In the Missouri Court of Appeals Eastern District DIVISION THREE
HAROLD BARNETT, ) No. ED109008 ) Respondent, ) ) vs. ) ) Appeal from the Circuit Court COLUMBIA MAINTENANCE ) of the City of St. Louis COMPANY, et al., ) ) Respondents, ) ) Honorable Christopher McGraugh AMCO INSURANCE COMPANY ) and ) DEPOSITORS INSURANCE ) COMPANY ) ) Appellants. ) Filed: June 29, 2021
AMCO Insurance Company and Depositors Insurance Company (collectively “Insurers”)
appeal the circuit court’s order denying their motion to intervene in a proceeding to confirm an
arbitration award. Insurers sought to contest confirmation of the award, which was entered in
favor of Harold Barnett and against Insurers’ policy holders. Finding that the circuit court did
not err, and that certain of Insurers’ points are not properly before this Court, we affirm.
Factual and Procedural Background
Terminated from his job, Barnett sued his employer, Columbia Maintenance Company,
and William Hausman, the president and sole owner of Columbia Maintenance Company
(collectively “Defendants”), alleging violations of the Missouri Human Rights Act, as well as negligent infliction of emotional distress (“MHRA Action”). Insurers, who had issued
commercial general liability and umbrella polices to Defendants, denied coverage and refused to
defend Defendants. Insurers then filed a declaratory judgment action in federal court, seeking a
declaration that under the terms, conditions, and exclusions of Defendants’ policies, Insurers had
no duty to defend or to indemnify Defendants against Barnett’s MHRA Action.
After Insurers denied coverage and refused to defend Defendants, Barnett and Defendants
entered into a contract pursuant to Section 537.065, which in part limited recovery to insurance
proceeds (“537 Agreement”). Barnett notified Insurers of this contract on August 13, 2019. Five
days later, Insurers moved to intervene in the MHRA Action. The circuit court granted
intervention, and requested that the parties file memorandums concerning the extent to which
Insurers could conduct discovery and participate in trial. After receiving those memorandum,
the circuit court issued an order, dated October 4, 2019, in which the court stated that Insurers
“must accept this lawsuit as they find it at the time of their intervention,” and then ordered that
Insurers “have the same rights and responsibilities as any other party to this litigation, which
includes conducting discovery and participating in trial” (“October 2019 Order”).
Barnett dismissed the MHRA Action, without prejudice, on January 30, 2020, and
proceeded to binding arbitration with Defendants. Insurers were extended invitations to
participate in that arbitration, but declined to do so. The arbitrator issued his award on April 29,
2020, in favor of Barnett and against Defendants in the total amount of $11,437,009.90
(“Arbitration Award”). The arbitrator described Defendants’ actions as “one of the most
egregious and blatant Missouri Human Rights case violations” that the arbitrator had ever seen.
Barnett filed his application to confirm the award with the circuit court on May 1, 2020
2 (“Confirmation Proceeding”). Defendants responded, stating they had no objection to judgment
being entered on the award.
Insurers moved to intervene in the Confirmation Proceeding on May 8, 2020. Insurers
sought to intervene both as of right and by permissive intervention, pursuant to Rule 52.12, to
contest confirmation of the Arbitration Award (“Motion to Intervene”). They also filed a motion
to deny and/or dismiss the application for approval of the Arbitration Award on May 19, 2020
(“Motion to Dismiss”). The circuit court denied Insurers’ Motion to Intervene.
Insurers now advance nine points on appeal, alleging the circuit court erred in denying
intervention, and in denying or implicitly denying their Motion to Dismiss. We address each
point, but note that the issues raised by Insurers have largely been decided by Britt v. Otto, 577
S.W.3d 133 (Mo. App. W.D. 2019), Aguilar v. GEICO Cas. Co., 588 S.W.3d 195 (Mo. App.
W.D. 2019), and this Court’s recent decision, Loveland v. Austin, ED108859, 2021 WL1374010
(Mo. App. E.D. April 13, 2021).
Discussion
Points I and II: Intervention of Right
In their first two points on appeal, Insurers allege the circuit court misapplied Rule
52.12(a) in denying their Motion to Intervene in the Confirmation Proceedings as a matter of
right.1 Rule 52.12(a) states:
Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
1 For clarity, we address Points I and II out of order.
3 Insurers claim a right to intervention pursuant to Rule 52.12(a)(1) because an unconditional right
to do so is conferred by Section 537.065.2. Insurers claim a right to intervene pursuant to Rule
52.12(a)(2) because they had an interest in the Confirmation Proceeding and were so situated
that disposition of the Confirmation Proceeding impaired or impeded their ability to protect their
interests, which were not represented by the existing parties.
We address each claim in turn. In reviewing the circuit court’s denial of intervention as
of right, we consider the facts in the light most favorable to the court’s judgment.” Britt, 577
S.W.3d at 136 n.3 (internal quotation omitted). We will affirm the circuit court’s decision unless
there is no substantial evidence to support it, it is against the weight of the evidence, or it
erroneously declares or applies the law. State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d
397, 403 (Mo. banc 2016); see also Britt, 577 S.W.3d at 139.
Intervention as a Matter of Right Pursuant to Rule 52.12(a)(1)
Insurers claim they were entitled to intervene in the Confirmation Proceeding as a matter
of right pursuant to Rule 52.12(a)(1) because Section 537.065.2 conferred the unconditional right
to do so. Section 537.065.1 allows any person with an unliquidated claim for damages to enter
into a contract with a tortfeasor to limit the tort-feasor’s liability for a judgment to specified
assets, including insurance contracts. Britt, 577 S.W.3d at 140; see also, Schmitz v. Great Am.
