American Family filed a motion to intervene in the action to confirm the arbitration award on April 19, 2018 (motion to intervene). American Family also sought a stay of the proceedings pending resolution of the federal court action. In the motion to intervene, American Family alternatively argued: (i) that it was entitled to intervene as a matter of right because section 537.065.2 confers an unconditional statutory right to intervene upon American Family; (ii) that it was entitled to intervene as a matter of right under Rule 52.12(a) because American Family had an interest in the subject of the action, its ability to protect that interest was impeded, and neither Britt nor Otto adequately represented its interest; and (iii) that it should be permitted to intervene permissively pursuant to Rule 52.12(b) because its claims and defenses shared numerous common questions of law and fact with the action to confirm the arbitration award.
Following additional briefing, the trial court entered an order denying American Familys motion to intervene on May 24, 2018. On the same day, Otto filed a response to the application to confirm the arbitration award advising the trial court that he has no grounds to ask the Court to vacate, modify, or correct the award. The trial court issued a judgment (Judgment) on May 31, 2018, which confirmed the arbitration award, incorporated the arbitration award by reference, and entered judgment in favor of Britt and against Otto in the amount determined by the arbitration award.
American Family appeals. Britt and Otto (Respondents) jointly respond.
Analysis
American Family asserts three points on appeal. Each alleges that the trial court erred in denying its motion to intervene in the action to confirm the arbitration award. The first and second points allege that the trial court erred by refusing to permit American Family to intervene as a matter of right pursuant to Rule 52.12(a)(1) or (2). The third point alleges that the trial court abused its discretion by refusing to allow American Family to intervene permissively pursuant to Rule 52.12(b)(2). Because we review the denial of a motion to intervene as a matter of right pursuant to a different standard of review than that applicable to the denial of a motion to intervene permissively, we address the first two points together and the third point separately.
Points One and Two: Intervention as a Matter of Right
American Familys first and second points on appeal allege that the trial court erred in denying its motion to intervene in the action to confirm the arbitration award because American Family was entitled to intervene as a matter of right pursuant to Rule 52.12(a). Rule 52.12(a) provides:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest, unless the applicants interest is adequately represented by existing parties.
American Familys first point on appeal claims a right to intervene in the action to confirm the arbitration award pursuant to Rule 52.12(a)(1) because the unconditional right to do so is conferred by section 537.065.2. American Familys second point on appeal alternatively contends that it had a right to intervene in the action to confirm the arbitration award pursuant to Rule 52.12(a)(2) because American Family has an interest that will be materially prejudiced by the resolution of the proceedings and that is not adequately protected by either Britt or Otto.
We will affirm the trial courts decision denying intervention as a matter of right unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Allen v. Bryers , 512 S.W.3d 17, 28 (Mo. banc 2016). Motions to intervene as a matter of right ... are typically decided based upon the motion, pleadings, counsels arguments, and suggestions in support or opposition to the motion. BMO Harris Bank v. Hawes Tr. Invs., LLC , 492 S.W.3d 607, 615 (Mo. App. W.D. 2016) (quoting D.S.K. ex rel. J.J.K. v. D.L.T. , 428 S.W.3d 655, 657 (Mo. App. W.D. 2013) ). [T]he decision to grant or deny the motion is one involving application of the law. Id. (quoting D.L.T. , 428 S.W.3d at 657 ).
Intervention as a Matter of Right Pursuant to Rule 52.12(a)(1)
American Family argues that it was entitled to intervene as a matter of right pursuant to Rule 52.12(a)(1) in the action to confirm the arbitration award because section 537.065.2 conferred the unconditional right to do so. We disagree.
Section 537.065.1 allows any person with an unliquidated claims for damages to enter into a contract with a tortfeasor to limit the tortfeasors liability for a judgment to specified assets, including insurance contracts. See Schmitz v. Great Am. Assurance Co. , 337 S.W.3d 700, 709 (Mo. banc 2011). The right to enter into a section 537.065.1 contract limiting the tortfeasors liability to an insurance contract is conditioned on the tortfeasors insurer being afforded the opportunity to defend the tortfeasor and refusing to do so without reservation.
