State ex rel. Sch. Dist. of Kan. City 33 v. Zhang

666 S.W.3d 170

STATE of Missouri, EX REL., the SCHOOL DISTRICT OF KANSAS CITY 33, Relator,

v.The Honorable Jerri J. ZHANG, Respondent.

WD 85738

Missouri Court of Appeals, Western District.

Opinion filed: February 7, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied March 28, 2023

Application for Transfer Denied May 23, 2023

Tyson H. Ketchum, Kansas City, MO, for Relator.

Nickolas C. Templin, Kansas City, MO, for Respondent.

Writ Division: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge, and Karen King Mitchell, Judge

EDWARD R. ARDINI, JR., PRESIDING JUDGE

Jane Doe ("Plaintiff") filed a lawsuit in the Circuit Court of Jackson County against the School District of Kansas City 33 d/b/a Kansas City Public Schools ("KCPS"). KCPS filed a renewed motion for summary judgment claiming sovereign immunity from Plaintiff's claims, and the trial court—the Honorable Jerri J. Zhang ("Respondent")—overruled the motion. KCPS sought a writ of prohibition from this Court, requesting we direct Respondent to take no action other than to grant KCPS's renewed motion for summary judgment. We issued a preliminary writ of prohibition that we now make permanent.

Factual and Procedural Background

On June 9, 2020, Plaintiff initiated a lawsuit ("Underlying Lawsuit") against KCPS and four individuals employed by KCPS ("Individual Defendants"). Plaintiff alleged that on September 28, 2015, while she was a student at what is now known as Southeast High School, another student forcibly carried her to an unlocked and unsupervised area of the school's fifth floor, where he sexually assaulted her.

Plaintiff's petition asserted four counts. Counts I and II alleged tort claims against KCPS and the Individual Defendants. Specifically, Count I alleged the tort of negligent training and supervision and breach of ministerial duties, and Count II alleged the tort of negligent infliction of emotional distress. Counts III and IV were asserted solely against KCPS. Count III alleged KCPS was vicariously liable for the actions of the Individual Defendants under the theory of respondeat superior. Count IV asserted a claim of "Premise [sic] Liability – Dangerous Condition."

As relevant to this writ proceeding, Plaintiff also asserted in paragraph 8 of her petition that:

Defendant KCPS maintains a policy of insurance or belongs to a risk pool that is the legal equivalent of an insurance policy that covers claims for bodily injury against public officials or employees for an occurrence caused by negligent acts and for the breach of ministerial duties as alleged in this Petition.

As discussed in greater detail in our analysis, KCPS is a governmental entity that is entitled to sovereign immunity except to the extent waived. "The purchase of liability insurance may function as a waiver of sovereign immunity." State ex rel. Blue Springs Sch. Dist. v. Grate , 576 S.W.3d 262, 265 n.5 (Mo. App. W.D. 2019) (citing § 537.610.1, RSMo¹ ).

KCPS and the Individual Defendants filed a motion to dismiss Plaintiff's petition, which was granted in part. The trial court dismissed all claims against the Individual Defendants, finding they enjoyed official immunity from Plaintiff's claims. The trial court also dismissed Count IV ("Premise [sic] Liability – Dangerous Condition"). Thus, the claims remaining in the Underlying Lawsuit after the trial court's dismissal order were Count I (negligent supervision/training and breach of ministerial duties), Count II (negligent infliction of emotional distress), and Count III (respondeat superior liability).² KCPS remained the sole named defendant.

Thereafter, KCPS filed a motion for summary judgment, asserting "there is no genuine dispute of material fact and KCPS is shielded as a matter of law by sovereign immunity from Plaintiff's claims." The trial court denied the motion. KCPS sought a writ of prohibition from this Court in Case No. WD84793. The respondent in that writ proceeding (the Honorable David Michael Byrn) opposed the writ petition, in part, by asserting that the summary judgment motion was "premature and filed with an incomplete record." On September 21, 2021, we denied the writ petition "without prejudice with the understanding that the summary judgment motion may be renewed following the close of discovery."

In May 2022, KCPS filed a renewed motion for summary judgment, again arguing "that there is no genuine dispute as to any material fact and that KCPS is entitled to judgment as a matter of law because it is shielded by sovereign immunity." Plaintiff opposed the motion, asserting KCPS "procured liability insurance covering both it and its agents for claims like those being made by Plaintiff," thereby waiving KCPS's sovereign immunity. Plaintiff also asserted that "the sovereign immunity preservation provisions" in KCPS's insurance policies did "not comply with Missouri law," specifically section 432.070's requirement that contracts entered into by public entities, including school districts, "shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing." Plaintiff asserted that "without proof of compliance with § 432.070, the preservation of sovereign immunity through policy language is inadequate." Respondent denied the motion on the grounds that "there still remains a genuine issue of material fact" and KCPS "failed to illustrate its right to judgment as a matter of law."

