Crow v. Crawford & Co.

Decision Date13 May 2008
Docket NumberNo. ED 90093.,ED 90093.
Citation259 S.W.3d 104
CourtMissouri Court of Appeals
PartiesChristopher CROW, et al., Plaintiffs/Appellants, v. CRAWFORD & COMPANY, et al., Defendants/Respondents.

James M. Dowd, St. Louis, MO, for plaintiffs/appellants.

Peter B. Hoffman, Robert F. Chandler, Gerard T. Noce, Michael L. Young, St. Louis, MO, Steven P. Kuenzel, Washington, MO, for defendants/respondents.

CLIFFORD H. AHRENS, Judge.

Christopher Crow ("Mr. Crow") and Tonya Crow ("Mrs. Crow") (collectively "Appellants") appeal from the trial court's summary judgment in favor of defendants Cassens Transport Company ("Cassens"), Crawford & Company ("Crawford"), Tina Litwiller, and L. David Green on Appellants' claims for malicious prosecution, abuse of process, intentional infliction of emotional distress, invasion of privacy, and discrimination under section 287.780 RSMo 2000.1 Finding no error, we affirm.

Mr. Crow was employed by Cassens on February 7, 2001. Mr. Crow fell from a truck that day, sustaining injuries to his left elbow and left hand. On February 12, 2001, Mr. Crow called Kevin Nelson, the safety coordinator ("Safety Coordinator") for Cassens and told him that a day or so after his fall that his right shoulder began to hurt. Mr. Crow sought treatment for his injuries through Cassens. Mr. Crow's initial MRI was negative, but he received treatment until April 4, 2001, remaining off-work during this period. Dr. Nogalski released him to return to work as of that date. Mr. Crow did not immediately return to work, but rather contacted Safety Coordinator to express dissatisfaction with Dr. Nogalski, and to complain that his shoulder was getting worse. Safety Coordinator advised Mr. Crow to come in to work and see how things went, but Mr. Crow told him that he would report back to work on April 9, 2001, instead.

Cassens did not handle workers' compensation claims itself. Crawford had a contract with Cassens to administer workers' compensation claims made by employees of Cassens in Missouri. Litwiller handled those Missouri claims for Crawford, including Mr. Crow's claims for workers' compensation benefits stemming from the February 7, 2001, accident. Safety Coordinator reported his conversation with Mr. Crow of April 5, 2001, to Litwiller, who in turn contacted the safety director of Cassens, Bill Molter, regarding possible surveillance of Mr. Crow to determine whether he was truthful about his claimed injuries. Molter authorized Litwiller to use surveillance. The surveillance video ("video") of Mr. Crow was taken on April 6 and 7, 2001. It showed Mr. Crow engaged in a number of physical activities, including preparing and launching his boat in a public park. Mrs. Crow also appeared in the video of Mr. Crow. This appearance included film of her allegedly urinating while on or near a ramp at the public park's boat dock.

Mr. Crow returned to work at Cassens on April 9, 2001. He worked until May 14, 2001, when he returned to Dr. Nogalski with more complaints. Dr. Nogalski again took Mr. Crow off of work for additional treatment. Upon learning that Mr. Crow was again receiving treatment, Litwiller reviewed the video to see what Mr. Crow had been doing. Dr. Nogalski also informed her that Mr. Crow's subjective complaints were inconsistent with his medical evaluation of him. Dr. Nogalski thereafter viewed the video, and concluded that Mr. Crow displayed no sign of shoulder dysfunction, and issued a report releasing him to return to work. Litwiller received a copy of this report on May 30, 2001. Prior to receiving Dr. Nogalski's report Litwiller had also received a call from Mr. Crow's physical therapist, who expressed concerns about his negative attitude since he began therapy. Mr. Crow did not initially admit that he had been doing anything more extensive than some work around the house and going to therapy, although when questioned about his boat, he acknowledged having been out boating since he filed his workers' compensation claim.

