Williаm Ranni Associates, Inc., a New York corporation claiming that Missouri courts cannot exercise personal jurisdiction over it, seeks a writ of prohibition to prevent Judge Hartenbach from proceeding to trial on underlying claims against Ranni. 1 This Court issued a preliminary writ of prohibition which is now made absolute.
This proceeding arises from the resolution of a claim on a life insurance policy issued to Mоrris Victor, a Missouri resident who died September 23, 1981. Plaintiffs, beneficiaries under the policy, are the three children and former wife of Morris Victor. He was insured under a group life policy purchased and maintained by Thrifty Drug, *136 an Illinois corporation, where he was an employee and officer. The policy was issued by Manhattan Life Insurance Company with a face amount of $95,000. Ranni is the general agent of Manhattan Life with duties of transmitting the application from Thrifty Drug to Manhattan Life and the policy proceeds from Manhattan Life to the beneficiaries. It did not participate in the sale of the policy. Joseph Victor, a nephew of Morris Victor, was appointed executor of the estate by the will of Morris Victor. Believing himself to be the beneficiary under the policy, Joseph Victor submitted a claim for the policy proceeds. Manhattan Life determined on or about March 11, 1982, that Joseph Victor was not a policy beneficiary and so informed Ranni.
Plaintiffs subsequently filed suit contesting the will which designated Joseph Victor executor and principal beneficiary. In an effort to induce settlement of this lawsuit, Joseph Victor disclosed the existence of the Manhattan Life policy and plaintiffs’ status as beneficiaries thereunder. Plaintiffs promptly submitted their claim to the policy proceeds August 31, 1983, and Manhattan Life paid the claim September 10, 1983.
Plaintiffs sued Ranni in Missouri for alleged breach of fiduciary and contractual obligations, as well as for negligent handling of the insurance policy and claim, seeking recovery for loss of use of the $95,000 benefit for the 14-month period during which payment was delayed, together with exemplary damages and attorney fees. Service on Ranni was made in New York under the provisions of the long arm statute, sections 506.500-510, RSMo 1986.
Ranni moved to quash service and dismiss the petition for lack of personal jurisdiction. Judge Hartenbach ordered the motion held in abeyance for 30 days so that plaintiffs could file jurisdictional interrogatories. Ranni claims the interrogatory answers demonstrate an absence of jurisdictional grounds. Plaintiffs claim that Ran-ni’s interrogatory answers misrepresented its contacts with the State of Missouri. Because of this alleged misrepresentation, plaintiffs claim this Court should remand for further discovery. Even without further discovery, plaintiffs claim that sufficient contacts with Missouri have been established to satisfy the due process clause of the federal constitution and the Missouri long arm statute.
I.
Plaintiffs сontend this Court should remand to the trial court to permit them to obtain additional record to support the trial court’s ruling. They claim the record is incomplete because Ranni has manipulated the discovery process. Plaintiffs’ interrogatories asked Ranni if it had any role in “processing the claim” of either Joseph Victor or plaintiffs on the life insurance policy in question. Ranni answered, “None.” Plaintiffs аssert this response is contradicted by the interrogatory responses of Manhattan Life which indicates that as “Manhattan Life’s general agent, Ranni had primary responsibility for communications with Ranni’s clients, in this case, Thrifty Drug.” Manhattan’s answers also revealed that Ranni participated in the relaying of information between its client, Thrifty Drug Company, and Manhattan Life, concerning the proceeds of the poliсy insuring Morris Victor’s life. According to Manhattan, “Ranni’s duties included receiving completed life insurance applications and forwarding them and other needed material to the home office. On the claims side, the duties included notifying the home office of the death of an insured, supplying the beneficiary or broker with claims forms, forwarding completed forms to the home office and forwarding claims checks tо the broker or the beneficiary.” Manhattan further states that “Ranni forwarded the death certificates and claim forms completed by Joseph Victor and Thrifty Drug Company to the home office.” In addition, Manhattan states that “Ranni forwarded the check in payment of the benefits of the policy to the payee on or about September 13, 1983.”
Plaintiffs claim that the term “processing the claim” includes the entire sequential procedure for handling a claim from beginning to end. Ranni argues that the term “processing the claim” involves only *137 the decision-making process of whether to pay the claim. Thus Ranni alleges it had no part in the processing of the claim, as indicated in its interrogatory answers.
