                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3408
                                   ___________

Agape Baptist Church, Inc.,          *
                                     *
           Plaintiff/Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Eastern District of Missouri.
Church Mutual Insurance Company,     *
                                     *
           Defendant/Appellant,      *
                                     *
Brown & James, P.C.;                 *
Newsam Harp, Inc.,                   *
                                     *
           Defendants.               *
                                ___________

                              Submitted: June 10, 2002

                                  Filed: August 8, 2002
                                   ___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       Appellant Church Mutual Insurance Company (Church Mutual) appeals from
a final judgment entered by the district court1 pursuant to a jury verdict in favor of

      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
Agape Baptist Church, Inc. (Agape). Church Mutual contends that a jury instruction
as to insurance contents coverage was not supported by substantial evidence and
therefore seeks a new trial. Because we find sufficient evidence in the record to
support submission of the instruction to the jury, we affirm.

      Church Mutual insured Agape's property during a policy period extending from
April 3, 1996, to April 3, 1999. After Agape was advised at a Christian Law
Association seminar to reevaluate the adequacy of its insurance coverage, Church
Mutual's agent, Bruce West, met with Agape's Pastor James Clemensen on April 22,
1998, to increase the amount of Agape's personal property blanket coverage.

       Fire damaged a school operated by Agape on June 6, 1998, and Agape's
personal property was destroyed by the fire. Agape claimed a loss of personal
property in the amount of $186,339.66. However, Church Mutual limited Agape's
recovery to $92,800, pursuant to an endorsement that was effective as of May 20,
1998, but delivered to Agape after the fire. Agape subsequently brought a contract
action against Church Mutual to recover purportedly insured losses, alleging, among
other things, that Church Mutual breached the insurance contract and that it
vexatiously refused to pay policy proceeds. In its complaint, Agape alleged that
Church Mutual "at all time[s] mentioned herein, regularly conducted its customary
insurance business by and through its agent BRUCE WEST," and that "West solicited
insurance business for [Church Mutual] and regularly advertised he was an agent of
[Church Mutual]; and, West had actual, apparent or ostensible authority from [Church
Mutual] to issue insurance contract binders of insurance and insurance policy
endorsements on behalf of [Church Mutual]." Agape further alleged that, when the
policy was issued, Church Mutual improperly set the personal property coverage limit
at "$92,800[.00] instead of at $350,000.00 as agreed."2 As a portion of damages



      2
          At trial, Agape claimed that the amount agreed upon was at least $300,000.

                                          -2-
under its breach of contract claim, Agape sought "the difference in the $92,800.00
and $350,000.00 Personal Property Insurance Contract Loss Event coverage."

       The case was tried to a jury. In its supplemental trial brief, Agape revealed that
it was basing its claim on an oral agreement made by agent West with Clemensen, to
increase the policy's contents limit to $300,000. Because the district court apparently
determined that during discovery Agape had not adequately disclosed information
concerning West's oral statements, it excluded a good deal of testimony regarding
such communications. However, testimony was received, to some degree, in response
to Church Mutual's cross-examination, alluding to the oral agreement and
Clemensen's belief that he had increased coverage to $300,000.

      Included in the jury instructions was "Jury Instruction No. 8," which states:

             If you believe plaintiff Agape Baptist Church, Inc. and Bruce
      West orally agreed defendant Church Mutual Insurance Company was
      bound to at least $300,000 of personal property insurance policy
      coverage prior to June 6, 1998, as mentioned in the evidence, then you
      may not award more than $300,000 to plaintiff Agape Baptist Church,
      Inc. as damages for its personal property claim element under these
      instructions.

            If you do not believe plaintiff Agape Baptist Church, Inc. and
      Bruce West orally agreed defendant Church Mutual Insurance Company
      was bound to at least $300,000 of personal property insurance policy
      coverage prior to June 6, 1998, then you may not award more than
      $92,800 to plaintiff Agape Baptist Church, Inc. as damages for its
      personal property claim element under these instructions.

