text:
    METAL EXCHANGE CORPORATION and Continental Aluminum Corporation, Appellants, v. J.W. TERRILL, INC., Respondent.
    No. ED 85907.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 18, 2005.

      JoAnn T. Sandifer, St. Louis, MO, for Appellant.
    Thomas J. Magee, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Metal Exchange Corporation (Meta2 Exchange) and Continental Aluminum Corporation (Continental Aluminum) (collectively referred to as Metal Exchange) brought this action against J.W. Terrill (Terrill), alleging claims of negligence, breach of contract, and breach of fiduciary duty regarding the procurement of insurance policies. Terrill filed a motion for summary judgment. The motion was granted and judgment was entered in favor of Terrill on all counts. Metal Exchange appeals from the grant of summary judgment in favor of Terrill. Metal Exchange argues the trial court erred in granting summary judgment in favor of Terrill because (1) collateral estoppel did not bar Metal Exchange’s claims, and (2) a genuine issue of material fact exists with respect to the existence of a contract between the parties for Terrill to provide seamless insurance coverage for Metal Exchange. We reverse and remand.

Metal Exchange and Continental Aluminum are sister corporations engaged in the business of recycling metal. Terrill is an insurance brokerage firm that, among other things, undertakes risk identification and exposure analysis, prepares insurance programs, implements insurance programs and procures insurance for other companies. Metal Exchange is based in St. Louis County and Continental Aluminum is based in Michigan. Metal Exchange alleges that in 1986 it entered into an agreement with Terrill for Terrill to act as an insurance consultant on a fee and commission basis. Metal Exchange allegedly accepted Terrill’s proposals and paid the agreed amount of $50,000 for Terrill “to handle the placement of insurance needs.”

Terrill procured insurance for Metal Exchange’s operations in Michigan. These policies included a Workers’ Compensation and Employers Liability Policy issued by Travelers Insurance Company (WC/EL Policy) and a Catastrophic Umbrella Policy also issued by Travelers Insurance Company (CUP Policy). In addition, Terrill obtained an Excess Liability Policy through The Home Insurance Company.

The WC/EL Policy and the CUP Policy contained exclusionary language for intentional acts. The WC/EL Policy contained the following exclusion: “This insurance does not cover bodily injury intentionally caused or aggravated by you.”

The CUP Policy excluded coverage for bodily injury “expected or intended from the standpoint of the insured.” The Excess Policy issued by Home Insurance is not at issue in this appeal.

In the underlying claim, Stanislaw Golee (Golee), Metal Exchange’s employee, while working as a furnace loader in Michigan, was severely burned when an explosion covered him in molten aluminum. Golee sued Metal Exchange in Michigan state court under the intentional tort exception to the Michigan Workers’ Disability Compensation Act (Michigan Compensation Act). Travelers Insurance Company (Travelers) undertook defense of the case filed by Golee in Michigan. The Michigan trial court granted summary judgment in favor of Metal Exchange finding that Go-lee’s exclusive remedy was under the Michigan Compensation Act.

Golee appealed to the Michigan Court of Appeals, which reversed the trial court’s decision. The Michigan Court of Appeals found that Golee sufficiently established Metal Exchange had actual knowledge of a specific danger — an explosion of molten aluminum — that was certain to result in an injury to Golee. The Michigan Court of Appeals further reasoned that Metal Exchange willfully disregarded that knowledge by requiring Golee to work under the same conditions that produced his earlier minor injury. At this point, Travelers ceased defending the claim.

Metal Exchange appealed to the Michigan Supreme Court. The Michigan Supreme Court held that the intentional tort exception to the Michigan Compensation Act allowed imposition of civil liability under two distinct sets of circumstances. The Michigan Supreme Court found that genuine issues of material fact existed with respect to the second set of circumstances — the “inferred intent” or “faux intent” exception. Specifically, the Michigan Supreme Court held that genuine issues of material fact existed with respect to whether Metal Exchange disregarded actual knowledge of the condition that caused Golec’s injury and that an injury was certain to occur. The Michigan Supreme Court remanded the underlying case for further proceedings.

Thereafter, Golee settled his claims against Metal Exchange. Pursuant to the terms of the settlement agreement, a consent judgment was entered in favor of Golee and against Metal Exchange in the amount of $8,627,323.00, plus interest. The consent judgment provided that Golee would not seek to enforce or collect the consent judgment against or from any asset or property of Metal Exchange other than policies of insurance issued by Travelers and/or The Home Insurance Company.

Golee then instituted a garnishment action against Travelers. Metal Exchange was also a party to this action. In the garnishment action, the Michigan trial court ruled that Travelers was contractually obligated under the WC/EL Policy but not obligated under the CUP Policy. No appeal was taken from the ruling with respect to the WC/EL Policy. Travelers settled Golec’s claim under the WC/EL Policy for $1,725,000.00. However, Golee appealed the finding in favor of Travelers on the CUP Policy. The Michigan Court of Appeals reversed summary judgment, finding the policy language in the CUP Policy does not preclude coverage for liability under the “inferred intent” or “faux intent” exception as a matter of law.

Following the reversal, Travelers filed an application for leave to appeal to the Michigan Supreme Court. However, while the application was pending, a settlement was reached by the parties for all claims under the CUP Policy. Travelers agreed to pay $2,750,000.00 to settle its liability under the CUP policy for Golec’s claim.

Metal Exchange filed the present action in Missouri state court against Terrill in three separate counts alleging negligence, breach of contract, and breach of fiduciary duty. Each count is premised on the allegation that Terrill failed to procure a CUP Policy that “followed form” of the underlying WC/EL Policy and provided the same scope of coverage as the WC/EL Policy.

After discovery, Terrill filed a motion for summary judgment. Terrills motion for summary judgment asserted that Metal Exchange’s claims were barred by the doctrine of collateral estoppel. In addition, the motion for summary judgment asserted that no written contract existed that required procurement of “follow form” coverage. Metal Exchange filed their response to the motion for summary-judgment. Thereafter, the trial court granted Terrill’s motion for summary judgment. Metal Exchange now appeals from that judgment.

The review of summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered. Id. We accord the non-movant the benefit of all reasonable inferences from the record. Id.

In their first point, Metal Exchange argues the trial court erred in granting summary judgment in favor of Terrill because collateral estoppel did not bar Metal Exchange’s claims. Specifically, Metal Exchange contends Terrill failed to establish the necessary elements for collateral estoppel because the Michigan Court of Appeals’ decision is not a final determination that the CUP Policy provides coverage for Golec’s injuries. We agree.

Collateral estoppel precludes parties from relitigating issues previously adjudicated. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979). A non-party to an earlier adjudication may assert collateral estoppel, or issue preclusion, against a party to the prior suit to bar relitigation of an issue in a subsequent proceeding. St. Louis University v. Hesselberg Drug Co., 35 S.W.3d 451, 455 (Mo.App. E.D.2000). The objective of collateral estoppel or issue preclusion is to relieve parties from the costs and vexation of multiple litigations, to conserve judicial resources, and to encourage reliance on adjudication by avoidance of inconsistent decisions. Bi-State Development Agency v. Whelan Sec. Co., 679 S.W.2d 332, 335 (Mo.App. E.D.1984).

In reviewing whether the application of collateral estoppel is appropriate, we consider the following factors: 1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; 2) whether the prior adjudication resulted in a judgment on the merits; 3) whether the party against whom collateral estoppel is asserted was a party or in privity with the party to the prior adjudication; and 4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issues in the prior suit. Oates, 583 S.W.2d at 719.

Here, Terrill sought summary judgment on all counts of Metal Exchange’s petition on the grounds of collateral estoppel. Specifically, Terrill asserted that the Michigan Court of Appeals determined in Golec’s garnishment proceedings that the CUP policy provided coverage for Golec’s injuries. Terrill then argues that, under collateral estoppel principles, this determination bars Metal Exchange’s claims that Terrill failed to procure seamless insurance coverage for it. Since the trial court did not specify the reasons for its grant of summary judgment, it is presumed to have based its decision on the grounds specified in the motion. McDowell v. Waldron, 920 S.W.2d 555, 562 (Mo.App. E.D.1996).

Contrary to Terrill’s assertion in its motion for summary judgment, the Michigan Court of Appeals did not render a final decision on whether the CUP policy provided coverage for Golec’s injuries. The court simply reversed a grant of summary judgment based upon its conclusion that coverage for Golec’s injuries under the CUP policy turned upon the subjective intent of the employer, which could not be inferred as a matter of law. Golec v. Metal Exchange, Corp., 2002 WL 44414 at *3-6 (Mich.App. 2002).

On appeal, Metal Exchange limits its claim of error to the second element of collateral estoppel, specifically whether there was a judgment on the merits finding coverage under the CUP Policy. “A judgment on the merits is one rendered after argument and investigation and when it is determined which party is in the right, as distinguished from a judgment rendered upon some preliminary or technical point, or by default, and without trial.” Hayes v. United Fire & Cas. Co., 3 S.W.3d 853, 856 (Mo.App.1999).

It is well established that a denial of a summary judgment is not a final judgment on the merits. Wilson v. Hungate, 434 S.W.2d 580 (Mo. banc 1968) (order denying summary judgment is not an appealable final order). “The denial of a motion for summary judgment ... does not settle or even tentatively decide anything about the merits of the claim. It is strictly a pretrial order that decides only one thing — that the case should go to trial.” Hoevelman v. Reorganized School Dist. R2 of Crawford County, 430 S.W.2d 753, 754-55 (Mo.App.1968) (quoting Switzerland Cheese Association, Inc. v. El Home’s Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966)). The rule set forth in these cases is controlling here. The Michigan Court of Appeals did not finally adjudicate that the CUP policy provides coverage for Golec’s injuries. Instead, the court reversed the grant of summary judgment in favor of Travelers under the CUP policy finding the policy exclusion required consideration of the subjective expectation of the employer. Golec, 2002 WL 44414 at *5.

In Golec’s garnishment proceedings, the Michigan Circuit Court addressed the issue whether, given the Michigan Supreme Court’s determination that Golee presented evidence that his supervisor had “faux intent” with regard to Golec’s injury, the “intentional tort” exclusions in the WC/EL and CUP policies precluded coverage for those injuries. Id. at *3. The parties filed cross-motions for summary disposition. Id. at *2.

