Wenthe v. Willis Corroon Corp.

932 S.W.2d 791, 1996 WL 56423

• Court: Missouri Court of Appeals
• Decided: November 27, 1996
• Docket: 67644
• Status: Published

Opinions

DOWD, Judge.

Philip K. Wenthe (“Wenthe”) appeals from the trial court’s dismissal of Counts IX, X, and XI of his first amended petition and from the trial court’s order granting summary judgment in favor of General Dynamics on Count VII of his first amended petition by interlineation. We reverse in part and affirm in part.

Wenthe is an insurance broker. In the early 1980s, Wenthe developed a book of business for his previous employer that included insuring several lines of business for General Dynamics ranging from voyaging marine vessels to the launching of Atlas space rockets. On October 1, 1985, Willis Corroon,¹ an insurer, hired Wenthe as an insurance broker, and a written employment contract was executed. Simultaneously, Willis Corroon and Wenthe executed another written agreement that outlined the parameters of their newly formed relationship. The agreement provided Willis Corroon would finance Wenthe’s purchase of the General Dynamics accounts from his previous employer in exchange for a share of the net commissions earned from the accounts and, importantly, an option to purchase the General Dynamics accounts from Wenthe.

Willis Corroon exercised its option in March of 1988 and agreed to pay Wenthe approximately 12.5% of the net commissions earned from the accounts through October 1, 1995. The employment agreement between Wenthe and Willis Corroon was amended several times, the last of which provided for his employment through October. 1, 1997.

Wenthe alleges in Count VII that in the fall of 1988 he entered into an oral contract with General Dynamics to provide insurance coverage for the launch of sixty Atlas rockets. Wenthe claims General Dynamics promised him its space insurance business, whether as an independent broker or as an employee of Willis Corroon. In exchange, Wenthe promised to service the General Dynamics accounts and not to offer such insurance packages to any competitors of General Dynamics.

Between 1988 and 1992, disputes arose between General Dynamics and Willis Cor-roon. On October 28,1992, General Dynamics and Willis Corroon settled their disputes by executing a release agreement. Among other things, the agreement provided the following: “Willis Corroon is claiming commissions and premiums due on Third Party Space (Pre-Launch, Launch, and In-Orbit) Liability Insurance. Willis Corroon has submitted invoice # 6589 in the amount of $3,680,000. As part of the settlement, Willis Corroon agrees to drop its claim for premiums and commissions in connection with such insurance....” Between January and March of 1992, Wenthe was removed from servicing all of General Dynamics accounts at Willis Corroon. Wenthe eventually left Willis Corroon in the summer of 1993.

On March 16,1994, Wenthe filed a petition against Willis Corroon and General Dynamics asserting several legal theories regarding his employment agreement and his purchase agreement with Willis Corroon and the actions of General Dynamics. Wenthe’s first amended petition, as amended by interlineation, became the basis for this appeal. The counts dismissed by the trial court are as follows: Count VIII alleged General Dynamics slandered Wenthe;² Count IX and X alleged General Dynamics tortiously interfered with Wenthe’s contract and business expectancy in his annual compensation, and his past-earned and future-earned commissions for servicing General Dynamics’ accounts with Willis Corroon; and Count XI alleged a civil conspiracy among the various Willis Corroon entities and General Dynamics based upon the wrongful actions asserted in Counts VIII through X. The trial court entered summary judgment in favor of General Dynamics on Count VII, which alleged General Dynamics breached an oral contract with Wenthe regarding the sixty Atlas space launches. The remaining counts against Willis Corroon are pending before' the trial court.³

