State ex rel. City of Grandview, Missouri, Relator v. The Honorable Jack R. Grate ( 2016 )

SUPREME COURT OF MISSOURI
en banc
STATE ex rel. CITY OF )
GRANDVIEW, MISSOURI )
)
Relator, )
)
v. ) No. SC95283
)
THE HONORABLE JACK R. GRATE, )
)
Respondent. )
ORIGINAL PROCEEDING IN PROHIBITION
Opinion issued April 5, 2016
Michael Green Sr., Stephanie M. Green, Stephanie N. Green, and Michael Green
(collectively "Plaintiffs") filed a lawsuit, in the underlying case, against four police
officers and the City of Grandview. The City filed a motion for summary judgment
claiming sovereign immunity. The circuit court overruled the motion, and the City
sought a writ of prohibition from the court of appeals that was denied. The City then
sought a writ of prohibition from this Court. This Court issued a preliminary writ of
prohibition that it now makes permanent.
Facts and Procedural Background
Plaintiffs filed a lawsuit against four City of Grandview police officers alleging
wrongful arrest, battery, malicious prosecution and negligence. Plaintiffs joined the City
in the suit, alleging the City was vicariously liable for the actions of the officers.
Specifically, Plaintiffs alleged the City had purchased an insurance policy that contained
a provision for law enforcement liability coverage. This coverage, the Plaintiffs asserted,
waived the City's rights to sovereign immunity and allowed it to be sued up to the policy
limits, pursuant to §§ 71.185, RSMo 2000, and 537.610. 1
The City—in lieu of filing an answer to Plaintiff's petition—filed a motion for
summary judgment claiming that, while it had insurance coverage, the insurance policy it
had purchased contained express language preserving its sovereign immunity, except as
to those claims that sovereign immunity is already waived by statute i.e., claims
involving injuries resulting from the negligent operation of motor vehicles, or injuries
resulting from dangerous conditions on government property. Section 537.600. The
circuit court overruled the motion for summary judgment.
Standard of Review
This Court has the authority to "issue and determine original remedial writs." Mo.
Const. art. V, § 4.1. This Court has issued a writ of prohibition "[w]here a defendant has
. . . sovereign immunity." State ex rel. Bd. of Trs. of City of N. Kansas City Mem'l Hosp.
v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992) (internal citations and quotation marks
omitted). Sovereign immunity is not a defense to suit but, rather, it is immunity from tort
liability altogether, providing a basis for prohibition. See Metro. St. Louis Sewer Dist. v.
City of Bellefontaine Neighbors, 476 S.W.3d 913, 921 (Mo. banc 2016) (citing the
definition of "sovereign immunity" in Black's Law Dictionary).
1
Statutory citations are to RSMo Supp. 2013, unless otherwise noted.
I. The Policy
The policy in effect at the relevant time provides:
Section I – COVERAGES
A. Insuring Agreement — Liability for Law Enforcement Wrongful Acts
1. We will pay those sums that the insured becomes legally obligated to pay
as "damages" resulting from a "law enforcement wrongful act" to which
this insurance applies.
***
3. This insurance applies to "damages" resulting from a "law enforcement
wrongful act" only if the "law enforcement wrongful act" was first
committed:
a. By an insured in the course and scope of their "law enforcement
activities" for you and
b. During the policy period.
OneBeacon Insurance Policy, Relator's Exhibit N4, p. 723.
The policy later defines "an insured:"
SECTION IV — WHO IS AN INSURED
If you are designated in the Declarations as a governmental unit, you are an
insured. Each of the following is also an insured but only with respect to
your "law enforcement activity";
1. Your current or previously elected or appointed officials, but only for the
conduct of their duties as your elected or appointed officials.
2. Your "employee" or "volunteer workers" but only for acts within the course
and scope of their employment or volunteer activities by or for you;
3. Any person or organization providing services to you under any mutual aid
or similar agreement, but only within the scope of the mutual aid or
agreement
4. Owners of commandeered equipment other than an "auto" while the
equipment is in your temporary custody and control.
Id. at 726.
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There is an Endorsement contained within the policy that expressly provides:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ
IT CAREFULLY.
MISSOURI CHANGES — PROTECTION OF IMMUNITY
This endorsement modifies insurance provided under the following:
LAW ENFORCEMENT LIABILITY COVERAGE PART
LAW ENFORCEMENT LIABILITY COVERAGE PART
(CLAIMS-MADE)
The following is added to SECTION I — COVERAGES
A. INSURING AGREEMENT — LIABILITY FOR LAW
ENFORCEMENT WRONGFUL ACTS
We have no duty to pay "damages" on your behalf under this policy unless
the defenses of sovereign and governmental immunity are inapplicable to
you.
The following is added to SECTION VI — CONDITIONS
This policy and any coverages associated therewith does not constitute, nor
reflect an intent by you, to waive or forego any defenses of sovereign and
governmental immunity available to any Insured, whether based upon
statute(s), common law or otherwise, including Missouri Revised Statute
Section 537.610 or any amendments; or Missouri Revised Statute Section
71.185 or any amendments.