On the WC/EL “intentionally caused” exclusion, the trial court granted summary disposition in Golec’s favor, ruling that the exclusion did not apply to faux intent and that the WC/EL policy provided coverage for Golec’s injuries. Id. at *3. On the CUP policy, the trial court granted summary disposition in favor of Travelers, ruling that the exclusion precluded coverage as a matter of law. Id. The court reasoned that the “coverage exclusion in the CUP is broader than the coverage exclusion in the WC/EL policy.” Id. The trial court stated:

[T]his court finds that plaintiff’s injury is excluded under the CUP. The only way plaintiff can avoid the exclusive remedy provisions of the WDCA is by proving that injury was certain to occur and that MEC willfully disregarded the fact that injury was certain to occur. Because injury can only occur as a consequence of MEC’s conduct, MEC’s subjective expectation of bodily injury to Golee should be inferred as a matter of law. [Emphasis added.]

Id. In other words, the trial court ruled that, as a matter of law, “the ‘faux’ intent standard under the WDCA is equivalent to the subjective standard envisioned in the CUP exclusion (bodily injury ‘expected or intended from the standpoint of the insured’).” Id. at *4.

On appeal, the Michigan Court of Appeals framed the issue before it as “whether a finding that defendant had actual knowledge that an injury was certain to occur, yet disregarded that knowledge, is the legal equivalent of the injury being ‘expected or intended from the standpoint of the insured.’ ” Id. The appellate court answered that question in the negative. Id. It rejected the trial court’s determination that Metal Exchange’s subjective intent to cause bodily injury could be inferred as a matter of law. Id. To the contrary, the court of appeals stated that if Golec’s supervisor ordered him back to work in disregard of knowledge of certain injury “[i]t does not necessarily follow, however, that [the supervisor] expected that Golee would be injured.” Id.

The court of appeals reversed the trial court’s grant of summary disposition, holding that “it is possible to deliberately disregard actual knowledge that an injury is certain to occur without actually intending or expecting the injury.” Id.

The “faux” intent provision holds an employer responsible for an intentional injury when, although the injury was not truly intended, the circumstances were such that the employer was aware of all the elements leading to certain injury, although for some reason, the employer ignored the obvious and placed the employee in harm’s way. Under these circumstances, it may or may not be the case that the employer subjectively expected the injury to occur. The employer may have ignored the obvious, without actually intending injury, but, nevertheless, expecting it and being indifferent to it. Or, the employer may have ignored the obvious because although all the elements leading to certain injury were present and known to the employer, the employer did not bother to put two and two together in its haste to get the job done. The policy exclusion requires consideration of the subjective expectation of the employer. Under this standard, liability under the “faux” intent [statutory] provision does not preclude coverage as a matter of law. Such is the case here.
[Emphasis added.]

Id. Based on this language, the Michigan appellate court did not determine that the CUP policy provided coverage as a matter of law. The court did not make any finding as to the subjective expectations of Golec’s supervisor (nor would such an issue be appropriate for summary disposition). The Michigan Court of Appeals did not enter judgment for Golee on the CUP policy. It merely reversed the trial court’s grant of summary disposition on grounds that the CUP policy exclusion requires consideration of the “subjective expectation of the employer,” something that the trial court had erroneously inferred as a matter of law. Therefore, the trier of fact was left to determine whether the employer subjectively expected Golec’s injury to occur in order to determine coverage under the CUP policy.

Contrary to Terrill’s assertions, the Michigan Court of Appeals expressly rejected Golec’s argument that the CUP policy provided coverage for Golec’s injuries as a matter of law. Id. at *5. Golee argued that the CUP policy and WC/EL policy should be construed to provide the same coverage since Travelers intended the former to provide excess coverage. Id. The court determined that “the CUP exclusion differs from the WC/EL policy’s ‘intentionally caused’ exclusion” and thus the “coverage under the CUP policy is not co-extensive with the WC/EL policy.” Id. at *6.

Before the issue of coverage under the CUP policy was decided, the parties settled the case. As a result, no court has finally adjudicated whether the CUP policy provided coverage for Golec’s injuries. Nor has Travelers ever admitted coverage under the CUP policy. The trial court erred in granting Terrill’s summary judgment on the basis of collateral estop-pel. Point one is granted.

In its second point, Metal Exchange argues the trial court erred in granting Terrill summary judgment because a genuine issue of material fact exists with respect to the existence of a contract between the parties for Terrill to provide seamless insurance coverage for Metal Exchange. Specifically, Metal Exchange argues there is a genuine dispute over Terrill’s contention that “there is no evidence any contract ever existed.” We agree.

Summary judgment is not appropriate if the plaintiff shows a genuine dispute as to the facts underlying his right to judgment. ITT, 854 S.W.2d at 381. A “ ‘genuine dispute’ exists when the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” Id. Here, the record contains sufficient evidence to create a genuine dispute as to the existence and terms of the relevant contract.

Where the evidence regarding a contract is conflicting or is capable of more than one inference, summary judgment is not appropriate. Tinucci v. R.V. Evans Co., 989 S.W.2d 181, 184 (Mo.App.1999). “The standard is what a reasonably prudent person would be led to believe from the actions and words of the parties and this is a question to be resolved by the trier of fact.” Id. (Genuine issue of material fact precluded summary judgment when record contained conflicting evidence as to whether party extended contract offer). See also Weldon, Williams & Lick, Inc. v. L.B. Poultry Co., 537 S.W.2d 868, 872 (Mo.App.1976) (summary judgment reversed when the record demonstrated issues of fact as to the terms of the parties’ contract and the existence of the custom or usage of trade which might explain the terms of that agreement).

At a minimum, the record in this case demonstrates a genuine dispute of fact as to the existence of an agreement. Edward 0. Merz, Executive Vice President and CFO of Metal Exchange testified that while there was no written agreement “per se,” Terrill made “some proposals” and “we paid about $50,000 to Terrill to handle the placement of our insurance needs.” Chuck Thomas, who worked in insurance administration for Metal Exchange from 1986 to 1995, testified at his deposition as follows:

Q: Okay. What was your understanding both at Metal Exchange and prior to that, about the relationship between the umbrella or excess policy on the one hand and the underlying policy on the other hand?
A: It would be — what we would call a “following form,” in that your coverages that are provided by the primary, it would be the same coverage, in excess of that would be— would be with the umbrella coverage, it would be a seamless transition there.
Q: A seamless transition?
A: Correct.
Q: Was it your understanding with the Metal Exchange situation that the first excess level was going to be seamless, the relationship between the first excess and the underlying coverage would be seamless?
A: That would certainly be the intent ' of what we expected.

Terrill’s representatives confirmed this testimony. Robert Gibbs worked for Ter-rill from 1982 to 1989 and served as the broker for Metal Exchange when the subject polices were issued. He admitted at his deposition that, pursuant to the agreement between the parties, Metal Exchange retained Terrill to procure following-form coverage:

Q: When Metal Exchange began using Terrill’s services was there a written agreement that was executed?
A: In terms of a fee agreement?
Q: Any type of agreement?
A: I believe there was a fee agreement, I believe, that was executed which really defined the cost.
Q: During your years at Terrill what was the fee basis that you have with Metal Exchange, or compensation basis?
A: Compensation basis was a combination, if you will, if I remember correctly we had a fee for all coverage except Work Comp which I think part or all of that was on a commission.
Q: You were proposing a payment for services of fifty thousand dollars, is that right?
A: Yes, that’s correct.
Q: That would have been in addition to the commissions you had received on the Worker’s Comp policies?
A: That’s correct.
Q: Do you know whether that was done, whether that proposal was accepted and a fee of fifty thousand paid?
* * *
A: I believe the fee was fifty thousand dollars.
Q: And did you understand that it was Metal Exchange’s expectation that the umbrella coverage that it secured with respect to its Worker’s Comp would be at least as great as its primary coverage?
A: I would say that was their expectation.
Q: And as you said before it was — you understood Metal Exchange’s expectation would be that this excess coverage would be seamless, that the same as the primary coverage?
A: Well, maybe it’s presumptuous for me to say that, but I would think it would be seamless in terms of the specifications that were developed by Metal Exchange.
Q: It was not their expectation that the excess policies would cover something less than the primary policies?
A: Nor would it be mine.

At a minimum, the record contains ample evidence of the existence and terms of a contract between Terrill and Metal Exchange. The trial court erred in granting Terrill summary judgment on this point. Point two is granted.

We reverse the trial court’s grant of summary judgment to Terrill on all of Metal Exchange’s claims and remand for further proceedings.

NANNETTE A. BAKER, P.J. and SHERRI B. SULLIVAN, J., concur.

      . Terrill relies on St. Louis University v. Hesselberg Drug Co., 35 S.W.3d 451, 455 (Mo.App. E.D.2000) to argue Missouri courts have held that a summary judgment is a determination on the merits for collateral estoppel purposes. Terrill's reliance on St. Louis University is misplaced. The court in St. Louis University was referring to a grant of summary judgment as being a decision that is neither a "preliminary or technical point.” Id. Here, the Michigan Appeals Court reversed the trial court's grant of summary judgment in favor of Travelers.

      . In addition, Terrill argues that counsel for Metal Exchange admitted in a letter that the Michigan Court of Appeals "found that Travelers should have provided coverage to our clients.” "The admission, to be binding, must be one of fact and not a conclusion of law.” Stockton v. Tester, 273 S.W.2d 783, 786 (Mo.App.1954). At best, the attorney’s remark in the instant case was a legal conclusion. We further note, the letter goes on to state that the case be stayed until "the litigation in Michigan has reached an absolutely final resolution such that it will not change.”

