Court of Appeals of Missouri, Western District, Second Division
DANIEL R. DEFOE, Appellant,
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.
from the Circuit Court of Jackson County, Missouri The
Honorable J. Dale Youngs, Judge
Before: Thomas H. Newton, Presiding Judge, and James Edward
Welsh and Karen King Mitchell, Judges
King Mitchell, Judge
DeFoe appeals the dismissal, with prejudice, of his second
amended petition against American Family Mutual Insurance
Company (Employer), alleging wrongful termination. The court
found that DeFoe's petition failed to state a claim under
the public policy exception to Missouri's
employment-at-will doctrine insofar as the facts pled failed
to show a "well established and clearly mandated public
policy" required for the application of the exception.
Finding no error, we affirm.
worked as a Regional Legal Senior Staff Attorney in the
Claims Legal Division of Employer's Kansas City office
from July 14, 2003, to August 21, 2013. DeFoe was responsible
for handling litigation involving Employer's insureds
"within established corporate guidelines, applicable
standards of good faith behavior, and the Missouri Rules of
in 2009, DeFoe began to express concerns to his supervisor
regarding increasing workloads and file retention. In 2010,
Employer closed several offices and transferred their files
to DeFoe's office, resulting in an increased workload for
DeFoe and his colleagues. Another of Employer's offices
was closed in July of 2012, and its files were also
transferred to DeFoe's office. As a result of the
closings, DeFoe's office was responsible for
Employer's territory covering the western half of
Missouri and the entire state of Kansas. Around the same
time, DeFoe's division lost four attorneys and replaced
only one. During 2012, DeFoe was assigned 85 litigation
files, 73% of which were litigated in-house, while the
remainder were assigned to outside counsel.
2012, DeFoe again expressed concerns to his supervisor about
the increased workload and travel, as well as the decreased
staffing and resources, suggesting they might have an effect
on the competent representation of insureds. On several
occasions in 2013 and before, DeFoe reported that "the
number of cases to which he was assigned exceeded an amount
which was reasonable and proper, and impacted the ability as
an attorney to adequately represent the insureds'
interests." On March 18, 2013, Employer gave DeFoe a
Performance Improvement Plan-the first written form of
discipline DeFoe had received during his employment. On
August 21, 2013, DeFoe's employment was terminated.
10, 2014, DeFoe commenced a lawsuit against Employer. On
August 1, 2016, DeFoe filed a second amended petition,
alleging wrongful termination in violation of public policy.
DeFoe alleged that the Missouri Rules of Professional
Responsibility, specifically Rules 4-1.1 and 4-5.4(c),
constituted "valid, clearly mandated source[s] of public
policy, which serve to further public health, safety, and
welfare." He further alleged that he engaged in
protected activity in the following two ways:
1. "[B]y exercising professional judgment in the
interests of his insureds by complaining about the increasing
workloads imposed upon him by [Employer] which he believed
compromised his ability to effectively and adequately
represent his clients, i.e., insureds of [Employer], and
therefore violated Rule 4-5.4(c) and Rule 4-1.1."
2. "[B]y acting in a manner encouraged by public policy
by asserting his professional independence from that of
[Employer] which continued to assign him an excessive amount
of legal files in its effort to reduce its reliance on
outside legal counsel to curtail costs."
alleged that Employer terminated his employment and that his
protected activity was a contributing factor in the
filed a motion to dismiss, arguing that DeFoe's petition
failed to state a claim insofar as Rules 4-1.1 and 4-5.4(c)
could not support a claim for common law wrongful
termination. After hearing arguments from both parties, the
court granted Employer's motion, holding "that the
provisions of the Missouri Rules of Professional Conduct upon
which [DeFoe] relies in support of his claim-Rules 4-1.1 and
4-5.4(c)-are simply too vague in order to constitute the
'well established and clearly mandated public policy'
required for the application of the exception to the facts as
pled by [DeFoe]." DeFoe appeals.
review the trial court's grant of a motion to dismiss de
novo." Truman Med. Ctrs., Inc. v. McKay, 505
S.W.3d 799, 801 (Mo. App. W.D. 2016). "We view the facts
contained in the petition as true and in the light most
favorable to the plaintiff." Id. "If the
petition contains any facts that, if proven, would entitle
the plaintiff to relief, then the petition states a
claim." Id. "To state a claim, a petition
must invoke substantive principles of law entitling the
plaintiff to relief." Id. "We must affirm
the trial court's ruling if the motion to dismiss could
have been ...