                        MISSOURI COURT OF APPEALS
                            WESTERN DISTRICT


RICHARD A. AGUILAR,                         )
                                            )   WD82266 & WD82288
                     Respondent,            )
    v.                                      )   OPINION FILED:
                                            )
GEICO CASUALTY CO.,                         )   September 3, 2019
                                            )
                     Appellant.             )


             Appeal from the Circuit Court of Jackson County, Missouri
                       Honorable James F. Kanatzar, Judge

                            Before Division Two:
    Lisa White Hardwick, P.J., Thomas H. Newton, and Mark D. Pfeiffer, JJ.


         GEICO Casualty Co. appeals from a Jackson County Circuit Court judgment

confirming a $35-million arbitration award arising from a catastrophic motorcycle

accident and applying the statutory rate of interest from the date of judgment. GEICO

challenges the court’s orders overruling its motion and amended motion to intervene.

We affirm.

         Mr. Richard A. Aguilar sustained serious and permanent injuries in 2013 after

the U-Haul truck Ms. Patricia Hollandsworth was driving while intoxicated ran into the

motorcycle he was riding on Chouteau Trafficway in Jackson County, Missouri. The

claim was reported to GEICO in November 2013, and the company disclaimed any and

all liability in March and April 2014.     GEICO had issued an automobile liability
insurance policy to Mr. Daniel and Ms. Deborah Clymens for their 2005 Toyota, and,

during the coverage period, Mr. Clymens signed the paperwork to rent the 2006 Ford

U-Haul truck involved in the accident so Ms. Hollandsworth could move her

belongings from the Clymenses’ residence to a new home.

          Mr. Aguilar brought a personal-injury action against Ms. Hollandsworth in

August 2017. Mr. Aguilar filed a motion for default judgment in February 2018, and

GEICO’s counsel entered an appearance on Ms. Hollandsworth’s behalf at about the

time the company offered to defend her subject to a reservation of rights.                        Ms.

Hollandsworth rejected that defense, and she informed GEICO on March 2, 2018, that

she and Mr. Aguilar had entered a section 537.065 agreement under which she had

assigned him all of her rights under the Clymenses’ GEICO insurance policy. 1 GEICO

filed a motion to intervene in the personal-injury action as of right five days later under

Rule 52.12(a) and section 537.065.2. 2 Mr. Aguilar voluntarily dismissed the personal-

injury petition eight days later on March 15, 2018. The sam e day, GEICO filed for

declaratory judgment in federal court, which dismissed the action without prejudice

about a year later for abstention reasons in light of a state -court garnishment action,

filed by Mr. Aguilar against Ms. Hollandsworth and GEICO in N ovember 2018, that

remains pending. 3




1
    Statutory references are to RSMo (2016 and 2017 Supp.), unless otherwise indicated.
2
    Rule references are to the Missouri Supreme Court Rules (2018), unless otherwise indicated.
3
  According to the federal court’s order abstaining and dismissing the case without prejudice, the
Missouri Supreme Court has not addressed the coverage issue, and it was unclear whether relevant
appellate court rulings were determinative. Counsel informed this Court during oral argument that the
federal action has been reinstated but is stayed pending the outcome of the garnishment action.


                                                    2
        Mr. Aguilar and Ms. Hollandsworth entered an agreement in May 2018 to submit

the dispute to binding arbitration. The arbitrator conducted a hearing in June 2018 and

awarded Mr. Aguilar $35 million in compensatory and punitive damages in July 2018.

After Mr. Aguilar filed a motion in circuit court to confirm the arbitration award,

GEICO filed a motion and an amended motion to intervene, citing Rules 52.12(a) and

(b), as well as section 537.065. On October 24, 2018, the circuit court denied the

motion to intervene without comment other than a reference to Mr. Aguilar ’s pleadings

and issued a judgment confirming the arbitration award with 7.5% statutory interest.

