Wunsch v. Sun Life Assur. Co. of Canada
| Decision Date | 15 October 2002 |
| Docket Number | No. WD 60392.,WD 60392. |
| Citation | 92 S.W.3d 146 |
| Parties | Barbara WUNSCH, Appellant, v. SUN LIFE ASSURANCE COMPANY OF CANADA, Respondent. |
| Court | Missouri Court of Appeals |
Gordon N. Myerson, Kansas City, MO, for Appellant.
Elizabeth D. Badger, Kansas City, MO, for Respondent.
Before HOWARD, P.J., and EDWIN H. SMITH and NEWTON, JJ.
Appellant Barbara Wunsch sued Sun Life Assurance Company of Canada, claiming that Sun Life vexatiously delayed payment of the proceeds from her husband's life insurance policy and defamed her. The trial court granted Sun Life summary judgment on both claims.
On appeal, Ms. Wunsch alleges two points of error. First, she contends that the trial court erred in granting Sun Life summary judgment on her claim of vexatious delay because the policy required only "Due Proof of death" to obtain payment, so Sun Life's refusal to pay the loss until she provided a certified death certificate was unreasonable. Second, she contends that the trial court erred in granting summary judgment to Sun Life on her defamation claim.
For the reasons set forth below, we hold that Sun Life has set forth undisputed facts that negate an essential element of Ms. Wunsch's vexatious delay claim, and the allegedly defamatory statements she complains of on appeal were made in connection with a judicial proceeding and therefore absolutely privileged. Thus, summary judgment is proper on both claims, and we affirm the trial court's judgment.
Because Ms. Wunsch's claim is one of vexatious delay, a chronology of events is helpful in explaining this case's background.
On July 20, 1999, Gary Wunsch died after a sudden illness. He had several life insurance policies, one of which was an employer-provided policy with respondent Sun Life Assurance Company of Canada. The Sun Life policy stated that upon "receipt of due proof of [Gary's] death," under a "split dollar arrangement," Ms. Wunsch was to receive $50,000 and Farmer Brothers Company, his employer, was to receive $10,000.1 The policy indicated that the proceeds were "payable upon receipt of Due Proof of [Mr. Wunsch's] death."
On July 27, 1999, a representative of Farmer Brothers notified Sun Life of Mr. Wunsch's death. In response, Sun Life sent claim forms to Farmer Brothers and Ms. Wunsch as the beneficiaries of Mr. Wunsch's policy.
On August 18, 1999, Ms. Wunsch returned her claim form to Sun Life. She did not list a "cause of death" as requested on the form and did not include a death certificate. Ms. Wunsch's attorney informed Sun Life that Mr. Wunsch had been bitten by a tick and the Center for Disease Control in Atlanta, Georgia, was reviewing the matter.
On August 26, 1999, Shannon Slattery, a Sun Life claims representative, spoke to Mr. Wunsch's treating physician, Dr. Geha. Dr. Geha verified Mr. Wunsch had died on July 20, 1999, but he would not issue a death certificate. Rather, he had referred the case to the Jackson County Medical Examiner, Dr. Thomas Young, to determine the cause of Mr. Wunsch's death. Ms. Slattery then contacted Dr. Young, who indicated that an autopsy was performed on July 20, 1999, and the case was "pending."
The following day, Ms. Slattery wrote a letter to Ms. Wunsch's attorney, indicating receipt of Ms. Wunsch's incomplete claim form and requesting a death certificate or, in the alternative, a letter from the medical examiner explaining Mr. Wunsch's manner of death. She also required Farmer Brothers' completed claim form in order to proceed with payment of Mr. Wunsch's policy's proceeds.
On September 20, 1999, in response to a written inquiry from Sun Life, Dr. Young replied by fax that the cause and manner of death had not yet been determined and "homicide [could] not be ruled out." His investigation continued.
On December 7, 1999, at the repeated requests of Ms. Wunsch and her attorney, Dr. Young issued a death certificate, which indicated that the cause of death was "pending investigation." He testified in his deposition that he "wasn't ready to put pen and ink for the cause and manner of death at that point."