             In addition, you may award plaintiff Agape Baptist Church, Inc.
      nine percent (9%) per annum Missouri statutory interest from September
      3, 1998[,] to the current date on the sum you find due and owing to
      plaintiff Baptist Church, Inc. as an element of plaintiff Agape Baptist
      Church, Inc.'s damages.

                                          -3-
       The jury returned a $150,000 verdict in Agape's favor on Church Mutual's
policy, $37,125 for interest, and $15,000 as a penalty for vexatious refusal to pay. On
appeal, Church Mutual argues that "Jury Instruction No. 8" improperly "permitted the
jury to find that Agape had contents coverage of at least $300,000 based on an alleged
oral agreement made by Church Mutual's agent, Bruce West."

       The form and language of jury instructions are committed to the district court's
sound discretion so long as the jury is correctly instructed on the substantive issues
of the case. Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254
F.3d 706, 711 (8th Cir. 2001). The substance of jury instructions in diversity cases
is governed by applicable state law. Id. In such cases, "the jury instructions, when
read as a whole, must fairly and adequately present the relevant state law." Id.

       "A litigant is entitled to have the jury charged concerning his theory of the case
if there is any evidence to support the claim, direct or circumstantial." Strudl v.
American Family Mut. Ins. Co., 536 F.2d 242, 246 (8th Cir. 1976). Also, "in
determining whether the evidence is sufficient to support the giving of a particular
instruction, the evidence should be considered in the light most favorable to the party
offering the instruction, giving it 'the benefit of all favorable inferences reasonably
deducible therefrom.'" Hallberg v. Brasher, 679 F.2d 751, 757 n.6 (8th Cir. 1982)
(quoting Underwood v. Crosby, 447 S.W.2d 566, 570 (Mo. 1969) (en banc)).

       Under Missouri law, "an insurance company is bound by the acts of an agent
acting within the scope of his apparent authority, or within the powers which it held
out the agent as possessing, unless the limitations upon the agent's powers are known
by or brought to the notice of the insured." Voss v. American Mut. Liab. Ins. Co.,
341 S.W.2d 270, 276 (Mo. App. 1960). Also, "in the absence of any evidence that
an applicant had knowledge or was put on notice of . . . restrictions [on the agent's
authority], the applicant is not bound by them, and is entitled to rely and act upon the
agent's apparent and ostensible powers." Id.

                                          -4-
       Missouri case law indicates that contracts of insurance "may be verbal or in
writing, or partly in writing and partly verbal," so long as "the minds of the parties
shall have met on all the essential terms of the contract." Chailland v. M. F. A. Mut.
Ins. Co., 375 S.W.2d 78, 81 (Mo. 1964) (en banc). "'[W]here the minds of the parties
for a valuable consideration have met on all the terms of the contract, it is complete
and enforceable, although it was intended by the parties to be evidenced by a policy
which, because of some fortuity, was not delivered before the happening of the event
insured against.'" Id. (citation omitted). Elements of an oral contract under Missouri
law include the subject matter, the risk insured against, the amount, the duration of
the risk, and the premium. Id. However, "[i]t is not essential that all of these
elements of the contract be expressly agreed upon if the intention of the parties to the
contract in these particulars can be gathered from the circumstances of the case." Id.
Furthermore, "[a]n oral contract of insurance is binding, although the premium is not
to be paid at the time of its consummation if credit is given." Id.

      The present matter does not implicate a purely oral agreement, but instead
involves a claimed insurance contract that was "partly in writing and partly verbal."
See id. At trial, the following colloquy between Church Mutual's counsel and
Clemensen occurred:

      [Counsel for Church Mutual] Q: And you had a contract, you had a
      policy of insurance with Church Mutual Insurance Company?
      [Clemensen] A: Yes.
      Q: And in that contract, the insurance company made certain promises
      to you; right?
      A: That's right.