In his first two points on appeal, Wenthe asserts the trial court erred in dismissing Counts IX, X, and XI of his first amended petition. In reviewing a trial court’s order dismissing a claim, we accept all properly pleaded facts as true, we give the pleadings their broadest intendment, and we construe all allegations favorably to the pleader. Davis v. Carmichael, 755 S.W.2d 679, 680 (Mo.App.1988); See Sofka v. Thal, 662 S.W.2d 502, 506 (Mo. banc 1983). A petition is sufficient if it invokes substantial principles of law which entitle the plaintiff to relief and informs the defendant of what the plaintiff will attempt to establish at trial. Fischer, Spuhl, Herzwurm & Associates, Inc. v. Forrest T. Jones & Company, 586 S.W.2d 310, 316 (Mo. banc 1979). Furthermore, a pleader is only required to state the ultimate facts and it is not required to plead the facts or circumstances by which the ultimate facts will be established. Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo. banc 1976). Importantly for the case at bar, Scheibel went further and instructed that “Plaintiff could be compelled ... by interrogatories to give more information ... but this does not mean the petition does not state a cause of action[.]” Id. Because the trial court did not state its reasons for granting the motions to dismiss, we presume the dismissal was based upon one of the grounds presented, and we will affirm the dismissal if any of the points can sustain the trial court’s action. Berkowski v. St. Louis County Bd. of Election Commissioners, 854 S.W.2d 819, 828 (Mo.App.1993).

General Dynamics asserts the dismissal of those counts should be upheld for two reasons: First, “To allege tortious interference based on slander, plaintiff must first state a claim for slander, which plaintiff has failed to do.” Second, General Dynamics cannot interfere with its own contract; therefore, Wenthe has failed to plead absence of justification, an element of intentional interference with contract.⁴ We disagree.

Before turning to the merits of General Dynamics arguments, we set out the dismissed allegations of Wenthe’s first amended petition. As for the first element, Wenthe alleges the existence of multiple employment agreements, an overview agreement, and a purchase agreement that show a contract or valid business expectancy. For example, the parties signed two agreements on October 1, 1985. The first included a resolution that made clear Willis Corroon recruited and hired Wenthe because of his ownership of the valuable General Dynamics accounts. As a part of the first agreement, Willis Corroon lent $840,000 to Wenthe so that he could purchase the General Dynamics accounts from his previous employer. In exchange for the loan, among other things, Wenthe agreed to give Willis Corroon an option to purchase the accounts by January 1, 1988. If Willis Corroon exercised its option, the first agreement further provided Willis Corroon “shall offer to Philip K. Wenthe an employment contract to commence effective with the exercise of said option which shall provide a compensation package in accordance with [Willis Corroon’s] guidelines in effect at October 1,1985.” In fact, Willis Corroon exercised its option in 1987 and granted Wenthe an employment contract.

Given Wenthe’s recruitment by Willis Cor-roon and his long-standing work with General Dynamics accounts, Willis Corroon’s agreement to offer Wenthe an employment contract after it had purchased the General Dynamics accounts from him, clearly shows the expectations of the parties were to allow Wenthe to continue servicing those accounts in return for a salary based upon Willis Corroon’s compensation guidelines. This is indeed what happened from 1987 until 1992, the time of the alleged interference by General Dynamics. Thus these contracts and the course of dealings between the parties constitute the basis for the business expectancy allegedly interfered with by General Dynamics.⁵

As for the second element, Wenthe alleges “Defendant General Dynamics Corporation knew of the existence of the Employment Agreement and the Purchase Agreement.” As for the third element, Wenthe alleges General Dynamics intentionally interfered with his employment and purchase agreements, among other things, by:

1) making the false defamatory statements as set forth hereinabove;⁶ 2) threatening and refusing to pay the earned premiums, commissions and fees owed on its accounts with defendant Willis Corroon Corporation of Missouri, and unearned future premiums for non-cancelable policies, unless defendant Willis Corroon Corporation of Missouri refused to allow plaintiff to work on the General Dynamics Corporation accounts; and 3) threatening to remove all future business from all Willis Corroon entities unless defendant Willis Corroon Corporation of Missouri refused to allow plaintiff to work on the General Dynamics Corporation accounts.

As for the fourth element, Wenthe alleges:

Defendant General Dynamics Corporation intentionally interfered as alleged above, without justification or excuse, in that they were motivated by the improper motive to harm plaintiff and further used wrongful means, to-wit: defendant had no legal right to tortiously defame plaintiff in the manner alleged in Count VIII ...; and defendant General Dynamics Corporation wrongfully cajoled and threatened defendant Willis Corroon Corporation of Missouri that it would refuse to pay earned premiums, commissions and fees due, thereby threatening illegal actions and breaches of contract, unless defendant Willis Corroon Corporation of Missouri breached its contracts and relationship with plaintiff.