      . Terrill contends that Metal Exchange’s claims are barred under the doctrine of merger. We note, however, that Terrill’s argument was not properly pleaded and therefore waived. See Weil v. Rigali, 980 S.W.2d 89, 91 (Mo.App. E.D.1998)(“If an affirmative defense is not pleaded, it results in a waiver of that defense”). Similarly, even if Terrill asserted duty to inspect/contributory negligence as an affirmative defense in its answer, Terrill, as broker, owed Metal Exchange a fiduciary duty to procure the WC/EL and CUP policies in accordance with Metal Exchange's wishes. See A.G. Edwards & Sons, Inc. v. Drew, 978 S.W.2d 386, 394-395 (Mo.App. E.D.1998)(“[w]hen an insurance broker agrees to obtain insurance for a client, with a view to earning a commission, the broker becomes the client's agent and owes a duty to the client to act with reasonable care, skill, and diligence”).


source: Caselaw Access Project

author: LISA WHITE HARDWICK, Judge.

license: Public Domain

text:
    MARK E. BROOM, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64429.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.

      Ruth Sanders, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before SMITH, C.J., ULRICH and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

Mark Broom appeals the denial of his Rule 29.15 motion following an evidentia-ry hearing. We reverse and remand because the motion court failed to make findings of fact and conclusions of law as required by Rule 29.15(j).

Broom was convicted of first-degree murder, first-degree assault, and two counts of armed criminal action. He was sentenced respectively to life in prison without the possibility of parole and three consecutive thirty-year terms. The convictions were affirmed on appeal. State v. Broom, 39 S.W.8d 927 (Mo.App.2000) (mem.).

Broom filed a pro se Rule 29.15 motion that was amended by appointed counsel. The amended motion argued trial counsel provided ineffective assistance in failing to call Broom as a witness, in fading to confront the state’s key witness with an out-of-court statement, and in failing to investigate and call certain witnesses at trial.

The motion court dismissed Broom’s motion declaring the pro se motion as untimely filed. On appeal, we reversed the motion court’s determination and remanded the post-conviction case to the motion court. Broom v. State, 111 S.W.3d 563 (Mo.App.2003).

On remand, the motion court denied Broom’s claims after an evidentiary hearing and entered the following judgment:

Now on this 8th day of January, 2004, Movant appeared in person and by Appellate Public Defender, Ruth Sanders. Respondent, State of Missouri appeared by Assistant Prosecuting Attorney, Holly Malone. Evidence was heard on Movant’s Motion for Post-Conviction Relief.
Being advised in the premises, the Court Orders as follows:
IT IS HEREBY ORDERED that Movant’s Motion for Post-Conviction Relief is DENIED.
IT IS FURTHER ORDERED that defendant be returned to Jackson County Department of Corrections to the Missouri Department of Corrections forthwith.
IT IS SO ORDERED.

Broom now appeals from this judgment, contending the motion court erred in denying his motion without issuing findings of fact and conclusions of law as required by Rule 29.15(j). He argues the failure to do so constitutes reversible error. Blackmon v. State, 102 S.W.3d 90 (Mo.App.2003).

We agree. Rule 29.15(j) instructs the motion court to issue “findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” The requirements of rules “are not a mere formality.” Crews v. State, 7 S.W.3d 563, 567 (Mo.App.1999). The motion court’s decision “must be sufficient to permit meaningful appellate review” and the findings and conclusions cannot be supplied by implication from the court’s ruling. Id.

Our review of the motion court’s ruling on post-conviction relief is limited to a determination of whether the court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). Without such findings and conclusions, we are unable to provide meaningful review of the claims on appeal. The State concedes the error and joins Broom in requesting remand. Accordingly, the judgment is reversed and the cause remanded to the motion court for findings of fact and conclusions of law.

All concur.

      . All rule citations are to Missouri Rules of Procedure (2005) unless otherwise noted.

      . "Rule 29.15(j) Findings and Conclusions— Judgment. The court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.”


author: GEORGE W. DRAPER III, Judge.

text:
    Ricky HACKMANN, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 85881.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.

      James A. Chenault III, Jefferson City, MO, for Appellant.
    Alan D. Arand, Union, MO, for Respondent.
   GEORGE W. DRAPER III, Judge.

The Director of Revenue (hereinafter, “the Director”) appeals from the trial court’s judgment setting aside the revocation of Ricky Hackmann’s (hereinafter, “Driver”) driving privileges. The Director believes the trial court erred because the maintenance check performed on the breath analysis instrument reflects that a current solution was used for its calibration. We reverse and remand.

Driver’s driving privileges were revoked by the Director pursuant to Section 302.500 et seq. RSMo (2000). Driver petitioned for a trial de novo on September 23, 2004. The Director filed its answer, including a copy of Driver’s arrest, a Data-Master maintenance report performed/calibrated with lot number 03180 simulator solution, and a “certificate of analysis” for solution lot number 03060. Driver then filed a motion for judgment on the pleadings which the trial court granted. This appeal follows.

In the sole point on appeal, the Director alleges the trial court erred in setting aside Driver’s revocation of his driving privileges because the Director’s pleadings reflect a current simulator solution was used when performing the maintenance check on the machine used for Driver’s breath test. The Director indicated that the report reflects that a current solution was used for the calibration checks and the certificate of analysis filed with the expired simulator solution was of a different lot. We agree.

On appeal from the trial court’s grant of a motion for judgment on the pleadings, this Court reviews the petition to determine whether the facts pleaded are insufficient as a matter of law. Becker v. St Charles Boat & Motor Inc., 131 S.W.3d 868, 870 (Mo.App. E.D.2004)(citing State ex rel. Nixon v. American Tobacco Co., 34 S.W.3d 122, 134 (Mo. banc 2000)). “The party moving for judgment on the pleadings admits, for purposes of the motion, the truth of all the opposing party’s well pleaded facts, and the motion is properly granted if, from the face of the pleadings, the moving party is entitled to a judgment as a matter of law.” Craig v. Missouri Dept. of Health, 80 S.W.3d 457, 459 (Mo. banc 2002).

For the Director to make her pri-ma facie case for suspension of an individual’s driving privileges, the Director must demonstrate “that the driver was arrested upon probable cause that he or she was driving while intoxicated; and that the driver was driving at a time when his or her blood alcohol concentration was” in excess of the legal limit. Melvin v. Director of Revenue, 130 S.W.3d 11, 14 (Mo.App. E.D.2004). Our review of the Director’s pleadings, assuming all of the pleaded facts are true, indicates the Director pleaded Driver was driving, arrested upon probable cause, and his blood alcohol concentration exceeded the legal limit. These are the elements for the Director to make a prima facie case.

Accordingly, judgment on the pleadings was improper. The judgment of the trial court is reversed and remanded for a trial de novo.

GARY M. GAERTNER, SR., P.J., and KENNETH M. ROMINES, J., concur.

      . If challenged at trial, the Director carries the burden of proving compliance with the regulations regarding maintenance checks of its equipment and devices, including the effectiveness of the equipment being used with any expired solution.


author: ROBERT G. ULRICH, J.

text:
    Raymond POWELL and Renee Powell, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. WD 64690.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.

      John E. Turner and Christopher P. Sweeny, Kansas City, MO, for appellants.
    Kevin Weakley, Kansas City, MO, for respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, J.

Raymond and Renee Powell appeal the judgment of the trial court reducing the jury verdict in their action against their insurance carrier, State Farm Mutual Automobile Insurance Company, for underin-sured motorist benefits. The judgment of the trial court reduced the verdict awarding damages in favor of Officer Powell by $9,011.44 as an offset under the insurance policy for workers’ compensation benefits paid or payable to him. Officer Powell claims that the trial court erred in reducing the verdict because (1) there was no competent or substantial evidence that $9,011.44 was paid or payable to him and (2) as a matter of law the amount should have been reduced from the policy limits not the damages. The judgment of the trial court is reversed, and the case is remanded for further proceedings.

Facts

Shortly after 3:00 a.m. on March 18, 2001, Raymond Powell, a police officer with the Kansas City, Missouri, Police Department, was riding his motorcycle on duty when a drunk driver struck him. Officer Powell suffered injury to his foot requiring medical attention and ultimately surgery. Officer Powell missed work as a result of his injury and surgical recovery. The Powells sued the driver and their insurance provider, State Farm, from which they had purchased underinsured motorist coverage. Prior to trial, the Pow-ells settled with the driver for $50,000, the limit on his liability insurance policy. At trial, the jury returned a verdict in favor of Officer Powell for $75,000 for his personal injuries. Thereafter, State Farm filed a motion to reduce the verdict by $9,011.44, which allegedly represented the amount of workers’ compensation benefits paid to Officer Powell. The trial court sustained State Farm’s motion and entered judgment in favor of Officer Powell in the amount of $15,988.56, which represented the verdict ($75,000) less the settlement with the driver ($50,000) and the amount of workers’ compensation benefits received by Officer Powell ($5,739.96 medical bills and $3,271.38 lost wages). This appeal by Officer Powell followed.

Points on Appeal

Officer Powell raises two points on appeal. He claims that the trial court erred in reducing the verdict by $9,011.44 because (1) State Farm failed to prove by competent substantial evidence that the amount was paid or payable to him under the Missouri Workers’ Compensation Law and (2) as a matter of law the amount should have been reduced from the policy limits, not the verdict for damages. Because the first point is dispositive, Officer Powell’s second point is not addressed.

Following the jury verdict, State Farm filed a motion to reduce the verdict by $9,011.44, which it claimed represented the amount of benefits paid to Officer Powell under the Missouri Workers’ Compensation Law. It relied on the following policy provision:

Limits of Liability Coverage W
2. Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured under any worker’s compensation, disability benefits, or similar law.

State Farm argued that it was entitled to offset against the amount of the verdict the amount of medical bills paid or payable to Officer Powell by his employer, $5,739.96, and two-thirds of the amount of injury time paid or payable to Officer Powell by his employer, $3,271.38. In support of this argument, State Farm attached six exhibits to its motion: the insurance policy; Kansas City, Missouri, Police Department Personnel Policy 818-7; Kansas City, Missouri, Police Department Personnel Policy 1005; Board of Police Commissioners of Kansas City, Missouri, Resolution 95-5; a summary of Officer Powell’s medical bills totaling $5,739.96; and a summary of Officer Powell’s regular duty lost wages totaling $4,956.64. State Farm also relied on evidence at trial that Officer Powell’s medical bills totaled $5,739.96 and on an offer of proof outside of the hearing of the jury where Officer Powell testified that he believed the City of Kansas City had paid his medical bills.

