Opinion
4:22-cv-140-MTS
03-01-2024
SHAWN M. PERRY, et al., Plaintiffs, v. ST. LOUIS COUNTY, et al., Defendants.
MEMORANDUM AND ORDER
MATTHEW T. SCHELP UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff's Motion for Appointment of Defendant Ad Litem, Doc. [74]. For the reasons that follow, the Court will deny Plaintiff's Motion.
I. Background
Defendant James Ellis (“Defendant” or “Decedent”) is a former police officer for St. Louis County who allegedly entered Plaintiff Shawn Perry's residence on June 8, 2017, without a search warrant or probable cause and conducted an interior search of the residence before arresting Plaintiff Perry and Mr. Shigemura for outstanding traffic warrants and endangering the welfare of a minor. Id. ¶¶ 7, 19, 55-62. Shortly thereafter, Plaintiff's children were placed in custody of the Division of Social Services. Id. ¶ 77. Plaintiff alleges these actions infringed on her protected rights. Id. ¶ 135.
Two years later, on October 11, 2019, Defendant Ellis died. Docs. [70], [70-1], [74] ¶ 4. Plaintiff submitted Decedent's “Self-Insurance Policy of St. Louis County, Missouri,” as proof of insurance for the purposes of appointing a defendant ad litem. Doc. [75-1]. In doing so, Plaintiff seeks to appoint an “agent, designee, or corporate representative” of St. Louis County as a defendant ad litem to serve as a qualified person in place of deceased Defendant Ellis, pursuant to Mo. Rev. Stat. § 537.021,to allow recovery from the deceased's insurer or indemnifier-St. Louis County. Doc. [74] ¶¶ 8, 11.
Plaintiff's Memorandum in Support of the Motion includes what appears to be a typographical error listing Mo. Rev. Stat. § 537.01 instead of Mo. Rev. Stat. § 537.021. See Doc. [74] ¶¶ 6-7.
II. Discussion
Missouri law permits the appointment of a defendant ad litem in cases where “a deceased wrongdoer was insured against liability for damages for wrongdoing and damages may be recovered from the wrongdoer's liability insurer.” Mo. Rev. Stat. § 537.021.1(2). However, if “the deceased tortfeasor is uninsured” against liability, then the Court “will appoint a personal representative to stand in place of the deceased in the proceedings.'” Am. Home Assur. Co. v. Pope, 487 F.3d 590, 605 (8th Cir. 2007) (citing Mo. Rev. Stat. § 537.021.1(2)). The purpose of the defendant ad litem is to “serve and act as the named party defendant,” Mo. Rev. Stat. § 537.021.1(2), with the appointment of a defendant ad litem being permitted in cases where “the injured party seeks recovery from the insurer only.” Pope, 487 F.3d at 605.
Here, the appointment of a defendant ad litem is improper because the deceased is self-insured which is not considered a form of insurance in this context. The U.S. Court of Appeals for the Eighth Circuit, along with this Court and “a majority of jurisdictions,” have adopted the view that “self-insurance [is] not insurance.” See U.S. Fid. & Guarantee Ins. Co. v. Com. Union Midwest Ins. Co., 430 F.3d 929, 937-38 (8th Cir. 2005) (quoting Consol. Edison Co. of N.Y., Inc. v. Liberty Mut., 749 N.Y.S.2d 402, 404 (N.Y. Sup. Ct. 2002)). Here, the insurance policy's title alone, Self-Insurance Policy, is illustrative that the policy in insufficient for the Court to appoint a defendant ad litem. This Court's decision in Burton v. St. Louis Board. of Police Commissioners reinforces this conclusion. See 4:10-cv-1540-TCM, 2011 WL 620832 (E.D. Mo. Feb. 11, 2011). In Burton, this Court found that the State Expense Legal Fund utilized by the City of St. Louis to provide “coverage and indemnification for any judgment against state employees” was “not insurance.” See 2011 WL 620832, at *1, 3; see also Armine v. Brooks, 2:04-cv-04300-NKL, 2005 WL 8158744, at *1 (W.D. Mo. Apr. 6, 2005) (holding that the Legal Expense Fund is not insurance (citing Casady v. Bd. of Governors of Ne. Mo. State Univ., 875 S.W.2d 909 (Mo.Ct.App. 1994))); see also Kesterton v. Wallut, 175 S.W.3d 675, 684 (W.D. Mo. Dec. 7, 2004) (determining that “when coupling the language of the [Missouri] statutes with Casady, the [Missouri State Legal Expense] Fund is not insurance”). Like the State Expense Legal Fund in Burton, here, Decedent's Self-Insurance Policy declares its purpose is to “provide a fund and adequate protection for payment of tort claims against County and present and former County officials, officers, [etc.]” Doc. [75-1] at 1. Therefore, the Self-Insurance Policy, similar to the State Expense Legal Fund, is not insurance, and the prerequisites for appointing a defendant ad litem are not present.As such, the Court will deny Plaintiff's Motion.
Plaintiff only puts forward an “agent, designee, or corporate representative” of St. Louis County to be appointed defendant ad litem. Doc. [74] ¶ 11. However, St. Louis County is not a “qualified person” for appointment because St. Louis County is Decedent's liability insurer. See Youell v. Corr. Med. Servs., Inc., 4:10-cv-1180-TIA, 2010 WL 5088221, at *2 (E.D. Mo. Dec. 8, 2010) (finding that Missouri courts have “rejected representation by a decedent's liability insurance as a defendant ad litem” (citing McConnell v. Kelly, 860 S.W.2d 362, 364 (Mo.Ct.App. 1993))).
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Appointment of Defendant Ad Litem, Doc. [74], is DENIED.