Wolfe Automotive Group, LLC, et al v. Universal Underwriters Ins. Co

Filing

OPINION FILED - THE COURT: James B. Loken, C. Arlen Beam and Bobby E. Shepherd AUTHORING JUDGE:C. Arlen Beam (PUBLISHED) [4346509] [14-3411]

United States Court of Appeals
For the Eighth Circuit
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No. 14-3411
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Wolfe Automotive Group, LLC; Jay Wolfe Used Cars of Blue Springs, LLC
lllllllllllllllllllll Plaintiffs - Appellants
v.
Universal Underwriters Insurance Company
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 24, 2015
Filed: December 15, 2015
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Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
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BEAM, Circuit Judge.
Jay Wolfe Used Cars of Blue Springs, LLC, along with its managing company,
Wolfe Automotive Group, LLC, (Wolfe) appeals the district court's1 adverse grant of

1

The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.

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summary judgment in its suit against Universal Underwriters Insurance Company
(Universal) seeking coverage. We affirm.
I.

BACKGROUND

Wolfe, a Missouri used-car dealership, is insured under two policies issued by
Universal. One policy provides up to $500,000 for indemnity from and defense
against suits for damages arising from Wolfe's "wrongful repossession" of an
automobile, and this is linked under a separate policy to $25 million in umbrella
coverage (we will refer to these linked coverage provisions together as the "umbrella
coverage"). One of the policies also separately provides up to $25,000 for costs in
defending against suits arising from the sale of an automobile (the "customer
complaint defense" provision), subject to both a $2,500 and a $100,000 deductible.
Under the policy, Wolfe may be entitled to either the umbrella coverage or coverage
under the customer complaint defense provision, but not both.
Wolfe sold a vehicle to Tyrrell and Liane Jackson (the Jacksons), retaining a
security interest for loaning them the purchase money. Wolfe later repossessed and
sold the vehicle due to missed payments. After retaking possession but before the
sale, Wolfe sent a notice informing the Jacksons they could request an accounting for
a $25 charge, and after the sale it sent a notice charging the Jacksons attorney's and
legal fees. Wolfe sued for the deficiency balance, and the Jacksons counterclaimed
on behalf of themselves and similarly situated consumers, alleging Wolfe's pre- and
post-sale notices violated Missouri's Uniform Commercial Code (U.C.C.) and the
Missouri Motor Vehicle Time Sales Act (MVTSA). Specifically, the Jacksons alleged
that the presale notice violated a requirement under the U.C.C. that upon request they
be provided with one free accounting and that the notice inform them of that
entitlement. Mo. Rev. Stat. §§ 400.9-210(f), -613(1)(D), -614(1)(A). They alleged
that the postsale notice violated the U.C.C. by charging them fees and expenses that
were not actually incurred in connection with the sale of the vehicle, id. §§ 400.9-2-

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615(a)(1), -616(c)(4), and that it violated the MVTSA because the attorney's fees were
in excess of fifteen percent of the deficiency balance and because the charged
expenses were unreasonable. Id. §§ 365.100(2), (4). The Jacksons did not dispute
that they were in default and that Wolfe had the right to repossess the vehicle.
Wolfe tendered the Jacksons' counterclaims to Universal for defense and
indemnity under the umbrella coverage. Universal refused on the ground that the
allegedly deficient notices were not wrongful repossessions as that term is meant in
the policy, stating Wolfe was only entitled to coverage under the customer complaint
defense provision. Preferring the benefits available under the umbrella coverage,
Wolfe sued Universal for a declaration of its rights under the policy, as well as for
breach of contract and vexatious refusal to pay. Universal counterclaimed for
declaratory judgment in its favor. The district court sided with Universal on crossmotions for partial summary judgment and summary judgment. It reasoned the
umbrella coverage only applied to repossession that is itself wrongful, not to wrongful
debt-collection practices that may involve but are unrelated to repossession. Wolfe
now appeals the district court's grant of summary judgment to Universal.
II.

