        In the Missouri Court of Appeals
                Eastern District
                                SOUTHERN DIVISION

BIRI M. BLEVINS, JOHN T. BUSEY,              )       No. ED99852
AND CHARLES W. JONES,                        )
                                             )
       Appellants,                           )
                                             )       Appeal from the Circuit Court
       vs.                                   )       of Cape Girardeau County
                                             )
AMERICAN FAMILY MUTUAL                       )       Honorable Benjamin F. Lewis
INSURANCE COMPANY AND                        )
JANEY FOUST,                                 )
                                             )
       Respondents.                          )       Filed: March 4, 2014


                                         ORDER


       On the Court’s own motion, the opinion filed in this case on January 28, 2014, is

hereby withdrawn and a new opinion is to issue. Appellant’s motion for rehearing, or in

the alternative, application for transfer to the Missouri Supreme Court is denied as moot.



CC:    Dan Rau, Kristi Nicole Hoff
       Robert J. Wulff, Mary Anne Lindsey
        In the Missouri Court of Appeals
                Eastern District
                                SOUTHERN DIVISION

BIRI M. BLEVINS, JOHN T. BUSEY,              )       No. ED99852
AND CHARLES W. JONES,                        )
                                             )
        Appellants,                          )
                                             )       Appeal from the Circuit Court
        vs.                                  )       of Cape Girardeau County
                                             )
AMERICAN FAMILY MUTUAL                       )       Honorable Benjamin F. Lewis
INSURANCE COMPANY AND                        )
JANEY FOUST,                                 )
                                             )
        Respondents.                         )       Filed: March 4, 2014

        Biri M. Blevins, Charles W. Jones, and John Busey (collectively “Plaintiffs”)

appeal the judgment of the trial court dismissing their claims against Janey Foust for

negligent failure to procure insurance and negligent misrepresentation and granting

summary judgment in favor of American Family Mutual Insurance Co. (“American

Family”) on their claim for equitable garnishment. We reverse and remand in part and

affirm in part.

                                I.      BACKGROUND

        Busey Truck Equipment, Inc. (“Busey Truck”) leased certain tools, equipment,

and other personal property from Plaintiffs. The items were kept on the premises of

Busey Truck. The premises, including Plaintiffs’ personal property, were destroyed by



                                             2
fire on July 27, 2006. Busey Truck had previously obtained insurance coverage for the

premises from American Family. Following the fire, American Family denied coverage

of Plaintiffs’ personal property under the policy. 1

         Plaintiffs filed individual petitions against Busey Truck, alleging the negligent

conduct of Busey Truck caused their damages. Each Plaintiff received a judgment in his

favor and against Busey Truck for damages for the loss of their personal property.

Plaintiffs filed the instant action, asserting a claim for equitable garnishment against

American Family, and asserting claims for negligent failure to procure insurance and

negligent misrepresentation against Janey Foust, an agent for American Family. 2 Foust

filed a motion to dismiss Plaintiffs’ claims against her for failure to state a claim, and the

trial court granted Foust’s motion to dismiss. 3 Thereafter, the trial court also granted

summary judgment in favor of American Family on Plaintiffs’ claim for equitable

garnishment. Plaintiffs now appeal.

                                        II.       DISCUSSION

A.       Claims Against Foust

         1.       Standard of Review

         In points one and two on appeal, Plaintiffs assert error in the trial court’s

dismissal of their claims for negligent failure to procure insurance and negligent




1
  As a result of the denial of coverage, Busey Truck filed an action against American Family for breach of
contract and vexatious refusal to pay. Busey Truck also filed a claim against Foust for negligent failure to
procure insurance. Our Court reversed the trial court’s dismissal of Busey Truck’s claim against Foust;
however, Busey Truck thereafter dismissed the action.
2
  Plaintiffs initially filed separate actions, which were ordered consolidated by the trial court.
3
  Plaintiffs prematurely appealed the trial court’s dismissal, and our Court dismissed the appeals because
the claims against American Family had not yet been resolved, and the trial court did not certify the
dismissal as final for purposes of appeal.


