurs.
Gary M. Gaertner, Jr., J., concurs.

14



Once the defending party establishes this prima facie case, the burden shifts to the non-
movant. ITT Commercial Fin. Corp., 854 S.W.2d at 381. At this point, “the non-movant’s only
recourse is to show—by affidavit, depositions, answers to interrogatories, or admissions on
file—that one or more of the material facts shown by the movant to be above any genuine
dispute is, in fact, genuinely disputed.” Id. (Emphasis in original.) The non-movant may not
rest on mere allegations or denials of fact; the response shall set forth specific facts with
evidentiary support showing that there is a genuine issue for trial. Id.; Rule 74.04(c)(2).

Here, Lu asserted a claim against ACIIE for equitable garnishment under Section
379.200. In a suit for equitable garnishment, the injured party can seek recovery against the

tortfeasor’s insurer. Carroll y. Missouri Intergovernmental Risk Mgmt, Ass’n, 181 S.W.3d 123,

126 (Mo. App. W.D. 2005). “An equitable garnishment action consists of proof that plaintiff has
obtained a judgment in his favor against an insurance company’s insureds during the policy
period and the injury is covered by the insurance policy.” Peck v. Alliance Gen, Ins. Co., 998
S.W.2d 71, 74 (Mo. App. E.D. 1999).

To support the grant of summary judgment, ACIIE argues that the undisputed facts
negated Lu’s equitable-garnishment claim. See Goerlitz, 333 S.W.3d at 453. ACIIE asserts that
Father’s policy did not cover Gunckel’s use of the Ford because the evidence is undisputed that
Gunckel was not an insured under Father’s policy at the time of the accident. Thus, because
Father’s policy did not cover Gunckel when the accident occurred, Lu could not assert an
equitable-garnishment claim against ACIIE.

Lu, on the other hand, maintains that Gunckel was an insured under Father’s policy. But

even if Guncke! was not an insured, Lu argues that ACIIE was still liable because the Motor



an insured under Father’s policy, the policy did not cover Gunckel’s negligent driving or the
resulting property damage to Lu’s car.
I. The Applicability of the MVFRL

Because Lu is not an insured under Father’s policy, we consider whether coverage
nevertheless continued under the policy on the Ford on the date of the accident under the
provisions of the MVFRL. Lu cites Section 303.210 of the MVFRL,"? which requires ten days?
notice to terminate or cancel a certified insurance policy. We start with a brief overview of the
MVERL for context and then address Lu’s specific argument about Section 303.210.

A. Overview of the MVFRL

“An insurance clause violates public policy and is rendered unenforceable only to the
extent it violates the Motor Vehicle Financial Responsibility Law.” White v. Illinois Founders
Ins. Co., 52 $.W.3d 597, 599 (Mo. App. E.D, 2001). The MVFRL is, for all practical purposes,

acompulsory insurance law. Halpin v. Am. Family Mut. Ins. Co., 823 $.W.2d 479, 481 (Mo.

banc 1992). Section 303.025 (Cum. Supp. 2013) provides the baseline rule: “No owner of a
motor vehicle registered in this state, or required to be registered in this state, shall operate,
register or maintain registration of a motor vehicle, or permit another person to operate such
vehicle, unless the owner maintains the financial responsibility which conforms to the
requirements of the laws of this state.” Section 303.025.1 (emphasis added). Further, a non-
owner may not operate an uninsured motor vehicle without maintaining his or her own financial
responsibility. Id.

Subsection 2 permits the owner of a motor vehicle to “maintain” financial responsibility

either (1) in a manner provided for in Section 303.160, or (2) with a motor vehicle liability

12 Chapter 303, RSMo.



Father’s policy defined insured as:

1, You and a household member:
a. In the use of your insured auto; and
b. In the use of any other auto or trailer.

2, Any person other than those identified in paragraph 1 using your insured

auto with your permission provided the use is within the scope of such
permission. ...