KCPS filed a petition for writ of prohibition with this Court, thereby initiating this writ proceeding. KCPS asserted that "extensive discovery revealed no issues of material fact on the issue of sovereign immunity" and Plaintiff "failed to carry the burden to prove KCPS waived sovereign immunity." KCPS sought a writ of prohibition "barring Respondent from taking any further action in the underlying action other than to vacate the Order of Respondent's [entered on] September 2, 2022, denying the renewed motion for summary judgment and to enter summary judgment in favor of KCPS based on sovereign immunity."

After Respondent filed suggestions in opposition to KCPS's writ petition, we issued a preliminary writ of prohibition directing Respondent to refrain from taking any further action in the Underlying Lawsuit until further order of this Court "except to reconsider [the] denial of [KCPS's] Motion for Summary Judgment based on sovereign immunity."

Standard of Review

This Court has discretion to issue and determine original remedial writs, including writs of prohibition. Blue Springs Sch. Dist. , 576 S.W.3d at 266. "Whether a writ should issue in a particular case is a question left to the sound discretion of the court to which application has been made." Id. at 267.

"Sovereign immunity is not a defense to suit but, rather, it is immunity from tort liability altogether, providing a basis for prohibition." State ex rel. City of Grandview v. Grate , 490 S.W.3d 368, 369 (Mo. banc 2016). "[P]rohibition is generally the appropriate remedy to forestall unwarranted and useless litigation." Blue Springs Sch. Dist. , 576 S.W.3d at 266. "Because there is no right of appeal from the denial of a motion for summary judgment, the refusal to utilize a writ where the issues before the court are solely matters of law would compel a defendant to defend unwarranted and useless litigation at great expense and burden." Id. at 267 (internal marks omitted). "Forcing upon a defendant the expense and burdens of trial when the claim is clearly barred is unjust and should be prevented." Id. at 266. "Thus, prohibition is an appropriate remedy when a defendant is clearly entitled to immunity." Id. at 267 (internal marks omitted); see also State ex rel. Bd. of Trustees of City of N. Kan. City Mem'l Hosp. v. Russell , 843 S.W.2d 353, 355 (Mo. banc 1992) ("Where a defendant is clearly entitled to immunity, it is not necessary to wait through a trial and appeal to enforce that protection.").

This writ proceeding requires us to examine whether KCPS's insurance policies waived sovereign immunity for the torts alleged in Plaintiff's petition. Interpretation of an insurance policy is a question of law, Blue Springs Sch. Dist. , 576 S.W.3d at 267, and we construe narrowly any waiver of sovereign immunity, Topps v. City of Country Club Hills , 272 S.W.3d 409, 415 (Mo. App. E.D. 2008).

Analysis

KCPS asserts that it is "entitled to an order prohibiting the respondent from proceeding in the underlying action other than to dismiss the action or enter summary judgment for KCPS." Specifically, KCPS asserts that the undisputed material facts show that Plaintiff's claims are barred by sovereign immunity, arguing that no exception to sovereign immunity applies and KCPS did not waive its sovereign immunity "by obtaining insurance coverage that explicitly did not provide coverage for any claim barred by sovereign immunity."

Respondent counters by arguing that the insurance policies—including policy language that preserves KCPS's sovereign immunity—are void because they were not signed by all parties to the contracts as required by section 432.070. Respondent asserts that, as a result, the sovereign immunity preservation provisions "do not have binding force."

We address each issue in turn.

KCPS did not waive its sovereign immunity.

We first find that the insurance policies procured by KCPS did not waive KCPS's sovereign immunity.³ A public entity—such as a school district—is generally protected from liability for negligent acts under the doctrine of sovereign immunity, unless an exception to sovereign immunity applies, see § 537.600,⁴ or the public entity waives its immunity through the procurement of liability insurance covering tort claims, see § 537.610. Regarding waiver, procurement of an insurance policy does not necessarily waive sovereign immunity for all tort claims asserted against a public entity. Rather, immunity is waived only "to the extent of and for the specific purposes covered by the insurance purchased." Blue Springs...