Wandersee v. BP Products North America, Inc.

263 S.W.3d 623, 2008 Mo. LEXIS 141, 2008 WL 2952301
CourtSupreme Court of Missouri
DecidedJuly 29, 2008
DocketNo. SC 88832
StatusPublished
Cited by27 cases

This text of 263 S.W.3d 623 (Wandersee v. BP Products North America, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wandersee v. BP Products North America, Inc., 263 S.W.3d 623, 2008 Mo. LEXIS 141, 2008 WL 2952301 (Mo. 2008).

Opinion

MICHAEL A. WOLFF, Judge.

Introduction

Brian Wandersee is the owner and president of Advanced Cleaning Technologies, Inc. (ACT). BP Products North America, Inc. (BP) accused Wandersee and another ACT employee of stealing a car wash system belonging to BP, which led to criminal charges against Wandersee and the other ACT employee. After those charges were dropped, Wandersee and ACT sued BP for injurious falsehood. The jury found BP liable to Wandersee and ACT and awarded damages of $605,350. Following the verdict, BP filed a motion for judgment as a matter of law or, in the alternative, a new trial. The trial court overruled BP’s motions. On appeal, BP raises the following contentions:

(1)BP is entitled to judgment as a matter of law because the knowledge of BP’s agent as to the falsity of the theft report cannot be imputed to BP, the corporation, and, therefore, the evidence was insufficient for the jury to find that BP acted knowingly or recklessly in making the theft allegation.
(2) BP is entitled to judgment as a matter of law because the evidence was insufficient to show that the false report caused injury because of independent intervening causes such as the police investigation and the prosecutor’s decision to indict.
(3) BP is entitled to a new trial because the jury instruction describing the burden of proof for injurious falsehood was incorrect.
(4) BP is entitled to a new trial because the trial court failed to instruct the jury that BP had a qualified privilege where it acted honestly and in good faith.
(5) BP is entitled to a new trial because the trial court should not have permitted the jury to award damages for lost profits, foregone wages, and attorneys’ fees and should not have allowed damages occurring after 2000.
(6) The trial court should have granted a remittitur because the jury’s award of damages exceeded the amount that would be fair and reasonable compensation for the injuries to ACT and Wandersee.

Facts

Advanced Cleaning Technologies, Inc. (ACT) distributes, installs and services car wash systems. ACT is the exclusive distributor for PDQ Manufacturing, Inc., the world’s largest manufacturer of the “touch-free in-bay” automatic car wash systems.

BP Products North America Inc., formerly known as Amoco Oil Company, is a refiner and distributor of petroleum prod[627]*627ucts that owned gasoline stations in the St. Louis area until late 1999, when BP sold its stations.

In December 1997, BP ordered three car wash systems from PDQ Manufacturing. BP informed PDQ that it planned to install these car wash systems in three of its new St. Louis area stations. Because construction of the three stations was not yet complete at the time of the order, BP requested that delivery be delayed. PDQ called Wandersee and asked whether ACT, its exclusive distributor, could take delivery of and store the car wash systems until BP needed them. Wandersee agreed, with the understanding that the car wash systems would remain in ACT’s warehouse until BP called and requested installation. Pursuant to this agreement, PDQ shipped the car wash systems to ACT’s warehouse. BP paid $437,697.92 for the three car wash systems, including a payment of $99,916.67 for a car wash system BP planned to install in its O’Fallon station.

BP called ACT in 1998 and arranged for the delivery and installation of two of the three PDQ car washes. The third ear wash, which BP had ordered for installation at the O’Fallon station, remained in storage at the ACT warehouse.

During a meeting in February 1999, Wandersee informed Mary Fissenhasion, BP’s company account executive and St. Louis market manager, that ACT still had the O’Fallon station car wash in storage because BP had not yet requested its installation. Fissenhasion told Wandersee that the O’Fallon station car wash was “not in her budget” and that she did not know whom Wandersee should contact about it.

BP’s regional security advisor, Ron Ben-hart, received a telephone call in July 1999 from ACT employee Tami Weeks. Weeks told Benhart that she believed Wandersee and Steve Amick, a former employee of BP who had begun working for ACT, were attempting to sell the O’Fallon car wash without BP’s knowledge. According to Weeks, Wandersee and Amick claimed to have “commandeered” the O’Fallon car wash from BP. Weeks alleged that Wan-dersee had unauthorized possession of the O’Fallon car wash. She told Benhart that she had heard Wandersee refer to the O’Fallon station car wash as a “freebie” and that he had bragged that ACT could sell it at a “100 percent” profit. In support of her allegations, Weeks gave Ben-hart the serial number of the O’Fallon car wash, which she stated confirmed BP’s ownership of the machine. Weeks also gave Benhart a document that she claimed was a falsified purchase order that Amick had created to facilitate the theft.

After speaking with Weeks, Benhart contacted PDQ to verify the serial number. PDQ verified that the serial number matched that of the 0’Fallon car wash and provided Benhart with BP’s purchase order for the machine, an order verification form, a delivery verification form, and proof of full payment by BP. Benhart also checked with BP’s records and spoke to BP’s regional vice president about the allegation. The regional vice president told Benhart that the O’Fallon station had never been built and that there was, in his opinion, no reason why ACT should still have the car wash.

Benhart contacted the Overland, Missouri, police department on July 26, 1999 to report Weeks’ allegation. Benhart gave the police documents demonstrating BP’s purchase and payment for the O’Fallon car wash system. Later that day, Weeks and Keith Payette, a part owner and former employee of ACT, went to the Overland police department and gave written statements supporting Weeks’ prior allegation of theft.

[628]*628Later that day, the Overland police department applied for and received a warrant to search ACT’s warehouse. During their search, the police discovered and seized the O’Fallon car wash. The police arrested Wandersee the next day.

Wandersee and Amick were indicted in May 2000 on charges of stealing in connection with the alleged theft of the O’Fallon station car wash. After taking depositions, however, the prosecutor filed a nolle prosequi abandoning the prosecution.

ACT and Wandersee filed the present suit against BP and PDQ in April 2003. They alleged that, as a result of BP’s false theft accusation, Wandersee and ACT sus^ tained damages that included legal costs, loan costs and a loss of profits. The jury awarded ACT and Wandersee $605,350 in damages. The trial court entered judgment in accordance with the verdict, overruling motions for judgment notwithstanding the verdict and, in the alternative, for new trial. Following an opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, § 10.

Analysis

(1) BP’s Knowledge

Was the evidence at trial sufficient to support a finding that BP acted either knowingly or recklessly in making the allegation of theft against Wandersee and ACT?

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Cite This Page — Counsel Stack

Bluebook (online)
263 S.W.3d 623, 2008 Mo. LEXIS 141, 2008 WL 2952301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wandersee-v-bp-products-north-america-inc-mo-2008.