Assurance Co., 337 S.W.3d 700, 709 (Mo. banc 2011). The right to enter into a section
537.065.1 contract limiting the tort-feasor’s liability to an insurance contract is conditioned on
the tort-feasor’s insurer being afforded the opportunity to defend the tort-feasor and refusing to
do so without reservation. Britt, 577 S.W.3d at 140. Section 537.065.2 then describes when a
judgment can be entered against a tort-feasor who has entered into a Section 537.065.1 contract:
Before a judgment may be entered against any tort-feasor after such tort-feasor has entered into a contract under this section, the insurer or insurers shall be
4 provided with written notice of the execution of the contract and shall have thirty days after receipt of such notice to intervene as a matter of right in any pending lawsuit involving the claim for damages.
(Emphasis added).
Insurers claim this statutory right to intervene applies to the Confirmation Proceeding. In
essence, Insurers seek to expand the statutory language to mean insurers have thirty days to
intervene after receiving notice of a confirmation proceeding. This same argument was rejected
in Aguilar, Britt, and Loveland.
Any time this Court is called upon to apply a statute, our primary obligation is to
ascertain the intent of the legislature from the language used, and to give effect to that intent if
possible. Hixson v. Missouri State Highway Patrol, 611 S.W.3d 923, 926 (Mo. App. E.D. 2020).
We do so by considering the words used in their plain and ordinary meaning. Id. We examine
the language used by the legislature, and do not supply what the legislature has omitted by
engrafting additional language into the statute. Missouri State Conference of Nat’l Ass’n for the
Advancement of Colored People v. State, 607 S.W.3d 728, 733 (Mo. banc 2020). “In statutory
construction, courts must give effect to the statute as written and cannot add provisions which do
not appear either explicitly or by implication.” Garza v. Valley Crest Landscape Maint., Inc.,
224 S.W.3d 61, 64 (Mo. App. W.D. 2007)).
From examining the plain and ordinary language of Section 537.065.2, it is clear the
statute only allows an insurer to intervene as a matter of right provided the insurer files its
motion to intervene within thirty days after receiving notice of an agreement executed pursuant
to Section 537.065.1. Barnett provided the required notice of the 537 Agreement to Insurers on
August 13, 2019. Though Insurers timely filed a motion to intervene in the MHRA Action that
was pending at the time, that action was voluntarily dismissed, and Barnett and Defendants
5 proceeded to arbitration. Barnett filed his application to confirm the arbitration award on May 1,
2020. Insurers filed their Motion to Intervene in the Confirmation Proceeding seven days later,
on May 8, 2020. Though filed days after commencement of the Confirmation Proceeding,
Insurers’ motion was nonetheless filed almost nine months after notice of the 537 Agreement -
far outside the statute’s thirty-day limit. Insurers did not file their Motion to Intervene within
thirty days of receipt of written notice of the 537 Agreement, and thus Insurers’ motion was
untimely.
Even assuming the Confirmation Proceeding qualified as a “pending lawsuit involving
the claim for damages” (an issue we need not decide), it was not pending during the thirty-day
time period after Barnett gave written notice of the 537 Agreement to Insurers. Thus applying
Section 537.065.2 as written, without adding provisions, the right to intervene granted under
Section 537.065.2 cannot extend to the Confirmation Proceeding because it was not pending in
the thirty-day time period after Insurers received notice of the 537 Agreement. The plain and
ordinary language of Section 537.065.2 constrains the exercise of the right to intervene granted
under that subsection to “any pending lawsuit” within the thirty-day time period after an insurer
receives notice of an agreement made pursuant to Section 537.065.1. Whatever right to
intervene that Insurers were granted under Section 537.065.2 had expired by the time the
Confirmation Proceeding commenced. In sum, the plain and unambiguous language of Section
537.065.2 did not afford Insurers the right to intervene as of right in the Confirmation
Proceeding. Aguilar, 588 S.W.3d at 199. As we stated in Loveland, “[s]hould the General
Assembly desire to enlarge the right of an insurance company to intervene in a lawsuit or other
proceeding involving one of its insureds, it is certainly free to do so.”
6 Insurers on appeal acknowledge that their Motion to Intervene in the Confirmation
Proceeding was filed more than thirty days after they received notice of the 537 Agreement, and
that the Confirmation Proceeding was not pending at that time. Nonetheless, they argue their
motion should not have been denied on this basis because of their successful and timely prior
intervention, and the purported confirmation of their rights, in the MHRA Action to defend
against Barnett’s claims for liability and damages. Insurers argue that by virtue of these
occurrences, they possessed a vested and acknowledged interest in contesting the arbitration
award as a confirmed judgment, regardless of the fact that the Confirmation Proceeding was filed
more than thirty days after they were provided notice of the 537 Agreement. They note they
immediately moved to intervene in the Confirmation Proceeding – within thirty days of Barnett’s
confirmation application – and thus contend the circuit court should have granted their Motion to
Intervene.
Insurers are mistaken. Insurers seek intervention beyond the statutory thirty-day time
period. The plain and ordinary language of Section 537.065.2 does not support such a premise.
Section 537.065.2 affords a limited right, to be exercised within thirty days of notice. Further,
Insurers argue that by timely intervening in MHRA Action and securing the October 2019 Order,
their interests in the Arbitration Award and future judgment became vested, and thus they
possessed an existing right at the time of the Confirmation Proceedings. Insurers cite no
authority for this proposition. Moreover, it does not matter that Insurers’ motion to intervene in
the MHRA Action was granted, as that case was voluntarily dismissed without prejudice. Once
a plaintiff has voluntarily dismissed an action, it is as if the suit had never been filed. State ex
rel. Frets v. Moore, 291 S.W.3d 805, 812 (Mo. App. S.D. 2009) (internal citations omitted).
