                                        In the
                        Missouri Court of Appeals
                                 Western District
 AMY LEIGH SAUVAIN, ET AL.,                  )
                                             )
                Appellants,                  )   WD79198
                                             )
 v.                                          )   OPINION FILED: October 4, 2016
                                             )
 ACCEPTANCE INDEMNITY                        )
 INSURANCE COMPANY,                          )
                                             )
               Respondent.                   )

               Appeal from the Circuit Court of Clay County, Missouri
                         The Honorable Janet L. Sutton, Judge

 Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
                             and Gary D. Witt, Judge


       Appellants Amy Sauvain, Ericka Sauvain, and Bonnie Hughes (collectively

"Plaintiffs") appeal from the Circuit Court of Clay County's granting of Acceptance

Indemnity Insurance Company's ("Acceptance") Motion to Quash a garnishment sought by

the Plaintiffs. We affirm.

                         Factual and Procedural Background

       In a separate underlying lawsuit that preceded the present case, Plaintiffs brought

suit alleging that David Bowman, Jr.'s ("Bowman, Jr.") negligence caused a head-on
collision with a vehicle operated by John Sauvain, III ("Sauvain") in Barry County,

Missouri on April 30, 2005. Bowman, Jr. was driving a 1998 Ford Contour when he

crossed the center line and struck Sauvain's 1998 Ford Escort ("the Collision"). Bonnie S.

Hughes ("Hughes") was a passenger in Sauvain's vehicle at the time of the accident.

Sauvain was killed, and Hughes suffered serious injuries in the accident. The circuit court

ultimately entered judgment against Bowman, Jr., awarding to Ericka Sauvain and Amy

Sauvain $2,000,000 for the wrongful death of Sauvain and $4,000,000 to Hughes for her

injuries (the "Judgment"). Bowman, Jr.'s personal auto insurer, USAA, agreed to pay the

sum of $50,000. In addition, Plaintiffs entered into a settlement agreement, pursuant to

Section 537.0651, with Bowman, Jr.

        On July 14, 2008, following the Judgment and the Section 537.065 settlement, the

Plaintiffs filed an equitable garnishment action against Acceptance, alleging that Bowman,

Jr. was an insured under a policy issued by Acceptance ("Policy") and that the Policy

provided coverage for the Collision. This case has previously been before this court twice

during the equitable garnishment action. Sauvain v. Acceptance Indem. Ins. Co., 339

S.W.3d 555 (Mo. App. W.D. 2011) ("Sauvain I"); Sauvain v. Acceptance Indem. Ins. Co.,

437 S.W.3d 296 (Mo. App. W.D. 2014) ("Sauvain II").2 In Sauvain I, Acceptance

challenged the circuit court's finding that its Policy covered Bowman, Jr. at the time of the

accident. This Court concluded that the undisputed facts of this case were not sufficient

for either party to be entitled to summary judgment; hence, we remanded the case for a


        1
          All statutory references are to RSMo 2000 cumulative as currently supplemented, unless otherwise noted.
        2
          For a complete recitation of the arguments and facts surrounding the Policy and Acceptance's denial of
coverage to Bowman, Jr., see Sauvain I and Sauvain II.

                                                        2
trial. Upon remand, the parties waived their right to trial by jury and proceeded with a

bench trial. On January 21, 2013, the trial court found that the Plaintiffs were entitled to

judgment against Acceptance on their claim for equitable garnishment in the amount of the

policy limits of $100,000 ("Equitable Garnishment Judgment").

        Acceptance appealed this Equitable Garnishment Judgment in Sauvain II, arguing

that there was substantial evidence to find the vehicle was not covered under the Policy.

This Court found that, although there was substantial evidence in the record that would

have supported Acceptance's position, the trial court's finding that Bowman, Jr. was

covered by the Policy was also supported by substantial evidence and was not against the

great weight of the evidence. We affirmed the Equitable Garnishment Judgment against

Acceptance for the limits of the Policy of $100,000.

