The HONORABLE JOHN B. JONES, Senior District Judge, United

*

States District Court for the District of South Dakota, sitting by

designation.

 The Honorable Russell G. Clark, United States District Judge 1

for the Western District of Missouri, Southern Division.

___________

No. 95-2839

___________

RELIANCE INSURANCE COMPANY, *

a corporation, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri

SHENANDOAH SOUTH, INC., *

GARY SNADON, RICHARD GALLAGHER, *

EUGENE BICKNELL and C. WAYNE *

NEWTON, *

 *

Defendants - Appellants. *

___________

 Submitted: January 12, 1996

 Filed: April 19, 1996

___________

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES, Senior *

District Judge.

JONES, Senior District Judge.

 

Shenandoah South, Inc. and its officers and directors (hereinafter

collectively referred to as Shenandoah South), appeal a declaratory

judgment finding that the commercial general liability policy issued to

it by Reliance Insurance Company (Reliance) does not provide coverage for

an action brought against it by Wayne Newton. For the reasons stated

below, we affirm the district court.1
 Apparently there is no dispute that all persons and entities 2

named in the underlying action, and all defendants named in the

present declaratory action (save Newton) are insureds under the

policy.

 The remaining counts pray only for compensation due Newton

3

under the contract with Shenandoah South, allegations

unquestionably outside the scope of coverage.

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I.

In the underlying action, entertainer Wayne Newton brought suit

against Shenandoah South and its officers and directors relating to

Shenandoah South's operation of the "Wayne Newton Theater" in Branson,

Missouri. Newton alleges breach of contract, breach of implied covenant

of good faith and fair dealing, negligent mismanagement, and negligent

misrepresentation. In essence, Newton claimed that he had been cheated by

Shenandoah South, both through deliberate acts intended to deprive Newton

of compensation he was due, and through Shenandoah South's incompetence in

running the theater. Newton also claimed that his reputation was damaged

as a result of Shenandoah South's actions. 

The policy in question covers liability of the insureds for bodily 2

injury, property damage, personal injury, and advertising injury as those

terms are defined in the policy. The parties agree that coverage does not

exist under the bodily injury or property damage portions of the policy.

Shenandoah South asserts that Count III (negligent mismanagement) of

Newton's Second Amended Complaint is within the scope of coverage under the

personal and advertising injury provisions. Newton's Second Amended

3

Complaint alleges that:

In promoting and operating a theater named after Newton,

defendants necessarily have relied on his reputation and good

will with the theater-going public.

Defendants owed Newton a duty to operate and manage
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the Theater in a manner consistent with good and reasonable

management practices designed to and capable of producing a

profit, upon which much of Newton's compensation depends.

Defendants further owed Newton a duty to exercise reasonable

care in the operation of the Theater so as to avoid injury to

Newton's reputation. It was foreseeable that breach of these

duties would result in injury to Newton. 

***

As a direct and proximate result of defendants' breaches,

Newton has been injured in the form of lost compensation under

the Agreement and damage to his reputation and good will in the

community ... .

Newton's Second Amended Complaint ¶¶ 44, 45, and 47.

It is Shenandoah South's position that these allegations of damage

to reputation, contained within the claim for negligent mismanagement, are

sufficient to trigger coverage, or at least a duty to defend, under the

policy issued by Reliance. They further insist coverage exists based on

allegations in Newton's complaint that Shenandoah South "turned away

inquiries from tour operators anxious to purchase tickets for 1994

[performances] by falsely claiming they had not yet received Newton's 1994

schedule." Newton's Second Amended Complaint ¶ 12.

 

After Shenandoah South advised Reliance of this litigation, the

current declaratory action was commenced by Reliance. The issue facing the

district court and this court on appeal is whether coverage under the

Reliance policy extends to the claims made in the Newton lawsuit. On cross

motions for summary judgment, the district court found that it did not.

II.

We review the district court's grant of summary judgment de novo,

applying the same standards and affirming only when the
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record shows that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Johnson v. Group Health Plan, Inc., 994 F.2d 543, 545 (8th Cir. 1993). The

interpretation and construction of insurance policies is a matter of law,

and therefore, issues involving the duty to defend are particularly

amenable to summary judgment. First Southern Ins. Co. v. Jim Lynch Ent.,

Inc., 932 F.2d 717, 719 (8th Cir. 1991).

III.

