                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3669
                         ___________________________

                                     Larry Brown

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                 CRST Malone, Inc.

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: September 26, 2013
                             Filed: January 3, 2014
                                 ____________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       Larry Brown brought suit against CRST Malone ("CRST") in Missouri state
court, alleging that CRST negligently failed to maintain his workers' compensation
insurance coverage. After CRST removed the case to federal district court,1 the court


      1
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
granted summary judgment to CRST, holding that Brown's action was barred by the
applicable Missouri statute of limitations. Brown appeals, arguing that the statute of
limitations began to run much later than the district court determined. For the
following reasons, we affirm.

                                          I.

      Larry Brown contracted with CRST to drive a truck as an independent owner-
operator. In 2001, CRST entered into an agreement with Associated Contract
Truckmen, Inc. ("ACT") to provide group workers' compensation insurance for the
company's contractors, which included Brown. Brown elected to participate in the
program and signed the necessary forms. CRST then withheld insurance premiums
from Brown's paychecks.

       ACT contracted with AMS Staff Leasing ("AMS") to procure insurance for
CRST's independent contractors. AMS subsequently contracted with CNA to provide
the workers' compensation insurance. Disputes later arose between AMS and CNA,
causing CNA to cancel the CRST contractor insurance policy in June 2002. Brown
was unaware of the cancellation, and AMS did not notify ACT that the insurance
policies were cancelled. Despite the cancellation, CRST continued to take deductions
from Brown's paycheck, even though the money never reached an insurance provider.

       On July 21, 2002, Brown was injured while making a delivery for CRST,
allegedly rendering him permanently disabled. On July 21, 2003, Brown filed for
workers' compensation with the Missouri Division of Workers' Compensation,
naming ACT, AMS, and CRST as his policy providers. He began to receive biweekly
workers' compensation payments of $750. On March 8, 2004, a representative for
ACT informed Brown's attorney that Brown would no longer receive benefits and that
payments would cease immediately because Brown's "restrictions [were] not related
to his work injury." Brown's attorney then contacted CRST, ACT, AMS, CNA, and

                                         -2-
the Missouri Department of Insurance in an attempt to establish which company was
responsible for payments and to prove that Brown was entitled to coverage for his
disability from whichever company was responsible for that coverage.

       On February 24, 2005, Brown learned there was an additional problem in his
attempt to reinstate his workers' compensation payments—he may not have had a
valid policy at the time of his injury, much less a policy that provided coverage for
his injury. On that date, a Consumer Service Specialist at the Missouri Department
of Insurance wrote a response to Brown's attorney's inquiry regarding Brown's denial
of coverage. The letter informed Brown that CNA had terminated CRST's insurance
policy on June 20, 2002,2 one month prior to Brown's injury. The letter stated that
"[b]ased on the evidence presented," the Department of Insurance did not have a
"clear basis to continue its investigation of [the] matter." Following receipt of this
information, on March 8, 2005, Brown's attorney wrote to Kevin Dinwiddie, an
Administrative Law Judge with the Missouri Division of Workers' Compensation.
The letter stated that Brown acknowledged that CNA and the Missouri Department
of Insurance had taken the position that Brown was not insured at the time of his
injury. The letter requested a hearing on the matter because CNA had not provided
evidence to support its position.

      On July 31, 2008, over three years later, an Administrative Law Judge with the
Missouri Division of Workers' Compensation ruled that Brown was not insured at the
time of his injury. The opinion stated, in part:

      [T]here is competent and corroborating evidence establishing that at the
      time of Brown's July 21, 2002 injury there was no valid workers'
      compensation insurance in place for him; the evidence establishes . . .
      that Brown's workers' compensation insurance (obtained through the

      2
        An ALJ for the Missouri Department of Workers' Compensation later found
this date to be May 30, 2002. This discrepancy is not material to this appeal.

                                         -3-
      most convoluted of ways) was no longer in effect after May 30, 2002.
      . . . [A]t the time of the claimant Brown's July 21, 2002 injury he was not
      covered by a valid workers' compensation insurance policy.

       On March 17, 2011, Brown filed suit against CRST in Missouri state court,
alleging that CRST acted negligently in failing to maintain Brown's workers'
compensation insurance. On September 1, 2011, CRST removed the suit to federal
court on the basis of diversity jurisdiction. 28 U.S.C. § 1441(a); 28 US.C.
§ 1332(a)(1). On October 3, 2012, the district court granted summary judgment to
CRST, ruling that Brown's action accrued prior to March 2006 and therefore was
barred by the Missouri five-year statute of limitations for such claims. Mo. Ann. Stat.
§§ 516.100, 516.120. Brown appeals.