Litwiller spoke with Molter. Based on his understanding of the reports and the video, Molter directed Litwiller to contact the attorney for Cassens, David Green regarding contacting the Missouri Workers' Compensation Commission Fraud Unit ("Fraud Unit"). Green contacted the Fraud Unit, described the situation, and asked if this were a matter for which the Fraud Unit would be interested. The Fraud Unit expressed interest, and consequently Green sent Mr. Crow's medical records to it, as well as the raw, unedited video. Green also provided the Fraud Unit with the name of Mr. Crow's supervisor and his telephone number. The Fraud Unit investigated the matter, and referred it to the Missouri Attorney General's Office. An assistant Attorney General for the State of Missouri, David Barrett ("Assistant AG"), conducted his own review of the materials that the Fraud Unit sent to the Missouri Attorney General's Office. This included the video, as well as Mr. Crow's statements to Safety Coordinator and Litwiller. Assistant AG did not rely on the written reports of those who made the videotapes of Mr. Crow, but rather the videos themselves. Assistant AG filed an information against Mr. Crow, charging him with two counts of misdemeanor workers' compensation fraud.

Mr. Crow was tried in September 2003. Mr. Crow's counsel moved for acquittal at the close of the State's case and at the close of the evidence. The trial court denied both motions, finding that there was a submissible case to the jury. The jury acquitted Mr. Crow of the charges.

Cassens continued to employ Mr. Crow. He did receive a "pending letter of investigation" based on a later injury incident, but was not otherwise disciplined or discriminated against. Cassens often issues such letters when employees do not timely file a report of a claimed injury or accident. Mr. Crow did not report the injury that resulted in the "pending letter of investigation" until seven days after the alleged accident.

Thereafter Mr. and Mrs. Crow filed their lawsuit against Cassens, Crawford, Green, and Litwiller for malicious prosecution, abuse of process, intentional infliction of emotional distress, invasion of privacy, conspiracy, and loss of consortium. All defendants filed motions for summary judgment, with memoranda in support, statements of undisputed material facts, and exhibits. Appellants filed a combined memorandum in opposition to the motions for summary judgment, as well as responses to the statements of facts, and a statement of additional material facts. Both sides thereafter filed additional responses. The trial court issued an order and judgment on July 2, 2007, granting summary judgment in favor of all of the defendants on their respective motions for summary judgment.

Appellants now appeal from this judgment.

Our review of a summary judgment is essentially de novo. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We "review the record in the light most favorable to the party against whom judgment was entered[,]" and accord that party the benefit of all reasonable inferences which may be drawn from the record. Id. We will uphold the grant of summary judgment on appeal if the movant is entitled to judgment as a matter of law and if no genuine issues of material fact exist. Id. "Facts set forth by affidavit or otherwise in support of a party's motion for summary judgment are taken as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. A defendant may establish a right to judgment as a matter of law by showing any of the following: (1) facts that negate any of the elements of the claimant's cause of action; (2) the non-movant, after a reasonable period of discovery, has not and will not be able to produce sufficient evidence to permit the trier of fact to find the existence of any one of the claimant's elements; or (3) there is no genuine dispute as to the existence of each of the facts needed to support the movant's properly pleaded affirmative defense. Id. at 381.

Once a movant has established a right to judgment as a matter of law, the non-movant has the burden of showing that one or more of the material facts shown by the movant not to be in dispute is actually genuinely disputed. Id. The non-movant may not rest upon the allegations and denials of the pleadings, but rather must use affidavits, depositions, answers to interrogatories, or admissions on file to show the existence of a genuine issue for trial. Id. A genuine dispute is one that is real, not merely argumentative, frivolous, or imaginary. Id. at 382.

We note as a general observation that summary judgment is seldom appropriate in cases involving proof of elusive facts such as intent, motive, fraud, duress, undue influence, mental capacity and the like, which must almost always be proved by circumstantial evidence. Estate of Heidt, 785 S.W.2d 668, 670 (Mo.App.1990). However, where the non-movants have made such comprehensive and broad admissions by a failure to respond to requests for admissions and/or by a failure to contradict a movant's affidavit in support of the motion for summary judgment by opposing affidavits, summary judgment is in order, and may be affirmed. See id.

In the present case, Appellants made a number of admissions by failing to contradict affidavits of the defendants. These admissions included statements of fact in various affidavits regarding the motive of Cassens in requesting Green to refer the matter to the Fraud Unit and in providing information to the Fraud Unit. Appellants also admitted, by failing to contradict, that the sole motivation of Litwiller and Crawford was the investigation of Mr. Crow's workers' compensation claim, and that the sole motivation of Green's conduct was the legal defense of that workers' compensation claim.

In their first point relied on, Appellants contend that the...

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