Neal S. Clevenger and Mitsue I. Clevenger, Respondents v. Oliver Insurance Agency, Inc., Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Neal S. Clevenger and Mitsue I. Clevenger, Respondents v. Oliver Insurance Agency, Inc., Appellant. Case Number: SC88325 Handdown Date: 10/30/2007 Appeal From: Circuit Court of Jackson County, Hon. Michael W. Manners Counsel for Appellant: Michael S. Cessna and Hal D. Meltzer Counsel for Respondent: Ronald C. Spradley and Frederick H. Riesmeyer II Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Overview: This case involves the question of whether insurance policyholders may recover damages for promissory estoppel in addition to negligence based on their reliance on their insurance agent's assurances that they would be covered against their neighbor's claims that their equestrian park was contaminating the neighbor's lake. After a jury verdict in the policyholders' favor, the trial court entered judgment for the policyholders on claims they made in negligence and promissory estoppel. The insurance company appeals only the portion of the judgment based on promissory estoppel. The Supreme Court unanimously holds that, because the negligence claim provides an adequate remedy at law, the trial court should not have entered judgment on the promissory estoppel claim. The Court reverses the judgment as to the promissory estoppel claim and affirms the judgment in all other respects. Facts: After a neighboring property owner told Neal and Mitsue Clevenger that runoff from the Clevenger's equestrian park contaminated a lake on the neighbor's property, the Clevengers contacted their insurance agent, Bill

Adams to obtain pollution liability insurance. Adams was an agent of Oliver Insurance Agency Inc., but he ultimately obtained the pollution liability insurance through Select Insurance, a subsidiary of Gulf Insurance. The policy initially excluded coverage pertaining to the neighbor's claim, but when it came time to renew, the Clevengers discussed the coverage with Adams. Adams sought assurances from the insurance broker that the Clevengers would have coverage for any incident concerning their neighbor's lake. Based on Adams' assurance, they renewed the policy, although the exclusion still was attached. Shortly thereafter, the neighbor sued the Clevengers. Gulf Insurance denied the Clevengers' claim for coverage and refused to defend on the basis that the policy excluded the claim. The Clevengers settled their neighbor's claim and then sued Oliver Insurance for damages, alleging they had been assured at the time of renewal that the policy would provide coverage. They claimed negligence and promissory estoppel. The jury found for the Clevengers on both theories and assessed damages at more than $78,200. The jury found the Clevengers were 98.6 percent at fault on the negligence claim, but no comparative fault was submitted on the promissory estoppel claim. The trial court overruled Oliver's motion for judgment notwithstanding the verdict and entered judgment of nearly $1,100 on the negligence claim and more than $78,200 on the promissory estoppel claim. Oliver appeals the portion of the judgment based on promissory estoppel. AFFIRMED IN PART AND REVERSED IN PART. Court en banc holds: The Clevengers failed to prove all the elements of their promissory estoppel claim. They presented evidence that Adams "assured" Neal Clevenger that the renewed policy would cover claims regarding the neighbor's lake, that they renewed the policy based on Adams' assurances and that, as the Clevengers' insurance agent for more than 20 years, Adams knew they relied on him to explain what was and was not covered. They failed, however, to show a resulting injustice that only enforcing the promise could cure. They had an available remedy at law – the action in negligence for damages for Oliver's mistaken representation that the policy would provide coverage. They prevailed on that theory. Because they had an adequate remedy at law, equitable relief is not appropriate. Neither Hammons v. Ehney, 924 S.W.2d 843 (Mo. banc 1996), nor State ex rel. Leonardi v. Sherry, 137 S.W.3d 462 (Mo. banc 2004), apply in this case to remove this bar to allow the Clevengers to recover under promissory estoppel as well. Citation: Opinion Author: PER CURIAM(FN1)

Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART. Stith, C.J., Price, Teitelman, Limbaugh, Russell and Wolff, JJ., and Barnes, Sp.J., concur. Breckenridge, J., not participating. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. Overview The Clevengers owned an equestrian park. They received notice from a neighboring property owner that runoff from the park contaminated a lake on the neighbor's property. After receiving the notice, the Clevengers contacted Bill Adams, an agent of Oliver Insurance Agency, Inc., to secure pollution liability insurance. The initial insurance policy excluded coverage of the neighbor's claim. Adams and the Clevengers discussed the coverage of the policy when it became time to renew it. After the renewal issued, the Clevengers were sued by the neighbor. They tendered the suit to the insurance company, which refused to defend on the basis that the policy excluded the claim. After settling the neighbor's claim, the Clevengers filed this suit. They alleged they had been assured at the time of the renewal that the policy would provide coverage. They sought damages, claiming negligence and promissory estoppel, because they did not receive coverage for the claim. The jury returned verdicts in favor of the Clevengers on both theories and assessed the damages at $78,223.82. The jury found that the Clevengers were 98.6% at fault on the negligence claim, but no comparative fault was submitted on the promissory estoppel claim. The trial court overruled Oliver's motion for judgment notwithstanding the verdict (JNOV) and entered judgment of $1,095.13 on the negligence count and $78,223.82 on the promissory estoppel claim. Because the negligence claim is an adequate remedy at law, the promissory estoppel claim was not appropriate. The judgment is reversed as to the promissory estoppel claim and is affirmed in all other respects.(FN2) Additional facts For pollution liability coverage, Oliver did not deal directly with an insurance carrier to obtain coverage but,

instead, through a broker who then secures coverage with a particular company. Eventually, the Clevengers disclosed the neighbor's claim and Select Insurance, a subsidiary of Gulf Insurance, issued a pollution liability policy with an exclusion pertaining to the neighbor's claim and substantially similar claims. When it came time to renew the insurance policy, the Clevengers made inquiries to their personal insurance agent, Bill Adams of Oliver Insurance Agency, about whether the pollution policy would provide coverage for claims concerning their neighbor's lake. Adams, in turn, sought assurances from the insurance broker. Thereafter, the Clevengers claim that Adams "assured" them that they would have coverage for any incident concerning their neighbor's lake, and, based on Adams' assurance, they renewed the policy with the exclusion still attached. Shortly thereafter, their neighbor sued them for damage to the lake. Gulf Insurance denied the Clevengers' claim for coverage and refused to provide a defense because the claims in the lawsuit were excluded by a policy endorsement. Standard of review The standard of review of denial of a JNOV is essentially the same as for review of denial of a motion for directed verdict. A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. In determining whether the evidence was sufficient to support the jury's verdict, the evidence is viewed in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict. This Court will reverse the jury's verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion. Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 456-57 (Mo. banc 2006). Accordingly, a motion for JNOV is properly granted when the motion identifies at least one element of the plaintiff's case that is not supported by the evidence. Breckenridge v. Meierhoffer-Fleeman Funeral Home, Inc., 941 S.W.2d 609, 611 (Mo. App. 1997). Elements of promissory estoppel A claim of promissory estoppel has four elements: (1) a promise; (2) on which a party relies to his or her detriment; (3) in a way the promisor expected or should have expected; and (4) resulting in an injustice that only enforcement of the promise could cure. Zipper v. Health Midwest, 978 S.W.2d 398, 411 (Mo. App. 1998); see In re: Jamison's Estate, 202 S.W.2d 879, 886 (Mo. 1947). The promise giving rise to the cause of action must be definite, and the promise must be made in a contractual sense. Zipper at 411. In Missouri, promissory estoppel is not a favorite of the

