author: YÁÑEZ, Justice.

text:
    CIGNA LLOYDS INSURANCE COMPANY, United National Insurance Company, and Texas Pacific Indemnity Company, Appellants, v. BRADLEYS’ ELECTRIC, INC., Appellee.
    No. 13-95-524-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 2, 2000.
    Rehearing Overruled Dec. 14, 2000.
    Alex E. Cosculluela, Adams and Reese, L.L.P., Houston, James W. Wray, Jr., Chaves, Gonzales & Hoblit, Corpus Christi, P. Wayne Pickering, McGlinchey

      Stafford, Sugar Land, Daryl G. Dursum, Adams & Reese, Michael W. Mccoy, Benckenstein & Oxford, L.L.P., Houston,
    R. Brent Cooper, Nicolette V. Mansoor, Cooper, Aldous & Scully, Dallas, James C. Nielsen, Wright, Robinson, McCammon, Osthimer & Tatum, San Francisco, CA, Thomas H. Crofts, Jr., Crofts, Callaway & Jefferson, San Antonio, for Appellants.
    David Gauntlett, M. Danton Richardson, Gauntlett & Associates, Irvin, Tom C. Wheat, Kathryn F. Green, Kleberg Law Firm, Corpus Christi, for Appellee.
    William M. Savino, James M. Harinski, M. Paul Gorfinkel, Rivkin, Radler & Kremer, Uniondale, for Amicus Curiae.
    Before Chief Justice SEERDEN and Justices YÁÑEZ and RODRIGUEZ.
   OPINION ON REMAND

YÁÑEZ, Justice.

This appeal is before this Court on remand from the Texas Supreme Court. Appellants, Cigna Lloyds Insurance Company (“Cigna”), United National Insurance Company (“United National”), and Texas Pacific Indemnity Company (“Texas Pacific”) appealed summary judgments granted in favor of Bradleys’ Electric, Incorporated (“Bradleys’ Electric”), by which appellants were held to have a duty to defend a patent infringement claim against Bradleys’ Electric. This Court initially reversed the judgment of the trial court and rendered judgment for the insurance companies. Following rehearing, we withdrew our original opinion and issued an opinion holding that venue had been improperly transferred from Harris County to Nueces County. Cigna Lloyds Ins. Co. v. Bradleys’ Elec., Inc., 993 S.W.2d 673 (Tex.App.-Corpus Christi 1998), rev’d, 995 S.W.2d 675 (Tex.1999). Finding that venue was a threshold question, this Court did not address any other points of error raised by the appellants. Id. at 677. The Texas Supreme Court reversed this ruling, remanding the case to this Court to consider issues raised on appeal which would require the rendition of a judgment. Bradleys’ Elec. Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675 (Tex.1999). We reverse and render judgment in favor of appellants.

FACTUAL AND PROCEDURAL HISTORY

The litigation which produced this appeal arose from allegations that Bradleys’ Electric had violated several patents held by the Copeland Corporation (“Copeland”). Bradleys’ Electric sells repair parts kits for the repair of valve plate assemblies of compressors patented and sold by the Copeland Corporation. Copeland informed Bradleys’ Electric that, because the kits sold by Bradleys’ Electric could be used to remanufacture Copeland compressors, Bradleys’ Electric was violating Copeland’s patents. In response to these allegations, Bradleys’ Electric filed suit in federal court in Houston, Texas, seeking a declaratory judgment that its actions did not constitute patent infringement. Copeland counterclaimed, alleging that Brad-leys’ Electric had contributorily infringed, and induced others to infringe, on several patents held by Copeland.

Bradleys’ Electric contacted its primary insurance carrier, Cigna, requesting that Cigna defend Bradleys’ Electric against Copeland’s suit. Cigna agreed to defend Bradleys’ Electric against the counterclaim, reserving its rights under its policy; however, after paying for Bradleys’ Electric’s initial attorneys’ fees, Cigna withdrew from defending the claim, and demanded Bradleys’ Electric return the money already paid by Cigna. Bradleys’ Electric then made demands on United National and Texas Pacific, with whom Bradleys’ Electric had umbrella insurance.

On October 26, 1993, Cigna filed suit in a Harris County district court, seeking a declaratory judgment that it had no duty to defend or indemnify Bradleys’ Electric in the patent infringement suit brought against Bradleys’ Electric by Copeland. Bradleys’ Electric filed an original answer on December 13, 1993, in which it made a general denial, specially excepted to venue in Harris County, and sought a declaratory judgment that Cigna had a duty to defend Bradleys’ Electric against the Copeland lawsuit under the “advertising liability” provisions of its policy with Cigna. On that same day, Bradleys’ Electric filed a third-party petition for declaratory judgment and other relief against United National and Texas Pacific, alleging that both carriers were contractually obligated to defend it against any advertising injury claims. Additionally, Bradleys’ asserted that United National and Texas Pacific were required to indemnify Bradleys’ Electric for any “excess” damages it would have to pay as a result of the alleged advertising injury, in light of Cigna’s denial of coverage against the Copeland cause of action. Also on December 13, 1993, Bradleys’ Electric filed a motion to transfer venue of Cigna’s cause of action from Harris County to Nueces County. The Harris County trial court granted Brad-leys’ Electric’s motion to transfer venue. The actions between Bradleys’ Electric, Cigna, and Texas Pacific were consolidated, and United National joined the consolidation.

The insurance companies filed motions for summary judgment, each arguing that they did not have a duty to defend Brad-leys’ Electric. Bradleys’ Electric also filed motions for summary judgment, arguing that, under their respective policies, the insurance companies each had a duty to defend Bradleys’ Electric against the Copeland counterclaim. The trial court granted the insurance companies’ motions, then vacated the judgments, following motions for reconsideration filed by Bradleys’ Electric. The trial court then granted summary judgment in favor of Bradleys’ Electric against the insurance companies.

On appeal, each insurance company filed its own brief. All three appellants challenge the trial courts’ judgments in favor of Bradleys’ Electric, each arguing that there was no duty to defend under its respective policy.

STANDARD OF REVIEW

A summary judgment movant has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); 801 Nolana v. RTC Mortgage Trust 1994-S6, 944 S.W.2d 751, 754 (Tex.App.—Corpus Christi 1997, writ denied). Where the only question presented to the trial court was a question of law and both sides moved for summary judgment, the appellate court should render the judgment that the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988); The Cadle Co. v. Butler, 951 S.W.2d 901, 905 (Tex.App.—Corpus Christi 1997, no writ).

DUTY TO DEFEND AGAINST COPELAND’S COUNTERCLAIM

An insurer’s duty to defend is determined by the allegations in the pleadings and the language of the insurance policy. National Union Fire Ins. Co. of Pittsburgh v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997) (noting that this is sometimes referred to as the “eight corners” rule); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965). If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured. National Union, 939 S.W.2d at 141; American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex.1994). When determining if a petition alleges facts that potentially state a claim within the coverage of a policy, the allegations within the petition are liberally interpreted. National Union, 939 S.W.2d at 141. Any doubt as to whether the allegations state a cause of action within the coverage of the policy is resolved in the insured’s favor. Id. The focus of the inquiry, nevertheless, must be on the facts alleged, not the legal theories alleged. Id.

We will examine the factual allegations made in Copeland’s counterclaim as they relate to the policies issued by each insurance company.

The Copeland Counterclaim

In the underlying federal court action against Bradleys’ Electric, Copeland, after identifying various patents issued to it, alleges:

On information and belief Bradleys’ Electric has contributorily infringed, induced others to infringe, and otherwise violated the exclusive rights conferred on Defendant by the '125 patent, the '755 patent, the '860 patent, the '234 patent, and the '126 patent (referred to collectively as the “patents-in-suit”), by way of Plaintiffs customers’ unauthorized remanufacturing of Copeland’s compressors and components of Copeland’s compressors, using valve part kits manufactured and sold by the Plaintiff, thereby infringing the claims of the aforementioned patents-in-suit. Plaintiff will continue such infringing acts unless enjoined by this Court.
By reason of the infringement of the patents-in-suit by Bradleys’ Electric Defendant Copeland has been and will continue to be seriously damaged and irreparably injured unless Bradleys’ Electric is enjoined by this Court from its deliberate and willful infringement of the patents-in-suit.

The Cigna Lloyds Policy

On January 1, 1989, Cigna issued a commercial general liability policy to Bradleys’ Electric. The policy contained a $2,000,000 aggregate limit of liability and a $1,000,000 advertising and injury limit of liability. The original one-year policy was renewed, under different policy numbers, through January 1, 1993. Under the terms of the policy, Cigna agreed:

to pay those sums that the insured becomes legally obligated to pay as damages because of “personal injury” or “advertising injury” to which this coverage part applies. We will have the right and duty to defend any “suit” seeking those damages. We may at our discretion investigate any “occurrence” or offense and settle any claims or “suit” that may result.

This insurance applies to:

(1) “Personal injury” caused by an offense arising out of your business excluding advertising, publishing, broadcasting, or telecasting done by or for you;
(2) “Advertising injury” caused by an offense committed in the course of advertising your goods, products or services;

“Advertising injury” is defined as being injury arising out of:

a. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products, or services;
b. Oral or written publication of material that violates a person’s right of privacy;
c. Misappropriation of advertising ideas or style of doing business; or
d. Infringement of copyright, title or slogan.

It may be, as Bradleys’ Electric consistently has argued, that the term “advertising injury” could, in some instances, cover patent infringement allegedly resulting from or arising out of advertising activities. The emphasis Bradleys’ Electric places on this argument, however, is misplaced. Copeland’s counterclaim does not allege “advertising injury” resulting in patent infringement, and we are constrained to examine only the facts alleged, not the legal theories possibly alleged. Nat’l Union Fire Ins., 939 S.W.2d at 141.

