Hawkeye-Security Insurance v. Bunch (740 F. Supp. 2d 1072, 2010)

MEMORANDUM AND ORDER

E. RICHARD WEBBER, District Judge.

This matter comes before the Court on a Non-Jury Trial held in this case on January 11-13, 2010. The Parties filed Post-Trial Briefs [docs. # 127, 128], and Responses to said Trial Briefs [docs. # 131, 133],

This case arises out of a dispute between former employees of Total Lock & Security, Inc. (“Total Lock”) and The Installers Company (“Installers”) (when discussed interchangeably, “Total Lock/Installers”) and Total Lock/Installers’ insurers, regarding insurance coverage. On November 26, 2007, Defendant Daniel Henry Brandt, II (“Mr. Brandt”) was driving a Total Lock company vehicle that had been assigned to Defendant Donald A. Bunch (“Mr. Bunch”) and Defendant Patricia A. Bunch (“Mrs. Bunch”), when he was involved in an accident. Mr. Bunch was a passenger in the vehicle, and was seriously injured.

Mr. Bunch and Mrs. Bunch filed a Petition for Personal Injury/Automobile Accident in the Circuit Court of Jefferson County, Missouri, against two defendants, including Mr. Brandt. Plaintiffs Hawk-eye-Security Insurance Company and the Midwestern Indemnity Company then filed this declaratory judgment action, seeking a declaration that there is no coverage for Mr. Brandt and no underinsured coverage for Mr. Bunch arising out of the November 26, 2007 automobile accident.

I. FINDINGS OF FACT

A. TESTIMONY OF OFFICER CHARLES CARY HOUSTON

On November 26, 2007, at 7:36 p.m., Officer Houston was dispatched to a two-car automobile collision at the intersection of Highway A and Bradley Street in Festus, Missouri. The accident involved a Ford F-250 pickup and a 2004 white Jeep Liberty (“Jeep Liberty”), driven by Mr. Brandt. (Trial Tr. 1-11-2010 P.34 L.12P.35 L.22) (Plaintiffs’ Exhibit No. 5). Mr. Bunch was a passenger in the Jeep Liberty. (Trial Tr. 1-11-2010 P.35 L.23-P.36 L.3). When Officer Houston approached the Jeep Liberty, he detected the odor of alcohol on Mr. Brandt’s breath. Officer Houston asked Mr. Brandt “if he had anything to drink.” Mr. Brandt told Officer Houston that “he had one beer earlier tonight.” (Trial Tr. 1-11-2010 P.36 L.24P.37 L.6).

After smelling alcohol on Mr. Brandt’s breath at the scene of the accident, Officer Houston looked directly into Mr. Brandt’s eyes, and “noticed that they were glassy and had a watery look to them and they were bloodshot.” (Trial Tr. 1-11-2010 P.37 L.14-16). Officer Houston asked Mr. Brandt to take three field sobriety tests, the first of which was the “horizontal gaze nystagmus test,” in which the officer watches eye movement to determine if there is an involuntary twitching of the eyes. Officer Houston concluded that “he showed six clues, three in each ... eye. He had no smooth pursuit. He had distinct and sustained nystagmus. He had maximum deviation. And he ... showed onset of nystagmus prior to 40 degrees in each eye.” Officer Houston testified that these results “[i]ndicate[ ] that he’s intoxicated.” (Trial Tr. 1-11-2010 P.39 L.l-P.40 L.3). Officer Houston next administered the “one leg stand test.” According to Officer Houston, in that test, Mr. Brandt demonstrated the following clues: “swayed wide balancing, used his arm for balance, and he put his foot down four times during the test.” In the third test, which the officer again described as the “one leg stand” (obviously meaning “heel to toe test”), Officer Houston observed “three out of eight clues that we’re looking for,” specifically Mr. Brandt “failed to maintain heel to toe stance, los[t] his balance while turning improper turn, and he took an incorrect number of steps on his first line of steps.” (Trial Tr. 1-11-2010 P.40 L.4-15). Additionally, Officer Houston said that Mr. Brandt used profanity throughout the time they were talking, and that he detected a “strong odor of alcohol” on Mr. Brandt’s breath. (Trial Tr. 1 — 11— 2010 P.40 L.16-P.41 L.12).

Officer Houston then arrested Mr. Brandt and put him in the patrol ear. (Trial Tr. 1-11-2010 P.41 L.13-22). After Mr. Bunch, who was “obviously injured,” was removed from the accident scene and taken to the hospital by ambulance, Officer Houston transported Mr. Brandt to a police station. At 8:12 p.m., Officer Houston administered a breathalyzer test on Mr. Brandt, which recorded a reading of 0.196, more than twice the legal limit for intoxication. Officer Houston testified that Mr. Brandt was “obviously intoxicated.” (Trial Tr. 1-11-2010 P.41 L.23-P.43 L.3). After Officer Houston gave Mr. Brandt a Miranda warning, he confessed to having four beers as opposed to the one beer he admitted to earlier. He said he drank three beers at home, and one beer at Mr. Bunch’s mother’s house. (Trial Tr. 1 — 11— 2010 P.54 L.14-25).

B. TESTIMONY OF CHRISTOPHER LONG

Mr. Brandt claims that he did not consume sufficient alcohol prior to the accident to be intoxicated, and that he was not intoxicated at the time of the accident. To refute Mr. Brandt’s claim, Plaintiff called Christopher Long, a forensic toxicologist, with a Bachelor’s Degree in Chemistry, a Master’s Degree in Medical Biology, a second Master’s Degree in Pharmacology Toxicology, and a Doctorate Degree in Toxicology. (Trial Tr. 1-11-2010 P.56 L.12-P.57 L.5). Dr. Long looked at the results of Mr. Brandt’s breathalyzer test and reached various conclusions regarding the amount of alcohol that Mr. Brandt consumed on the day of the accident, and when that alcohol was consumed. (Trial Tr. 1-11-2010 P.62 L.16-21). He first discussed the behaviors associated with a blood alcohol concentration (“BAC”) of 0.09 to 0.25, explaining that “you’re showing loss of fine motor control, loss of gross motor control, you drop your drinks, slurring of speech, slurred speech, slow reaction time, this impairment of the eyes, color, distance and so forth. In fact, in this range is where you start to get double vision, and that is where each eye starts to function independently.” (Trial Tr. 1 — 11— 2010 P.67 L.20-P.68 L.5) (Plaintiffs’ Exhibit No. 4A). Dr. Long then discussed the behaviors associated with a BAC of 0.18 to 0.30, explaining that “people become very sedated at that point. They don’t want to do much. There’s gross inattention. There’s impairment of fine and gross motor control. But basically they just want to lay down and sleep it off.” (Trial Tr. 1-11-2010 P.68 L.12-19) (Plaintiffs’ Exhibit No. 4A).