Id. at 738.
The plain language of the policy allows coverage to not only the City but also to
employees of the City—such as police officers—as "Insureds." The policy, however,
reserves the right of the City to raise sovereign immunity if it is provided for under the
constitution or in statutes because Missouri no longer has common law sovereign
immunity. Sovereign immunity is governed by § 537.600, which provides:
1. Such sovereign or governmental tort immunity as existed at common
law in this state prior to September 12, 1977, except to the extent
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waived, abrogated or modified by statutes in effect prior to that date,
shall remain in full force and effect; except that, the immunity of the
public entity from liability and suit for compensatory damages for
negligent acts or omissions is hereby expressly waived in the following
instances:
(1) Injuries directly resulting from the negligent acts or omissions by
public employees arising out of the operation of motor vehicles or
motorized vehicles within the course of their employment;
(2) Injuries caused by the condition of a public entity's property if the
plaintiff establishes that the property was in dangerous condition at
the time of the injury, that the injury directly resulted from the
dangerous condition, that the dangerous condition created a
reasonably foreseeable risk of harm of the kind of injury which was
incurred, and that either a negligent or wrongful act or omission of
an employee of the public entity within the course of his
employment created the dangerous condition or a public entity had
actual or constructive notice of the dangerous condition in sufficient
time prior to the injury to have taken measures to protect against the
dangerous condition. . . .
"Missouri municipalities are not provided immunity for proprietary functions—those
performed for the benefit or profit of the municipality as a corporate entity—but are
immune for governmental functions-those performed for the common good." Southers v.
City of Farmington, 263 S.W.3d 603, 609 (Mo. banc 2008). The operation of a police
department is a governmental function whereby sovereign immunity attaches to a
municipality. See, e.g., Fantasma v. Kansas City, Mo., Bd. of Police Comm'rs, 913
S.W.2d 388, 391 (Mo. App. 1996) ("[S]overeign immunity attaches to the operation and
maintenance of a police force."). Nonetheless, this section's benefit of sovereign
immunity can be waived—and as Plaintiffs argue was waived—pursuant to §§ 71.185
and 537.610.
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II. The City's Insurance Policy did not Waive Sovereign Immunity
Section 71.185.1, RSMo 2000, provides:
Any municipality engaged in the exercise of governmental functions may
carry liability insurance and pay the premiums therefor to insure such
municipality and their employees against claims or causes of action for
property damage or personal injuries, including death, caused while in the
exercise of the governmental functions, and shall be liable as in other cases
of torts for property damage and personal injuries including death suffered
by third persons while the municipality is engaged in the exercise of the
governmental functions to the extent of the insurance so carried.
Additionally, § 537.610.1, provides:
The commissioner of administration, through the purchasing division, and
the governing body of each political subdivision of this state,
notwithstanding any other provision of law, may purchase liability
insurance for tort claims, made against the state or the political subdivision,
but the maximum amount of such coverage shall not exceed two million
dollars for all claims arising out of a single occurrence and shall not exceed
three hundred thousand dollars for any one person in a single accident or
occurrence, . . . . Sovereign immunity for the state of Missouri and its
political subdivisions is waived only to the maximum amount of and only
for the purposes covered by such policy of insurance purchased pursuant to
the provisions of this section and in such amount and for such purposes
provided in any self-insurance plan duly adopted by the governing body of
any political subdivision of the state.
Because the City had an insurance policy in effect at the time of the underlying incident,
the issue is whether that policy waived the grant of sovereign immunity provided for
under § 537.600 or whether there were terms of that policy preserving the grant of
sovereign immunity.
This same issue was decided in State ex rel. Board of Trustees. In that case, the
plaintiffs sued the City of North Kansas City Hospital Board of Trustees for medical
malpractice because of its operation of the city's hospital, and the Board moved for
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summary judgment on the basis of sovereign immunity. 843 S.W.2d at 354. That motion
was overruled, and the Board sought a writ of prohibition from this Court. Id. This
Court made its writ permanent, holding that the Board was part of a public entity (the
City) and entitled to sovereign immunity for the governmental function of operating a
hospital. Id. at 358-59. The Board had purchased insurance policies with identical
coverage, but the policies expressly disclaimed insurance coverage for any claim that
would be barred by sovereign immunity. Id. at 360.
Here, the same situation holds true. The City is a municipality entitled to
sovereign immunity so long as it is engaged in a governmental function or the claims
against it do not fall within one of the statutory exceptions to immunity. The operation of
a police department is a governmental function sovereign immunity. While the City
purchased insurance coverage, the policy expressly disclaims a waiver of sovereign
immunity, and provides coverage to the City only for those claims for which sovereign
immunity has been statutorily waived. Therefore, the City did not waive sovereign
immunity when it purchased an insurance policy that disclaimed coverage for any actions
that would be prohibited by sovereign immunity. The preliminary writ of prohibition is
made permanent.
_______________________________
Zel M. Fischer, Judge
All concur.
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