        Plaintiffs collected the $100,000 from Acceptance but then filed a garnishment

action under Chapter 525 and Rule 903, seeking to garnish from Acceptance the remaining

$5,900,0004 of the Judgment against Bowman, Jr. ("Garnishment"). As a factual basis of

support for the Garnishment, Plaintiffs contended that Acceptance had a duty to defend

Bowman, Jr. in the negligence case and, in refusing to do so, Acceptance breached its

contractual duty. In Missouri, if an insurer is found to have breached its duty to defend, it

may be liable for all resultant damages (the amount of the judgment)--even beyond the

policy limits. See Schmitz v. Great Am. Assurance Co., 337 S.W.3d 700, 708-09 (Mo. banc




        3
           All rule references are to Missouri Supreme Court Rules (2016).
        4
           The total amount of the garnishment was for $5,900,030. $5,900,000 for the Judgment and $30 for the
fees associated with the garnishment.

                                                        3
2011). Thus, Plaintiffs claimed that they were entitled to recover the full remaining

judgment against Bowman, Jr. from Acceptance.

       Acceptance filed a Motion to Quash Garnishment on May 29, 2015 ("Motion to

Quash"). Acceptance argued that a court lacks authority in a garnishment action under

Chapter 525 and Rule 90 to enter an award for the full Judgment. Chapter 525 and Rule

90 garnishment actions are traditional "garnishment in aid of execution" actions that are

ancillary in rem proceedings. In such garnishment in aid of execution actions, the merits

of an underlying action--in this case Acceptance's alleged breach of its duty to defend--are

an improper subject matter for the court. Acceptance contended that the circuit court was

limited to issuing a garnishment order for the limits of the Policy because that was the sole

issue that had been previously decided. Acceptance argued that outstanding questions

regarding Acceptance's duty to defend and any liability stemming from that duty were not

before the court for consideration.

       The trial court agreed and granted Acceptance's Motion to Quash on December 2,

2015. This appeal followed.

                                      Standard of Review

       "Appellate review of a trial court's decision on a motion to quash requires that the

judgment be affirmed unless there is not substantial evidence to support it, the judgment is

against the weight of the evidence, or it erroneously declares or applies the law." Keipp v.

Keipp, 385 S.W.3d 470, 473 (Mo. App. W.D. 2012).




                                              4
                                         Discussion

         Plaintiffs' sole point on appeal contends that the trial court erred in quashing

Plaintiffs' Garnishment because the court erroneously found that Plaintiffs were not entitled

to recover in excess of the judgment against an insurer in a garnishment proceeding brought

under Chapter 525.

         This case must necessarily begin with an explanation of Missouri's garnishment

proceedings. Missouri recognizes two types of garnishment actions against insurers.

Chapter 525 and Rule 90 recognize what is known as "a garnishment in aid of execution"

or a "traditional garnishment." State ex rel. Koster v. Cain, 383 S.W.3d 105, 112 (Mo.

App. W.D. 2012). It assists in the recovery of an existing judgment. Id. A garnishment

action pursuant to section 379.200 is a direct garnishment action known as an "equitable

garnishment proceeding," in which a plaintiff, in a separate lawsuit, is attempting to assert

an independent claim or claims directly against an insurer. McDonald v. Ins. Co. of State

of Pa., 460 S.W.3d 58, 67 (Mo. App. W.D. 2015). An equitable garnishment action results

in a new judgment against an insurer. Johnston v. Sweany, 68 S.W.3d 398, 403 (Mo. banc

2002).

         A traditional garnishment or garnishment in aid of execution is a statutory creation

in derogation of the common law. Moore Auto. Grp., Inc. v. Goffstein, 301 S.W.3d 49, 53

(Mo. banc 2009). Such an action "'is a proceeding in rem that brings within the jurisdiction

and power of the court a debt or chose in action and impresses it with the lien of the

judgment in aid of execution.'" McGathey v. Matthew K. Davis Trust, 457 S.W.3d 867,

873 (Mo. App. W.D. 2015) (quoting Div. of Emp't Sec. v. Cusumano, 785 S.W.2d 310, 312

                                              5
(Mo. App. E.D. 1990)). A garnishment proceeding governed generally by Chapter 525

and Rule 90 is an ancillary proceeding growing out of, and dependent on, an underlying

original or primary action or proceeding. Moore Auto. Grp., Inc., 301 S.W.3d at 53.