Dr. Long testified that considering the accident occurred at 7:34 p.m., and the breathalyzer test was administered at 8:12 p.m., Mr. Brandt’s BAC at the time of the accident would have been approximately 0.207. Dr. Long further explained that this would mean that “over seven and one-half beers would have been in [Mr. Brandt] at the time of the accident. That does not include any time for metabolism.” He testified that the metabolism rate is 0.018 gram percent per hour. Incorporating this metabolism rate, Dr. Long testified that, considering his BAC at the time of the accident, it is not physically and scientifically possible for Mr. Brandt to have consumed the amount of beer he claims to have consumed on November 26, 2007: six beers in the morning, one beer from 3:30 to 5:00 and two beers between 5:00 and 7:30. To the contrary, in order to reach the BAC of Mr. Brandt at the time of the accident, Dr. Long testified that Mr. Brandt would have had to consume between six and eight additional drinks. (Trial Tr. 1-11-2010 P.76 L.3-P.77 L.7-78 L.16) (Plaintiffs’ Exhibit No. 21) (Plaintiffs’ Exhibit No. 22). Dr. Long gave convincing testimony.

C. TESTIMONY OF DANIEL HENRY BRANDT, II

Mr. Brandt lives at 333 Heritage Hills Drive, Arnold, Missouri, which is the home of Mr. and Mrs. Donald A. Bunch. He has lived with them for more than two years at this residence, and has “boarded with them at other residences of theirs.” (Trial Tr. 1-11-2010 P.112 L.21-113 L.21). He testified that he and the Bunches are very close and that, if possible, he would help them in any manner that was legal. He stated that he wishes the best for the Bunches, and believes that “the best for Donald would be a miraculous recovery.” He feels badly about the accident. After the accident, Mr. Brandt pled guilty to Driving While Intoxicated, and he testified that there was no question that at the time of the accident he was intoxicated. As a result of the accident, his license was suspended. Mr. Brandt was aware that Defendant Donald Bunch had received a DWI several years before the accident and, thus, could not drive for his employer. He believes that Mr. Bunch received his DWI five to seven years ago. (Trial Tr. 1 — 11— 2010 P.114 L.5-P.115 L.24).

Mr. Brandt began working as an installer with Total Loek/Installers, on June 14, 2007. As an installer, he went to various job sites, both new construction and preexisting buildings, installing door locks. (Trial Tr. 1-11-2010 P.116 L.1-P.118 L.3). Mr. Brandt testified that when he was hired by Gidget Fogerty, she explained that he was being hired by Total Lock, which owns Installers. She told him that he worked for Total Lock, but that on certain jobs he would be told to say that he works for Installers and not to mention Total Lock, while on other jobs he would be told to say he works for Total Lock and not to mention Installers. (Trial Tr. 1 — 11— 2010 P.159 L.3-17).

Mr. Brandt’s job at Total Lock required him to leave St. Louis, and when he was out of town, a vehicle would be assigned to him, and he would be designated as the driver of that vehicle. (Trial Tr. 1-11-2010 P.116 L.1-P.118 L. 3). While on the road, he was allowed to use the car for personal use, for example, to do laundry and to get groceries. (Trial Tr. 1-11-2010 P.118 L.4-15). Mr. Brandt stated that when he worked, he was assigned a vehicle or he sometimes rode with others. He was told that as long as he was working for Total Loek/Installers, he had access to the trucks, and once he was an authorized driver for one of the companies, he could operate any of their vehicles. Mr. Brandt testified that each employee was assigned an employee identification number to be used to “fill-up with gasoline.” (Trial Tr. 1-11-2010 P.159 L.18-P.160 L.22). He explained that when he was out on the road with other employees, any of the employees who were also authorized drivers could operate the company vehicles. (Trial Tr. 1-11-2010 P.161 L.l-13).

Mr. Brandt testified that typically, when returning from a job, he would return the car back to the lot, and then drive home. Sometimes, he would have someone drop him off at the lot before picking up the car, and then pick him up at the lot after the car was returned. (Trial Tr. 1-11-2010 P.121 L.25-P.122 L.15). He also testified that he did not always take the vehicle assigned to him back to the company, but occasionally took the vehicle home. No one ever told him he could not do that, and it was his understanding that this was permitted. He testified that “there was contact on our way back into St. Louis with someone at the office, and they gave instructions as to when we would be going out again and who was to keep the vehicle, and when they were to have it back for restock.” He said he took a vehicle home on two occasions and other times, he dropped it off. He said that other employees took vehicles home. (Trial Tr. 1 — 11— 2010 P.161 L.14-P.162 L.14). He claimed that in August or September, Gidget Fogerty’s nephew, also an installer, spoke with Gidget on the phone and then told Mr. Brandt that “one of the salespeople left a truck at the shop and I could use that, but it had to be back by Monday morning.” He claimed that Gidget permitted him to take that truck home, to get to and from work. (Trial Tr. 1-11-2010 P.121 L.25P.123 L.9).

Mr. Brandt testified that while he worked for Total Lock, no one gave him any written instructions on the use of company vehicles. (Trial Tr. 1-11-2010 P.166 L.10-13). At first, he stated that Eve Rone never gave him instructions on replenishing gas after using the vehicle. However, he was then shown his deposition testimony where he testified that she told him if he used the vehicle for personal use to be sure the gas was replenished, and he agreed that it was possible that he made that statement. (Trial Tr. 1 — 11— 2010 P.166 L.10-P.167 L.7). He said that Gidget Fogerty had told him that when he was out on the road he needed to take time away from work and get out to see the sights. He also testified that no supervisor at Total Lock/Installers told him that when he kept a company vehicle in St. Louis, he could not use that vehicle for personal errands. (Trial Tr. 1-11-2010 P.169 L.20-P.170 L.4).

Mr. Brandt testified that he understood that in 2007, he did not have permission to use or operate a company vehicle when he was drinking alcohol. He knew that the company had a zero tolerance rule for the use of company vehicles while drinking, and he knew that if he had been drinking he could not take a set of keys and get in one of their cars and drive. (Trial Tr. 1-11-2010 P.123 L.14-25). He assumed that if he drank alcohol, he would not have permission to drive one of the company vehicles. (Trial Tr. 1-11-2010 P.124 L.4P. 125 L.12).

At trial, Mr. Brandt denied that he took a leave of absence from his job sometime in October 2007. He testified that he merely requested “to come home for a week.” (Trial Tr. 1-11-2010 P.118 L.16-20). However, in his deposition testimony, Mr. Brandt testified that in October or November, he did request a leave of absence to spend time at home with his family. He stated during his deposition that he sent the request by fax to the company and “was granted that.” Then, at the trial in this case, he testified that he never took a leave of absence, and that he did not recall saying that he had requested a leave of absence in his deposition. (Trial Tr. 1-11-2010 P.118 L.21-P.119 L.25). He was asked, “[d]o you recall telling anyone at Total Lock on this last trip to Kansas, I believe it was, that you did not think this job was for you, and I’m not going to do this anymore. Have you ever had any conversation like that with anyone?” Mr. Brandt answered, “I had a conversation with one of the other installers. I’m not sure it was in Kansas. It might have been.” (Trial Tr. 1-11-2010 P.120 L.5-12). According to Mr. Brandt, the last time he was paid by the Total Lock/Installers was October 2007. He testified that he took time off in October and never again worked for Total Lock/Installers. He never thereafter drew another paycheck from them. (Trial Tr. 1-11-2010 P.120 L.l-4; P.220 L.20-P.121 L.2). He testified that he was told by Installers that they were working on finding a location for him to go out on. (Trial Tr. 1-11-2010 P.121 L.5-11).

