American Family Mutual Insurance Company v. Miller et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of plaintiff for summary judgment on defendants' Count 4 counterclaim of public disclosure of financial information (ECF No. 80 ) is SUSTAINED. Defendants' Count 4 claim is dismissed with prejudice.. Signed by Magistrate Judge David D. Noce on 10/18/16. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
AMERICAN FAMILY MUTUAL
DINA MILLER, and
SIGN IT UP, LLC,
No. 4:15 CV 1127 DDN
MEMORANDUM AND ORDER
Before the court is plaintiff’s motion for summary judgment on defendants’ Count
4 counterclaim of public disclosure of private facts. (ECF No. 80). The parties have
consented to the exercise of plenary authority by the undersigned Magistrate Judge under
28 U.S.C. § 636(c). The court heard oral argument on October 13, 2016. For the reasons
discussed below, the court grants plaintiff’s motion.
Defendants' Count 4 counterclaim alleges defendant (a) "committed the tort of
unauthorized disclosure of private facts of the Millers, to wit: their private financial
history," and (b) published and made public this information to defendants' neighbors,
Marshall Miller's co-workers and employment supervisory personnel. (ECF No. 28 at
The record and undisputed facts regarding defendants' Count 4 counterclaim
indicate the following. Marshall and Dina Miller have insured the property at 152
Southmore Avenue, Hillsboro, Missouri, for approximately thirty years. They have
contracted for and paid premiums for this insurance coverage from American Family
Marshall Miller is employed as a carman for Union Pacific
Railroad Company in Desoto, Missouri. Dina Miller works for Signature Health, a
doctors’ office, in South St. Louis County, and is the sole member and incorporator of
defendant Sign It Up, LLC, a sign-making business that she operated out of her basement
at 152 Southmore Avenue.
On February 12, 2015, the Millers’ home caught fire.
The Millers notified
American Family and submitted requested information and waivers. American Family
and the Millers dispute several facts about Marshall Miller’s specific whereabouts during
the time of the fire. American Family assigned Shane Knoll to investigate the fire loss,
and he interviewed or contacted several individuals about the Millers: Shauna Jolly, Dina
Miller’s boss; Rhonda Stocker, the Millers’ dog groomer; Ameren Union Electric, the
Millers’ electrical utility provider; Jim Hern, Marshall Miller’s employment supervisor;
the Desoto Elks Lodge; Tom McDowell, a neighbor; the Union Pacific Railroad Police;
Dan Green, Marshall Miller’s co-worker; James and Virginia (“Jenny”) Skaggs, Dina
Miller’s parents; Ken and Pat Becker, defendants' neighbors; and Stacy Abney, another
of their neighbors.
American Family also provided the Jefferson County Sheriff’s
Department with information about the Millers in response to an official department
It is uncontested that American Family’s investigator never provided Stacy Abney,
Dan Green, Jim Hern, Ken and Pat Becker, or Jenny Skaggs any specific private financial
data of the Millers, including credit reports or other financial transactions.
investigator asked each of these individuals about the whereabouts of the Millers and
asked whether they had noticed any suspicious activities. In her deposition, Stacey
Abney testified the investigator "asked [her] if [she] knew about any financial problems,
if they had any."
(ECF No. 90, Ex. 4, at depo. p. 19.) When asked whether the
investigator shared any of the Millers’ personal financial information with her, Stacey
Abney said “No,” but she also stated that the investigator “told [her] if [she] knew that
[the Millers] were in some kind of thing, and [she] would say that they did that he would
be able to say something, but until then he couldn’t say anything.” (Id. at depo. p. 20.)
In his deposition, Dan Green testified the investigator asked him “if [he] knew Mr.
Miller’s financial standings, if [he] knew if they were behind on this or if [Mr. Miller]
said anything about ever hurting for money or something like that.” (ECF No. 90, Ex. 6,
at depo. p. 29.)
Summary judgment is appropriate “if there is no dispute of material fact and
reasonable fact finders could not find in favor of the nonmoving party.” Shrable v. Eaton
Corp., 695 F.3d 768, 770 (8th Cir. 2012); see also Fed. R. Civ. P. 56(a). The party
moving for summary judgment must demonstrate the absence of a genuine issue of
material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986).
The burden shifts to the non-moving party to
demonstrate that disputes of fact do exist only after the movant has made its showing. Id.
