### The HONORABLE JOHN B. JONES, Senior District Judge, Unite d * 

### States District Court for the District of South Dakota, sitting by designation. The Honorab le 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 ARNOL D, Circuit Judges, and JONES, Senior * District Judge.
JONES, Senior District Judge.

Sh enandoah South, Inc. and its officers and directors (hereinafte r colle ctively referred to as Shenandoah South), appeal a declarator y judgment finding that the commercial general liability policy issued to it by Reliance Insura nce Company (Reliance) does not provide coverage for
an action brought against it by Wayne Newton. For the reasons state d 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 th e pres ent declaratory action (save Newton) are insureds under th e policy. The remaining counts pray only for compensation due Newto n 3 

### under the contract with Shenandoah South, allegation s unquestionably outside the scope of coverage.
-2- I.

In the underlying action, entertainer Wayne Newton brought sui t agains t Shenandoah South and its officers and directors relating t o Shenan doah South's operation of the "Wayne Newton Theater" in Branson , Missouri. Newton alleges breach of contract, breach of implied covenant of goo d faith and fair dealing, negligent mismanagement, and negligen t misrepresentation. In essence, Newton claimed t hat he had been cheated by Shenandoah South, bot h through deliberate acts intended to deprive Newton of compensation he was due, and through Shenando ah 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 dama ge, personal injury, and advertising injury as those terms are defined in the policy. The parties ag ree 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 th e pe rsonal and advertising injury provisions. Newton's Second Amende d 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

### -3- the Theater in a manner consistent with good and reasonabl e management practices designed to and capable of producing a profit , upon which much of Newton's compensation depends

. Defend ants further owed Newton a duty to exercise reasonabl e 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 def endants' 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 damag e to reputation, contained within the claim for ne gligent mismanagement, are sufficien t to trigger coverage, or at least a duty to defend, under th e policy issued by Reliance. They further insist coverage exists based on al legations in Newton's complaint that Shenandoah South "turned awa y inquir ies from tour operators anxious to purchase tickets for 199 4 [performances] by falsely claiming they had not yet received Newton's 1994 schedule." Newton's Second Amended Complaint ¶ 12.

Aft er Shenandoah South advised Reliance of this litigation, th e current declaratory action was commenced by Reliance. The issue facing th e district c ourt and this court on appeal is whether coverage under th e Reliance policy extends to the claims made in the Newton lawsuit. On cros s motions for summary judgment, the district court found that it did not.

II.

We re view the district court's grant of summary judgment de novo , applying the same standards and affirming only when the

### -4-

record shows that there is no genuine issue of material fact and the movin g 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). Th e interpretation and co nstruction of insurance policies is a matter of law, and th erefore, issues involving the duty to defend are particularl y amenable to summary j udgment. First Southern Ins. Co. v. Jim Lynch Ent., Inc. , 932 F.2d 717, 719 (8th Cir. 1991).

III.

When face d with issues of insurance coverage, courts under Missouri law compare the allegations of the underlying co mplaint to the language of the i nsurance policy. Benningfield v. Avemco Ins. Co. , 561 S.W.2d 73 6 (Mo.App. 1978). "The insurer owes no duty of defense where ... th e all egations of the claimant's petition and the insurance contrac t demonstra te that coverage does not apply." Id. If the petition o r complaint against the insured alleges facts not within the coverage of the insurance policy, no duty devolves upon the insu rer. 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 whic h shoul d be known by the insurer, which could potentially bring th e underlying claim with in coverage. Farm Bureau Town & Country Ins. Co. v. Turnbo , 740 S.W.2d 232 (Mo. Ct. App. 1987). Any uncertainty as to th e 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 persona l injury and advertising injury coverages in the l iability policy define the covered injuries, inter alia , as injury arising out of "Oral or writte n publication of material that

### There is no question Wayne Newton is a public figure fo r 4 

### purposes of defamation law. 50 Am Jur 2d., Libel and Slande r § 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 , produc ts, or services." Shenandoah South is essentially arguing tha t Newton's complaint sounds, at least in part, in some type of defamation.

Un der Missouri law, defamation or disparagement actions brought b y public figures require a showing of the following elements: 4 (1) that the defendant (Shenandoah South) published a statemen t 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 wh ether it was true or false at a time when defendant had serious doubts as to whether it was true; (4) the s tatement 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 defamat ion action requires a defamatory publi cation, an allegation wholly absent from Newton's negligen t mismanagement claim. A person's reputation can be damaged in many ways, only one of which is by slander or disparagement. The policy provide s
cov erage for damages resulting from the "oral or written publication o f material that slanders or

### -6-

libels a person ... or disparages a person's goo ds, products or services." Negligent mismanagement of the "Wayne Newton Th eater" by Shenandoah South may damage Wayne Newton's reputation and good will, but it clearly does no t libel or slander Newton or disparage his services, and therefore is no t covered by Reliance's liability policy.
Regarding the alleged statement attributed to Shenandoah Sout h person nel that they had not yet received Newton's 1994 performanc e schedul e, this similarly cannot form the basis for coverage under th e policy. When allegedly defamatory publications are claimed to have damage d
a perso n in his or her business, trade, or profession, "the words use d must impute a lack of knowledge, skill, capacity, or fitness to perfor m one's dut ies; or fraud, want of integrity, or misconduct in the line o f
one 's calling. More specifically, to be actionable the allegation mus t strike at a person's professional competence." Nazeri v. Missouri Valley College , 860 S.W.2d 303, 311 (Mo. 1993) (en banc) (citations omitted). Th e statement, taken in c ontext and given its plain and ordinarily understood meaning, Id. , simply does not rise to the level of culpability required in
a def amation action. Far from implying fraud, want of integrity , misconduct, or lack of fitness to perform the duties as an entertainer, th e statement merely sugg ested 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 no t
covere d by Reliance's policy. Klein v. Victor , 903 F. Supp. at 133 0 (whether allegedly libelous words are defamatory is a question of law).

Based on a review of the entire record, we conclude that Newton' s Seco nd Amended Complaint does not allege facts which would bring th e conduct of Shenandoah South within the coverage of Reliance's comprehensiv e general liability policy or create a duty to defend.

### -7- IV.

The decision of the district court, granting Reliance's motion fo r
summar y 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.