Thereafter, Officer Powell filed suggestions in opposition to the motion to reduce the verdict. He argued, inter alia, that the trial court should not take judicial notice of or consider the Kansas City Police Department Personnel Policy documents attached as exhibits to State Farm’s motion and that State Farm otherwise did not prove the amount of any sums paid or payable by Officer Powell’s employer, the Board of Police Commissioners.

The question of application of the offset provision of the insurance policy was tried to the trial court following the jury trial on Officers Powell’s personal injury claim. In a court-tried case, the trial court is presumed to consider only properly received evidence. State ex rel. Webster v. Cornelius, 729 S.W.2d 60, 65 (Mo.App. E.D.1987). The erroneous admission of evidence requires reversal only when no sufficient competent evidence to support the trial court’s judgment was presented. Id. In reviewing a court tried case, the appellate court only considers properly admitted evidence and ignores that which was improperly admitted. Id.

A party seeking to establish coverage under an insurance policy has the burden of proving that the claim is within the coverage afforded by the policy. M.A.B. v. Nicely, 911 S.W.2d 313, 315 (Mo.App. W.D.1995). If, however, an insurance company seeks to escape coverage based on a policy exclusion, it has the burden of proving facts that make the exclusion applicable. Id.; Harold S. Schwartz & Assocs., Inc. v. Cont’l Cas. Co., 705 S.W.2d 494, 498 (Mo.App. E.D.1985). State Farm argues that the offset provision of the policy is not an exclusion and that Officer Powell had the burden of proving that his claim was within the coverage of the policy. State Farm’s argument is incorrect. By definition, an exclusion provision in an insurance policy excludes risk. Schwartz, 705 S.W.2d at 498. It does not endow coverage but rather limits the obligation of indemnity. Id. Although not specifically labeled an exclusion, the offset provision in the policy is an exclusion because it does not endow coverage but limits the responsibility of State Farm for Officer Powell’s damages. Given State Farm’s reliance on the offset provision, it had the burden of proving facts that make the provision applicable.

Rule 78.05 authorizes affidavits, depositions, and oral testimony in connection with after trial motions. Prewitt v. Cofer, 979 S.W.2d 521, 525 (Mo.App. E.D.1998)(quoting Peth v. Heidbrier, 789 S.W.2d 859, 862 (Mo.App. E.D.1990)). Where the issue raised in the after trial motion requires resolution of factual matters not based on facts appearing in the record, the rule authorizes proof by any of the listed methods. Id. (quoting Peth, 789 S.W.2d at 862).

The issue raised in State Farm’s motion to reduce the verdict required resolution of factual matters not appearing in the record, specifically, whether any amount was paid or payable to Officer Powell under workers’ compensation laws. Except for evidence at trial that Officer Powell incurred $5,739.96 in medical bills and his testimony in the offer of proof, no other evidence was presented on the issue. No evidentiary hearing was held. Although State Farm attached several exhibits to its motion, the exhibits were not in the form of affidavits and were never introduced into evidence. Officer Powell did not stipulate to any of the exhibits and, in fact, challenged their consideration. “Exhibits attached to motions filed with the trial court are not evidence and are not self-proving.” Kulaga v. Ku-laga, 149 S.W.3d 570, 573 n. 6 (Mo.App. W.D.2004).

State Farm requested and the trial court apparently took judicial notice of the personnel policies and resolution of the Board of Police Commissioners attached to State Farm’s motion. The Kansas City Board of Police Commissioners is a state agency created by statute and endowed with the power to adopt rules and regulations governing the conduct of the police department. §§ 84.350 and 84.420.2(1), RSMo 2000; State ex rel. Nixon v. Karpierz, 105 S.W.3d 487, 489 n. 6 (Mo. banc 2003). Under section 536.031.5, RSMo Cum.Supp.2004, Missouri courts take judicial notice, without proof, of the Code of State Regulations. Unless a rule or regulation has been published in the Code of State Regulations, however, a court may not take judicial notice of an administrative rule or regulation. State v. Mullenix, 73 S.W.3d 32, 37 (Mo.App. W.D.2002). The personnel policies of the Kansas City Police Department are not published in the Code of State Regulations, and, therefore, the trial court could not take judicial notice of such exhibits attached to State Farm’s motion. And even if the trial court could take judicial notice of the policies, no evidence was offered that the policies were in effect at the time of Officer Powell’s injury.

Also attached to State Farm’s motion were purported summaries of Officer Powell’s medical bills and his lost wages. While the summary of Officer Powell’s medical bills was supported by evidence offered at trial, the summary of his regular duty lost wages did not coincide with evidence of lost wages offered at trial or in the offer of proof. No explanation was given regarding the discrepancies, yet the trial court apparently accepted the summaries as true although they were not offered into evidence.

The only evidence introduced at trial or in the offer of proof regarding Officer Powell’s receipt of workers’ compensation benefits was the total of Officer Powell’s medical bills, $5,739.96, and Officer Powell’s testimony that he believed the City of Kansas City had paid his medical bills. This evidence did not constitute sufficient competent evidence that Officer Powell’s medical bills were paid or payable by his employer under workers’ compensation laws. During the offer of proof, Officer Powell testified as follows:

Q: Now by entering into that agreement, is it true that the full amount of the medical bills that you have identified on Plaintiffs’ Exhibit 4 were paid for by the city of Kansas City, Missouri, your employer?
A: I believe so.

Officer Powell’s testimony that he believed the City of Kansas City paid his medical bills is of no probative value. Generally, one’s belief, feeling, understanding, or thought about a matter does not constitute substantial evidence justifying or permitting a finding to that effect. Dickey Co. v. Kanan, 537 S.W.2d 430, 433-34 (Mo.App.1976). When a witness testifies that he “believes” a certain fact, his testimony is “objectionable and should be rejected.” Galovich v. Hertz Corp., 513 S.W.2d 325, 335 (Mo.1974)(quoting Armstrong v. Croy, 176 S.W.2d 852, 853 (Mo.App.1944)). Even if received without objection, such testimony “is of no probative force or evidential value and definitely so if the witness is not testifying as an expert.” Id. (quoting Armstrong, 176 S.W.2d at 853). And even if a witness is qualified to express his opinion, such testimony will be rejected unless the term employed sufficiently appears to be used to express his opinion. Id. (quoting Armstrong, 176 S.W.2d at 853-54). Officer Powell was not testifying as an expert, expressing his opinion on the question propounded. His belief that his employer paid his medical bills did not constitute substantial evidence that it did. Additionally, the question identified Officer Powell’s employer as the City of Kansas City but other evidence in the record showed that the Board of Police Commissioners was his employer. So, even if Officer Powell’s testimony justified a finding that the City of Kansas City paid his medical bills, it was questionable whether the City of Kansas City was his employer.

While the parties had an opportunity to make legal arguments on the issue of whether the offset provision of the insurance policy applied in this case, no hearing was conducted to introduce necessary evidence regarding the issue. The trial court apparently considered the exhibits attached to State Farm’s motion to reduce the verdict in ruling that State Farm was entitled to offset the verdict by $9,011.44. The exhibits were accepted as true without any opportunity for Officer Powell to contest or introduce evidence on the amounts or application of the provision. Because an evidentiary hearing on State Farm’s motion was not conducted, the trial court lacked a factual basis for deciding the issue. See Prewitt, 979 S.W.2d at 525 (where trial court did not hold evidentiary hearing on whether juror intentionally failed to disclose material information, court had no evidence before it to determine issue). The judgment of the trial court is, therefore, reversed, and the case is remanded to the trial court to conduct a hearing to elicit evidence regarding application of the offset provision, to make appropriate findings of fact, and to render its judgment. See Id.

HOLLIGER, P.J. and ELLIS, J., concur.

      . Mrs. Powell sought damages for loss of consortium; however, the jury did not find in her favor. She did not appeal the judgment regarding her claim, and, therefore, this opinion will refer only to Officer Powell as the appellant.

      . This opinion does not answer the question of whether workers’ compensation benefits paid or payable to Officer Powell should have been deducted from the policy limits or from damages.

      . Officer Powell filed a motion in limine to prohibit State Farm from introducing at the jury trial evidence that Officer Powell had filed a workers’ compensation claim or that any of his medical bills may have been paid by workers' compensation based on the collateral source rule. The trial court granted Officer Powell's motion ruling that workers' compensation evidence would not be heard by the jury. On appeal, State Farms argues that Officer Powell cannot now complain that insufficient evidence was presented of the amount of workers' compensation benefits Officer Powell received for purposes of applying the offset provision of the policy. The transcript demonstrates, however, that the trial court and both parties agreed that the issue of application of the offset provision with regard to workers' compensation benefits received by Officer Powell would be taken up after the case was over. State Farm’s argument that Officer Powell invited the alleged error is without merit.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Donald ARNOLD, Appellant.
    No. ED 85475.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 18, 2005.
    Kent Denzel, Columbia, MO, for Appellant.
    Ronald Salvatore Ribaudo, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Donald J. Arnold (hereinafter, “Defendant”) appeals from the trial court’s judgment entered after a jury found him guilty of first degree assault, Section 565.050 RSMo (2000), and armed criminal action, Section 571.015 RSMo (2000). Defendant was sentenced as a prior offender to concurrent terms of thirty years imprisonment. Defendant raises one point on appeal, claiming the trial court erred in failing to allow Defendant to question the victim regarding a pending DWI charge as this would have exposed the victim’s bias.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

The judgment is affirmed pursuant to Rule 30.25(b).


author: PAUL M. SPINDEN, Judge.

text:
    Peter TIPTON, Respondent, v. Nilufer JOSEPH-TIPTON, Appellant.
    No. WD 64987.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.

      Charles Dykhouse, Columbia, for Appellant.
    Leslie Mayberry Schneider, Columbia, for Respondent.
   PAUL M. SPINDEN, Judge.