On examination of Defendants’ counsel, Mr. Brandt testified that he began his employment with Total Lock on June 4, 2007, working the next four to five months out of town, with an occasional weekend at home. He said that after working those four or five months continuously out of town, he submitted a facsimile transmission, requesting time off at Thanksgiving, with one week off as soon as possible. That request was granted. When he returned to the company from his out of town job, Mike Noel drove him home. Mr. Brandt said that he contacted Eve Rone just before Thanksgiving, asking when he was going to be dispatched on his next assignment. He testified that Ms. Rone responded that she would get back to him as soon as it was convenient. (Trial Tr. 1-11-2010 P.154 L.25-P.156 L.16). He said that at no time before the accident did any supervisor, including Eve Rone, Joe Merx, John McGeehan, Michelle “Gidget” Fogerty, or anyone else at Total Lock/Installers, ever notify him that he had been terminated or that he no longer worked for Total Lock. He also said that, prior to the accident, no one from Total Lock/Installers had ever told him that they heard that he had quit. Mr. Brandt testified that, at the time of the accident, he believed that he was still employed by Total Lock, and that he had authority to drive Total Lock vehicles. (Trial Tr. 1-11-2010 P.156 L.17P.157 L.13).

The automobile accident occurred on November 26, 2007. A few days before the accident, Mr. Brandt was staying at a Comfort Inn hotel that was located near the Bunches’ home. On November 25, 2007, the Bunches picked Mr. Brandt up from the hotel, and he stayed at their home that night. In his deposition, Mr. Brandt stated that it was Mr. Bunch who picked him up from the hotel, but at trial he testified that his deposition testimony was mistaken and it was Mrs. Bunch who drove the car from the Comfort Inn to the Bunch residence. (Trial Tr. 1-11-2010 P.126 L.21-P.128 L.15). However, Mr. Brandt was very specific in his deposition testimony, stating on page 29, lines 13-25 of his deposition transcript, “[actually, I would like to change that, because there was one instance that I observed Don driving the vehicle[, on] November 25th.” (Trial Tr. 1-11-2010 P.129 L.14-18). Mr. Brandt further testified in his deposition that Mr. Bunch “picked me up from the hotel and brought me [to the Bunches’ house]” on the day before the accident. When asked the type of vehicle Mr. Bunch drove, Mr. Brandt replied, “[i]t was a Jeep Liberty.” At trial, Mr. Brandt admitted that he was changing his deposition testimony, “[a]s far as Don being the one driving.” (Trial Tr. 1-11-2010 P.130 L.19P.131 L.4).

Mr. Brandt was staying at the Comfort Inn instead of at the Bunches’ house because they had some family members visiting and, as he testified, “there’s still some animosity between me and a couple of the family members.” (Trial Tr. 1-11-2010 P.131 L.9-17). After leaving the hotel on November 25, 2007, he believes he arrived at the Bunch home around 8:20 or 8:25 p.m. He testified that while he was staying at the hotel, he had purchased a thirty-pack of beer, and he transported it in the Jeep Liberty from the hotel to the Bunch house in a cooler. He testified, “I removed my bags and I removed the cooler, and put [the beer] in the refrigerator.” He said the refrigerator was in the garage, where they kept the beer and alcohol. He testified that the Bunches did not typically keep beer on hand, and that Mr. Bunch “very seldomly” drank. (Trial Tr. 1 — 11— 2010 P.133 L.22-P.135 L.15).

Mr. Brandt testified that he went to bed on November 25, 2007, and awoke the next day around 10:00 a.m. He testified that he had a couple of beers and noticed that the Bunches were moving around, preparing to leave for Washington D.C. the next day. They were doing laundry and repacking the truck. When asked again about the number of beers he had between 10:00 a.m. and 12:00 p.m., he said “[i]t couldn’t have — I would say anywhere between four and six. I didn’t count.” He agreed that it was quite possible that he drank six beers. At some point between 12:00 and 12:30 p.m., he laid down and took a nap. (Trial Tr. 1-11-2010 P.135 L.24-P.136 L.22). Mr. Brandt testified that he did not feel he was under the influence of alcohol when he went to sleep, but when later asked by counsel if he felt intoxicated before his nap, Mr. Brandt responded, “[a] little bit. A little woozy.” He awoke from his nap between 3:00 and 3:30 p.m., at which time he said he felt fine. (Trial Tr. 1-11-2010 P.138 L.19-25; P.171 L.10-14).

Mr. Brandt said he then went downstairs for dinner, finishing at about 4:00 p.m. Between 4:00 and 6:30 p.m., he helped Mr. Bunch reload the truck, during which time he opened another beer. He testified that he only had one more beer after he woke up from his nap. Around 6:00 or 6:30 p.m., Mrs. Bunch asked Mr. Brandt to drive Mr. Bunch to Mr. Bunch’s mother’s house. Mr. Brandt did not want to go to Mr. Bunch’s mother’s house because she and Mr. Brandt did not get along, but he eventually agreed. (Trial Tr. 1-11-2010 P.139 L.4-P.140 L.25). Mr. Brandt also testified that Mrs. Bunch also asked him to stop to fill up the Jeep Liberty so that they would be ready to leave on their trip to Washington D.C. the next day. (Trial Tr. 1-11-2010 P.170 L.7-17). Mr. Brandt testified that when Mrs. Bunch asked him to drive, he knew that he did not have permission to drive a company vehicle after drinking. (Trial Tr. 1-11-2010 P.141 L.8-15). Mr. Brandt testified that he is sure that Mrs. Bunch did not see him drink the one beer he had between the time when he woke up from his nap and when Mrs. Bunch asked him to take Mr. Bunch to his mother’s house. He stated that Mrs. Bunch asked him to drive Mr. Bunch because she had laundry to attend to, and because she was tired. (Trial Tr. 1-11-2010 P.171 L.10-P.172 L.7).

Mr. Brandt testified that it took approximately 20 to 25 minutes to get from the Bunches’ home in Arnold, Missouri to Mr. Bunch’s mother’s home in Hillsboro, Missouri. (Trial Tr. 1-11-2010 P.144 L.7-18). When they arrived at Mr. Bunch’s mother’s home, Mr. Brandt drank two beers while sitting around the kitchen table, which Mr. Bunch observed. The men were at Mr. Bunch’s mother’s home for approximately fifteen minutes. Before leaving, they took two additional beers with them, placing them in a cooler in the Jeep Liberty. Mr. Brandt testified that neither he nor Mr. Bunch drank those two beers. (Trial Tr. 1-11-2010 P.146 L.14P.148 L.15). They departed at approximately 7:10 p.m. (Trial Tr. 1-11-2010 P.145 L.14-22).

The automobile accident occurred at about 7:36 p.m. on November 26, 2007, approximately fifteen or twenty minutes after Mr. Brandt and Mr. Bunch left the home of Mr. Bunch’s mother. (Trial Tr. 1-11-2010 P.144 L.19-P.145 L.13). Mr. Brandt admitted that on November 26, 2007, he drank nine beers between the time when he woke up (10:00 a.m.), and the time of the accident (7:36 p.m.). (Trial Tr. 1-11-2010 P.148 L.19-P.149 L.18). Mr. Brandt testified that if, as suggested by the toxicologist, he had consumed six to nine additional beers before leaving the Bunch house, he knew not to get into the car with the keys. He also knew that he would not have had permission from Total Lock/Installers to drive their car that night. He said he knew that when he was at Mr. Bunch’s mother’s house, after drinking two beers, he would not have permission to drive the vehicle, because he was drinking beer. (Trial Tr. 1-11-2010 P.153 L.13-P.154 L.18).

