Bakewell v. Missouri State Employees' Retirement System, WD

• Decision Date: 13 March 1984
• Docket Number: No. WD,WD
• Citation: 668 S.W.2d 224
• Parties: Janice M. BAKEWELL and John R. Bakewell, Appellants, v. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent. 34564.
• Court: Missouri Court of Appeals

Page 224

668 S.W.2d 224

Janice M. BAKEWELL and John R. Bakewell, Appellants, v. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent.

No. WD 34564.

Missouri Court of Appeals Western District.

March 13, 1984.

John R. Bakewell, pro se.

John Ashcroft, Atty. Gen., Patricia D. Perkins, Asst. Atty. Gen., Jefferson City, for respondent.

Before MANFORD, P.J., CLARK and KENNEDY, JJ.

PER CURIAM:

This appeal arises from the granting of summary judgment to the defendant, the Missouri State Employees' Retirement System (MOSERS), after both parties had moved for summary judgment. The case involves whether a state employee who was medically insured under the state plan, § 104.310 ¹ et seq., but who then drops her individual coverage, is entitled to be later covered either in her own right or as a dependent of her husband (now a state employee in an agency covered by MOSERS), without providing a satisfactory statement of health.

Defendant MOSERS is a body corporate and an instrumentality of the state. Section 104.320. The board of MOSERS, among other things, under § 104.515.1 is to provide insurance to cover the hospital, surgical and medical expenses of qualified state employees, who are made members of the system, their spouses and their unemancipated children under twenty-three years old. Under § 104.515.3 the board is to establish rules of eligibility for participation in such program of insurance, with the rules to avoid duplication of any benefits with those provided by any other medical insurance program. Insurance benefits are to be provided only to employees, their spouses and children who comply with the rules of eligibility for participation established by the board. Basically the state contributes toward the employee-member's share of the cost, while deductions are taken from the employee's wages to cover dependent insurance.

In 1980 plaintiff Janice Bakewell discontinued her state health insurance under MOSERS after becoming insured as a dependent of her husband John, who worked for a state agency not covered by MOSERS. ² In January, 1982, John accepted employment from a state agency covered by MOSERS. Janice immediately reapplied for but was denied individual coverage under MOSERS since she did not produce a satisfactory statement of health. MOSERS based its denial of individual coverage to Janice upon a regulation which requires employees who apply for coverage after 31 days of their date of eligibility to produce a satisfactory statement of health. Immediately after being denied individual coverage for Janice, John applied for dependent coverage for his wife. MOSERS' response was that Janice was not eligible as a dependent, relying upon a regulation stating a dependent does not include persons qualified in their own right to be insured as state employees.

A ruling at this time on the merits of the Bakewells' cause of action is impossible due to the muddled condition of the record to be reviewed. The pleadings were incomplete to denominate the necessary facts and issues, and the "law" relied upon was superceded during the time in question. Summary judgment on this record was inappropriate.

It must be noted that the parties' briefs totally ignore that MOSERS was granted summary judgment and that review on appeal is limited to whether that disposition was proper. The parties flail away with diverse legal arguments and theories and attempt to add facts via the briefs and oral argument without ever mentioning Rule 74.04. Much of the Bakewells' brief is spent arguing why their motion should have been granted. There is no appeal from the denial of summary judgment, Guthrie v. Reliance Construction Co., Inc., 612 S.W.2d 366, 368 (Mo.App.1980). MOSERS alludes to the fact that certain facts would have been clearer had evidence been entertained, after having been granted summary judgment. The Bakewells' request to this court to issue what the trial court refused to issue, that is by a "writ of mandamus" force MOSERS to issue the insurance and remand for a hearing on their damages, will go without comment.

MOSERS filed its motion for summary judgment July 27, 1982, relying upon a supporting affidavit, its answer to the Bakewells' petition, and the requested judicial notice of certain state regulations relating to the Missouri State Retirement Plan. The Bakewells filed suggestions in opposition to summary judgment and at the same time in opposition to MOSERS' motion for an extension of time to respond to written interrogatories. The Bakewells were granted leave to file a second amended petition, this time captioned "Petition for Declaratory judgment and/or writ of Mandamus," on October 13, 1982. The Bakewells filed their own motion for summary judgment on October 29, 1982. The court granted MOSERS' summary judgment motion and ruled the regulations to be valid.