The counterclaim expressly alleges contributory infringement “by way of [Bradleys’ Electric’s] customers’ unauthorized remanufacturing of Copeland’s compressors and components of Copeland’s compressors, using valve part kits manufactured and sold by [Bradleys’ Electric], thereby infringing the claims of the ... patents-in-suit.” The counterclaim further alleges that Bradleys’ Electric has engaged in “deliberate and willful infringement of the patents-in-suit.” We hold that Copeland’s claim does not allege that Bradleys’ Electric’s advertising activities are responsible, directly or indirectly, for the patent infringement alleged by Copeland. Cf. Sentry Ins. v. R.J. Weber Co., Inc., 2 F.3d 554, 557 (5th Cir.1993) (applying Texas law, holding that insurer had no duty to defend insured against third-party claim of copyright infringement, despite policy coverage for advertising injury encompassing copyright infringement, because third-party’s pleading stated nothing about advertising, even though it alleged infringement by way of copying, publishing, distributing, and selling). Cigna’s first point of error is sustained.

By our disposition of this point of error, we need not address Cigna’s second point, which further challenges the denial of its motion for summary judgment. Tex. R.App. P. 47.1.

The Texas Pacific Policy

On January 9, 1992, Texas Pacific issued a commercial umbrella liability policy for Bradleys’ Electric for the period of January 1,1992, to January 1,1993. The terms of the policy agreement provide that Texas Pacific will pay, on behalf of Bradleys’ Electric, any net losses Bradleys’ Electric becomes obligated to pay by reason of liability imposed by law, or assumed under contract or agreement, “arising out of personal injury, property damage, or advertising liability caused by an occurrence.” Under the terms of the policy, “occurrence” is defined to mean an “accident.” The policy further provides that, with respect to any occurrence not covered by an underlying policy but covered by the terms and conditions of the policy, Texas Pacific shall also defend any suit against Bradleys’ Electric seeking damages for personal liability, property damage, or advertising liability.

Under the policy, “advertising liability” is defined to mean:

(1) libel, slander or defamation,
(2) any infringement of copyright or title or of a slogan,
(3) piracy or unfair competition or idea misappropriation under an implied contract,
(4) any invasion of right of privacy; committed or alleged to have been committed during the policy period, in any advertisement, publicity article, broadcast or telecast and arising out of the insured’s advertising activities.

Copeland’s claim against Bradleys’ Electric makes no express or implied reference to any “advertisement, publicity article, broadcast or telecast” by Bradleys’ Electric, nor does it claim that the alleged patent infringement arises out of Bradleys’ Electric’s advertising activities. We hold that Texas Pacific has no duty to defend Bradleys’ Electric against Copeland’s counterclaim, and that the trial court erred in rendering judgment against Texas Pa-cifíc. Texas Pacific’s first point of error is sustained.

By our disposition of point of error one, we need not reach Texas Pacific’s second point of error, which further complains that the trial court erred in imposing a duty to defend Bradleys’ Electric upon Texas Pacific. Tex.R.App. P. 47.1.

The United National Policy

For the period of March 6, 1990, to January 1, 1991, United National issued a commercial umbrella liability policy to Bradleys’ Electric. The policy provided a liability limit of $5,000,000 in excess of the underlying Cigna policy or subject to a retention of $10,000. Under the express terms of the policy, United National agrees to pay:

(a) PERSONAL INJURY LIABILITY. For damages, including damages for care and loss of services, because of personal injury, including death at any time resulting therefrom, sustained by any person or persons.
(b) PROPERTY DAMAGE LIABILITY. For damages because of injury to or destruction of tangible property including consequential loss resulting therefrom,
(c) ADVERTISING LIABILITY. For damages because of libel, slander, defamation, infringement of copyright, title or slogan, piracy, unfair competition, idea misappropriation or invasion of right of privacy arising out of the named insured’s advertising activities.

With respect to any alleged occurrence not covered by the Cigna policy but covered

under the United National policy, the policy provides that United National will defend Bradleys’ Electric.

Copeland’s claim against Bradleys’ Electric makes no express or implied reference to any of Bradleys’ Electric advertising activities, nor does it claim that the alleged patent infringement arises out of any Bradleys’ Electric advertising activities. We hold that United National has no duty to defend Bradleys’ Electric against Copeland’s counterclaim, and that the trial court erred in rendering judgment against United National. United National’s first point of error is sustained.

By our disposition of point of error one, we need not reach United National’s second point of error, which further alleges it had no duty to defend Bradleys’ Electric. Tex.R.App. P. 47.1. Further, because of our disposition on the duty to defend issue, we need not reach the venue issue raised in the alternative by Cigna and United National in subsequent points of error. Id.

Accordingly, the judgment of the trial court is REVERSED. We further RENDER judgment in favor of Cigna, Texas Pacific, and United National, declaring that the appellants do not have a duty to defend Bradleys’ Electric against Copeland’s patent infringement counterclaim.


source: Caselaw Access Project

author: KNOPF, Judge:

license: Public Domain

text:
    Connie KREATE; Vivian Colemire; and E. Hanlin Bavely, Trustee, Appellants, v. DISABLED AMERICAN VETERANS, Appellee.
    No. 1999-CA-001846-MR.
    Court of Appeals of Kentucky.
    Nov. 22, 2000.

      Steven L. Schiller, Newport, KY, for Appellant.
    John 0. Sheller, Smith and Smith, Attorneys, Louisville, KY, for Appellee.
    Before BUCKINGHAM, KNOPF, and SCHRODER, Judges.
   OPINION

KNOPF, Judge:

Vivian Colemire, Connie Kreate, and Kreate’s successor in interest, E. Hanlin Bavely, appeal from a July 7, 1999, order of Campbell Circuit Court acknowledging Colemire and Kreate’s abandonment of age-discrimination-based claims against their former employer, the appellee, Disabled American Veterans (DAV). The July 7th order rendered final and appeal-able an earlier dismissal of similar claims by Colemire and Kreate based on disability-discrimination. The appellants’ disability-based claims are the subject of this appeal. The trial court ruled that DAV is exempt from the provisions of Kentucky’s Civil Rights Act that forbid disability-based discrimination by employers. The appellants insist that DAV is not exempt. For the following reasons, we agree with the trial court.

Colemire and Kreate allege that they are disabled individuals as that term is used in Kentucky’s Civil Rights Act, KRS Chapter 344 (the Act). They further allege that, as of the beginning of 1998, they had been employed “for a considerable period” at the DAV facility in Cold Spring, Campbell County, Kentucky, where they processed contributions mailed to the organization. In 1998, they claim, the manager of the Cold Spring facility reorganized the office and moved them from the jobs they had long performed to jobs their disabilities made difficult if not impossible. When they allegedly objected to this change in the conditions of their employment, they were advised to quit their jobs and to apply for disability benefits. Meanwhile, their former positions were given to newly hired workers who were younger than the appellants and not disabled. Denied accommodation for their disabilities, Colemire and Kreate were compelled to quit their jobs. Soon thereafter they brought this suit.

The appellants’ complaint seeks damages and injunctive relief pursuant to KRS 344.040, which makes it an unlawful practice for an employer

[t]o fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, ... because the person is a qualified individual with a disability.

As noted above, DAV responded to the complaint by denying that it is an “employer” in these circumstances under the Act. KRS 344.030(2), upon which DAV relies, provides in pertinent part as follows:

for purposes of determining discrimination based on disability, employer means a person engaged in an industry affecting commerce who has fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, and any agent of that person, .... For the purposes of determining discrimination based on disability, employer shall not include:
(b) A bona fide private membership club (other than a labor organization) that is exempt from taxation under Section 501(c) of the Internal Revenue Service Code of 1986.

There is no dispute that DAV enjoys a tax exemption under Section 501(c). The trial court agreed, furthermore, that DAV is a “bona fide private membership club,” and thus concluded that it is not subject to suits, such as Colemire and Kreate’s, for disability discrimination. It is from this determination that Colemire and Kreate appeal.

As a preliminary matter, we note that, although DAV tendered its motion to dismiss pursuant to CR 12, it supplemented its motion with affidavits and other matters outside the pleadings. The motion to dismiss effectively became one for summary judgment, therefore, and we shall fashion our review accordingly. CR 12.02. Summary judgments involve no finding of disputed fact and are reviewed without deference to the conclusions of the trial court. As did the trial court, this Court asks whether material facts are in dispute and whether the party moving for judgment is clearly entitled thereto as a matter of law. Under this state’s rules of practice, summary judgments are to be granted cautiously; they are appropriate only when it appears impossible for the non-movant to prove facts establishing a right to relief or release, as the case may be. Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).

Because we are called upon to construe a statute, it may also be well to note at the outset that guiding our construction is thé general rule that we are to give effect to the intent of the legislature as expressed in the statutory language and context and revealed by the evil the law was intended to remedy. Sisters of Charity v. Raikes, Ky., 984 S.W.2d 464 (1998); Democratic Party of Kentucky v. Graham, Ky., 976 S.W.2d 423 (1998); Wathen v. General Electric Company, 115 F.3d 400 (6th Cir.1997).

The statutory context is particularly important in this case because the Kentucky Civil Rights Act has not been written on a blank slate, but has been based extensively on federal civil rights law. Indeed, “[e]xe-cution within the state of the policies embodied [in federal civil rights legislation]” is an express purpose of our Act. KRS 344.020(1). Federal legislation has provided not only much of the substance of our Act, but also much of its form. An exemption like the one at issue in this case for “bona fide private membership clubs” appears in Title VII of the Civil Rights Act of 1964. 42 U.S.C.2000e(b). The same exemption is included in the Americans With Disabilities Act of 1990. 42 U.S.C. § 12111(5). This latter act seems to have been the basis of our statute’s exemption, which first became effective in 1992. Because there is apparently no Kentucky appellate decision construing KRS 344.030(2)(b), and because of the General Assembly’s intent that our law comport with federal law, we shall turn to the federal-court decisions that have applied the “private membership club” exemptions appearing in the federal statutes.

