Date: 06-02-2022

Case Style:

JOSIAH WRIGHT v. PHILLIP NASH and KEY INSURANCE COMPANY

Case Number: WD84602

Judge:

Missouri Court of Appeals

Circuit Court of Jackson County, Missour

Court:

In the Missouri Court of Appeals Western District

On appeal from The

Plaintiff's Attorney:

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Defendant's Attorney: James Patrick Maloney

Description:

St. Louis, MO - Personal Injury lawyer represented Appellant with appealing from the trial court's entry of judgment in favor of Respondent

e vehicle will
be garaged during most of the period."
Id. (quoting Accurso, 295 S.W.3d at 551-52). During the time that the Second Policy was in effect, Phillip lived in
Missouri and Takesha lived in Kansas. Generally, section 193 and the fact that Takesha represented the Kia to be
garaged at her residence in Kansas would resolve the choice of law issue; however, because Key Insurance disputes
that the Kia was garaged in Kansas, we turn to section 188's "most significant relationship" test which considers the
following principles: "(1) the place of the contracting, (2) the place of negotiation of the contract, (3) the place of
performance, (4) the location of the subject matter of the contract, and (5) the domicile, residence, nationality, place
of incorporation and place of business of the parties." Accurso, 295 S.W.3d at 552. Key Insurance is a Kansas
insurance company, and Takesha, a Kansas resident, negotiated and contracted for her Second Policy at Tom Rich
Insurance Agency in Kansas. Takesha's signed application for the Second Policy stated, "All cars must be garaged
in Kansas," and she represented that the Kia would be garaged at her residence in Kansas. Therefore, we agree that
Kansas law applies.
8
to pay Wright's claim because the claim involved a fraudulent insurance act by Takesha,
as she materially misrepresented the ownership, operator, and garaging location of the Kia.
On March 16, 2021, the trial court issued its "Findings of Fact, Conclusions of Law
and Judgment" ("Judgment") in favor of Wright and against Key Insurance on Wright's
equitable garnishment claim. The trial court concluded that the Second Policy was in effect
on the date of the 2017 Collision and that it provided coverage to Phillip for Wright's
judgment. The trial court found that Takesha did not materially misrepresent the
ownership, garaging location, or operator of the Kia. The trial court alternatively found
that even if Takesha made material misrepresentations, Key Insurance waived the right to
rescind or void the Second Policy when, with knowledge of the alleged material
misrepresentations, it elected to retain Takesha's premium and to cancel the Second Policy
with a future effective date in lieu of immediately rescinding the Second Policy and
refunding the premium. The trial court entered judgment in favor of Wright and against
Key Insurance for the policy limits of the Second Policy.
Key Insurance sought Rule 74.01(b) certification of the trial court's Judgment as
final for purposes of interlocutory appeal because the Judgment "constitutes a complete
disposition of [Wright's] claim for relief." The trial court issued amended findings of fact,
conclusions of law and judgment ("Amended Judgment") that were essentially identical to
those in the Judgment, though the Amended Judgment further found there to be "no just
reason for delay of an appeal of this judgment."5

5No party contests the trial court's authority to certify the Amended Judgment for immediate appeal
pursuant to Rule 74.01(b); however, because we have a duty to determine, sua sponte, whether we have jurisdiction,
we briefly discuss the trial court's authority to do so. Randolph v. City of Kansas City, 599 S.W.3d 517, 519 (Mo.
9
Key Insurance appeals.
Standard of Review
"Our review of a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30,
32 (Mo. banc 1976)." Schieve v. Meyer, 628 S.W.3d 726, 731 (Mo. App. W.D. 2021)
(quoting In Their Representative Capacity as Trs. for Indian Springs Owners Ass'n v.
Greeves, 277 S.W.3d 793, 797 (Mo. App. E.D. 2009)). "We will affirm the trial court's
judgment unless it is not supported by substantial evidence, it is against the weight of the
evidence, it erroneously declares the law, or it erroneously applies the law." Id. (quoting
Greeves, 277 S.W.3d at 797).
Analysis
Key Insurance raises two points on appeal. Key Insurance's first point on appeal
argues that the trial court erroneously declared and applied the law when it concluded that

