Court of Appeals of Missouri, Southern District, Second Division
DAVID M . BILLINGSLEY, Appellant,
FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin R.
Rahmeyer, C.J./P.J., Bates, J., and Scott, J.
Billingsley challenges (1) an adverse summary judgment on his
petition to collect insurance or recover premiums after a
fire loss, and (2) respondent Farmers' counterclaim
judgment against him for prima facie tort based on
Billingsley's complaint to Missouri's Department of
Insurance. We affirm the former and reverse the latter.
1983, Billingsley, a Kansan, bought two adjacent Springfield
rental houses and engaged Carol Martin to manage them, then
almost immediately warranty-deeded both houses to his sister,
Joanna, a Springfield attorney. In 1986, a fire policy was
applied for and issued by Farmers to "Joanna V.
Billingsley c/o Carol Martin Property Mgmt." as named
insured, and was renewed each year with no change in the
named insured even after Joanna deeded both houses back to
Billingsley in 1992.
destroyed one house in 2002. Farmers denied Billingsley's
policy claim on the ground that it had not contracted with or
insured him. In 2004, Billingsley sued Farmers on the policy
or alternatively for a premium refund. In 2010, Farmers
won summary judgment on the policy claim, but was denied
summary judgment on the refund claim, which remained pending.
2011, Billingsley complained to Missouri's Department of
Insurance (MDI) about Farmers, citing the still-pending
lawsuit and its case number. MDI requested Farmers to respond
and provide all relevant documents within 20 days. Farmers
paid its lawsuit counsel $4, 354 to do so. After receiving
Farmers' response, MDI encouraged Billingsley to work
with his lawyer and defer to the court's official
determinations, but took no action against Farmers.
soon voluntarily dismissed his case and refiled a petition
asserting seven counts against Farmers - five seeking to
recover on the policy under various theories, plus a
vexatious-refusal claim and an alternative count for premium
refund. Farmers counterclaimed for prima facie tort based on
Billingsley's MDI complaint.
again sought summary judgment, asserting that Billingsley
would be unable to prove an element (or more) of each of his
newly-pleaded claims. See ITT Commercial Fin. Corp. v.
Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 381 (Mo.
banc 1993). The court granted Farmers' motion,
then tried Farmers' counterclaim to a jury. At trial,
Farmers claimed damages of $4, 354 for its attorney fees in
responding to MDI after Billingsley's complaint. The jury
found for Farmers in that amount, plus $20, 000 punitive
entry of a final judgment consistent with all the above,
Billingsley filed this appeal. We first address his points
challenging summary judgment on his petition's claims.
re Billingsley's Pleaded Claims
first element of a traditional fire-policy claim is that an
insurer issued a fire policy to the claimant. Travers v.
Universal Fire & Cas., 34 S.W.3d 156, 160 (Mo.App.
2000); MAI 31.09. That Farmers issued no policy to
Billingsley prima facie defeats such claim, illustrated by
Billingsley's prior summary-judgment loss on his 2004
that he needed more to get to a jury, Billingsley dismissed
that case and filed a beefed-up petition asserting new
allegations and theories. To the extent these new allegations
might let Billingsley recover although he had no policy, they
were "elements facts" that were his burden to
prove, so Farmers could show a prima facie right to judgment
on any count by showing either:
1. facts that negated any one of Billingsley's
"elements facts, " or
2. that despite adequate time for discovery, Billingsley had
not produced and would not be able to produce evidence
sufficient to allow a factfinder to find the element(s)
challenged by Farmers.
See ITT, 854 S.W.2d at 381. Billingsley could not
then rest on his pleaded allegations, but had to produce
specific facts showing a genuine issue for trial or suffer
summary judgment. Id.
1 & 2 (re Count I)
new petition alleged generally that Joanna was
Billingsley's "agent" (without describing the
agency's nature or scope), and its Count I policy claim
hinged on those allegations. Yet even under that scenario and
Billingsley's cited cases, he could not recover on the
policy unless Joanna's agency to acquire and hold
insurance for him had been disclosed to or known by Farmers.
See Estes v. Great Am. Ins. Co., 112 S.W.2d 153,
157-59 (Mo.App. 1938). See also United Fire & Cas. v.
Garvey, 328 F.3d 411, 413-14 (8th Cir. 2003), and on
subsequent appeal, 419 F.3d 743, 746-49 (8th
Cir. 2005) (considering Estes in context of
insurer's alleged captive agent).