In Quijano v. University Federal Credit Union, 617 F.2d 129 (5th Cir.1980), for example, a former employee alleged that a credit union had injured her as a result of its racially discriminatory hiring practices. The court was asked to decide whether the federally chartered, tax exempt credit union was a “private membership club” under Title VII. The court duly began by trying to fit the ordinary meaning of the phrase to its statutory context:

The sole issue presented for review is whether the district court erred in granting summary judgment for the University Federal Credit Union holding that the credit union was not an employer within the language of section 701(b)(2) of Title VII. The proposition which guides our analysis of this question is that “Title VII of the Civil Rights Act of 1964 is to be accorded a liberal construction in order to carry out the purposes of Congress to eliminate the inconvenience, unfairness and humiliation of racial discrimination.” Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 425 (8th Cir.1970). Accord, Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). The statute’s definition of “employer” is entitled to similar liberal construction. Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977).
Webster’s Third International Dictionary of the English Language offers the following definition at page 430:
club — -an association of persons for social and recreational purposes or for the promotion of some common object (as literature, science, political activity) usually jointly supported and meeting periodically, membership in social clubs usually being conferred by ballot and carrying the privilege of use of the club property.
The common understanding of the term “club” is reinforced by Webster’s definition. The adjectives “bona fide”, “private” and “membership”, included in the statute serve to indicate the more limited type of club sought to be exempted by the narrow exception in the statute. These modifiers suggest that, in order to be exempt from coverage by Title VII, an association of persons for social or recreational purposes or for the promotion of some common literary, scientific or political objective must also be legitimate (as opposed to sham), private (as opposed to public) and must require some meaningful conditions of limited membership.

Id. at 130-131 (footnotes omitted).

In holding that the credit union was not entitled to the private club exemption, the Fifth Circuit emphasized the credit union’s narrowly mercantile purpose. The court likened the credit union to automobile clubs that had been found non-exempt under Title VII in other cases. The members of such associations, the court noted, did not commingle or seek from their associations a social outlet and were not selected for membership on that basis. Rather, they had banded together, in the court’s words, almost solely for the purpose of achieving a sort of volume discount in the acquisition of certain services. Although this was a legitimate purpose, although the credit union was indeed tax exempt, and although the credit union’s membership was plainly limited in the sense of being offered only to the occupants of certain jobs, these factors did not overcome, the court ruled, the absence of social intercourse from the credit union’s purposes and practices. Such intercourse, the court suggested, is at the heart of what is ordinarily understood as a private club and is one of the few interests fundamental enough to justify an exception from Congress’s otherwise clear intention to eradicate invidious discrimination.

Similarly, in Fesel v. Masonic Home of Delaware, Inc., 428 F.Supp. 573 (D.Del. 1977), the Court ruled that a nursing home affiliated with a masonic lodge was not a club and so was not exempt from Title VII. Although its “membership” (i.e. its residents) was strictly limited to Masons and their spouses, the home principally provided housing and health-care services, not the sort of sociability ordinarily associated with a private club. See also Mills v. Fox, 421 F.Supp. 519 (E.D.N.Y.1976) (nursing home not entitled to exemption because is did not resemble what is ordinarily understood as a private club). And in Willson v. Association of Graduates of the United States Military Academy, West Point, 946 F.Supp. 294 (S.D.N.Y.1996), the court rejected a summary judgment motion by an alumni association facing discrimination charges because the association’s claim that it was entitled to the private club exemption had been countered by plausible allegations that the association was a mere fund-raising organ and not a bona fide club whose primary purposes included social intercourse.

Sociability was also a crucial factor in Equal Employment Opportunity Commission v. The Chicago Club, 86 F.3d 1423 (7th Cir.1996). In that case, the EEOC sought to compel one of Chicago’s historic clubs to comply with Title VII’s record-keeping and reporting requirements. Against the club’s assertion of the exemption, the EEOC noted that the association’s membership is fairly large, (in excess of 1200), and through a liberal guest policy, club facilities are available to a substantial portion of the public. These facts, the EEOC asserted, belied the club’s claim to be private.

The court strongly disagreed. It regarded the appellee’s practices and purposes — its providing for its members, as one of its principal functions, dining facilities and meeting spaces; its limiting new memberships to existing members’ acquaintances who are nominated and elected by existing members; and its extending guest privileges only to those properly sponsored by a member — as plainly geared toward private social intercourse. Indeed, the court chided the EEOC for seeking “to change the rules of the game so as to facilitate [its] implementation of its ambitious agenda for oversight of private clubs under Title VII.” 86 F.3d at 1433.

In upholding the Chicago Club’s claimed exemption from Title VII, the Seventh Circuit recognized the factors potentially indicative of that status quoted above from Quijano and cited these factors from an EEOC policy statement:

(1) the extent to which it limits its facilities and services to club members and their guests;
(2) the extent to which and/or the manner in which it is controlled or owned by its membership; and
(3) whether, and, if so, to what extent and in what manner it publicly advertises to solicit members or to promote the use of its facilities or services by the general public.

Id. By all these standards, the court believed, the Chicago Club is private. The EEOC conceded the second and third factors: the club was completely owned and controlled by its members, and it did not solicit either members or guests by public advertisement. As for the first factor, size alone, the court stated, does not determine an association’s status. Rather, the court opined,

selective membership practices are the essence of private clubs. Decisions concerning a club’s membership expansion are to individual members significant as their own decisions to join the club. One presumably affiliates with a private club because of the community of interests or agendas shared by the membership. The integrity of those common interests or agendas has much at stake in the membership selection process, and membership participation in the selection of new members is a crucial attribute of a private club. By participating in the selection process, members guarantee that the interests they share with other members will continue to bind the membership in the future.

86 F.3d at 1436. The Seventh Circuit concluded that the Chicago Club satisfied this selective membership requirement. “The undisputed facts suggest that the members of the Club exercise complete autonomy in the selection process.” Id. This discussion by the Court in Chicago Club, concerning “selective membership” seems to us again to be based on the fundamental interest people have in intimate social contact. A “private club” is one that limits its membership to further such social intercourse.

We have referred at some length to these precedents to underscore both the importance of the issue raised by this appeal and its difficulty. As these cases show, fundamental interests are implicated on both sides. How best to characterize and coordinate them is by no means clear. As we have indicated in our discussion of these cases, it seems to us that exemption from federal civil rights laws has been recognized only when the membership association has had as one of its primary purposes genuine social intercourse among its members. That purpose, furthermore, must be meaningfully reflected in the method by which members are chosen and guests admitted to the club’s facilities. This requirement comports with the ordinary meaning of the statutory term “club” as well as with that term’s anti-discrimination context, which clearly indicates that the exemption is to be a narrow one. This is not to say that an exempt private association may not have purposes other than sociality. Distinctly private clubs form around a vast array of interests and enthusiasms from the most narrowly personal to the political. It is to say, however, that sociality must remain a principal purpose of the association relative to any others, particularly mercantile ones.

The appellants insist that DAV’s purposes are not appropriately private and geared toward sociality to exempt it from compliance with KRS 344.040. They note that DAV is a federally chartered corporation, whose purposes and membership are dictated by its founding legislation. 36 U.S.C. §§ 50301 et seq. (formerly 36 U .S.C. §§ 90 et seq.). DAV is dedicated, among other purposes, “to advance the interests, and work for the betterment, of all wounded, injured, and disabled American veterans.” 36 U.S.C. § 50302(3). To further that aim, DAV has established national and regional offices that provide services to all veterans and all disabled veterans, whether members of DAV or not. Its total membership exceeds 1,000,000, and admission to DAV, while restricted to individuals disabled in the line of duty during time of war in the service of the United States armed forces or its allies, is not subject to the sort of member control discussed in Chicago Club, supra, which was based on existing members’ subjective estimates of the prospective member’s compatibility. Its membership, rather, may perhaps be characterized as open to anyone in the general public who has come to occupy a particular role, like the credit union membership discussed in Quijano v. University Federal Credit Union, supra.

Of particular significance, appellants assert, in demonstrating DAV’s essentially public nature is the fact that its federal income-tax exemption derives not from the section of the tax code that refers specifically to “clubs,” but rather from the section exempting “[cjivic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare!.]” 26 U.S.C. § 501(c)(4). Moreover, appellants note, donations to DAV are tax deductible by the donor, a deduction that would not exist if DAV did not put those donations to public uses. In short, appellants contend, DAV is to a large extent devoted to fund raising and to the provision of public service, and so, like the nursing home in Fesel v. Masonic Home of Delaware, Inc., supra, it should not be deemed exempt from the civil rights laws.

We agree with appellants that DAV’s interest-group and public-service purposes tend to weigh against its claimed exemption as a private club. On the other hand, however, DAV does serve its members’ interest in sociability. True, its membership is large and is selected on an objective basis. The military experience admitting one to membership to the DAV, however, unlike the employment relationship in Qui-jano, is profoundly meaningful for almost all who go through it. It defines, it seems

to us, not simply an interest group, but a group for whom a very special social intimacy is possible. Encouragement of such intimacy, furthermore, is among DAV’s express purposes:

The purposes of the corporation are
(5) to stimulate a feeling of mutual devotion, helpfulness, and comradeship among all wounded, injured, and disabled veterans.

This purpose is given practical expression in the local chapters of the DAV, which serve as clubs for their members in much the same way the Chicago Club does for its members.

Is the DAV, then, the institutional means for individuals with common economic interests to band together, like the credit union in Quijano? Is it a public-service provider, like the nursing homes in Fesel and Mills? Or is it a private club serving its members’ interest in comradeship, and sociality, like the membership association in Chicago Club? The problem is that the DAV is all of these and is each of them to a significant degree. As discussed above, however, a private association’s public activities need not disqualify it from exemption provided that the association’s structure remains meaningfully private and that private sociability remains, in practice as well as theory, one of the association’s core purposes. We are persuaded that DAV satisfies this test. Notwithstanding DAV’s significant public purposes and activities, its core purpose, embodied in its many local chapters, is to provide social opportunities for its members. Its membership, moreover, is genuinely limited in a manner calculated to further that private purpose. The trial court did not err, therefore, by concluding that DAV, as a bona fide private membership club, is exempt from KRS 344.040’s provision against disability discrimination.