Mr. Brandt testified that he believed that he had the permission of Total Lock/Installers to drive the Jeep Liberty because he had authority from Total Lock to drive its vehicles, and because the Bunches worked for the same company. He said that no one at Total Lock ever told him otherwise. He testified that he did not feel intoxicated when Mrs. Bunch handed him the keys to the vehicle, and he did not feel intoxicated when he left her house. He testified that no one from Total Lock/Installers ever told him he should not have been driving a company vehicle, but he admits that Gidget Fogerty had told him that it was against company policy to drink and drive. (Trial Tr. 1-11-2010 P.172 L.8-11; L.24-P.174 L.25). Mr. Brandt testified that no one from Total Lock told him after the accident that he should not have been driving the vehicle because he had previously been fired or terminated from employment, or that he was not a company employee at the time of the accident. (Trial Tr. 1-11-2010 P.175 L.l-24). Notwithstanding Mr. Brandt’s understanding as to his employment, he still testified that he knew he did not have permission to operate company vehicles if he had been drinking, and confessed that he drank nine beers on November 26, 2007.

Mr. Brandt testified that he recognizes that he was legally intoxicated at the time of the accident, but claims that he did not feel intoxicated. He said he plead guilty because the BAC showed “legal intoxication.” (Trial Tr. 1-11-2010 P.176 L. 8-24). He testified that when he was drinking inside the Bunch house on November 26, 2007, he was drinking openly, “periodically,” and in close proximity to both Mr. and Mrs. Bunch. (Trial Tr. 1-11-2010 P.179 L.20-P.180 L.2). Mr. Brandt testified that if either Mr. Bunch or Mrs. Bunch knew on November 26, 2007, that he had been drinking that afternoon, he would not have had permission to take the keys and get into the car. (Trial Tr. 1 — 11— 2010 P.183 L.25-P.184 L.6).

D. TESTIMONY OF BRUCE WILLIAMS

Bruce Williams is an installer for The Installers Company. He works nationwide, installing locks in hotels. (Trial Tr. 1-11-2010 P.187 L.13-P.188 L.7). He was hired in June 2006, and was told by Ms. Fogerty that the company policy was that drinking and driving was not permitted. (Trial Tr. 1-11-2010 P.189 L.4-6; P.190 L.18-P.191 L.l; P.192 L.7-11). He testified that Ms. Fogerty told him that he could take a company vehicle home only after getting permission from her. He said that the standard policy was that the company vehicle was to be left at the office upon returning to St. Louis. (Trial Tr. 1-11-2010 P.193 L.4-14). During the proffer of this testimony, there were several objections. Very little weight is ascribed to his testimony.

E. TESTIMONY OF MICHELLE “GIDGET” FOGERTY

Ms. Fogerty started and is the sole owner and president of The Installers Company and Total Lock & Security, Inc. She first started Installers out of her home in 1997, with her brother, John McGeehan. Ms. Fogerty and Mr. McGeehan were the only employees of Installers at that time. (Trial Tr. 1-11-2010 P.206 L.25-P.207 L.10; P.207 L.20-P.208 L.3; P. 208 L.12-25; P.209 L.22-P.210 L.2). Ms. Fogerty started Total Lock in 1999. The nature of Total Lock’s business is much broader than that of Installers. More specifically, Total Lock does “anything with opening, locks, frames, storefronts, anything with the door opening.” (Trial Tr. 1-11-2010 P.209 L.5-14). The current address for Total Lock/Installers is 11772 Westline Industrial Drive, St. Louis, Missouri. (Trial Tr. 1-11-2010 P.210 L.25-P.211 L.6). At the time of the hearing in this ease, Total Lock employed between 35 and 40 individuals, and Installers employed five. (Trial Tr. 1-11-2010 P.211 L.23-P.212 L.5). Ms. Fogerty testified that salespeople, service techs, and managers employed by Total Lock are allowed to take company vehicles home. These employees are all dispatched from their home to save time, so that they don’t have to stop in at the office before an appointment. (Trial Tr. 1-11-2010 P.214 L.5-25). According to Ms. Fogerty, in 2007, Eve Rone was the dispatcher. (Trial Tr. 1-11-2010 P.212 L.22-24).

Ms. Fogerty acknowledges that the Jeep Liberty that was involved in the accident was registered to Total Lock, but it was being used by an Installers employee. Total Lock had purchased the Jeep Liberty in conjunction with plans being made to start a company in Kansas City, but the expansion did not materialize. The Jeep Liberty was purchased for the use of the prospective company, and it did not meet the needs of Total Lock’s business in St. Louis. Because the vehicle was just sitting there, it was leased to Installers, for use by its employees. Ms. Fogerty characterized the arrangement as a unique situation in which an Installers employee would use a Total Lock vehicle. (Trial Tr. I- 11-2010 P.217 L.l-25).

Ms. Fogerty testified about the policies of Installers regarding the use of company vehicles. Since the origin of the company, one policy was “no drinking and driving.” (Trial Tr. 1-11-2010 P.218 L.4-12). Ms. Fogerty testified that the reason driving and drinking is not allowed is because her insurance does not allow it. (Trial Tr. 1-II- 2010 P.283 L.8-20). There was also a company policy regarding personal use of company vehicles in St. Louis; specifically, that “they didn’t drive them personally.” (Trial Tr. 1-11-2010 P.219 L.20-24). When employees of Installers arrived in St. Louis late at night, they were permitted to take the company vehicle they were driving to their residence, and bring the vehicle back the next day. There was no Installers parking lot, so Installers employees brought the vehicles to the Total Lock parking lot. (Trial Tr. 1-11-2010 P.220 L. 8-22). When there was a crew, keys were issued to the members of the crew, and only members of that crew were allowed to operate the assigned vehicle. These company policies were not in writing when the accident occurred. (Trial Tr. 1-11-2010 P.222 L.2-15).

Ms. Fogerty testified that in 2006, Mr. and Mrs. Bunch presented themselves for employment in response to an advertisement posted by Installers. Ms. Fogerty interviewed them at the current office address. She asked them if they both had a driver’s license and a clean driving record, and she verified that they did not drink and drive. According to Ms. Fogerty, “Don said he didn’t drink, and so did Patricia.” Mr. Bunch did not tell her that he had been charged with a DWI in 2005. After the interview, she hired both Mr. and Mrs. Bunch as lock installers with Installers. Later, in March 2007, Ms. Fogerty learned from her insurance company that Mr. Bunch had a prior DWI. When Ms. Fogerty explained to Mr. Bunch that he would not be allowed to drive company vehicles any longer, Mrs. Bunch said that they needed the job and that she would drive. (Trial Tr. 1-11-2010 P.226 L.16-P.229 L.19).

Ms. Fogerty was involved in the hiring of Mr. Brandt, whom she met through Mr. and Mrs. Bunch. (Trial Tr. 1-11-2010 P.229 L.24-P.230 L.3). She told Mr. Brandt about the company’s policy “that there’s no drinking and driving, [and no] drugs.” When asked if she had advised Mr. Brandt regarding the personal use of company vehicles, she replied, “[w]e weren’t letting him take it home at that time, so I couldn’t say if we were or not.” Ms. Fogerty testified that she had no information prior to the November 26, 2007 accident that Mr. Brandt had ever used a company vehicle for personal use in St. Louis, and she further stated that she never granted Mr. Brandt authority to use a company vehicle for personal use in St. Louis. Ms. Fogerty also testified that she was unaware of any instances prior to the accident in which Mr. Brandt consumed alcohol and then operated an Installers vehicle. (Trial Tr. 1-11-2010 P.231 L.7P.232 L.2).