DISCUSSION

The central dispute is whether the Jacksons have alleged as injury the wrongful
repossession of their vehicle as that term is used in the policy. We review de novo
both a district court's interpretation of an insurance policy as well as its grant of
summary judgment. Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network,
Inc., 401 F.3d 876, 879 (8th Cir. 2005). In interpreting an insurance policy, we are
bound by state law and thus by the decisions of state courts. Am. Family Mut. Ins.
Co. v. Co Fat Le, 439 F.3d 436, 439 (8th Cir. 2006). Absent ambiguity, Missouri
courts will interpret the language of a policy according to its plain meaning as
understood by an ordinary insured of average understanding. Piatt v. Ind.
Lumbermen's Mut. Ins. Co., 461 S.W.3d 788, 792 (Mo. banc 2015). Ambiguities,
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however, should be resolved in favor of the insured. Scottsdale Ins. Co. v. Ratliff, 927
S.W.2d 531, 534 (Mo. Ct. App. 1996). "Language is ambiguous if it is reasonably
open to different constructions . . . ." Krombach v. Mayflower Ins. Co., 827 S.W.2d
208, 210 (Mo. banc 1992). Under Missouri law, the duty to defend, which is broader
than the duty to indemnify, is triggered by the possibility of coverage, Piatt, 461
S.W.3d at 792, which is ascertained by comparing the allegations to the policy
language. Kirk King, King Constr., Inc. v. Cont'l W. Ins. Co., 123 S.W.3d 259, 264
(Mo. Ct. App. 2003). "Where there is no duty to defend, there is no duty to
indemnify." Id. (quoting Am. States Ins. Co. v. Herman C. Kempker Constr. Co., 71
S.W.3d 232, 236 (Mo. Ct. App. 2002)). The burden is on the insured to prove
coverage. Tresner v. State Farm Ins. Co., 913 S.W.2d 7, 11 n.3 (Mo. banc 1995).
Where, as here, there is no factual dispute, "[t]he court shall grant summary judgment
if . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
Both parties agree "wrongful repossession" is unambiguous, although they
disagree on what that term unambiguously means to an ordinary insured.2 Wolfe
contends the phrase includes not only the physical appropriation of a vehicle but also
the procedures required for its sale. It argues the district court erred in equating
wrongful repossession to a common law claim for conversion, which led to an overly
narrow construction of the policy. Universal counters that wrongful repossession
means Wolfe must not have had the right to take the vehicle at the time of
repossession, and it argues in response to Wolfe's contrary assertion that the district
court did not restrict its interpretation to the elements of conversion.
Wolfe relies primarily on Lou Fusz and Kirk King to support its interpretation.
In Lou Fusz, we found that an insured's alleged violation of the Telephone Consumer
2

We note that under Missouri law, it is not the existence of differing
interpretations by the parties, but the existence of differing, reasonable interpretations,
that renders language ambiguous. As we explain, no ambiguity exists here.

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Protection Act (TCPA) was a covered injury under a policy providing liability defense
and indemnity. We determined an ordinary insured would interpret the phrases
"private nuisance" and "invasion of rights of privacy" to include faxing unsolicited
advertisements in violation of the TCPA. 401 F.3d at 881-82. We came to this
conclusion in light of the TCPA's legislative history, in which Congress repeatedly
described telemarketing as "intrusive," a "nuisance," and a "privacy invasion." Id.
(quoting 47 U.S.C. § 227 (Historical and Statutory Notes, re: Section 2 of Pub. L. 102243) (emphasis omitted)). These descriptions offered some evidence of how an
ordinary insured would interpret the language in the policy, whereas the insurer
"offer[ed] only technical and restricted legal definitions." Id. at 882. Wolfe asserts
that here, too, the district court relied on a technical and restricted legal definition
when it looked to the elements of a claim for conversion to determine how an ordinary
insured would interpret the policy.
Wolfe relies on Kirk King for the proposition that the retaking of the Jacksons'
vehicle and the procedure for its sale are part of an integrated process. In Kirk King,
a general liability policy provided coverage for suits for damages from an "'advertising
injury' caused by an offense committed in the course of advertising your goods,
products, or services." 123 S.W.3d at 264. "Advertising injury" was defined to
include copyright infringement. Id. King, the insured, constructed a home and was
sued by a copyright holder, who alleged the house infringed his copyrighted plans.
Id. at 262. The Missouri Court of Appeals found that because King had followed the
standard, construction-industry practice of placing a sign in front of the home as a
means of advertising his services, the infringement suit was a covered advertising
injury. Id. at 263-65. It reasoned that the act of advertising included the placement
of the sign in combination with the construction of the home, and thus the
construction occurred "in the course of advertising." Id. at 265-66. Wolfe argues that
the requirements of the U.C.C. and the MVTSA are similarly integral components of
a lawful repossession.