                                                      3
misrepresentation 4 against Foust for failure to state a claim. Our review of the trial

court’s decision to grant a motion to dismiss is de novo. Stein v. Novus Equities Co., 284

S.W.3d 597, 601 (Mo. App. E.D. 2009) (internal citation omitted). “A motion to dismiss

for failure to state a claim upon which relief can be granted is solely a test of the

adequacy of the plaintiff’s petition.” Id. When reviewing the trial court’s grant of a

motion to dismiss for failure to state a claim, we accept all well-pled allegations as true

and liberally grant all reasonable inferences therefrom. Id. We do not consider whether

the factual allegations are credible or persuasive. Id. Instead, we review the allegations

in the petition in an almost academic manner, only to determine whether the facts alleged

meet the elements of the cause of action. Id. If the petition alleges any facts which, if

proven, would entitle the plaintiff to relief, the petition sufficiently states a claim. Id. at

602. However, dismissal for failure to state a claim is proper if the facts essential to

recovery are not pled. Id.

         2.       Negligent Failure to Procure Insurance

         In their first point on appeal, Plaintiffs claim the trial court erred in dismissing

their claims of negligent failure to procure insurance against Foust. Plaintiffs argue they

alleged sufficient facts to establish all elements of their claims. We disagree.

         A broker or agent who undertakes to procure insurance for another for

compensation owes a duty of reasonable skill and diligence in obtaining the insurance

requested, and the broker or agent may be sued in tort for negligent failure to procure that

insurance. Extended Stay, Inc. v. American Auto. Ins. Co., 375 S.W.3d 834, 841 (Mo.

App. E.D. 2012) (internal citation omitted). To state a claim of negligent failure to

4
 Plaintiffs each assert two counts for each claim of negligence against Foust. The second count in each
petition contains allegations concerning the forseeability of damage to Plaintiffs as a result of Foust’s
negligence.


                                                     4
procure insurance, a plaintiff must plead facts to show that: (1) the agent agreed to

procure, for compensation, insurance; (2) the agent failed to procure the agreed upon

insurance, and in doing so failed to exercise reasonable care and diligence; and (3) the

plaintiff suffered damages as a result of the failure. Id.

       In a negligence action, the plaintiff must prove, among other things, that the

defendant had a duty to the plaintiff. Hardcore Concrete, LLC v. Fortner Ins. Services,

Inc., 220 S.W.3d 350, 355 (Mo. App. S.D. 2007) (citing Hecker v, Missouri Prop. Ins.

Placement Facility, 891 S.W.2d 813, 816 (Mo. banc 1995)). The question of whether

such a duty exists is one of law, and therefore, it is a question for the trial court. Id. A

legal duty may arise under law, contract, or from the legislature. Stein, 284 S.W.3d at

605. Missouri courts have long held that if an agent undertakes to procure insurance for

another for compensation, that agent owes a duty of care in obtaining the insurance.

Extended Stay, Inc., 375 S.W.3d at 841. However, a prerequisite to the imposition of

such a duty is “some consensual undertaking by the agent, for at least the prospect of

compensation, to act on behalf of the customer as his principal.” Farmers Ins. Co., Inc.

v. McCarthy, 871 S.W.2d 82, 85 (Mo. App. E.D. 1994) (internal citation omitted). Here,

Plaintiffs allege in their petitions that Foust agreed to procure, for compensation,

insurance to cover Busey Truck’s property, including their personal property leased by

Busey Truck. They do not allege that Foust agreed to purchase insurance for them, or

that they provided compensation to her for the procurement of such insurance.

       We note that generally, a defendant who has contracted with another generally

owes no duty to a plaintiff who was not a party to the contract. Hardcore Concrete, LLC,

220 S.W.3d at 358. Plaintiffs argue even though they were not parties to the insurance




                                               5
policy, Foust owed them a duty based upon the forseeability of harm to Plaintiffs for the

failure to procure insurance coverage for Busey Truck for Plaintiffs’ personal property.

The Missouri Supreme Court has cautioned that the extension of liability in this regard

should be done carefully, evaluating the particular circumstances of each case

individually. Id. (quoting Westerhold v. Carroll, 419 S.W.2d 73, 78 (Mo. 1967)). The

Supreme Court has also recognized that typically cases in which the liability of an agent

can extend to a third party require separate tortious acts to be committed by the agent. Id.

(quoting State ex rel. William Ranni Assoc., Inc. v. Hartenbach, 742 S.W.2d 134, 139

(Mo. banc 1987)). Here, there is no allegation of any separate tortious act by Foust

resulting in injury to Plaintiffs. The allegations are solely based upon Foust’s alleged

failure to procure insurance coverage for Busey Truck for Plaintiffs’ personal property on

Busey Truck’s premises. Under these particular circumstances, Plaintiffs cannot

establish Foust owed them a duty to procure insurance coverage for their personal

property.