7 The circuit court did not err in denying Insurers’ Motion to Intervene in the Confirmation
Proceeding as a matter of right pursuant to Rule 52.12(a)(1), as Section 537.065.2 did not confer
upon Insurers the unconditional right to do so in this case. We deny Point II.
Intervention as a Matter of Right Pursuant to Rule 52.12(a)(2)
Insurers argue Rule 52.12(a)(2) required the circuit court to grant their motion to
intervene because they claimed an interest in the Confirmation Proceeding and were so situated
that the disposition of the Confirmation Proceeding impaired or impeded their ability to protect
their interests, which were not represented by the existing parties.
Again, a movant may intervene in an action as a matter of right upon timely application
pursuant to Rule 52.12(a)(2) when three requirements are met: (1) the movant claims an interest
relating to the property or transaction that is the subject of the action; (2) the movant’s ability to
protect the interest is impaired or impeded; and (3) the existing parties are inadequately
representing the movant’s interest. Britt, 577 S.W.3d at 142. Insurers, as movant and proposed
intervenor, bore the burden of establishing each of the requirements for intervention. Id. If all
three requirements are satisfied, the right to intervention is absolute. State ex rel. Nixon v. Am.
Tobacco Co., 34 S.W.3d 122, 127 (Mo. banc 2000); Britt, 577 S.W.3d at 142. But if any one of
the requirements is not established, the motion to intervene may be denied. Britt, 577 S.W.3d at
142. Here, Insurers did not demonstrate the first requirement. Insurers claimed interests arising
from three sources – the 537 agreement, the October 2019 Order, and a conclusion of law in the
Arbitration Agreement. None of these are sufficient.2
Insurers first claimed an interest in the Confirmation Proceedings arising from the 537
Agreement. Insurers argue once Barnett and Defendants entered into that agreement, Defendants
2 Because Insurers did not establish the first of three requirements, their motion necessarily must fail, and we do not discuss the other two requirements. See Aguilar, 588 S.W.3d at 200.
8 had no incentive to defend against Barnett’s claims. Insurers contend they possessed sufficient
interests in the determination of Defendants’ liability and in preventing an uncontested judgment
against Defendants to support their intervention as a matter of right. Our Court has addressed
and rejected almost this exact argument in Britt, Aguilar, and Loveland.
The first requirement of Rule 51.12(a)(2) necessitates there be an interest in the property
or transaction. For purposes of intervention as a matter of right, a movant’s interest “must be a
direct and immediate claim to, and have its origin in, the demand made or the proceeds sought or
prayed by one of the parties to the original action.” Britt, 577 S.W.3d at 142 (internal quotations
and citations omitted). “An interest necessary for intervention as a matter of right does not
include a mere, consequential, remote or conjectural possibility of being affected as a result of
the action, but must be a direct claim upon the subject matter such that the intervenor will either
gain or lose by direct operation of judgment.” Id.
“Missouri courts have long held that the liability of an insurer as potential indemnitor of
the judgment does not constitute a direct interest in such a judgment so as to implicate
intervention as of right in that action.” Britt, 577 S.W.3d at 142 (internal quotations omitted);
see also Aguilar, 588 S.W.3d at 200; Loveland, 2021 WL1374010 at *4. “This is because the
insurer does not either gain or lose from the direct operation of that judgment.” Id. An action to
confirm an arbitration award is not an action to compel Insurers to pay the award, it only seeks to
reduce the award to a judgment. Britt, 577 S.W.3d at 144. “[T]he insurer has a forum by
declaratory judgment action or in the action to compel indemnity for the judgment that affords
the insurer full scope to protect its interests against the contention of coverage, and hence
liability for the judgment.” Id. at 142 (internal quotations omitted). In other words, “in the third
party liability claim context, the insurance carrier has no right to intervene in litigation between
9 its policyholder and the third party; the carrier can participate in the litigation only pursuant to its
contractual obligation to defend the policyholder.” Id. Insurers will have their day in court upon
the question of its liability, but it was not at the Confirmation Proceeding. Britt, 577 S.W.3d at
144; see also Aguilar, 588 S.W.3d at 200-201; Loveland, 2021 WL1374010 at *4-5. Insurers
have no interest stemming from the 537 Agreement that would support intervention as a matter
of right pursuant to Rule 52.12(a)(2).
Insurers next claimed an interest in the Confirmation Proceedings arising from the
October 2019 Order. They note they successfully intervened in the MHRA Action, and that the
circuit court ordered that they had the “same rights and responsibilities as any other party” to the
litigation, which included conducting discovery and participating in trial as warranted. Insurers
thus argue they clearly possessed interests in enforcing their rights acknowledged by the October
2019 order.
We hold Insurers had no interest stemming from the October 2019 Order. That order was
correctly entered in the underlying MHRA Action. Barnett voluntarily dismissed that action
without prejudice on January 30, 2020, before the Confirmation Proceeding. Once a plaintiff has
voluntarily dismissed an action, it is as if the suit had never been filed. State ex rel. Frets v.
Moore, 291 S.W.3d 805, 812 (Mo. App. S.D. 2009). Consequently, orders in dismissed actions
have no affect. Insurers cite no authority for their proposition that an order from a dismissed
case binds the court in a future proceeding.
Lastly, at oral arguments before this Court, Insurers argued they have a direct interest in
the case by virtue of a conclusion of law in the Arbitration Award that states Insurers “were
given an opportunity to fully participate in this hearing by consent of the parties under
reasonable and understandable conditions and failed to do so.” Insurers state this interest is over
10 and above the issue of their financial liability, and complain that a conclusion of law was entered
against them without the opportunity of being heard. Insurers contend this conclusion is binding
on them, and that it will be used against them in the garnishment proceeding as evidence of their
bad faith.