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To begin with, it is clear from the order that the district court did not restrict its
interpretation of wrongful repossession to the elements of conversion. Although the
district court acknowledged that under Missouri law a claim for wrongful repossession
is characterized as a claim for conversion, see Scott v. Twin City State Bank, 537
S.W.2d 641, 642 (Mo. Ct. App. 1976), it "accept[ed] plaintiff's contention that the
wrongful conduct in repossessions does not necessarily exactly conform to common
law definitions, which are not likely known to prospective insureds." The district
court's reasoning was not focused on the precise contours of the term "wrongful" but
rather on the fact that it modified the term "repossession." In this regard, Universal's
contention that a wrongful repossession necessarily means the debtor must not have
had the right to take possession is beside the point.3 The issue is whether the meaning
of "repossession" to an ordinary insured sweeps in the procedures required by statute
for disposition of the collateral.
We agree with the district court that it does not. The New Oxford American
Dictionary (3d ed. 2010) defines repossess as to "retake possession of (something)
when a buyer defaults on payments" and possession as "the state of having, owning,
or controlling something." Wolfe has the burden of proving that an ordinary insured
would think a repossession extends beyond the retaking of possession of the property
yet offers only a bare assertion in support of its position. Given that the term
"repossess" and its ordinary definition center on possession, it is difficult to see why
an ordinary insured would not understand the repossession to be complete once it
regained control of the vehicle. That the repossession of a vehicle and its subsequent
disposition are constituent parts of collecting on the Jacksons' debt does not, without
more, provide a sufficient basis for concluding an ordinary insured would interpret
wrongful repossession in a manner that strays so far from its meaning in common
3

Nor is it clear this argument is correct. As pointed out during oral argument,
a creditor who was within her rights to take possession may very well commit a
"wrongful" repossession by breaching the peace while doing so.

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usage.4 Further, Lou Fusz and Kirk King are distinguishable. In Lou Fusz, Congress's
descriptions of the occurrence at issue provided at least some indication as to how an
ordinary insured would interpret the policy. Wolfe, by contrast, does not offer any
evidence indicating an expansive interpretation of wrongful repossession is
appropriate. Wolfe relies on Lou Fusz to suggest the district court relied on an overly
technical and restrictive legal definition when it limited the meaning of wrongful
repossession to the elements of a conversion claim. But as we have explained this is
not what the district court did. In Kirk King, the act of advertising King's services
necessarily involved the construction of a home, otherwise there would have been
nothing to advertise. Here, by contrast, the pre- and post-sale notices were not part
of the repossession; they occurred after the repossession was complete and in
connection with the sale, a separate event.
Under the plain language of the policy, the umbrella coverage is not available
for the injuries alleged in the Jacksons' complaint. Thus Universal is entitled to
judgment as a matter of law that it is not under a duty to defend Wolfe from the
Jacksons' suit except to the extent such a duty may be provided for in the customer
complaint defense provision, and consequently that Universal is not under a duty to
indemnify Wolfe should the Jacksons be awarded damages. (That suit is still
pending.) Because Wolfe's claims for breach of contract and vexatious refusal to pay

4

Although an ordinary insured, it should be presumed, is not intimately familiar
with the U.C.C., it is telling that the U.C.C. treats repossession and disposition as
distinct events. Compare Mo. Rev. Stat. § 400.9-609 ("After default, a secured
party . . . [m]ay take possession of the collateral . . . [w]ithout judicial process, if it
proceeds without breach of the peace."), with id. § 400.9-610 ("After default, a
secured party may sell . . . the collateral . . . ."). Moreover, a creditor may dispose of
the collateral, but it is not required to do so. See id. Thus, under the U.C.C.
repossession does not necessarily entail the notice procedures that Wolfe claims form
part of the same integrated process.

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rest on the success of its declaratory judgment action, we need not address them, nor
Universal's remaining arguments, here.5
III.

CONCLUSION
Accordingly, for the reasons stated herein, we affirm the decision of the district

court.
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5

Wolfe also contends that Universal anticipatorily repudiated the policy by
stating to the district court it would not indemnify Wolfe should judgment be entered
for the Jacksons on their counterclaim. Wolfe provides no citation to the record to
support this contention, and in any event this argument fails because we find
Universal is not under a duty to indemnify Wolfe.

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