GEICO timely filed an appeal from the judgment. 4 The circuit court subsequently

amended the order addressing the motion to intervene in November 2018 to add to the

first order denying GEICO’s motion to intervene a denial of GEICO’s amended motion

to intervene, and GEICO filed a second appeal to include this ame nded order. We

consolidated the appeals. 5

                                           Legal Analysis

        In the first point, GEICO argues that the trial court erred in denying its motions

to intervene because substantial evidence does not support the ruling and the court

misapplied the law—section 537.065—in that it confers an unconditional right on




4
  Note that an interlocutory order denying a motion to intervene as a matter of right is incorporated
into the final judgment from which the proposed intervenor may take an appeal. State ex rel. Koster
v. ConocoPhillips Co., 493 S.W.3d 397, 401 (Mo. banc 2016).
5
  As indicated above, Mr. Aguilar filed a garnishment action against GEICO and Ms. Hollandsworth
under section 379.200, alleging bad faith and breach of duty to defend. He seeks a garnishment of the
policy proceeds as well as an award of the $35 -million arbitration award. That action has been stayed
pending the disposition of this appeal. According to the parties at oral argument, one of the matters
that will be litigated during trial is whether the automobile liability insurance policy that GEICO issued
to the Clymenses provides coverage to Ms. Hollandsworth for the accident that gave rise to the $35 -
million arbitration award.


                                                    3
GEICO to intervene in a lawsuit before the entry of judgment where the parties have

entered a section 537.065 agreement, and the court’s denial of intervention deprived

GEICO of due process and access to the courts. We agree with Mr. Aguilar that this is

a multifarious point that preserves nothing for review under Rule 84.04 by making

separate and distinct claims in a single point. 6 Still, we may, in the exercise of our

discretion, “attempt to resolve the issue on the merits.” LaBarca v. LaBarca, 534

S.W.3d 329, 335 n.4 (Mo. App. W.D. 2017) (citation omitted).

        When a trial court denies a motion to intervene as of right under Rule 52.12, we

affirm “unless there is no substantial evidence to support [the ruling], it is against the

weight of the evidence, or it erroneously declares or applies the law. ” Prentzler v.

Carnahan, 366 S.W.3d 557, 560 (Mo. App. W.D. 2012) (quoting State ex rel. Nixon v.

Am. Tobacco Co., Inc., 34 S.W.3d 122, 126 (Mo. banc 2000)). Rule 52.12(a) gives

anyone “[u]pon timely application” the right to intervene in an action “(1) when a

statute of this state confers an unconditional right to intervene. ” Section 537.065.2

gives insurers the right to written notice “[b]efore a judgment may be entered against

any tort-feasor after such tort-feasor has entered into a contract under this section.”

Subsection 2 also confers on insurers the right to intervene by stating that they “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.”

        GEICO focuses on the first part of section 537.065.2 that it claims gives it the

right to intervene “[b]efore a judgment may be entered.” According to GEICO, its


6
  GEICO bases its claim of error in point one on insufficient evidence and on a misapplication of the
law. “These are distinct claims that must appea r in separate points relied on . . . to be preserved for
appellate review.” Rocking H. Trucking, LLC v. H.B.I.C., LLC, 463 S.W.3d 1, 9 (Mo. App. W.D.
2015).

                                                   4
“statutory right to intervene was a mandatory precondition on the entry of judgment

against [Ms.] Hollandsworth” and it had thirty days after the petition to confirm the

arbitration award was filed to attempt to intervene. We disagree. The plain and

unambiguous meaning of the statute requires that a tortfeasor and injured party give

notice to the insurer of a section 537.065 contract before a judgment may be entered,

not that the insurer must be allowed to intervene before judgment may be entered. Any

other interpretation ignores and renders superfluous the latter part of subsection two

which requires that the insurer file its motion to intervene in a pending lawsuit thirty

days after receipt of such notice. 7

       While GEICO observes that Mr. Aguilar’s argument as to intervention concerned

primarily whether an arbitration proceeding constituted a “lawsuit” as that word is used

in section 537.065.2, we are constrained to address and decide this point on the

timeliness of the company’s motion to intervene in light of our decision in Britt v. Otto,

577 S.W.3d 133 (Mo. App. W.D. 2019).                  There, we declined to rule whether an

arbitration proceeding fit within the term “pending lawsuit” under the statute, but

affirmed the trial court’s denial of intervention, finding that the insurer’s motion was

not filed within thirty days from its receipt of written notice of the section 53 7.065.1

contract. Id. at 140. In this regard, we held that the “plain and unambiguous language