Nilufer Joseph-Tipton appeals the circuit court’s judgment dissolving her marriage to Peter Tipton. She complains of the circuit court’s rulings concerning custody of her two children and child support. The circuit court ordered that the couple share joint legal and physical custody of their children and awarded no child support. We reverse the circuit court’s judgment and remand to the circuit court for it to make additional findings of fact.

Joseph-Tipton first contends that the circuit court erred in making its custody determination because it did not include in its judgment written findings of fact based on the public policy in Section 452.375.4, RSMo 2000, and the factors listed in Section 452.875.2(1) to (8), RSMo 2000, detailing the specific relevant factors that made the custody arrangement in the best interest of the children. Tipton counters that, pursuant to Rule 78.07, Joseph-Tipton did not preserve this issue for our review, because she did not file a motion to amend the circuit court’s judgment.

Rule 78.07(c) says, “In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” This rule became effective on January 1, 2005, while this case was pending and was, according to Rule 41.06, applicable to these proceedings.

Rule 41.06, however, authorizes us to excuse noncompliance with a newly promulgated rule if applying it “would work injustice.” In light of the procedural history in this ease, applying Rule 78.07(c) to this case would work injustice.

After the circuit court held a trial and entered a docket entry indicating its ruling, both parties filed post-trial motions, although the docket entry was not a judgment. In his motion, Tipton informed the circuit court:

Pursuant to Section 4[52].375.2 RSMo., if the parties are unable to agree to a custodial arrangement, the court is required to issue written findings regarding each of the subdivisions of Section 452.375 RSMo. Failure of the court to issue written findings will result in reversal and remand for the court to issue the findings.

The circuit court did not heed Tipton’s warning, and when it entered its judgment on December 22, 2004, it did not include any of the written findings of fact required by Section Section 452.375.2 or 452.375.4.

Pursuant to Rule 75.01, the circuit court retained control over its judgment for 30 days after entering its judgment. During this 30-day period, Rule 78.07 became effective, and Joseph-Tipton could have filed a motion asking the circuit court to amend its judgment to include the statutorily required findings of fact to be in compliance with Rule 78.07(c), but she did not do so. Nonetheless, the circuit court’s failure to act on Tipton’s warning that necessary-findings of fact needed to be added to its judgment causes us to conclude that, had Nilufer Joseph-Tipton filed a motion to amend the judgment to include the missing findings of fact, the circuit court would have ignored it, too. Hence, we consider the issue raised by Joseph-Tipton to be preserved for our review and consider its merits.

Indeed, as Tipton averred in his motion, because the parties did not agree on the custody arrangement for the children, the circuit court was required to include findings of fact in its judgment based on the public policy in Section 452.375.4 and the factors listed in Section 452.375.2 detailing the specific relevant factors that caused it to conclude that the chosen custodial arrangement was in the children’s best interests. Section 452.375.6, RSMo 2000; Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005). Although Section 452.375.6 does not require the circuit court to make written findings of fact on all of the factors listed in Section 452.375.2, the circuit court must detail what it deems to be the relevant factors. Speer, 155 S.W.3d at 62. The circuit court’s judgment did not include any findings of fact concerning the factors listed in Section 452.375.2 and did not include findings of fact based on the public policy in Section 452.375.4. The circuit court’s judgment merely quoted Section 452.374.4’s declaration of Missouri’s public policy. The judgment did not include any specific findings of fact regarding the public policy, but declared only that the parents’ sharing joint legal custody and joint physical custody was “in the best interests of the minor children.”

We, therefore, reverse the circuit court’s judgment and remand for the circuit court to make the required findings of fact in compliance with Section 452.375.6. To the extent that Joseph-Tipton requests that we order the circuit court to hear additional evidence as to the children’s best interests in regard to the parenting plan, this is a matter for the circuit court “to decide, in the exercise of its discretion, whether to reopen the record and receive additional evidence on remand.” In re Marriage of Hoff, 134 S.W.3d 116, 118 (Mo.App.2004).

Joseph-Tipton also asserts that the circuit court erred in not awarding child support. She notes that the circuit court did not adopt either party’s Form No. 14 or calculate its own before making a finding that the Form No. 14 calculation was unjust and inappropriate.

The circuit court failed to follow the required two-step process in determining child support in accordance with Section 452.340, RSMo 2000, and Rule 88.01. Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). In step one, the circuit court must determine for the record the presumptively correct child support amount under the Form No. 14 calculations. Woolridge v. Woolridge, 915 S.W.2d 372, 379 (Mo.App.1996). In step two, the circuit court must “consider whether to rebut the presumed correct child support amount, as found by the court, as being unjust or inappropriate after consideration of all relevant factors.” Id. In determining the presumed child support amount under the first step, the circuit court can either accept one of the parties’ Form No. 14 calculations or reject both parties’ calculations and prepare its own Form No. 14. Id. at 381.

The circuit court did neither. It did not determine for the record the presumptively correct child support amount. In its findings, the circuit court noted only, “After consideration of all relevant factors pursuant to Section 452.340.8, and Supreme Court Rule 88.01, the Court finds that the Court’s presumed child support calculation as rebutted as being unjust or inappropriate due to the joint parenting plan. Court orders no child support.” In its conclusions, the circuit court said:

The court finds that the presumed correct child support amount pursuant to Section 452.340.8 RSMo 1994, Supreme Court Rule 88.01, and Civil Procedure Form No. 14 is rebutted; that after consideration of all relevant factors pursuant to Section 452.340.8 and Rule 88.01, said amount is rebutted as being unjust or inappropriate based upon the circumstances of the parties and the joint physical custody plan; and, that after consideration of all relevant factors pursuant to Section 452.340.1 RSMo 1994, and Rule 88.01, no child support is ordered.

The circuit court did not find for the record the presumed correct child support amount calculated pursuant to Form No. 14. “Meaningful appellate review is, therefore, not possible, either to determine the presumed correct child support amount or to determine whether the [circuit] court’s attempt to rebut any child support amount calculated pursuant to Form 14 was proper.” Neal, 941 S.W.2d at 504.

We, therefore, reverse the circuit court’s judgment as to child custody and child support. On remand, the circuit court should first “determine and find for the record the presumed correct child support amount and, then, ... make a proper record with respect to why the presumed correct child support amount should be rebutted, if the [circuit] court so determines.” Id. It should also enter the proper findings of fact in its judgment pursuant to Section Section 452.375.4 and 452.375.2.

HAROLD L. LOWENSTEIN, Presiding Judge, and PATRICIA A. BRECKENRIDGE, Judge, concur.

      . The circuit court entered a judgment nunc pro tunc on December 28, 2004, to correct the spelling of Joseph-Tipton’s name.


author: ROBERT G. ULRICH, Judge.

text:
    In the Matter of C.M.C. a/k/a Plaintiff J.D.C. and J.A.C., Appellant-Respondents, v. J.M.H. (Father); Respondent-Appellant J.D.C. (Mother), Respondent.
    Nos. WD 64801, WD 64854.
    Missouri Court of Appeals, Western District.
    Oct. 18, 2005.

      Sharlie Pender, Independence, for Appellant-Respondents.
    Laurie V. Snell, Kansas City, for Plaintiff.
    Robert N. Calbi, Kansas City, for Respondents-Appellant.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JOSEPH M. ELLIS, JJ.
   ROBERT G. ULRICH, Judge.

J.D.C. and J.A.C., appellant-respondents, appeal from a judgment of the Probate Court Division of the Circuit Court of Jackson County, Missouri. The court entered judgment pursuant to section 475.030.4(2), RSMo 2000, appointing J.D.C. and J.A.C., maternal grandfather and step-grandmother of C.M.C., co-guardians of C.M.C. The judgment further decreed that grandparents, mother, and father should each pay one-third of the costs incurred, including one-third of the Guardian Ad Litem fee, and that if any party satisfies more than one-third of the sums awarded to the Guardian Ad Litem, then that party shall be entitled to contribution from the non-paying party or parties to the extent that the paying party satisfied more than one-third. In their first point, appellant-respondents appeal the failure of the judgment to award them their full deposition costs. In their second point, appellant-respondents appeal the failure of the judgment to specify a certain sum of money to be paid by the grandparents, mother, and father for the Guardian Ad Litem fees. For the reasons set forth below, the case is remanded with instructions to enter judgment in accordance with this opinion.

Facts

On November 5, 2001, J.D.C. and J.A.C., maternal grandfather and step-grandmother of C.M.C., filed their petition seeking Letters of Co-Guardianship of C.M.C., a female minor child born August 31, 1999. The natural mother consented to and also requested the guardianship, via a filed affidavit. On December 6, 2001, J.M.H., the natural father, filed pleadings opposing the grandparents’ guardianship petition. Laurie V. Snell was appointed Guardian Ad Litem for the minor child on December 14, 2002. Mother withdrew her consent to grandparents’ guardianship on March 7, 2002 and filed a formal answer on March 10, 2002.

A Pre-Trial conference was had on April 9, 2002, and the Guardian Ad Litem requested a trial date of no later than August 12, 2002, due to her anticipated maternity leave. In preparation for trial, grandparents deposed mother and father on various dates prior to August 12, 2002, incurring deposition costs of $1,084.25. After depositions were had but prior to August 12, 2002, the parties agreed to participate in mediation to be scheduled and arranged by Father. Father failed to schedule or arrange for any mediation sessions, and on March 28, 2003, the Guardian Ad Litem requested that another pre-trial conference be scheduled.

Pre-trial conference was scheduled for April 11, 2003. Father’s counsel requested a continuance, but failed to respond to requests to provide alternate dates for the pre-trial conference. A pre-trial conference was then scheduled and had on August 7, 2003. A trial setting was deferred until the Guardian Ad Litem fees had been paid and father’s pending criminal case concluded, scheduled for February 23, 2004. In preparation for trial, grandparents deposed mother and father on April 29, 2004, incurring deposition costs of $748.80. Grandparents filed a “Certification of Taking of Deposition and Costs Incurred” for four depositions and a “Notarial Certificate” which indicated costs incurred for two depositions; these documents were also entered as exhibits during trial.

