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State ex rel BP Products North America Inc. v. Ross5/31/2005
nguish and he has lost the benefits of his ownership of ACT and will continue to lose said benefits in the future.
WHEREFORE, based upon the foregoing, Plaintiff Brian Wandersee prays for judgment in his favor and against Defendant PDQ on Count I of this First Amended Petition in an amount which is fair and reasonable in excess of $25,000.00, for their costs incurred herein, for prejudgment and post-judgment interest at the highest rate allowed by law, and for such other and further relief as this Court deems just and proper.
In a claim for injurious falsehood:
ne who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity.
Annbar Assocs. v. Am. Express Co., 565 S.W.2d 701, 706 (Mo. App. 1978) (quoting Restatement (Second) of Torts sec. 623A (1977)). In addition, the plaintiff must establish " roof of pecuniary loss" as "an element of a claim for damages for injurious falsehood." Id. at 708; see Restatement (Second) of Torts sec. 623A cmt. g (1977) ("in injurious falsehood, pecuniary loss to the plaintiff must always be proved").
In comparison, a plaintiff must establish the following in a defamation claim: "1) publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree of fault, and 6) damages the plaintiff's reputation." Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000). A plaintiff must prove actual damages in all defamation cases. Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 313 (Mo. banc 1993).
The torts of defamation and injurious falsehood protect different interests. Restatement (Second) of Torts sec. 623A cmt. g (1977). "The action for defamation is to protect the personal reputation of the injured party . . . . The action for injurious falsehood is to protect economic interests of the injured party against pecuniary loss." Id.
"Pecuniary" means "relating to or consisting of money." Bryan A. Garner, Garner's Modern American Usage 595 (2003). "Pecuniary loss" accordingly is a "loss of money or of something having monetary value." Black's Law Dictionary 957 (7th ed. 1999). In a tort, recovery for damages from "pecuniary loss" or "pecuniary harm" refers to "economic damages." See, e.g., MAI 21.05 (2002).
VIII.
Although titled "Injurious Falsehood," the plaintiffs' claims request damages for "humiliation, embarrassment, disgrace, fright, injury to feeling, injury to reputation, emotional trauma and mental anguish." These damages are not pecuniary and are not recoverable under a claim for injurious falsehood. To the extent that these damages are recoverable under a claim for defamation, they are barred by the statute of limitations. The plaintiffs' claims for pecuniary damages arising from injurious falsehood, such as "legal fees, costs and expenses" and Wandersee's loss of "the benefits of his ownership of ACT and . . . continue[d loss of] said benefits in the future," are timely.
IX.
The preliminary writ is made absolute in part and quashed in part.
All Concur.
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