Section 537.065.2, a new subsection enacted by the General Assembly effective August 28, 2017, describes when a judgment can be entered against a tortfeasor who has entered into a section 537.065.1 contract:
Before a judgment may be entered against any tort-feasor after such tort-feasor has entered into a contract under this section [referring to section 537.065.1], the insurer or insurers shall be provided with written notice of the execution of the contract and shall have thirty days after receipt of such notice to intervene as a matter of right in any pending lawsuit involving the claim for damages .
(Emphasis added.) It is undisputed that Britt and Otto entered into a section 537.065.1 contract and gave American Family written notice of the execution of the contract before a judgment was entered against Otto. In fact, in a March 7, 2018 email to American Family, Otto characterized the written notice given to American Family about the section 537.065.1 contract as notice under section 537.065.2. The plain and unambiguous language of section 537.065.2 thus afforded American Family the right to intervene as a matter of right in any pending lawsuit involving the claim for damages within thirty days after receipt of Ottos written notice of the execution of a section 537.065.1 contract.
American Family claims this statutory right to intervene applied to the action to confirm the arbitration award. However, the action to confirm the arbitration award was not filed until April 13, 2018, more than thirty days after American Familys receipt of Ottos written notice of the section 537.065.1 contract. American Family thus did not file a motion to intervene in the action to confirm the arbitration award within thirty days of receipt of written notice of the section 537.065.1 contact. Even assuming that the action to confirm the arbitration award qualified as a pending lawsuit involving the claim for damages (an issue the parties contest but that we need not decide), the plain and unambiguous language of section 537.065.2 did not afford American Family the right to intervene as a matter of right in the action to confirm the arbitration award.
There was a proceeding pending involving the claim for damages within thirty days of American Familys receipt of written notice of the section 537.065.1 contract. It was the arbitration proceeding. However, the parties both take the position on appeal (albeit for different reasons) that the phrase pending lawsuit in section 537.065.2 does not include arbitration proceedings, relying on the way lawsuit has been construed in other contexts. We express no opinion about whether an arbitration proceeding qualifies as a pending lawsuit for purposes of section 537.065.2, except to note that in arguing to the contrary, neither party has engaged in the required analysis. The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning. Dickemann v. Costco Wholesale Corp. , 550 S.W.3d 65, 68 (Mo. banc 2018) ( Wolff Shoe Co. v. Dir. of Revenue , 762 S.W.2d 29, 31 (Mo. banc 1988) ). The plain and ordinary meaning of the words in a statute is determined from the words usage in the context of the entire statute. State ex rel. Goldsworthy v. Kanatzar , 543 S.W.3d 582, 585 (Mo. banc 2018). Whatever its construction in other contexts, the only context relevant to defining lawsuit as used in section 537.065.2 is the intent of the legislature in enacting section 537.065.2, a subject neither party addresses. Here, even if the legislature intended arbitration proceedings to fall within the scope of the phrase any pending lawsuit involving the claim for damages (an issue we have not been asked to decide), American Family was invited to participate in the arbitration proceeding within thirty days of its receipt of written notice of the section 537.065.1 contract, and elected not to do so.
The trial court did not err in denying American Familys motion to intervene in the action to confirm the arbitration award as a matter of right pursuant to Rule 52.12(a)(1), as section 537.065.2 did not confer upon American Family the unconditional right to do so in this case.
Point one on appeal is denied.
Intervention as a Matter of Right Pursuant to Rule 52.12(a)(2)
American Familys second point on appeal argues that the trial court erred in denying its motion to intervene because Rule 52.12(a)(2) gave it an absolute right to intervene in the action to confirm the arbitration award. Rule 52.12(a)(2) allows intervention as a matter of right upon timely application if the motion demonstrates: (1) an interest relating to the property or transaction which is the subject of the action; (2) that the applicants ability to protect the interest is impaired or impeded; and (3) that the existing parties are inadequately representing the applicants interest. Allen , 512 S.W.3d at 28 (quoting Dunivan v. State , 466 S.W.3d 514, 519 (Mo. banc 2015) ). American Family, as the proposed intervenor, bore the burden of establishing each of these requirements. Dunivan , 466 S.W.3d at 519. If all three requirements are established, the right to intervene is absolute, and a trial court has no discretion to deny the motion to intervene. State ex rel. Nixon v. Am. Tobacco Co. , 34 S.W.3d 122, 127 (Mo. banc 2000). But if any one of the requirements is not established, the motion to intervene may be denied. BMO Harris Bank , 492 S.W.3d at 618.