Our careful review of the record and the express terms of the insurance policy requires us
to reject as meritless Lu’s contention that she falls within the policy’s definition of an insured.
You, as defined in the policy, was the named insured as shown on the declarations page of the
policy and the named insured’s spouse (if domiciled in the same household). The declarations
page on Father’s policy listed only Father and his wife as the named insureds—the you. An
insured could also include a household member under prong 1, which Father’s policy defines as
“a person who is domiciled in your household.” Whether an individual qualifies as a household
member is a question of fact. Reed, 231 $.W.3d at 853, As explained supra, it is undisputed that
Gunckel—Son’s girlfriend—was not a member of Father’s household. Thus, prong | of the
definition of an insured offers no support to Gunckel, who does not fall within the terms you or
household member under Father’s policy.

The second prong of the policy’s definition of insted, which potentially provides
insured status to non-household members, also provides.Gunckel no relief because Father sold
the Ford to Son before the accident occurred. Father’s policy grants insured status to unrelated

persons and non-household members under this second prong if “any” other person was using

your insured auto. The policy expressly defines the relevant portion® of your insured auto as

° The definition also encompasses newly acquired automobiles, trailers, temporary substitute automobiles, and
demonstrator automobiles, none of which are relevant here.



Vehicle Financial Responsibility Law (“MVFRL”)’ required continued coverage on the vehicle
for ten days after ACIIE notified the Director that the Ford was removed from coverage under
Father’s policy. Parties are free to contract as to the terms of an automobile insurance policy, but
only to the extent that the contract complies with the MVFRL. Wilson v. Traders Ins. Co., 98
S,W.3d 608, 613 (Mo. App. S.D, 2003). Because the accident occurred within six days after
Father sold the Ford to Son, Lu contends that the MVFRL’s required ten-day notice was not met,
so coverage continued on the Ford at the time of the accident.

We first consider whether Gunckel was covered as an insured under the terms of Father’s
policy.
I, Coverage Under Father’s Policy

The interpretation of an insurance policy is a question of law, which we review de novo.

Dutton vy. Am. Family Mut. Ins. Co., 454 8, W.3d 319, 322 (Mo. banc 2015). “Insurance policies

are read as a whole, and the risk insured against is made up of both the general insuring

agreement as well as the exclusions and definitions.” Todd y. Missouri United Sch, Ins. Council,

223 S.W.3d 156, 163 (Mo. banc 2007).

The relevant portion of Father’s policy states, “Subject to the Exclusions, we will pay
damages for which any insured is legally liable because of bodily injury or property damage
caused by an auto accident.”® The facts are uncontroverted that Gunckel was involved in an auto
accident while driving the Ford and that this accident caused property damage to Lu’s car. It is
further undisputed that Gunckel was liable for the property damage to Lu’s car. The remaining

issue for our consideration is whether Gunckel was an inswred under Father’s policy.

7 Chapter 303, RSMo.

5 The text of Father’s policy included bold-italic terms indicating that those terms were defined by the policy. For
clarity, this opinion omits the policy’s original bold-italic emphasis, as most of the defined terms are not relevant for
our purposes. We quote the policy’s definitions when relevant and use bolded terms for our emphasis.

6


evidence prima facie established that the sale and transfer of ownership occurred on November
20, 2014.

With this evidence, the burden shifted to Lu to show some evidence demonstrating that a
genuine issue of fact existed with regard to ownership. See Rule 74.04(c)(2). Lu first asserts
that the sale did not take place until December 4, because the Bill of Sale (Missouri Department
of Revenue Form 1957) was not signed until December 4. But that same Bill of Sale reports the
sale date as November 20, 2014. Lu’s suggestion that title did not transfer until the Department
of Revenue issued a new certificate of title to Son on December 8, 2014, is unavailing. Again,
the certificate of title plainly lists the sale date as November 20, 2014. Lu is misguided in her
argument because the Bill of Sale and Son’s new certificate of title are part of the registration
process of Son’s new Ford and not indicia of the date of transfer. As this Court has clearly
stated, “In the sale of a used vehicle, the operative fact in the transfer of title is the assignment of
title rather than the registration of title or issuance of a new title certificate.” Schultz v. Murphy,
596 S.W.2d 51, 53 (Mo. App. E.D. 1980). Son’s registration of the Ford with the Department of
Revenue necessarily occurred after the ownership of the Ford was transferred to him on
November 20, 2014, Lu fails to raise a genuine dispute as to the date of the sale.!!

