The Wagner Agency v. Johnson & Johnson et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE WAGNER AGENCY, 	)
)
Plaintiff, 	)
)
vs. 	) 	Case No. 4:23 CV 1408 CDP
)
JOHNSON & JOHNSON, INC., et al., 	)
)
Defendants. 	)
MEMORANDUM AND ORDER
Plaintiff The Wagner Agency alleges that Johnson & Johnson, Inc. (J&J)
tortiously interfered with Wagner’s reasonable expectation of continued business
with American Modern Property and Casualty Company (American Modern).1
Wagner produced insurance policies for its clients with American Modern through
J&J under a sub-agency agreement. In August of 2023 J&J notified Wagner that
the Wagner Agency’s appointment with American Modern had been terminated
because of the overall loss ratio and profitability issues of Wagner’s book of
business with American Modern.
1 The Wagner Agency also named American Modern as a defendant, but I granted American
Modern’s motion to dismiss on May 8, 2024. ECF 35. The Wagner Agency eventually filed an
amended complaint directed solely against J&J alleging breach of contract and tortious
interference with business expectancy. ECF 75. I dismissed the breach of contract claim (Count
I) for failure to state a claim on June 9, 2025. ECF 96. Thus only the tortious interference claim
remains.
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In the sole remaining count of its amended complaint, Wagner alleges that
J&J’s conduct surrounding the termination of its agency appointment amounts to
tortious interference with business expectancy under Missouri law. The summary
judgment record shows that Wagner cannot prove the essential elements of tortious
interference under Missouri law. I will therefore grant the motion for summary
judgment.
Standards Governing Summary Judgment
Summary judgment must be granted when the pleadings and proffer of
evidence demonstrate that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). I must view the evidence in the
light most favorable to the nonmoving party and accord her the benefit of all
reasonable inferences. Scott v. Harris, 550 U.S. 372, 379 (2007). My function is
not to weigh the evidence but to determine whether there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the burden of informing the Court of the basis of its
motion and demonstrating the absence of an issue for trial. Celotex Corp., 477
U.S. at 323. Once a motion is properly made and supported, the nonmoving party
must either proffer evidence in the record that demonstrates a genuine issue of
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material fact or show that the moving party’s proffer does not establish the absence
of a genuine dispute. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. at 248; Conseco
Life Ins. Co. v. Williams, 620 F.3d 902, 910 (8th Cir. 2010); Howard v. Columbia
Pub. Sch. Dist., 363 F.3d 797, 800-01 (8th Cir. 2004). The substantive law
determines which facts are critical and which are irrelevant. Anderson, 477 U.S. at
248. Only disputes over facts that might affect the outcome will properly preclude
summary judgment. Id.
Background2
Wagner is an insurance agency that offers different types of insurance
products; it places its clients with insurance carriers for coverage on various
insurable risks. Relevant to Wagner’s amended complaint is one insurance product
in particular – specialized marine insurance for expensive, high-performance boats
that have an insured value ranging from $500,000 to more than $2 million and can
travel more than 100 mph. Wagner avers that given the cost of the high-
performance boats and the greater risk associated with them, only a few insurance
companies are willing to undertake the risk and offer insurance coverage.
According to Wagner, American Modern is one of the few insurance companies to
offer such coverage.
2 Unless stated otherwise, these facts are gleaned from the record and are undisputed. With only
a few exceptions, the parties agreed that the facts listed by each in their summary judgment
statements of fact were undisputed. ECF 113,117.
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American Modern permits only a handful of insurance agencies to apply
directly to American Modern for high-risk insurance coverage on behalf of their
clients. Wagner is not one of those direct-apply agencies and thus could not and
cannot place its clients directly with American Modern. Wagner, however,
executed a General Agent/Broker Agreement with Midlands, a general agent that
had direct access to American Modern, which allowed Wagner to provide
insurance from American Modern to its clients for high-performance marine
insurance.