        As a result of the foregoing, Plaintiffs failed to allege any facts which, if proven,

would demonstrate that Foust owed a duty of reasonable care to Plaintiffs. Thus,

Plaintiffs failed to allege facts essential to their claim of negligent failure to procure

insurance, and the trial court did not err in dismissing their claims against Foust. Point

one on appeal is denied.

        3.      Negligent Misrepresentation

        In their second point on appeal, Plaintiffs claim the trial court erred in dismissing




                                               6
their claims for negligent misrepresentation against Foust. According to Plaintiffs, they

alleged sufficient facts to establish each element of their claim. Plaintiffs’ argument is

without merit.

       To state a claim for negligent misrepresentation, a plaintiff must plead facts to

support each of the following elements: (1) the speaker provided information in the

course of his or her business; (2) the information was false as a result of the speaker’s

failure to exercise reasonable care; (3) the speaker intentionally provided the information

for the guidance of limited persons in a particular business transaction; (4) the hearer

justifiably relied on the information, and (5) due to the hearer’s reliance on the

information, the hearer suffered a pecuniary loss. Stein, 284 S.W.3d at 602-03 (internal

citation omitted).

       Negligent misrepresentation requires a plaintiff to rely upon the alleged

misrepresentation. Id. at 603. Although Plaintiffs allege they justifiably relied on the

information from Foust, the test is whether the misrepresentation was a material factor

influencing final action. Id. Here, the alleged misrepresentation occurred after the

insurance policy had been obtained by Busey Truck, and after the fire which resulted in

the loss of Plaintiff’s personal property. Plaintiffs did not allege they failed to take any

action to seek coverage for their personal property based upon Foust’s alleged post-loss

statements. Instead, in an attempt to recover damages for the loss of their property,

Plaintiffs filed suit against Busey Truck and filed the present action. Plaintiffs do not

allege any facts that, if proven, would establish Plaintiffs took or refrained from taking

any action in reliance upon the alleged misrepresentations made by Foust. Thus, the facts

alleged do not meet the elements for a cause of action for negligent misrepresentation.




                                              7
See Id. (none of allegations in petition set forth facts which, if proven, would establish

plaintiffs took or refrained from taking action in reliance upon alleged

misrepresentations, and therefore, petition failed to state a claim).

        Even assuming, arguendo, Plaintiffs alleged sufficient facts to establish they

relied upon Foust’s statements, Plaintiffs’ petitions fail to state sufficient facts to meet the

final element of negligent misrepresentation. Plaintiffs are required to set forth facts,

which if proven, would establish they suffered pecuniary loss due to their reliance on

Foust’s alleged statements concerning coverage for their property. Id. However,

Plaintiffs’ petitions fail to do so. Plaintiffs allege that Foust’s statements were made after

the fire occurred on Busey Truck’s premises destroying Plaintiffs’ personal property.

Plaintiffs’ pecuniary loss was caused by the fire and the purported exclusion from

coverage under Busey Truck’s insurance policy for their property in place at the time of

the loss, not by any statements made by Foust following the loss. Plaintiffs fail to allege

any facts to establish they suffered pecuniary loss as a result of their alleged reliance

upon Foust’s statements. Thus, the facts alleged do not meet the elements of a cause of

action for negligent misrepresentation.

        As a result of the foregoing, the trial court did not err in dismissing Plaintiffs’

claims against Foust for negligent misrepresentation. Point two on appeal is denied.

B.      Equitable Garnishment

        In their third and final point on appeal, Plaintiffs claim the trial court erred in

granting summary judgment in favor of American Family on Plaintiffs’ claims for

equitable garnishment because there were multiple genuine issues of material fact

precluding such judgment.




                                               8
           We review the trial court’s grant of summary judgment de novo. Extended Stay,

Inc., 375 S.W.3d at 841 (internal citation omitted). We view the record in the light most

favorable to the party against whom the judgment was entered, and we give that party the

benefit of all reasonable inferences from the record. Id. If the movant is a defendant, as

American Family is here, summary judgment is proper if the party shows, among other

things, facts that negate any one of the required elements of proof. Id. Summary

judgment may also be proper where the defendant shows there is no genuine dispute as to

each of the facts necessary to support a properly pleaded affirmative defense. Id.