Gunckel was not an insured under Father’s policy because her status and use of the Ford

did not qualify under any definition of insured in the insurance policy. Because Gunckel is not

"1 Ly’s counsel also argues that a genuine issue of fact existed about whether Father gave Gunckel implied
permission to use the Ford: Father sold the Ford to Son, and Son gave permission to Gunckel. This argument is
untenable. “Asa general rule ... the insured purporting to give consent must own the insured vehicle, or in any
event have such an interest in it such as the right to possession and control of it as to be in a position to give
permission.” Haynes v. Linder, 323 S.W.2d 505, 510 (Mo. App. K.C. 1959), Again, Father did not own or have
possession of the Ford on the day of the accident. In any event, under prong 2, once ownership passed the issue of
Father’s permission became moot because the Ford was no longer Father's insured auto.



In the Missouri Court of Appeals
Castern District

DIVISION FOUR
HONG LU, ) No. ED104197
)
Appellant, )
)
vs. ) Appeal from the Circuit Court
) of St. Louis County
AUTOMOBILE CLUB INTER- )
INSURANCE EXCHANGE, )
)
and ) Honorable Lawrence J. Permuter, Jr.
)
CRYSTAL GUNCKEL, )
)
Respondents. ) FILED: November 22, 2016

Introduction
Appellant Hong Lu (“Lu”) appeals the trial court’s grant of summary judgment in favor
of insurer Automobile Club Inter-Insurance Exchange (“ACIIE”) in her action for equitable
garnishment. Lu was awarded a judgment against Crystal Gunckel (“Gunckel”) for damages
suffered by Lu while Gunckel was driving her boyfriend’s Ford Focus, which the boyfriend had
recently purchased from his father. On appeal, Lu contends that the trial court erred in granting
summary judgment for ACIIE because Gunckel was an insured under the father’s automobile

insurance policy. Lu alternatively argues that the insurance coverage on the Ford Focus was in



303.041.1 (Cum. Supp. 2013). The Director may require “an individual to file a certificate of
insurance as provided in section 303,170 ... or some other form of high-risk insurance in order to
terminate the suspension” in “cases involving a motor vehicle accident where one or more parties
involved in the accident were uninsured.” See Section 303.042.5, The Director may require an
individual to file Form SR-22 as a condition of reinstatement after some other types of license
suspensions, such as after a suspension for driving while intoxicated. See Dilts, 208 S.W.3d at
301-02.

Thus, while the MVFRL mandates compulsory automobile insurance, the filing of a
certificate of insurance—i.e, Form SR-22—with the Director is required only in some limited
situations. Importantly, Form SR-22 certifies to the Director that the person has insurance for

the benefit of that person. Section 303,170.1.

B. Applicability of Section 303.210
Finally, we arrive at Section 303.210—the basis for Lu’s claim that the MVFRL required

the continuance of coverage under Father’s policy during Gunckel’s operation of Son’s Ford on
November 26, 2014. Section 303.210 states:
When an insurance carrier has certified a motor vehicle liability policy under
section 303.170 or a policy under section 303.180, the insurance so certified
shall not be cancelled or terminated until at least ten days after a notice of

cancellation or termination of the insurance so certified shall be filed in the office
of the director of revenue.... (Emphasis added.)