The first requirement necessitates an interest in the property or transaction that is the subject of the action. An interest, for the purposes of intervention as of right, means a concern, more than mere curiosity, or academic or sentimental desire. Id. (quoting Allred v. Carnahan , 372 S.W.3d 477, 484 (Mo. App. W.D. 2012) ). The intervenors interest must be a direct and immediate claim to, and have its origin in, the demand made or the proceeds sought or prayed by one of the parties to the original action. Id. (quoting Allred , 372 S.W.3d at 484 ). An interest necessary for intervention as a matter of right does not include a mere, consequential, remote or conjectural possibility of being affected as a result of the action, but must be a direct claim upon the subject matter such that the intervenor will either gain or lose by direct operation of judgment. Id. (quoting Allred , 372 S.W.3d at 484 ).
Missouri courts have long held that [t]he liability of an insurer as potential indemnitor of the judgment does not constitute a direct interest in such a judgment so as to implicate intervention as of right in that action. Sherman v. Kaplan , 522 S.W.3d 318, 326 (Mo. App. W.D. 2017) (quoting Whitehead v. Lakeside Hosp. Assn , 844 S.W.2d 475, 479 (Mo. App. W.D. 1992) ). Sherman explained:
That is because the insurer does not either gain or lose from the direct operation of that judgment. [ Whitehead , 844 S.W.2d at 479 ] (quoting State ex rel. Farmers Mut. Auto Ins. Co. v. Weber , 364 Mo. 1159, 273 S.W.2d 318, 321 (Mo. banc 1954) ). Instead, the insurer has a forum by declaratory judgment action or in the action to compel indemnity for the judgment that affords the insurer full scope to protect its interests against the contention of coverage, and hence liability for the judgment. Id. at 480. In other words, [i]n the third party liability claim context, the insurance carrier has no right to intervene in litigation between its policyholder and the third party; the carrier can participate in the litigation only pursuant to its contractual obligation to defend the policyholder. Charles v. Consumers Ins. , 371 S.W.3d 892, 897-98 (Mo. App. W.D. 2012). If either party to the insurance contract breaches in such a way that results in the insurer not providing a defense to the insured during the underlying lawsuit, that matter may be raised only in the proper forum, i.e. , a declaratory judgment action or a subsequent garnishment action.
Id.
American Family acknowledges the settled principle that an insurer as a potential indemnitor of a judgment does not have a direct interest in an action between the insured and a third party. American Family argues, however, that the settled principle was implicitly overruled in Allen v. Bryers . We disagree.
In Allen , the insurer filed a declaratory judgment action to determine coverage issues. 512 S.W.3d at 24. Thereafter, the injured party sued the insureds employee, alleging injury as a result of negligence. Id. at 25. The insurer sought to intervene in the injured partys lawsuit for the limited purpose of requesting a stay until the declaratory judgment action was resolved. Id. The motion to intervene was denied. Id. at 26. The trial court subsequently entered judgment in favor of the injured party and awarded $16 million in damages. Id. The insurer did not appeal the denial of the intervention motion after the judgment in favor of the injured party became final. Id. The injured party later filed a garnishment action against the insurer to collect the judgment. Id. The garnishment court entered summary judgment in favor of the injured party and ordered the insurer to pay the $16 million judgment. Id. at 27. The insurer appealed, arguing that it was error to overrule the motion to intervene in the underlying tort action because it had an unconditional right to intervene under Rule 52.12(a)(2). Id. Our Supreme Court rejected the insurers argument and concluded that the insurer had the right to appeal the denial of its motion to intervene when the trial court entered a final judgment in the tort action. Id. at 28 (citing State ex rel. Koster v. ConocoPhillips Co. , 493 S.W.3d 397, 401 (Mo. banc 2016) ). Because the insurer did not seek appellate relief from the final judgment in the tort action, the [i]nsurer abandoned any claim it had regarding the propriety of the [trial] courts ruling on its ... motion to intervene. Id.