Given this conclusion, a second issue raised by Kreate needs only brief comment. Between the time she left her employment with DAV and when she filed this suit, Kreate petitioned for relief under Chapter 7 of the Bankruptcy Code. 11 U.S.C. §§ 701 et seq. On her petition she listed as an asset her potential cause of action against her former employer. Soon after this suit was commenced, DAV moved to have Kreate dismissed as a party on the ground that the bankruptcy estate had become the only entity with standing to assert Kreate’s claim. The trial court agreed with this contention and as part of its April 21, 1999, order granted DAV’s motion. Kreate has appealed from that ruling.

She maintains that some of the relief to which she would be entitled were her cause of action to succeed (future damages, for example) would not be property of her bankruptcy estate. Her interest in the cause of action has thus not been completely subsumed by the bankruptcy, she argues, and consequently the trial court erred by ruling that she lacks standing.

Because the dismissal of Kreate’s cause of action has rendered moot this question of her standing, this latter issue is not subject to our review. Sharp v. Robinson, Ky., 388 S.W.2d 121 (1965); Civil Service Commission v. Tankersley, Ky., 330 S.W.2d 392 (1959). Therefore, we must decline to address it.

In sum, although it is certainly ironic that an association of disabled persons should find itself seeking refuge from a law forbidding disability-based discrimination, we are persuaded that DAV has a right to the refuge it seeks. The disability-based discrimination claims brought by Colemire and Kreate do not apply, according to KRS 344.030(2), to bona fide private membership clubs. Although DAV is federally chartered, has become a large organization with various tax advantages, and has succeeded in providing important public services to veterans beyond its own membership, DAV, especially through its local chapters, is fundamentally concerned with restoring and enriching the private social lives of its members. Because DAV’s principal purpose is strongly geared toward serving its members in this way as a private club, we agree with the trial court that, despite its public activities, it is exempt from Colemire and Kreate’s suit.

For these reasons, we affirm the July 7, 1999, order of the Campbell Circuit Court.

ALL CONCUR.

      . Bavely is trustee of Kreate's Chapter 7 bankruptcy estate. Through Bavely the estate asserts an interest in Kreate’s cause of action. 11 U.S.C. §§ 701 etseq.

      . The prior order was entered April 21, 1999, in response to DAV’s CR 12 motion to dismiss. Motions for specific findings and to alter or amend that result were denied by order entered June 3, 1999.

      . Among the materials DAV submitted in support of its motion to dismiss were nine "right to sue” letters from the EEOC to individuals who had filed complaints with that federal agency alleging disability-based discrimination by the DAV. The letters are from the period December 1986 through October 1998, and in each the EEOC dismissed the complaint on the ground that the DAV was exempt from suit under Title VII because it "is a bona fide membership club.” Not surprisingly, DAV submits that these dismissals are conclusive of the issue before us. The appellants, on the other hand, would have us disregard these notices because they did not result from a hilly adversarial process and because they do not explain why the agency concluded as it did. The import of these notices, we believe, falls between these two extremes. Courts owe some deference to an agency’s interpretation of its controlling legislation, but their fundamental duly, even in the administrative context, is to construe pertinent statutes so as to give effect to legislative intent. Delta Air Lines, Inc. v. Commonwealth of Kentucky Revenue Cabinet, Ky., 689 S,W.2d 14 (1985). Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, we are not completely indifferent to the EEOC notices deeming DAV exempt from Title VII, but, as conclusory as these notices are, they provide very little guid-anee to the construction of KRS 344.030(2) and so are of limited authority.

      . A similar focus on sociality has informed the cases construing the slightly different private club exemption in Title II of the Civil Rights Act. 42 U.S.C. § 2000a(e). Title II forbids invidious discrimination in places of public accommodation, resort, or amusement. Cf. KRS 344.120. Rotary clubs, Jaycees, Kiwanis clubs, Little League, Boys Clubs, and the Boy Scouts, among others, have all sought exemption from Title II or state-law counterparts on the ground that they are distinctly private membership associations and not public accommodations. In making this distinction courts have looked closely at, among other things, the extent to which the association’s purposes and practices are sociable as opposed to commercial or business related. See Board of Directors of Rotary International v. Rotary Club, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987) (membership association's other purposes sufficiently over shadowed by its business purposes to make it subject, within the United States Constitution, to state public accommodations statute); Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (same); Welsh v. Boy Scouts of America, 993 F.2d 1267 (7th Cir.1993) (membership association’s purposes primarily sociable and so not subject to state public accommodations statute); Kiwanis International v. Ridgewood, 806 F.2d 468 (3rd Cir.1986) (same).

      . Although the distinction does not affect our present analysis, we note that Kentucky's exemption is even narrower than the federal one. It is limited to "discrimination with respect to disability." Whether it is a private membership club or not, therefore, DAV (assuming that it qualifies otherwise as an "employer” under our statute) may not discriminate in its employment practices on the basis of race, color, religion, national origin, sex, or age forty (40) and over.

      . 36 U.S.C. § 50303(a)(1)(A), (2)(A).

      . 26 U.S.C. § 501(c)(7).


author: BENTON, Judge. LOWENSTEIN,

text:
    Rama K. NEMANI, Respondent/Cross-Appellant, v. ST. LOUIS UNIVERSITY, Appellant/Cross-Respondent.
    No. SC 82288.
    Supreme Court of Missouri, En Banc.
    Dec. 5, 2000.
    Thomas C. Walsh, Robert J. Radice, John M. Horas, Kenneth E. Fleischmann, St. Louis, for Appellant/Cross-Respondent.
    Charles A. Seigel, III, Michael A. Wolff, St. Louis, for Respondent/Cross-Appellant.
   BENTON, Judge.

Rama K. Nemani, Ph.D, sued St. Louis University (SLU) for appropriation of his name. The circuit court entered judgment on the jury’s verdict for $300,000. After opinion by the Court of Appeals, this Court granted transfer. Mo. Const art. V, section 10. Reversed.

I.

In 1987, SLU hired Nemani as an assistant research professor in the Department of Pharmacological and Physiological Science. He held a joint appointment as a research chemist with the Veterans Affairs Medical Center. Each year from 1988 to 1996, Nemani and SLU signed a “Memorandum of Agreement Research Faculty” specifying as his duties:

To carry out collaborative research with various members of the department, to participate in research-related programs such as journal club, seminars, evening college and advanced graduate courses, and to supervise graduate students in lab rotations and dissertation research.

Nemani was paid only from collaborative research grants, each requiring a prior successful application. From 1987 through 1994, Nemani’s main source of income was a research project funded through the VA Medical Center, and carried out in collaboration with other members of the SLU Department. From September 1994 to 1996, he received no compensation for research projects with either SLU or the VA Medical Center. During that same time, however, Nemani and SLU signed annually the “Memorandum of Agreement” stating that Nemani would collaborate on research with members of the Department.

In 1993, the VA applied to renew the grant that had paid Nemani from 1987 to 1994. Although the application did not list Nemani’s name, he helped prepare it. The VA application was denied and not funded. Around the same time, Nemani applied (unsuccessfully) for a different grant through another organization.

On September 30, 1993, SLU applied to the National Institute of Health (NIH) for a grant that included continuing the VA project. That application listed Nemani as a “Co Investigator,” and as a “Research Assistant Professor” at SLU, with salary and benefits budgeted at about $60,000 yearly over the five-year grant. SLU did not obtain Nemani’s express consent before listing him on the application, although Nemani expressed an interest in working on the project before SLU applied for the NIH grant.

In June 1994, NIH awarded SLU a five-year grant, renewable each year. The award, however, totalled $729,864 rather than the $974,290 SLU applied for, a difference of $244,426. NIH initially suggested that SLU use both Nemani and a lab technician at 75 percent “effort” (instead of 100 percent as requested in the grant application). SLU’s principal investigator chose the lab technician for the project, instead of Nemani. Informed of this choice, NIH responded that it was the principal investigator’s decision. In July 1994, Nemani discovered that his name was in the NIH application.

Nemani sued SLU for invasion of privacy by appropriation of his name. SLU argues on appeal that the trial court should have directed a verdict because Nemani failed to make a submissible case for name appropriation. In reviewing motions for directed verdict and for judgment notwithstanding the verdict, this Court takes the evidence in the light most favorable to the verdict, giving the prevailing party all reasonable inferences from the verdict and disregarding the unfavorable evidence. Duren v. Kunkel, 814 S.W.2d 935, 936 (Mo. banc 1991).

II.

The tort of invasion of privacy includes four separate causes of action: intrusion on the plaintiffs seclusion or private affairs, public disclosure of embarrassing private facts, publicly placing plaintiff in a false light, and appropriation of plaintiff’s name or likeness for defendant’s advantage. Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 477 (Mo. banc 1986). At issue here is SLU’s alleged appropriation of Nemani’s name.

Not all uses of another’s name are tortious. “It is the plaintiffs name as a symbol of ... identity that is involved here, and not ... as a mere name.” Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684, 687 (Mo.App.1986), citing William L. Prosser, “Privacy,” 48 CaLL.Rev. 383 (1960). Name appropriation occurs where a defendant “makes use of the name to pirate the plaintiff’s identity for some advantage.” Id. The right of privacy, however, does not “subvert those rights which spring from social conditions, including business relations.” Munden v. Harris, 153 Mo.App. 652, 184 S.W. 1076, 1079 (1911).

In the business relationship of this case, SLU did not appropriate Nemani’s name. Nemani was hired to do research as an assistant research professor at SLU, and a research chemist at the VA. The Memorandum of Agreement required that he collaborate on research projects with other faculty members. Nemani impliedly consented to SLU’s use of his name on grant applications. See Johnson v. Boeing Airplane Co., 175 Kan. 275, 262 P.2d 808, 813 (1953); Alonso v. Parfet, 253 Ga. 749, 325 S.E.2d 152,154 (1985).

Nemani invokes Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684 (Mo.App.1986). There, doctors were named on a Continuation Grant Application after the applicani/employer terminated them. Id. at 687. The Court of Appeals held that the doctors made a sub-missible case for invasion of privacy due to name appropriation. Id at 689.