There is no dispute that the crew assigned to the Jeep Liberty consisted of Mr. Bunch and Mrs. Bunch, and that only Mrs. Bunch had permission to drive that vehicle. Ms. Fogerty testified that when the Bunches were first hired, they had the exclusive use of a Ford Ranger, until the company made the switch to the Jeep Liberty. Ms. Fogerty stated that when the Bunches were on the road out of St. Louis, they had “broad and unfettered use of the Jeep Liberty,” so long as there was no drinking or drug use. When the Bunches returned from their trip working out of St. Louis on Wednesday, November 21, 2007, after being out on the road for seven or eight months, they returned late and had authorization to take the Jeep Liberty home. The next day was Thanksgiving, so the Bunches were not supposed to return the Jeep Liberty until Friday, November 23, 2007. Ms. Fogerty testified that she allowed the Bunches to use the vehicle for a personal use around Thanksgiving, specifically to purchase food. (Trial Tr. 1 — 11— 2010 P.259 L.4-P.261 L.17).

On November 23, 2007, the day after Thanksgiving, Ms. Fogerty had a meeting in her office with Mr. and Mrs. Bunch. She said that they were at the office because they had brought a vehicle back after getting home late from a job. (Trial Tr. 1-11-2010 P.235 L.5-17). At that meeting, Mrs. Bunch asked to take the vehicle home because they were leaving early on a job, and she did not like driving at night. John McGeehan, who was present at the meeting, said that he needed to take the vehicle to Jiffy Lube for service. The Bunches explained that they needed to renew the license for their car, so Mr. McGeehan would need to take them home and pick them up if the company vehicle was being serviced. Mr. Bunch then suggested that they could take the vehicle to Jiffy Lube, to have it repaired. (Trial Tr. 1-11-2010 P.236 L.16-P.237 L.10). Ms. Fogerty told the Bunches that they could take the company vehicle to Jiffy Lube, get it filled with gas, and then leave it parked until they left for their next job. She did not give them permission to drive the vehicle for their personal use over that weekend. Mr. Bunch asked when he would be allowed to drive company vehicles, and Ms. Fogerty told him that he would not be allowed to do so until the insurance company told her that it was “okay.” She then reminded the Bunches that Mrs. Bunch was the only person on the crew who was allowed to drive. (Trial Tr. 1-11-2010 P.237 L.23-P.238 L.20). Ms. Fogerty testified that she remembered this conversation clearly because “Don asked me when he was able to drive the car,” and because ordinarily lock installers talk to Eve Rone, and not to her. (Trial Tr. 1-11-2010 P.254 L.12-P.255 L.l).

Ms. Fogerty testified that the Bunches agreed that they would not use the vehicle for personal use, and that the vehicle would remain parked in their driveway until they departed on their trip. She reviewed the receipt from Jiffy Lube, and acknowledged that the Bunches did take the vehicle to Jiffy Lube in Arnold. (Trial Tr. 1-11-2010 P.239 L.l-17) (Plaintiffs’ Exhibit No. 12). She also acknowledged that the Bunches filled the vehicle with gas almost immediately after leaving her office. (Trial Tr. 1-11-2010 P.241 L.14-19) (Plaintiffs’ Exhibit No. 13).

Ms. Fogerty learned of the accident from John McGeehan, her brother, who “does the warehouse and the fabrication of the warehouse, and he takes care of the company vehicles.” (Trial Tr. 1-11-2010 P.245 L.13-P.246 L.l). Ms. Fogerty testified that Mrs. Bunch called her after the accident, and reported that Mr. Bunch had spent the night in the hospital. Ms. Fogerty explained that “we originally thought that [Mr. Bunch] was the driver of the vehicle. [Mr. Brandt] didn’t really come to our mind when we found out about the accident.” Ms. Fogerty asked Mrs. Bunch why the vehicle was being operated on that day, and Mrs. Bunch told her that they were going to the filling station to refuel the vehicle. Ms. Fogerty testified that when she questioned Mrs. Bunch further, reminding her that they had filled the vehicle on Friday, Mrs. Bunch “changed her story and said that they were taking over food to [Mr. Bunchj’s mother because she didn’t want the food to waste while they were on their trip.” When Ms. Fogerty questioned Mrs. Bunch about alcohol, Mrs. Bunch told her that Mr. Bunch’s mother had given them a six pack of beer; that Mr. Brandt had “slammed a couple beers and that had raised his blood alcohol in his body, but he wasn’t really drunk.” Ms. Fogerty asked Mrs. Bunch why Mr. Brandt was driving the vehicle, and Mrs. Bunch told her that it was raining and icing and she did not like to drive at night. Mrs. Bunch told Ms. Fogerty that Mr. Brandt was going to get out of his DWI because he was not drunk. (Trial Tr. 1-11-2010 P.246 L.22P.247 L.5; P.247 L.12-P.249 L.l). Ms. Fogerty testified that she also talked to Mr. Brandt after the accident. She asked him what was their number one rule, and he responded, “no drinking and driving.” She then asked him why he did it and he didn’t answer. (Trial Tr. 1-11-2010 P.249 L.9-22).

After the Jeep Liberty was towed, Ms. Fogerty went to the car lot to get Mr. Bunch’s glasses and medication from the car. She testified that she also wanted to see the vehicle. On the interior of the vehicle, she found a couple of beers in a cooler, and two or three empty beer cans on the front floorboard. (Trial Tr. 1-11-2010 P.250 L.7-P.251 L.24). Ms. Fogerty identified a tow receipt, which listed the mileage of the Jeep Liberty at 140,803 miles. Ms. Fogerty testified that when the vehicle was filled with gas on November 23, 2007, the mileage of the Jeep Liberty was 140,636 miles, for a difference of 167 miles. (Trial Tr. 1-11-2010 P.252 L.7-P.253 L.2) (Plaintiffs’ Exhibit No. 15). Ms. Fogerty testified that there was no business purpose for those additional miles, and that the Bunches did not have the permission of Installers to drive the vehicle when those additional miles were incurred. (Trial Tr. 1-11-2010 P.253 L.18-23).

Ms. Fogerty testified that, as far as she knows, the last time that Mr. Brandt was employed by Installers was in October of 2007. When asked if he had been paid any wages after his last day of work, she said, “[n]ot that I know of.” She also said that Mr. Brandt was not given permission to use Installers vehicles or any company equipment after October 26, 2007. (Trial Tr. 1-11-2010 P. 232 L.3-P.233 L.4; P.234 L.13-15). Ms. Fogerty testified that when Mr. Brandt was employed by Installers, he was authorized to drive company vehicles. She said that before November 26, 2007, “no one at Total Lock ever notified Daniel Brandt that he was fired.” Additionally, prior to November 26, 2007, no one at Total Lock told her that Daniel Brandt was quitting his employment. Ms. Fogerty confirmed that before November 26, 2007, no one at Total Lock terminated Mr. Brandt’s authority to drive company vehicles, and no one had advised the Bunches that Mr. Brandt had been fired, had quit, or no longer had permission to drive company vehicles. (Trial Tr. 1-11-2010 P.266 L.4-267 L.15).

