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Defoe v. American Family Mutual Insurance Co.

Court of Appeals of Missouri, Western District, Second Division

May 30, 2017

DANIEL R. DEFOE, Appellant,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.

         Appeal 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

          Karen King Mitchell, Judge

         Daniel 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.

         Background[1]

         DeFoe 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 Professional Responsibility."

         Beginning 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.

         In 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.

         On June 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), [2] 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."

         He then alleged that Employer terminated his employment and that his protected activity was a contributing factor in the termination decision.

         Employer 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.

         Standard of Review

         "We 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 ...


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