Duane Schreimann, Esquire
Named driver exclusion upheld. Yates v. Progressive Preferred Insurance Company, No. 71859 (Mo. App. W.D., February 1, 2011), Mitchell, J.
Waiver of subrogation clause in construction contract upheld but such waiver applies only while the contract is in effect. Haren& Laughlin Construction Company, Inc. v. Jayhawk Fire Sprinkler Company, Inc., No.72333 (Mo. App. W.D., January 25, 2011), Newton, J.
Roberta L. Pechey was operating an automobile insured by Respondent,
when she collided with a motorcycle operated by Appellant.
Respondent's policy had a named driver exclusion that expressly excluded
coverage for Ms. Pechey. Appellant obtained judgment against Ms.
Pechey and then filed an equitable garnishment action against
Respondent. The trial court granted summary judgment to Respondent,
and on appeal, the court of appeals affirmed. The court held that
Section 303.190.2(3), RSMo, expressly authorizes named driver
exclusions and that the exclusion is not contrary to public policy.
Jayhawk Fire Sprinkler Company, Inc. was a subcontractor on a
construction project under Appellant, as general contractor. Appellant
through its insurance company paid for damages to the Owner's facility
allegedly caused by Respondent's fault, and Appellant filed suit
against Respondent seeking recovery of the amounts paid. The trial
court granted summary judgment to Respondent, finding that the
subcontract contained an anti-subrogation clause that waived
subrogation for any damages covered by insurance. On appeal, the
court of appeals held that Respondent was a third party beneficiary of
the General Contract's subrogation waiver but reversed the summary
judgment since there was insufficient evidence to determine whether the
General Contract was still in effect. The court stated that the
waiver of subrogation rights applies only so long as insurance was
required to be maintained under the General Contract.
The Missouri Bar Courts Bulletin, 11-Feb