Defendants’ Exhibit B is a copy of a facsimile transmission dated December 3, 2007, sent from a number at Installers to the Festus Police Department. Ms. Fogerty was not sure whether the document, which bears her name, was sent by her authority or whether she had prepared it. She testified that if Eve Rone was the person who sent the fax, she had the authority to do so. (Trial Tr. 1-11-2010 P.276 L.25-P.278 L.6; L.20-P.279 L.14). The text of the fax reads:

The 2004 Jeep Liberty that was involved in the accident on 11/26/07 was released to our employee Patricia Bunch. The driver, Daniel Brandt, is one of our employees but he was not given the vehicle. Please feel free to call with any questions. Thank you. Gidget Fogerty

(Trial Tr. 1-11-2010 P.279 L.19-P.280 L.l) (Defendants’ Exhibit B). Ms. Fogerty testified that as of December 3 and December 6, 2007, it was her belief that Mr. Brandt was still one of her employees. (Trial Tr. 1-11-2010 P.281 L.10-15). Based on the totality of the evidence, the Court concludes that Mr. Brandt was an employee of Installers at the time of the accident on November 26, 2007.

Ms. Fogerty testified that no employee had the authority to ask another employee to operate a company vehicle, without first obtaining her permission. She also testified that Mrs. Bunch was not given permission by Installers to allow other people to operate the Jeep Liberty on the night of the accident, or at any other time. (Trial Tr. 1-11-2010 P.290 L.4-7; L.24-P.291 L.7). Ms. Fogerty stated that the permission given by Installers to Mr. Brandt to drive company vehicles was limited to times when he was actually working. (Trial Tr. 1-11-2010 P.291 L.21-P.292 L.l). According to Ms. Fogerty, Installers did not have knowledge that Mr. Brandt would be driving the Jeep Liberty on November 26, 2007. (Trial Tr. 1-11-2010 P.292 L.20-22).

F. TESTIMONY OF PATRICIA BUNCH

Mrs. Bunch has lived in Arnold, Missouri since 2007, with her husband, Donald Bunch, her daughter, and Daniel Brandt. According to Mrs. Bunch, Mr. Brandt has lived with them “on and off for several years.” She explained, “[w]e just sort of protect him.” Mr. Brandt has lived with the Bunches since they started working for Installers, and he was living with them on the date of the accident. (Trial Tr. 1-12-2010 P.4 L.16-P.5 L.21).

Mrs. Bunch testified that Installers has a policy that no company vehicle should be operated after drinking any amount of alcohol, and she agreed that it has been referred to as a zero-tolerance policy. She stated that she knew of the zero-tolerance alcohol policy before the accident, she knew that Mr. Bunch knew of the zero-tolerance alcohol policy before the accident, and she knew that Mr. Brandt knew of the zero-alcohol tolerance policy before the accident. (Trial Tr. 1-12-2010 P.5 L.22-P.6 L.22). Mrs. Bunch agreed that if Mr. Brandt had been drinking beer the evening of the accident, before he drove, he should not have been driving the vehicle that night. She also agreed that she should not have given him the keys to drive the vehicle if she knew that he was drinking alcohol that night. She knew that Installers would not have given her permission to give him the keys if he had been drinking, and she knew that Mr. Brandt “could not have accepted those keys if he would have been drinking that night.” She confirmed that “[h]e would have had no permission from Installers Company to be driving a company vehicle after consuming any amount of alcohol.” (Trial Tr. 1-12-2010 P.6 L.23-P.7 L.l; P.7 L.20-P.8 L.22). This testimony contradicts the later testimony of Mr. Bunch, who stated that he did not know of the no drinking and driving policy or the zero tolerance to alcohol policy at Installers.

Mrs. Bunch testified that when Ms. Fogerty interviewed her and Mr. Bunch for a job, the question about Mr. Bunch’s DWI never came up. (Trial Tr. 1-12-2010 P.10 L.7-18). According to Mrs. Bunch, when she and Mr. Bunch were first interviewed, they were asked if they had valid driver’s licenses, and they both responded that they did. She said that they were not asked about whether they had a history of driving while intoxicated. (Trial Tr. 1-12-2010 P.71 L.18-P.72 L.5). Mrs. Bunch stated that when Ms. Fogerty later learned of Mr. Bunch’s DWI, “[s]he gave me the keys and told me that I would drive.” Ms. Fogerty also told Mrs. Bunch that she was the only one that was permitted to drive the company vehicle that was assigned to them. (Trial Tr. 1-12-2010 P.10 L.19-P.11 L.4).

Mrs. Bunch testified that they were trained by John McGeehan, who gave them on-the-job training during various trips to Louisiana, Washington, and California. On some of these training trips, Mr. McGeehan would ride with the Bunches as a passenger. When Mr. McGeehan rode with the Bunches as a passenger, they did not take the company vehicle back home with them after arriving in St. Louis. (Trial Tr. 1-12-2010 P.ll L.5-P.12 L.l).

The first vehicle assigned to the Bunches was a Ford Ranger truck with a stick shift, which Mrs. Bunch could not operate. Mrs. Bunch testified that when they received the keys for the vehicle, nothing was said about personal use of the vehicle. She further testified that Ms. Fogerty encouraged the personal use of vehicles by employees who were out of town, telling them that when they had down time, she did not want them to stay in their motel room and get bored, but that they should go out and see what was around. (Trial Tr. 1-12-2010 P.74 L.3-P.75 L.4). Mrs. Bunch said that after going out on trips, when they returned to St. Louis, they kept the Ford Ranger at their home. She said they used it exclusively, except a couple of times when they had to switch it out to let another crew use it. She testified that Ms. Fogerty gave them no restrictions on using the Ford Ranger in the St. Louis area while they were at home and not on a job. (Trial Tr. 1-12-2010 P.77 L.l-21). Mrs. Bunch testified that when they had the Ford Ranger at home with them in St. Louis, she would be talking to Ms. Fogerty by telephone and mention that she needed to go to the grocery store “or something,” and Ms. Fogerty would say, “go.” Mrs. Bunch said that this type of conversation happened more than one time. (Trial Tr. 1-12-2010 P. 75 L.15-P.76 L.5). The Bunches were switched from the Ford Ranger to the Jeep Liberty after Ms. Fogerty informed them that Mr. Bunch could no longer drive because of his DWI, since Mrs. Bunch would be doing all of the driving and could not operate a stick shift. (Trial Tr. 1-12-2010 P.80 L.2-9).

Mrs. Bunch claims that she and Mr. Bunch had unfettered personal use of the company vehicles that were assigned to them while they were employed at Installers. (Trial Tr. 1-12-2010 P.12 L.2-6). This is totally inconsistent with credible evidence in the case. All credible evidence supports the conclusion that company vehicles were to be returned to the Installers parking lot when installers returned to St. Louis from out-of-town jobs, and that vehicles were not to be taken home unless an installer returned to St. Louis late at night or when the employee obtained expressly granted permission by someone with authority. Mrs. Bunch testified that she did not remember having any conversations with Ms. Fogerty or anyone else at the company regarding the personal use of company vehicles. She stated that “[a]t the time we never discussed personal use until we were on the road. Then we discussed personal use entirely, personal use, all the time.” She also testified that “[m]y employer told me that I could use the vehicle while in St. Louis. That was when we lived on Annette, before we moved to ... Heritage Hills.” (Trial Tr. 1-12-2010 P.12 L.7-P.13 L.2; P.14 L.2-4). Mrs. Bunch agreed that she testified in her deposition that she did not remember having any conversations with Ms. Fogerty regarding the personal use of company vehicles. (Trial Tr. 1-12-2010 P.105 L.3-13).