Plaintiffs claim that Ranni, by incorrectly denying that it played a role in the processing of claims, was able to avoid answering follow-up interrogatories numbered 9 and 10. They believe answers to these interrogatories may have helped establish the nature, scope and extent of Ran-ni’s contacts with the state of Missouri. These interrogatories asked Ranni if it had assisted in processing any other claim of Manhattan Life on policies issued to Missouri residents and requested identification of all such policies. By the time plaintiffs reсeived Ranni’s interrogatory responses the 30-day discovery period had lapsed and plaintiffs were foreclosed from further discovery. When Ranni’s motion to dismiss came before the trial court, after close of the discovery period, plaintiffs had no reason to challenge Ranni’s interrogatory answer 8 and seek an augmentation of the record regarding Ranni’s contact with this state because the motion was denied.
Since this Court granted the preliminary writ of prohibition, plaintiffs ask remand to the trial court for further discovery. They cite
Se-Ma-No Electric Cooperative v. City of Mansfield,
None of the authorities cited involved prohibition where the court remanded for further discovery. In the absеnce of extraordinary circumstances, this Court will either make the writ absolute or quash the preliminary writ, depending on whether plaintiffs have met the burden of establishing sufficient contacts with Missouri to satisfy due process. This dispute regarding the meaning of a discovery term could not be characterized as an extraordinary circumstance. Accordingly, this Court denies plaintiffs’ request for remand and will limit the inquiry to whether plaintiffs have met their burden of establishing jurisdictional contacts.
II.
Ranni contends that Judge Hartenbaeh exceeded his jurisdiction in denying Ranni’s motion to quash and dismiss for lack of personal jurisdiction. Ranni alleges it did not have sufficient minimum contacts with the state of Missouri to make it amenable to process in this state in compliance with the due process clauses of the federal and Missouri constitutions.
Prohibition is the propеr remedy to prevent further action of the trial court where personal jurisdiction of the defendant is lacking.
State ex rel. Boll v. Weinstein,
When a defendant raises the issue of lack of personal jurisdiction, the plaintiff has the burden of pleading and proving the existence of sufficient minimum contact with a forum state to justify the exercise of jurisdiction.
State ex rel. Honda Research & Development Co., Ltd. v. Adolf,
Ranni contends that it is not subject to jurisdiction in Missouri courts because it conducted no purposeful activity within the state, citing
State ex rel. Bank of Gering v. Schoenlaub,
Plaintiffs claim Gering is distinguishable because the Bank of Gering had not solicited the business of the Missouri resident. The Missouri resident, the plaintiff, had deposited a draft in his Missouri bank, drawn on defendant’s account at the Bank of Gering. The Court said it was unforeseeable to the Nebraska bank that such a draft would originate in Missouri and therefore that a Missouri resident would suffer adverse consequences from a mishandling of the draft.
Plaintiffs contend that in this case, the record supports an inference that the policy was sold in an interstate marketing scheme. They allege that Ranni, as part of that scheme, knew in advance that the activities rendered in execution of its obligations might well have interstate consequences. Thus, respondent argues Ranni is subject to the jurisdiction of Missouri courts because it had reason to know that these consequences might affect Missouri residents.
This argument is not persuasive. Because someone in Missouri conceivably could suffer а financial loss as a result of Ranni’s out-of-state activities does not make Ranni amenable to the courts of this state. This Court rejected a similar argument in
Gering.
In order to satisfy due process, a defendant must also purposefully avail itself of the benefits and protections of the forum’s laws. Those cases involving a defendant who shipped a product into Missouri which ultimately caused a physical harm in this state аre inapposite.
See, e.g., Deere,
The jurisdictional contacts in Wichita Falls are similar to those in this case. The court there considered a wrongful death action against the hospital which had supplied a donated heart for transplantation purposes. The hospital was incorporated in Texas, with its principal place of business in that state. It had no agents and did not conduct any business in Missouri. The court concluded that due process would not support the exercise of long arm jurisdiction over the hospital because the defendant did not purposefully avail itself of the benefits and protections of the forum’s laws. The court explained that the “purposeful availment” requirement:
ensures that a defendant will not be hаled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts ... or of the “unilateral activity of another party or third person,”.... Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a “substantial connection” with the forum State.