7
  In support of its statutory interpretation, GEICO’s counsel emphasized during oral argument the
Missouri Supreme Court’s recent opinion in Desai v. Seneca Specialty Insurance Co., No. SC 97361,
2019 WL 2588572 at *4 (Mo., June 25, 2019), where the court states that subsection 2 of the statute
gives an insurer the right to notice and an opportunity t o intervene “prior to judgment.” We do not
read the case so broadly. The court in Desai was not called on to answer the question raised here and
decided rather that the 2017 amendment did not apply in that case because the section 537.065 contract
was entered and the matter was tried and submitted before the law went into effect. Id. In addition,
having a statutory opportunity to intervene as a matter of right is not the same as an unconditional
right to intervene before a judgment is entered. The time limitation must be complied with, and a
lawsuit involving the claim must be pending.

                                                  5
of section 537.065.2 did not afford American Family the right to intervene as a matter

of right in the action to confirm the arbitration award,” because the action to confirm

the arbitration award was filed more than thirty days after the insure r received written

notice of the section 537.065.1 contract. Id. Similarly, here, written notice of the

contract was provided to GEICO on March 2, 2018. While GEICO timely filed a

motion to intervene in the personal-injury action, that action was voluntarily dismissed,

and the parties proceeded to arbitration. The action to confirm the arbitration award

was filed August 9, 2018, far outside the statute’s thirty-day limit, so the motion and

amended motion to intervene as of right in that action were unti mely. 8

        GEICO further argues that it has standing to intervene for the purpose of

challenging an arbitration award. Because the point relied on does not raise this issue,

we do not consider it further. Rule 84.04. See Spencer v. Lombardi, 500 S.W.3d 885,

889 (Mo. App. W.D. 2016) (“an appellant’s argument is limited to only those errors

asserted in the points relied on.” (citation omitted)).

        Finally, GEICO argues as to the first point that its interest in the subject matter

of the dispute between Mr. Aguilar and Ms. Hollandsworth makes the denial of the

motion to intervene a violation of due-process rights under the U.S. and Missouri

constitutions and “an unreasonable impediment to its constitutional right of access to

the courts” under the Missouri Constitution. GEICO has not stated the facts showing

the purported constitutional violation and simply makes the same conclusory



8
  GEICO emphasized at oral argument that Britt is distinguishable because there the insurer had actual
notice of the arbitration agreement and was invited to participate. This distinction does not change the
outcome, however, in that the parties here did not enter an arbitration agreement until more than thirty
days after the date on which GEICO was notified about their section 537.065.1 contract. Accordingly,
even if GEICO had been given notice about the arbitration agreement, under the plain and unambiguous
reading of subsection two, it would have been too late for the company to seek intervention.

                                                   6
statements here that it made to the trial court, i.e., that it has an interest in the subject

matter of the litigation and that the denial of its motions will leave in place a final

judgment against Ms. Hollandsworth, “based upon an invalid Arbitration Agreement

procured by undue means.”          GEICO has neither preserved nor presented this

constitutional challenge properly. See Mayes v. St. Luke's Hosp. of Kansas City, 430

S.W.3d 260, 266 (Mo. banc 2014) (setting forth requirements for preservation of a

constitutional challenge, court observes that the purpose of such requirements,

including a statement of the facts showing the violation, “is to prevent surprise to the

opposing party and permit the trial court an opportunity to fairly identify and rule on

the issue.” (citation omitted)). This point is denied.

       GEICO argues in point two that the denial of its motions to intervene as a mat ter

of right constituted a misapplication of the law in that (1) the company had a direct and

immediate interest in the subject matter of Mr. Aguilar’s lawsuit “in light of [Mr.

Aguilar’s] assertion that [Ms.] Hollandsworth was insured by Geico and seeking to

have Geico satisfy the judgment,” (2) GEICO’s ability to protect its interest was

impaired by the entry of final judgment without its participation, and (3) the arbitration

agreement and section 537.065.1 contract resulted in an inadequate representati on of

its interests by the parties. This point centers on the company’s right to intervene under

Rule 52.12 which confers such right “when the applicant claims an interest relating to

the property or transaction that is the subject of the action and the a pplicant is so

situated that the disposition of the action may as a practical matter impair or impede ”

its ability to protect its interest, “unless the applicant’s interest is adequately

represented by existing parties.” Rule 52.12(a)(2).



