United Fire v. Paul Garvey ( 2003 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-2285
    ___________
    United Fire & Casualty Insurance       *
    Company,                               *
    *
    Plaintiff - Appellee,      *
    *
    v.                               *
    * Appeal from the United States
    Paul Garvey;                           * District Court for the
    * Eastern District of Missouri.
    Defendant - Appellant,     *
    *
    Fenton, L.L.C.,                        *
    *
    Intervenor - Appellant.    *
    ___________
    Submitted: January 15, 2003
    Filed: May 6, 2003
    ___________
    Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
    ___________
    BYE, Circuit Judge.
    Paul Garvey and Fenton, L.L.C. (Fenton) appeal the district court’s grant of
    summary judgment in favor of United Fire & Casualty Insurance Company (United
    Fire). We reverse.
    I
    Viewed in the light most favorable to Paul and Fenton, the record reveals the
    following facts. Paul’s parents, James and Beverly Garvey, buy, renovate and resell
    residential property; sometimes through their corporation, Garvey Home
    Development Corporation, and at other times in their individual names. Paul lives
    with his parents and works for Garvey Home Development. In 1995, James and
    Beverly bought a piece of residential property to renovate and resell. Paul took
    charge of the renovations, and James instructed him to obtain insurance coverage on
    the property. Paul called the family’s insurance agent, Dan Hebbeln, and told him
    his parents had recently purchased another piece of property and needed it insured.
    Paul previously obtained insurance through Hebbeln in the same manner for other
    properties owned by his parents, and each time Hebbeln knew Paul was acting on
    behalf of his parents. Hebbeln completed an application which Paul reviewed and
    signed, and United Fire issued a policy of insurance listing Paul Garvey as the named
    insured. Paul reviewed the application and policy and did not request any changes
    to the identity of the named insured contained on the insurance application or policy.
    The initial policy premium payment was made directly to Hebbeln using a personal
    check issued by James and Beverly. Each of the twelve subsequent premium
    payments was also paid by James and Beverly with a check drawn on their bank
    account.
    On February 28, 1997, the residence was destroyed by fire.1 Paul reported the
    loss to Hebbeln who notified United Fire. Shortly thereafter, Fenton exercised an
    option to buy the property from James and Beverly and took an assignment for the
    insurance proceeds. After reviewing the proof of loss claim submitted by Paul,
    United Fire denied the claim arguing Paul, as the named insured, had no insurable
    1
    The fire was intentionally set and the responsible party was found guilty of
    arson. The arsonist had no connection to the Garveys.
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    interest in the property. United Fire also claimed the policy was void because Paul
    fraudulently and falsely represented or concealed material facts on the application.
    On March 15, 1999, United Fire filed an action for declaratory relief asking the
    district court to determine whether it owed any duty to indemnify Paul. On July 30,
    1999, Fenton intervened based upon its post-loss purchase of the property and the
    assignment of insurance proceeds. United Fire moved for summary judgment and the
    district court granted the motion finding Paul had no insurable interest in the
    property.
    On appeal, we affirmed the district court’s finding that Paul had no insurable
    interest in the property, but remanded for further proceedings to determine if Paul was
    acting as an agent for his parents when he obtained the policy. United Fire & Cas.
    Ins. Co. v. Garvey, 
    2001 WL 1167810
    , at *1 (8th Cir. Oct. 4, 2001). After remand,
    United Fire moved for summary judgment arguing under Missouri law an agent
    cannot obtain insurance on behalf of an undisclosed principal, and also reasserted its
    fraud defense. The district court granted summary judgment finding Paul never
    disclosed the agency relationship to Hebbeln and held an agent may not obtain
    insurance coverage for an undisclosed principal.
    On appeal, Paul and Fenton contend the district court erred by holding an agent
    cannot obtain insurance coverage for an undisclosed principal. Paul and Fenton also
    argue the district court erred by finding James and Beverly were undisclosed
    principals.
    II
    We review a grant of summary judgment de novo, applying the same standard
    as the district court. Jaurequi v. Carter Mfg. Co., Inc., 
    173 F.3d 1076
    , 1085 (8th Cir.
    1999). Summary judgment is proper if there exists no genuine issue as to any
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    material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
    Civ. P. 56(c). When ruling on a summary judgment motion, a court must view the
    evidence “in the light most favorable to the nonmoving party.” Dush v. Appleton
    Elec. Co., 
    124 F.3d 957
    , 962-63 (8th Cir. 1997). However, a “nonmovant must
    present more than a scintilla of evidence and must advance specific facts to create
    a genuine issue of material fact for trial.” F.D.I.C. v. Bell, 
    106 F.3d 258
    , 263 (8th
    Cir. 1997).
    Paul and Fenton first argue the district court erred by holding Missouri law
    allows an insurance company to avoid a contract of insurance entered into by an agent
    on behalf of an undisclosed principal.
    This is a diversity action and is governed by state substantive law. Erie R.R.
    v. Tompkins, 
    304 U.S. 64
    , 78 (1938). When a state’s highest court has not decided
    an issue, it is the task of this court to predict how the state supreme court would
    resolve the issue. Jackson v. Anchor Packing Co., 
    994 F.2d 1295
    , 1301 (8th Cir.
