United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3870
                                    ___________

Sheryl D. Osborn,                     *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Missouri.
The Prudential Insurance Company of *
America,                              *
                                      *
            Defendant-Appellee.       *
                                 ___________

                              Submitted: May 15, 2006
                                 Filed: July 17, 2006
                                  ___________

Before WOLLMAN, BRIGHT, and RILEY, Circuit Judges.
                          ___________

BRIGHT, Circuit Judge.

      Sheryl Osborn, plaintiff-appellant, appeals the district court's1 grant of summary
judgment of dismissal in favor of The Prudential Insurance Company of America
(Prudential). Osborn argues the district court erred in determining that Prudential did
not waive its right to deny proceeds of Brad Draper's life insurance policy to her, the
beneficiary of the policy. Prudential additionally asserts Osborn violated a protective
order and Fed. R. Civ. P. 26(c) by including in the appellant's appendix information


      1
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
that should have been filed under seal. We affirm the district court's grant of summary
judgment and remand to determine whether Osborn violated the protective order.

       The parties do not dispute the essential facts of the case. In 1998, Prudential
issued a term life insurance policy to Brad Draper in the amount of $1,000,000. Three
years later, in 2001, Draper failed to pay his premium by the required due date.
Prudential sent Draper a letter of reinstatment informing him that the policy had
lapsed but could be reinstated subject to various conditions, one of which was
payment of all premiums "before the death of the insured." Thereafter, Draper
established a pattern of paying his premiums after the due date but within the policy's
thirty-one-day grace period. Prudential continued to insure him. On August 1, 2002,
Draper again failed to make a timely premium payment. Draper died on September
10, 2002, without having paid his premium.

       On September 18, 2002, Osborn's husband called Prudential to make a claim
on the policy. Two Prudential employees told Mr. Osborn that the policy was still in
force and that Prudential would send him a claim form. The next day, Mr. Osborn
again spoke with the insurance company. Another employee told him that Draper had
died nine days before the policy lapsed and reiterated that Prudential would honor the
policy. Sheryl Osborn sent Prudential a death benefit claim form accompanied by the
required documents. On October 1, 2002, Prudential sent Osborn a letter stating that
it would pay no benefit on the policy as the policy had lapsed for failure to pay the
premium.

      Osborn filed suit against Prudential. Count I of her complaint asserted that
Prudential waived its right to deny payment of the proceeds of the life insurance
policy on the basis that Draper's failure to pay premiums resulted in a lapse of the
policy. Count II stated that Prudential is estopped from asserting the same defense.
Both Osborn and Prudential filed motions for summary judgment.



                                         -2-
       The district court granted Prudential's motion, determining that the facts did not
establish either waiver or estoppel. Osborn now appeals the district court's decision
to grant summary judgment on the waiver claim. She does not appeal the ruling on
estoppel.

       This court reviews de novo both the district court's grant of summary judgment
and its interpretation of state law. Barry v. Barry, 

, 376 (8th Cir. 1996).
Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the non-moving party, demonstrates that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a matter of law. 

that the district court erred in granting summary judgment on the
issue of waiver. Under Missouri law, to establish waiver of the defense of forfeiture,
Osborn must show that Prudential (1) had knowledge of the facts giving rise to the
defense, and (2) intentionally relinquished the right to assert the defense. Acetylene
Gas Co. v. Oliver, 

, 409 (Mo. Ct. App. 1996). "To rise to the level of
a waiver, the conduct must be so manifestly consistent with and indicative of an
intention to renounce a particular right or benefit that no other reasonable explanation
of the conduct is possible." 

and citation omitted). Waiver does
not require prejudice to the insured. Brown v. State Farm Mut. Auto. Ins. Co., 

, 388 (Mo. 1989).

       The district court correctly determined that the facts of this case do not establish
waiver. At no time did Prudential unequivocally indicate it knew of the availability
of the defense of forfeiture but intended to relinquish the right to assert that defense.
Although several Prudential employees had stated that the life insurance policy would
be honored, these employees did not say that Prudential would honor the policy
despite its lapse for nonpayment of premiums. Indeed, the last employee with whom
Mr. Osborn spoke stated that Draper "passed away nine days before the policy
actually lapsed." Rather than demonstrating Prudential's intention to honor the policy

                                           -3-
despite its having lapsed, this statement shows that the employee did not have all the
facts relating to the status of the policy and expressed only an intention to honor a
policy that had not yet lapsed.2 Osborn does not show that the record establishes
waiver.

      Osborn also asserts that the district court erred in not applying the "equity
abhors forfeitures" principle to this case. In the past, Missouri courts have
acknowledged this doctrine and seized upon slight cause to find a waiver or an
estoppel with respect to forfeiture. Bartleman v. Humphrey, 

(Mo.
1969). However, more recent cases indicate that, although the doctrine may still apply
with estoppel, it has been abandoned with respect to waiver. 

. Missouri courts will not now apply the "law abhors forfeitures" principle to find
waiver in the absence of full knowledge of the facts giving rise to the forfeiture
defense and an unequivocal intention to relinquish the defense. See Depriest v. State
Farm Fire & Cas. Co., 

(Mo. Ct. App. 1989); Hite v. Am. Family Mut.
Ins. Co., 

(Mo. Ct. App. 1991).

     For the foregoing reasons, the decision of the district court is affirmed. Further,
we remand to the district court to resolve the protective order issue.
                       ______________________________




      2
       Osborn argues that, under Missouri law, ignorance or mistake is no defense to
waiver. This principle applies to the doctrine of estoppel, not waiver. 

.

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