"Garnishment in aid of execution is an incidental remedy by which a judgment creditor

may collect [upon an existing] judgment by reaching the judgment debtor's property in the

hands of a third party." State ex rel. Koster, 383 S.W.3d at 112 (internal quotations

omitted). "Because garnishment represents a means by which a judgment creditor seeks to

enforce or collect a judgment, it is axiomatic that [a] valid judgment . . . [is an]

indispensable prerequisite[] to a valid garnishment." Id. (internal quotations omitted). In

a garnishment in aid of execution action, the garnishment action is styled with the same

case style and has the same case number as the original suit; the insurer is not indicated as

a party but as a garnishee. Johnston, 68 S.W.3d at 404.

       The procedure for garnishment in aid of execution is set forth in Rule 90.07.

Interrogatories are served on the garnishee simultaneously with the summons and writ of

garnishment. Rule 90.07(a). The garnishee is required to file and serve verified answers

to the interrogatories. Rule 90.07(b). The garnishor then files any exceptions to the

interrogatory answers, asserting any objections to the answers and all grounds upon which

recovery is sought against the garnishee. Rule 90.07(c). The garnishee may file a response

to the exceptions. Rule 90.07(d).

       In garnishment actions governed by Rule 90 and Chapter 525:

       the summoning of the garnishee, and the propounding of the interrogatories
       to [it] and [its] answer thereto, are merely the preliminaries to the making of
       the issues between plaintiff and the garnishee. When the latter answers

                                             6
      saying [it] has no money or property of the defendant, the denial [or
      exceptions] of the plaintiff is the foundational pleading on which its cause of
      action against the garnishee rests. The issues are made up, not by the
      interrogatories and answer, but by the denial [or exceptions] and reply [or
      response].

Landmark Bank of Ladue v. Gen. Grocer Co., 680 S.W.2d 949, 953 (Mo. App. E.D. 1984)

(quoting Rees v. Peck-King Mortg.. Co., 230 S.W. 666, 667 (Mo. App. 1921)); see also

Wayland v. Nationsbank, N.A., 46 S.W.3d 21, 24 (Mo. App. E.D. 2001). The exceptions

to interrogatory answers stand in place of a petition and must contain the grounds upon

which recovery is sought. Landmark Bank of Ladue, 680 S.W.2d at 953.

      By contrast, although called an equitable garnishment, section 379.200 is a direct

cause of action against an insurance company and, in reality, "is no garnishment at all."

Zink v. Emp'rs Mut. Liab. Ins. Co., 724 S.W.2d 561, 564 (Mo. App. W.D. 1986) (overruled

on other grounds by Johnston v. Sweany, 86 S.W.3d 398, 403 (Mo. banc 2002)). "An

equitable garnishment action is a suit in equity against the insurance company to seek

satisfaction of one's judgment under an insurance policy." McDonald, 460 S.W.3d at 67

(internal quotation omitted). "[Section] 379.200 did not create an exclusive, specific

statutory remedy." Cronin v. State Farm Fire & Cas. Co., 958 S.W.2d 583, 587 (Mo. App.

W.D. 1997). It may be used in conjunction with a Rule 90 garnishment. Johnston, 68

S.W.3d at 403-04.

      "In an equitable garnishment action brought directly against an insurer, the plaintiff

must prove that a judgment was obtained against an insurance company's insured during

the policy period and that the injury is covered by the policy." Taylor v. Bar Plan Mut.

Ins. Co., 457 S.W.3d 340, 344 (Mo. banc 2015); section 379.200. The insurer may assert

                                            7
any defense against the judgment creditor which it might have asserted as a defense in an

action brought against it by its insured, including the defense of "no coverage", by

providing that the accident fell under a policy exclusion and was, therefore, outside the

insurance contract's coverage. Adams v. Manchester Ins. & Indem. Co., 385 S.W.2d 359,

363 (Mo. App. 1964).

        Thus, whereas an equitable garnishment action asserts a separate and distinct claim

or claims against an insurer and seeks judgment directly against the insurer, a garnishment

in aid of execution is used to collect upon rights that have been adjudicated in an existing

judgment. The question that is posed by the Plaintiffs, and left to this Court to consider, is

whether a garnishment in aid of execution may be used to decide a separate and distinct

claim related to the judgment sought to be garnished, despite historically not being used in

such a way.5 Specifically in this case, may the circuit court decide whether Acceptance

breached its duty to defend under the Policy within the confines of a garnishment in aid of

execution proceeding, thus allowing for collection of damages (the Judgment) beyond

policy limits?

