Ricky Griffitts vs. Old Republic Insurance Company, BNSF Railway Company, and James M. Campbell

Appellant Ricky Lee Griffitts (“Griffitts”) was rear-ended by James Campbell (“Campbell”), an employee of BNSF Railway Company (“BNSF”), in Springfield, Missouri. Campbell was driving a BNSF company vehicle and was intoxicated at the time of the collision. Numerous lawsuits ensued, including the instant equitable garnishment action that Griffitts filed against BNSF and its insurer, Old Republic (collectively, Respondents), to collect on the unsatisfied $1.475 million judgment entered against Campbell in an earlier action. Griffitts filed this equitable garnishment suit claiming Campbell was a permissive user under the omnibus clause of the insurance

Opinion issued July 3, 2018

2

policy Old Republic issued to BNSF. This Court has jurisdiction under article V, section

10, of the Missouri Constitution. The judgment of the circuit court is vacated, and the

case is remanded to the circuit court for further proceedings.

Background

While employed with BNSF, Campbell was a foreman on a tie gang (a group of

workers who travel the region and replace railroad ties) for BNSF. Campbell’s position

required him to travel to and stay at out-of-town job sites sometimes for up to a week or

more in a multistate region. This region included Tennessee and Missouri. In January

2009, BNSF gave Campbell a BNSF-owned vehicle (“company vehicle”) to use for work

purposes.1 While at home in Tennessee, however, Campbell was only permitted to use

the company vehicle for work and did not have permission to use it for personal use.

Then, in March 2009, Campbell’s supervisor gave him permission to use the

company vehicle to commute between his home in Tennessee and a job site in

Springfield, Missouri. BNSF had no express policy or rule detailing what a BNSF

employee could (or could not) use a company vehicle for while traveling to, staying near,

and working at an out-of-town job site.2 Campbell regularly used the company vehicle to

get meals, go to job sites, and do other necessary errands. Campbell was never told he

1 On March 14, 2009, Campbell took the original vehicle assigned to him to a repair shop due to

problems with that vehicle’s electrical system. A 2008 Chevrolet Silverado pick-up truck was

provided to Campbell as a replacement vehicle. Because the Silverado – like the original vehicle

provided to Campbell – belonged to BNSF, the fact Campbell was driving the Silverado and not

the original vehicle at the time of the collision has no bearing on the outcome of this case.

2 Additionally, there was no rule requiring BNSF employees to be on the clock or in the course

or scope of their employment to drive a company vehicle while traveling to, staying near, and

working at an out-of-town job site.

3

could not use the company vehicle in this way, nor was he disciplined for doing so.

Other BNSF employees corroborated Campbell’s use of the company vehicle in this

manner, as they testified they also used company vehicles for the same purposes. In fact,

one BNSF employee testified that, when he was traveling to, staying near, and working at

an out-of-town job site, he used the company vehicle for any purpose for which he would

use his own vehicle. Further, while Campbell was working at the job site in Springfield,

BNSF was aware the company vehicle was his only means of transportation.

Despite BNSF’s lack of an express rule regarding when an employee could (or

could not) use a company vehicle while traveling to, staying near, and working at an

out-of-town job site, BNSF had rules and polices for other matters. Of particular

significance are BNSF’s policy on the Use of Alcohol and Drugs, section 3.1 of which

prohibits the use or possession of alcohol “while on BNSF property, on duty, or operating

BNSF work equipment or vehicles,” and BNSF’s Maintenance of Way Rule, section 1.5

of which prohibits “the use or possession of alcoholic beverages while on duty or on

company property” (collectively, the Company Rules).

On the day of the collision, Campbell traveled from his home in Tennessee to a

motel in Springfield, where he would be staying while working at the BNSF job site

nearby. After arriving at the motel around 5:00 p.m., Campbell joined other BNSF

employees to eat barbecue, play video games, and drink alcohol. After a time, a few of

Campbell’s coworkers walked him back to his room, where he fell asleep for a few hours.

Around 8:30 p.m., Campbell woke up and left the hotel in the company vehicle.

4

Moments later, Campbell ran the company vehicle into the back of Griffitts’s

vehicle, which had been stopped at a traffic light. Griffitts sustained serious injuries from

the collision. Campbell’s vehicle ultimately came to rest in the parking lot of a Ruby

Tuesday’s restaurant.3 The police arrived at the scene shortly thereafter. Campbell

admitted to the responding officers he had been drinking and felt intoxicated. Campbell

was arrested. Subsequent testing revealed his blood alcohol content was more than twice

the legal limit.4 Campbell’s conduct prompted an internal investigation by BNSF and, in

April 2009, Campbell was fired for violating the Company Rules.