Plaintiffs First Amended Petition, p. 26-27.

As for the last element, Wenthe asserts, “General Dynamics Corporation’s tortious interference with contract and business relationship directly damaged plaintiff, to-wit: deprived plaintiff of his compensation in accord with his Employment Agreement in the approximate amount of $527,103.00 and further deprived plaintiff of his commissions and fees in the approximate amount of $239,-592.00, the amount due under the Purchase Agreement.”

In Buller, this court reviewed a petition alleging tortious interference with business expectancies in which the plaintiff alleged “Defendants had no justification for such publication[.]” Buller, 684 S.W.2d at 480. The Buller court held the above allegation, in light of the command of Scheibel, sufficiently established that element of the tort. Id.; Fischer, 586 S.W.2d at 315-16.

After a careful review of the allegations forming Counts IX, X, and XI, we reach the same conclusion in this case. Wenthe’s first amended petition sets forth allegations at least as, and in many instances, more specific than those in Buller. Therefore, we find Wenthe has sufficiently pled all of the elements of tortious interference in Counts IX and X of his first amended petition. Additionally, we find Count XI sufficiently pled a civil conspiracy because Wenthe alleged an agreement between Willis Corroon and General Dynamics to do an unlawful act, i.e. the allegations in Counts IX and X. Ritterbusch v. Holt, 789 S.W.2d 491, 494 (Mo. banc 1990).

General Dynamics’ first argument fails because it assumes a tortious interference claim that utilizes allegedly slanderous statements cannot stand unless the plaintiff concurrently states a claim for slander. General Dynamics has consistently argued Wenthe’s “principal” claim was slander. Wenthe’s slander claim was subsequently barred by the one-year statute of limitations for such claims. According to General Dynamics, Wenthe’s tortious interference action is also time-barred by the one-year statute of limitations for defamation actions. In support of this argument, General Dynamics asserts the only jurisdictions to address this issue have ruled that “[w]here defamation claims are barred by the statute of limitations, related tortious interference claims are also barred.” (Emphasis added). However, we do not find the cases cited by General Dynamics support this proposition. See Martinez v. Hardy, 864 S.W.2d 767, 776 (Tex.Ct.App.1993); Evans v. Philadelphia Newspapers, Inc., 601 A.2d 330, 334-35 (Pa.Super.Ct.1991); McGaa v. Glumack, 441 N.W.2d 823, 826 (Minn.Ct.App.1989); Lashlee v. Sumner, 570 F.2d 107, 109 (6th Cir. 1978). Rather, we find the better reasoned analysis and the weight of authority holds that the “gravamen” of the complaint (see Downey v. United Weatherproofing, 253 S.W.2d 976, 982-83 (Mo.1953); Joba Const. Co., Inc. v. Burns & Roe Inc., 121 Mich.App. 615, 329 N.W.2d 760 (1982)) or “a fair reading of the complaint in its totality,” (see McCully-Smith Associates, Inc. v. Armour & Co., 358 F.Supp. 331, 332 (W.D.Pa.1973)), should determine whether the cause of action is for defamation or tortious interference and then the applicable statute of limitations should be applied. See also, Guaranty Nat. Ins. Co. v. International Ins. Co., 994 F.2d 1280, 1284 (7th Cir.1993); Garrison v. Herbert J. Thomas Memorial Hospital, 190 W.Va. 214, 438 S.E.2d 6, 12-15 (1993); Wilkerson v. Carlo, 101 Mich.App. 629, 300 N.W.2d 658, 660 [n. 3] (1980); Joba Const. Co., Inc., 329 N.W.2d at 760; Bio/Basics Intern. v. Ortho Pharmaceutical Corp., 545 F.Supp 1106, 1111-12 (S.D.N.Y.1982). Where the tortious interference is a mere label used to avoid the statute of limitations — on what is principally a claim for slander — the action should be judged by the shorter defamation statute of limitations and barred. Bio/Basics Intern, 545 F.Supp at 1109-10, n. 1. Here, however, a fair reading of the petition indicates the gist of Wenthe’s allegations sought redress for the alleged tortious interference by General Dynamics, and was not an attempt to subvert the statute of limitations for a slander action. See Garrison v. Herbert J. Thomas Memorial Hospital Association, 438 S.E.2d at 14 ([OJne of the elements for tortious interference is an intentional act which “could consist of defamatory statements or writings. Yet, merely because one of the elements of tor-tious interference could require proof of defamatory statements or writings does not change the cause of action to defamation.”); Downey, 253 S.W.2d at 983 (“[Although the stated false representations are of a defamatory character, they are not alleged as such as the basis for injunctive relief. They are alleged as a means by which defendant was attempting to accomplish another continuing wrong from which plaintiffs seek relief ... We think it must be conceded that the gist or gravamen of plaintiffs’ claim as alleged is for relief against the continuing violation of their property rights — their right to pursue their business and their right to reap the profits from existing contracts.”). Thus General Dynamics’ first argument is meritless.