American Family argues that by recognizing a right to appeal denial of the motion to intervene, the Supreme Court necessarily implied that the appeal would have had merit, and thus implicitly overruled the settled principle that an insurers interest in an action between its insured and a third party is not sufficiently direct to satisfy the first requirement for intervention set forth in Rule 52.12(a)(2). This is a strained and unsupportable interpretation of Allen . Allen did not need to address the merit of the insurers argument that it was entitled to intervene in the underlying tort action because the insurer waived its right to challenge the denial of its motion to intervene. Allen cannot be read to have overruled, sub silentio , the settled principle that an insurers interest in an action between its insured and an injured third party is not sufficient to support intervention as a matter of right pursuant to Rule 52.12(a)(2).
American Family also argues that, even if Allen cannot be read as it argues, American Family had an interest in the action between Britt and Otto sufficient to support intervention under Rule 52.12(a)(2) because Otto demanded that American Family pay the arbitration award. American Family cites Ballmer v. Ballmer , 923 S.W.2d 365, 368 (Mo. App. W.D. 1996), and Whitehead v. Lakeside Hospital Assn , 844 S.W.2d 475, 479 (Mo. App. W.D. 1992), for the proposition that an insurer has an interest sufficient to establish the right to intervene when demand is made for indemnity. We disagree.
The cases American Family cites stem from the 1954 decision by our Supreme Court in State ex rel. Farmers Mutuals Automobile Insurance Co. v. Weber , 364 Mo. 1159, 273 S.W.2d 318 (Mo. banc 1954). There, an insurance company sought mandamus, and argued that it was entitled to intervention as a matter of right in a personal injury action because it was interested in the outcome of the suit based on whether it owed its insured a defense. Id. at 320. The Court disagreed, and held the insurers interest [was] nothing more than, the right to some day in some proper forum and cause litigate its liability upon its above policy. Id. at 322. The Court noted that the insurer could protect its interest by either filing a declaratory judgment action to determine coverage, or if the plaintiff prevailed in the personal injury action and thereafter attempted to collect from the insurer, [the insurer] would be thereafter entitled to its day in court upon the question of its liability to do so. Id.
Ottos bare demand that American Family pay the arbitration award was not an action to compel payment of the award. Similarly, the action to confirm the arbitration award was not an action to compel American Family to pay the award. Instead, the action to confirm the arbitration award sought only to reduce the award to a judgment. Until a judgment was entered, neither Otto nor Britt had any means by which they could attempt to compel American Family to pay the award. When an action to compel payment of the award is initiated, however, American Family will have its day in court upon the question of its liability to pay the judgment. Weber , 273 S.W.2d at 322.
Moreover, had American Family been permitted to intervene in the action to confirm the arbitration award, American Family would not have been able to insist on determination of its liability to pay the award. Pursuant to section 435.400, upon application of a party to an arbitration proceeding, the court shall confirm an award , unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award.... The authorized grounds for vacating an award are limited, and do not include re-litigating the facts or legal issues determined by the award. Section 435.415 provides that [u]pon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree . (Emphasis added.) American Familys premise that it could have litigated whether it would ultimately be liable to pay the arbitration award by intervening in the action to confirm the arbitration award is erroneous.
The trial court did not err in denying American Familys motion to intervene as a matter of right pursuant to Rule 52.12(a)(2) because American Family did not establish that it had the requisite interest relating to the property or transaction which was the subject of the action to confirm the arbitration award. See BMO Harris Bank , 492 S.W.3d at 618 ( A motion to intervene may be denied if any one of the requirements is not met. (quoting Maries Cnty. Bank v. Hoertel , 941 S.W.2d 806, 808 (Mo. App. S.D. 1997) ) ).
Point two on appeal is denied.