                                          II.

       We review a district court's grant of summary judgment de novo. Lexington
Ins. Co. v. Integrity Land Title Co., 721 F.3d 958, 974 (8th Cir. 2013). For a statute
of limitations defense, "[i]t has long been the rule that the burden of establishing the
statute of limitations defense lies with the party who asserts it." Nuspl v. Mo. Med.
Ins. Co., 842 S.W.2d 920, 923 (Mo. Ct. App. 1992). In this case, CRST bears the
burden of establishing that Brown's claim was not filed within the five-year statute
of limitations provided in Mo. Ann. Stat. §§ 516.100 and 516.120.

       Both parties agree that Sections 516.100 and 516.120 impose a five-year statute
of limitations on Brown's claim. The parties disagree when the statute of limitations
began to run in this case. In its summary judgment order, the district court
determined that the statute of limitations started running on March 8, 2005, when
Brown's attorney acknowledged that CNA and the Missouri Department of Insurance
believed that Brown did not have insurance coverage at the time of his injury.



                                          -4-
       In this appeal, Brown asserts two theories for why he believes the five-year
statute of limitations had not run when he filed his lawsuit against CRST on March
17, 2011. We address each theory in turn.

                           A. Last Item of Damage Theory

       Brown's first theory is that the statute of limitations will not begin to run until
his death. Brown argues that Mo. Ann. Stat. § 516.100 supports his position that the
statute of limitations on his claim would not begin to run until his last payment would
be due, which he alleges would be upon his death. Section 516.100 reads, in part:

      [T]he cause of action shall not be deemed to accrue when the wrong is
      done or the technical breach of contract or duty occurs, but when the
      damage resulting therefrom is sustained and is capable of ascertainment,
      and, if more than one item of damage, then the last item, so that all
      resulting damage may be recovered, and full and complete relief
      obtained.

Specifically, Brown believes that the phrase "the last item" of damage means the
statute of limitations should not begin to run on his claim until the time when he
would collect his last workers' compensation payment. Since Brown is permanently
disabled and believed he was eligible to receive payments for life, Brown argues that
his "last item" of damage will not occur until the payment immediately preceding his
death, which is also when Brown believes the statute of limitations should begin to
run.

       Brown relies heavily on the Missouri Supreme Court case Sabine v. Leonard,
322 S.W.2d 831 (Mo. 1959), to support his argument. This reliance is misplaced.
Sabine dealt with the repayment of a promissory note. Id. at 832. The court held that
because the debt was to be repaid in monthly installments, the statute of limitations
for the creditor to sue the debtor did not begin to run until the last payment was due.

                                           -5-
Id. at 838. In contrast, in this case there was a single wrong—CRST's alleged failure
to maintain insurance coverage—rather than a series of continuing wrongs, which
were the repeatedly missed payments on the promissory note. Thus, Sabine is
inapposite. Further, Brown's argument contravenes one of the purposes of creating
a statute of limitations in the first place: to encourage timely suits. Under Brown's
theory, he would be able to bring his claim possibly decades after the sole alleged
injury occurred.

       Brown offers no authority to support his contention that the statute of
limitations begins to run only upon his death. His argument ignores Missouri cases
that directly address the applicable statute of limitations for insurance disputes. See,
e.g., Branstad v. Kinstler, 166 S.W.3d 134, 136–37 (Mo. Ct. App. 2005) (determining
that the five-year statute of limitations began to run when the plaintiff "received
notice that his carrier denied coverage" for his loss); Nuspl, 842 S.W.2d at 922
(stating that a cause of action accrues when a party first sees that he will sustain
damage). Brown's "last item" argument contradicts these cases by focusing
exclusively on the "last item" language. Rather, as these cases show, when Section
516.100 is read as a whole, the more appropriate inquiry is determining when Brown's
damages became ascertainable.

                       B. Damages Capable of Ascertainment

       Brown's claim is more appropriately analyzed through a determination of when
his damages were "sustained" and became "capable of ascertainment."3 Mo. Ann.
Stat. § 516.100. The district court held that Brown's damages were ascertainable on
March 8, 2005, which was the date Brown's attorney acknowledged in writing the

      3
        CRST argues that Brown did not raise this argument before the district court
and therefore has waived it. While Brown focused almost exclusively on his "last
item" argument before the district court, the issue of when Brown's damages were
ascertainable has always been in dispute, and we will address it.