In the Haith case, the doctors were terminated before their names were listed on the grant application. The doctors did not consent, in any way, to the use of their names by the applicant/employer. In this case, Nemani was employed by the applicant/employer on the date of the application (and for nearly three years thereafter), for the purpose of working jointly on research projects funded by grants. SLU thus acted with implied consent. Nemani has no cause of action for name appropriation. The circuit court judge should have directed a verdict for SLU.

The judgment of the circuit court is reversed.

PRICE, C.J., LIMBAUGH, COVINGTON, WHITE, and HOLSTEIN, JJ., concur.

LOWENSTEIN, Sp. J., dissents in separate opinion filed.

WOLFF, J. not participating.

LOWENSTEIN,

Special judge, dissenting.

I respectfully dissent. I would hold under the facts here that Nemani made a submissible case for invasion of privacy name appropriation. I would also affirm the denial of a submission for punitive damages and would reverse and remand for trial on the issue of actual damages.

The following facts, viewed in the light most favorable to the verdict are now noted. Washington by Washington v. Barnes Hasp., 897 S.W.2d 611, 615 (Mo. banc 1995). Nemani holds a doctoral degree in chemistry, and from 1981 to 1987 he researched in medicine for the University of Miami, Florida, and the University of Nebraska. In 1987, Nemani was hired by the Veteran’s Administration (VA) hospital and by St. Louis University (SLU). Those two entities had a working relationship in medical research. Nemani was hired to work for both entities on a grant project, which was scheduled to end in September of 1994. Those who worked on that project were paid solely from the grant. In 1993, SLU learned that the grant would not be renewed, so Nemani needed to seek other employment. As such, Nemani contacted a former colleague, Dr. Randy Strong, who had moved from researching at SLU to working for a VA hospital in San Antonio.

Strong told Nemani that Nemani was named as co-investigator on a different SLU grant, which was funded by the National Institute of Health (NIH). On a grant, the principal investigator generally devises the research and methodology for the project, while a co-investigator participates in the research but generally has less direct responsibility. Nemani testified that he neither knew he was listed as a co-investigator nor expressly consented to the use of his name for the grant application. Nemani contacted the SLU administrator who handled grants to investigate the matter. Nemani was permitted to see a copy of the NIH grant, but the administrator would not give him a copy. The SLU grant application showed that Nemani was indeed listed as co-investigator on the project, with an annual salary and benefits of more than $60,000 for the duration of the five-year grant.

Nemani filed a formal complaint with SLU, to which SLU never responded. Under the Freedom of Information (FOI) Act he requested all documents relating to the NIH grant. Nemani also contacted the coordinator and principal investigator, Harvey Armbrecht, who was listed on the NIH grant, to inquire whether SLU intended to use him for the grant. Nemani testified that he was told his expertise was incompatible with the project.

Nemani learned from his FOI request that before SLU was awarded the NIH grant, it had applied to the VA for a continuation of this grant, on which Arm-brecht had been working for some time. In the application to the VA, SLU did not use Nemani’s name, and the VA declined to renew the grant. In the application to the NIH, SLU used Nemani’s name, and SLU was awarded substantial funding. Nemani also learned that the NIH had made recommendations to SLU regarding Nemani and a lab technician who was also named on the grant. Specifically, the NIH suggested that SLU use Nemani and a lab technician for 75 percent (instead of 100 percent) of the grant. Ultimately, SLU chose to use only the lab technician and not Nemani.

In support of its contention that Nemani impliedly consented to the use of his name, SLU notes that Nemani testified that he told Armbrecht at least twice before the NIH application was filed that he was interested in working on the NIH-funded project. Moreover, Armbrecht testified that he excluded Nemani because the NIH granted SLU $244,000 less than what SLU requested and that excluding Nemani from the project was within his discretion. Nemani testified that he would have had no problem with his name on the application if he had received a job under the NIH grant. As a result of being listed on the grant and of learning of that listing through a colleague, Nemani testified that he suffered shock and humiliation. He offered no medical evidence as to his distress. Nemani also claimed a loss of “professional progress.”

Did the plaintiff make a submissible case?

The majority holds that Nemani did not make a submissible case for name appropriation, and, thus, the circuit court judge should have directed a verdict for SLU. I disagree. Appropriation of another’s name or likeness occurs when a defendant “makes use of the plaintiffs name or likeness to advertise the defendant’s business or product, or for some similar commercial purpose,” or for defendant’s own purposes and benefit “even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one.” Restatement (Second) of Torts § 652C, comment b (1977). In order to be liable for name appropriation, “the defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiffs name or likeness.” Restatement (Second) of Torts § 652C, comment c. “It is the plaintiffs name as a symbol of his identity that is involved here, and not his name as a mere name.... It is when he [the defendant] makes use of the name to pirate the plaintiffs identity for some advantage of his own ... that he becomes hable. It is in this sense that ‘appropriation’ must be understood.” William L. Prosser, “Privacy,” 48 CaLL.Rev. 383, 403 (1960). “Appropriation” of another’s name requires that the use of the name be without the owner’s consent, either express or implied. See Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076,1079 (1911).

The majority holds that Nemani did not have a cause of action for name appropriation because he impliedly consented to SLU’s use of his name on grant applications. The majority contends that Nemani impliedly consented to the use of his name due to 1) his employment at SLU as an assistant research professor and as a research chemist at the VA, and 2) the memorandum of agreement he signed requiring him to collaborate on research projects with other faculty members.

The majority cites two cases in support of its conclusion. In Johnson v. Boeing, 175 Kan. 275, 262 P.2d 808 (1953), an employee sought damages for the use of a picture of him posing next to one of Boeing’s aircraft in an advertisement. The employee agreed to having his picture taken and was aware at the time he posed for the photograph that it “might” be published. Id. at 809. The court in Johnson held that the employee explicitly consented to having his picture taken and had impliedly consented to the publication of the photographs by his acknowledgment that he thought the photograph “might” be published. Id. at 813-14. Johnson is distinguishable from the case at bar. The employee in Johnson consented to having his photograph taken and impliedly consented to it being published in a magazine. Here, Nemani was neither informed nor aware of the use of his name on the grant application.

The second case the majority relies upon is Alonso v. Parfet, 253 Ga. 749, 325 S.E.2d 152 (1985). In Alonso, the employee, a doctor, worked as a laboratory director for his employer. Id. at 153. The employee entered into an employment agreement with the employer. Alonso v. Parfet, 171 Ga.App. 74, 318 S.E.2d 696, 699 (1984), rev’d 253 Ga. 749, 325 S.E.2d 152. As part of his employment, the employee allowed the employer to use his name and title on business papers, amounting to an implied license. Id. After his job was terminated, the employer continued to use employee’s name along with his title of “Laboratory Director” on forms and other documents that were sent to potential and actual clients of employer. Id. The court in Al-onso held that “absent express agreement, the license granted or implied and made irrevocable by the expenditure of funds is the license to use the employee’s name in connection with his employment. Such a license will normally terminate along with the employment.” Alonso, 325 S.E.2d at 154. Alonso is different from this case because, again, the employee had consented to the use of his name on the employer’s business documents. Further, the employee knew that his name was being used on documents after he was terminated since he protested such usage on at least two occasions. Id. at 153. Here, Nemani was not aware that his name appeared on the grant application until a month after the grant had already been awarded to SLU, whereas the employee in Alonso was aware of the use of his name and was attempting to stop such use by his employer. Neither Johnson nor Alonso adequately addresses the issues raised here.

The most factually similar case concerning name appropriation, Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684, 687 (Mo.App.1986), is dismissed by the majority as different from the present case because the plaintiffs there had been terminated prior to the use of their names by the employer. In Haith, three doctors sued their employer for name appropriation, when the employer used their names on a “Continuation Grant Application” after the doctors had been terminated. Id. at 687. The Court of Appeals, Western District, held that the doctors made a submissible case for name appropriation. Id. at 689. The majority claims that the plaintiffs in Haith made a submissible case because they were terminated before their names were listed on a grant application, voiding any consent on their part. The court in Haith did not rely on the doctors’ employment status in its holding, but rather found that “a jury could find that there was advantage to defendant in using plaintiffs names to procure a government grant....” Id. at 688.

Here, a jury could find that the use of Nemani’s name on the grant application gave SLU an advantage. The use of Nem-ani’s name was not as a mere name, but as a symbol of his identity. Id. at 687. SLU used Nemani’s name on the application because of his identity as a research chemist and assistant professor, and because of the reputation, prestige and standing that flows from such a title. Otherwise, SLU could have written in a lab technician’s name if it were merely using Nemani’s name as just a name.. The employer’s use of the employee’s name on the grant application cannot be trivialized here as “an incidental business use” and not actionable, for that, as in Haith, ignores that a jury could have found an employer advantage, Id. at 687-88.

Furthermore, Nemani did not impliedly consent to the use of his name on the grant application by virtue of his employment and the agreement he signed. Where, as here, the contract of employment is silent on the matter, an employer should not have the right to appropriate by implication of employment the employee’s name for the employer’s benefit. Nema-ni’s employment by the university and the agreement he signed did not give the university carte blanche to use his name on grant applications without his knowledge and for its advantage. The one-page agreement that refers to collaboration with department members on research, participation in journal club and seminars, and supervision of graduate students does not support the conclusion that the agreement allows SLU to use Nemani’s name on grant applications without his knowledge. The long and short of this case is SLU applied for a grant using Nemani’s name as the number two person on the project, SLU failed to get the full amount of the grant, and never having told Nemani anything, excluded him from the grant project. Therefore, I would hold that Nemani has made a submissible case for invasion of privacy name appropriation, and allow a recovery of at least nominal damages and such other actual damages as can be proven. Id. at 689.

Actual and Punitive Damages

The trial court did not allow Nemani to pursue as a measure of his damages his lost salary and benefits (totaling approximately $300,000 over the life of the grant application). Nor was Nemani allowed to claim damages for unjust enrichment to SLU. The trial court limited Nemani’s claim to actual damages he suffered as a result of the invasion of his privacy. Nem-ani’s evidence of damages consisted of his testimony that he suffered shock and humiliation because of SLU’s actions. He offered no medical evidence. He also claimed a loss of “professional progress,” testifying that grants such as the one involved in the case at bar are important to the reputation of scientists. The trial judge directed a verdict for SLU on punitive damages. The verdict on which the judgment was entered was for $300,000.