                                             7
       The company claims that Allen v. Bryers, 512 S.W.3d 17 (Mo. banc 2016), as

modified (Apr. 4, 2017), cert. denied, Atain Specialty Ins. Co. v. Bryers 138 S. Ct. 212

(2017), and the 2017 amendment of section 537.065 give insurers an unconditional

right to intervene in an underlying lawsuit and, in fact, abrogated settled law that an

insurer’s potential indemnification of a judgment does not satisfy the direct -interest

requirement to intervene as a matter of right. This claim was raised, and this Court

rejected it, in Britt:

         American Family argues that by recognizing a right to appeal the denial
       of the motion to intervene, the Supreme Court [in Allen] necessarily
       implied that the appeal would have had merit, and thus implicitly
       overruled the settled principle that an insurer’s interest in an action
       between its insured and a third party is not sufficiently direct to satisfy
       the first requirement for intervention set forth in Rule 52.12(a)(2). This
       is a strained and unsupportable interpretation of Allen. Allen did not need
       to address the merit of the insurer’s argument that it was entitled to
       intervene in the underlying tort action because the insurer waived its right
       to challenge the denial of its motion to intervene. Allen cannot be read to
       have overruled, sub silentio, the settled principle that an insurer’s interest
       in an action between its insured and an injured third party is not sufficient
       to support intervention as a matter of right pursuant to Rule 52.12(a)(2).

Britt, 577 S.W.3d at 143. GEICO’s motions to intervene in the action between Mr.

Aguilar and Ms. Hollandsworth to confirm the arbitration award, filed more than thirty

days after it received notice of their section 537.065 contract, were untimely. Nor did

it have a direct interest in that action to support intervention as of right under Rule

52.12(a)(2). We find it unnecessary to address the second and third parts of this point,

given GEICO’s lack of a direct interest in the confirmation proceeding. See BMO

Harris Bank v. Hawes Trust Invs., LLC, 492 S.W.3d 607, 618 (Mo. App. W.D. 2016)

(stating that a motion to intervene as a matter of right “may be denied if any one of the

requirements is not met.” (citation omitted)). Nevertheless, to the extent that GEICO



                                             8
suggests that it would have had the right to litigate coverage issues in the confirmation

proceeding, we agree with Mr. Aguilar that the appropriate forum for that dispute at

this point is the pending garnishment action. See Augspurger v. MFA Oil Co., 940

S.W.2d 934, 937 (Mo. App. W.D. 1997) (“It is when a claim for potential indemnity

becomes a demand for actual indemnity that the insurer acquires the requisite interest

to intervene as of right.”). To the extent that GEICO claims it should have been able

to litigate “any of the purported findings of fact and conclusions of law in the

Arbitration Award absent the Trial Court’s Judgment and denial of the Motions to

Intervene being vacated and GEICO being permitted to intervene to challenge the

Abitration Award,” we would note that it had every opportunity to enter a defense of

Ms. Hollandsworth without reservation and thus to litigate such matters, but chose not

to do so. This point is denied.

      In the third and final point, GEICO argues trial-court error in denying its motions

to intervene permissively because it was an abuse of discretion in that (1) the

company’s “proposed claims and defenses shared common[] questions of law and f act

with the main action regarding the validity of the arbitration agreement and the

enforceability of the arbitration award,” and (2) the denial “was arbitrary and

unreasonable in light of the evidence of [Mr.] Aguilar and [Ms.] Hollandsworth ’s

procurement of an arbitration award through collussion [sic] and undue means.” Citing

Johnson v. State, 366 S.W.3d 11, 20 (Mo. 2012), GEICO asserts that we review

permissive intervention for abuse of discretion. That case, however, concerned the

grant of the intervention motion. Id. A trial court order denying a motion to intervene

under Rule 52.12(b), permissive intervention, is not a final judgment and therefore not



                                            9
reviewable on appeal. BMO Harris Bank, 492 S.W.3d at 615. Our supreme court 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 Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R.