Campbell’s collision has sparked a great deal of litigation. Of particular

significance is Griffitts’s third negligence lawsuit against Campbell,5 in which the circuit

court entered a $1.475 million judgment for Griffitts and against Campbell. That

judgment went unsatisfied for 30 days, after which Griffitts filed the instant equitable

3 The circuit court found, “at the time of the crash, … Campbell was on his way either to Ruby

Tuesday’s to drink more alcohol, or to a liquor store to purchase more alcohol.” The circuit

court indicated it was “unpersuaded” Campbell was in search of more food. Of course,

“[c]onflicts in the evidence [are] for the trial court to resolve.” State v. Lytle, 715 S.W.2d 910,

915 (Mo. banc 1986). Accordingly, this Court is bound by the factual findings of the circuit

court. This has no bearing on the outcome of this case, however, because Campbell’s permission

to use the company vehicle was not limited to going to get food. Rather, Campbell had broad,

general permission to use the company vehicle. As a result, the circuit court’s finding on this

point will not be addressed further.

4 Campbell ultimately pleaded guilty to felony counts of leaving the scene of an accident and

second-degree assault. His sentence included an order to pay Griffitts $45,000 in restitution.

5 Griffitts first sued Campbell and BNSF for negligence in Greene County circuit court, Case

No. 0931-CV04244. BNSF removed that case to the U.S. District Court for the Western District

of Missouri, which ultimately found Campbell was not acting within the course and scope of his

employment at the time of the collision and, therefore, entered summary judgment in favor of

BNSF on Griffitts’s respondeat superior claim. Griffitts then filed a second negligence suit, this

time against Campbell alone, in Greene County circuit court, Case No. 1131-CV03896. BNSF

and Old Republic filed a motion to intervene, but, prior to any rulings by the circuit court,

Griffitts voluntarily dismissed that case.

5

garnishment action against Respondents on the ground Campbell was a permissive user

under the omnibus clause of the insurance policy issued by Old Republic to BNSF.

The only issue considered by the circuit court was whether Campbell, at the time

of the collision, had permission to use the company vehicle under the omnibus clause of

BNSF’s insurance policy. The circuit court reasoned the Company Rules were rules of

authorization or permission. Because Campbell was in violation of the Company Rules

at the time of the accident, the circuit court concluded Campbell did not have permission

to use the company vehicle at that time and, therefore, was not a permissive user under

the omnibus clause of BNSF’s policy. As a result, the circuit court entered judgment for

Respondents.

Standard of Review

Appellate review of an equitable garnishment action is governed by Rule 73.01.

Schmitz v. Great Am. Assur. Co., 337 S.W.3d 700, 705 (Mo. banc 2011). “The judgment

will be affirmed unless there is no substantial evidence to support it or unless it is against

the weight of the evidence, it erroneously declares the law, or it erroneously applies the

law.” Id. As with any other contract, the “interpretation of an insurance policy is a

question of law that this Court determines de novo.” Seeck v. Geico Gen. Ins. Co., 212

S.W.3d 129, 132 (Mo. banc 2007). “In construing the terms of an insurance policy, this

Court applies the meaning which would be attached by an ordinary person of average

understanding if purchasing insurance ....” Id. (quotation marks omitted). “Absent an

ambiguity, an insurance policy must be enforced according to its terms.” Id. Notably,

“[w]here the policy language has already been judicially defined,” no ambiguity exists,

6

and “the judicial definition[] assigned to [a] policy term [is] controlling.” Walden v.

Smith, 427 S.W.3d 269, 274 (Mo. App. 2014). However, the “credibility of witnesses

and the weight to be given their testimony is a matter for the circuit court, which is free to

believe none, part, or all of their testimony.” Herbert v. Harl, 757 S.W.2d 585, 587 (Mo.

banc 1988).

Analysis

Point I of Griffitts’s substitute brief fails to comply with Rule 84.04.6 In its

discretion, however, this Court elects to review only the first of the two claims in

Griffitts’s multifarious Point I, i.e., whether the circuit court erroneously declared the law

regarding what constitutes permissive use (as distinct from operation) of a vehicle under

the omnibus clause of an insurance policy. See Spence v. BNSF Ry. Co., __ S.W.3d. __,

Slip Op. at 14 n.12 (Mo. banc 2018) (No. SC96195, decided May 22, 2018, and modified

on the Court’s own motion June 12, 2018) (electing to review only the first of multiple

claims in a multifarious point relied on). Resolution of this point is sufficient to decide

the appeal.