Insurers raised this argument for the first time on appeal. Insurers did not include this
contention in their Motion to Intervene. As such, this argument is not properly before this Court.
An issue raised for the first time on appeal and not presented to or decided by the circuit court is
not preserved for appellate review. McCullough v. Commerce Bank, 349 S.W.3d 389, 395 (Mo.
App. W.D. 2011). An argument cannot be refined on appeal. Even had Insurers properly
preserved this argument, we are not persuaded this conclusion will have any prejudicial effect in
future actions. Though termed a conclusion of law, it really is just a statement of facts.
Moreover, it is clear Insurers were not a party to the Arbitration Award or the judgment
confirming that award.
We hold Insurers did not establish they had the requisite interest relating to the property
or transaction which was the subject of the Confirmation Proceeding.3 The circuit court
3 We acknowledge that the Western District stated in Knight that “[b]y enacting new §537.065.2, the General Assembly necessarily rejected the judge-made rule that liability insurance carriers lack any direct interest in tort litigation against their insureds.” Knight by and Through Knight v. Knight, 609 S.W.3d 813, 819 (Mo. App. W.D. 2020). However, we reaffirm our explanation from our recent Loveland decision, wherein we stated: … to the extent Knight recognizes more than a limited statutory right of an insurer to intervene in any pending lawsuit involving a claim for damages against its insured within thirty (30) days after receiving the notice required under Section 537.065.2, we reject any such expansion of that limited statutory right because it not only conflicts with the principle of statutory construction that “courts must give effect to the statute as written and cannot add provisions which do not appear either explicitly or by implication,” id. at 823 (quoting Garza v. Valley Crest Landscape Maint., Inc., 224 S.W.3d 61, 64 (Mo. App. E.D. 2007)), but also conflicts with prior Western District precedent, Britt and Aguilar, each of which were also decided after the August 2017 amendment of Section 537.065.2, which provided the new limited statutory right to intervene. Section 537.065.2 (“a statute of this state”) clearly provides a “right to intervene” such that intervention is allowed under either Rule 52.12(a)(1)(if “an unconditional right to intervene” exists) or Rule 52.12(b)(1) (if “a conditional right to intervene” exists). Section 537.065.2 explicitly provides a statutory right to intervene (matching either Rule 52.12(a)(1) or Rule 52.12(b)(1)), but does not explicitly or implicitly establish that insurers have “an interest relating to the property or transaction that is the subject of” actions involving tort claims where the insurer has denied
11 therefore did not err in denying Insurers’ Motion to Intervene as a right under Rule 52.12(a)(2).
We deny Point I.
Point III: Permissive Intervention
Next, Insurers allege the circuit court abused its discretion in denying permissive
intervention. Though the circuit court’s order denying permissive intervention under Rule
52.12(b) is not a final judgment, we nonetheless review the circuit court’s denial for abuse of
discretion.4 Breitenfeld v. Sch. Dist. of Clayton, 399 S.W.3d 816, 837 (Mo. banc 2013); Britt,
577 S.W.3d at 145.
Rule 52.12(b) permits intervention in three instances, only two of which are relevant
here: (1) “when a statute of this state confers a conditional right to intervene;” and (2) “when an
applicant’s claim or defense and the main action have a question of law or fact in common.”5
coverage and an agreement has been executed pursuant to Section 537.065.1. See Rule 52.12(a)(2); see also infra Point I and II for further explanation of why we do not determine whether the statutory right to intervene granted by Section 537.065.2 is unconditional or conditional. Thus, we recognize that the new statutory right to intervene under Section 537.065.2 is limited to its express terms, and will not read any more into the statute than is written. We therefore disagree with the premise of the specific reasoning in Knight that, by enacting Section 537.065.2, “the General Assembly necessarily rejected the judge-made rule that liability insurance carriers lack any direct interest in tort litigation against their insureds,” and decline to adopt that rationale or follow it in this case. 609 S.W.3d at 819. Loveland, ED108859, 2021 WL1374010, *4 n.7. Further, the Western District’s statement was made in the context of the Court’s analysis of standing to appeal. There is nothing in Knight that suggests or implies that Aguilar and Britt should no longer be followed. 4 A circuit court order denying a motion to intervene under Rule 52.12(b), permissive intervention, is not a final judgment and therefore not reviewable on appeal. Aguilar, 588 S.W.3d at 201 (citing BMO Harris Bank v. Hawes Trust Invs., LLC, 492 S.W.3d 607, 615 (Mo. App. W.D. 2016). The Supreme Court of Missouri has explained that “‘[t]he permissive nature of such intervention necessarily implies that, if intervention is denied, the applicant is not legally bound or prejudiced by any judgment that might be entered in the case.’” State ex rel. Reser v. Martin, 576 S.W.2d 289, 290 (Mo. banc 1978) (quoting Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 524 (1947)); Aguilar, 588 S.W.3d at 201. The applicant “‘is at liberty to assert and protect his interests in some more appropriate proceeding. Id. “‘Having no adverse effect upon the applicant, the order denying intervention accordingly falls below the level of appealability.’” Id. However, courts in other cases involving the denial of permissive intervention have reviewed for abuse of discretion. See, e.g., Britt, 577 S.W.3d at 145; Loveland, 2021 WL1374010 at *7; Breitenfeld v. Sch. Dist. of Clayton, 399 S.W.3d 816, 837 (Mo. banc 2013). Therefore, we will consider Insurers’ point regarding permissive intervention on the merits, and review for abuse of discretion. 5 Rule 52.12(b) also permits intervention “when the validity of a statute, regulation or constitutional provision of this state, or an ordinance or regulation of a governmental subdivision thereof, affecting the public interest, is drawn in question in any action to which the state or governmental subdivision or an officer, agency or employee thereof is not a party, the court may in its discretion notify the chief legal officer of the state or governmental subdivision
12 Insurers contend permissive intervention was warranted under Rule 52.12(b)(1) because
Section 537.065.2 provided them a conditional right to intervene. In light of our denial of Point
II – holding that Section 537.065.2 did not confer upon Insurers the unconditional right to
intervene as of right in the Confirmation Proceeding – this contention likewise fails.