The utter confusion of this case is in part explained by the Bakewells' failure to plead the essential facts, and to make clear their theories of relief. MOSERS' filed its motion for summary judgment based upon plaintiffs' amended petition which asked for "judicial review and/or mandamus." The last petition, the one before this court, also asks for damages but suggests declaratory relief by the court in holding the regulations invalid, or alternatively, to hold MOSERS' interpretation invalid, and to mandate MOSERS to issue the insurance to Janice. The petition raises under one count several theories as a basis for relief, including violations of equal protection and due process, and that MOSERS acted arbitrarily in its interpretations of the regulations and denial of state health insurance to Janice.

The regulations referred to and relied upon by the parties through and including the briefing schedule as controlling on the applications for individual and dependent coverage are as follows: 16 CSR 30-3.050 (rescinded) states that for employee coverage, if application for insurance is made 31 days after the date of eligibility, a "satisfactory statement of health will be required." The waiting period for eligibility for coverage is one month of service 16 CSR 30-3.040 (rescinded). 16 CSR 30-3.020 (rescinded) states, "that in no event shall the term 'dependent' include any person eligible for benefit as an employee." As will be noted later these regulations were either not in effect or were superceded during the time when the facts arose.

Apparently no discovery was ever completed. The Bakewells propounded interrogatories to MOSERS that were not answered. The Bakewells attempted to raise MOSERS' lack of cooperation but there was no motion to compel answers to the interrogatories, nor to request the trial judge to delay decision on the motion until discovery could be conducted. Rule 74.04(f).

The record must be scrutinized in the light most favorable to the party against whom filed and summary judgment rendered, and we must accord that party the benefit of every doubt. Since summary judgment is a drastic remedy, it is inappropriate unless the prevailing party has shown by unassailable proof, from which no genuine issue of material fact on any controlling issue exists, that as a matter of law judgment should be entered in his favor. Rule 74.04; First National Bank of St. Charles v. Chemical Products, Inc., 637 S.W.2d 373, 375 (Mo.App.1982). No findings of fact would be appropriate for where summary judgment is proper there can be no material disputed fact. Fauvergue v. Garrett, 597 S.W.2d 252, 253 (Mo.App.1980). Instead, the facts must be gleaned from the pleadings, affidavits, and exhibits. Snowden v. Northwest Missouri State University, 624 S.W.2d 161, 163 (Mo.App.1981).

Rule 74 allows the use of affidavits to "pierce the pleadings" and demonstrate the lack of any genuine issue of material fact. When faced with a motion for summary judgment supported by affidavit, the nonmoving party cannot rest upon the mere allegations of his pleadings but instead must demonstrate the existence of a genuine fact issue. Where the movant submits supporting affidavits which fail to comply with the requirements of Rule 74.04(e), however, the nonmoving party's burden of presenting facts outside of the pleading allegations, through affidavits, interrogatories, depositions, etc., no longer applies. Weber v. Missouri State Highway Commission, 639 S.W.2d 825, 832 (Mo.1982).

With the foregoing principles in mind, the sufficiency of MOSERS' only supporting affidavit will first be examined. Rule 74.04(e) requires that:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

In essence, the rule requires the affidavit to follow substantially the same form as if the affiant were testifying. 6 Moore's Federal Practice p 56.22 (2d ed. 1979). An affidavit failing to meet the criteria set forth in Rule 74.04(e) should not be considered by the court in ruling on summary judgment motion. ³

The affidavit of Rosemary Eppenauer recites her position as Assistant Executive Secretary of the Missouri State Employees' Retirement System and states that her duties include having custody of MOSERS' records and administering the Missouri State Medical Care Plan according to its rules. The affidavit contains no further declaration of the affiant's personal knowledge or otherwise affirmative demonstration of her competence to testify. Allen v. St. Luke's Hospital of Kansas City, 532 S.W.2d 505, 507 (Mo.App.1975), cert. denied, 429 U.S. 804, 97 S.Ct. 37, 50 L.Ed.2d 65 (1976). The affidavit refers to records kept by MOSERS relating to the Bakewells without any attempt to qualify them as business records under § 490.680 RSMo. 1978, other than stating the affiant was their custodian. What is...