Nicholas J. Minden; L.A.M., a minor, by and through her natural mother and next friend Lisa Minden; Daniel M. Minden, Jr., Individually and as Personal Representative of the Estate of Daniel M. Minden, Sr.; Shannon Minden, Plaintiffs - Appellants
Atain Specialty Insurance Company, Defendant - Appellee; Nicholas J. Minden; L.A.M., a minor, by and through her natural mother and next friend Lisa Minden; Daniel M. Minden, Jr., Individually and as Personal Representative of the Estate of Daniel M. Minden, Sr.; Shannon Minden, Plaintiffs - Appellees
Atain Specialty Insurance Company, Defendant - Appellant
Submitted January 15, 2015.
Appeals from United States District Court for the Eastern District of Missouri - St. Louis.
For Nicholas J. Minden, L.A.M., a minor, by and through her natural mother and next friend Lisa Minden, Plaintiffs - Appellants (14-1112, 14-1116): John P. Guletz, Paul J. Passanante, P.C., Saint Louis, MO.
For Daniel M. Minden, Jr., Individually and as Personal Representative of the Estate of Daniel M. Minden, Sr., Shannon Minden, Plaintiffs - Appellants (14-1112, 14-1116): Matthew J. Eddy, Andrew G. Toennies, Lashly & Baer, Saint Louis, MO.
For Atain Specialty Insurance Company, Defendant - Appellee (14-1112, 14-1116): A. J. Bronsky, Thomas Michael Ward, Brown & James, Saint Louis, MO; Robert W. Cockerham, Cockerham & Associates, L.L.C., Saint Louis, MO.
Before COLLOTON, BEAM, and KELLY, Circuit Judges.
BEAM, Circuit Judge.
Nicholas Minden (Minden) appeals, and Atain Specialty Insurance Company cross appeals the district court's order in this equitable garnishment and vexatious refusal to defend insurance coverage dispute. We affirm.
In the early morning hours of April 5, 2009, Daniel Minden (Daniel) was struck by a vehicle driven by Curtis Lammert in a parking lot owned by and situated next to The Dry Dock tavern (Gannon's in St. Louis County, Missouri. A private birthday party for a St. Louis County police officer had been held at Gannon's earlier that evening and Daniel was a friend of the officer and an invited guest. Lammert was there at the invitation of Lammert's sister, who was a friend of another invited guest named Gene Mehrtens. At Gannon's closing, shortly before 1:00 a.m., Mehrtens was going to escort home another female guest named Sherri who appeared to be intoxicated. While in the parking lot, Lammert, who was also acquainted with Sherri, approached Mehrtens and insisted that he should take her home because Lammert was concerned that Mehrtens was going to take advantage of Sherri's intoxicated state. Following a heated discussion at Sherri's car, Mehrtens threw the keys at Lammert and told Lammert to go ahead and take Sherri home. Lammert escorted Sherri to his pickup truck, where Lammert's girlfriend was also waiting. As the three drove out of the parking lot in Lammert's truck, Lammert stopped, got out of his truck, and attempted to lock Sherri's car via the remote key fob. Instead of locking it, however, he caused the car alarm to go off. Lammert began pushing buttons on the key fob, but was not immediately able to stop the noise. Mehrtens, Daniel, and perhaps others, began yelling unflattering remarks about Lammert's intelligence as Lammert struggled to turn off the car alarm. Daniel, who had left the bar from the rear entrance and was in the main parking lot carrying a tray of cupcakes leftover from the party, headed toward the remote parking lot located across the street from Gannon's. Once Lammert was able to silence Sherri's car alarm, Lammert got back in his pickup. Mehrtens testified in a deposition that Lammert looked " right at" Mehrtens, popped his clutch, and drove toward Mehrtens on the way out of the parking lot. Mehrtens was able to get out of the way, but Daniel apparently did not see Lammert coming. Another party guest attempted to pull Daniel out of the way, but was unsuccessful. Upon the initial contact with the right side of the pickup, Daniel was thrown in the air and landed in the street located between the remote parking lot and Gannon's main parking lot. As Lammert's vehicle exited the main parking lot into the street, the right side of the pickup again ran over Daniel's body lying in the street.
Daniel was transported to the hospital, and just over one month later, he died from complications due to the injuries. Lammert left the scene but turned ...