Point Three: Permissive Intervention Pursuant to Rule 52.12(b)(2)
American Familys third point on appeal argues that it was an abuse of discretion for the trial court to deny its request to permissively intervene in the action to confirm the arbitration award pursuant to Rule 52.12(b)(2). Rule 52.12(b) permits intervention in three instances: (1) when allowed by statute; (2) when an applicants claim or defense and the main action have a question of law or fact in common; or (3) when the state is seeking intervention in a case raising constitutional or statutory challenges. Johnson v. State , 366 S.W.3d 11, 21 (Mo. banc 2012) (quoting Comm. for Educ. Equal. v. State , 294 S.W.3d 477, 487 (Mo. banc 2009) ). American Family argues that its proposed claims and defenses share common questions of law and fact with Britts application to confirm the arbitration award in that, if allowed to intervene, it would challenge the validity of the arbitration award due to the settlement agreement it entered with Britt.
We review the denial of permissive intervention under Rule 52.12(b) for abuse of discretion. Id. A trial court abuses its discretion when its decision is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. (quoting Am. Tobacco Co. , 34 S.W.3d at 131 ).
The trial court did not abuse its discretion in denying American Familys motion to permissively intervene in the action to confirm the arbitration award. As we have already explained, the trial courts authority in that action was strictly limited by statute and would not have extended to permitting American Family to litigate whether it was liable to pay the arbitration award. Moreover, in denying permissive intervention, the trial court was entitled to consider that American Family declined an invitation to participate in the arbitration proceeding.
Point three on appeal is denied.
Conclusion
The trial courts Judgment is affirmed.
All concur
American Family contests that Britt and Otto had the right to enter into a section 537.065.1 contract, as American Family contends it did not refuse to defend Otto without a reservation of rights. We need not resolve that contested issue. The validity and/or enforceability of the section 537.065.1 contract is not an issue in this appeal.
Although we need not decide whether arbitration proceedings are within the scope of section 537.065.2, the resolution of that question is not as easy as it seems. On the one hand, there is little doubt that the General Assembly intended section 537.065.2 to afford insurers a temporally limited right to intervene as a matter of right in third party tort actions before liability and damages have been determined. But that intent alone may not be sufficient to permit the conclusion that the General Assembly intended pending lawsuit to include arbitration proceedings. Intervention as a procedural practice is not routinely addressed by arbitration rules. And arbitration proceedings are controlled by contract, calling into question whether an insurer who participates in an arbitration proceeding can be bound by the terms of an arbitration contract as to which it is not a party. There is a distinct possibility that the General Assembly simply did not contemplate arbitration proceedings when it enacted section 537.065.2, as it likely did not contemplate that following enactment of section 537.065.2, the parties to a section 537.065.1 contract would elect to submit their dispute to arbitration in lieu of filing an action in a court of law. We leave the resolution of this question to a future case in which the issue is properly raised as a claim of error on appeal.
American Family also asserts on appeal that, by denying its motion to intervene, the trial court violated its right of access to the courts, as guaranteed by article I, section 14 of the Missouri Constitution. American Family did not present this argument to the trial court. As a result, the issue has been waived, and we cannot address it. See Weiss v. Rojanasathit , 975 S.W.2d 113, 121 (Mo. banc 1998) (concluding that because a purported violation of the right of access to the courts was not presented to the trial court, the claim was waived on appeal).
The Federal Arbitration Act only permits a trial court to vacate an arbitration award:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. section 10 (Westlaw through Pub. L. No. 116-5).
Similarly Missouris Uniform Arbitration Act only permits a trial court to vacate an arbitration award where:
(1) The award was procured by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted he hearing, contrary to the provisions of section 435.370, as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined in proceedings pursuant to section 435.355 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
Section 435.405.1.
We also question whether American Family established the requirement of demonstrating that its ability to protect its interest was impaired or impeded in light of the fact that it was invited to participate in the arbitration proceeding between Britt and Otto and elected not to do so. Quite independent of whether arbitration proceedings are within the scope of any pending lawsuit involving the claim for damages as referred to in section 537.065.2, the fact remains that had American Family agreed to participate in the arbitration proceeding as invited, it would have been a party to the action to confirm the arbitration proceeding.
We express no opinion as to whether American Family is bound by the findings in the arbitration award, including the findings and conclusions involving the affirmative defense of settlement and release, as that issue is not before us. This opinion should not be read to suggest otherwise.