Trial was had over four days, concluding on July 9, 2004, wherein the court took the matter under advisement. The court issued its judgment on July 23, 2004, which appointed grandparents co-guardians of C.M.C. The judgment further decreed that grandparents, mother, and father are respectively responsible for “one-third the costs incurred, including Guardian Ad Li-tem fees.” With respect to Guardian Ad Litem fees, the judgment decreed that “if any party satisfies more than one-third of the sums awarded to the Guardian Ad Litem, then that party shall be entitled to contribution from the non-paying party or parties to the extent that the paying party satisfied more than one-third of the sums awarded to the Guardian Ad Litem.”

On August 9, 2004, father filed a Motion for Rehearing. Grandparents filed their “Motion to Amend Judgment to Specifically Award Deposition Costs as a Sum Certain Amount” on August 11, 2004. Father filed Notice of Appeal of the trial court’s judgment on November 18, 2004. Grandparents cross-appealed. Father has abandoned his appeal and is participating in this proceeding only to defend against grandparents’ cross-appeal.

Jurisdiction

Father’s only briefed argument is that his notice of appeal was not timely filed, and thus this court has no jurisdiction to hear grandparents’ cross appeal. Father’s Notice of Appeal was timely filed and this court does have jurisdiction. A Notice of Appeal must be filed not later than ten days after the judgment appealed becomes final. Rule 81.04(a). A judgment becomes final thirty days after it is entered if no timely authorized after-trial motion is filed. If a timely authorized after-trial motion is filed, the judgment becomes final at the earlier of: (1) “ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled” or (2) if all motions have been ruled, “the date of the ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.” Rule 81.05(a).

The judgment awarding co-guardianship to grandparents was issued on July 23, 2004. Grandparents filed a motion to amend the trial court’s judgment on August 11, 2004. A motion to amend judgment is an authorized after-trial motion. Rule 78.04; Blue Ridge Bank & Trust Co. v. Hart, 152 S.W.3d 420, 425-26 (Mo.App. W.D.2005). This motion was not ruled on by the trial court and was deemed overruled after ninety days. Rule 78.06. Thus, the judgment became final on November 9, 2004, ninety days after grandparents filed the motion to amend judgment. The Notice of Appeal must have been filed within ten days after the judgment became final in order to be timely; thus, it must have been filed by November 19, 2004. Father filed the Notice of Appeal on November 18, 2004, one day before the ten-day window closed. Therefore, father’s appeal was timely, and this court has jurisdiction to hear grandparents’ cross-appeal.

Standard of Review

In a non-jury tried case, the trial court’s judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Schlotman v. Schlotman, 126 S.W.3d 425, 427-28 (Mo.App. W.D.2004).

Deposition Costs

The concept of “costs” did not exist at common law and was created by statute. Starling v. Union Pac. R.R. Co., 22 S.W.3d 213, 216 (Mo.App. W.D.2000). Statutes allowing the taxation of costs are strictly construed. Id. Courts have “no inherent power to award costs, which can only be granted by virtue of express statutory authority.” Id. (quoting Dorn-Chrysler Plymouth, Inc. v. Roderique, 487 S.W.2d 48, 49 (Mo.App.1972)).

A “cost” is a “pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceeding within an action.” In the Interest of J.P., 947 S.W.2d 442, 444 (Mo.App. W.D.1997)(quoting BLACK’S LAW DICTIONARY 346 (6th ed.1990)). Deposition costs in the context of terminating parental rights fall within the definition of “costs.” Id. Several statutory sections and rules pertain to costs. Section 514.060 states: “In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.” (emphasis added). Section 492.590.1 provides that deposition costs “shall be awarded as a judgment in favor of the party or parties requesting the same ... provided, however, that any judgment awarded for copies of depositions shall be limited to the cost of one copy per party, except upon leave of court.” (emphasis added). The statute further provides that the costs “shall be certified by the reporter taking the same and shall be further limited by the court in which the action is pending at the request of either party.” § 492.590.2, RSMo 2000. This statutory provision does “not differentiate between discovery depositions and depositions taken in lieu of a personal appearance by the witness. It is not essential that a deposition be used in evidence at trial in order for that deposition to be properly [awarded] as a cost in the case.” In the Interest of J.P., 947 S.W.2d at 447. Section 472.040 provides that “[i]n all suits and other proceedings in the probate division of the circuit court, the prevailing party shall recover his costs against the other party, except in those cases in which a different provision is made by law.” (emphasis added). Section 475.020 states that the “provisions of chapter 472, RSMo, unless therein restricted to decedents’ estates, apply to guardianships and conservator-ships,” thus making section 472.040 applicable in this case. Rule 57.10 states that the costs of taking depositions “shall be taxed in favor of the party paying the same and taxed as other costs in the civil action” and that the costs “shall be certified by the person before whom the deposition is taken in the amount provided by law.” (emphasis added).

The term “prevailing party” applies not only to parties who obtain a favorable judgment on the merits, but also to those “obtaining a settlement, obtaining a voluntary dismissal of a groundless complaint, or obtaining a favorable decision on a single issue if the issue is one of significance to the underlying case.” Greenbriar Hills Country Club v. Dir. of Revenue, 47 S.W.3d 346, 353 (Mo. banc 2001). In this case, grandparents petitioned the court for letters of co-guardianship. Mother and father both opposed this petition. The court found mother and father to be unfit and appointed grandparents co-guardians of C.M.C. Thus, grandparents were the prevailing party in this action.

The prevailing party does not enjoy an unlimited right to recover deposition costs. Parties may seek a protective order under Rule 56.01(c) in order to prevent “annoyance, embarrassment, oppression, or undue burden or expense.” (emphasis added). Additionally, parties may ask the court to limit the costs awarded based on several considerations. § 492.590.2, RSMo 2000. In this case, however, father did not seek a protective order with respect to costs and did not ask the court to limit costs awarded. A party may waive his or her right to contest assessment of costs by failing to object to a cost bill or memorandum. Starling 22 S.W.3d at 217.

As emphasized, these statutory provisions direct that costs be recovered as a matter of right. The court lacks discretion when the statute directs that costs “shall” be awarded to the prevailing party. If a party requests that costs be limited in amount, the court has discretion to reduce costs awarded. § 492.590.2, RSMo 2000. Neither father nor mother requested costs be limited, however. Without such a request, the court lacks discretion to limit the amount of costs awarded. Deposition costs are further limited to the cost of one copy per party, except upon leave of court. § 492.590.1, RSMo 2000.

Grandparents erroneously assert that the judgment was silent as to costs. The judgment states: “Petitioners are responsible for one-third of the costs incurred and Mother and Father shall each be responsible for one-third of the costs incurred, including guardian ad litem fees,_” Thus, the judgment divides all costs into equal thirds. If this mandate only referred to the Guardian Ad Litem fees, there would be no need for the phrase “including guardian litem fees.” This phrase necessarily indicates that all costs were split into equal thirds. As the court assessed one-third of the costs against grandparents, the next question is whether this assessment was error, given the statutory provisions mandating costs be awarded to the prevailing party.

In Crooks v. Crooks, costs were assessed against husband, the prevailing party in a divorce action. 197 S.W.2d 678, 685 (Mo.App.1946). Section 1406, RSMo 1989, a predecessor of section 514.060, RSMo 2000, provided for the assessment of costs in civil cases. The court noted the statutory provision assessing costs in favor of the prevailing party and stated it knew of no reason why the statute would not apply to divorce proceedings. Id. at 684-85. The court stated, however, that, because divorce proceedings are “triable by equitable principles so as to vest the court with a sound discretion in such respect which is to be exercised in the light of the facts of each particular case,” costs could be assessed against the husband when it was shown that the wife was without means to pay them. Id. at 685. The Crooks court did not follow the statutory mandate because, even though divorce proceedings are statutory, they also have an equitable nature. The same is true of proceedings to terminate parental rights. “Although actions for the termination of parental rights and adoption are statutory actions at law, they nevertheless involve equitable principles involving the very personal rights of natural parents, adoptive parents and most importantly, children.” In the Interest of D.S.G., 947 S.W.2d 516, 518 (Mo.App. E.D.1997). There is a difference, however. The cases dealing with the equitable nature of tenninating parental rights all involve terminating parental rights in the juvenile court, pursuant to chapter 211. A provision in chapter 211 states: “The practice and procedure customary in proceedings in equity shall govern all proceedings in the juvenile court....” § 211.171.7, RSMo Cum Supp. 2004. No similar provision exists for actions in the probate court.

As noted, supra, section 472.040, made applicable to the proceedings in this case through section 475.020, provides that “[i]n all suits and other proceedings in the probate division of the circuit court, the prevailing party shall recover his costs against the other party, except in those cases in which a different provision is made by law.” (emphasis added). There is no provision in the probate code directing that equitable principles be applied. Thus, the statute must be followed. Given this, the costs in this case should have been assessed in grandparents’ favor, equally divided between mother and father.

In order to collect deposition costs, they must be “certified by the reporter taking the same.” § 492.590, RSMo 2000. See also Rule 57.10. Grandparents filed and entered as exhibits certification for all six depositions they had taken on them behalf. Four were entitled “Certification of Taking of Deposition and Costs Incurred,” and two were entitled “Notarial Certificate” and indicated the costs incurred. The certifications reveal that grandparents incurred a cost of $1833.05 for the depositions. The statutory limitation permits the prevailing party to recover the costs of only one copy of a deposition transcript. § 492.590.1, RSMo 2000. The certifications do not state what services or products comprised the cost incurred; they only state the total cost incurred by each party. Therefore, this court is unable to tell if the costs were for more than one copy. On remand, the probate court should determine what services were rendered for the costs claimed by grandparents, ensuring that the statutory limitation is followed.

Guardian Ad Litem Fees

In their second point, grandparents claim the trial court erred when it declared each party was responsible for one-third of the Guardian Ad Litem fees but failed to specify the specific monetary amount due the Guardian Ad Litem. The judgment provides for a right of contribution if any one party pays more than one-third of the Guardian Ad Litem fees, but the amount of the fees is not indicated anywhere in the judgment. Because the judgment does not indicate a sum certain amount, grandparents claim they are unable to collect contribution from mother and father to the extent that grandparents paid more than one-third of the fees. Grandparents are not appealing the trial court’s assessing one-third of the fees against them; they complain only that the judgment does not contain a specific monetary amount.