                                          -6-
position of the Department of Insurance that Brown did not have valid workers'
compensation insurance because CNA had canceled the policy. Brown argues that
the statute of limitations started to run when the Missouri Division of Workers'
Compensation definitively ruled on July 31, 2008 that Brown did not have insurance
when he was injured. This argument places Brown's claim within the statute of
limitations.

       Under Mo. Ann. Stat. § 516.100, a "cause of action accrues for purposes of
section 516.120 when damage is sustained and capable of ascertainment." Branstad,
166 S.W.3d at 136. "'[C]apable of ascertainment' refers to the fact of damage, not the
precise amount of damage." Nuspl, 842 S.W.2d at 922 ("In an action on contract, a
cause of action accrues upon a defendant's failure to perform at the time and in the
manner contracted, and a statute of limitations begins to run when a suit may be
maintained."). In Nuspl, a doctor believed he had malpractice insurance, and the
court held that the doctor "had every right to expect he was insured until notified to
the contrary." Id. at 923. The Nuspl court concluded that the cause of action
"accrued when coverage was denied." Id.

       Following Nuspl's reasoning, the statute of limitations may have begun to run
even earlier than the district court decided. Arguably, the statute of limitations could
have started when Brown was first denied payments on March 8, 2004. The district
court noted this, but decided that "Plaintiff was unaware of which insurance company
was purportedly denying coverage for his accident and was unaware that such
coverage was being denied on the basis that there was no insurance policy in place
at the time of his injury. Accordingly, Plaintiff's damages were not capable of
ascertainment at the time of his injury." Brown v. CRST Malone, Inc., No.
4:11CV1527, 2012 WL 4711450, at *6 (E.D. Mo. Oct. 3, 2012). We agree. Plaintiff
had no reason to suspect he entirely lacked insurance when payments stopped in
2004. At the time, he was told only that his injury was not considered work-related.



                                          -7-
The present dispute, however, is not whether a policy provided coverage or not;
rather, the dispute is whether Brown had a policy at all.

       The Missouri Department of Insurance informed Brown that he did not have
an insurance policy on February 24, 2005. Brown's attorney acknowledged this fact
in a letter to an ALJ in the Missouri Division of Workers' Compensation on March
8, 2005, the date the district court determined as the date the statute of limitations
began to run. Brown argues this date should be later—specifically, July 31, 2008,
when the Missouri Division of Workers' Compensation determined that Brown did
not have insurance coverage. Brown bases his argument on Wallace v. Helbig, 963
S.W.2d 360 (Mo. Ct. App. 1998).

        In Wallace, a farmer used an insurance broker to obtain insurance for a farming
operation. 963 S.W.2d at 361. After one of the farmer's employees was injured, the
insurance company the broker had worked with sent the farmer a reservation of rights
letter and filed a declaratory judgment action seeking a declaration of no coverage.
 Id. Eventually a court entered a declaratory judgment in the insurer's favor finding
no coverage. Id. Five years after entry of the declaratory judgment, the farmer sued
the broker for negligent failure to provide insurance coverage. Id. at 360. A five-year
statute of limitations applied to the farmer's claim against the broker, and the farmer
argued the limitation period began to run upon entry of the declaratory judgment
order. Id. at 361.

       The Missouri district court held that "the five year period [under Mo. Ann. St.
§ 516.100] began to run as soon as the company filed suit to declare that the policy
they issued did not provide coverage." Id. The district court reasoned that "[i]t is
well settled that it is not necessary that the total damages be ascertainable at that
time . . . but only that Plaintiff have knowledge of the alleged wrong, and that some
damages had accrued." Id. The Missouri Court of Appeals reversed, holding that the
statute of limitations did not begin to run when the declaratory judgment suit was

                                         -8-
filed, but rather, when the district court entered judgment that the insurance policy did
not provide coverage. Id. The Court of Appeals reasoned that, "In the event the court
had declared there was coverage, [the plaintiff] would not have had a cause of action
against [the defendant] under any recognized legal theory[.]" Id. at 362.

