Where an insurer argued that a commercial general liability policy did not cover an accident in which the insured, the owner operator of a fast-food franchise, was sued by a pedestrian struck by the managing member of the insured who was returning from a bank at the time of the accident, the district court did not properly apply the dual purpose doctrine because it made no finding that the trip to the bank was a necessity where the managing member had gone to the bank on a personal errand and been handed deposit bags by a bank employee, and the appellate court finds that picking up the bags was not a necessity in this case, so the trip did not have a dual purpose and the managing member was not acting in the course of business, so the insurer was entitled to summary judgment on the coverage issue, but the district court properly found that the defendants were not entitled to summary judgment on the basis of collateral estoppel.
Opinion concurring in part; dissenting in part by Bye, J. : “I disagree, however, with the majority’s application of the dual purpose doctrine to the undisputed facts of this case. I therefore respectfully dissent from the decision to reverse the summary judgment granted to Brash Tygr on the coverage issue.
“As the majority acknowledges, under Missouri’s dual purpose doctrine ‘[i]t is enough that some one would have had to make the trip to carry out the business mission.’…The majority claims Brash Tygr submitted no evidence that some Sonic employee would have had to make a trip to the bank for the deposit bags if Tyler Roush had not done so. To the contrary, the fact that Brash Tygr representatives periodically went to the bank to retrieve the Sonic bank deposit bags was undisputed. Indeed, Hudson specifically admitted that fact in the summary judgment proceedings.”
Judgment is reversed and remanded.
Hudson Specialty Insurance Company v. Brash Tygr, LLC (MLW No. 67012/Case No. 13-1688/13-1742 – 18 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Western District of Missouri, Hays, J. (Dale Lee Beckerman, Kansas City, Missouri, argued for appellant; Meghan Lewis appeared on the brief) (Michael W. Blanton, Evergreen, Colorado, argued for appellee; Lawrence Benjamin Mook appeared on the brief).
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