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Insurance : Equitable Garnishment – Post-Judgment Interest – Affirmative Defense

Where plaintiffs settled a wrongful death and personal injury case against the Missouri Highway and Transportation Commission and one of its subcontractors after a car fell through a hole in a bridge, and the plaintiffs then brought an equitable judgment action against the defendants’ insurer after it refused to pay the consent judgment, the trial court did not err in finding that the plaintiffs met their burden to prove coverage under the commercial general liability policy, but the insurer did not plead ultimate facts in support of its affirmative defense attacking the wrongful death portion of the settlement, so the court erred in finding that the amount was unreasonable, and the judgment also erroneously awarded interest from the time of the consent judgment, which was two years after the judgment was entered.

Judgment is affirmed in part; reversed in part.

Peterson v. Discover Property & Casualty Insurance Company (MLW No. 67341/Case No. WD76852 – 34 pages) (Missouri Court of Appeals, Western District, Witt, J.) Appealed from circuit court, Buchanan County, Jackson, J. (Edwin H. Smith, St. Joseph, for  appellants) (Thomas H. Davis, Kansas City, Missouri, for respondent).

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