In the Missouri Court of Appeals Eastern District
DIVISION FOUR
XIAOYAN GU, ) No. ED100001 ) Plaintiff/Appellant, ) ) vs. ) Appeal from the Circuit Court of ) the City of St. Louis DA HUA HU, ) ) Honorable David L. Dowd and ) ) ACE INA INSURANCE ) COMPANY CANADA, ) ) Defendants/Respondents. ) Filed: April 15, 2014
I. Introduction
In this equitable garnishment action, Xiaoyan Gu (Plaintiff) appeals the judgment
of the circuit court denying her motion for summary judgment and granting the cross-
motion for summary judgment of Ace Ina Insurance Company Canada (Defendant).1
Plaintiff claims the circuit court‟s judgment is erroneous because Defendant is precluded
from asserting its policy exclusion defense where the issue of the insured‟s coverage was
1 Da Hua Hu is also named as a defendant, but Hu is not involved in this appeal. “Defendant” refers solely to Ace Ina Insurance Company Canada. conclusively determined in a prior matter and Plaintiff “stands in the shoes” of the
insured under § 379.200 RSMo (2000).2 We reverse the judgment of the circuit court and
remand for entry of judgment in Plaintiff‟s favor.
II. Factual Background
The events underlying Plaintiff‟s equitable garnishment claim occurred in 2007,
when her husband, Wei Wu (Husband), suffered serious bodily injury in a tractor trailer
accident. Husband and Plaintiff filed suit to recover damages for Husband‟s injuries and
Plaintiff‟s loss of consortium against the involved trucking companies and Da Hua Hu,
the driver of the tractor trailer in which Husband was a passenger. After a bench trial, the
court entered a judgment in favor of Husband and Plaintiff, awarding Husband
$13,803,203.46 and Plaintiff $1,500,000.3
A. Prior Garnishment Action
To collect on the judgment, Plaintiff and Husband jointly filed a § 379.200
equitable garnishment claim against Defendant, the insurer of the accident vehicle.
Notably, Hu (Driver) had not purchased Defendant‟s insurance coverage. Instead, the
insured under Defendant‟s Ontario Garage Automobile Policy (the Policy) was a Volvo
dealership, Performance Equipment, from which Driver had purchased his tractor truck.
2 All statutory references are to the Revised Missouri Statutes 2000, as supplemented, unless otherwise indicated. 3 Before the bench trial on Plaintiff‟s and Husband‟s tort claims, the parties reached a partial settlement pursuant to a § 537.065 agreement. As part of the settlement agreement, the parties agreed that if Husband and Plaintiff obtained a judgment that they would seek to collect any judgment amount from any other insurance companies available and not against the defendants personally.
2 Performance Equipment had rented Driver the Ryder truck involved in the accident.4 The
Policy, however, provided coverage to additional insureds if that person operated any
automobile in connection with Performance Equipment‟s business as a Volvo dealership.
Before the matter proceeded to a bench trial, Plaintiff voluntarily dismissed her
claim without prejudice. Husband, however, proceeded with his claim on the theory that
Driver was an additional insured under the Policy, meaning that Defendant would be
required to indemnify Driver in the amount of Husband‟s tort judgment. Defendant‟s
defense was that Driver was not entitled to coverage because at the time of the accident,
he was operating the truck in furtherance of his own trucking business, not in connection
with Performance Equipment‟s business. Indeed, it is undisputed that at the time of the
accident, Driver was transporting a trailer of grapes and carrots between California and
Ontario pursuant to a contract between his trucking company and a transportation broker.
On the first day of trial, Defendant raised an affirmative defense that the Policy‟s
carriage-of-goods exclusion precluded coverage and requested leave to amend its
pleadings. That exclusion provided an exception from coverage when the “automobile is
being used . . . for the carrying of goods or materials for compensation.” The trial court
decided to “take [the matter] with trial,” but ultimately denied the motion to amend the
pleadings because such an amendment would prejudice Husband.
Subsequently, the trial court entered judgment in favor of Husband, finding that
Driver was entitled to coverage under the Policy because Driver was operating the tractor
4 Driver‟s truck experienced transmission problems and Performance Equipment rented him the Ryder truck that was ultimately involved in the accident.
