GRISAMORE v. STATE FARM MUT. AUTO. INS. CO., WD 70988.

• Decision Date: 20 April 2010
• Docket Number: No. WD 70988.,WD 70988.
• Citation: 306 SW 3d 570
• Parties: Jeffrey J. GRISAMORE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Randall Sisk, Respondents.
• Court: Missouri Court of Appeals

306 S.W.3d 570

Jeffrey J. GRISAMORE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Randall Sisk, Respondents.

No. WD 70988.

Missouri Court of Appeals, Western District.

January 12, 2010.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 2, 2010.

Application for Transfer Denied April 20, 2010.

Richard L. Rollings, Jr., Camdenton, MO, Mark E. Parrish, Lee's Summit, MO, for Appellant.

James L. Sanders, Kansas City, MO, Alex B. Judd, Overland Park, KS, for Respondent, State Farm.

Dale L. Beckerman, Kansas City, MO, Tanya M. Wendt, Kansas City, MO, for Respondent, Sisk.

Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.

JAMES EDWARD WELSH, Judge.

Jeffrey J. Grisamore appeals the circuit court's grant of summary judgment in favor of State Farm Mutual Automobile Insurance Company and State Farm's claim representative, Randall Sisk, and the dismissal of his claims for negligent misrepresentation and fraudulent misrepresentation against State Farm and Sisk. Grisamore contends that the circuit court erred in dismissing his claims against State Farm and Sisk because the uncontroverted facts in the motion for summary judgment did not establish that State Farm and Sisk were entitled to judgment as a matter of law. Grisamore also asserts that the circuit court erred in dismissing his claims against Sisk because Sisk did not file a motion for summary judgment and comply with the requirements of Rule 74.04. We reverse and remand.

Grisamore was allegedly injured on June 27, 2003, when his vehicle was struck from the rear by a vehicle driven by Edwin H. Crom. Crom was insured under a policy of automobile liability insurance issued by State Farm. State Farm assigned its employee Randall Sisk as claim representative to investigate Grisamore's claims against Crom. During this investigation, Sisk communicated with Grisamore regarding Grisamore's alleged accident and injuries.

On June 26, 2008, Grisamore filed his petition for damages against Crom, State Farm, and Sisk. Counts one and three of the petition asserted claims for negligent misrepresentation against State Farm and Sisk, respectively. Counts two and four asserted claims for fraudulent misrepresentation against State Farm and Sisk, respectively. Count five asserted a claim for negligence against Crom. State Farm filed its answer on July 29, 2008, and Sisk filed a separate answer on September 29, 2008.

On September 15, 2008, State Farm filed a motion for summary judgment and suggestions in support. The statement of uncontroverted material facts in the motion included four undisputed facts:

1. Plaintiff Jeffrey J. Grisamore filed his Petition for Damages on or about June 26, 2008.

2. Count V of Plaintiff's Petition alleges negligence against Defendant Crom following an alleged motor vehicle accident on or about June 27, 2003, involving Plaintiff and Defendant Crom.

3. At the time of the aforementioned motor vehicle accident, Defendant Crom had paid a premium and possessed a policy of automobile insurance issued by State Farm and that policy provided potential liability coverages for bodily injury and property damage according to the terms, conditions, and requirements of said policy.

4. As an employee of State Farm, Randall Sisk was assigned as claim representative for the investigation of Plaintiff's insurance claim against Defendant Crom, a State Farm insured, and Mr. Sisk communicated with Plaintiff during this investigation.

In its motion State Farm argued:

While State Farm disputes the allegations made in Plaintiff's Petition, there is no need to address the merits of those allegations as they do not state a cause of action under which Plaintiff may proceed against State Farm. Rather, Plaintiff is improperly attempting to pursue a direct action against a liability insurer (State Farm) and liability insurer claim representative (State Farm employee Randall Sisk) of Edwin H. Crom and no such claim or cause of action is legally recognized or allowed. Further, State Farm states it and its claim representative Randall Sisk have only an adversarial relationship with Plaintiff; therefore, they have no contractual obligation, duties, and/or responsibility beyond those imposed by law, and that any such duty or obligations to Plaintiff are governed according to the Unfair Trade Practices Act, § 375.930, which pre-empts any claims being made or attempted by Plaintiff, and does not provide any type of private right or cause of action. Therefore, there is no genuine issue as to any material fact and State Farm and State Farm claim representative Randall Sisk are entitled to judgment as a matter of law on these issues.