Upon redirect examination by Mr. Wolf, Mrs. Bunch admitted that when the Bunches were using the Ford Ranger, she had a telephone conversation with Ms. Fogerty and “[s]he was, she was on the phone and I told her I had to go to the grocery store and my car wasn’t there. She said, go to the grocery store.” She admitted that, in that instance, Ms. Fogerty had granted her express permission. (Trial Tr. 1-12-2010 P.94 L.19-P.95 L.17). It is notable that the Bunches were away from St. Louis on many long trips soon after they were employed. They were in St. Louis infrequently. Any suggestions by Mrs. Bunch that they had unfettered use of company vehicles at their house for personal use is inconsistent with physical facts and credible evidence.

For the entire time that they worked for Installers, including the time of the accident, the Bunches owned a 1997 Nissan Maxima. (Trial Tr. 1-12-2010 P.9 L.7-18). Mrs. Bunch testified that when they initially began their employment with Installers, they drove their personal vehicle to the office in Maryland Heights and left it there while they were away on their trip. She went on to say that when they returned home from their work trip, they would take the company vehicle home, and leave their Nissan Maxima at the office. (Trial Tr. 1-12-2010 P.15 L.23-P.16 L.9). Mrs. Bunch testified that while they were on their first out-of-town assignment with Installers, they left the Nissan Maxima at the office. After two or three months, Ms. Fogerty suggested that they take it to their house because the sun was fading it. (Trial Tr. 1-12-2010 P.92 L.23-P.93 L.16). Several months prior to the accident, the Bunches loaned their Nissan Maxima to Mrs. Bunch’s daughter, Kendra, whose car was not working at the time. Mrs. Bunch testified that she told Ms. Fogerty and Mr. McGeehan that they could not use their Nissan Maxima, and they knew that the Nissan Maxima was with Kendra. (Trial Tr. 1-12-2010 P.66 L.10-P.67 L.15). She admitted that she never expressly told her employer that they did not have a personal vehicle available for use. (Trial Tr. 1-12-2010 P.48 L.9-17). When questioned further about the seven- or eight-month period during which the Bunches were on a trip using the Jeep Liberty, and her belief that she had told Ms. Fogerty and Eve Rone that they did not have a personal vehicle, Mrs. Bunch stated, “[t]hey knew we didn’t have a personal vehicle.” When she was asked, “[y]ou never actually told them that; right?,” she answered, “[s]omewhere along the line, I guess someone did.” A question followed, “[b]ut not you, personally, though, right?” She answered, “I don’t remember.” (Trial Tr. 1-12-2010 P.101 L.2-13).

At trial, Mrs. Bunch could not recall whether her employer gave her express permission prior to the accident to allow others to drive the Jeep Liberty or any other company vehicle. However, she confirmed that she had answered “[n]o, sir” to the deposition question, “[d]id they ever give you express authority to allow others to drive the vehicle before this accident?” (Trial Tr. 1-12-2010 P.16 L.16-P.17 L.l). She was then specifically asked, “you did not believe you had permission from Installers while you were here in St. Louis to allow anyone else to operate the company vehicle for personal use, did you?” She answered, “[i]f it was my neighbor, I would say no, it’s a company vehicle. If it was an employee of Installers Company or Total Lock, I would give permission and, to let them drive.” Then she was shown this deposition question and answer: ‘When you’re not at work, when you’re not on the road working, you’re here in St. Louis at your house, did you believe that you had authority to loan that vehicle or allow someone else to operate it for personal use?” She answered, “[n]o sir.” (Trial Tr. 1-12-2010 P.l L.10-P.19 L.3). Mrs. Bunch gives the Court the clear impression that she will say anything, irrespective of her oath obligation, to gain insurance coverage for her husband.

Mrs. Bunch testified that she had never permitted Mr. Brandt or anyone else to drive the Jeep Liberty before the accident. (Trial Tr. 1-12-2010 P.19 L.4-15). The Jeep Liberty was assigned to the Bunches about eight months before the accident, around the time when Ms. Fogerty found out about Mr. Bunch’s prior DWI. The Bunches were on the road the entire eight-month period before the accident, and Mrs. Bunch testified that she permitted no one to operate the Jeep Liberty during that time. (Trial Tr. 1-12-2010 P.19 L.16P.20 L.17; P.21 L.12-17).

Mrs. Bunch stated that on or about October 29, 2007, they sent a facsimile transmission to Eve Rone, Gidget Fogerty and John McGeehan, asking if they could have some time off from November 18th or 19th through the 23rd or 24th. She noted that they needed to take care of their dog, get their car inspected, pay taxes and license their car. They ended the letter stating, “we love doing this.” (Trial Tr. 1-12-2010 P.22 L.17-P.23 L.24) (Plaintiffs’ Exhibit 8B).

Mrs. Bunch was asked whether John McGeehan had spoken with them while they were out of town before Thanksgiving, regarding the necessity of having the Jeep Liberty serviced. She responded, “[n]o, we told John that. We told John the Liberty needed to be maintained because we asked him about it.” She was then shown the transcript of her deposition, in which she was asked, “They asked you to leave it there, right?,” and she answered, “[i]n the beginning they did, because you said it needed to be maintained ..., because the maintenance hasn’t been done for like a long time. And John knew it was overdue, because he told us on the road. But we brought the ear home.” She confirmed that was her deposition testimony. (Trial Tr. 1-12-2010 P.25 L.4-20).

Mrs. Bunch testified that they did not make it back to St. Louis until November 21, 2007, and they arrived at Schnucks to do grocery shopping with their family for Thanksgiving at 10:00 p.m. She stated that Ms. Fogerty allowed them to take the vehicle home because they returned to St. Louis after business hours on November 21, and that they were allowed to keep the vehicle at their house the next day, which was Thanksgiving. Installers was closed on Thanksgiving Day. (Trial Tr. 1-12-2010 P.25 L.24-P.27 L.l). Mrs. Bunch said that after the Bunches finished the job in Nebraska, before returning to St. Louis on November 21, 2007, no one at Total Lock told them to return the vehicle to the office, or told them not to take the vehicle to their home. (Trial Tr. 1-12-2010 P.82 L.14-23). When asked if she was ever personally told by anyone at Installers that she had permission to drive the Jeep Liberty home the night of November 21, 2007, Mrs. Bunch said that she did not remember. She testified that she thought that Mr. Bunch called Ms. Rone because Mrs. Bunch was driving and it was dark and snowing. (Trial Tr. 1-12-2010 P.105 L.20-P.106 L.15).