3 trailer in connection with Performance Equipment‟s business since Performance
Equipment rented the Ryder truck for Driver. The trial court entered a judgment against
Defendant in the amount of $11,345,681.38.5
B. Present Garnishment Action
Plaintiff then filed the instant equitable garnishment suit under § 379.200. In her
petition, Plaintiff alleged that the issue of Driver‟s coverage under the Policy had been
fully litigated in the prior garnishment action and that Defendant is collaterally estopped
from re-litigating the issue of coverage for damages. Defendant denied liability, timely
raising the affirmative defense that the Policy‟s carriage-of-goods exclusion precluded
coverage.
Plaintiff moved for summary judgment, asserting that Defendant is collaterally
estopped from re-litigating the issue of Driver‟s coverage and additionally that the
doctrine of res judicata bars Defendant from raising defenses that it failed to raise in the
prior litigation. Defendant countered that the preclusion doctrines are inapplicable.
Defendant also filed a cross-motion for summary judgment, asserting that it is entitled to
assert the Policy‟s carriage-of-goods exclusion and that no genuine dispute of material
fact exists that the exclusion applies to exclude coverage for Plaintiff‟s claim.
The circuit court found that “it would be inequitable to apply collateral estoppel or
res judicata” to prevent Defendant from asserting the Policy‟s carriage-of-goods
exclusion as a defense. The circuit court explained:
5 This judgment amount reflects adjustments for interest and the prior settlement payable to Husband and Plaintiff. This Court affirmed the trial court‟s judgment. Wu v. Ace Canada, 368 S.W.3d 214 (Mo. App. E.D. 2012).
4 During the trial of the prior garnishment action the trial court refused to allow [Defendant] to amend its pleadings to assert the affirmative defense that the carriage-of-goods exception applied to exclude [Driver‟s] coverage under the insurance policy. The court did this because to allow the defense for the first time at trial would have been prejudicial to [Husband] who had no opportunity to conduct discovery on the issue or otherwise prepare to meet the defense. The present circumstance differs substantially, as Plaintiff is not prejudiced by the failure of notice of the defense. Rather, any unfairness and prejudice would be to [Defendant], whose insurance policy clearly excluded coverage of the collision in question.
The Court is cognizant of the loss of consortium damages Plaintiff has sustained and continues to suffer. However, [Defendant] did not cause those damages and cannot fairly be held liable for payment of those damages under the circumstances of this case. As noted above, fairness under the particular facts of the case is the overriding concern. Here, to disallow litigation of the issue of coverage would be inequitable.
The circuit court further found that the Policy‟s carriage-of-goods exclusion precludes
coverage. Accordingly, the circuit court denied Plaintiff‟s motion, granted Defendant‟s
cross-motion, and entered summary judgment in favor of Defendant.6 Plaintiff appeals.
III. Standard of Review
This Court reviews de novo the circuit court‟s summary judgment decision. ITT
Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.
banc 1993). Summary judgment is proper if the moving party has shown, on the basis of
facts as to which there is no genuine dispute, a right to judgment as a matter of law.
Affirmative Ins. Co. v. Broker, 412 S.W.3d 314, 318 (Mo. App. E.D. 2013). We must
view all the submissible evidence in the light most favorable to the non-moving party.
6 The circuit court also denied Driver‟s motion for summary judgment, which had adopted Plaintiff‟s arguments. Driver does not appeal the circuit court‟s ruling.
5 ITT Commercial Fin. Corp., 854 S.W.2d at 376. A genuine issue of material fact barring
summary judgment exists if “the record contains competent materials that evidence two
plausible, but contradictory, accounts of the essential facts.” Id. at 382. However,
because the parties do not dispute any material facts, our review focuses on the legal
question whether Defendant was entitled to judgment as a matter of law.
IV. Discussion
Plaintiff‟s sole point is that Defendant is precluded from asserting the Policy‟s
carriage-of-goods exclusion as a defense because the issue of Driver‟s coverage was
conclusively determined in the prior garnishment action and Plaintiff “stands in the
shoes” of Driver under § 379.200. In the argument portion of her brief, Plaintiff explains
that either collateral estoppel or res judicata preclude Defendant from asserting the
Policy‟s carriage-of-goods exclusion in the instant garnishment suit. In essence, Plaintiff
seeks to apply the preclusion doctrines offensively in order to avail herself of the trial
court‟s prior judgment.