Insurers argue permissive intervention was warranted under Rule 52.12(b)(2) because
their objections to confirmation of the Arbitration Award presented plain questions of law and
fact in common with Barnett’s application for confirmation of that award.
Simply comparing Insurers’ Motion to Intervene to Barnett’s application reveals that
Insurers’ motion did not present a question of law or fact in common with the issues presented
by Barnett. Barnett’s application requested the circuit court to confirm the Arbitration Award
and enter judgment against defendants Columbia Maintenance Company and William Hausman.
Defendants had no objection to entry of judgment, and asserted no grounds for vacating,
modifying, or correcting the award.
In contrast, Insurers in their Motion to Intervene sought to preclude enforcement of the
Arbitration Award. They argued the award was “collusive, invalid, and unenforceable and was
procured by undue means.” They characterized the arbitration proceeding as a “sham,” designed
solely to circumvent the October 2019 Order and to deprive them of statutory and constitutional
rights. They contended the amount of the Arbitration Award was wholly unsupported by the
evidence. They asserted claims of collusion against Barnett and Defendants, and argued issues
of law that were not otherwise present in the Confirmation Proceeding.
Insurers did not and do not show how the facts or law underlying these matters are shared
with the issues presented to the circuit court in Barnett’s application to confirm the Arbitration
thereof, and the state or governmental subdivision may in the discretion of the court be permitted to intervene, upon proper application.”
13 Award. Insurers want to challenge the validity of the Arbitration Agreement and the
enforceability of the Arbitration Award. The parties to the Arbitration Agreement, however,
were not required under Section 435.400 to litigate the validity of the arbitration agreement or to
prove to the court that it was enforceable when seeking to confirm the award. Aguilar, 588
S.W.3d at 202. Because the circuit court here was asked to confirm the award, and no grounds
were urged by the parties to the arbitration for vacating, modifying, or correcting the award,
neither the validity nor the enforceability of the award was at issue. Id. Further, because no
application was filed to vacate the award for undue fraud, questions of law and fact pertaining to
the circumstances under which the parties entered the agreement were similarly not at issue. Id.
Though Insurers accuse Barnett and Defendants of collusion and fraud, their accusations
are conclusory. We see no evidence in the record to support their accusations. All parties, upon
Insurers denying coverage, proceeded according to their statutory rights. Insurers filed a
declaratory judgment in federal court to determine coverage. Barnett and Defendants entered
into the 537 Agreement, and Barnett gave notice of that agreement to Insurers, as required.
Barnett was well within his rights to dismiss his case and proceed to arbitration. Proceeding
according to ones’ rights is not collusion, as Insurers would have us believe.
To conclude, we hold Section 537.065.2 did not confer insurers a conditional right to
intervene, and the insurers’ motion did not present questions of law or fact in common with those
in the Confirmation Proceeding, such that Insurers could permissively intervene pursuant to Rule
52.12(b). Furthermore, in denying permissive intervention, the circuit court was entitled to
consider that Insurers declined an invitation to participate in the arbitration proceeding. Britt,
14 577 S.W.3d at 145-46. The circuit court did not abuse its discretion in denying permissive
intervention. We deny Point III.6
Point IV: Constitutional Rights
Insurers allege the circuit court’s denial of their Motion to Intervene violated their right to
due process of law under the Fifth and Fourteenth Amendments of the United States Constitution
and Article I Section 10 of the Missouri Constitution and deprived them of their constitutional
right to access the courts pursuant to Article I Section 14 of the Missouri Constitution. Insurers
insist they were given no opportunity to be heard on a judgment for which they are now
subjected to garnishment.
Respondents argue, persuasively so, that this point is not preserved for our review. When
asserting a constitutional claim, a party must “state the facts showing the constitutional
violation.” Mayes v. St. Luke's Hosp. of Kansas City, 430 S.W.3d 260, 266 (Mo. banc 2014);
Aguilar, 588 S.W.3d at 199-200. Insurers did not do so. Insurers’ Motion to Intervene contained
only conclusory statements that denying intervention would impair their constitutional rights.
This is not sufficient. The arguments in Insurers’ Motion to Intervene and their suggestions in
support of that motion are certainly not as developed as those presented now on appeal. “An
attack on the constitutionality of a statute is of such dignity and importance that the record
touching such issues should be fully developed and not raised as an afterthought in a post-trial
motion or on appeal.” Mayes, 430 S.W.3d at 268 (footnote and internal quotations omitted).
Even if Insurers had properly presented and preserved this issue for appellate review,
relief would not be forthcoming. Insurers’ claim of constitutional deprivations is based upon the
6 Insurers’ Motion to Intervene also fails because the motion was not “accompanied by a pleading setting forth the claim or defense for which intervention is sought,” as required by Rule 52.12(c). We cannot convict the circuit court of error for denying a motion that does not comply with the requirements of the Rules of Civil Procedure. See State ex rel. Country Mutual Insurance Co. v. May, 620 S.W.3d 96 (Mo. banc 2021)(Wilson, J., concurring); Nast by and through Freeman v. Gateway Ambulance Service, LLC, 502 S.W.3d 653, 656 (Mo. App. E.D. 2016).