The General Agent/Broker Agreement is attached to the amended complaint
as Exhibit 1.3 ECF 75-1. Under its terms, Midlands agreed to pay Wagner “as full
compensation for business placed with Midlands, commissions according to those
agreed upon.” Id. The General Agent/Broker Agreement authorized Wagner “to
collect, receive and receipt for premiums on insurance tendered by Wagner and
accepted by Midlands.” Id. 	J&J is a wholesale insurance broker that purchased
Midlands in 2022. Wagner continued to operate under the General Agent/Broker
Agreement and was able to procure American Modern high-performance marine
policies for its clients as a sub-agent of J&J. The General Agent/Broker
3 The Midlands agreement in the record is undated, but the Amended Complaint alleges that it
was entered in or about June 2014. ECF 75-1 at ¶ 13. The declaration of Christopher Wagner
states that Wagner was able to place policies with American Modern from “approximately 2018
through August 2023.” ECF 106 at ¶ 4.
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Agreement does not mention American Modern or any other insurance company
by name, it does not refer to any particular type of insurance policy (such as high-
performance marine insurance) that Wagner is authorized to place, and it contains
no promises of exclusivity or guarantees of business with Midlands or any
insurance company, including American Modern.
In July of 2023, there was a high-profile marine accident on the Lake of the
Ozarks involving several high-speed performance boats, one of which was insured
by American Modern.4 Wagner was the sub-agent who had placed the American
Modern insurance policy through J&J. This incident brought Wagner to the
attention of Dakota Hammond, American Modern’s Territory Sales Manager.
After reviewing Wagner’s loss ratio, Hammond sent the numbers to J&J and
scheduled a meeting with Lynn Mannchen, Manager of the Marine Department for
J&J, to discuss the loss ratio for Wagner’s entire book of policies submitted
through J&J. Hammond felt that Wagner’s numbers were “concerning.”
Hammond deposition p. 56, l. 5-7, ECF 99-2, 103-1. For the previous three years,
American Modern had lost money on Wagner’s book of policies. 	American
Modern believed the percentage of loss was “eye-catching. It stood out.” 	Id.
Hammond dep. p. 58, l. 16 to p. 61, l. 2.
4 The boat crashed into a home, ejecting passengers and injuring eight people.
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At the lunch meeting, Hammond and Mannchen discussed the problem of
Wagner’s profitability. The options considered were either termination or program
closure. Program closure would mean shutting off Wagner’s access to American
Modern. ECF 117 ¶ 15. At the lunch meeting, Hammond asked Mannchen to
phase out and non-renew Wagner’s book of business with American Modern. ECF
113 at ¶ 6. American Modern could have terminated its business with Wagner
without J&J’s agreement. Id. ¶ 7. Based on her discussion with Hammond,
Mannchen had the impression that if she did not agree to terminate Wagner’s
agency appointment with American Modern, it could jeopardize J&J’s relationship
with American Modern. ECF 113 ¶ 8; ECF 117 ¶ 22.
Hammond told Mannchen that in order to stop accepting applications from
Wagner, American Modern’s procedures required J&J to request a termination of
Wagner. ECF 113 ¶ 9. As a result of Hammond’s request, Mannchen sent an
email to Hammond requesting that Wagner’s appointment with American Modern
under J&J be terminated as soon as possible and that Wagner’s existing policies be
non-renewed. Id. ¶ 10. American Modern had the final say in the decision to
terminate Wagner but because J&J was a large partner of American Modern’s,
American Modern wanted J&J to sign off on the decision as a “collaborative
decision.” Hammond dep. p. 73, l. 9-16; p. 110, l. 6-13, ECF 103-1. Mannchen
testified that J&J’s agency relationship with American Modern was very important
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to the company so she agreed to terminate Wagner’s sub-agency. Mannchen
deposition p. 84, l. 9-14, ECF 103-2.
Therefore, on August 10, 2023, Mannchen sent Wagner the following e-
mail, which states in relevant part as follows:
Effective Immediately, your agency’s appointment with American Modern
has been terminated. Primarily the reason for this decision is based on the
overall loss ratio and profitability of your agency’s book with American
Modern. J&J can still help you with your risks with the other markets we
represent and will be based on eligibility of each risk for those markets.