    1993). Decisions of the “various intermediate appellate courts are not [binding on
    this court], . . . [but] they are persuasive authority, and [we] must follow them when
    they are the best evidence of what [state] law is.” Marvin Lumber & Cedar Co. v.
    PPG Indus., Inc., 
    223 F.3d 873
    , 883 (8th Cir. 2000) (quoting Garnac Grain Co. v.
    Glackley, 
    932 F.2d 1563
    , 1570 (8th Cir. 1991)). Intermediate state court decisions
    should not be disregarded “unless [we are] convinced by other persuasive data that
    the highest state court would decide [the issue] otherwise.” Comm’r v. Estate of
    Bosch, 
    387 U.S. 456
    , 465 (1967).
    Like the district court, we believe our analysis is governed by Estes v. Great
    Am. Ins. Co. of N.Y., 
    112 S.W.2d 153
    , 155 (Mo. Ct. App. 1938). In Estes, Ollie
    Estes, acting as administratrix for her father’s estate, obtained insurance coverage on
    his home after it passed to the estate upon his death. While the policy was in effect,
    the estate was settled and Ollie was discharged from her duties. 
    Id.
     Shortly
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    thereafter, the home was destroyed by fire. 
    Id.
     The insurance carrier denied
    coverage, arguing Ollie insured the premises in her capacity as administratrix, and
    once discharged she no longer had any insurable interest. Id. at 156. The Missouri
    Court of Appeals agreed. Alternatively, Ollie argued she was acting as an agent for
    the heirs of the estate when she obtained insurance coverage, and her agency survived
    her discharge as administratrix. Id. at 158. The court also rejected her alternative
    argument, finding that, even assuming Ollie was acting as an agent for the heirs, the
    insurance carrier was not contractually bound “[i]n the absence of proof of knowledge
    of such a relationship on the part of the company or its agent . . . .” Id. at 159.
    Moreover, though the company may have insured the interests of the heirs had they
    been disclosed, “it had the right to have a chance to pass on whether or not it would
    so contract with them.” Id.
    Despite the clear holding in Estes, Paul and Fenton point to other Missouri
    cases holding a party contracting with an agent acting for an undisclosed principal is
    bound by the contract. See Phillips d/b/a Concrete Technicians, Inc. v. Hoke Constr.,
    
    834 S.W.2d 785
    , 789 (Mo. Ct. App. 1992); Sonnenfeld Millinery Co. v. Uhri, 
    83 S.W.2d 168
    , 169 (Mo. Ct. App. 1935); and Missouri v. O’Neill, 
    74 Mo. App. 134
    ,
    136 (1898). Uhri, and O’Neill, however, were decided before Estes, and cannot be
    read as vitiating the rule announced later in Estes. Further, none of the cited cases
    involved insurance contracts. See, e.g., Hoke Constr., 
    834 S.W.2d at 789
     (limiting
    its holding to “simple contracts.”). Accordingly, we hold under Missouri law that
    United Fire may avoid the contract of insurance if Paul failed to disclose he was
    acting as an agent for his parents.
    Paul and Fenton next argue the district court erred by concluding Paul failed
    to disclose the agency relationship to Hebbeln.
    As a preliminary matter, the parties disagree about the scope of our earlier
    remand. United Fire argues the remand was limited to whether an agent for an
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    undisclosed principal may bind an insurance company. Paul and Fenton argue our
    remand directed the district court to fully explore the agency issue, including whether
    James and Beverly were undisclosed principals. Our opinion in United Fire & Cas.
    Ins. Co. v. Garvey, 
    2001 WL 1167810
    , did not limit the issue on remand as suggested
    by United Fire. Our remand recognized “the parties [had] not fully briefed the agency
    question to this court,” and directed them “to present the issue to the district court in
    the first instance.” Id. at *1 (emphasis added). By doing so, we expected the parties
    and the district court to fully explore all factual and legal issues surrounding the
    agency question. Indeed, any other reading of this court’s decision would reduce the
    issue to purely a legal question which would not have required a remand.
    The district court concluded the undisputed facts show Paul never disclosed the
    agency relationship to Hebbeln. Paul and Fenton, however, argue the district court
    improperly resolved a disputed factual issue. We agree. Notwithstanding the
    contrary evidence relied on by the district court, Paul and Fenton point to statements
    made by Paul within six months of the fire indicating he told Hebbeln the premises
    were owned by his parents when he obtained insurance. Paul later testified at
    deposition he specifically told Hebbeln his parents owned the property and they
    needed insurance. Paul further testified it was common for him to obtain insurance
    from Hebbeln on behalf of his parents and Hebbeln was familiar with the practice.
    Because there is a genuine issue of material fact as to whether Paul disclosed the
    agency relationship, summary judgment was inappropriate.
    III
    The district court’s grant of summary judgment is reversed, and the case is
    remanded for further proceedings consistent with this opinion.
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    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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