       Brown argues that Wallace dictates that the statute of limitations in this case
did not begin to run until July 31, 2008—the date the Missouri Division of Workers'
Compensation ruled that Brown did not have insurance coverage. While this
argument has some force, we believe that it sidesteps the dispositive question
presented in Section 516.100, which is to determine when Brown's damages were
actually ascertainable and thus provided him with a cause of action against CRST.
When viewed in this light, we do not believe that Wallace instructs that the statute of
limitations begins to run only when there is a formal declaration from a court that a
plaintiff does not have insurance coverage. Rather, Wallace supports our reading of
Section 516.100, which is to require a case-by-case determination of when the
plaintiff's damages became ascertainable.

       In the present case, the Missouri Department of Insurance and the insurance
provider, CNA, informed Brown in 2005 that his insurance had been cancelled in
2002 and that he did not have a policy at the time of his injury. Unlike in Wallace,
Brown had actual knowledge that a governing regulatory body—the Missouri
Department of Insurance—had determined that Brown did not have an insurance
policy years before the Missouri Division of Workers' Compensation issued its ruling.
Even assuming that Wallace could stand for a broader proposition that the statute of
limitations does not run until there is a formal declaration by a court or regulatory
body, Brown received this in the form of the Missouri Department of Insurance
employee's letter stating that Brown's policy had been cancelled prior to Brown's
injury. When Brown received this information, he was on sufficient notice of a
potential claim against CRST to trigger the running of the statute of limitations.



                                          -9-
        Wallace is a Missouri Court of Appeals case and is useful only to the extent it
is persuasive. See Riordan v. Corp. of Presiding Bishop of The Church of Jesus
Christ of Latter-Day Saints, 416 F.3d 825, 829 (8th Cir. 2005) ("Exercising diversity
jurisdiction, we interpret Missouri law . . . attempting to forecast how the Missouri
Supreme Court would decide the issues presented."); United Fire & Cas. Ins. Co. v.
Garvey, 328 F.3d 411, 413 (8th Cir. 2003) ("Decisions of the various intermediate
appellate courts are not [binding on this court], . . . [but] they are persuasive authority,
and [we] must follow them when they are the best evidence of what [state] law is.")
(alteration in original) (internal quotation marks omitted). Controlling Missouri
Supreme Court precedent requires the application of an objective "capable of
ascertainment test," which requires us to decide "when a reasonable person would
have been put on notice that an injury and substantial damages may have occurred."
State ex rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809, 811 (Mo. banc
2008). Brown was put on notice of his injury at least as early as his receipt of the
letter from the Missouri Department of Insurance in 2005 that he did not have an
insurance policy. There is no reason why Brown had to wait three additional years
for the Missouri Division of Workers' Compensation to weigh in on the matter before
filing suit. During this time, Brown continued to accrue ascertainable damages
because he was not receiving the workers' compensation benefit payments that he
believed he was entitled to receive from CRST and its network of insurance providers
and brokers. Brown also was incurring damages in the form of attorneys' fees and
other litigation expenses in pursuit of insurance that CRST had promised to provide.
See Dixon v. Shafton, 649 S.W.2d 435, 438 (Mo. banc 1983) (finding that Section
516.100's statute of limitations began to run when appellants hired counsel because
that action showed appellants knew a substantial claim existed).

      Further, Branstad supports starting the statute of limitations at the date when
CNA and the Missouri Department of Insurance informed Brown that he did not have
an insurance policy (or, as the district court decided, a month later when Brown's
attorney acknowledged in a letter that CNA had told Brown that he did not have

                                           -10-
insurance). 166 S.W.3d at 137. In Branstad, the Missouri Court of Appeals held that
the plaintiff's cause of action against his insurance agent for negligent
misrepresentation regarding the scope of his insurance coverage "accrued when [the
plaintiff] received notice that coverage was denied and, thus, the plaintiff was able
to determine that he had sustained damage." Id. Brown's attorney acknowledged on
March 8, 2005 that Brown did not have insurance coverage for his workers'
compensation claim in her letter to ALJ Dinwiddie. Brown's damages, in the form
of missed payments and attorneys' fees, had already been accruing for over a year,
and he could have maintained suit against CRST at that time. Brown waited an
additional six years to file his suit.

                                         III.

       Because Brown did not bring this action within the applicable five-year statute
of limitations, we do not need to address the merits of Brown's claim against CRST
for negligent failure to maintain insurance coverage. We affirm the district court's
grant of summary judgment in favor of CRST.
                        ______________________________




                                        -11-