Joanna's alleged agency, Farmers' statement of
uncontroverted facts ("SUMF, " see Rule
74.04(c)(1)) established at least the following:
• Joanna never represented to Farmers or its alleged
agent ("Insurors") that she was Billingsley's
agent for the purpose of procuring insurance. She had no
contact with Farmers or Insurors regarding the properties or
their insurance prior to the fire. She did not know she was
the named insured until after the fire. She never talked with
Billingsley before the fire about who the policy insured, and
took no action herself to check or confirm who was insured.
• Carol Martin never knew of the deeds to or from
Joanna, or that anyone but Billingsley owned the properties
the entire time. She testified that, prior to the post-fire
lawsuit, neither Billingsley nor Joanna nor anyone else ever
told her that Joanna was any kind of agent regarding the
• Billingsley had no contact with Farmers or Insurors
regarding the properties prior to the fire.
thus successfully asserted that Billingsley could not produce
evidence from which jurors could find either Joanna's
agency or Farmers' scienter.
one assumes arguendo Joanna's agency as pleaded,
we cannot find where Billingsley's petition alleges that
Joanna disclosed her agency to anyone, or that anyone knew
she was Billingsley's agent for property-insurance
purposes or otherwise, or that the summary-judgment record
raises a genuine issue as to scienter of Joanna's
property-insurance agency. Points 1 or 2 do not address
Billingsley's failure to plead or prove this
"elements fact" of his claim. Points denied.
3 (re Count IV)
quote Billingsley's brief, "Count IV of the petition
asserted that Carol Martin and/or Joanna Billingsley had
insurable interests and were entitled to recover under the
policy." Billingsley's third point charges that
Farmers did not show a prima facie right to judgment on Count
IV because Farmers' SUMF omitted "that Carol Martin
and Joanna Billingsley did not have insurable
interests in 1516 North Grant related to obligations to
insure the property or otherwise …."
we note that this complaint, like most of Billingsley's
summary-judgment points, indicates a failure to understand
Rule 74.04 burden shifting:
"When a motion for summary judgment is made and
supported as provided in this Rule 74.04, "
i.e., when the movant makes a prima facie showing
that there are no genuine issues of material fact and that
the movant is entitled to judgment as a matter of law,
"an adverse party may not rest upon the mere allegations
or denials of his pleading, but his response, by
affidavits or as otherwise provided in this Rule 74.04,
shall set forth specific facts showing that there is
a genuine issue for trial." Rule 74.04(e). [Emphasis
ITT, 854 S.W.2d at 381.
other words, it is not enough that Billingsley's
summary-judgment points complain that Farmers did not
also negate facts that either were (1)
Billingsley's duty to show after the ITT/Rule
74.04 burden shifted, or (2) not "material" because
they would not change Farmers' right to judgment.
Particularly as to the latter, we reiterate that Farmers only
had to knock out (so to speak) one element of a
pleaded claim to win summary judgment, not multiple elements
or other allegations of the petition. ITT, 854
S.W.2d at 381.
rate, Billingsley fails to show how Joanna had any insurable
interest after she parted with title in 1992 (see
Estes, 112 S.W.2d at 157, 157-58), or how property
manager Carol Martin ever had an insurable interest, or, for
that matter, his right, by assignment or otherwise, to assert
their claims. We deny Point 3.
6 (re Count III)
this point out of order. Billingsley's Count III alleged
that the property was mortgaged, and the policy identified
and insured the mortgagees at the time of loss, but Farmers
denied the mortgagees' claim, forcing Billingsley to pay
"approximately $20, 000.00" to satisfy the
mortgage, so he sought "at least $20, 000.00" from
summary-judgment record, (1) the mortgage was satisfied,
released, and thus extinguished before the mortgagees
submitted their policy claim; and (2) further, Farmers denied
the mortgagees' claim for the stated reasons that they
"misrepresented the amount due and owing on the Note and
… failed and refused to provide records and documents
requested by Defendant Farmers that were necessary to
calculate the actual amount due and owing on the Note."
in Point 6, claims this summary judgment was improper because
Farmers' SUMF "omitted as an actual material
fact" that Farmers had no policy obligation to pay the
mortgagees. We disagree for at least two reasons. First, the
burden had shifted to Billingsley to show, despite the
summary-judgment record, some evidence that the mortgagees
were entitled to recover on the policy. ITT, 854
S.W.2d at 381. Second, as with the last point, Billingsley
fails to show (or even to have pleaded) his standing to
assert the mortgagees' policy rights. We deny Point 6.