They will non-renew your existing policies per insurance laws in the
mooring state of each risk. As your risks come up for renewal, please email
our team on the ones you would like us to look at placing elsewhere with
current applications so we can review for eligibility with our markets.
Please be advised that we will not have any markets to approach on the high-
performance vessels other than Concept and Yachtinsure at this time, so
those risks will be difficult for us to replace for you, but happy to send your
applications to them for review as needed.
ECF 75-2 (citation modified). Following the termination, Mannchen told Wagner
that it was not the only agency being terminated because Wagner would not accept
the decision and she “felt backed in a corner.” Mannchen dep. p. 101, l. 1-10, ECF
103-2. 	The statement that Wagner was not the only one being terminated was not
true. Id.
American Modern then began to non-renew insurance policies issued to
Wagner’s clients as permitted by state law. 	Not all of Wagner’s clients’ policies
were non-renewed at that time. ECF 113 ¶ 26. Wagner contends that its profits
from commissions on the high-performance marine policies exceed $300,000
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annually, and that its inability to place its clients with American Modern for such
coverage has caused it to suffer more than $300,000 in damages.
Discussion
In Count II of the amended complaint, Wagner alleges that J&J
“intentionally induced” American Modern to terminate Wagner’s agency
appointment by “stating inaccurate, false and/or misleading information about
Wagner and its clients.” ECF 75 at 9. Wagner alleges that J&J’s interference
amounts to tortious interference with business expectancy under Missouri law.5
Under Missouri law, to prevail on a claim for tortious interference with
business expectancy, Wagner must prove: 1) a valid business expectancy; 2) J&J’s
knowledge of the contract or relationship; 3) a breach induced or caused by J&J’s
intentional interference; (4) absence of justification; and (5) damages. Rice v.
Hodapp, 919 S.W.2d 240, 245 (Mo. banc 1996) (citation omitted). Moreover, “an
action for tortious interference with a business expectancy will lie against a third
party only.” Farrow v. Saint Francis Medical Center, 407 S.W.3d 579, 602 (Mo.
2013) (citation modified).
J&J moves for summary judgment on Count II on the ground that Wagner
cannot prove an essential element of its claim – namely, an absence of justification
5 The parties agree Missouri law applies to this dispute.
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for the alleged interference.
“Absence of justification refers to the absence of a legal right to justify the
actions taken.” W. Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 20 (Mo. 2012)
(citation modified). This means that a defendant cannot be held liable for
interfering with a business relationship if it had an unqualified right to perform the
act. Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. banc 1996). If the defendant has a
legitimate interest, economic or otherwise, in the expectancy the plaintiff seeks to
protect, then to prevail on its tortious interference claim the plaintiff must show
that the defendant employed improper means in seeking to further only his or her
own interests. 	Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 252 (Mo. banc
2006).
As applied here, if J&J has a legitimate interest in the business expectancy
Wagner seeks to protect with American Modern, then Wagner must show that J&J
employed improper means in seeking to further only its own interests with
American Modern. Stehno, 186 S.W.3d at 252. “Improper means are those that
are independently wrongful, such as threats, violence, trespass, defamation,
misrepresentation of fact, restraint of trade, or any other wrongful act recognized
by statute or common law.” Id. 	For the reasons set forth below, Wagner cannot
meet its burden to show that J&J lacked justification to terminate its sub-agency
appointment.
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As I previously explained in my May 8, 2024, Memorandum and Order of
dismissal respecting Wagner’s tortious interference claim brought against
American Modern, Wagner’s only access to American Modern was through the
2014 General Agent/Broker Agreement as J&J’s designated sub-agent. ECF 35 at
10. Wagner had no independent business relationship with American Modern.6
Id. There is no dispute that the marine insurance policies placed by Wagner with
American Modern were solely as J&J’s sub-agent. Under these circumstances,
then, J&J is not a third party to any business relationship between Wagner and
American Modern. Instead, it is a necessary party to that relationship because only
J&J has an agency agreement with American Modern and a separate, sub-agency
agreement with Wagner. And it is that separate, sub-agency agreement with J&J
which authorizes Wagner “to collect, receive and receipt for premiums on
insurance tendered by Wagner and accepted by [J&J].” ECF 75-1. 	As J&J was
the only conduit by which Wagner’s clients could access American Modern’s high-
performance marine policies, it is not a third party to that relationship against
which a tortious interference claim lies. Farrow, 407 S.W.3d at 602; Oliver v.