A. Collateral Estoppel
We first consider Plaintiff‟s argument that collateral estoppel bars Defendant from
raising the Policy‟s carriage-of-goods exclusion in the present garnishment action. “The
doctrine of collateral estoppel, commonly known as issue preclusion, precludes the same
parties from relitigating issues previously adjudicated between the same parties or those
in privity with them.” Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo. App.
W.D. 1999). Courts considering whether to apply this doctrine determine whether: (1)
the issue decided in the prior adjudication was identical with the issue presented in the
6 present action; (2) the prior adjudication resulted in a judgment on the merits; (3) the
party against whom collateral estoppel is asserted was a party or in privity with a party to
the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a
full and fair opportunity to litigate the issue in the prior suit. Finley v. St. John’s Mercy
Med. Ctr., 958 S.W.2d 593, 595 (Mo. App. E.D. 1998). Collateral estoppel does not
apply where its application would be inequitable. See James v. Paul, 49 S.W.3d 678, 683
(Mo. banc 2001); Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 721 (Mo. banc
1979). The overriding consideration is fairness and the analysis must focus primarily on
principles of equity derived from the facts of each particular case. James, 49 S.W.3d at
688.
Here, we need only consider the fourth element of collateral estoppel to resolve
the applicability of this doctrine. Clearly, Defendant‟s defense was not fully and fairly
litigated in the prior garnishment suit.7 Rather, due to Defendant‟s failure to raise the
defense until the first day of trial, the trial court precluded presentation of that defense
and Defendant was unable to litigate the substantive merits of the Policy‟s carriage-of-
goods exclusion. The present garnishment action, then, would provide Defendant with
the ability to litigate the defense‟s merits, which Defendant was foreclosed from pursuing
in the prior garnishment action. See Restatement (Second) of Judgments § 27 (1982)
(“An issue is not actually litigated if the defendant might have interposed it as an 7 In determining whether a party has had a full and fair opportunity to litigate an issue, this Court considers the following additional equitable factors, as well as any other factors that may be relevant: (1) did the party against whom preclusion is asserted have a strong incentive to litigate the prior adjudication; (2) does the second forum afford the party against whom the preclusion is asserted procedural opportunities not available in the first action; (3) is the prior judgment, upon which the preclusion is based, inconsistent with one or more prior judgments; and (4) was the forum in the first action substantially inconvenient to the party against whom preclusion is asserted. Wilkes v. St. Paul Fire & Marine Ins. Co., 92 S.W.3d 116, 122 (Mo. App. E.D. 2002).
7 affirmative defense but failed to do so[.]”).8 Further, while Plaintiff makes a contrary
allegation that the defense was fully and fairly litigated, this conclusory assertion is
without support in the record or the law.9 Accordingly, we agree with Defendant that
because the defense was never actually litigated, collateral estoppel does not apply to bar
Defendant from raising the Policy‟s carriage-of-goods exclusion in the instant suit.
Likewise, the circuit court did not err by reaching the same conclusion.
B. Res Judicata
Plaintiff also contends that res judicata precludes Defendant from raising the
Policy‟s carriage-of-goods exclusion in the present garnishment action. Res judicata, or
claim preclusion, “bars the same parties or their privities [sic] from relitigating the same
cause of action that has been previously adjudicated by a final judgment on the merits . . .
.” Kinsky v. 154 Land Co., LLC, 371 S.W.3d 108, 112 (Mo. App. E.D. 2012). The
doctrine precludes the parties or privities from later bringing claims arising from the
same set of facts that could or should have been pursued in the prior action. See
Kesterson v. State Farm Fire & Cas. Co., 242 S.W.3d 712, 715-16 (Mo. banc 2008); see
also Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo. App. E.D. 2005) (“The doctrine of res
judicata renders conclusive a judgment in a subsequent action between the same parties
as to all issues which might have been litigated in the first action, not only as to all issues
tried.” (emphasis added)). Accordingly, the doctrine applies “not only to points and 8 We find the Restatement to be persuasive authority with respect to the preclusion doctrines, given the Missouri Supreme Court‟s repeated reliance on the Restatement (Second) of Judgments in its decisions. See James, 49 S.W.3d at 683; Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 319 (Mo. banc 2002); Kesterson v. State Farm Fire & Cas. Co., 242 S.W.3d 712, 717 (Mo. banc 2008). 9 Plaintiff discusses State v. Daniels, 789 S.W.2d 243 (Mo. App. W.D. 1990) and In re Caranchini, 956 S.W.2d 910 (Mo. banc 1997), but does not explain how those cases have any bearing on the present matter.