        Whether a party may recover damages for breach of duty to defend under a

garnishment in aid of execution proceeding is a two-part question. First is whether, under

Rule 90, damages for a breach of a duty to defend are "property subject to garnishment."

Rule 90.01 defines "[p]roperty subject to garnishment" to include "all goods, personal



        5
         This issue is currently being considered by the Supreme Court. See Allen v. Bryers, WD 77905, 2015 WL
5439944 (Mo. App. W.D. Sept. 15, 2015) ordered transferred March 1, 2016, argued and submitted May 4, 2016.



                                                      8
property, money, credits, bonds, bills, notes, checks, choses in action, or other effects of

debtors and all debts owed to debtor . . . ." See also, section 525.040. "Chose in action" is

defined as:

          1. A proprietary right in personam, such as a debt owed by another
          person, a share in joint-stock company, or a claim for damages in tort. 2.
          The right to bring an action to recover a debt, money, or thing. 3. Personal
          property that one person owns but another person possesses, the owner
          being able to regain possession through a lawsuit.

BLACK'S LAW DICTIONARY, p. 258 (8th ed. 2004) (internal citations omitted). Under this

definition of "chose in action," a claim for damages in tort would be property subject to

attachment in a garnishment in aid of execution proceeding. However, a garnishment

action cannot reach a contingent liability, because a contingent liability is not currently

due. See Raithel v. Hamilton-Schmidt Surgical Co., 48 S.W.2d 79, 81-82 (Mo. App. 1932).

"Debts not yet due to the defendant may be attached, but no execution shall be awarded

against the garnishee for debts until they shall become due." Section 525.260. The question

is whether a debt for which the garnishee can currently sue--such as an insurer's breach of

a duty to defend--constitutes a present debt as a "chose in action" that is subject to

garnishment. It is clear that garnishment cannot occur until a debt is "due," which

fundamentally requires a court deciding that such a debt exists. We find that, although it

may appear that this type of debt could potentially be collected in a garnishment in aid of

execution action, the court lacked authority within such an action to make the

determination that the debt was due.

       "As a general rule, [in a garnishment in aid of execution] the garnishee cannot

dispute the merits of [the] plaintiff's claim against the defendant, and cannot go outside the

                                              9
record to make a collateral attack on the judgment." Thompson v. B&G Wrecking & Supply

Co., 346 S.W.2d 65, 68 (Mo. 1961) (internal citation omitted). "Garnishment in aid of

execution is an incidental remedy whereby a plaintiff seeks to collect the judgment by

reaching the defendant's property in the hands of a third party." Landmark Bank of Ladue,

680 S.W.2d at 953. "As an incidental remedy, garnishment [in aid of execution] was never

intended to enable [an insured or the insured's assign] to enforce claims held by him directly

against the garnishee." Id.

       The only issue in a garnishment in aid of execution is whether "the garnishee is

possessed of property or effects of the defendant, or is indebted to the defendant." Section

525.220. At trial:

       [i]f . . . it shall appear that property, effects or money of the defendant are
       found in the hands of the garnishee, the court or jury shall find what property
       or effects, and the value thereof, or what money are in his hands, . . . then the
       court shall enter up judgment against the garnishee for the proper amount or
       value as found in money, and execution may issue forthwith to enforce such
       judgment.

Section 525.200.

       Accordingly, the only question in a garnishment in aid of execution proceeding is

whether the insurer/garnishee furnished coverage under the insurance policy so that a

garnishor may garnish that coverage to pay for the underlying judgment already determined

in a separate proceeding. This is because a garnishment in aid of execution proceeding is

an in rem ancillary action designed to enforce rights and obligations set forth in an

underlying judgment. This is not a proceeding in which separate and independent tort

claims that might exist against the insurer/garnishee may be pursued. In this case, any


                                              10
alleged breach of duty to defend by Acceptance is not ancillary to any adjudication

contained within the Judgment or the Garnishment Execution Judgment filed with this

Garnishment. Neither judgment makes a determination as to Acceptance's duty to defend

Bowman, Jr. nor has a breach of such a duty been adjudicated. Such a claim is a fiduciary

and, arguably, punitive claim against an insurer that simply is not permissible in this

procedural setting.