“It is the public policy of this state to assure financial remuneration for damages

sustained through the negligent operation of motor vehicles on the public highways of

6 Griffitts’s Point I argues the circuit court erroneously declared and applied the law. These are

separate and distinct claims. Griffitts’s Point I violates Rule 84.04, therefore, because “it groups

together multiple, independent claims rather than a single claim of error.” Kirk v. State, 520

S.W.3d 443, 450 n.3 (Mo. banc 2017). “Multifarious points relied on are noncompliant with

Rule 84.04(d) and preserve nothing for review.” Id.

7

this state not only by the owners of such automobiles but also by all persons using such

vehicles with the owner’s permission, express or implied.” Allstate Ins. Co. v. Sullivan,

643 S.W.2d 21, 22-23 (Mo. App. 1982) (citing Winterton v. VanZandt, 351 S.W.2d 696,

701 (Mo. 1961)). This public policy is made law in section 303.190.2(2) of the Motor

Vehicle Financial Responsibility Law, which requires any insurance policy issued in the

state to have an omnibus clause. Ragsdale v. Armstrong, 916 S.W.2d 783, 785 (Mo. banc

1996). An omnibus insurance clause requires coverage for “the person named therein

and any other person … using any such motor vehicle or motor vehicles with the express

or implied permission of such named insured.” § 303.190.2(2). “Omnibus coverage

provisions are intended to extend, not restrict, coverage afforded and such intention is

salutary.” Weathers v. Royal Indem. Co., 577 S.W.2d 623, 626 (Mo. banc 1979) (citation

omitted). “Such extension is accomplished by enlarging the number and variety of

insured classes.” Id.

In 1979, this Court construed the policy language at issue in this case, and that

“judicial definition[]… [is] controlling.” Walden, 427 S.W.3d at 274. Therefore, by

failing to employ prior judicial constructions of the relevant policy language concerning

permissive use, the circuit court erroneously declared the law. In Weathers, this Court

held the phrase “permissive use” as used in an omnibus insurance clause protects any

person using the vehicle with the permission (express or implied) of the named insured

whether or not the actual operation of the vehicle is within the framework of that

permission. Weathers, 577 S.W.2d at 628. The Court explained, “[u]se is said to involve

8

its employment for some purpose or object of the user,”7 whereas “[o]peration of the

vehicle… is said to involve the driver’s direction and control of its mechanism for the

purpose of propelling it as a vehicle.” Id. at 627. As such, in the context of an omnibus

insurance clause, the term “use” is much broader in scope and application than the term

“operate.”

In Weathers, this Court addressed whether the driver of a rented vehicle was a

permissive user under the omnibus clause of the rental car company’s insurance policy.

Id. at 624. Ultimately, this Court found the renter’s permission to use the rental vehicle

was “broad, almost unfettered,” whereas the renter’s operation was limited by restrictions

in the rental agreement. Id. at 626-27. Although the driver of the rented vehicle was not

permitted to drive the vehicle pursuant to the rental agreement, the Court found he was

covered under the omnibus insurance clause because the forbidden act (i.e., a

non-permitted driver driving the rental vehicle) related to the operation, and not the use,

of the vehicle. Id. at 628. The Court explained, when a “use ha[s] been permitted, it is

immaterial how the vehicle was operated.” Id.

Both this Court and the court of appeals have dutifully applied the holding in

Weathers on many occasions.8 Of particular significance here is United Fire & Casualty

Co. v. Tharp, 46 S.W.3d 99 (Mo. App. 2001), which is factually similar to the present

7 See also Farm Bureau Mut. Ins. Co. v. Broadie, 558 S.W.2d 751, 754 (Mo. App. 1977)

(finding use is the purpose “actually contemplated at the time of the original bailment”).

8 See, e.g., Royal Indem. Co. v. Shull, 665 S.W.2d 345 (Mo. banc 1984); Broadie, 558 S.W.2d

751.

9

case.9 In Tharp, the court of appeals found the omnibus clause of the employer’s

insurance policy extended coverage to the employee. Id. at 100-01. The employee had

permission to use the company vehicle to get meals after work hours, which is what he

was doing at the time of the accident giving rise to the lawsuit. Id. at 102. And although

the employee violated his employer’s company rules against hauling non-employee

passengers and consuming alcohol, the court of appeals properly found such conduct

related to the operation, and not the use, of the vehicle. Id. at 105.10

Here, the omnibus clause of BNSF’s insurance policy provides coverage for

“anyone else while using with your permission a covered ‘auto’ you own, hire or

borrow.” As with the cases above, the issue is whether Campbell’s use (as distinct from

operation) of the vehicle was within the scope of permission given by BNSF and,

therefore, covered under the omnibus insurance clause. This Court holds it was.

