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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
EVERETT )
SAUNDERS, )
Plaintiff )
v. ) 25-cv-0303
DONALD E. )
SWANSON, )
Defendant )
Complaint
1. This is a civil action for personal injuries suffered by Plaintiff Everett Saunders against Defendant Donald E. Swanson.
2. This action arises out of a motor vehicle accident on June 7, 2023, on Interstate 70, in which the car driven by Swanson collided with the read end of the car that Saunders was driving.
3. The accident caused Saunders to sustain substantial injuries.
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7. Defendant Swanson is an individual and an employee of Edward Jones Trust Company (“Edward Jones”).
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26. At the time of the accident, Defendant Swanson acted within the course and scope of his employment with Edward Jones.
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36. Plaintiff suffered extensive injuries in the accident, including a fractured leg, fractured pelvis, and head trauma.
37. Plaintiff spent more than two weeks in the hospital and two weeks in in-patient rehabilitation.
38. Plaintiff required crutches or a cane to walk for another six months and continues to suffer from limited mobility.
39. Plaintiff suffers from headaches, memory loss, and impaired as a result of the head injuries.
40. Plaintiff’s memory loss has adversely affected his ability to continue his job as an architect; he was forced to take leave from his job.
Cause of Action: Negligence
WHEREFORE, Plaintiff requests:
1. Compensatory damages in amounts covering medical bills and expenses, lost wages, lost economic and business opportunity, amounting to a minimum of $476,000.
2. Property damage in the amount of the value of his 3-month-old Cybertruck, valued at $ 80,000.
3. Non-economic damages, including loss of enjoyment in life, amounting to a minimum of $ 125,000
4. Punitive damages, amounting to no more than 10 % of compensatory and non-economic damages;
5. Such other relief as this court deems appropriate.
/s/________________
Counsel for Plaintiff
The following persons or entities have a potential interest in the civil action commenced by this complaint. They take the following positions for purposes of this civil action:
Brian Swanson:
1) Swanson was driving a car owned by his parents at the time of the accident.
2) Swanson is an employee of Edward Jones Trust Co. (“Edward Jones”).
3) Swanson was acting within the course and scope of his employment with Edward Jones at the time of the accident.
4) Swanson has an automobile insurance policy with All State Insurance Co., with policy limits of $ 500,000 per accident.
5) The Edward Jones Trust Co. Employee Handbook provides the following “rights” for employees:
a) If an employee is involved in any automobile accident while acting within the course and scope of employment involving a covered auto owned, hired, or borrowed by Edward Jones, the company will pay any judgment and associated costs.
b) If an employee is involved in any automobile accident while acting within the course and scope of employment involving a covered auto not owned, hired, or borrowed by Edward Jones, the company will reimburse the employee’s private automobile insurance up to the coverage limits, then pay any judgment and associated costs in excessive of the policy limits.
c) A “covered auto” is any vehicle used within the course and scope of employment.
Edward Jones Trust Co.
1) The Edward Jones Trust Co. Employee Handbook provides the following “rights” for employees:
a) If an employee is involved in any automobile accident while acting within the course and scope of employment involving a covered auto owned, hired, or borrowed by Edward Jones, the company will pay any judgment and associated costs.
b) If an employee is involved in any automobile accident while acting within the course and scope of employment involving a covered auto not owned, hired, or borrowed by Edward Jones, the company will reimburse the employee’s private automobile insurance up to the coverage limits, then pay any judgment and associated costs in excessive of the policy limits.
c) A “covered auto” is any vehicle used within the course and scope of employment.
2) Brian Swanson has an automobile insurance policy with All State Insurance Co., with policy limits of $ 500,000 per accident. That policy was triggered by the underlying accident.
3) Brian Swanson was not acting within the course and scope of his employment with Edward Jones at the time of the accident.
4) If Brian Swanson was acting within the course and scope of his employment with Edward Jones, he was doing so while driving a car owned by Swanson’s parents, not Edward Jones. Edward Jones therefore will reimburse Swanson’s insurance company.
5) Edward Jones holds two commercial automobile insurance policies to cover its losses caused by its employees:
a) Hartford Insurance Co. (“Hartford”) provides the “primary” policy. It applies to Jones employees who use a “covered auto” not “owned, hired, or borrowed” by Jones. It covers to the limits of the employee’s private insurance policy.
b) Chubb Custom Insurance Company (“Chubb”) provides the “secondary” or “excess” policy. This policy covers judgments and costs beyond the coverage limits of the Hartford Policy (which are the same as the coverage limits of the employee’s personal policy).
Hartford Insurance Co.:
1) Brian Swanson was not acting within the course and scope of his employment at the time of the accident.
2) The Hartford Insurance Co. policy for Edward Jones is designated as “primary” insurance.
3) The Chubb Custom Insurance Company policy for Edward Jones is framed as “excess” or “secondary” insurance.
4) Both policies contain identical clauses limiting coverage to “the excess over any other insurances.” This language suggests that neither policy operates as the “primary” and both serve as “excess” policies only.
5) These policies are “mutually repugnant” as a matter of Missouri law.
Substantive Law:
• Planet Ins. Co. v. Ertz (Mo. 1996): Generally, “primary insurance” pays first toward the loss and excess insurance pays after the limit of the primary insurance is exhausted.
• Farm Bureau Town & Country Ins. Co. of Missouri v. Alternative Ins. Corp. (Mo. 2011): The doctrine of “mutual repugnancy” in insurance contracts provides that when competing policies covering the same injury have similar clauses, the court disregards the clauses as mutually repugnant. The court will ignore designations as primary or secondary insurer. Regardless of any such language, two insurers must share any loss equally.
• Smith v. Wausau Underwriter (Mo. 1988): A party enforces an indemnification agreement—in an employment contract or an insurance agreement—through a claim for Indemnification. In pleading Indemnification, a party must allege the existence of an agreement and that the terms of the agreement are satisfied.
• Aetna Life Ins. Co. v. Haworth (1937): An insurance company may file an action against another insurer under § 2201 to seek a declaration of which of several competing insurers bear obligations to an insured.
• 28 U.S.C. § 2201: (Declaratory Judgment Act)
Any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration.
Explain how each interested person or entity can pursue these positions in this civil action. Discuss the designation and requirements of the pleadings each party will file; the order in which they will file those pleadings; and how they will assert and pursue these specific legal and factual issues positions in those pleadings.
Note: You cannot resolve the merits of anything; only discuss what each person or entity can raise and pursue in the litigation on the information you have.