App. W.D. 2020) (citation omitted). "[A] judgment resolving one or more claims but leaving one or more claims
unresolved is eligible for certification under Rule 74.01(b) as a 'final judgment' for purposes of section 512.020(5)
only if it disposes of a 'judicial unit' of claims." Wilson v. City of St. Louis, 600 S.W.3d 763, 769 (Mo. banc 2020).
Our Supreme Court has explained:
[A] 'final judgment' for purposes of section 512.020(5) must satisfy the following criteria. First, it
must be a judgment (i.e., it must fully resolve at least one claim in a lawsuit and establish all the
rights and liabilities of the parties with respect to that claim). Second, it must be 'final,' either
because it disposes of all claims (or the last claim) in a lawsuit, or because it has been certified for
immediate appeal pursuant to Rule 74.01(b). A judgment is eligible to be certified under Rule
74.01(b) only if it disposes of a 'judicial unit' of claims, meaning it: (a) disposes of all claims by or
against at least one party, or (b) it disposes of one or more claims that are sufficiently distinct from
the claims that remain pending in the circuit court.
Id. at 771 (internal footnote omitted). The trial court's Amended Judgment constitutes a judgment, as it fully resolved
Wright's equitable garnishment claim in Wright's favor, was in writing, signed by a judge, and was denominated
"judgment." Id., Rule 74.01(a). The trial court included in its Amended Judgment "an express determination that
there is no just reason for delay," thus certifying it for immediate appeal pursuant to Rule 74.01(b). The Amended
Judgment was eligible to be certified under Rule 74.01(b) because it disposed of all claims by Wright (the equitable
garnishment claims against Phillip and Key Insurance). Only Phillip's claims for bad faith failure to settle and breach
of contract against Key Insurance remain pending. Accordingly, the trial court had discretion to certify its Amended
Judgment for immediate appeal. Wilson, 600 S.W.3d at 771.
10
Key Insurance waived its right to rescind or void the Second Policy pursuant to K.S.A. 40-
2,118(f) by choosing to cancel the Second Policy effective on a date after the 2017
Collision because the plain language of K.S.A. 40-2,118(f) provides that an "insurer shall
not be required to provide coverage or pay any claim involving a fraudulent insurance act,"
and because Takesha admitted to material misrepresentations which constituted fraudulent
insurance acts. Key Insurance's second point on appeal asserts that the trial court's entry
of judgment against Key Insurance was against the weight of the evidence because
Takesha's "admitted material misrepresentation of intentionally omitting Phillip [] from her
application for insurance in order to receive lower premiums" constituted a fraudulent
insurance act that statutorily relieved Key Insurance of any obligation to pay a claim under
the Second Policy. We address the points in reverse order as the resolution of the first
point on appeal depends for its success on our resolution of the second point on appeal
which argues that the trial court's finding that Takesha did not make material
misrepresentations in securing the Second Policy is against the weight of the evidence.
Point Two: The trial court's finding that Takesha did not make material
misrepresentations in securing the Second Policy is not against the weight of the
evidence
In response to Wright's equitable garnishment petition, Key Insurance filed an
answer and asserted an affirmative defense that the claim was "barred by Takesha's
commission of fraudulent insurance acts under K.S.A. 40-2,118." Specifically, Key
Insurance alleged that in the January 20, 2017 application for the Second Policy, "Takesha
materially misrepresented the ownership of the 2002 Kia Optima and the principal driver
of the 2002 Kia Optima which are fraudulent insurance acts under K.S.A. 40-2,118."
11
K.S.A. 40-2,118(a) defines "fraudulent insurance act:"
For purposes of this act a "fraudulent insurance act" means an act committed
by any person who, knowingly and with intent to defraud, presents, causes
to be presented or prepares with knowledge or belief that it will be presented
to or by an insurer, purported insurer, broker or any agent thereof, any
written, electronic, electronic impulse, facsimile, magnetic, oral, or
telephonic communication or statement as part of, or in support of, an
application for the issuance of, or the rating of an insurance policy for
personal or commercial insurance, or a claim for payment or other benefit
pursuant to an insurance policy for commercial or personal insurance that
such person knows to contain materially false information concerning any
fact material thereto; or conceals, for the purpose of misleading, information
concerning any fact material thereto.
(Emphasis added). K.S.A. 40-2,118(f) provides:
In addition to any other penalty, a person who violates this statute shall be
ordered to make restitution to the insurer or any other person or entity for any
financial loss sustained as a result of such violation. An insurer shall not be
required to provide coverage or pay any claim involving a fraudulent
insurance act.
(Emphasis added). Key Insurance had the burden to prove its affirmative defense. See
Brock v. Dunne, 637 S.W.3d 22, 29 (Mo. banc 2021) (citation omitted).
The Amended Judgment concluded that Key Insurance did not sustain its burden to
prove the affirmative defense that Takesha made material misrepresentations in connection
with securing the Second Policy as follows:
[Key Insurance] argues that it carried its burden to establish its affirmative
defense by presenting evidence that Takesha made three representations: 1)
she was the only person on the Kia title; 2) she was the operator of the Kia;
and 3) the vehicle as being garaged at her house.6