Lu asserts that Section 303.210 preempts the terms of Father’s policy because ten days’
notice to the Director was required before ACHE could terminate coverage on the Ford. Since
Gunckel’s accident occurred six days after Father sold the Ford, the ten-day notice could not
have been satisfied. Lu argues that Father’s insurance coverage, therefore, was still in force at

the time of the accident.

12



policy! that conforms to the requirements of the laws of Missouri. Section 303.025.2; White, 52

S.W.3d at 599. “Most owners and operators of vehicles undertake to satisfy the requirement by
purchasing a motor vehicle liability policy.” First Nat. Ins. Co. v. Clark, 899 S.W.2d 520, 522
(Mo. bane 1995). Under a regular motor vehicle liability policy, the insurance company
furnishes an insurance card, which functions as proof that the insured has maintained the
compulsory insurance. See Section 303.024 (Cum. Supp. 2013).

In some situations, the Director may require the owner or operator of a vehicle to file
proof of financial responsibility. Section 303.160 provides, “Proof of financial responsibility
when required under this chapter with respect to a motor vehicle or with respect to a person
who is not the owner of a motor vehicle may be given by filing: (1) A certificate of insurance as
provided in section 303.170 ...2!4 (Emphasis added.) Under Section 303,170, a written
certificate of an insurance carrier certifies that a motor vehicle liability policy exists “for the
benefit of the person required to furnish proof of financial responsibility.” Section 303.170.1
(emphasis added). This certificate from the insurance company creates a “certified” insurance
policy. See Wilson v. Traders Ins. Co., 98 S.W.3d 608, 615 (Mo. App. S.D. 2003). The Director
has promulgated regulations requiring this certificate of insurance to be accomplished by filing a
Form SR-22 with the Director. 20 CSR 500-2.300(4)(A).

Form SR-22, certifying that an owner or operator maintains financial responsibility, is
sometimes required for individuals as a condition of license reinstatement after a license
suspension. See Section 303.042.5 (Cum. Supp. 2013); 20 CSR 500-2.300(4)(A); Dilts v. Dir. of

Revenue, 208 S.W.3d 299, 301-02 (Mo. App. W.D. 2006). Failing to maintain the compulsory

insurance subjects the owner (or operator) of a motor vehicle to a license suspension. Section

3 A “motor vehicle liability policy” is defined in Section 303.190,
14 Section 303.160 provides additional ways to file proof of financial responsibility that are not relevant here.

il



any “auto shown in the declarations page, while owned by you.”'® Father sold the Ford to Son
on November 20, 2014, but the accident did not occur until November 26, When the accident
occurred, the Ford was no longer Father’s insured auto as defined by the policy because Father
no longer owned the Ford. Accordingly, prong 2 does not apply.

Lu suggests the existence of a genuine issue of fact by questioning when ownership of
the Ford passed from Father to Son. Lu contends that title to the Ford did not transfer until after
the accident, and that Father owned the Ford and his insurance still applied to the Ford on the
day of the accident. Our review of the complete summary-judgment record shows that Lu’s
argument fails because ownership of a vehicle transfers in Missouri upon delivery of a properly
assigned certificate of title when the seller delivers the motor vehicle. Section 301.210.1;

Allstate Ins. Co. v. Nw. Nat. Ins. Co., 581 S.W.2d 596, 602 (Mo. App. S.D. 1979).

In its statement of uncontroverted facts, ACIIE stated, “On November 20, 2014, Thomas
T. Sanders sold his 2003 Ford to his son, Jonathan T. Sanders and permanently relinquished
possession at that time.” ACIIE’s assertion of fact is supported by ample evidence in the record.
First, the record contains the certificate of title issued to Father for the Ford. The certificate of
title contains the signatures of Father and Son assigning the vehicle to Son, and lists the sale date
as “11-20-2014.” Second, the record contains an affidavit from Father attesting that he sold the
Ford and permanently relinquished possession of the Ford on November 20, 2014. Finally, the
record includes the Bill of Sale (Missouri Department of Revenue Form 1957) and the title

issued to Son after the sale, both of which note the sale date as November 20, 2014. ACIIE’s

‘0 Lu argues on appeal that ACHE did not remove the Ford from the declarations page in time, as ACIIE apparently
did not mail the new declarations page (removing the Ford) until November 26—the day of the accident. Whether
the Ford was listed on the declarations page when the accident occurred is irrelevant, as the facts are not disputed
that Father no longer owned the Ford after November 20, 2014.