On December 14, 1999, Dr. Young issued a certified death certificate, which indicated that Mr. Wunsch's death resulted from "cadmium poisoning," but the manner of Mr. Wunsch's death "could not be determined."2 Dr. Young explained that he arrived at this "conclusion" after extensive laboratory testing and investigation showed high cadmium levels in Mr. Wunsch's system but did not reveal the manner in which the cadmium got there. As was his standard practice for cases in which he could not determine a cause of death and could not rule out homicide, Dr. Young notified the Kansas City, Missouri Police Department of his findings. A police investigation ensued.
On December 21, 1999, Ms. Wunsch mailed a copy of the death certificate to Sun Life. Sun Life received Farmer Brothers' claim form with the death certificate on December 28, 1999.3
On December 22, 1999, Ms. Wunsch filed her petition against Sun Life in which she alleged breach of contract and vexatious refusal to pay.4 She subsequently amended her petition to allege vexatious refusal to pay in violation of § 375.4205 and common law defamation.
On May 10, 2000,6 Sun Life filed its answer and a counterclaim for interpleader, requesting that the policy's proceeds be paid into the court until such time as a determination could be made concerning who the proper beneficiary was.7 Specifically, Sun Life maintained that if Missouri law disqualifies Ms. Wunsch from receiving the proceeds of the policy, then Mr. Wunsch's estate might have interests in the proceeds. Ms. Wunsch opposed Sun Life's request for leave to pay the policy proceeds into the court and its request for interpleader.
On June 1, 2000, Sun Life, as an interested party, initiated a separate probate proceeding to require administration of Mr. Wunsch's estate. The probate court designated the petition as an adversary proceeding under § 472.140 and directed notice of the proceeding to be served upon Ms. Wunsch, the primary beneficiary of the policy, and the three Wunsch children, the contingent beneficiaries. The trial court appointed a personal representative of the estate, who subsequently investigated the possible claims of the estate in light of Ms. Wunsch's possible involvement in Mr. Wunsch's death. As indicated by the trial court in its December 5, 2000, Summary of Proceedings and Order of Discharge, the estate's personal representative determined that there were no facts demonstrating Ms. Wunsch's involvement and, therefore, disclaimed the estate's interest in the proceeds of the Sun Life policy and was dismissed from the cause. The Kansas City, Missouri, Police Department's investigation apparently revealed nothing conclusive either.8
On December 5, 2000, upon Ms. Wunsch's motion for summary judgment, the trial court issued a "Summary of Proceedings, Order of Discharge and Order Authorizing Partial Disbursement." Pursuant to this order, the proceeds previously deposited with the court administrator by UNUM Provident Corporation — $295,-645.62 — and by General American Life Insurance Company — $87,534 — were ordered disbursed to Ms. Wunsch, and those companies were released from the case. With regard to Sun Life, the trial court declined disbursement, finding, "[a]s to the proceeds deposited by Sun Life of Canada in the amount of $67,282.06, there remains a dispute concerning Barbara Wunsch's claim against Sun Life of Canada for defamation and for vexatious refusal to pay."
On February 14, 2001, Ms. Wunsch filed her Third Amended Petition for Damages, again alleging vexatious delay and defamation against Sun Life, and Sun Life subsequently filed its answer, denying the claims and asserting ten defenses.
On April 30, 2001, Sun Life filed its motion for summary judgment. The parties submitted various suggestions in support of and against the motion to the trial court.
On July 24, 2001, the trial court granted Sun Life's motion for summary judgment and issued its "Summary of Proceedings, Order Granting Summary Judgment, Discharge and Attorney Fees (Judgment)." The court found as a matter of law that Sun Life had reasonable cause to delay payment of the insurance proceeds. It further found that Ms. Wunsch "failed to plead her cause for defamation sufficiently" and, even if properly pleaded, the allegedly defamatory statements made by Sun Life were privileged. The court further ordered Sun Life discharged on the policy of insurance and allowed an attorney's fee of $4,750.
This appeal follows.9
Summary judgment is appropriate when the movant shows that there is no genuine dispute of material fact and he or she is entitled to judgment as a matter of law. Rule 74.04;10 ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). As explained by the Missouri Supreme Court:
[Appellate] review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.
Id. at 376 (citations omitted). Although "[f]acts set forth by affidavit or otherwise in support of [Sun Life's] motion are taken as true unless contradicted by [Ms. Wunsch's] response to the summary judgment motion," we review the record and all reasonable inferences therefrom in a light most favorable to Ms. Wunsch, the party against whom judgment was entered. Id. Once Sun Life has met its burden...
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