8 issues upon which the court was required by the pleadings and proof to form an opinion
and pronounce judgment, but to every point properly belonging to the subject matter of
litigation and which the parties, exercising reasonable diligence, might have brought
forward at the time.” King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ
of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. banc 1991). The purpose of this rule is
to protect individuals from the burden of litigating multiple lawsuits, to promote judicial
economy, and to minimize the possibility of inconsistent decisions. Lauber-Clayton,
LLC v. Novus Props. Co., 407 S.W.3d 612, 618, 619 (Mo. App. E.D. 2013); Kinsky, 371
S.W.3d at 112.
1. Res Judicata Applies to Defenses
At the outset, we address Defendant‟s argument that the doctrine of res judicata is
inapplicable because it does not apply to bar the assertion of a defense. According to
Defendant, the doctrine only applies to bar the reassertion of a claim or cause of action.
In support, Defendant discusses Ste. Genevieve County v. Fox, 688 S.W.2d 392 (Mo.
App. E.D. 1985).10 In that case, the county sued the defendant engineers for negligence
and breach of contract for failure to perform services. Id. at 393. The defendants
counterclaimed, asserting that the county breached the contract first by failing to pay for
services performed. Id. The parties settled the county‟s claims, agreeing to dismiss them
with prejudice and to reserve the defendants‟ right to pursue their counterclaim. Id. The
10 As additional support for this argument, Defendant also cites the definition of res judicata articulated in Robin Farms, Inc., 991 S.W.2d at 185, which provides that res judicata “operates as a bar to the reassertion of a cause of action that has been previously adjudicated in a proceeding between the same parties or those in privity with them.” This is a general definition of res judicata repeated in our case law and does not stand for the proposition that the doctrine does not operate to bar a defense.
9 defendants then moved for summary judgment, which the circuit court granted. Id. On
the county‟s appeal, the defendants argued that res judicata barred the county from
defending against the counterclaim because the county‟s defense—that the services
defendants actually rendered were not of the quality the contract required—constituted a
cause of action raised in the county‟s original claims. Id. at 395.
The Ste. Genevieve Court disagreed with the defendants‟ characterization of the
county‟s defense as a cause of action and concluded that res judicata did not bar the
defense. Id. In so concluding, the Court implicitly recognized that the county could not
have raised the defense in relation to its claims for negligence and breach of contract,
which the parties had settled. Id. In no way, however, did the Court hold that res
judicata does not apply to defenses that could have been raised in a prior lawsuit. Ste.
Genevieve, therefore, does not provide authority for Defendant‟s proposition that res
judicata applies only to the reassertion of causes of action or claims.
Moreover, Defendant‟s argument that res judicata is inapplicable to defenses
ignores that Missouri has adopted a broad rule of res judicata. In Missouri, res judicata
bars every point and issue properly belonging to the litigation that the parties could have,
exercising reasonable diligence, brought forward at the time. King Gen. Contractors,
Inc., 821 S.W.2d at 501. We believe that this principle unequivocally applies to a
defense that a defendant failed to raise in the prior action for failure to exercise
reasonable diligence. To adopt Defendant‟s interpretation of res judicata would defeat
the intended purposes of the doctrine—to avoid multiplicity of lawsuits and to promote
finality and consistency of judgments. Although we are aware of no Missouri case that
10 has applied res judicata to preclude the assertion of a defense, we note that other
jurisdictions, in recognition of the doctrine‟s purpose, have applied res judicata in this
manner. See, e.g., Gerber v. Holcomb, 219 S.W.3d 914, 918 (Tenn. App. 2006) (party
forfeited opportunity to assert defenses under principles of res judicata where party could
have raised the defenses in a prior litigation); Sprague v. Buhagiar, 539 N.W.2d 587,
588-89 (Mich. App. 1995) (the plaintiff‟s failure to raise defenses and affirmative
defenses in prior proceeding were waived and barred by res judicata in subsequent suit);
State ex rel. Iowa Dep’t of Natural Res. v. Shelley, 512 N.W.2d 579, 580-581 (Iowa App.
1993) (res judicata barred defenses that party failed to raise in prior action); Weiner v.