We decline to reach the merits of General Dynamics second argument. Citing Community Title v. Roosevelt Federal S & L, 796 S.W.2d 369, 372-73 (Mo. banc 1990), General Dynamics argued its conduct was justified because one who has an economic interest in a contract cannot be held liable for inducing a breach of such contract unless improper means were used. It is inappropriate for us to consider General Dynamics’ second argument on a motion to dismiss because it is an argument that General Dynamics is entitled to judgment as a matter of law — not that Wenthe failed to state a claim upon which relief could be granted. Here, Wenthe has sufficiently pled absence of justification by improper means (with the allegations of independently wrongful conduct including, among other things, the slanderous statements and the threats to not pay due premiums on several insurance contracts) which, as discussed above, satisfies Wenthe’s burden under Scheibel and states a cause of action sufficient to survive a motion to dismiss.

In his third and last point on appeal, Wenthe argues the trial court erred in granting summary judgment for General Dynamics on the breach of contract count (Count VII) because the motion and response revealed genuine issues of material fact and General Dynamics was not entitled to judgment as a matter of law. We disagree.

We review the record in the light most favorable to the party against whom summary judgment was entered, which means the “movant bears the burden of establishing a right to judgment as a matter of law on the record as submitted.” ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993). Our review is essentially de novo. Delp v. Doe, 895 S.W.2d 91, 92 (Mo.App.E.D.1995).

Wenthe, in Count VII of his first amended petition, alleges on or about September 26, 1988, he and General Dynamics entered into an agreement whereby Wenthe promised and agreed to “a) continue working certain ‘space business’ insurance accounts for General Dynamics which plaintiff initiated and established for the benefit of defendant General Dynamics”; and b) refrain from competing or conflicting in any way with General Dynamics’ “space business” on his own behalf or for another company. General Dynamics allegedly agreed in exchange “to refrain from using the services of any insurance broker or agent other than plaintiff, through the auspices of Corroon & Black of Missouri, to insure or otherwise cover the risk of any of General Dynamics ‘space business’ lines as was [sic] at that time placed through Corroon & Black of Missouri by plaintiff, and for the duration of sixty (60) space shots.” Wenthe alleges General Dynamics breached this 1988 agreement in 1992 by using insurance brokers other than Wenthe to work the “space business.”

On October 28, 1992, General Dynamics and Willis Corroon executed an agreement that in paragraph ten settled and released all claims relating to General Dynamics’ space business: “10. Willis Corroon is claiming commissions and premiums due on Third Party Space (Pre-Launch, Launch, and In-Orbit) Liability Insurance. Willis Corroon has submitted invoice # 6589 in the amount of $3,680,000. As part of the settlement, Willis Corroon agrees to drop its claim for premiums and commissions in connection with such insurance.... ”

Wenthe argues the motion for summary judgment was improperly granted because 1) a person not a party to a release cannot be legally bound to it; and 2) the release was void as an illegal rebate of insurance premiums under § 375.936(9), RSMo 1994. We find both arguments unpersuasive.