8



Standard of Review
When considering an appeal from a grant of summary judgment, our review is essentially

de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376

(Mo. banc 1993). As the trial court’s judgment is founded on the record submitted and the law,
we need not defer to the trial court’s order granting summary judgment. Id. We review the
record in the light most favorable to the party against whom judgment was entered, and the non-
movant receives the benefit of all reasonable inferences from the record. Id, We will affirm
where the pleadings, depositions, affidavits, answers to interrogatories, exhibits, and admissions
establish that no genuine issue of material fact exists and the moving party is entitled to

judgment as a matter of law, Stanbrough y. Vitek Solutions, Inc., 445 S.W.3d 90, 96 (Mo. App.

E.D. 2014).
Discussion

Under Rule 74.04(c),® a defending party—here, ACIIE—may establish the right to
judgment as a matter of law by demonstrating: (1) facts negating any one of the elements of the
non-movant’s claim; (2) “that the non-movant, after an adequate period for discovery, has not
been able and will not be able to produce sufficient evidence to allow the trier of fact to find the
existence of any one” of the elements of the non-movant’s claim; or (3) “that there is no genuine
dispute as to the existence of the facts necessary to support movant’s properly pleaded
affirmative defense.” Goerlitz v. City of Maryville, 333 $.W.3d 450, 453 (Mo. bane 2011)
(quoting ITT Commercial Fin. Corp., 854 S.W.2d at 381). “Each of these three methods

individually ‘establishes the right to judgment as a matter of law.’” Id.

6 Ail rule references are to Mo. R. Civ. P. (2016).


Six days after the sale, on November 26, Lu was involved in a car accident with Gunckel.
Gunckel was Son’s girlfriend at the time and was driving the Ford with Son’s permission.
Gunckel was not a member of Father’s household.°

After the accident, Lu sued Gunckel for the property damage to her vehicle stemming
from the collision and was awarded a judgment for $15,078. Subsequently, Lu sued ACIIE for
equitable garnishment under Section 379.200. Lu claimed that ACIIE was liable for the damage
caused by Gunckel under Father’s automobile insurance policy. The relevant policy provisions
will be discussed in detail below, Lu and ACIIE filed cross-motions for summary judgment.
Without explanation, the trial court granted ACIIE’s motion, denied Lu’s motion, and entered
judgment in favor of ACIIE and against Lu, This appeal follows,

Point on Appeal

In her sole point on appeal, Lu argues that the trial court erred in granting summary
judgment in favor of ACHE. Lu contends that because Gunckel was an insured under Father’s
policy at the time of the accident, ACIIE insured against Gunckel’s negligence. Lu alternatively
asserts that even if the revised terms of the policy no longer covered the Ford, the original
coverage nevertheless was still in place because Section 303.210 required ACIIE to continue
coverage on the Ford for ten days after ACIIE notified the Director that the Ford was removed

from Father’s policy, which did not occur here,

5 ACIIE supported this fact with an affidavit from Father. In her response to ACIIE’s proposed fact, Lu objected
that the issue of whether Gunckel was a member of Father’s household called for a legal conclusion. This objection
was improper: “Whether a person lived in another’s household is a question of fact.” Reed v. Am, Star

231 S.W.3d 851, 853 (Mo. App. W.D. 2007). Lu did not otherwise submit evidence to create a dispute as to this
fact. Rule 74.04(c)(2). Because Lu failed to create a genuine dispute, we accept as undisputed that Gunckel was not
Father’s household member.