15 premise that they must have the opportunity to be heard and to defend their interests related to
Barnett’s claim against Defendants. Insurers ignore two simple facts. First, they had the
opportunity to participate and defend their interests when they had the chance to defend
Defendants as the issuer of Defendants’ policy. Instead, Insurers chose to deny coverage to
Defendants, and refused to defend them against Barnett’s claim. Further, Insurers declined the
invitation to fully participate in arbitration. Contrary to their assertions, Insurers had an
opportunity to be heard and to defend themselves against Barnett’s claims. They chose not to.
Second, the appropriate forum for Insurers’ dispute at this point is in the pending declaratory
judgment action and/or the pending garnishment action. Aguilar, 588 S.W.3d at 201; Loveland,
2021 WL1374010 at *5,8. Insurers acknowledge as much, and assert they will seek to dispute
the amount of the judgment and their liability for that judgment in those actions.
Insurers were not entitled to intervention as a matter or right or permissive intervention in
the Confirmation Proceeding. As such, Insurers have no recognizable interest on which to base
their constitutional claims, and thus those claims necessarily fail. The circuit court did not
violate Insurers’ constitutional rights in denying their Motion to Intervene. Loveland, 2021
WL1374010 at *8; Augspurger v. MFA Oil Co., 940 S.W.2d 934, 938 (Mo. App. W.D. 1997).
We deny Point IV.
Point V: Objection to Confirmation of Arbitration Award
For their fifth point, Insurers allege the circuit court erred in ruling the Insurers were
unable to object to confirmation of the arbitration award. Insurers allege the circuit court
misapplied the law in that upon being granted intervention, and by the October 2019 Order,
Insurers were entitled to assert the same rights as those held by Defendants, and alternatively,
16 under Section 537.065, were entitled to assert their own rights, independent of those held by
Defendants. We hold this point is defective and not preserved for our review.
An appellant’s point relied on defines the scope of appellate review. Moore v. Firstar
Bank, 96 S.W.3d 898, 901 n.4 (Mo. App. S.D. 2003). In framing a point on appeal, an appellant
must “[i]dentify the trial court ruling or action that the appellant challenges.” Rule
84.04(d)(1)(B). Here, Insurers challenge a ruling, described as “unable to object to confirmation
of the arbitration award,” which Insurers say is located on Page 8 of the circuit court’s order
denying Insurer’s Motion to Intervene. Review of the circuit court’s order, and in particular
Page 8 of that order, reveals that the circuit court was ruling on Insurers’ claim for permissive
intervention. There is no separate ruling – or even language stating that Insurers were “unable to
object to confirmation of the arbitration award.” We are unable to review a ruling never made.
Though we are not obliged to review an argument in the face of a defective and thus
unpreserved point, we have nevertheless briefly reviewed Insurers’ argument under this point.
Insurers appear to be challenging the circuit court’s ruling regarding permissive intervention.
Insurers incorporate by reference their argument set forth in support of Point III, which was the
point challenging the circuit court’s ruling on permissive intervention. Insurers then argue they
had a right to intervene, and that right necessarily means they have the right to not only stand in
the shoes of the Defendants, but also to assert their own independent interests, to contest
confirmation of the arbitration award and defend against Barnett’s allegations. Insurers thus
argue, that because they had these rights, they should have been allowed to permissively
intervene, and accordingly seek reversal, claiming the circuit court misapplied the law in denying
permissive intervention. Insurers’ argument fails because their argument is premised upon their
17 contention they had a right to intervene. We have already addressed, and rejected, this
contention. We deny Point V.
Points VI, VII, VIII, and IX: Motion to Dismiss
Insurers, in Points VI, VII, VIII, and IX, allege the circuit court erred in denying or
impliedly denying their Motion to Dismiss and/or Deny Confirmation of the Arbitration Award
and in entering judgment confirming the Arbitration Award. Insurers filed this motion during
the Confirmation Proceeding. Insurers were not a party to the Arbitration Agreement or Award,
and intervention in the Confirmation Proceeding had not been, and was never granted.
Barnett asserts Insurers conceded during the hearing on their Motion to Intervene that
they had no standing to bring this motion unless the circuit court granted intervention. We agree
with this proposition. However, the hearing on the Motion to Intervene was not recorded or
transcribed. We therefore have no record of what was actually said, argued, or conceded. We
will not presume or infer any purported concession. We can only go on the record before us, and
that record shows the Motion to Dismiss was never noticed up for hearing. Further, the circuit
court did not mention or address the Motion to Dismiss in its order and judgment denying
intervention and confirming the Arbitration Award. The Motion to Dismiss simply was not a
subject of the circuit court’s ruling. Again, an appellant’s point relied on defines the scope of
appellate review. Moore, 96 S.W.3d at 901 n.4. Insurers in these four points allege error in the
denial of their Motion to Dismiss. On the record before this Court, Insurers motion was never
argued to the circuit court and no ruling was made thereon. Since lack of a specific ruling
preserves nothing for review, this Court need not and will not consider a point upon which no
ruling has been made. Holt v. Holt, 780 S.W.2d 156, 157 (Mo. App. S.D. 1989). We therefore
18 deny, without further discussion, Points VI, VII, VIII, and the portion of Point IX alleging error
in the denial of the Insurers’ Motion to Dismiss.
Lastly, Insurers also allege in Point IX that the circuit court erred in denying their Motion
to Intervene because the court entered a judgment in the absence of a necessary party. In an
undeveloped argument, Insurers argue they had an absolute and unconditional statutory right to
intervene under Section 537.065.2, and therefore the circuit court lacked discretion to deny their
Motion to Intervene and render judgment without their presence and participate in the action.
This contention fails because Insurers did not have a right to intervene under Section 537.065.2.
We deny Point IX.
Conclusion
For the foregoing reasons, we affirm the circuit court’s order denying Insurers’ Motion to
Intervene in the Confirmation Proceeding.