       In the present case, it is evident that garnishor has attempted to bring a
       separate and independent action against garnishee for an alleged breach of
       fiduciary duty within the narrow confines of a garnishment in aid of
       execution. Garnishor's action requires a proceeding more elastic and
       comprehensive than a garnishment. Neither Chapter 525 . . . nor Rule 90
       provide[s][sic] for an action by a garnishor against a garnishee for punitive
       damages. We cannot permit garnishor to substitute the purely incidental
       remedy of garnishment for an action alleging breach of fiduciary duty and
       requesting punitive damages.

Landmark Bank of Ladue, 680 S.W.2d at 954.

       As noted by Acceptance, the cases primarily relied on by Plaintiffs, Columbia

Casualty Company v. HIAR Holding, LLC, 411 S.W.3d 258 (Mo. banc 2013) and Schmitz

v. Great American Assurance Company, 337 S.W.3d 700 (Mo. banc 2011), do not address

the question of whether extra contractual damages may be considered and determined by a

court in a garnishment in aid of execution action. Both cases were direct action cases

brought against an insurer. The obligations of the insurer and the damages owed resulting

from a breach of those obligations were determined in declaratory actions separate from

the garnishment proceedings. In the present action, it has not been conclusively established

that the Acceptance Policy did in fact cover the accident at issue and the total unpaid

damages are $5,900,000.00. The only issues that remain to be decided are (1) whether the

                                            11
facts as known to Acceptance at the beginning of the case indicated there was a possibility

that it would be required to indemnify Bowman, Jr. and (2) was Acceptance provided

notice and the opportunity to defend the underlying lawsuit. McCormack Baron Mgmt.

Servs., Inc. v. Am. Guarantee & Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. banc 1999);

State Farm Fire & Cas. Co. v. Metcalf, 861 S.W.2d 751, 756 (Mo. App. S.D. 1993). In

essence, whether Acceptance had a duty to defend and whether Acceptance breached that

duty remain to be decided.

       In Columbia, HIAR Holding, L.L.C. was insured by Columbia Casualty Insurance.

441 S.W.3d at 262. HIAR was sued in a class action lawsuit and instructed Columbia to

defend the suit. Id. After Columbia refused, HIAR defended the suit at its own expense

and ultimately settled the suit for an amount beyond policy limits. Id. The class sought to

collect on the settlement judgment by bringing a garnishment action against Columbia. Id.

at 263. Columbia objected to the applicability of its coverage and sought a declaratory

judgment clarifying its duties to defend and indemnify the class's claims under HIAR's

policy. Id. The garnishment action was stayed pending the resolution of the declaratory

action. Id. The court granted the class the right to garnish the full amount of the settlement

only after the declaratory judgment proceeding found that Columbia had a duty to

indemnify HIAR for the full settlement. Id.

       Schmitz too was an equitable garnishment action brought directly against the insurer

rather than the garnishment in aid of execution action brought here. Schmitz, 337 S.W.3d

at 710. Plaintiffs are correct that Schmitz supports long-standing Missouri law that an

insurer can be liable for the entirety of a judgment if it breaches its duty to defend. Id. It

                                              12
does not, however, support Plaintiff's proposition that whether a duty has been breached

can be decided in a garnishment in aid of execution action--a type of action not even at

issue in Schmitz.

       Beyond supporting the undisputed contention that an insurer may be liable for the

entire amount of a judgment if it breaches its duty to defend an insured, these cases are not

instructive as to the current issues before this Court.

                                            Conclusion

       The circuit court was not authorized to consider whether Acceptance is liable for

the entire amount of the Judgment based on an alleged breach of a duty to defend Bowman,

Jr. Nor was the circuit court authorized to grant a garnishment for damages for such an

alleged breach. Neither question was a proper consideration for the court in a garnishment

in aid of execution proceeding. As such, the circuit court did not error in quashing

Plaintiff's Garnishment for the full $5,900,000 Judgment.



                                           __________________________________
                                           Gary D. Witt, Judge

All concur




                                              13