4 & 5 (re Counts II & V)
challenges the summary judgments on Count V (policy coverage
by estoppel) and alternative Count II (premium refund for
unjust enrichment) because Farmers' SUMF did not assert
that Farmers could retain premiums "after asserting that
the policy was void and after denying that anyone was insured
or entitled to coverage" thereunder.
underlying principle was discussed in Gutting v. Shelter
Mut. Ins. Co., 905 S.W.2d 550 (Mo.App. 1995), which
collected over a dozen Missouri cases to the following
effect: When an insurer asserts that its policy "was not
in force and effect from the beginning, it is its duty to
tender back to [the insured] the premiums paid by him within
a reasonable time after the discovery of the facts upon which
it intends to base such defense." Id. at 551
(internal quotation marks and citation omitted).
Billingsley offers no adequate response when Farmers notes
that it did not claim the policy was void ab initio
or that Farmers "was entitled to receive, accept and
retain premiums in exchange for providing coverage to the
named insured [from 1986-92 when Joanna held title] and
mortgagees as described herein [from 1986 policy inception
through 2002 loss]." Points 4 and 5 fail.
7 (re Count VII)
Count VII vexatious-refusal claim required success on his
policy claim. See MAI 10.08 ("If you find in
favor of plaintiff on the claim on the insurance policy, and
if …."). Failure of the foregoing points thus
moots this one.
found no merit in Points 1-7 relating to Billingsley's
pleaded claims, we affirm the judgment in those respects and
turn next to the counterclaim judgment for prima facie tort.
re Prima Facie Tort Judgment
courts, while recognizing prima facie torts at least
nominally, do not look upon them with favor and have
consistently limited the application of the prima facie
tort." Hertz Corp. v. RAKS Hosp., Inc., 196
S.W.3d 536, 549 (Mo.App. 2006). The theory's essential
elements are said to be (1) an intentional lawful act by the
defendant; (2) with intent to injure the plaintiff; (3)
resulting in such injury; and (4) no justification or
insufficient justification for the defendant's act.
See Porter v. Crawford & Co., 611 S.W.2d 265,
268 (Mo.App. 1980).
9 & 11 (Damages)
begin with Billingley's Point 9 complaint that "the
only damages Farmers claimed were the attorney fees it
incurred in responding to the Department of Insurance and
those fees were not allowed under any exception to the
American Rule." In reply, Farmers claims benefit of the
"collateral litigation" exception and argues that
no Missouri case "squarely holds" said exception
could not apply here.
find no particularly helpful Missouri case. But in
introducing prima-facie-tort doctrine to Missouri
jurisprudence, Porter accurately observed that
"the leading modern authorities arise in New York";
that "in no state other than New York has the doctrine
been developed with such care"; and that "the
willingness of the New York courts to recognize and confront
the issues presents an unusual opportunity to vicariously
assess the whole ambit of issues involved in the development
and application of the theory." 611 S.W.2d at 270.
only New York case we find runs against Farmers'
position. See Howard v. Block, 454 N.Y.S.2d 718
(App. Div. 1982) (attorney fees incurred in prior proceedings
not recoverable in prima facie tort). "That prior
actions were meritless or vexatious does not, without more,
spell out prima facie tort, and attorney's fees incurred
therein do not spell out special damages …."
Id. at 719.
no reason to depart from this view. We grant Point 9 against
Farmers' judgment for actual damages, as well as Point 11
as to the punitive-damage award, which fails absent an
actual-damage recovery (Ellison v. Fry, 437 S.W.3d
762, 777 (Mo. banc 2014)), and reverse the counterclaim
judgment in its entirety.
Billingsley's remaining points are moot, we would be
remiss not to observe that Farmers never proved the third
element of prima-facie-tort liability per Porter;
i.e., that the intended injury resulted.
to Farmers' not-in-MAI verdict director,  Billingsley
intended to injure Farmers "by compelling it to pay
him" under the policy, which never happened. The legal
fees Farmers claimed as damages differed from the
"injury" required for prima facie tort. See
Porter, 611 S.W.2d at 271, and its cited ...