           Pursuant to Section 379.200 RSMo (2000), 5 upon recovery of a final judgment

against a person or corporation for damage to property, among other things, the judgment

creditor is entitled to have the insurance money if the defendant was insured against such

loss at the time the cause of action arose. Thus, in order to prevail on an action for

equitable garnishment, a plaintiff must prove he has obtained a judgment in his favor

against an insurance company’s insured during the policy period, and the injury is

covered by the insurance policy. Peck v. Alliance Gen. Ins. Co., 998 S.W.2d 71, 74 (Mo.

App. E.D. 1999).

           To be entitled to summary judgment on Plaintiff’s claim for equitable

garnishment, the burden rests upon American Family to show there are no genuine issues

of material fact and movant is entitled to judgment as a matter of law. Zerebco v. Lolli

Bros. Livestock Market, 918 S.W.2d 931, 934 (Mo. App. W.D. 1996). American Family

must make more than an argument in its motion for summary judgment. Goodson v.

Simpelo, 918 S.W.2d 324, 327 (Mo. App. E.D. 1996) (citing ITT Commercial Finance v.

Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993)). American Family must
5
    All further statutory references are to RSMo (2000).


                                                       9
demonstrate, through affidavits, or other supporting documentation, that it is entitled to

judgment as a matter of law based upon undisputed facts. Id.

        According to American Family, the policy unambiguously provides coverage for

Plaintiffs’ personal property only up to $2,500.00, and American Family paid the limits

of liability of $2,500 to Busey Truck. Thus, in its motion for summary judgment,

American Family was required to allege undisputed material facts to demonstrate the

applicability of the asserted $2,500.00 limit of coverage for the loss of Plaintiffs’

property. However, American Family failed to do so. Instead, in its motion for summary

judgment, American Family alleged only that the limit applied and American Family paid

the asserted limit to Busey Truck. American Family did not make any specific

allegations of undisputed fact to support its contention that this limit of liability applied.

        In addition, in its statement of uncontroverted material facts, American Family

asserted only that the attached exhibit was an accurate copy of the insurance policy and

that American Family previously paid $2,500.00. In support of its statement of

uncontroverted facts, American Family filed only the 117-page insurance policy and an

affidavit from a claims manager from American Family stating American Family paid

$2,500 directly to Busey Truck and no other coverage exists. American Family did not

provide any other reference to pleadings, affidavits, or other documentation to support its

contention that the $2,500.00 limit applied to Plaintiffs’ loss and no other coverage

existed under the policy. See Goodson, 918 S.W.2d at 326, 327 (absent affidavits,

interrogatories, depositions, or other evidence showing no genuine issue of fact, record

did not demonstrate right to judgment as a matter of law). The policy itself, without

evidence of any of the underlying facts which would result in the applicability of the




                                              10
asserted limit of liability, does not clearly establish American Family’s right to judgment

as a matter of law. 6

        Here, American Family did not sufficiently allege or establish by supporting

documentation any undisputed facts in the record before us to support its contention the

$2,500.00 limit of coverage applied to the loss of Plaintiffs’ property. Therefore,

American Family did not meet its burden of making a prima facie showing it was entitled

to summary judgment. As a result, based on the summary judgment record before us, we

cannot conclude American Family has established a right to judgment as a matter of law

based upon undisputed facts. As such, the trial court erred in granting summary

judgment in favor of American Family on Plaintiffs’ claim of equitable garnishment. See

Goodson, 918 S.W.2d at 327.           Point three on appeal is granted.

                                       III.     CONCLUSION

        The judgment of the trial court dismissing Plaintiffs’ claims of negligent failure to

procure insurance and negligent misrepresentation against Foust for failure to state a

claim is affirmed. The judgment of the trial court granting summary judgment in favor of

American Family on Plaintiffs’ claim of equitable garnishment is reversed and remanded

for further proceedings consistent with this opinion.




                                                     ROBERT M. CLAYTON III, Chief Judge

Roy L. Richter, J. and
Gary M. Gaertner, Jr., J., concur.
6
  For example, the policy contains multiple provisions in separate sections regarding personal property of
others in the care, custody, and control of Busey Truck, both excluding damage to such property from
liability and providing for coverage of such property as well as for potential extensions of coverage for
such property. In addition, an endorsement attached to the policy appears to change the property policy to
add coverage for personal property of others for $40,000.00, which well exceeds American Family’s
asserted limit of $2,500.00.


                                                    11
