Green v. Penn-America Ins. Co., WD 67165.

Citation242 S.W.3d 374
Decision Date16 October 2007
Docket NumberNo. WD 67165.,WD 67165.
PartiesMary Ann GREEN, Natural Mother of Gerald McAdoo, Deceased, Appellant, v. PENN-AMERICA INSURANCE CO., et al., Respondents.
CourtCourt of Appeal of Missouri (US)

Michael D. Hufft, Kansas City, MO, for Respondent.


VICTOR C. HOWARD, Chief Judge.

After obtaining a judgment for invasion of privacy and wrongful death against the owner of a St. Louis area nightclub, Mary Ann Green (Green) brought an equitable garnishment action under section 379.200 against Penn-Star Insurance Company (Penn-Star) in Jackson County.1 She now appeals the adverse decision of the Jackson County Circuit Court. Green claims that the circuit court erred in ruling the invasion of privacy portion of the St. Louis judgment was void because it failed to state the cause's essential elements and that the exclusion clause for judgments arising from assault and battery excluded coverage for a judgment sounding in nuisance. We reverse the portion of the judgment pertaining to the sufficiency of Green's initial invasion of privacy pleading and affirm the remainder of the judgment.


On January 6, 2003, an unidentified person killed Green's son, Gerald McAdoo (Gerald), outside of Club Liquid, operated by Club Concepts, Inc. (Club) in St. Louis, Missouri. As Gerald was leaving the nightclub, a fight ensued, and he walked over to watch. A single shot fired by an unidentified assailant struck and killed Gerald. Club had earlier leased the premises from BENHR, Inc. (Landlord).

Dangerous and illegal behavior, including frequent assaults, armed robbery, gunfire, lewd and lascivious acts, intoxicated patrons, and underage consumption of alcohol, plagued the operation of the nightclub prior to Gerald's death. In the three years preceding the death of Gerald, Club generated ninety-seven police incident reports for criminal activity, seventeen of which were assaults on patrons, and three of which were armed robberies. Club did not provide secure parking for their patrons. Consequently, the St. Louis court determined the property owned by Landlord and operated by Club constituted a public nuisance.

After Gerald's death, Club publicly advertised that it would donate the following weekend's nightclub proceeds to Gerald's family and operated at full capacity that weekend. It did not have Gerald's family's consent or other authority to use his name. Club has not provided Green with any of the proceeds from that weekend.

Penn-Star, the defendant in the current action, insured both Club and Landlord under a Commercial General Liability Policy (policy) at the time of Gerald's death. The policy covered both the sums the insureds would become obligated to pay as a result of "bodily injury" or an invasion of a person's "right to privacy." The policy, however, created an exclusion of liability for assault and battery "[w}hether or not caused by or arising out of the insured's failure to properly supervise or keep the insured's premises in a safe condition."

Green instituted a suit for wrongful death and invasion of privacy against Club and Landlord. Penn-Star denied that it would be liable under the insurance policy based on the assault and battery exclusion and did not hire an attorney to defend Club and Landlord. Club, although properly served, did not enter an appearance or file responsive pleadings. Landlord entered an appearance and defended the lawsuit without Penn-Star's assistance. On March 11, 2005, the St. Louis Circuit Court found Club and Landlord jointly liable for the nuisance, which caused Gerald's death. It determined damages to be $3,500,000. The court also found Club liable for invasion of privacy and determined damages to be $500,000. Moreover, the court made an explicit finding that Club lacked authority or consent to use Gerald's name for a promotion.

To satisfy the wrongful death and invasion of privacy judgments, Green brought the current equitable garnishment2 action against Penn-Star in Jackson County to seek recovery under the policy described above.3 The Jackson County Circuit Court entered judgment in favor of Penn-Star. The court determined that the invasion of privacy judgment was void because the petition on which the St. Louis court judgment rested failed to adequately state a cause of action for invasion of privacy; it did not plead a lack of consent to use Green's name or likeness. Furthermore, it found the St. Louis court issued a default judgment and, therefore, the petition was unamendable. The Jackson County court found that the St. Louis court lacked subject matter jurisdiction over the invasion of privacy claim and that portion of the judgment was void and unenforceable. Furthermore, the assault and battery exclusion in the policy prevented Green from recovering from Penn-Star on the wrongful death claim.