State ex rel. Wichita Falls,
*139 In Wichita Falls, the record demonstrated that the contacts were fortuitous because the dеfendant had no history of contacts with Missouri, did not utilize the benefits of the laws of Missouri, and did not purposefully select a Missouri resident as the recipient of the organ to be transplanted. The record further established that although the supplying of the organ had an effect in Missouri, the contact with Missouri resulted from the unilateral activity of the co-defendants.
In this case Ranni’s only involvement was as a conduit of informаtion between Manhattan Life and Thrifty Drugs. Plaintiffs have shown no history of contacts with the state of Missouri; they have not shown that Ranni maintained any agents, transacted any business, or committed any tortious act within the state. That Missouri residents were named as beneficiaries was random, fortuitous and the result of unilateral activity of the insured. Any contact with Missouri was initiated by the other parties, Manhattan Life and Thrifty Drugs. Any failure to act оn the part of Ranni occurred in New York, not in Missouri. In short, Ranni has not purposefully availed itself of the laws and protections of Missouri and therefore contacts with Missouri are not sufficient to meet constitutional due process.
Because Ranni did not purposefully avail itself of the privilege of conducting business in Missouri, it is unnecessary to discuss plaintiffs’ contention that Ranni conducted business within this state which would cоnstitute a jurisdictional act under the long arm statute, section 506.500, RSMo 1986.
III.
Plaintiffs argue that Missouri courts can properly assert jurisdiction over Ranni because it committed a tortious act within the state, citing
State ex rel. Caine v. Richardson,
Ranni contends that plaintiffs failed to make such a showing because Ranni’s obligation to carry out Manhattan Life’s instructions to notify beneficiaries inured only to the benefit of Manhattan Life. Ranni further argues that plaintiffs are mere incidental or donee beneficiaries of the contract between Ranni and Manhattan Life and therefore lack standing to sue it for the alleged breach of contractual duties.
On the question whether Ranni committed a tort in allegedly failing to notify plaintiffs of the existence of the policy in a timely manner, Ranni cites 44 C.J.S. Insurance, section 165, (1945), which cites
Greyhound Corporation v. Commercial Casualty Insurance Co.,
Plaintiffs counter by citing three Missouri decisions,
Lee v. Allen,
On the question оf whether Ranni committed a tort in causing a breach of the life insurance contract, Restatement (Second) Agency, section 320, 328 (1958), and 16 Appelman Insurance Law and Practice, section 8832 at 30 (1981), establish that an agent for a disclosed principal is not a party to a contract and is not liable for its nonperformance.
See also Grether v. DiFranco,
Plaintiffs’ assertion that Ranni’s alleged breach of the agency contract between Ranni and Manhattan Life would constitute a tort is also rejected. They theorize that as benefiсiaries under the policy they were owed some duty which, when breached, constituted a tort. This theory is rejected because the mere failure to perform a contract cannot serve as the basis of tort liability for negligence.
See, e.g., Davidson v. Hess,
To determine the character of an action, whether tort or contract, it is necessary to ascertain the source of the duty claimed to be violated.
Davidson,
Plaintiffs claim that they are owed some duty because they are third party beneficiaries is also rejected. Their theory is mistaken because it fails to recognize that two separate contracts are involved in this case. Plaintiffs obviously are the third party beneficiaries of the life insurance contract between Manhattan Life and Thrifty Drug. But plaintiffs are mere “incidental beneficiaries” of the agency contract between Ranni and Manhattan Life. Incidental beneficiaries are parties benefitting only collaterally from the contract and are not entitled to recover.
Volume Services, Inc. v. C.F. Murphy & Assoc.,
The agency contract between Ranni and Manhattan Life appears as one for the convenience of those parties only. The contract may show an intent to benefit the client, Thrifty Drug, but plaintiffs have not shown that it clearly expresses an intent to benefit the plaintiffs as beneficiaries under the contract for life insurance. There was no showing that the parties to the contract, Ranni and Manhattan Life, intended plaintiffs to be able to enforce the contract. Thus, plaintiffs have not established that they were third party beneficiaries of the agency contract.
Because Ranni owed no duty to plaintiffs, plaintiffs fail to make a prima facie tort case. Thus jurisdiction cannot be founded on the commission of a tortious act.
Because plaintiffs have not met their burden of establishing a basis for the exercise of personal jurisdiction over Ranni, the preliminary writ is made absolute.
Notes
. Victor, et al., plaintiffs, v. Joseph Victor and The Manhattan Insurance Company and William Ranni Associates, Inc., defendants.