## Facts

- John Herrera was injured in an automobile accident involving a car owned by Paul A. Reicher, Sr. (Reicher) and driven by Reicher’s son, Paul A. Reicher, Jr. (Paul).
- Paul was under 16 years old at the time of the accident.
- Reicher had an automobile liability insurance policy issued by American Family Mutual Insurance Company (American Family) covering the vehicle.
- In an earlier tort case, Herrera sued Paul for negligent driving and sued Reicher for negligent entrustment.
- The negligent-entrustment claim against Reicher was submitted under a verdict-directing instruction (Instruction Seven) requiring the jury to find seven separate propositions in Herrera’s favor; one proposition asked whether Paul had Reicher’s permission to drive at the time of the accident.
- The jury returned a verdict awarding Herrera $8,000 against Paul but found in favor of Reicher on the negligent-entrustment claim; the verdict did not state which proposition(s) in Instruction Seven the jury rejected.
- After the tort judgment became final, Herrera filed the present action against Reicher and American Family seeking to collect the $8,000 judgment under Missouri’s direct action statute, Mo. Rev. Stat. § 379.200.
- American Family’s obligation to pay depended on whether Paul was a permissive user of the insured vehicle at the time of the accident.
- Before filing a responsive pleading, Reicher and American Family moved for summary judgment, arguing collateral estoppel barred relitigation of permission because Reicher had prevailed in the negligent-entrustment trial.
- The parties submitted affidavits addressing permission; the affidavits did not eliminate dispute about whether Paul had express or implied permission.
- The trial court granted summary judgment for Reicher and American Family, and Herrera appealed.

## Issues

1. Whether the prior general verdict for Reicher on negligent entrustment collaterally estopped Herrera from litigating, in a later § 379.200 action, whether Paul had permission to use the car.
2. Whether summary judgment was proper when the summary-judgment record left a real factual dispute about express or implied permission.

## Decision

- The Missouri Court of Appeals, Western District, reversed the summary judgment and remanded.
- Collateral estoppel did not apply because the general verdict for Reicher did not necessarily decide the permission question; the verdict could have rested on any of multiple independent propositions submitted in Instruction Seven.
- Summary judgment was improper because the record, including the affidavits, did not settle the permission issue (especially implied permission) and therefore left a genuine dispute of material fact.
- Reicher’s alternative motion to dismiss for failure to state a claim was not ruled on by the trial court; it remained pending on remand, and the appellate court expressed no view on its merits.

## Legal Principles

- Summary judgment is a severe remedy and must be denied if the record, viewed most favorably to the nonmovant, leaves even slight doubt about a material fact that has probative force on a controlling issue.
- Collateral estoppel (issue preclusion) applies only to an issue that was actually litigated and necessarily determined in the prior proceeding.
- A general verdict for a defendant does not establish which element the jury rejected when the verdict-directing instruction required findings on multiple propositions; in that situation, no single proposition is treated as conclusively determined for later litigation.
- When insurance coverage turns on “permission” to use the vehicle, implied permission may be a fact question; it cannot be resolved by summary judgment if competing inferences remain from the record.

## Conclusion

Because the earlier negligent-entrustment verdict was a general verdict that could have been based on any of several propositions in the instruction (not necessarily lack of permission), Herrera was not barred from litigating whether the underage driver had permission for purposes of coverage in the § 379.200 action; and because the summary-judgment materials did not remove factual dispute over express or implied permission, the appellate court reversed and remanded for further proceedings.


Herrera v. Reicher, 608 S.W.2d 539 (1980)