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Bishop & Associates, LLC v. Ameren Corp.

Supreme Court of Missouri, En Banc

June 27, 2017

BISHOP & ASSOCIATES, LLC, Appellant,
v.
AMEREN CORPORATION, UNION ELECTRIC COMPANY d/b/a AMEREN MISSOURI, AMEREN SERVICES COMPANY, JAMES ARMISTEAD, MICHAEL WRIGHT, and RICHARD GEORGE, Respondents.

         APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable Joan L. Moriarty, Judge

          Patricia Breckenridge, Chief Justice

         Bishop & Associates, LLC (B&A), filed a multi-count action against Ameren Corporation, Union Electric Company d/b/a Ameren Missouri, Ameren Services Company (collectively, Ameren), and James Armistead, Michael Wright, and Richard George (collectively, the supervisors) alleging wrongful discharge in violation of public policy, defamation, breach of the implied covenant of good faith and fair dealing, and tortious interference with a business expectancy. The suit arose after Ameren terminated its relationship with B&A, which provided commercial plumbing services at several of Ameren's facilities. The circuit court entered summary judgment in favor of Ameren and the supervisors on all counts. B&A appealed, asserting that independent contractors have a cause of action for wrongful discharge in violation of public policy and that the circuit court erroneously entered summary judgment on its claims of breach of the implied covenant of good faith and fair dealing and tortious interference with a business expectancy.

         The circuit court did not err in entering summary judgment in favor of Ameren and the supervisors. Missouri does not recognize a common law cause of action for wrongful discharge in violation of public policy for independent contractors. Missouri courts have always described the public policy exception as a narrow exception to the at-will employment doctrine. And although this Court expanded the exception to contract employees alleging wrongful discharge, this Court has never applied the public policy exception outside the context of an employer-employee relationship. This is consistent with most jurisdictions that have addressed whether independent contractors have a cause of action for wrongful discharge in violation of public policy and is supported by the fact that independent contractors are not as susceptible to coercion as at-will or contract employees.

         Likewise, the circuit court did not err in entering summary judgment on B&A's claim of breach of the implied covenant of good faith and fair dealing. Because the purchase order expressly permitted Ameren to cancel the agreement with B&A at any time for any reason, there can be no breach of the implied covenant of good faith and fair dealing. Furthermore, despite B&A's claims to the contrary, Missouri case law does not support a breach of contract claim for wrongful termination in violation of public policy.

         Finally, the circuit court did not err in entering summary judgment on B&A's tortious interference with a business expectancy claim. While B&A asserts that evidence in the record displays the supervisors' personal animus toward Mr. Bishop, such evidence does not establish a genuine issue of material fact as to whether the supervisors were acting out of personal, as opposed to corporate, interests. Therefore, B&A has failed to produce facts to establish the supervisors acted in their own self-interest and cannot prove an absence of justification for purposes of tortious interference. Accordingly, this Court affirms the circuit court's grant of summary judgment.

         Factual and Procedural Background

         B&A is a limited liability company specializing in commercial plumbing. B&A employs Robert Bishop as a master plumber and drain-layer. In 2002, B&A entered into a purchase order with Ameren to "provide backflow testing on a schedule[d] basis and emergency service and/or preventative maintenance on an as-needed basis" at several of Ameren's facilities in Missouri and Illinois. The purchase order was non-exclusive, and Ameren could cancel it at any time for any reason by giving B&A 30 days advance written notice. At all times, B&A served Ameren as an independent contractor.

         Mr. Bishop performed the majority of the plumbing services at Ameren's facilities. He prepared reports containing photographs and commentary related to each job he performed. In the reports, Mr. Bishop identified potential environmental and contamination issues at Ameren's facilities.

         In 2005, Ameren and B&A entered into a "flex-time" arrangement in which B&A performed routine and recurring maintenance at several of Ameren's facilities. Under the arrangement, Ameren received a reduction in labor and equipment costs in exchange for B&A being allowed to schedule the maintenance during gaps or slow periods in B&A's schedule. Following the flex-time arrangement, nearly 100 percent of B&A workload was allocated to Ameren.

         In February 2009, Michael Wright, the superintendent of building services for Ameren, sent Mr. Bishop an email stating that, due to the current economic conditions, Mr. Bishop should not perform any of the "yearly flex-time maintenance" at Ameren facilities without first getting permission from Mr. Wright. The email further stated Mr. Wright would consider the merits of having such maintenance performed on a case-by-case basis.

         In January 2010, Mr. Bishop proposed to Ameren a three-year contract in which B&A would provide a two-man work crew onsite 40 hours per week. The proposed cost was $720, 000 per year. Ameren rejected the proposed contract.

         In May 2010, Mr. Bishop requested a meeting with James Armistead, a building maintenance supervisor, to discuss the proposed contract and additional concerns Mr. Bishop had about the "new direction" Ameren was taking in bidding out plumbing projects. Mr. Bishop prepared a letter detailing his concerns, including the reduction in business B&A received from Ameren and the potential risk and liability Ameren could incur by hiring other contractors and handymen who were less focused on preventative maintenance. Attached to the letter was a report Mr. Bishop compiled identifying plumbing and contamination problems at several of Ameren's facilities. Mr. Bishop also sought meetings with high-ranking Ameren officials to discuss the report and what B&A could do to prevent Ameren from incurring such liabilities.

         On July 13, 2010, Mr. Bishop arrived at the Ameren facility in Alton, Illinois, to perform non-emergency maintenance services. Mr. Bishop was instructed to leave the facility because he did not notify Ameren in advance that he would be performing any maintenance that day. The following day, Mr. Wright emailed Mr. Bishop and reminded him he needed to contact management personnel before arriving to perform maintenance at Ameren facilities. Mr. Bishop responded it was the first he had been informed of the need to call ahead and it would not be beneficial for B&A if the maintenance had to be scheduled in advance.

         On July 29, 2010, Ameren gave notice to B&A that Ameren was terminating its contract with B&A. B&A subsequently contacted the St. Louis County Department of Public Works and the United States Environmental Protection Agency and gave them a copy of the report detailing contamination and plumbing problems at Ameren facilities.

         In 2012, B&A[1] filed a four-count petition against Ameren, Mr. Armistead, Mr. Wright, and Richard George, another of Ameren's building maintenance supervisors. B&A alleged Ameren wrongfully discharged B&A in violation of public policy because of Mr. Bishop's repeated reports to high level officials that documented environmental and public safety hazards at Ameren facilities. In the alternative, B&A alleged Ameren breached the implied covenant of good faith and fair dealing when it terminated its relationship with B&A. B&A also alleged the supervisors defamed B&A and tortiuously interfered with its business expectancy by making statements that B&A was overly expensive, performed unnecessary work, used excessive equipment and turned everything into a project to benefit itself.

         Ameren and the supervisors moved for summary judgment, alleging they were entitled to judgment as a matter of law on all counts. The circuit court sustained Ameren's summary judgment motion. B&A appealed. After an opinion by the court of ...


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