Wenthe admits he was a continuous employee of Willis Corroon from October 1, 1985 through June 30, 1993. When Wenthe allegedly contracted for General Dynamics’ space business in 1988, he was contractually obligated “to devote his full-time best efforts” to generating and placing insurance on behalf of Willis Corroon. Wenthe further admits, pursuant to the terms of his amended employment agreement with Willis Corroon, his primary job duties were to generate and place insurance coverage on behalf of Willis Corroon for General Dynamics. In Wenthe’s response to General Dynamics’ motion for summary judgment, he admits “repeatedly demand[ing], as an agent and employee of Willis Corroon, that defendant pay its premiums and commissions due on the space insurance, to Willis Corroon ... Again, however, the defendant’s promise was made directly to plaintiff.” (Emphasis added).

Notwithstanding Wenthe’s assertion that General Dynamics made a promise “directly to plaintiff,” the balance of Wenthe’s admissions and statements clearly demonstrate he asserted the claims against General Dynamics not personally, but as an agent of Willis Corroon. General Dynamics and Willis Corroon entered into an agreement that settled and released all claims regarding General Dynamics’ “space business.” A validly executed release is prima facie evidence that the movant is entitled to judgment as a matter of law. See Andes v. Albano, 853 S.W.2d 936, 940 (Mo. banc 1993). Therefore, the trial court properly entered summary judgment on Wenthe’s contract claim because his response did not rebut the presumption raised in favor of General Dynamics — it actually confirmed that he asserted the claims against General Dynamics as an agent of Willis Corroon.

Wenthe’s last argument attacking the summary judgment is that the release provides for an illegal rebate of insurance premiums under § 375.930(2), RSMo 1994. We find the argument unavailing because the statute does not allow a private cause of action for alleged violations. See Liberty Life Ins. Co. v. Schaffer, 853 F.2d 591, 593 (8th Cir.1988) (the Missouri Director of Insurance has statutory responsibility for determining whether an insurance company has violated the statute; the statute does not provide a private right of action) (citing Tufts v. Madesco Inv. Corp., 524 F.Supp. 484, 486-87 (E.D.Mo.1981)). Point denied.

The judgment granting General Dynamics’ motions to dismiss Counts IX, X, and XI of Wenthe’s first amended petition is reversed, and the summary judgment on Count VII is affirmed.

CRAHAN, P.J., concurs in part; dissents in part. CRANDALL, J., concurs.

1 . Willis Corroon refers to four entities: Willis Corroon Corporation, Willis Corroon Corporation of Missouri (formerly known as Corroon and Black of Missouri), Willis Corroon Corporation of Maryland, and Willis Corroon Americas.

2 . Wenthe concedes in his opening brief that Count VIII for slander was properly dismissed by the trial court on statute of limitations grounds.

3 . Pursuant to Rule 74.01(b), the trial court found there was "no just reason for delay” regarding Counts VII through XI of Wenthe's first amended petition, and entered an appealable judgment in favor of General Dynamics.

4 . A claim for intentional interference with contract or business expectations includes the following elements:

1) a contract or valid business relationship or expectancy;

2) knowledge by the defendant of the contract or relationship;

3) intentional interference by the defendant which induces the breach of contract or relationship;

4) the absence of justification; and

5) resulting damages.

Buller v. Pulitzer Pub. Co., 684 S.W.2d 473, 479 (Mo.App.1984).

5 . Although Wenthe had a series of written employment contracts that provided he could only be dismissed for cause, we note the overwhelming majority of caselaw holds even interference with employment contracts terminable at will are actionable. Hester v. Barnett, 723 S.W.2d 544, 564 (Mo.App.1987); W. Page Keeton et al., Prosser and Keeton On The Law of Torts § 129 at 995-96, n. 83 (5th ed.1984).

6 .The defamatory statements alleged in Counts IX and X include the following: “That the plaintiff had engaged in illegal ‘sweetheart deals’ with former General Dynamics Corporation management with regard to the sale of insurance for the purpose of his own profit; and further, in conflict of interest, was a member of a syndicate where he placed General Dynamics insurance accounts, improperly and illegally benefitting therefrom ... That plaintiff was a ‘crook’ and was stealing money from his expense accounts ... That plaintiff was getting ‘kickbacks' from London Underwriters on General Dynamics accounts....”