law, and each element must clearly appear and be proven by the party seeking its enforcement. Id. Discussion Oliver urges that Zipper supports his argument that the Clevengers failed to prove a crucial element of their claim. In Zipper, the plaintiff brought an action for promissory estoppel, among other claims, alleging that the defendants breached an oral agreement to sell him an office building. Id. at 403. The court held that the plaintiff adduced sufficient evidence to establish the first three elements of promissory estoppel but failed to establish the final element; therefore, the court affirmed the trial court's entry of summary judgment. Id. at 411-12. The court said that the plaintiff created an issue of material fact on the first element with a statement in his affidavit that the defendants promised him that they would sell him the office building. Id. at 411. The second element was established by the existence of several exhibits showing that he expended money renovating the building in reliance on the promise. Id. Evidence of a note that the defendants co- signed with the plaintiff to acquire funds for the renovation and other letters in which the defendants were actively involved in the renovation process established the third element. Id. However, the court held plaintiff failed to establish the final element of promissory estoppel in that he had other remedies at law available that would adequately compensate his injury. Id. at 412. The court concluded that the plaintiff was really seeking to recover restitution damages; i.e., the amount he expended in making renovations to the building. Id. The court relied on the Restatement (Second) of Contracts, sec. 139(2)(a) (1981), which states, in relevant part: "In determining whether injustice can be avoided only by enforcement of the promise . . . the availability and adequacy of other remedies" at law is a significant factor to be considered. Id. at 411. In fact, the court declared that it is the "most significant" factor to consider. Id. at 412. Because the plaintiff was not seeking specific enforcement of the promise, and was instead seeking a remedy at law, application of promissory estoppel was inappropriate. Id. The reasoning in Zipper applies in this case. Neal Clevenger testified that Adams "assured" him that he had coverage for claims regarding his neighbor's lake. Additionally, Neal Clevenger testified that he renewed the policy based on Adams' assurances. Finally, the Clevengers adduced evidence from Adams that, as the Clevengers' insurance agent for over 20 years, he knew that they relied on him to explain what was covered and what was not covered. They failed, however, to show a resulting injustice that only enforcement of the promise could cure.

What the Clevengers sought was not the issuance of an insurance policy that would cover the risk (a promise that Oliver could not fulfill) but damages for Oliver's mistaken representation that the policy they did receive would provide coverage. The Clevengers had an available and adequate remedy at law - an action in negligence. They prevailed on that theory. "Generally, equity will not intercede if an adequate remedy at law exists." Id. Because the Clevengers had an adequate remedy at law, equitable relief is not appropriate. The Clevengers refer to Hammons v. Ehney, 924 S.W.2d 843, 847 (Mo. banc 1996), for the proposition that an adequate remedy at law does not bar recovery under promissory estoppel. Hammons does not speak to the elements of promissory estoppel. Rather, the issue in Hammons was whether a debtor could maintain an equitable action for contribution against a co-debtor (which could be tried without a jury) where the debtor had an adequate remedy at law in the form of a statutory action for contribution (which would implicate the co-debtor's constitutional right to a jury trial). On appeal, the co-debtor claimed that because the debtor's claim for contribution was a legal claim, she had the right to a jury trial. Hammons at 846. The Court disagreed, stating that even though contribution between co-debtors originated as an equitable claim in Missouri, "the subsequent creation of a legal claim for contribution . . . created concurrent jurisdiction in both law and equity for contribution. Id. at 847. The Court further stated that an exception to the recognized principle that "equity will not intercede if there is an adequate remedy at law" is for claims that originated in equity prior to the recognition of a legal claim. Id. Hammons is of no relevance to this case. The Clevengers also cite State ex rel. Leonardi v. Sherry, 137 S.W.3d 462 (Mo. banc 2004), for the proposition that even though they had an adequate remedy at law, the promissory estoppel claim was properly submitted. The primary issue in Leonardi was whether the appellant's constitutional right to a jury trial was violated when the trial court, in exercising the equitable cleanup doctrine, refused to grant him a jury trial on the legal claims in the case. Id. at 464. The Clevengers' reliance on Leonardi is misplaced. Conclusion The Clevengers failed to prove the fourth element of their promissory estoppel claim - that only enforcement of the promise could cure the resulting injustice. The judgment is reversed as to the promissory estoppel claim and is affirmed in all other respects.

Footnotes: FN1.This Court transferred this case after an opinion by the Court of Appeals, Western District, authored by the Honorable Ronald R. Holliger. Mo. Const. article V, section 10. Parts of that opinion are incorporated without further attribution. FN2.Oliver does not attack the portion of the judgment based on the negligence theory. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.