Finding that Nemani made a submissi-ble case for name appropriation, it is necessary to address SLU’s argument concerning lack of medical proof of emotional distress, as it was part of the actual damages judgment. Emotional distress has been labeled as mental suffering and anguish, which must be ongoing and continuous. Wallace v. Van Pelt, 969 S.W.2d 380, 386 (Mo.App.1998). This Court in Bass v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo.banc 1983), announced in a negligence suit for damages for emotional distress that emotional or mental injury must be medically diagnosable and of sufficient severity to be medically significant. The Court of Appeals, Eastern District, in Signorino v. National Super Markets, Inc., 782 S.W.2d 100, 104 (Mo.App.1990) (false arrest), and Fust v. Francois, 913 S.W.2d 38, 48 (Mo. App.1995) (malicious prosecution), held that where the tort is intentional, the requirement of Bass for medical evidence to establish actual damages from emotional distress is not applicable. I believe the better approach would be to require medical evidence, as in Bass, to prove damages for the invasion of privacy tort of name appropriation. 646 S.W.2d at 772. Even though this is an intentional tort, Bass, which required medical evidence where the plaintiff had been trapped in an elevator and showed no physical injury, should apply here. Id.; Cf. Soflca v. Thai, 662 S.W.2d 602, 511 (Mo. banc 1984) (intentional tort of invasion of privacy-intentional intrusion).

A reasonable observation would be that requiring medical evidence to support more than a nominal amount of monetary damages for an invasion of privacy leads to a hollow recovery. It is because emotional losses are so difficult to prove and put a monetary value upon that, I believe, the Bass rules should be invoked in these cases. Such is the situation in a trespass of real property suit where there are nominal damages flowing from a trespass, leaving the landowner the task of producing evidence of actual damages, which may be small or difficult to prove. See Kitterman v. Simrall, 924 S.W.2d 872, 878-79 (Mo.App.1996).

The proof of emotional damages in this case was nebulous, consisting only of Nem-ani’s testimony. He said it was a shocking experience to see his name on the grant application and that he was “personally humiliated” when he and others learned he had not been used on the project. There appears to be little evidence as to Nema-ni’s actual loss of “professional progress.” On cross-examination he testified that he felt his reputation was damaged, but had no other evidence to support this feeling. He testified of the importance of participating in grants and how they contributed to the reputation and prestige of research scientists. Nemani claimed his reputation suffered because of SLU’s unauthorized use of his name on the grant application coupled with his not being used to work on the grant. The $300,000 awarded by the jury and contained in the judgment was based solely on the shock and humiliation suffered by Nemani. (It could not be said the $300,000 verdict was based solely on the evidence here concerning lack of professional advancement.) Because I would require that these emotional damages be corroborated by medical or other independent proof, the entire issue of damages should be sent back for a determination by a jury. State ex rel. Benz v. Blackwell, 716 S.W.2d 270, 273 (Mo.App.1986).

Therefore, I would affirm the submission of the tort of invasion of privacy for name appropriation, affirm the denial of a submission for punitive damages, and reverse and remand the issue of damages for trial.


author: BENTON, Judge.

text:
    Ladonna WELLS, Respondent, v. T.J. BROWN, D.D.S., Appellant.
    No. SC 82433.
    Supreme Court of Missouri, En Banc.
    Dec. 12, 2000.

      Thomas Clinkenbeard, Kansas City, for appellant.
    Lance E. Hanson, Kansas City, for respondent.
   BENTON, Judge.

While going to work on December 23, 1996, Ladonna L. Wells slipped and fell on the ice-covered parking lot of the building where she worked. Her employer, Thomas J. Brown, a dentist, leased an office in the building. The Labor and Industrial Relations Commission affirmed an award of workers’ compensation. After opinion by the Court of Appeals, this Court granted transfer. Mo. Const art. V, sec. 10. Because compensability of the injury is a question of law, this Court reviews de novo the Commission’s conclusions of law. Section 287495.1(1),(3) RSMo 1994 Affirmed.

To be covered by workers’ compensation, an injury must arise out of and in the course of employment. Section 287.120.1; Blades v. Commercial Transport, Inc., 30 S.W.3d 827 (Mo. banc 2000). “Arising out of’ and “in the course of’ are two separate tests; both must be met before an employee is entitled to compensation. Abel v. Mike Russell’s Standard Service, 924 S.W.2d 502, 503 (Mo. banc 1996).

I.

Workers are not in the course of their employment except while engaged “in or about” the premises where their duties are being performed, or where their services require their presence. Sec. 287.020.5; Drewes v. Trans World Airlines, 984 S.W.2d 512, 514 (Mo. banc 1999).

Generally, injuries during transport to and from work are not compensa-ble. Person v. Scullin Steel Company, 523 S.W.2d 801, 806 (Mo. banc 1975). Under the “extended premises” doctrine, however, injuries while going to or from work are compensable if:

(a) the injury-producing accident occurs on premises which are:
1) owned or controlled by the employer, or
2) not actually owned or controlled by the employer but which have been
A) so appropriated by the employer or
B) so situate, designed and used by the employer and his employees incidental to their work as to make them, for all practical intents and purposes, a part and parcel of the employer’s premises and operation; and
(b) that portion of such premises is a part of the customary, expressly or impliedly approved, permitted, usual and acceptable route or means employed by workers to get to and depart from their places of labor and is being used for such purpose at the time of injury.

Cox v. Tyson Foods, Inc., 920 S.W.2d 534, 535-536 (Mo. banc 1996), citing Kunce v. Junge Baking Co., 432 S.W.2d 602, 607 (Mo.App.1968) (emphasis added). If an employee is injured on extended premises while coming to or from work, the injury is in the course of employment as if “it had happened while the employee was engaged in his work at the place of its performance.” State ex rel. McDonnell Douglas Corp. v. Luten, 679 S.W.2d 278, 280 (Mo.banc 1984); Davis v. McDonnell Douglas, 868 S.W.2d 170,171 (Mo.App.1994).

Here, the dentist/employer did not own or control the parking lot. The dentist did request that his employees park in the perimeter of the lot (to save the closer parking for patients). At least once, he instructed claimant not to leave her car overnight in the parking lot. The dentist used the lot to load a van before traveling to his satellite offices. Claimant was never assigned a parking space or permit, or required to drive to work.

At issue is whether the parking lot was situated, designed or used by the dentist and his employees, so as to make it part of the dentist’s premises and operations. This Court, in Cox, found that a lot — not owned or controlled by the employer — was so situated, designed or used. 920 S.W.2d at 535. There, an employee slipped on ice and fell in a parking lot. Id. The lot was “situated so near” the work area that employees found it convenient to park there. 920 S.W.2d at 536. The employer’s designation of the lot as a place where employees could park fulfilled the “design” criteria. Id. When the employees used the “situate, designed” parking lot in Cox, requirement (a)(2)(B) was satisfied. Id.

Here, it is undisputed that the parking lot was the only one near the office, and the most convenient place for employees to park. The dentist invited his employees to park there, albeit in the perimeter. The dentist’s employees then used the “situate, designed” parking lot. Requirement (a)(2)(B) of Cox is satisfied.

The Cox case also addressed whether premises were “appropriated” by the employer under paragraph (a)(2)(A). Cox, 920 S.W.2d at 536. As the premises here are “so situate, designed and used,” this Court need not address the appropriation issue.

The dentist claims that the parking lot is not his extended premises because his lease does not expressly include parking. Although the lease is not in the record, the Commission found that the “employer had leased office space and made rent payments for the maintenance of the office itself and the common areas such as parking lots, hallways, and sidewalks.” This Court defers to the Commission’s findings of facts. Section 287495; Shepard v. Robinson, 451 S.W.2d 329, 335 (Mo.1970).

The dentist attempts to distinguish Cox. There, the injury occurred during the work day while the employee was on an authorized break. This fact does not matter: “The fact Cox was returning from a brief, paid, authorized break does not make his injury less incidental to employment than if he fell on employer’s extended premises while on the way to work at the start of his shift.” Cox, 920 S.W.2d at 537 (emphasis added).

As to requirement (b), claimant fell while on the customary, impliedly approved, permitted, usual and acceptable route to work. Because the injury occurred on this route, it is immaterial that her husband dropped her off near the building and parked only briefly. See Cherry v. Powdered Coatings, 897 S.W.2d 664, 668[9] (Mo.App.1995). By the extended premises doctrine of Cox, claimant’s injury is compensable. See Frye v. Viacom, 927 S.W.2d 545 (Mo.App.1996).

II.

The dentist claims that the Cox and Frye decisions are superceded by section 287.020.3(2)(d), in the 1993 amendments to the Workers’ Compensation Law. 1993 Mo. Laws 766, codified as section 287.020.3(2)(d). The injuries in both Cox and Frye occurred before the 1993 amendments took effect. See Cox, 920 S.W.2d at 535; Frye, 927 S.W.2d at 547.

The dentist contends that the “unrelated hazard” exclusion in subsection (d) bars claimant’s recovery. An injury arises out of and in the course of employment only if:

It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.

Section 287.020.3(2)(d). Because the weather was icy for miles around the building, the dentist says that claimant was “equally exposed” to it in her “normal non-employment life.”

To the contrary, in her non-employment life, claimant would not have been going to work across the dentist’s icy parking lot. See Kasl v. Bristol Care, 984 S.W.2d 852, 854 (Mo. banc 1999); Willeford v. Lester E. Cox Medical Center, 3 S.W.3d 872, 877-878 (Mo.App.1999). Finley v. St. Louis Smelting & Refining Co., 361 Mo. 142, 233 S.W.2d 725, 727 (1950). The claimant’s injury did come from a hazard or risk related to her employment, under subsection 287.020.3(2)(d).

The decision of the Labor and Industrial Relations Commission is affirmed.

All concur.