Co., 67 S. Ct. 1387 (1947)). The applicant “‘is at liberty to assert and protect his

interests in some more appropriate proceeding. Having no adverse effect upon the

applicant, the order denying intervention accordingly falls below the level of

appealability.’” Id. (quoting Bhd. of R.R. Trainmen). Because we must acknowledge,

however, that in other cases involving the denial of permissive intervention Missouri

courts have allowed review for abuse of discretion, we will consider this matter on the

merits. 9

        Under section 435.400, courts “shall” confirm an arbitration award “[u]pon

application of a party” unless “grounds are urged for vacating or modifying or

correcting the award, . . .” Section 435.405.1 requires the courts [u]pon application by

a party” to vacate such awards on prescribed grounds, including that “[t]he award was

procured by corruption, fraud or other undue means.” Because the circuit court here

was asked to confirm the award, and no grounds were urged by the parties to the



9
  That line of cases, however, appears to derive from a case in which intervention was granted. See In
re Additional Magistrates for St. Louis Cnty. , 580 S.W.2d 288, 295 n.6 (Mo. banc 1979). Subsequent
cases in which permissive intervention was denied nevertheless cite Additional Magistrates. See Meyer
v. Meyer, 842 S.W.2d 184, 188 (Mo. App. E.D. 1992) (citing Additional Magistrates after stating “that
permissive intervention is discretionary and that w e review for abuse of discretion”); see also State ex
rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 131 n. 18 (Mo. banc 2000) (citing Meyer for standard
of review for claim of error in trial court’s denial of motion for permissive intervention); and Britt v.
Otto, 577 S.W. 3d 133, 142 (Mo. App. W.D. 2019) (citing Am. Tobacco Co. for review of trial court’s
denial of permissive intervention).


                                                   10
arbitration for vacating, modifying, or correcting the award, neither the validity nor the

enforceability of the award was at issue. And 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.

      GEICO highlights the validity of the arbitration agreement and whether it is

enforceable in arguing that the company’s “claims and defenses share numerous

common questions of law and fact with this proceeding.” The parties, 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. In

its suggestions in opposition to Mr. Aguilar’s application to confirm the arbitration

award, GEICO argued that the agreement to arbitrate “was plainly intended to oppress

and unduly prejudice Geico’s contractual and Constitutional rights. Therefore, the

Arbitration Agreement itself is void as against public policy.” GEICO further refers to

the agreement as unconscionable and unfair and argues that it was a “contrivance

designed to advance a ‘bad faith’ set up against Geico.” GEICO did not and does not

show in any way how the facts or law underlying these matters are shared with the

issues presented to the circuit court in Mr. Aguilar’s application to confirm the

arbitration award.

      The company also claimed that the award was procured by “undue means” and

claimed that Mr. Aguilar and Ms. Hollandsworth engaged in unspecified intentional

misconduct by entering an unauthorized arbitration agreement.           Because GEICO

presented no evidence that the award was procured by undue means or that Mr. Aguilar

and Ms. Hollandsworth engaged in intentional misconduct ot her than to argue that the



                                           11
“award has been manufactured solely for purposes of enhancing the damages to be

alleged in a subsequent ‘bad faith’ claim against Geico,” it has failed to demonstrate

that the denials of its motions to intervene were arbitrary an d unreasonable. The

actions that the parties took in entering a section 537.065 agreement and an agreement

to submit their dispute to arbitration are authorized by statute. The company waived

the right to contest the cause of the accident or the extent of Mr. Aguilar’s injuries and

damages by choosing not to defend Ms. Hollandsworth without reservation and

disclaiming any liability under the Clymenses’ automobile insurance policy. GEICO

will have the opportunity to litigate its liability in the garnishme nt action. This point

is denied.

                                      Conclusion

      The circuit court did not abuse its discretion or misapply the law in denying

GEICO’s motions to intervene as a matter of right and permissively in the proceeding

that Mr. Aguilar initiated with an application to confirm an arbitration award.

Accordingly, we affirm.



                                                /s/Thomas H. Newton
                                                Thomas H. Newton, Judge


Lisa White Hardwick, P.J., and Mark D. Pfeiffer, J. concur.




                                           12