      Furthermore, Agape read into evidence Church Mutual's admission, found
within the pleadings, that West "had actual, apparent or ostensible authority from


                                          -5-
insured's company to issue insurance contract binders of insurance and . . . insurance
policy endorsements on behalf of insurance company." Also read into evidence was
Church Mutual's admission that "it issued policy number 0151217-02-449714 to
Agape Baptist Church and Boarding School; that Bruce West had inspected this
property and that an increase in coverage was requested and approved shortly before
the fire." The subject matter of the policy was divulged to the jury in Agape's reading
of portions of the written contract. For instance, Agape's counsel read the following:

      Covered property . . . means the following types of property for which
      a limit of insurance is shown in the declaration page[:] . . . . your
      personal property . . . not otherwise insured under building, located in
      or on the building . . . consisting of the following. . . . furniture and
      fixtures[,] . . . machinery and equipment[,] . . . all other personal
      property owned by you and used in your operation. . . .

Evidence also indicated that Church Mutual would "pay for direct physical loss of or
damage to covered property at the premises . . . caused by or resulting from any
covered cause of loss." On cross-examination, Church Mutual elicited testimony
from Clemensen that, at the time of trial, Agape was continuing to pay Church Mutual
policy premiums.

       At trial, many attempts to elicit testimony regarding Clemensen's dealings with
Church Mutual's agent West were thwarted. However, paramount to the ultimate
result is Church Mutual's admission in its answer "that it issued Policy No. 0151217-
02-449714 to Agape Baptist Church and Boarding School, that Bruce West had
inspected the property, and that an increase in coverage was requested and approved
shortly before the fire." Church Mutual merely denied the amount of coverage agreed
upon. We are, consequently, left to determine not whether there was sufficient
evidence of an agreement to increase the amount of coverage, but what the evidence
was as to the amount of the increase.



                                         -6-
       As earlier noted, we find that there was sufficient evidence in the record to
support the $300,000 damages ceiling in Jury Instruction No. 8. The policy's written
terms indicated that there was a personal property limit of insurance of $92,800.
However, at trial, Clemensen testified that he thought that figure was wrong, and
answered affirmatively when asked "[t]hat number should have been the [$]300,000
that you agreed to with Mr. West?" Clemensen testified that when West left their
April 22, 1998, meeting, it was his understanding that the minimum amount of
personal property blanket coverage would be "[a]t least [$]300,000" based on an
inventory list of personal property items and accompanying fair market values and
costs, and on his "agreements with Mr. West." He also testified that the increase in
coverage was to have become effective immediately after April 22, 1998, pursuant
to their agreement, and that the increased coverage was for at least $300,000 for the
blanket personal property.

        On cross-examination, Church Mutual, through its questioning and
Clemensen's response, revealed that Agape increased its coverage under a policy with
Church Mutual. Also, Church Mutual asked Clemensen, "you didn't make any
changes[,] if I understood your testimony[,] until April 22nd when you had Bruce
West come out to your property?" Clemensen responded, "[r]ight." Church Mutual
also asked Clemensen, "[t]hen on April 22, 1998, the time you're saying that you
discussed with Bruce West these changes, you made another change in your policy,
didn't you?" Again, Clemensen responded "[r]ight." Moreover, Church Mutual told
Clemensen, "[b]ut it's your testimony today that you had coverage as of April 22 for
. . . $300,000 in content coverage." Also, in response to questioning as to whether
Church Mutual gave Agape additional coverage after the fire, counsel for Church
Mutual elicited Clemensen's testimony that "[o]n April 22nd . . . when [West] came
to visit he did."

      Giving Agape the benefit of all favorable inferences deducible from the
evidence, we find that Jury Instruction No. 8 was sufficiently supported. Agape was

                                        -7-
therefore entitled to have the jury charged concerning its theory of the coverage
increase to $300,000. Thus, we conclude that the district court did not err in
submitting the instruction and affirm.3

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      3
       Because we have determined that the jury instruction was not improperly
submitted, we need not reach the issues Agape set forth in its motion to dismiss and,
consequently, deny that motion.

                                        -8-