Despite being filed by State Farm only, the motion sought summary judgment on behalf of both State Farm and Sisk.

On November 6, 2008, the circuit court granted State Farm's motion for summary judgment and ordered State Farm dismissed without prejudice. On December 22, 2008, Sisk filed a motion to clarify and noted that State Farm's motion for summary judgment moved for summary judgment for both State Farm and Sisk. Sisk noted that, because he is being sued in his capacity as an employee of State Farm, the facts and arguments necessary to grant summary judgment for him are essentially the same as those for State Farm. Sisk requested that the circuit court clarify its order granting summary judgment to State Farm "so that he may know if the Court's Order also dismisses him or if he needs to file an appropriate motion for summary judgment." On March 5, 2009, the circuit court entered an "Amended Partial Judgment of Dismissal without Prejudice of Counts I, II, III, and IV," which dismissed counts one through four of Grisamore's petition for damages without prejudice.¹ The circuit court's judgments noted, "This partial judgment adjudicates all claims between Plaintiff and Defendant State Farm Mutual Insurance Company and Defendant Randall Sisk." Pursuant to Rule 74.01(b), the circuit court certified that there was no just reason for delay and that the judgment as to State Farm and Sisk was final for the purpose of appeal. Grisamore appeals.

In his first point on appeal, Grisamore contends that the circuit court erred in granting the motion for summary judgment and dismissing his claims against State Farm and Sisk because the uncontroverted facts in the motion for summary judgment did not establish that State Farm and Sisk were entitled to judgment as a matter of law. He claims that the uncontroverted facts in the motion for summary judgment did not address any of the elements of his claims for negligent or fraudulent misrepresentation or establish any properly pled affirmative defense and that his claims do not constitute a direct action under a liability insurance policy and are not barred by the Unfair Trade Practices Act. We agree.

When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the circuit court's granting of a summary judgment de novo. Id. "The propriety of summary judgment is purely an issue of law." Id. Because the circuit court's judgment is based on the record submitted and the law, we need not defer to the circuit court's order granting summary judgment. Id. We will affirm the circuit court's grant of summary judgment if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. at 380.

"In sustaining a motion for summary judgment, a trial court may state its theory or reasons for so doing. When no grounds are stated, the trial court is presumed to base its decision on the grounds specified in the motion." Brinson v. Whittico, 793 S.W.2d 632, 633 (Mo.App.1990). In this case, the circuit court did not state its reasons for granting the summary judgment or its reasons for dismissing State Farm and Sisk. We, therefore, presume that the circuit court's grant of summary judgment and dismissal of State Farm and Sisk were based on the grounds specified in the summary judgment motion—that Grisamore cannot maintain a direct action against State Farm as a liability insurer or against Sisk as State Farm's claim representative and that Grisamore's claims are barred by the Unfair Trade Practices Act.

State Farm and Sisk, as the defending party to a lawsuit may show entitlement to summary judgment in three possible ways:

A "defending party" may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts sic, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

ITT, 854 S.W.2d at 381. In this case, State Farm and Sisk have not shown a right to summary judgment on any of the three grounds.

First, the motion for summary judgment does not directly negate any of the elements of Grisamore's claims against State Farm and Sisk. The four undisputed facts in the summary judgment motion do not negate any of the elements of Grisamore's claims for negligent or fraudulent misrepresentation. In their motion, State Farm and Sisk impliedly argue that Grisamore cannot rely on any representation by Sisk because State Farm and Sisk have only an adversarial relationship with Grisamore. A party, however, may have a right to rely on representation made by an adversarial party when such adversarial party has superior knowledge of the facts. Vickers v. Progressive Cas. Ins. Co., 979 S.W.2d 200 (Mo.App.1998). Indeed, in Vicke...