6Key Insurance's answer to Wright's equitable garnishment petition did not allege as an affirmative defense
that Takesha committed a fraudulent insurance act by materially misrepresenting where the Kia was garaged.
However, Key Insurance did argue that Takesha materially misrepresented the garaging location of the Kia at trial,
apparently without objection that the assertion exceeded the scope of the pleaded affirmative defense.
12
Regarding the first representation, both [Phillip] and Takesha testified that
only Takesha's name is on the title. Both testified that [Phillip] did not own
the vehicle and was not on the title. They also testified that Takesha bought
the vehicle for her use. Takesha bought the Kia because she was having
problems with her other vehicle.
The second representation concerns who was using the vehicle. Takesha
testified that she would allow [Phillip] to drive the vehicle to work several
times per week during the winter. [Phillip] testified that he drove the Kia only
a few times in 2016 and 2017. The third representation concerns where the
vehicle was garaged. The record contains evidence showing that [Phillip] and
Takesha do not live together. [Phillip] lived at 3987 Topping Avenue, Kansas
City, Missouri. The Kia was kept at Takesha's house. The Court finds this
evidence compelling and credible. However, even if this Court were to find
that Takesha made material misrepresentations, the Court finds that Key has
waived its right to void coverage.
(Emphasis and footnote added, internal citations to the record omitted). The trial court's
recitation of the evidence it found "credible and compelling" was expressly supported by
footnotes in the Amended Judgment which referred Phillip's and Takesha's depositions in
Wright's equitable garnishment action.
In its second point on appeal, Key Insurance argues that the trial court's judgment
against Key Insurance was against the weight of the evidence because the trial court failed
to apply K.S.A. 40-2,118(f) despite fraudulent insurance acts "such as Takesha['s] []
admitted material misrepresentation of intentionally omitting Phillip [] from her
application for insurance in order to receive lower premiums." "A claim that a judgment
is against the weight of the evidence presupposes that there is sufficient evidence to support
the judgment. In other words, weight of the evidence denotes an appellate test of how
much persuasive value evidence has, not just whether sufficient evidence exists that tends
to prove a necessary fact." Price v. Thompson, 616 S.W.3d 301, 313 (Mo. App. W.D.
13
2020) (quoting Ivie v. Smith, 439 S.W.3d 189, 205-06 (Mo. banc 2014)). "A judgment is
against the weight of the evidence only if the trial court could not have reasonably found,
from the evidence at trial, the existence of a fact that is necessary to sustain the judgment."
Meseberg v. Meseberg, 580 S.W.3d 59, 65 (Mo. App. W.D. 2019) (quoting Hughes v.
Hughes, 505 S.W.3d 458, 467 (Mo. App. E.D. 2016)). "When the evidence poses two
reasonable but different conclusions, the appellate court must defer to the trial court's
assessment of that evidence." Price, 616 S.W.3d at 313 (citing Ivie, 439 S.W.3d at
206). "When reviewing the record under this standard, the appellate court defers to the
trial court's findings of fact when the factual issues are contested and when the facts as
found by the trial court depend on credibility determinations." Id. (citing Ivie, 439 S.W.3d
at 206). Finally, the trial court, in judging credibility and assigning weight to evidence
and testimony, "is free to believe none, part, or all of the testimony of any witness." CernaDyer v. Dyer, 540 S.W.3d 411, 415 (Mo. App. W.D. 2018) (quoting Sharrai v. Sharrai,
322 S.W.3d 641, 643 (Mo. App. W.D. 2010)).
Based on the foregoing, a party asserting an against-the-weight-of-the-evidence
challenge must engage in a four-step analysis, requiring the party to:
(1) identify a challenged factual proposition, the existence of which is
necessary to sustain the judgment;
(2) identify all the favorable evidence in the record supporting the existence
of that proposition;
(3) identify the evidence in the record contrary to the belief of that
proposition, resolving all conflicts in testimony in accordance with the trial
court's credibility determinations, whether explicit or implicit; and,
14
(4) demonstrate why the favorable evidence, along with the reasonable
inferences drawn from that evidence, is so lacking in probative value, when
considered in the context of the totality of the evidence, that it fails to induce
belief in that proposition.
Reichard v. Reichard, 637 S.W.3d 559, 589 (Mo. App. W.D. 2021) (quoting Interest of
B.K.F., 623 S.W.3d 792, 796-97 (Mo. App. W.D. 2021)).
Neither Key Insurance's point relied on, nor the argument portion of its Brief,
identify a challenged factual proposition, the existence of which is necessary to sustain the
judgment. Instead, Key Insurance nonspecifically alleges that the judgment was against
the weight of the evidence. This generalized assertion is insufficient to satisfy the firststep of the required four-step analysis.