Ford Motor Credit Co., LLC, 437 S.W.3d 352, 360 (Mo. Ct. App. 2014); Zipper v.
6 Although the parties mention Wagner placing some other policies with American Modern
through different insurance agencies, those relationships are not at issue in this case, which is
limited on its facts to the marine insurance policies placed by Wagner with American Modern as
J&J’s sub-agent.
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Health Midwest, 978 S.W.2d 398, 419 (Mo. Ct. App. 1998); Century Management,
Inc. v. Spring, 905 S.W.2d 109, 113–14 (Mo. Ct. App. 1995).
Instead, J&J terminated its own sub-agency appointment with Wagner at the
direction of American Modern. As previously discussed in my June 9, 2025,
Memorandum and Order dismissing Wagner’s breach of contract claim, J&J had
the unqualified right to do so. ECF 96. The unambiguous terms of the General
Agent/Broker Agreement do not obligate J&J to provide Wagner an agency
appointment with American Modern or require J&J to provide any American
Modern policies to Wagner’s clients. And the contract was not breached or
terminated by J&J’s revocation of Wagner’s sub-agency appointment. Wagner
continues to place policies through J&J under the General Agent/Broker
Agreement.
Given that nothing in the General Agent/Broker Agreement prevented J&J
from terminating Wagner’s sub-agency appointment with American Modern,
Wagner can survive summary judgment only if it demonstrates that J&J lacked
justification for termination of the sub-agency appointment. This it cannot do, for
there is no genuine dispute that J&J did not use “improper means” in the
termination decision. The undisputed facts demonstrate that American Modern –
not J&J – initiated the termination of Wagner’s sub-agency appointment. After
American Modern got hit with a high-profile marine accident claim involving a
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client placed by Wagner, Hammond took a look at the loss ratio of Wagner’s
marine policies placed through J&J. He concluded that American Modern no
longer wanted Wagner’s marine policies through J&J because it had lost money on
Wagner’s book of policies for the last three years. Hammond called the loss ratio
numbers “concerning” and “eye-catching” and relayed American Modern’s
decision to Mannchen of J&J. J&J then acted in accordance with American
Modern’s request and revoked Wagner’s sub-agency appointment. J&J did not
initiate the investigation into Wagner’s loss ratio, it did not provide the loss ratio
numbers to American Modern, and it did not suggest that Wagner’s sub-agency
appointment be terminated. Nor has Wagner come forward with any evidence that
J&J used any improper means to induce American Modern to reach that decision.7
Wagner argues that summary judgment is improper because it had no control
over the premiums charged by American Modern, the claims made by
policyholders, or loss ratio calculations.8 These arguments do not preclude
summary judgment because they do not change the facts material to the resolution
of its tortious interference claim against J&J. Whatever the wisdom of American
Modern’s decision to terminate Wagner’s sub-agency appointment through J&J, it
7 This is not surprising, given that under the General Agent/Broker Agreement J&J also received
commissions on policies Wagner placed with American Modern.
8 Wagner does not dispute the accuracy of the calculations, but even if it did that would not
preclude summary judgment on Wagner’s tortious interference claim against J&J given that
American Modern generated the reports, not J&J.
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was made by American Modern, not J&J. Although Hammond indicated that
American Modern wanted J&J to sign off on the decision, he also acknowledged
that American Modern had the final say in the decision to terminate Wagner and
that American Modern wanted the Wagner sub-agency relationship terminated.
Although Wagner suggests that J&J could have refused American Modern’s
request because Hammond did not directly threaten to terminate American
Modern’s relationship with J&J if J&J did not agree to the termination, this
argument misses the larger point – namely that American Modern was the
insurance carrier, and there is nothing in this record to suggest that American
Modern could not control who had the authority to sell its insurance as its agent.