_______________________________ Angela T. Quigless, Judge
Kurt S. Odenwald, J., concurs in a separate opinion and James M. Dowd, J., concurs in a separate opinion.
19 In the Missouri Court of Appeals Eastern District DIVISION THREE
HAROLD BARNETT, ) No. ED109008 ) Respondent, ) ) vs. ) ) Appeal from the Circuit Court COLUMBIA MAINTENANCE ) of the City of St. Louis COMPANY, et al., ) ) Respondents, ) ) Honorable Christopher McGraugh AMCO INSURANCE COMPANY ) and ) DEPOSITORS INSURANCE ) COMPANY ) ) Appellants. ) Filed: June 29, 2021
CONCURRING OPINION
The majority opinion correctly affirms the circuit court’s Judgment denying the Insurers’
Motion to Intervene in an action seeking confirmation of a multi-million dollar award rendered
following the arbitration of workplace discrimination claims. In so holding, the majority applies
and follows the recent opinions of this Court and those issued in the Western District addressing
the interface of an insurer’s right of intervention granted under Section 537.065, the temporal
limitation of that right to intervene, and the independent and distinct nature of arbitration
proceedings. I write separately to acknowledge some of the concerns raised by the Insurers in the circuit court litigation and arbitration proceeding, but moreover to again emphasize the role
of the judiciary in following the plain language of the statutes.
We are often called upon to issue rulings that appear “fair and just” in the face of
legislation that is characterized as unfair and unjust. Acting on such pleas for fairness would
sometimes require this Court to act as policy makers—which we are not. I recognize that the
inequity resulting from a strict adherence to statutory language often adversely impacts the more
vulnerable members of society—those persons having fewer resources to influence legislation,
e.g., consumers, employees, victims of negligence or other torts. In other words, to borrow from
the noted movie character, George Bailey, those everyday people who “do most of the working
and paying and living and dying” in this world. This case presents a contrasting scenario as we
are asked to address the potential for unfairness and injustice perpetrated on Insurers (the alleged
Mr. Potter of this case). And while I may agree that Insurers’ description of the underlying
proceedings suggests a maneuvering that reasonably can be characterized as unfair to them, we
must apply Section 537.065 as written, even if the strict application of the statute seems
inequitable in the context of the arbitration engaged in between the plaintiff and the Insurers’
insureds.
I need not repeat the litany of judicial authority embodied in the majority opinion, which
accurately tracks the development of the case law addressing recent issues of intervention by an
insurer as provided under Section 537.065, when that intervention must occur, and why the right
of intervention provided under the statute does not apply to a request to intervene in a separate
proceeding initiated to confirm an arbitration award. But the facts presented do give reason to
pause. Were the complaining appellants someone other than Insurers, one might acknowledge
the possibility of systemic unfairness. Here, Insurers refused to provide a defense without a
2 reservation of rights for their insureds who were sued in circuit court for employment
discrimination under the Missouri Human Rights Act. While the underlying litigation was
pending, Plaintiff and the defendant insureds entered into a Section 537.065 agreement. Insurers
were notified of the agreement, and timely filed their motion to intervene in the underlying
litigation. The trial court granted Insurers’ motion to intervene, and entered an order allowing
Insurers to engage in discovery. Following this development, plaintiff and defendants dismissed
the underlying petition without prejudice. Plaintiff and defendants then agreed to submit
plaintiff’s MHR claim to arbitration.
Insurers portend an inherent unfairness and potential for collusion exists where the parties
to a Section 537.065 agreement proceed with arbitration and the defendant’s insurers are not
permitted to intervene in the arbitration proceeding. Indeed, Insurers maintain in this appeal that
the arbitration award was the product of an invalid and unenforceable arbitration agreement and
was procured by undue means and collusion. Insurers recite facts that manifest a potential for
unfairness. Insurers did not partake in the arbitration proceedings. In Capraesque fashion, the
Respondents and the majority opinion admonish Insurers for not participating in the underlying
arbitration. But Insurers’ refusal to join the arbitration must be considered in light of the
conditions placed upon Insurers’ participation. Insurers claim they were told that they could
participate in the arbitration proceeding only if Insurers agreed to a binding arbitration
proceeding without any ability to conduct discovery, without any ability to subpoena witnesses,
without any ability to participate in choosing the arbitrator, and without knowledge of the rules
of procedure under which the arbitration would be conducted. Insurers also had to agree that the
3 proceedings would be “off the record” such that no court reporting would be permitted.1 Lastly,
Insurers were required to submit to arbitration the declaratory judgment action then pending in
federal court as to their liability to the insureds under the policies of insurance. Yes, Insurers
chose not to participate in the arbitration, but only because of the above stated conditions which
Insurers argue limited their ability to effectively engage in the arbitration with the underlying
parties. Insurers vehemently argue that their insureds, the defendants in the underlying
arbitration, lacked the incentive to engage in discovery or defend against plaintiff’s claims in the
arbitration since plaintiff’s recovery of any arbitration award was limited to the proceeds of the
insureds’ policies of insurance with Insurers. The arbitrator in the proceeding made a
“Conclusion of Law” that the Insurers “were given an opportunity to fully participate in this
hearing by consent of the parties under reasonable and understandable conditions and failed to do
so.” The “reasonableness” of said the conditions is decidedly debatable. Such conditions are
unequivocally beneficial to the underlying plaintiff, and to the defendants seeking a resolution to
plaintiff’s claims without personal risk. But any objectively reasonable individual can appreciate
the Insurers’ concerns over such restrictions, especially in light of the requirement that Insurers
abandon their declaratory judgment action in a federal court where their constitutional rights of
advocacy were protected and the litigation process was fully transparent. The arbitrator further
commented in the award that this matter was one of the most egregious and blatant Missouri
Human Rights case violations the arbitrator has seen and that the defendants were vigorously
defended by their attorney during the arbitration hearing. I do not question the integrity of the
arbitrator. But the lack of a record of the arbitration hearing provides no basis by which such
1 Missouri law condemns as unconscionable arbitration agreements which limit the selection process of the arbitrator. See State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 813 (Mo. banc 2015) (citing State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 859 (Mo. banc 2006)).