9 Respondents’ attempt to distinguish Tharp is unpersuasive. Respondents argue that, in Tharp,

the court found the employee was covered under the omnibus insurance clause because his

supervisor knew of and acquiesced to the violation of the employer’s rules (i.e., driving a nonemployee

in the vehicle and driving under the influence of alcohol). But the court in Tharp did

not hold the employee was not in violation of his employer’s rules due to the presence and

apparent acquiescence of his supervisor. Rather, the court found he was in violation of his

employer’s rules but, because those rules regarded only the operation, and not the use, of the

vehicle, the employee’s violation of the rules did not preclude coverage under the omnibus

insurance clause.

10 Similarly, Allstate Insurance Co. v. Sullivan, 643 S.W.2d at 23, also deals with coverage

pursuant to an omnibus insurance clause and a prohibition against driving while intoxicated. In

Sullivan, the court held that Sullivan’s driving while intoxicated (in violation of the terms of the

rental agreement) related to the operation of the vehicle, but “Sullivan’s [permitted use] of the

[rental] car was … broad[] [and] almost unfettered.” Id. As a result, the court held “use (as

distinct from the operation) by Sullivan of the vehicle was within the scope of permission given

by Budget.” Id.

10

It is undisputed Campbell had permission to drive to and from his Tennessee home

to the BNSF job site in Springfield.11 When Campbell was out of town for work, the

company vehicle was his only means of transportation and he was permitted to use the

vehicle to get meals and run personal errands. Campbell and other employees had

previously (and routinely) used company vehicles for such purposes without any

instruction to the contrary or discipline from BNSF. Accordingly, as in Weathers,

Campbell had “broad, almost unfettered” permission to use the company vehicle while he

was traveling to, staying near, and working at an out-of-town job site.

Because Campbell had broad, almost unfettered permission to use the company

vehicle at the time of the accident, it does not matter, for purposes of insurance coverage

under BNSF’s omnibus clause, that Campbell was drunk because, once “use ha[s] been

permitted, it is immaterial how the vehicle was operated.” Weathers, 577 S.W.2d at 628.

Like the rental agreement restrictions in Weathers and the employer’s company rules in

Tharp, Campbell’s violation of the Company Rules were restrictions on operation, not

use.12

11 Although, “[p]ermissive use is a question of fact[,]” State Farm Fire & Cas. Co. v. Ricks, 902

S.W.2d 323, 324 (Mo. App. 1995), and the circuit court found Campbell was not a permissive

user of the company vehicle, the circuit court’s judgment was based on an erroneous declaration

of law and cannot stand. Despite this Court having clarified almost 40 years ago in Weathers the

meaning of the relevant terms in omnibus clauses, the circuit court used an incorrect definition

and, as a result, erroneously declared the law. Walden, 427 S.W. 3d at 274; Schmitz, 337 S.W.3d

at 705.

12 Respondents rely heavily on the fact that Campbell admitted to violating the Company Rules

on the night of the collision. Campbell’s admission, however, has no bearing on the outcome of

this case. But because the Court holds the Company Rules are rules of operation and not use,

Campbell’s violation of those rules has no bearing on the issue of whether he was covered under

the omnibus clause of BNSF’s insurance policy as a permissive user.

11

Accordingly, this Court holds the circuit court erroneously declared the law when

it concluded Campbell’s violation of BNSF’s rules regarding vehicle operation were

sufficient to preclude coverage under the omnibus clause of BNSF’s insurance policy.



* * *



13 The remainder of Griffitts’s multifarious Point I argues the circuit court erroneously applied

the law regarding the permissive user of a vehicle under an omnibus insurance clause. In Point

II, Griffitts argues the circuit court did not have authority to proceed because it received this case

as the result of an improper application for change of judge filed by Respondents. In Points III

and IV, Griffitts asserts the circuit court erroneously applied the law in that the doctrines of

judicial estoppel and collateral estoppel, respectively, required the circuit court to find that, at the

time of the collision, Campbell was traveling to a restaurant to eat dinner. Because this Court

grants Griffitts relief on the first argument in Point I, it neither reaches nor decides these other

points.

For the reasons set forth above, the judgment of the circuit court is vacated and the case remanded to the circuit court for further proceedings.13