“To be enforceable by execution, a judgment must specify with certainty the amount for which it is rendered, or if it is not stated, it must be ascertainable from the record.” Orem v. Orem, 149 S.W.3d 589, 593 (Mo.App. W.D.2004). See also Schneidler v. Feeder’s Grain & Supply, Inc., 24 S.W.3d 739, 741 (Mo.App. E.D.2000). The judgment rendered by the probate court states that each party is responsible for one-third of the Guardian Ad Litem fees; it fails to state the total amount of the Guardian Ad Litem fees or the monetary amount equivalent of one-third of the fees. Because the judgment does not contain a certain monetary amount, it is unenforceable by execution unless the amount of the Guardian Ad Litem fees can be clearly ascertained from the record. In re Marriage of Melton, 816 S.W.2d 232, 238 (Mo.App. S.D.1991)(citing Massey v. Massey, 594 S.W.2d 296, 297-98 (Mo.App. W.D.1979)).

Grandparents argue that the record reveals the Guardian Ad Litem fees totaled $6,000, and, thus, grandparents, mother, and father are each responsible for $2,000. Before the trial, the court entered four judgments for payment of Guardian Ad Litem fees. Each judgment of $1,500 sustained a “Motion of the Guardian Ad Li-tem for Deposit of Guardian Ad Litem Fees/Costs.” The motions made by the Guardian Ad Litem were meant to compensate the Guardian Ad Litem for work already performed and work anticipated to be performed. The parties acknowledge that the total fees of the Guardian Ad Litem were $6,000 for work performed and that each judgment was for $1,500, apportioned between the parties, to be paid on or before the start of the trial. On remand, the probate court should amend its judgment to include the specific amount of $6,000 total for the Guardian Ad Litem fees.

Conclusion

The case is remanded to the probate court with directions to enter judgment in accordance with this opinion.

All concur.

      . Rules 56 and 57 are among those made applicable to probate proceedings by Rule 41.01(b).

      . The certifications have a number of errors. The errors result from the similarity of the names of father, mother, and grandfather. Despite these errors, they reveal that the costs incurred by the grandparents were $1,833.05.


author: E. RILEY ANDERSON, J.,

text:
    Janice W. PURKEY, et al. v. AMERICAN HOME ASSURANCE COMPANY d/b/a AIG Insurance Company, et al.
    Supreme Court of Tennessee, at Nashville.
    May 4, 2005 Session Heard at Knoxville.
    Sept. 30, 2005.
    A. James Andrews and Sidney W. Gil-reath, Knoxville, Tennessee, for the Plaintiff/Petitioner, Janice W. Purkey.
    Melinda Meador and Erica Greene, Knoxville, Tennessee, and Sylvia H. Wal-bolt, Tampa, Florida, for the Defendant/Respondent, American Home Assurance Company d/b/a AIG Insurance Company.

      R. Layne Holley, Germantown, Tennessee, for the Amicus Curiae, The Property Casualty Insurers Association of America.
   OPINION

E. RILEY ANDERSON, J.,

delivered

the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We accepted three questions certified to this Court from the United States District Court for the Eastern District of Tennessee concerning whether provisions in automobile insurance Lability policies that exclude coverage for bodily injury to household or family members of the insured are void as against Tennessee law or public policy. We conclude that such provisions are valid.

Pursuant to Rule 28 of the Tennessee Supreme Court, the United States District Court for the Eastern District of Tennessee has certified three questions to this Court. The questions arose in the course of a lawsuit brought by petitioner Janice W. Purkey (“Purkey”) against her automobile insurer, respondent American Home Assurance Company (“AHA”).

Background

Purkey’s complaint alleged the following facts. Purkey purchased an automobile insurance policy from an agent of AHA. The policy included liability coverage. On June 24, 2003, Purkey was a passenger in her insured vehicle when the driver negligently lost control of the car and struck a guardrail, injuring Purkey. Purkey submitted a claim to AHA seeking coverage for the injury she sustained in the accident. AHA refused the claim, citing an exclusion in the policy which provided, “We do not provide liability Coverage for any ‘insured’ for ‘bodily injury’ to you or any ‘family member.’ ” This type of exclusion is referred to as a “household” or “family” exclusion.

Purkey filed a class action complaint in Knox County Circuit Court seeking class action certification, injunctive relief, and a declaratory judgment that the exclusion was void as contrary to Tennessee law and public policy. AHA removed the case to the United States District Court, and the parties submitted cross motions for summary judgment. Prior to entering a ruling, the District Court issued a certification order certifying the following questions of law to this Court:

(1) Whether provisions in automobile insurance liability policies that exclude coverage for bodily injury to household or family members of the insured are void as contrary to Tennessee law or public policy as a result of the 1997 and 2001 amendments to the Tennessee Financial Responsibility Act.
(2) If the answer to (1) is yes, is coverage only required up to the specified statutory limits or to the policy limits?
(8) If the answer to (1) is yes, on what date did these provisions become void?

We accepted the certified questions. Because we answer the first question in the negative, we do not reach the second and third questions.

Analysis

This Court has twice held that household and family exclusion clauses in automobile insurance contracts are valid and enforceable. Dockins v. Balboa Ins. Co., 764 S.W.2d 529, 530 (Tenn.1989); Holt v. State Farm Mut. Auto. Ins. Co., 486 S.W.2d 734, 735 (Tenn.1972). Purkey argues that such household and family exclusions are no longer compatible with Tennessee public policy as expressed in the Financial Responsibility Law, Tennessee Code Annotated sections 55-12-101 to - 140 (2004), in light of a two-step development. First, Purkey notes that this Court has abolished intrafamily tort immunity. Broadwell by Broadwell v. Holmes, 871 S.W.2d 471, 476-77 (Tenn.1994) (greatly abrogating parent-child immunity); Davis v. Davis, 657 S.W.2d 753, 757-58 (Tenn.1983) (abolishing interspousal tort immunity). Second, Purkey argues that because the Legislature failed in its 1997 and 2001 amendments to the Financial Responsibility Law to permit household or family exclusions after our abolition of intrafamily immunity, such exclusions must be held invalid. AHA. counters that household and family exclusions do not violate long-established Tennessee law or public policy.

Insurance policies are contracts between the insurer and the insured and as such are subject to ordinary rules of contract interpretation. Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 814 (Tenn.2000). Contract provisions that are contrary to public policy may be invalidated. Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn.1998).

It is well-settled that the public policy of Tennessee “is to be found in its constitution, statutes, judicial decisions and applicable rules of common law.” Id (quotation and citations omitted). Because the determination of public policy is primarily a function of the Legislature, the judiciary may only determine public policy “in the absence of any constitutional or statutory declaration.” Id. (citation omitted). The General Assembly has legislated extensively in the area of automobile insurance. See, e.g., Tenn.Code Ann. § 55-12-122 (2004); id. §§ 56-7-1101 to -1305 (2000). Before turning to an analysis of the pertinent statutes, however, we review briefly the abolition of intrafamily tort immunity upon which Purkey predicates her argument.

Abolition of Intrafamily Tort Immunity

Until relatively recently, the common law prevented family members from suing each other in tort. Interspousal tort immunity was predicated on the longstanding concept that there was a “unity of interest of husband and wife in each other’s respective rights and duties.... ” Davis, 657 S.W.2d at 754 (quoting Tobin v. Gelrich, 162 Tenn. 96, 34 S.W.2d 1058, 1058 (1931)). Parent-child immunity, a more recent development, was based upon the notion of preserving family peace coupled with the parent’s right to discipline and control his or her child. See Barranco v. Jackson, 690 S.W.2d 221, 223 (Tenn.1985) (Drowota, J., dissenting). Following the modern trend, this Court eliminated interspousal tort immunity in 1983 in Davis, 657 S.W.2d at 757-58, and greatly limited parent-child immunity eleven years later in Broadwell, 871 S.W.2d at 476-77.

One practical effect of intrafamily tort immunity was to act as a sort of exclusionary clause. If a husband’s negligent operation of the family auto inflicted injuries on the wife, for example, the wife simply could not bring suit against the husband to collect on the auto liability policy. In Davis, this Court acknowledged that abolition of spousal immunity would affect insurance coverage, suggesting that, “to the extent that insurance companies may fear collusive actions, they have the right to protect themselves by either restricting the scope of their coverage or adjusting premiums accordingly.” 657 S.W.2d at 758 (quoting Luna v. Clayton, 655 S.W.2d 893, 897 (Tenn.1983)); see also Dockins, 764 S.W.2d at 530 (“the Legislature ha[s] not required the carrier to provide coverage in situations that it unquestionably could exclude from liability coverage, namely, injuries to the insured caused by his own negligence or that of a family member or permittee.”).

Notwithstanding this Court’s statements in Davis and Dockins, Purkey argues that the abolition of intrafamily tort immunity makes it impermissible to treat family members as a single unit for automobile tort purposes. Because household and family exclusions in automobile insurance policies essentially restore the immunity between family members, she argues that they must be void in light of Dams and Broadwell, unless the Legislature has acted specifically to permit them. She argues that because the Legislature has not so acted, the exclusions violate Tennessee public policy as expressed in the Financial Responsibility Law. We turn next to an examination of that law.

Financial Responsibility Law

Tennessee first enacted a Financial Responsibility Law in 1949. 1949 Tenn. Pub. Acts ch. 75 (effective July 1, 1949); see also The Tennessee Motor Vehicle Financial Responsibility Act, 21 Tenn. L.Rev. 341, 842 (1950). The current law was enacted in 1977, see Tenn.Code Ann. § 55-12-101, but its core provisions are largely unchanged from the 1949 law. Compare 21 Tenn. L.Rev. at 342-43 with Tenn.Code Ann. §§ 55-12-104-05.

Briefly, the Financial Responsibility Law requires motorists who have been involved in an accident where anyone is killed or injured, or an accident resulting in more than $400 in damage to the property of any one person, to show proof of financial responsibility. Tenn.Code Ann. § 55-12-105; see also id. § 55-12-139. Failure to comply can result in revocation of the motorist’s license and registration. Id. § 55-12-105. As amended in 2001, the law requires drivers to provide proof of financial responsibility to an officer at the scene of an accident or a moving violation. Id. § 55-12-139(b). Failure to comply is a Class C misdemeanor punishable by a fine of up to $100. Id. § 55-12-139(e).