County of Essex, 620 A.2d 1071, 1081 (N.J. Super. Ct. 1992) (“A defendant‟s decision
not to raise a defense in the trial of a particular action is a waiver of that defense, which
waiver is granted res judicata effect.”); State ex rel. Mart v. Mart, 380 N.W.2d 604, 606
(Minn. App. 1986) (“[A]n affirmative finding of paternity in a judgment and decree of
dissolution is res judicata barring an asserted defense of non-paternity in a subsequent
[child support] action.”). Accordingly, consistent with Missouri‟s broad rule of res
judicata, we conclude that res judicata applies to bar the assertion of a defense properly
belonging to the subject matter of the litigation that a party, exercising reasonable
diligence, could or should have raised in the prior litigation.11
11 Defendant also argues in support of the circuit court‟s reasoning that res judicata is inapplicable based on principles of equity. However, the circuit court improperly relied on equitable principles in its analysis of the application of res judicata. While equitable considerations are properly considered in a collateral estoppel analysis, see James, 49 S.W.3d at 688, we are aware of no Missouri case recognizing equitable principles as a basis for res judicata and Defendant cites to none.
11 Here, there is no dispute that the effect of the Policy‟s carriage-of-goods exclusion
was an issue properly belonging to the prior garnishment action. Clearly, Defendant
realized (albeit belatedly) in the prior proceeding that the critical issue before the court
was whether the Policy‟s carriage-of-goods exclusion barred coverage of Husband‟s
claim and precluded him (and consequently Plaintiff) from recovering any insurance
proceeds. As Defendant concedes, there is no dispute that Defendant, had it exercised
reasonable diligence, could have timely raised the Policy‟s carriage-of-goods exclusion in
the prior garnishment action. However, Defendant failed to timely raise the defense in
the prior garnishment action and the trial court precluded Defendant from presenting the
defense. Under these circumstances, where Defendant could have raised the defense had
it exercised reasonable diligence, res judicata may apply to bar Defendant from raising
the defense in the instant action.
2. Four Identities Exist
Our analysis does not end with the conclusion that res judicata applies to bar a
defense. We must consider whether the “four identities” necessary to the application of
res judicata exist in this case. These identities include: (1) identity of the thing sued for;
(2) identity of the cause of action; (3) identity of the persons and parties to the action; and
(4) identity of the quality of the person for or against whom the claim is made. Lauber-
Clayton, LLC, 407 S.W.3d at 618. When these four identities coexist, “res judicata
operates to bar „any claim that was previously litigated between the same parties or those
in privity with them.‟” Id. (citation omitted). Defendant only disputes the existence of
the first three identities.
12 a. Identity of the Thing Sued For
The first factor is whether the identity of the “thing sued for” in the prior
proceedings is the same as the thing sued for in the subsequent proceeding. Plaintiff
posits that each garnishment action seeks the same thing—a legal determination of
Driver‟s coverage. Defendant asserts that the thing sued for is different because Plaintiff
seeks loss of consortium damages in the present garnishment action, not damages for
severe bodily injury that Husband sought in the prior garnishment action. 12 In our view,
both parties confuse the identity of “the thing sued for.” Here, Plaintiff seeks the
identical relief that Husband sought in the prior garnishment action: Garnishment of
insurance proceeds to satisfy a judgment that stems from damages caused by the same
motor vehicle accident. See, e.g., Palmore v. City of Pacific, 393 S.W.3d 657, 666 (Mo.
App. E.D. 2013) (“„[T]he thing sued for‟ in both actions was monetary damages arising
out of the same set of facts.”). Accordingly, the first identity exists because both actions
seek to garnish insurance proceeds to satisfy the same underlying tort judgment.
b. Identity of the Cause of Action
The second factor we consider is whether the cause of action is the same in both
the prior and subsequent action. This Court has defined the identity of the cause of action
as “the underlying facts combined with the law, giving a party a right to a remedy of one
form or another based thereon.” Williams v. Fin. Plaza, Inc., 78 S.W.3d 175, 183 (Mo.
12 While Plaintiff cites no authority in support of her assertion, Defendant relies solely on Maddox v. Truman Med. Ctr., Inc., 727 S.W.2d 152 (Mo. App. W.D. 1987), in support of its argument. Maddox, however, is not on point because it does not concern the identity of the “thing sued for” in the context of a res judicata analysis. Rather, that case simply stands for the principle that a spouse‟s damages for loss of consortium compensate a loss that is different than the spouse‟s injury. Maddox, 727 S.W.2d at 154.