      . All statutory citations are to RSMo 1994 unless otherwise indicated.


author: PER CURIAM.

text:
    Michael SICKINGER, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    Nos. ED 77181, ED 77303.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 31, 2000.
    Rehearing Denied Dec. 7, 2000.
    Gwenda R. Robinson, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
    ■ Before MARY K. HOFF, C.J., KATHIANNE KNAUP CRANE, J. and CHARLES B. BLACKMAR, Sr. J.
   ORDER

PER CURIAM.

Movant, Michael Sickinger, appeals from the trial court’s judgment sustaining his Rule 24.035 motion for post-conviction relief which judgment was twice modified in accord with movant’s requests in order to facilitate the process by which federal authorities would take movant into custody so that he could serve his state sentences in federal custody concurrently with a federal sentence as agreed in a plea bargain. We affirm. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


author: TEITELMAN, Judge.

text:
    Sebastian ROBINSON, et al., Appellants, v. AHMAD CARDIOLOGY, INC., et al., Respondents.
    No. ED 77075.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 31, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2000.

      Michael A. Gross, MacArthur Moten, St. Louis, for appellants.
    Robert S. Rosenthal, T. Michael Ward, Amy L. Klingermann, Brown & James, P.C., St. Louis, for respondents.
   TEITELMAN, Judge.

Sebastian Robinson (hereinafter, “Appellant”) appeals from the judgment entered in the Circuit Court of the City of St. Louis granting Respondents’ motion for summary judgment in Appellant’s negligence action. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On November 16, 1995, Colleen Cren-shaw, Appellant’s mother, went to the emergency room of Deaconess Hospital because she was experiencing chest pain. The emergency room personnel determined that she had suffered a heart attack and treated her for that condition. The hospital admitted Ms. Crenshaw to the coronary care unit for further diagnosis and treatment.

Naseer Ahmad, M.D., performed a heart catheterization and angioplasty upon Ms. Crenshaw during the morning of November 17, 1995. She was alert and communicative until that evening. Ms. Crenshaw began to exhibit changes in her oxygen saturation rate and shortness of breath that night and the following morning. She died as the result of pulmonary edema and cardiac arrest at 8:43 a.m. on November 18,1995.

Appellant’s grandmother and next friend filed suit for him against Dr. Ahmad, Dr. Hernandez and Ahmad Cardiology, Inc. (hereinafter, “Respondents”). Appellant’s petition alleged that Dr. Ahmad and Dr. Hernandez had provided treatment for Ms. Crenshaw at Deaconess Hospital on November 17, 1995, and then had left the hospital without giving adequate information about her condition and medical needs to physicians and other hospital personnel responsible for her medical care that night. Appellant claimed that Ms. Cren-shaw had died as a consequence of that failure.

The Respondents filed motions for summary judgment. Their motion alleged that “the undisputed facts show that [Respondents] documented in the medical records the information necessary to enable the other doctors to care for Colleen Cren-shaw,” and that “the intern had access to this information and indeed was aware of the information.” In support of their motion, Respondents claimed that they had written “specific post operative orders directing Ms. Crenshaw’s care.” They offered deposition testimony of Christopher Conger, D.O., the intern who became responsible for Ms. Crenshaw’s care on the night of November 17, 1995, as proof that they had adequately apprised the house medical staff of Ms. Crenshaw’s condition and medical needs.

Dr. Conger testified in his deposition that either Dr. Ahmad or Dr. Hernandez had spoken with him about Ms. Crenshaw after her heart catheterization on November 17,1995. According to Conger, he was apprised in that conversation and by the Respondents’ written post-procedure report that Ms. Crenshaw had undergone heart catheterization, that stents had been placed in her heart, and that the stents had been implanted “secondary to increased risk of restenosis.”

Steven R. White, M.D., also testified by deposition. Dr. White stated that he was critical of Dr. Ahmad’s treatment of Ms. Crenshaw. He explained:

“Dr. Ahmad, as the covering physician, the covering attending physician for Miss Crenshaw that evening, has a responsibility to know what’s happening. He was there for the cardiac cath. He placed the stents himself. He knew of her situation. He had a responsibility to ensure that the house staff were appropriately forewarned about complications .... [H]e has a responsibility to make sure that [the house physicians] know about the special problems here, including the LVEDP that’s elevated and educating them, there’s a risk here: keep an eye on this patient here tonight, she’s 36 hours after her MI. She’s just had stents placed. She has an elevated LVEDP. She could very well go into pulmonary edema or heart failure, in addition to all the other things that could happen to her. So keep an eye on her.”

Dr. White subsequently restated the information that he believed should have been provided by the defendants to the house physicians: “[This] patient’s at risk in addition to all the usual things of a higher risk of developing heart failure or edema. So, watch her fluid status, and if there’s a problem, call me.”

Dr. White explained his opinion that merely writing notes on the patient’s medi-

cal chart did not constitute adequate communication of the patient’s particular medical needs to the house staff:

I think you have to understand how a sign-out is done. A sign-out is not a rote recitation of the facts. A sign-out is a bringing together of the information with a clear understanding of what has to happen. And so Dr. Conger can read the chart, but it’s not the same as the attending doctor saying to him right here in his face, this distance apart, saying here’s what’s going on. Here’s what you have to look out for. Here’s what you need to do. Here’s when you call me. Do you understand this? And that’s what an effective sign-out is.... So let’s not confuse the fact that there are some things written down on paper somewhere with making sure that the house staff have a clear understanding of what’s going on.

He explained his opinion further:

And you have to understand how a critical care unit works. You’ve got critically ill patients. Attendants are responsible for these patients. They have house staff there. Now, the house staff have their responsibilities. One of those is to call [the attending physician when assistance is required]. But the attending also has to make sure that they know the ground rules of when to call, and what they need to know, and to make sure that they have an understanding of what’s going on. It’s one thing just to read in the chart, oh, yeah, the LVEDP is 25, but the house staff needs to know what that means. I don’t expect a six-month fresh intern to have a perfect understanding of all of this. That’s why [they are interns].... Who’s Dr. Conger going to learn from? Dr. Ahmad. If Dr. Ahmad doesn’t set the stage for them to know their jobs and to take care of a patient properly, then Dr. Ahmad has a responsibility that he hasn’t met, and that’s what I’m trying to say here.

Dr. White also stated his opinion “to a reasonable degree of medical certainty” that Dr. Ahmad’s communication with Dr. Conger “didn’t work” and “wasn’t effective.”

Warren Israel, M.D., also testified by deposition. Dr. Israel stated his opinion regarding the organic cause of Ms. Cren-shaw’s death: “My opinion is that she went into progressive pulmonary edema the night of November 17th to November 18th, and that’s why she died.” He testified regarding his criticism of the medical care given by Dr. Ahmad and Dr. Hernandez on November 17,1995:

First of all, I believe that either Dr. Hernandez or Dr. Ahmad should have specifically alerted the house staff that this patient was in borderline congestive heart failure and that she needed to be watched closely and given diuretic at the first sign of any decompression, at the first sign of any pulmonary problems.

Dr. Israel explained:

The only criticism I have is that [Dr. Hernandez] and Dr. Ahmad — I see them as a team of cardiologists. One of those two doctors needed to express to the house staff specifically the nature of the situation that that patient had in the cath lab and coming out of the cath lab, to alert them to the fact that this is a patient that might go into congestive heart failure quickly.... [0]ne of the two of them had to tell somebody what was going on.

Dr. Israel stated his opinion that the pulmonary edema that caused Ms. Cren-shaw’s death had resulted from “the original [myocardial infarction] plus the inadequate treatment.” He explained that Ms. Crenshaw’s death “would have been less likely to occur” if Dr. Ahmad and Dr. Hernandez had “impressed upon the staff taking care of the patient that this patient had the potential for decompensation; and, if things don’t go well, call me.” He also testified that he could not specify which of the medical responses of which Ms. Cren-shaw was deprived “eventually led to her demise,” but stated his opinion that “[i]t was the whole process of inadequate treatment that caused her to die.”

The trial court granted Respondents’ motion for summary judgment. The court characterized Dr. Israel as the Appellant’s “only critical expert” and concluded: “[i]t appears that [his] testimony is rebutted by the testimony of Dr. Conger.” The court explained: “Dr. Conger testified that he was made aware of the decedent’s condition and risks thereof by either Dr. Hernandez or Dr. Ahmad before they went off duty.” And:

[T]he testimony of Dr. Conger was that he was adequately apprised of the decedent’s precarious condition. [Appellant’s] only allegation of negligence against Dr. Ahmad is that he did not adequately apprise hospital staff of the decedent’s condition. It is apparent from the record that [Appellant] will be unable to prove his claims against Dr. Ahmad.

The court stated only the following about Dr. White’s testimony: “Dr. White specifically testified that he had no criticism of Dr. Hernandez in this case ... Dr. White also testified that apart from the conduct of Dr. Ahmad, he had no criticism of Ahmad Cardiology, Inc., in this case.”

Appellant now appeals from the summary judgment entered in favor of Respondents. He argues that the trial court erred in granting the summary judgment motion because Respondents failed to establish that no genuine dispute exists regarding the adequacy of Dr. Ahmad’s and Dr. Hernandez’s “check-out” on the afternoon preceding Ms. Crenshaw’s death.

STANDARD OF REVIEW

On review of a summary judgment, we review the trial court’s judgment de novo. ITT Commercial Finance Corporation v. Midr-America Marine Supply Corporation, 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the fight most favorable to the party against whom

the judgment was entered. Bear Foot, Inc. v. Chandler, 965 S.W.2d 386, 388 (Mo.App. E.D.1998), citing ITT Commercial Finance, 854 S.W.2d at 376. As summary judgment is a question of law, we use the same criteria as the trial court in determining whether judgment was proper. Id. A party moving for summary judgment has the burden to demonstrate that no issue of material fact exists and that the moving party is entitled to judgment as a matter of law. George Walsh Chevrolet, Inc. v. Dieters, 864 S.W.2d 934, 935 (Mo. App. E.D.1993); Rule 74.04(c). A genuine issue may not consist of mere “conjecture, theory and possibilities.” Bear Foot, Inc. v. Chandler, 965 S.W.2d at 388, citing ITT Commercial Finance, 854 S.W.2d at 378.