If Key Insurance's second point relied on and related argument is gratuitously
afforded a generous interpretation, it appears intended to challenge the findings in the
Amended Judgment that Takesha did not materially misrepresent the ownership, location,
or operator of the Kia. Yet, Key Insurance has not expressly identified all of the favorable
evidence supporting these findings, which included reference in the Amended Judgment to
deposition testimony that Takesha was the only person on the title to the Kia, that Takesha
bought and used the vehicle for her own personal use, and that the vehicle was garaged at
Takesha's house. Key Insurance has all but ignored the second step of the required analysis
for an against-the-weight-of-the-evidence challenge by referring only briefly and
dismissively to the deposition testimony that was identified in the Amended Judgment and
expressly relied upon by the trial court.
15
Most of Key Insurance's argument focuses on identifying evidence that is contrary
to the findings in the Amended Judgment that Takesha did not materially misrepresent the
ownership, location, or operator of the Kia. Key Insurance argues that the trial court failed
to consider Takesha's recorded statement given to a Key Insurance employee where
Takesha responded affirmatively when asked whether Phillip was on the title to the Kia,
and whether Phillip typically kept the Kia with him. Key Insurance's identification of
evidence it claims is contrary to findings required to sustain the Amended Judgment is only
partially compliant with the third step of the required analysis for an against-the-weightof-the-evidence challenge, however. Key Insurance has not resolved conflicts between
Takesha's earlier recorded statement and the deposition testimony later provided by
Takesha and Phillip in accordance with the trial court's credibility determinations as
required by the third step. Here, the trial court made an express determination that Takesha
and Phillip's deposition testimony, expressly referenced and relied on in the Amended
Judgment, was credible and compelling. The conflict, if any, that exists between Takesha's
earlier recorded statement and the later deposition testimony has been resolved by an
express credibility determination that Key Insurance ignores.
Key Insurance attempts to engage in the fourth step of the required analysis for an
against-the-weight-of-the-evidence challenge, by summarily urging that the favorable
deposition testimony relied on by the trial court, along with the reasonable inferences
drawn from that evidence, is so lacking in probative value, when considered in the context
of the totality of the evidence, that it fails to induce belief in the findings that Takesha did
not materially misrepresent the ownership, location, or operator of the Kia. Key Insurance
16
argues that Takesha's recorded statement should have been favored over the later
deposition testimony because it "was taken shortly after the accident [and it] is undisputed
evidence that establishes a fraudulent insurance act. . . . The weight of this direct and
undeniable evidence cannot be overcome by inferences drawn from after-the-fact,
retrospection in self-serving testimony several years later." Key Insurance's bare assertion
to this effect is not self-proving. Even more problematic, the assertion ignores that Takesha
and Phillip's deposition testimony, which was deemed credible and compelling by the trial
court, offered explanations and important context for many of the statements made by
Takesha in the recorded statement and about which Key Insurance complains.
For example, Takesha and Phillip both testified in their depositions that: (1) only
Takesha's name was on the title to the Kia and that only she owned the Kia; (2) Takesha
purchased the Kia because she was having problems with her other car; and (3) the Kia
was always kept at Takesha's house in Kansas City, Kansas. As to the operation of the Kia,
Takesha testified that she sometimes let Phillip borrow the Kia in the winter so that he
could drive it to work, and Phillip testified that he only drove the Kia "two or three times
at the most" during December 2016 to February 2017. And, in addressing the fact the she
did not identify Phillip in her application for the Second Policy because she was concerned
it would increase her premium, Takesha explained, "that's not quite what I meant. When I
initially bought the car, it was my car, so that's what I was putting." Takesha further
explained that she thought the premium might increase if Phillip was on the Second Policy
because she "thought that's how all car insurance works" but that she had no knowledge of
anything in Phillip's driving history or driver's license status that would specifically cause
17
an increase in the policy. It is evident from the record that the trial court considered all of
the evidence, including Takesha's recorded statement, and resolved any conflict in the
evidence by determining that Takesha and Phillip's deposition testimony referred to in the