13 App. W.D. 2002) (citation and quotations omitted). It is not necessary that the causes of
action be identical, but the claims must have arisen out of the “„same act, contract, or
transaction.‟” Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318-19
(Mo. banc 2002) (citation omitted); Jordan v. Kansas City, 929 S.W.2d 882, 886 (Mo.
App. W.D. 1996). As such, the focus is on the “factual bases of the claims, not the legal
theories.” Chesterfield Village, Inc., 64 S.W.3d at 319.
Here, there is no serious dispute that both the prior and present equitable
garnishment suits are based on the same set of facts. The operative facts for both
lawsuits are the same. In both actions, proof was required that: (1) a judgment had been
obtained against Driver for the injuries sustained in the 2007 accident and (2) that Driver,
at the time of the accident, was a covered insured under the Policy. See § 379.200.13 The
existence of an underlying judgment arising from the injury caused by the accident and
the issue of Driver‟s coverage for the injury caused would necessarily be litigated in both
cases. No different or new facts were required for Plaintiff to establish her cause of
action.
Defendant, however, argues that because Plaintiff must establish that she obtained
a judgment related to her damages, rather than a judgment related to Husband‟s damages
as in the prior equitable garnishment action, that identity of the cause of action is lacking.
This argument ignores that the appropriate analysis centers on whether the present claim
13 Under the statute, a plaintiff must establish that the plaintiff has obtained a judgment against the insurer‟s insured for an injury that arose during the policy period and that the insurer‟s policy covers the injury.
14 arises from the same set of facts as the prior action. See Jordan, 929 S.W.2d at 886.14
Certainly, Plaintiff‟s claim is different than Husband‟s prior equitable garnishment suit
because the present garnishment action does not seek to establish a judgment awarding
Husband damages. However, simply because Plaintiff‟s claim emphasizes different
facts, mainly the damages the judgment awarded to her instead of Husband and calls for a
different measure of liability, does not mean that the cause of action is separate. See
Chesterfield Village, Inc., 64 S.W.3d at 319-320; Dreckshage v. Community Fed. Sav. &
Loan Assoc., 641 S.W.2d 831, 833-34 (Mo. App. E.D. 1982) (indicating that claims
based on the same transaction are not to be considered separate even if the claim depends
on “„different shadings of the facts, or would emphasize different elements of the facts, or
would call for different measures of liability or different kinds of relief.‟” (quoting
Restatement (Second) of Judgments § 24, comment c). Accordingly, the second identity
of res judicata exists.
c. Identity of the Parties
The third factor is whether the identity of the person and parties in the prior
adjudication is the same as the identity of the person and parties in the subsequent action.
As noted, res judicata applies to the parties and their privies, meaning that the party in the
instant action need not have actually been a party in the prior action. Palmore, 393
S.W.3d at 667. For privity to exist, as to satisfy the same party identity, the interests of
the party and non-party must be “so closely intertwined that the non-party can fairly be
14 Plaintiff‟s argument, that the cause of action is the same because both claims are equitable garnishment actions under § 379.200, makes a similar mistake by focusing on the legal theories pleaded and not the facts underlying the claims.
15 considered to have had his or her day in court.” Stine v. Warford, 18 S.W.3d 601, 605
(Mo. App. W.D. 2000).
Plaintiff argues that this identity exists because she is in privity with both Husband
and Driver. Regarding whether Plaintiff is in privity with Driver, Plaintiff says that as a
judgment creditor of Driver, she “stands in the shoes” of Driver “because the rights of the
injured person bringing an action against the insurer for equitable garnishment are
derivative [of the insured‟s contractual rights under the insurance policy] and can rise no
higher than those of the insured . . . .” Smith v. Progressive Cas. Ins. Co., 61 S.W.3d
280, 283 (Mo. App. E.D. 2001) (citation and quotations omitted). Defendant concedes
that Plaintiff has the same rights as Driver under the Policy, but Defendant asserts,
without citation to authority, that privity is lacking because Driver did not seek
indemnification for loss of consortium damages in the prior suit.
Our Supreme Court applied the same reasoning advanced by Plaintiff in James v.