DISCUSSION

Appellant argues that the trial court erred in granting Respondents’ motion for summary judgment because Respondents failed to establish that no genuine question of material fact existed regarding the adequacy of Dr. Ahmad’s and Dr. Hernandez’s “check-out” on the afternoon preceding Ms. Crenshaw’s death. Appellant relies on the fact that Dr. White and Dr. Israel both testified that the treating physicians had failed to adequately apprise the house staff that Ms. Crenshaw was at risk of going quickly into congestive heart failure, that she needed to be watched closely and treated immediately for the first signs of pulmonary difficulty, and that the attending physicians should be notified promptly of any deterioration in her condition. Appellant argues that neither Dr. Conger’s testimony nor any other evidence proffered by Respondents overcame the probative force of Dr. White’s and Dr. Israel’s testimony as a matter of law. We agree.

Dr. White testified to a reasonable degree of medical certainty that Dr. Ahmad failed to properly communicate with the house staff before leaving Ms. Crenshaw in their care. Dr. White stated that he reached this conclusion after reviewing the events of the last evening of Ms. Cren-shaw’s life and determining that proper procedures were not followed. Dr. White stated that Dr. Ahmad had the duty to effectively communicate proper procedures to the house staff before leaving, and the fact that the house staff failed to act appropriately as Ms. Crenshaw’s condition deteriorated indicates that they were not aware of the her unique medical situation.

Dr. Israel testified that either Dr. Hernandez or Dr. Ahmad should have specifically alerted the house staff that Ms. Cren-shaw was in borderline congestive heart failure and that she needed to be watched closely and given a diuretic at the first sign of any decompensation, or pulmonary problems.

Dr. Conger testified that he had been made aware of Ms. Crenshaw’s heart cath-eterization procedure, and that two stents had been implanted during that procedure, and that the stent implantation had been effected “secondary to increased risk of restenosis.” He did not, however, testify that he had been warned that the patient “was in borderline congestive heart failure” and “might go into congestive heart failure quickly.” Nor did he testify that he had been warned that Ms. Crenshaw was “at risk in addition to all the usual things of a higher risk of developing heart failure or edema.” He did not testify that he had been instructed to call either attending physician if any problem arose with Ms. Crenshaw’s condition.

Missouri courts regard summary judgment as an “extreme and drastic remedy” that must be applied with the exercise of “great care.” ITT Commercial Finance, 854 S.W.2d at 377 (quoting Cooper v. Finke, 376 S.W.2d 225, 229 (Mo.1964)); Hammonds v. Jewish Hospital of St. Louis, 899 S.W.2d 527, 529 (Mo.App. E.D. 1995). Respondents bore the burden of demonstrating that there is no genuine dispute regarding any fact material to the outcome of the ease. ITT Commercial Finance, 854 S.W.2d at 378.

In this case, Respondents failed to demonstrate that no dispute exists. Viewed in a light most favorable to Appellant, the record reflects a genuine question of material fact regarding whether or not Drs. Ahmad and Hernandez effectively communicated Ms. Crenshaw’s condition to Dr. Conger, and whether or not any such failure to communicate resulted in improper treatment that led to Ms. Crenshaw’s death. These are questions of fact for a trier of fact, and summary judgment was improperly entered against Appellant.

We therefore reverse and remand this case for further proceedings consistent with this opinion.

ROBERT G. DOWD, Jr., P.J., and MARY RHODES RUSSELL, J., concur.


text:
    Timothy J. DOYLE, Appellant, v. KENNEDY HEATING AND SERVICE, INC. and Nicholas Dattoli, Respondents.
    No. ED 77107.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 2000.

      Lander & Berkowitz, P.C., Ira M. Ber-kowitz, St. Louis, James B. Kleinschmidt, St. Louis, for appellant.
    Crystal Y. Smith, St. Louis, for respondent.
    Before: GARY M. GAERTNER, Sr., P.J., LAWRENCE G. CRAHAN, J., and GEORGE W. DRAPER, III, J.
   OPINION

PER CURIAM.

Appellant, Timothy J. Doyle, (“appellant”), appeals from the judgment of the Circuit Court of St. Louis County granting respondents’, Kennedy Heating and Service, Inc. and Nicholas Dattoli, (“respondents”), motion for new trial. We affirm.

On March 8, 1992, appellant, a construction worker, was struck by respondent Kennedy Heating and Service, Inc.’s van while appellant was working as a flagman at a highway construction site in St. Louis County. The van was driven by respondent Nicholas Dattoli. Appellant sustained serious bodily injuries to his joint, pelvis, left leg, and shoulder. In addition, he suffered a concussion and a fractured skull.

On May 20, 1998, appellant filed a suit against respondents. After trial, the jury assessed damages in the amount of $400,000.00 and assessed comparative fault against appellant in the amount of 40%, thereby returning a verdict against respondents in the amount of $240,000.00. The trial court entered judgment in accord with the jury’s verdict.

On September 27, 1999, respondents filed their joint motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial. A hearing was held on November 1, 1999. Evidence was adduced showing that one juror failed to disclose information during voir dire. Specifically, the juror failed to disclose that she and her husband filed for bankruptcy in California on May 9,1994, in order to be discharged from $14,000.00 in unsecured debt. The juror admitted that she heard respondents’ counsel’s question regarding anyone that filed for bankruptcy. She testified that her reason for not disclosing the bankruptcy was that she did not think it was important. The juror was the foreperson of the jury that returned a verdict which was signed by nine of the twelve jurors. After hearing, the trial court found that the juror intentionally withheld material information. The trial court granted respondents’ motion for new trial. Appellant appeals.

On his sole point on appeal, appellant argues the trial court erred in granting respondents’ motion for new trial. Appellant concedes the juror’s nondisclosure was intentional. However, he argues the juror’s nondisclosure of her bankruptcy in California, more than five years prior to the trial, was not material information in determining her impartiality to sit as a juror in a personal injury car accident case.

“The determination of nondisclosure is left to the discretion of the trial judge whose ruling is disturbed only by showing abuse of discretion.” Wingate v. Lester E. Cox Medical Center, 853 S.W.2d 912, 917 (Mo. banc 1993). The trial court abuses its discretion if its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. If reasonable individuals can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Id.

“If a juror intentionally withholds material information requested on voir dire, bias and prejudice are inferred from such concealment.” Williams By Wilford v. Barnes Hosp., 736 S.W.2d 33, 37 (Mo. banc 1987). If intentional nondisclosure of material information by a juror is found, then, bias and prejudice must be presumed to have influenced the juror’s verdict. Brines By and Through Harlan v. Cibis, 882 S.W.2d 138, 140 (Mo.banc 1994). “Only where a juror’s intentional nondisclosure does not involve a material issue, or where the nondisclosure is unintentional, should the trial court inquire into prejudice.” Id. “[Questions and answers pertaining to a prospective juror’s prior litigation experience are material.” Id. “The fact that a prospective juror has been sued as a defendant or has prosecuted cases as a plaintiff may cause the juror to be predisposed to defendants or to plaintiffs, as the ease may be. The possibility of that predisposition makes the questions and answers material.” Id. Pri- or litigation experience includes bankruptcy cases. Schultz v. Heartland Health System, Inc., 16 S.W.3d 625, 627 (Mo.App. W.D.2000). “A juror is not to be the judge of her own qualifications.” Seaton v. Toma, 988 S.W.2d 560, 562 (Mo.App. S.D. 1999).

In the case at bar, one of the jurors, the foreperson, intentionally withheld her bankruptcy case information during voir dire. Her prior litigation experience in the nature of her bankruptcy case is material information. Therefore, she intentionally withheld material information during voir dire. As a result, bias and prejudice are presumed to have influenced her verdict. Thus, the trial court did not err in granting the motion for new trial.

However, we are compelled to note that granting a motion for new trial in these types of situations are not favored, especially when the lawyers could have prevented this by bringing forth their allegations prior to jury deliberation, so that the jurors involved could be replaced with alternates. It does not make sense, with respect to judicial economy, to wait until after trial, to bring allegations of juror’s intentional nondisclosure of material information. As Judge Holstein pointed out in his dissent in Brines By and Through Harlan v. Cibis, 882 S.W.2d 138, 142 (Mo. banc 1994):

A new trial subjects the courts, defendant and taxpayer to substantial cost. The egregiousness of invading a party’s potential right to exercise peremptory challenge for obscure reasons pales when compared to the substantial burdens of a new trial order when no prejudice occurred. The benefit of a new trial is de minimis in a case where neither party was at fault and the juror had not been shown to be disqualified because of a predisposition in favor of or against either of the parties.

It appears this is becoming a strategy for sandbagging by losing parties. We strongly encourage parties who have information about possible allegations of juror’s intentional nondisclosure prior to jury deliberation to bring it forth before the case is given to the jury.

We affirm the judgment of the trial court granting a motion for new trial.

      . This statement does not necessarily refer to the lawyers in this case. Here, the record does not reveal the lawyers were aware of the jury foreperson’s nondisclosure prior to the jury’s deliberation.


text:
    In the Interest of S.R.S., R.A.S., and A.E.S., minor children, L.S .S., Appellant, v. Rod BARNHILL and Missouri Division of Family Services, Respondents.
    No. ED 76952.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Nov. 7, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 14, 2000.
    Appeal from the Circuit Court of Lincoln County; J. Rockne Calhoun, Judge.
    Malaine P. Hagemeier, James D. Beck, Troy, for appellant.
    G. John Richards, Troy, Bruce Antrim, St. Louis, for respondent.
    BEFORE: MARY K. HOFF, C.J., CLIFFORD H. AHRENS, J., and MARY RHODES RUSSELL, J.
   ORDER

PER CURIAM.

L.S. (“mother”), appeals the judgment of the trial court terminating her parental rights. On appeal mother claims that there is not substantial evidence to support the judgment.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).