Standard of Review

"Questions of law are reviewed de novo." Pierce v. BSC, Inc. 207 S.W.3d 619, 621 (Mo. banc 2006). Where the facts are uncontested, as is the case here, the issue of whether a default judgment is void for want of jurisdiction is reviewed de novo. Jew v. Home Depot USA, Inc., 126 S.W.3d 394, 397 (Mo.App. E.D.2004). Furthermore, the interpretation of an insurance contract is a question of law and, accordingly, is reviewed de novo. Green v. Federated Mut. Ins. Co., 13 S.W.3d 647, 648 (Mo.App. E.D.1999).

Sufficiency of the Invasion of Privacy Petition

The St. Louis court ruled that Club invaded Green's right to privacy by appropriating Gerald's name for its own advantage and awarded Green $500,000.4 Our current task is to determine if that judgment was void and unenforceable because the petition omitted an element of the invasion of privacy tort. Club posits that to prevail on a claim of invasion of privacy, appropriation of name or likeness, the plaintiff must prove that there was a publication by the defendant, the publication contains the plaintiffs name or likeness, the defendant derives an advantage from the publication, and the defendant lacks plaintiffs consent or other right to publish the name or likeness.5 See generally Nemani v. St. Louis Univ., 33 S.W.3d 184, 185-86 (Mo. banc 2000); Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076, 1079 (Mo.App.1911).6 Green's petition at the St. Louis court did not aver that Club lacked consent or authority to use Gerald's name or likeness.7 It did, however, allege that Club used Gerald's name in a radio advertisement, derived an advantage from that advertisement, and, consequently, Green was entitled to relief.

We begin the analysis by noting that a valid judgment is a necessary pre requisite in an equitable garnishment action. First Nat'l Bank v. Conner, 485 S.W.2d 667, 671-72 (Mo.App.1972). Furthermore, the failure to adequately plead a cause of action will deprive the court of jurisdiction and thus render any purported judgment void. Adkisson v. Dir. of Revenue, 891 S.W.2d 131, 132 (Mo. banc 1995).

Subject matter jurisdiction is composed of two parts. First, it assumes the power of the court, to consider the matter brought before it. Second, it includes the ability of the court to grant the relief requested by the person seeking relief. As to the latter, "if a petition wholly fails to state a cause of action, the defect is jurisdictional." State ex rel. Fletcher v. Blair, 352 Mo. 476, 178 S.W.2d 322, 324 (1944). Rule 55.27(g)(2) therefore provides that "[a] defense of failure to state a claim upon which relief can be granted" may be made by motion "on appeal." Munson v. Dir. of Revenue, 783 S.W.2d 912, 916 (Mo. banc 1990) (Robertson, J. dissenting). We therefore, examine whether the petition provided jurisdiction to the St. Louis court.

Missouri employs what is commonly referred to as fact pleading. Luethans, v. Wash. Univ., 894 S.W.2d 169, 171 (Mo. banc 1995). Compared to its federal analogue, notice pleading, fact pleading demands a relatively, rigorous level of factual detail. See State ex rel. Papin Builders, Inc. v. Litz, 734 S.W.2d.853, 858 (Mo.App. E.D.1987) (overturned on other grounds). Under the fact pleading regime, the petition must describe ultimate facts demonstrating entitlement to the relief sought. Westphal v. Lake Lotawana Ass'n, 95 S.W.3d 144, 152 (Mo.App. W.D.2003). A valid petition states "`fact[s] in support of each essential element of the cause pleaded.'" Brock v. Blackwood, 143 S.W.3d 47, 57 (Mo.App. W.D.2004) (emphasis added) (quoting Duvall v. Lawrence, 86 S.W.3d 74, 80 (Mo.App. E.D.2002)). When considering the sufficiency of the petition the trial court must "consider the pleadings, allowing them their broadest intendment, and accepting as true the facts as pleaded with all reasonable inferences arising therefrom. If the allegations invoke principles of substantive law entitling a plaintiff to relief, the petition should not be dismissed." Norber v. Marcotte, 134 S.W.3d 651, 657 (Mo.App. E.D.2004) (citation omitted).

To counterbalance the rigorous level of factual detail required by fact pleading and the technical dismissal of cases based on insufficient, yet readily curable petitions, Missouri has adopted powerful tools to amend defective petitions in non-default settings. However, Missouri's liberal rules for amending petitions are inapplicable in the default judgment context. "[T]he relief granted upon default may not be `other or greater than that which he shall have demanded in the petition as originally filed and served on defendant.'" In re Estate of Scholz, 615 S.W.2d 459, 462 (Mo.App. E.D.1981) (quoting § 511.160). "Rule 55.33(b), which allows pleadings to be amended to conform to the evidence, does not apply in default proceedings." Jew, 126 S.W.3d at 398.

While the parties vigorously dispute whether the judgment entered by the St....

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