United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs Motion to Compel
(ECF No. 25), Plaintiffs Motion for Summary Judgment (ECF No.
30), and Plaintiffs Second Motion to Compel (ECF No. 34).
Also pending is Defendant's Daubert Motion to Exclude the
Expert Opinions of Frank Jacobs (ECF No. 35) The motions are
fully briefed and ready for disposition. The Court will
address each motion separately.
case stems from a motor vehicle accident on September 17,
2015, in which Plaintiff was driving a company van and was
struck by an unknown vehicle that caused the accident and
left the scene. (First Am. Compl. ¶¶ 3-7, ECF No.
14) On that date, Defendant The Cincinnati Insurance Company
("Cincinnati") had a policy of insurance issued to
Stiarwalt Electric Inc. ("Stiarwalt") insuring a
2008 Ford E-350 model van and providing uninsured motorist
coverage. (Id. at ¶ 4) The unidentified and
at-fault motorist is considered an uninsured motorist under
the terms of the policy. (Id. at ¶¶ 8-10)
As the driver of the insured vehicle, Plaintiff is a covered
person for uninsured motorist benefits under the policy.
(Id. at ¶ 11)
First Amended Complaint, Plaintiff alleges that he performed
all required conditions under the terms of the policy but
that Cincinnati has failed and refused to pay uninsured
motorist benefits to compensate Plaintiff for his injuries
resulting from the accident. (Id. at ¶ 14)
Plaintiff contends that he has sustained serious and
permanent injuries to his head, neck, back, and shoulders,
including multiple spinal fractures, constituting a permanent
disability. (Id. at ¶¶ 15, 17) He further
alleges that he has endured pain and suffering, incurred
medical expenses, sustained a loss of income, and will likely
incur future medical expenses and income loss due to his
injuries. (Id. at ¶¶ 16, 18) Plaintiff
claims that Defendant Cincinnati's refusal to pay
uninsured motorist benefits constitutes a breach of contract
(Count I) and a vexatious refusal to pay under Mo. Rev. Stat.
§ 375.296 (Count II). (Id. at ¶¶ 14,
20) Plaintiff seeks compensatory and vexations refusal
PlaintifFs Motion for Summary Judgment
filed a motion for summary judgment, asserting that no
genuine issue of material fact exists with respect to
Plaintiffs claim for breach of contract for failure to pay
uninsured motorist benefits in accordance with the insurance
policy and Plaintiffs claim for vexatious refusal to pay said
benefits. Defendant responds that genuine issues of material
fact remain as to Plaintiffs alleged damages in this case,
and his employability in particular, such that summary
judgment is not warranted.
to Federal Rule of Civil Procedure 56(c), a court may grant a
motion for summary judgment only if all of the information
before the court show "there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law." Fed.R.Civ.P. 56(c). See Celotex
Corp. v. Catrett, Ml U.S. 317, 322 (1986). The court
must view the evidence and all reasonable inferences in the
light most favorable to the non-moving party. Hutson v.
McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir.
moving party has the initial burden to establish the
non-existence of any genuine issue of fact that is material
to a judgment in its favor. City of Mt. Pleasant, Iowa v.
Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th
Cir. 1988). Once this burden is discharged, if the record
does in fact bear out that no genuine dispute exists, the
burden then shifts to the non-moving party, who must set
forth affirmative evidence and specific facts showing there
is a genuine dispute on that issue. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249(1986).
the burden shifts, the non-moving party may not rest on the
allegations in its pleadings, but by affidavit and other
evidence must set forth specific facts showing that a genuine
issue of material fact exists. Fed. R. Civ .P. 56(e). The
non-moving party "must do more than simply show that
there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In fact, the non-moving
party must present sufficient evidence favoring the
non-moving party which would enable a jury to return a
verdict for that party. Anderson, 477 U.S. at 249;
Celotex, 477 U.S. at 324.
Breach of Contract
argues that he is entitled to summary judgment on his breach
of contract claim because there is no dispute that Plaintiff
is entitled to uninsured motorist benefits under the
insurance policy and that Defendant has failed to pay. To
establish a claim for breach of contract under Missouri law,
a Plaintiff must demonstrate "(1) the existence and
terms of a contract; (2) that plaintiff performed or tendered
performance pursuant to the contract; (3) breach of the
contract by the defendant; and (4) damages suffered by the
plaintiff." Keveney v. Missouri Military
Acad., 304 S.W.3d 98, 104 (Mo. 2010) (citation omitted).
Here, Defendant asserts that a genuine dispute exists as to
whether Defendant breached the contract with Plaintiff.
Further, Defendant contends there is a genuine dispute with
respect to the amount of damages.
Court agrees that Plaintiff has not established that
Defendant breached the contract. The record shows that
Defendant has not denied Plaintiffs claim. Instead, the
parties continue to argue over the proper amount owed to
Plaintiff. Defendant asserts, and Plaintiff does not dispute,
that Plaintiff has demanded $1 million in compensatory
damages and has refused settlement offers up to $350, 000.
(Def.'s Response p.3-4, ECF No. 43) In his reply brief,
Plaintiff offers no case law in support of his proposition
that in breach of contract litigation, a Defendant may only
avoid breaching its contractual obligation as a matter of law
by paying what Defendant determines is owed and then
continuing to trial on the amount of additional damages. The
Court declines to adopt this unsupported theory and finds
that a genuine issue of material fact remains with regard to
Plaintiffs breach of contract claim. Thus, the Court denies
Plaintiffs motion for summary judgment on Count I of the
First Amended Complaint.