Murphy v. Jackson Nat. Life Ins. Co., No. 24589.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Nancy Steffen Rahmeyer
• Citation: 83 S.W.3d 663
• Parties: Timothy Michael MURPHY and Danny Steven Murphy, Co-Personal Representatives of the Estate of Danny Lee Murphy, Deceased, Plaintiffs-Respondents, v. JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellant.
• Decision Date: 17 July 2002
• Docket Number: No. 24589.

83 S.W.3d 663 Timothy Michael MURPHY and Danny Steven Murphy, Co-Personal Representatives of the Estate of Danny Lee Murphy, Deceased, Plaintiffs-Respondents,
v.
JACKSON NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellant. No. 24589. Missouri Court of Appeals, Southern District, Division Two. July 17, 2002. Motion for Rehearing and Transfer to Supreme Court Denied August 1, 2002. Application for Transfer Denied September 24, 2002.

Page 664

David G. Bandre, Thomas B. Snider, Bandre, Hunt & Snider, LLC, Jefferson City, for appellant.

Robert M. Sweere, Moon, Plaster & Sweere, L.L.P., Springfield, for respondents.

NANCY STEFFEN RAHMEYER, Judge.

Danny Lee Murphy ("Murphy") brought an action for damages to recover on an insurance policy issued to him by Jackson National Life Insurance Company ("Jackson National").¹ After the parties submitted cross-motions for summary judgment,

Page 665

the trial court granted summary judgment in favor of Murphy and awarded him $75,130.17, plus interest. Jackson National appeals from the grant of summary judgment in favor of Murphy, arguing 1) that the trial court erred based on Murphy's ratification of certain payments made from the insurance policy, and 2) that the trial court failed to offset the judgment with the amount of money deposited into Murphy's joint bank account. We find that genuine issues of material fact exist and remand the cause to the trial court for further proceedings.

We review the grant of summary judgment de novo. Deer Run Property Owners Association v. Bedell, 52 S.W.3d 14, 16 (Mo.App. S.D.2001). We need not defer to the trial court's order granting summary judgment. ITT Commercial Finance Corp. v. Mid-America Marine Supply, 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for testing the propriety of summary judgment on appeal is the same as the standard that should have been employed by the trial court to determine whether to sustain the motion. Id. The propriety of summary judgment is purely an issue of law founded on the record submitted to the trial court. Id. On appeal we review the record in the light most favorable to the party against whom summary judgment was entered and allow the non-movant the benefit of all reasonable inferences. American Family Mutual Insurance Co. v. Hoffman ex rel. Schmutzler, 46 S.W.3d 631, 634 (Mo.App. W.D. 2001). If the trial court's judgment does not specify the basis upon which it granted summary judgment, we will uphold the decision if it was appropriate under any theory. Deer Run, 52 S.W.3d at 17.

"The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question." ITT, 854 S.W.2d at 380. Rule 74.04(c)(1)² sets forth the requirements for motions for summary judgment: "Motions for summary judgment shall state with particularity in separately numbered paragraphs each material fact as to which the movant claims there is no genuine issue, with specific references to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to such facts." A genuine issue exists where the record contains competent materials that show "two plausible, but contradictory, accounts of the essential facts." ITT, 854 S.W.2d at 382. Once a movant has met the burden imposed by Rule 74.04(c), the non-movant must show by affidavit or through other documents that one or more of the material facts is genuinely disputed. Id. at 381. Entry of summary judgment is precluded where genuine disputes over facts might affect the outcome of the suit. American Family, 46 S.W.3d at 636. If the non-movant cannot contradict the showing of the movant, judgment is properly entered against the non-movant because the movant has already established a right to judgment as a matter of law. ITT, 854 S.W.2d at 383.

Where the non-movant raises affirmative defenses, the movant must also show, beyond any genuine dispute, that the defenses are legally insufficient or the non-existence of a fact essential to the defenses. Id. The movant "may defeat an affirmative defense by establishing that any one of the facts necessary to support the defense is absent." Curnutt v. Scott Melvin Transport, Inc., 903 S.W.2d 184, 189-90 (Mo.App. W.D.1995).

Page 666

Turning to the case at bar, on or about November 4, 1988, Jackson National issued an insurance policy to Murphy in consideration of receipt of a premium from Murphy in the amount of $62,399.19. The policy provided that if Murphy was living on the maturity date, he would receive a monthly life income annuity for 120 months. The policy also included provisions under which Murphy, as owner of the policy, could receive withdrawals of the cash surrender value of the policy prior to the maturity date.

On August 17, 1999, Murphy made a written application for "all money from my annuity policy." On August 18, 1999, Jackson National sent Murphy $14,577.92 and withheld $2,776.73 for tax purposes. These combined figures (totaling $17,354.65) represented the total amount to which Jackson National claimed Murphy was entitled pursuant to the full withdrawal provision of the policy. On January 4, 2001, Murphy's attorney demanded additional sums from Jackson National, a demand that Jackson National subsequently denied.

It is undisputed that between April 10, 1995 and April 22, 1999, sixteen withdrawal transactions were made from the policy, which included $96,232.38 in partial withdrawal payments and an additional $6,494.06 for federal and state tax withholdings. In his summary judgment motion, Murphy challenges fourteen of the sixteen transactions, alleging that none of the fourteen were made or authorized by him. Ten of the challenged fourteen transactions were partial withdrawal payments and the other four were tax withholdings.

Murphy filed a petition for damages to recover the amounts reflected in the challenged transactions. Jackson National's answer contained two affirmative defenses relating to the count of the petition at issue in this appeal.³ In the first affirmative defense, Jackson National claimed that Murphy's action was barred under the theory of accord and satisfaction because Jackson National, over time, had forwarded to Murphy, through the partial withdrawal transactions, the entire amount to which he was entitled under the terms of said policy. The second affirmative defense states:

"By taking partial withdrawals from Jackson National ..., [Murphy] voided certain terms of the contract, those being terms entitling him to specific monetary payments of a set dollar amount. Accordingly, and due to those partial withdrawals, [Murphy] is not entitled to the amounts of return as originally set forth in the policy."

In his summary judgment motion, Murphy provided an affidavit in which he asserted that he did not authorize the challenged withdrawals or tax withholding transactions, and submitted forgery affidavits in which he claimed that, although he was the payee of the checks for the challenged partial-withdrawal payments, the...