4 subjective opinions can be reviewed and undermines the integrity of the process. Moreover, the
lack of any witnesses called on behalf of the defendants provides fuel for Insurers’ argument that
the deal was done once plaintiff dismissed the lawsuit and the parties embarked on arbitration.
While Insurers argue that the process was collusive and undermined their rights, the
majority opinion properly notes that the parties merely engaged in the process “according to their
statutory rights.” While one reasonably can glean the motivation of the plaintiff and defendants
in dismissing the underlying litigation and proceeding with arbitration after the trial court
allowed Insurers to intervene and fully participate in discovery, the fact remains that the law
expressly permitted this action. The fact that the parties used the existing statutes and court rules
to redirect their controversy to arbitration does not undermine the integrity of the arbitration
process or necessarily constitute collusive or untoward conduct.
The majority opinion has correctly held that Insurers were properly denied the right to
intervene in the action brought to confirm the arbitration award for reasons based upon the
express language of Section 537.065 and the judicial opinions construing that statute. Whether it
is unfair to preclude an insurer which has declined coverage and representation of its insured an
opportunity to intervene when the motion to intervene is filed more than thirty days after
notification of the Section 537.065 agreement is a matter of policy left to the legislature.
Whether it is unfair to preclude that same insurer the opportunity to intervene in an arbitration
proceeding is a matter of policy left to the legislature. To be sure, I think it naïve to ignore the
fact that arbitration hearings proceeding under a Section 537.065 agreement are subject to
potential misuse and abuse. The Insurers argue that the arbitration award of $11,196,415.00 for
a part-time employee earning $160 weekly epitomizes such an abuse. The legislature created a
unique and limited statutory right of intervention for insurers under Section 537.065. We review
5 the alleged unfairness of the application of that right to ensure the constitutional protections of
due process to all parties. We lack authority to address the unfairness of a statute that does not
transcend those constitutional rights. Whether and to what extent that right of intervention
should be extended to arbitration proceedings is a matter of policy to be addressed by the
legislature, and not the courts. But lest we forget, under our system of laws and justice, even Mr.
Potter is guaranteed a fair resolution of the claims brought against him.
___________________________________ Kurt S. Odenwald, Judge
6 In the Missouri Court of Appeals Eastern District DIVISION THREE
HAROLD BARNETT, ) No. ED109008 ) Respondent, ) ) vs. ) ) Appeal from the Circuit Court COLUMBIA MAINTENANCE ) of the City of St. Louis COMPANY, et al., ) ) Respondents, ) ) Honorable Christopher McGraugh AMCO INSURANCE COMPANY ) and ) DEPOSITORS INSURANCE ) COMPANY ) ) Appellants. ) Filed: June 29, 2021
I write to give additional context to the Insurers’ lamentations. First, the procedures
followed here by Barnett and Columbia Maintenance Company were fair, proper, transparent,
and sanctioned by our legislature and well-established case law. The road taken was in large
measure selected by Insurers when Insurers decided to deny coverage to Columbia Maintenance.
Insurers had an absolutely legitimate contractual right to deny coverage if they concluded
following a review of the circumstances of the claim that there was no coverage. But, with that choice to deny coverage comes certain consequences, including that Insurer lost control over the
defense of the litigation.
Second, Insurers are by no means left defenseless. In fact, they retain multiple avenues
and forums to protect their interests on the coverage question. Here, Insurers filed in federal
court a declaratory judgment action in which they have sought to prove that they were factually
and legally correct to deny coverage. If they successfully do so, the underlying judgment entered
in this case will become academic and meaningless to them.
And as to the litigation that resulted in the judgment confirming the arbitrator’s award
here, though their intervention efforts were thwarted, Insurers retain a robust ability to challenge
the judgment in a subsequent garnishment proceeding which Columbia Maintenance and/or
Barnett may bring. Again, if Insurers’ decision to deny coverage to their insured is correct, a
subsequent suit for garnishment and bad faith refusal to settle is meaningless to them.
Finally, with respect to Insurers’ claim to rights purportedly granted to them by section
537.065.2’s intervention language and by an order in a case that has been dismissed without
prejudice, some perspective is needed. Because dismissal of the underlying lawsuit means that
“it is as if the suit were never brought,” Matter of Gurgel, 543 S.W.3d 135, 139 (Mo. App. S.D.
2018), the majority’s and the first concurring opinion’s parroting of the Insurers’ reliance on an
order from that non-existent case runs contrary to this well-established principle.
Moreover, neither the legislature nor our own Supreme Court have clarified the
parameters of an insurance company’s participation in litigation when it has intervened under
section 537.065.2. The statute merely gives a right to intervene but does not address the prickly
question of what they get to do once they enter. In his concurrence in State ex rel. Country Mut.
Ins. Co. v. May, 620 S.W.3d 96, 101 (Mo. banc 2021), Judge Wilson identified some fundamental truths, namely that the law does not allow kibitzers in lawsuits, and a party who has
intervened must comply with Rule 52.12(c) by filing a pleading setting forth the intervening
parties’ claim(s) or defense(s). Otherwise, in the context of this case, what would be the
Insurers’ role in an underlying lawsuit or in the arbitration case because, after denying coverage,
they certainly no longer stand in the shoes of their insured Columbia Maintenance.
_________________________ James M. Dowd, Judge