Paul, 49 S.W.3d at 683-84. In that case, the plaintiff brought a garnishment action
against the insured‟s insurer to satisfy a judgment that arose out of the insured‟s stabbing
of the plaintiff. Id. at 680-82. The issue was whether collateral estoppel applied to
preclude the plaintiff‟s suit, given that a policy exclusion barred coverage for intentional
acts and the insured‟s guilty plea had established that the stabbing was intentional. Id. at
682. In considering whether the plaintiff was in privity with the insured, the Court
explained that as a third-party beneficiary of the insured‟s contractual relationship with
the insurer, the plaintiff “stands in the shoes of the insured” and has no rights greater or
less than the insured. Id. at 683-84. The Court further explained that the insured‟s
16 interest with respect to whether his attack on the plaintiff was intentional was “tightly
aligned with the interest” of the plaintiff. Id. at 684. The Court thus concluded that the
plaintiff was in privity with the insured. Id.15
We believe James controls our analysis in the instant matter. Like the plaintiff in
James, Plaintiff‟s garnishment action stems from the contractual relationship between
Driver and Defendant. Indeed, Plaintiff does not seek to enforce rights outside the terms
of Defendant‟s Policy. Nor does she assert rights greater than Driver‟s under the Policy.
Moreover, under the circumstances of this case, Driver‟s and Plaintiff‟s interests are
closely aligned because Driver, like Plaintiff, has an interest in satisfying the judgment
against him through the insurance proceeds. Therefore, consistent with James, Plaintiff,
as a third-party beneficiary of the Policy, “stands in the shoes” of Driver and is in privity
with Driver. See James, 49 S.W.3d at 683-84.
Defendant‟s argument, that privity is lacking because Driver did not seek
indemnification for Plaintiff‟s judgment in the prior suit, draws a distinction that is
irrelevant to the privity analysis. Clearly, Driver, as a result of his status as a covered
insured under the Policy, has a contractual right to indemnification for damages sustained
in the underlying accident, including Plaintiff‟s damages. That Driver did not pursue
indemnification for Plaintiff‟s damages in the prior suit is of no significance and
Defendant points to no case law in support of its argument. Having concluded that
15 Although the Court articulated this privity analysis in the context of collateral estoppel, we believe that its analysis applies equally to res judicata. Both doctrines require the party asserting the bar to prove the existence of identity of party in the prior and subsequent proceedings.
17 privity exists between Driver and Plaintiff, we need not consider whether privity also
exists with Husband. Accordingly, the third identity exists in this case.
d. Identity of the Person For or Against Whom the Claim Is Made
Defendant does not dispute the existence of the fourth factor—that the identity of
the “quality of the person” for or against whom the claim is made is the same in both
suits. See Palmore, 393 S.W.3d 667 (“quality of person” exists where defendants were
identical and were sued in the same capacity in both suits); Jordan, 929 S.W.2d at 887
(“quality of the person” exists if a defendant‟s “status” is the same in both suits). Indeed,
in both the prior and present garnishment actions, Defendant is the named defendant and
the capacity in which Defendant is being sued is the same. Likewise, Plaintiff sued
Defendant in her individual capacity as a judgment creditor in both the prior and present
garnishment suits.
Having determined that all four identities exist and that Defendant could have
raised the Policy‟s carriage-of-goods exclusion in the prior garnishment action, we
conclude that res judicata applies to bar Defendant from raising that defense in the
present garnishment action. The circuit court erred by reaching the opposite
conclusion.16 Therefore, Plaintiff‟s point is granted.
16 Defendant argues that, if the four identities exist, then res judicata should apply against Plaintiff to preclude her from re-asserting her claim because Plaintiff improperly split her claim. However, Defendant has waived the affirmative defense of res judicata because Defendant did not raise the preclusion doctrine as an affirmative defense in its answer to Plaintiff‟s petition, amend its answer to raise the defense, or raise the defense in a motion to dismiss. See Rule 55.08; Noble v. Shawnee Gun Shop, Inc., 316 S.W.3d 364, 368 (Mo. App. W.D. 2010) (“Res judicata [is an] affirmative defense[] that normally must either be raised in an answer, by an amendment to the pleadings, or in a motion to dismiss.”).
18 V. Conclusion
For the foregoing reasons, the circuit court‟s judgment is reversed and this matter
is remanded for entry of a judgment in Plaintiff‟s favor consistent with this opinion.
________________________________ Philip M. Hess, Judge
Lisa Van Amburg, P.J. and Patricia L. Cohen., J. concur.