Grissom v. Welker et al

Filing 29

MEMORANDUM AND ORDER re: 16 MOTION for Summary Judgment filed by Garnishee Hartford Casualty Insurance Company motion is GRANTED. Signed by Honorable Rodney W. Sippel on 12/29/11. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LISA GRISSOM,
Plaintiff / Applicant,
v.
L0Y WELKER,
Defendant / Garnishee,
and
HARTFORD CASUALTY INSURANCE
COMPANY,
Defendant / Garnishee.

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Case No. 1:10CV144 RWS

MEMORANDUM AND ORDER
Plaintiff Lisa Grissom received a judgment is state court against her former employer,
Loy Welker, for wrongful discharge and retaliation. Grissom filed a garnishment action against
Welker’s insurer, Defendant Hartford Casualty Insurance Company, in an attempt to collect on
the judgment. Hartford has moved for summary judgment asserting that the state court judgment
is not covered under the policy. Because the actions of Welker are not covered by the policy I
will grant Hartford’s motion.
Legal Standard
Summary judgment is appropriate if the evidence, viewed in the light most favorable to
the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center,
160 F.3d 484, 486 (8th Cir. 1998)(citing Fed. R. Civ. P. 56(c)). The party seeking summary
judgment bears the initial responsibility of informing the court of the basis of its motion and

identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and
admissions on file which it believes demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Citrate, 477 U.S. 317, 323 (1986). When such a motion is made and supported
by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient
evidence to support the existence of the essential elements of his case on which he bears the
burden of proof. Id. at 324. In resisting a properly supported motion for summary judgment, the
plaintiff has an affirmative burden to designate specific facts creating a triable controversy.
Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
Background
Grissom sold insurance for First National Agency in Scott County, Missouri. Her
supervisor and the manager of her office was Loy Welker. Over a period of time Welker
engaged in a pattern of sexual harassment against Grissom at work. Grissom had a lawyer send a
letter to Welker telling him to stop the harassment or he would be sued. A short time later
Welker fired Grissom.
Grissom sued Welker and First National for, among other claims, wrongful discharge
and retaliation under Missouri law. These claims were based on Welker’s sexual harassment of
Grissom. The case was filed in the Circuit Court of Scott County, Missouri in the case styled
Grissom v. First National Inurance Agency, Cause N. 07SO-CV873. The jury reached a verdict
in favor of Grissom against only Welker.1 The jury awarded damages to Grissom only for her
claims of retaliation and wrongful discharge. A judgement was entered in the amount of
$214,507.91 which included actual damages in the amount of $25,000, punitive damages in the
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The jury found for First National on all the claims against it.
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amount of $100,000, and the balance composed of attorney’s fees.
Hartford had provided business insurance to First National. In an effort to collect the
judgment, Grissom issued a garnishment on Hartford. Although Hartford had provided the
defense of Welker and First National at trial, it did so under a reservation of rights as to any
liability for a judgment.
Hartford asserts that Welker’s intentional acts of harassment, retaliation, and wrongful
discharge are not covered under its policy issued to First National. Hartford seeks summary
judgment that its policy does not provide coverage to pay for Grissom’s judgment against
Welker.
Discussion
Grissom’s garnishment action was filed under section 525.010 R.S.Mo. and Missouri
Supreme Court Rule 90.01 and is an attempt to collect her judgment from a policy of insurance
under which Welker is an insured. Grissom, as the garnishor, has the burden of proof to show
that her claim is within the coverage provided by Hartford’s policy. M.A.B. v. Nicely, 911
S.W.2d 313, 315 (Mo. Ct. App. 1995). If an insurance company seeks to avoid coverage based
on an exclusion, it bears the burden of proof to show that the exclusion applies to a claim. Id.
However, Hartford’s motion for summary judgment is not based on exclusions in the policy. It is
based on the fact that Grissom’s claims do not fall under the coverages as defined by the policy.
Grissom asserts that her claim for payment of the judgment is covered by Hartford’s
policy under the Business Liability Coverage portion of the policy for “bodily injury” and under