The purpose of Tennessee’s Financial Responsibility Law is to protect innocent members of the public from the negligence of motorists on the roads and highways. Specifically, “[t]he financial responsibility laws of this State are concerned with the ability of an automobile driver to pay for bodily injury and property damage for which he may be legally liable.” Schultz v. Tenn. Farmers Mut. Ins. Co., 218 Tenn. 465, 404 S.W.2d 480, 484 (1966). The Financial Responsibility Law is not, however, a compulsory insurance law. McManus v. State Farm Mut. Auto. Ins. Co., 225 Tenn. 106, 463 S.W.2d 702, 703 (1971). Although the law applies to “every vehicle subject to the registration and certificate of title provisions,” Tenn.Code Ann. § 55-12-139(a) (eff. Jul. 1, 2005), as we have previously explained,

the Legislature stopped short of requiring public liability insurance as a condition precedent to the owning or operating of a motor vehicle. The sanctions of this statute are not involved unless and until the owner or operator is involved in an accident resulting in bodily injuries or property damage in excess of $[400.00]; until such occurs a person is at liberty to own and operate a motor vehicle without any insurance coverage or with as little insurance coverage as desired.

Id.

Although the Financial Responsibility Law does not, by its express terms, require drivers to obtain liability insurance in order to comply, the Law clearly contemplates that most drivers will comply by purchasing liability insurance. For this reason, the Financial Responsibility Law also sets forth requirements for the contents of motor vehicle liability policies. Tenn.Code Ann. § 55-12-122. The law requires that motor vehicle liability policies “shall insure the person named therein, and any other person using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle-” Id. § 55-12-122(a).

Purkey argues that because the Financial Responsibility Law sets forth a public policy in favor of compensating all innocent victims of motorists’ negligence, it contravenes that public policy to exclude from liability insurance policies an innocent class of victims, namely, the family and household members of a negligent driver. Although the Financial Responsibility Law establishes a public policy in favor of compensating innocent victims, it does not establish a policy in favor of all-inclusive insurance coverage for the following reasons.

First, although the Financial Responsibility Law evinces a preference for liability policies, as we have stated, it does not by its plain terms require them. Rather, it requires drivers involved in accidents or cited for moving violations within the terms of the statute to show proof of financial responsibility. As of January 1, 1990, proof of financial responsibility is defined as:

(i)A written proof of liability insurance coverage provided by a single limit policy with a limit of not less than sixty thousand dollars ($60,000) applicable to one (1) accident;
(ii) A split-limit policy with a limit of not less than twenty-five thousand dollars ($25,000) for bodily injury to or death of one (1) person, not less than fifty thousand dollars ($50,000) for bodily injury to or death of two (2) or more persons in any one (1) accident, and not less than ten thousand dollars ($10,000) for damage to property in any one (1) accident;
(iii) A deposit of cash with the commissioner in the amount of sixty thousand ($60,000); or
(iv) The execution and filing of a bond with the commissioner in the amount of sixty thousand dollars ($60,000).

Tenn.Code Ann. § 55-12-102(12)(C). As this statute demonstrates, it is not necessary to prove that one has coverage for all possible victims. Rather, it is simply necessary to prove that one has a policy or other means of satisfying the above provisions. Doing so puts a motorist in compliance with the Financial Responsibility Law for all purposes, including compliance with the misdemeanor provisions.

Second, the Financial Responsibility Law is not the only source of public policy with regard to insurance contracts. The Financial Responsibility Law resides in Title 55 of the Tennessee Code, which covers “Motor and Other Vehicles.” However, automobile insurance is also covered by Title 56 of the Tennessee Code, which is applicable to all insurance contracts in the state of Tennessee, including automobile liability policies. Among its many provisions, Title 56 includes the following:

Notwithstanding any other provision of law to the contrary, an insurer may exclude coverage pursuant to a contractual agreement; provided, that such exclusion complies with this title.

Tenn.Code Ann. § 56-7-121 (2000). This section was initially enacted in 1995, one year after our decision in Broadwell completed the elimination of intrafamily tort immunity. We see nothing in Title 56, and Purkey points us to no provision in Title 56, that allows us to conclude that family or household exclusions do not comply with that title.

Purkey nonetheless argues that permitting family or household exclusions contravenes the express terms of section 55-12-122(a) that liability policies “shall insure the person named therein, and any other person using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law.” (Emphasis added.) She also argues that because the Financial Responsibility Law specifically excludes from its coverage employees and those covered by workers’ compensation, see id. § 55-12-122(d), we must infer under the doctrine of expressio unis est exclusio alterius (the expression of some is the exclusion of others) that no other exclusions are permitted.

While we agree with Purkey that family and household exclusions might arguably seem contrary to the legislative intent expressed in the Financial Responsibility Law, we are nevertheless constrained by section 56-7-121. The wording of that section is particularly strong: exclusions are permitted “[njotwithstanding any other provision of law to the contrary.” Tenn.Code Ann. § 56-7-121 (emphasis added). Moreover, the provision is not limited by its terms to Title 56. Id.

By stating that section 56-7-121 controls “notwithstanding” any contrary provisions, the Legislature clearly intended for this provision to trump all others. Representative Rhinehart explained the effect of the section when the bill in which it was contained came before the House for a final vote:

the [section] maintains affordability of insurance by affirming the validity of coverage. It furthers Department of Insurance anti-fraud efforts and it preserves the freedom to contract. This is an important piece of legislation if we are to maintain affordable rates for homeowners and automobile insurance. Insurance contracts have a commonsense exclusion designed specifically to combat fraud and collusion and to keep premiums affordable.

Tape H-67, 99th Gen. Assem., 1995 (Apr. 26, 1995) (Statement of Rep. Rhinehart re: HB1303). This statement bolsters our conclusion that section 56-7-121 was intended to permit the very exclusions Pur-key challenges here.

The Legislature amended the Financial Responsibility Law in 1997 and again in 2001. None of the amendments related in any way to household exclusions. See 1997 Pub. Acts ch. 394, § 1 (restricting insurers from cancelling a policy based on an accident in which the insured was not at fault); 2001 Pub. Acts ch. 292, § 1 (various provisions intended to increase compliance with the law, including making failure to comply a misdemeanor). Purkey reasons that because these amendments were the first changes to the Financial Responsibility Law after this Court’s decisions in Davis and Broadwell, and because the Legislature did not enact provisions specifically permitting household and family exclusions, the Legislature intended to disallow them. We disagree.

This Court and the appellate courts of this state have consistently held that family exclusions are valid and not contrary to public policy. Dockins, 764 S.W.2d at 530; Holt, 486 S.W.2d at 735; see also Nat’l Ins. Ass’n. v. Simpson, 155 S.W.3d 134, 138 n. 1 (Tenn.Ct.App.2004) (perm. app. denied Dec. 6, 2004); Setters v. Permanent Gen. Assurance Corp., 937 S.W.2d 950, 952-53 (Tenn.Ct.App.1996); Dressler v. State Farm Mut. Auto. Ins. Co., 52 Tenn.App. 514, 376 S.W.2d 700, 702 (1963). Additionally, section 56-7-121, which gives broad authority for exclusionary clauses, was enacted in 1995, prior to the 1997 and 2001 amendments upon which Purkey relies. Because we assume that the Legislature is aware of the state of the law, Still v. First Tenn. Bank, N.A., 900 S.W.2d 282, 285 (Tenn.1995), we must also assume that, rather than silently intending to work a major change in this state’s insurance law, the Legislature by its silence intended to preserve the status quo permitting family and household exclusions. Of. id. at 284 (holding that where statute conflicted with previously-enacted statute which controlled “notwithstanding any provisions of law to the contrary,” later statute did not repeal earlier statute by implication).

Faced with the above Tennessee statutory and case law, Purkey urges this Court to adopt the rationale of many of our sister states that have held family and household exclusions void as against public policy. See, e.g., Mut. of Enumclaw Ins. Co. v. Wiscomb, 97 Wash.2d 203, 643 P.2d 441, 444-45 (1982) (exclusions void because they “exclude[ ] from protection an entire class of innocent victims for no good reason” and because such clauses are not truly bargained-for; rather, they are a “take-it-or-leave-it proposition”); see also Kaiama v. AIG Hawai’i Ins. Co., 84 Hawai'i 133, 930 P.2d 1352, 1355 (1997); Estep v. State Farm Mut. Auto. Ins. Co., 103 N.M. 105, 703 P.2d 882, 885-87 (1985). However, while we do not find the reasoning in these cases to be without merit, we simply are not at liberty to ignore the clear policy articulated by the General Assembly in favor of exclusions in section 56-7-121.

Finally, Purkey argues that family and household exclusions have the effect of shifting health care costs for household members from automobile insurers to private health insurers and TennCare. AHA and amicus counter that forcing auto insurers to cover currently excluded medical costs will drive up auto insurance premiums. The choice of who will bear the burden for medical costs associated with automobile accidents is, however, a policy choice for the Legislature and not for this Court. We must assume that the Legislature considered the impact of exclusions on insureds as well as on insurers and decided that the public policy of this state is best served by broadly permitting exclusions in insurance contracts.

Conclusion

After considering the applicable authority and the arguments of the parties, we conclude that family or household exclusions in automobile liability insurance policies do not violate Tennessee law or public policy. We therefore answer the first certified question in the negative and do not reach the second and third questions.

Costs of the appeal shall be assessed equally among the parties, Janice W. Pur-key and American Home Assurance Company.

      . Or, under the 2001 amendments, until the driver is charged with a moving violation. Tenn.Code Ann. § 55-12-139(b).

      . The legislature again amended the Financial Responsibility Act, after this case was briefed and argued. However, the amendments are not relevant to our analysis. See 2005 Pub. Acts ch. 401 (eff. Jul. 1, 2005) (providing that Act applies to all vehicles subject to registration and title provisions and providing a grace period for soldiers returning from duty overseas).