Mrs. Bunch testified that she drove the Jeep Liberty to the Installers office on Friday, November 23, 2007, the first time anyone would have been there after the Holiday. The Installers office is located approximately thirty miles from the Bunches’ home. Mrs. Bunch testified that they went to Installers on November 23 to talk about catering, to return equipment, and to replenish equipment for the next job. She explained that while they were still on the road, Ms. Fogerty had told her that she wanted to talk about catering for the Christmas Party, and they first discussed that when they arrived. Mrs. Bunch also testified that John McGeehan was going to take the Jeep Liberty for service, because he already had an appointment. However, when the Bunches arrived at Installers, they did not have alternate transportation, since they didn’t get back in time to get their car licensed. Then, Mrs. Bunch testified that she wasn’t sure if Mr. McGeehan had actually made an appointment. (Trial Tr. 1-12-2010 P.27 L.11-P.28 L.l; L.11-P.30 L.19). Later in her testimony, Mrs. Bunch denied going to the office for the purpose of returning the vehicle. (Trial Tr. 1-12-2010 P.83 L.22P.84 L.2). Mrs. Bunch testified that Mr. McGeehan did not say that the Jeep Liberty was going to stay at the office because it needed to be serviced. Then, she was shown her deposition testimony where she answered, “[i]n the beginning, they did[,]” to the question, “[t]hey asked you to leave it there, right?” She confirmed that was her deposition testimony. (Trial Tr. 1 — 12— 2010 P.31 L.4-15).

Mrs. Bunch testified that while they were at the office, she and Ms. Fogerty were talking when Mr. Bunch and John McGeehan came into the room, discussing maintenance for the Jeep Liberty. Mr. McGeehan wanted to take it in for maintenance, but then learned that the Bunches did not have another car there. Ms. Fogerty and Mr. McGeehan then decided to let the Bunches take the Jeep Liberty in for maintenance on the way to their house. Mrs. Bunch testified that they took the vehicle to be maintained at a Jiffy Lube near their home. Mrs. Bunch testified that she called back to the office twice because she had to determine if that Jiffy Lube was on the contract, and she had to obtain approval to put the maintenance charges on her issued credit card. (Trial Tr. 1-12-2010 P.85 L.14-P.86 L.19)

Mrs. Bunch testified that while they were at the Installers office on November 23, 2007, nothing was discussed with Ms. Fogerty or Mr. McGeehan about the Bunches leaving on another trip the following week. She claims that she is certain that the discussion about them going to Washington D.C. did not occur until the morning of Sunday, November 25, 2007, when Eve Rone called Mrs. Bunch at her home, saying that the Bunches needed to leave for Washington D.C. right away because they had been specifically requested for a job. Mrs. Bunch testified that she told Ms. Rone that they could not leave before Tuesday because they had company and a lot of other matters to attend to. Mrs. Bunch stated that she is sure that Ms. Rone did not call about the Washington D.C. job while they were still on the road for their prior job. (Trial Tr. 1-12-2010 P.32 L.16-P.34 L.10; P.35 L.4-18).

Mrs. Bunch did not remember if they went directly to fill the Jeep Liberty with gasoline after leaving the Installers office on November 23, 2007. She was shown an exhibit which showed a fuel purchase transaction on November 23, 2007, at Petro-Mart Phillips, with the driver listed as Bunch, and the I.D. number listed as 1377, the number assigned to the Bunches. Showing Mrs. Bunch the exhibit did not refresh her recollection as to whether they filled the Jeep Liberty. She did testify that she remembered going to the Jiffy Lube in Arnold to service the Jeep Liberty. (Trial Tr. 1-12-2010 P.35 L.19-P.37 L.25) (Plaintiffs’ Exhibit No. 13). As noted in the testimony of Mr. Bunch, he vociferously maintains that they did not get gas at the Petro-Mart Phillips station in Creve Coeur, irrespective of the paper evidence to the contrary.

Mrs. Bunch testified that they went “a lot of places” in the Jeep Liberty on Saturday, November 24, 2007, because they had lot of people at their house. (Trial Tr. 1-12-2010 P.38 L.4-12). In response to a question as to whether Ms. Fogerty had ever expressed that Mrs. Bunch could drive the Jeep Liberty on personal errands on Saturday, November 24, 2007, Mrs. Bunch said, “Mrs. Fogerty didn’t tell me anything.” Mrs. Bunch testified that she does not think that anyone at Installers knew she was driving the Jeep Liberty on that date. In addition to the driving on Saturday, Mrs. Bunch drove the Jeep Liberty to attend a religious service in Downtown St. Louis on Sunday, November 25, 2007. She denied that Mr. Bunch drove the Jeep Liberty to the Comfort Inn on Sunday night to pick up Mr. Brandt, and stated that she picked up Mr. Brandt. After being shown her deposition testimony, in which she said that she could not remember if she drove the Jeep Liberty any more that Sunday, Mrs. Bunch testified, “[tjhat day — that was Sunday; correct? That day, I don’t remember— there’s a lot of things I did that day and along with one of the things I probably did was go pick up Mr. Brandt.” She then testified that she did actually remember picking Mr. Brandt up from the hotel. She stated that she was not sure what day she picked him up, but she was sure that she did pick him up at some point over a period of four days. (Trial Tr. 1-12-2010 P.38 L.22-P.40 L.16; P.43 L.12-21).

Mrs. Bunch testified that when she picked up Mr. Brandt at the Comfort Inn, she did not see the cooler of beer that Mr. Brandt said he placed in the Jeep Liberty at the hotel. She also testified that she did not see Mr. Brandt bring the cooler or the beer into her garage, nor did she see Mr. Brandt take the beer from the cooler and place it in the refrigerator in her garage. Mrs. Bunch agreed that Mr. Brandt should not have had alcohol in the Jeep Liberty, and that doing so would be a violation of company policy. (Trial Tr. 1-12-2010 P.44 L.3-P.45 L.3).

Mrs. Bunch testified that Eve Rone called the Bunch residence on Sunday morning, November 25, 2007, to inform them about a job in Washington D.C. Previously, Ms. Rone had them lined up for another job that would have required them to leave about a week later. However, someone from Washington D.C. had called, specifically requesting the Bunches for a job that would have required the Bunches to leave St. Louis on Monday, November 26, 2007. Mrs. Bunch said that she told Ms. Rone that they would go to Washington D.C., but they could not leave Monday because they had company in the house and they had many other things to do. Mrs. Bunch said that she talked to Eve about washing clothes and getting the suitcases packed, and Mr. Bunch talked to her “about the food.” (Trial Tr. 1-12-2010 P.86 L.20-P.88 L.l).

Mrs. Bunch admitted that on the morning of Monday, November 26, 2007, the day of the accident, she drove the Jeep Liberty to the grocery store for a personal matter. She agreed that all of the driving she had done in the Jeep Liberty from the time they left Jiffy Lube on Friday up until Monday was for her own personal benefit, and there was no business purpose for any of those trips. (Trial Tr. 1-12-2010 P.45 P.46 L.3). Mrs. Bunch testified that on November 26, she and Mr. Bunch talked to Eve Rone numerous times about getting on the road, but she never told Ms. Rone that she was going to use the Jeep Liberty to drop off food at Mr. Bunch’s mother’s house. (Trial Tr. 1-12-2010 P.51 L.4-13).

According to Mrs. Bunch, late in the afternoon on November 26, 2007, Mr. Bunch got some leftover food ready to take over to his mother’s house, assuming that Mrs. Bunch would drive him in the Jeep Liberty to deliver the food. Aft