The law certainly does not require J&J to potentially impair its own agency
relationship with American Modern for Wagner’s sake. Such a move would not
benefit Wagner in any event, given that Wagner’s relationship with American
Modern was derived solely from J&J. So even if, as Wagner suggests, its loss ratio
could have been improved by cancelling some, but not all, of its book of policies,
that fact is not material to the issue before me. J&J’s failure to propose
alternatives to Wagner’s termination when faced with American Modern’s
directive does not amount to “improper means” as defined by Missouri law.
Wagner makes much of the fact that Mannchen told it that other agents were
also being terminated for the same reason when, in fact, no other agents were being
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terminated. Mannchen testified she told Wagner this to soften the blow because
Wagner would not accept the termination. Even if this amounts to a
“misrepresentation,” that still does not create a triable issue on the tortious
interference claim because the misrepresentation was not made to American
Modern to induce a termination. Instead, the misrepresentation was made to
Wagner after the termination decision was made and for that reason cannot
constitute evidence of “improper means” as a matter of law.
Wagner has no evidence of an essential element of its tortious interference
claim: absence of justification. Instead, the undisputed evidence demonstrates that
J&J, a party to the business expectancy at issue, revoked Wagner’s sub-agency
appointment at the express directive of American Modern. J&J did not induce
American Modern to terminate the sub-agency appointment with improper means
or otherwise. That Wagner wanted the sub-agency appointment with American
Modern to continue is understandable, but its disappointment does not give rise to
an actionable claim for tortious interference against J&J as a matter of law.
Finally, J&J filed a motion for sanctions with its reply brief in support of
summary judgment, claiming that Wagner violated Rule 11 of the Federal Rules of
Civil Procedure9 by alleging that J&J made “inaccurate, false and/or misleading
9 Rule 11 states in relevant part:
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information about Wagner and its clients” to American Modern to induce
American Modern to terminate its sub-agency appointment. 	ECF 75 at 9. 	J&J
argues that Wagner knew when it filed the First Amended Complaint in February
of 2025 that there was no evidentiary support for this assertion because it had all
the relevant documents at that time. ECF 115 at 5. J&J further argues that Wagner
should have dismissed its claim after Mannchen and Hammond testified by
deposition on May 14-15, 2025. J&J asks the Court to award it attorney’s fees and
costs in defending this action as a sanction under Rule 11. ECF 115.
The advisory committee notes to the 1993 amendments to Rule 11 state:
“Ordinarily the motion should be served promptly after the inappropriate paper is
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will
likely have evidentiary support after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11.
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filed, and, if delayed too long, may be viewed as untimely.” Fed. R. Civ. P. 11
advisory committee’s note to 1993 amendment. Here, it is unclear why J&J waited
so long – until the filing of its reply brief in support of summary judgment – to
seek Rule 11 sanctions if the claim clearly lacked any evidentiary support as of
February of 2025. Even if the lack of factual support was not apparent until after
the May depositions of Mannchen and Hammond, J&J still failed to serve Wagner
with notice of its Rule 11 motion until September 10, 2025, after it had already
filed its motion for summary judgment and substantially increased its costs of
litigation. Given such delay in seeking sanctions, the Court denies J&J’s motion
for attorney’s fees and costs. See, Citizens for a Clean Environment, LLC v. Aitkin
Agri-Peat, Inc., 2025 WL 2597347, at *19 (D. Minn. Sept. 8, 2025) (denying Rule
11 sanctions due to delay); TRI, Inc. v. Boise Cascade Off. Prods., Inc., 2002 WL
31108190, at *2 (D. Minn. Sept. 20, 2002) (same).
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary
judgment [97] is granted, and Count II of the amended complaint is dismissed with
prejudice.
IT IS FURTHER ORDERED that defendant’s motion for sanctions [114]
is denied.
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As all claims are now resolved, a separate Judgment in accordance with this
Memorandum and Order and the Memoranda and Orders dated May 8, 2024, and
June 9, 2025, is entered this same date.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 18th day of November, 2025.
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