When faced with issues of insurance coverage, courts under Missouri

law compare the allegations of the underlying complaint to the language of

the insurance policy. Benningfield v. Avemco Ins. Co., 561 S.W.2d 736

(Mo.App. 1978). "The insurer owes no duty of defense where ... the

allegations of the claimant's petition and the insurance contract

demonstrate that coverage does not apply." Id. If the petition or

complaint against the insured alleges facts not within the coverage of the

insurance policy, no duty devolves upon the insurer. Steve Spicer Motors,

Inc. v. Federated Mutual Ins. Co., 758 S.W.2d 191, 193 (Mo. Ct. App. 1988).

The duty to defend is triggered if there exists facts, known or which

should be known by the insurer, which could potentially bring the

underlying claim within coverage. Farm Bureau Town & Country Ins. Co. v.

Turnbo, 740 S.W.2d 232 (Mo. Ct. App. 1987). Any uncertainty as to the

policy's coverage should be decided in favor of the insured. Howard v.

Russell Stover Candies, Inc., 649 F.2d 620, 621 (8th Cir. 1981).

With this background, we must examine the allegations in the Newton

complaint to determine if they allege a claim within the personal injury

or advertising injury coverages in the liability policy. Both the personal

injury and advertising injury coverages in the liability policy define the

covered injuries, inter alia, as injury arising out of "Oral or written

publication of material that
 There is no question Wayne Newton is a public figure for

4

purposes of defamation law. 50 Am Jur 2d., Libel and Slander § 87.

 In defamation actions a "publication" is the communication of 5

defamatory matter to a third person. Dvorak v. O'Flynn, 808 S.W.2d

912, 916 (Mo.App. 1991).

-5-

slanders or libels a person ... or disparages a person's ... goods,

products, or services." Shenandoah South is essentially arguing that

Newton's complaint sounds, at least in part, in some type of defamation.

 

Under Missouri law, defamation or disparagement actions brought by

public figures require a showing of the following elements: 4

(1) that the defendant (Shenandoah South) published a statement

5

which plaintiff alleges to be defamatory;

(2) that the statement was false;

(3) that the defendant published the statement either with knowledge

of its falsity or with reckless disregard for whether it was true or false

at a time when defendant had serious doubts as to whether it was true;

(4) the statement tended to deprive the plaintiff of the benefit of

public confidence and social associations;

(5) that the statement was heard by others; and

(6) plaintiff was thereby damaged.

Klein v. Victor, 903 F. Supp. 1327, 1330 (E.D. Mo. 1995), citing Missouri

Approved Instructions, § 23.06(2).

As the elements suggest, any defamation action requires a defamatory

publication, an allegation wholly absent from Newton's negligent

mismanagement claim. A person's reputation can be damaged in many ways,

only one of which is by slander or disparagement. The policy provides

coverage for damages resulting from the "oral or written publication of

material that slanders or
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libels a person ... or disparages a person's goods, products or services."

 Negligent mismanagement of the "Wayne Newton Theater" by Shenandoah South

may damage Wayne Newton's reputation and good will, but it clearly does not

libel or slander Newton or disparage his services, and therefore is not

covered by Reliance's liability policy.

Regarding the alleged statement attributed to Shenandoah South

personnel that they had not yet received Newton's 1994 performance

schedule, this similarly cannot form the basis for coverage under the

policy. When allegedly defamatory publications are claimed to have damaged

a person in his or her business, trade, or profession, "the words used

must impute a lack of knowledge, skill, capacity, or fitness to perform

one's duties; or fraud, want of integrity, or misconduct in the line of

one's calling. More specifically, to be actionable the allegation must

strike at a person's professional competence." Nazeri v. Missouri Valley

College, 860 S.W.2d 303, 311 (Mo. 1993) (en banc) (citations omitted). The

statement, taken in context and given its plain and ordinarily understood

meaning, Id., simply does not rise to the level of culpability required in

a defamation action. Far from implying fraud, want of integrity,

misconduct, or lack of fitness to perform the duties as an entertainer, the

statement merely suggested that Newton's performance schedule was not yet

available. Even if falsely given, the statement does not as a matter of

law libel or slander Newton or disparage his services, and therefore is not

covered by Reliance's policy. Klein v. Victor, 903 F. Supp. at 1330

(whether allegedly libelous words are defamatory is a question of law).

Based on a review of the entire record, we conclude that Newton's

Second Amended Complaint does not allege facts which would bring the

conduct of Shenandoah South within the coverage of Reliance's comprehensive

general liability policy or create a duty to defend. 
-7-

IV.

The decision of the district court, granting Reliance's motion for

summary judgment and declaring that no coverage exists under Reliance's

liability policy for the claims made in Newton's Second Amended Complaint,

is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.