Amended Judgment was credible and compelling. We defer to that determination. CernaDyer, 540 S.W.3d at 415.
Key Insurance has not sustained its burden to establish that the Amended Judgment's
rejection of the affirmative defense that Takesha made material misrepresentations in
securing the Second Policy was against the weight of the evidence. Perhaps appreciating
the high hurdle it faced to sustain this burden, Key Insurance briefly urges in the argument
portion of its Brief that the trial court should not have relied on the deposition testimony to
find that Takesha did not make material misrepresentations because that testimony was
"not available to Key [Insurance] when [it made its] determination as to whether the claim
involved a fraudulent insurance act." Key Insurance cites to cases holding that an insurance
company's duty to defend is determined at the time the cause of action is commenced,
rather than by facts later determined during subsequent discovery or at trial. See
Trainwreck West Inc. v. Burlington Ins. Co., 235 S.W.3d 33, 39 (Mo. App. E.D. 2007);
Freightquote.com, Inc. v. Hartford Cas. Ins. Co., 316 F. Supp. 2d 937, 942 (D. Kan. 2003).
Cases addressing the information relevant to an insurer's decision not to defend a
claim are not controlling as to whether Key Insurance sustained its burden to establish the
affirmative defense that it had no obligation to pay Wright's claim under the Second Policy
because Takesha's material misrepresentations constituted fraudulent acts under K.S.A. 40-
2,118. Even were that not the case, Key Insurance's argument is not preserved for our
18
review, as it is not presented in any point relied on, and as it was not preserved at trial by
an objection seeking to exclude, or limit the purpose for admission of, the deposition
testimony. See Reichard, 637 S.W.3d at 569 n.4 ("Our courts 'adhere[ ] to the wellentrenched doctrine that the questions for decision on appeal are those stated in the points
relied on, and a question not there presented will be considered abandoned.'" (quoting KDW
Staffing, LLC v. Grove Constr., LLC, 584 S.W.3d 833, 837 (Mo. App. W.D. 2019)));
Rosales v. Benjamin Equestrian Ctr., LLC, 597 S.W.3d 669, 686 (Mo. App. W.D. 2019)
("To preserve for appellate review an error regarding the admission of evidence, a timely
objection must be made when the evidence is introduced at trial. If the objection is not
made at the time of the incident giving rise to the objection, the objection may be deemed
waived or abandoned." (quoting R & J Rhodes, L.L.C. v. Finney, 231 S.W.3d 183, 190
(Mo. App. W.D. 2007))).
The trial court's findings that Takesha did not materially misrepresent the
ownership, location, or operator of the Kia are not against the weight of the evidence. Point
Two on appeal is denied.
Point One: Key Insurance's reliance on K.S.A. 40-2,118(f) is without merit given the
trial court's finding that Takesha made no material misrepresentations in securing the
Second Policy
Key Insurance's first point on appeal argues that the trial court erroneously declared
and applied the law when it concluded that Key Insurance waived its right to rescind or
void the Second Policy by choosing to cancel the Second Policy at a future date that fell
after the 2017 Collision while retaining Takesha's premium because the plain language of
K.S.A. 40-2,118(f) provides Key Insurance a statutory right to avoid payment on a claim
19
involving a fraudulent insurance act. Key Insurance asserts that "nothing in the statute or
case law requires an insurer to rescind its insurance policy in order to exercise this right.
Moreover, under Kansas law, waiver requires full possession of facts of the right waived,"
which Key Insurance claims cannot occur until the claim is in existence, and thus Key
Insurance could not have waived its statutory rights under K.S.A. 40-2,118 before it had
full possession of the facts of the 2017 Collision and claim.
The success of Key Insurance's first point on appeal inherently depends on whether
Key Insurance sustained its burden to prove that Takesha made material misrepresentations
which amounted to fraudulent insurance acts in securing the Second Policy. See Brock,
637 S.W.3d at 29. By making an against-the-weight-of-the-evidence challenge in its
second point on appeal challenging the findings that Takesha did not materially
misrepresent the ownership, location, or operation of the Kia, Key Insurance necessarily
acknowledges that sufficient evidence supported those findings. See Price, 616 S.W.3d at
313. As we have already explained, the trial court's findings were not against the weight
of the evidence. Because Key Insurance failed to carry its burden to establish that Takesha
made material misrepresentations amounting to fraudulent insurance acts, Key Insurance's
claim of trial court error relating to the application of K.S.A. 40-2,118 is plainly without
merit.
Point One is denied.7

Outcome: The trial court's Amended Judgment is affirmed.

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