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the provision for “personal and advertising injury.”2 (Pl.’s Opp’n to Summ. J. at 3) It is
Grissom’s burden to show that her claim is within these portions of the policy.
Grissom’s claim under the personal and advertising injury provision of the policy, as
defined in Section G. Liability and Medical Expenses Definitions, paragraph 15(h), is without
merit. That section provides coverage for discrimination or humiliation but only if the
discrimination or humiliation is not done intentionally by the insured, or, if it is not directly or
indirectly related to the employment or termination of employment of any person by any insured.
Paragraph 15(h)(1) and (2). The definition of coverage under this section clearly prevents
coverage for the judgment entered against Welker. He intentionally harassed and terminated
Grissom so his actions are not covered under paragraph 15(h)(1).3 In addition, the judgment is
directly related to the “termination of employment of any person” (Grissom) “by any insured”
(Welker) so it is not covered under paragraph 15(h)(2).
Grissom also asserts coverage under the bodily injury portion of the policy. Under the
policy, coverage is provided for bodily injury and property damage only if it results from an
occurrence. An “occurrence” is defined to mean an accident. Grissom argues that a genuine

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Plaintiff concedes in her opposition to summary judgment that the policy does not cover
punitive damages and that her claim is not covered under the policy’s Employment Practices
Coverage.
3

Although Grissom asserts a factual issue remains concerning whether Welker acted
intentionally, this issue is not really in dispute. Plaintiff pleaded and proved in the underlying
case that Welker intentionally sexually harassed Grissom. Grissom also pleaded and proved at
trial that Welker intentionally fired (wrongfully discharged) Grissom in retaliation for her
enforcing her rights under Missouri law. (Def.’s Mot. Summ. J. Ex. K) Moreover, the jury
awarded punitive damages against Welker for his retaliation against Grissom. Under the punitive
damages instruction the jury found Welker’s retaliation action to be outrageous based on his
“evil motive or reckless indifference.” (Def.’s Mot. Summ. J. Ex. N)
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issue of fact is still at issue at to whether Grissom’s termination and wrongful discharge may be
deemed to be an accident under the policy rather than an intentional act which would not be
covered. Grissom states that the term “accident” is not defined by the policy but should be given
its natural definition, that it is an “event which takes place without one’s foresight or expectation;
an undesigned, sudden, and unexpected event.” (Pl.’s Opp’n to Summ. J. at 4) Grissom has the
burden of proof to show that Welker’s actions were an accident. That is, she must prove that
Welker did not consciously or deliberately intend to act as he did or that he did not intend to
inflict harm upon Grissom. See State Farm Fire & Cas. Co. v. D.T.S., 867 S.W.2d 642, 644
(Mo. Ct. App. 1993).
Grissom does not state how her claim for retaliation and wrongful discharge were the
result of an accident. To the contrary, she asserted at trial that she was purposefully fired from
her job by Welker in retaliation for objecting to his intentional sexual harassment. Her present
assertion that her termination was the result of an accident makes no sense, is without evidentiary
support, and is completely counter to the basis of her claims which resulted in the judgment at
issue.
In addition, in its answers to Grissom’s garnishee’s interrogatories, Hartford specifically
stated that the evidence at trial and the claim submitted to the jury did not fall within the
definition of an “occurrence” under the policy. (Def.’s Mot. Summ. J. Ex. A at 4) In her
exceptions to Hartford’s answers to garnishee’s interrogatories, Grissom failed to expressly deny
Hartford’s answer that her claims were not an occurrence under the policy. (Def.s Mot. Summ. J.
Ex. B)
“Garnishment is purely a creature of statute in derogation of the common law.” Moore
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Automotive Group, Inc. v. Goffstein, 301 S.W.3d 49, 53 (Mo. 2009) (internal quotation and
citation omitted). Under Missouri Supreme Court Rule 90.07(c) a garnishee's answers to
interrogatories are conclusively binding against the garnishor if the garnishor does not timely file
exceptions to the interrogatory answers. Id. at 54. Under R.S.Mo. § 525.210 “‘[i]f the answer of
the garnishee be not excepted to nor denied in proper time, it shall be taken to be true and
sufficient.’” Id. “The effect of Rule 90.07(c) and section 525.210 is that a garnishor's failure to
file exceptions is deemed to be a judicial admission on the part of the garnishor that the
garnishee's interrogatory answers are true.” Id.
Because Grissom failed to deny in her exceptions to Hartford’s answer that the claim
submitted by Grissom to the jury was not an occurrence under the policy, Hartford’s answer is
binding upon Grissom. Moreover, even if Grissom had asserted such a denial, the evidence
indisputably shows that the claims she prevailed on at trial, retaliation and wrongful discharge,
were not accidents and so do not meet the definition of an occurrence under the policy.
Accordingly,
IT IS HEREBY ORDERED that Hartford Casualty Insurance Company’s motion for
summary judgment [#16] is GRANTED.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 29th day of December, 2011.

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