force on the date of the accident because Section 303.210! required ACIIE to give ten days’
notice to the Director of Revenue (the “Director”) before ACIIE could terminate insurance
coverage on the Ford Focus, which did not occur here. The material facts are not genuinely
disputed, Because Gunckel was not an insured under the father’s policy, and because Section
303.210 did not require ACIIE to give notice of its actions to the Director, the trial court did not
err in granting summary judgment for ACIIE. We affirm.
Factual and Procedural History

The dispute centered around ACIIE’s liability on an automobile insurance policy.
Viewed in the light most favorable to Lu, the record contains the following uncontroverted facts.

ACIIE issued an automobile insurance policy to Thomas Sanders (“Father”)? and his
wife, who were the named insureds. The policy ran from June 3 through December 3, 2014, and
listed Father’s Ford Focus (the “Ford”) as an insured vehicle.

On November 20, 2014, Father sold the Ford to his son, Jonathan Sanders (“Son”).
Father and Son executed the certificate of title originally issued to Father for the Ford, and then
Father permanently relinquished possession of the vehicle to Son. Five days later Father
informed ACIIE of the Ford’s sale. ACIIE amended Father’s policy to remove the Ford from the

policy’s declarations page, effective November 20, 2014.4

1 All statutory references are to RSMo (2000), unless otherwise noted.

? We use “Father” and “Son” for Thomas and Jonathan Sanders to provide clarity, We intend no disrespect,

3 ACIIE submitted this proposed undisputed material fact: “On November 20, 2014, Thomas T. Sanders sold his
2003 Ford Focus to his son, Jonathan T. Sanders and permanently relinquished possession at that time.” Lu objected
to the authenticity of the underlying exhibit in her response, but did not otherwise dispute ACIIE’s proposed
uncontroverted fact. The trial court subsequently granted leave for ACIIE to file a certified copy of the executed
certificate of title, which ACHE did, and Lu made no further objections. Thus, we treat both the certificate of title
and the fact that Father permanently relinquished possession of the Ford as undisputed facts. Rule 74.04(¢)(2).

+ Son registered the Ford after the accident, and the State of Missouri issued him a new certificate of title on
December 8, 2014,



Lu’s argument fails because the plain language of Section 303.210 only applies to
certified insurance policies, Although Lu maintains that all insurance policies fall within the
notification requirements of Section 303.210 because all insurance policies must be certified, as

explained above, Lu’s all-encompassing position is incorrect. See supra; Wilson, 98 S.W.3d at

615 (observing, “Appellants concede that ‘if the policy had not been certified, i.e., if there had
not been an SR-22 filed, then the policy would have terminated’ and there would have been no
policy coverage on the date of the accident”); 20 CSR 500-2.300(4)(A).

The summary-judgment record is devoid of any evidence suggesting that the policy of
insurance at issue in this case was a certified policy under the legislative dictates of Section
303.210. Lu did not inject the issue of certification by proffering or directing the court to any
evidence that might suggest the existence of a genuine issue of fact as to whether the policy of
insurance under which Lu seeks coverage was a certified policy. Even though our standard of
review requires us to review the record in the light most favorable to Lu and accord Lu the
benefit of all reasonable inferences, there is simply no evidence in the record to support even an
inference that Father’s policy was a certified policy subject to Section 303.210. See ITT
Commercial Fin. Corp,, 854 S.W.2d at 376. Thus, Section 303.210 does not apply here.

Because removing the Ford from coverage under Father’s policy did not violate the
MVFRL, we enforce the plain language of the policy. ACIIE did not insure against Gunckel’s
negligent use of Son’s Ford under the plain language of Father’s policy. Based on undisputed
material facts, the trial court properly concluded that ACTIE was entitled to judgment as a matter
of law on Lu’s claim for equitable garnishment. Thus, summary judgment was proper and Lu’s

point is denied.

13