However, after adequate time for discovery has taken place and upon motion, the court
may also enter judgment against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case when that party will
bear the burden of proof at trial. Celotex Corp., 477 U.S. at 319. “Evidence, not
contentions, avoids summary judgment.” Reasonover v. St. Louis County, Mo., 447 F.3d
569, 578 (8th Cir. 2006).
Plaintiff moves the court for summary judgment in its favor on defendants’ Count
4 counterclaim of public disclosure of private facts. Under Missouri law, the essential
elements of this common law cause of action are: “(1) publication or ‘publicity,’ (2)
absent any waiver or privilege, (3) of private matters in which the public has no
legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary
sensibilities.” Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 498-99 (Mo. Ct. App.
1990); accord, Chasnoff v. Mokwa, 466 S.W.3d 571, 579 (Mo. Ct. App. 2015).
Plaintiff argues defendants have failed to establish the first element of publication.
The court agrees. The Supreme Court of Missouri has held that "publication" means
“communication to the public in general or to [a] large number of persons, as
distinguished from one individual or a few.” Biederman's of Springfield, Inc. v. Wright,
322 S.W.2d 892, 898 (Mo. 1959); St. Anthony's Med. Ctr. v. H.S.H., 974 S.W.2d 606,
610 (Mo. Ct. App. 1998). It can also mean communications that “have a likelihood of
becoming public knowledge.” Balke v. Ream, 33 S.W.3d 589, 594 (Mo. Ct. App. 2000).
Defendants allege in their counterclaim only that their private financial history
was published by plaintiff to defendants’ neighbors, co-workers, and employers.
Defendants identified six individuals to whom American Family representatives
assertedly disclosed their financial history: Stacy Abney (defendants’ neighbor), Dan
Green (Marshall Miller’s co-worker), Jim Hern (Marshall Miller’s supervisor), Ken and
Pat Becker (defendants’ neighbors), Virginia Skaggs (Dina Marshall’s mother), and the
Jefferson County Sheriff’s Department.1 The six named individuals each testified that
they were never given any private financial data of the Millers, including credit reports or
other financial transactions. Defendants do not dispute this. Instead, defendants argue
that the questions of American Family’s agent “implied” that the Millers were arson
suspects or had financial problems.
Defendants' argument, that the questioning by American Family’s investigator
“implied” that defendants were suspected of arson, is a privacy claim other than that
alleged in their Count 4 counterclaim. Defendants also argue that several individuals
were contacted by American Family’s investigator who questioned them about the
Millers’ whereabouts: Shauna Jolly, Dina Miller’s supervisor; Rhonda Stocker, the
Plaintiff provided the Sheriff’s Department with Defendants’ private information, but it
did so in response to the Department’s request and pursuant to Mo. Rev. Stat. § 320.081,
which requires insurance companies to provide information to for state arson
investigations. This does not constitute a public disclosure of private facts, as arson is a
matter in which the public has legitimate concern. See, e.g., Buller v. Pulitzer Pub. Co.,
684 S.W.2d 473, 482 (Mo. Ct. App. 1984) (holding that when the activities of the police,
such as making an arrest, are involved, the matter is within the public interest).
Millers’ dog groomer; Tom McDowell, the Millers’ neighbor; the Desoto Elks Lodge;
and the Union Pacific Railroad Police. These allegations are also related to the claim that
defendant implied that Marshall Miller was suspected of committing arson, rather than
the claim that the investigator disclosed the Millers’ financial situation.2
Defendants also claimed at oral argument that the investigator's questioning of
witnesses "implied" that the Millers were experiencing financial difficulties. However,
after extensive discovery, defendants have produced, at most, two individuals who have
testified that American Family’s investigator asked them pointed questions that might
imply that the Millers were experiencing financial difficulties: Stacy Abney and Dan
Green. This is insufficient, as a matter of Missouri law, to constitute publication. St.
Anthony's Med. Ctr., 974 S.W.2d at 610 (“[P]ublication means communication to the
public in general or to a large number of persons, as distinguished from one individual or
a few.”) (citations omitted).
For these reasons,
IT IS HEREBY ORDERED that the motion of plaintiff for summary judgment
on defendants’ Count 4 counterclaim of public disclosure of financial information (ECF
No. 80) is SUSTAINED. Defendants' Count 4 claim is dismissed with prejudice.
/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed and filed on October 18, 2016.
The investigator’s discussion with Ameren Union Electric concerned the Miller’s
financial situation, but Ameren was already aware of its own account with the Millers,
and its representative simply confirmed defendants’ financial account information with
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