Anderson v. State, WD
| Decision Date | 18 March 1986 |
| Docket Number | No. WD,WD |
| Citation | 709 S.W.2d 893 |
| Parties | 32 Ed. Law Rep. 858 Caroline ANDERSON, Appellant, v. STATE of Missouri and Board of Regents for Central Missouri State University, Respondents. 37675. |
| Court | Missouri Court of Appeals |
Andrew J. Gelbach, Leonard K. Breon, Warrensburg, for appellant.
Hibberd V.B. Kline, III, Warrensburg, for respondents.
Before CLARK, C.J., and SHANGLER and TURNAGE, JJ.
Caroline Anderson filed suit against the State and the Board of Regents for Central Missouri State University alleging injuries resulting from a fall on University property. The trial court entered summary judgment in favor of the State and the University on the theory the suit was barred by sovereign immunity.
Anderson contends the legislature has waived sovereign immunity by two enactments in 1983, the University's operation of the lodge was a proprietary function, and notice was not given to Anderson that the court was going to treat the motion to dismiss as a motion for summary judgment. Affirmed.
Anderson alleged that she fell as a result of the dangerous condition of a sidewalk located on the grounds of Pertle Springs Lodge. Pertle Springs Lodge is owned by the University and contains a golf course, swimming pool, lake, and lodge. At the time of her injury Anderson was going to the lodge as a guest of those who had rented it for a wedding reception. The petition contained allegations sufficient to allege a dangerous condition of property as set out in § 537.600(2), RSMo 1978. Anderson filed an amended petition which alleged that the University carried liability insurance to cover Anderson's claim.
The State and University filed motions to dismiss in which each claimed immunity under § 537.600 because of sovereign immunity. In addition, the University filed an affidavit stating that it did not have liability insurance to cover Anderson's claim.
In October of 1984, the court gave Anderson time to conduct discovery to determine whether or not the University had liability insurance to cover Anderson's claim. Anderson filed a motion for production of documents seeking to inspect or copy all policies of insurance carried by the University in effect on June 26, 1982, the date of Anderson's fall. The University filed a response in November of 1984 permitting Anderson to inspect and copy the policies. Nothing further occurred until October 22, 1985, when the court entered judgment in favor of the State and University.
Anderson now concedes that the University did not carry liability insurance to cover her claim and that there was no self-insurance plan in effect. Anderson contends the University was not required to carry liability insurance in order to be subject to liability because the legislature adopted § 34.260 and § 105.711, RSMo Supp.1984. Anderson contends the enactment of these sections in 1983 nullifies the construction of § 537.600 announced in Bartley v. Special School District of St. Louis County, 649 S.W.2d 864 (Mo. banc 1983). Anderson contends the court erroneously held in Bartley that sovereign immunity was waived by § 537.600 only when the govermental entity had liability insurance or a self-insurance plan in effect. Anderson contends that by the passage of §§ 34.260 and 105.711 in 1983 the legislature announced its true intent that it had not intended to require liability insurance to be a prerequisite to the waiver of sovereign immunity when it passed § 537.600 in 1978.
Anderson's argument has been fully explored and answered in State ex rel. Missouri Highway and Transportation Commission v. Appelquist, 698 S.W.2d 883, 892-98 (Mo.App.1985). In Appelquist the court held that §§ 34.260 and 105.711 would not be given retroactive effect and therefore had no bearing on a claim which occurred prior to September 28, 1983, the effective date of both sections. This court agrees with the Southern District's analysis in Appelquist and likewise holds that the sections urged as revealing the legislature's true intent will not be applied retroactively to Anderson's claim which occurred in June of 1982, over a year before the effective date of such sections.
In addition to the well reasoned opinion in Appelquist, this court would note that in State ex rel. St. Louis Housing Authority v. Gaertner, 695 S.W.2d 460, 463 (Mo. banc 1985), the court held that § 34.260, RSMo Supp.1984, applies to insurance for state controlled vehicles. A state controlled vehicle is not involved in this case. In addition to the reason discussed in Appelquist concerning § 105.711 it should be noted that the legislature adopted § 105.726 at the same time it adopted § 105.711. In § 105.726 the legislature stated that §§ 105.711 to 105.726 should not be construed to broaden the liability of the state beyond the provisions of §§ 537.600-537.610, nor to abolish or waive any defense at law which might otherwise be available to any agency of the state. Thus, the legislature made clear in § 105.726 that § 105.711 should not be construed to impose liability contrary to the holding in Bartley.
Anderson further states that the legislature has now made it crystal clear that Bartley was wrongly decided when it repealed § 537.600 in 1985 and adopted a new section. The new section contains subsection 2 which provides as follows:
The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort.
Appelquist also held this amendment would not be applied retroactively. In addition to the reason stated in Appelquist, that amendment cannot be applied retroactively because under the holding in Bartley a governmental entity enjoyed immunity under § 537.600 if it did not carry liability insurance or adopt a plan of self-insurance. In Department of Social Services v. Villa Capri Homes, Inc., 684 S.W.2d 327, 332[2, 3] (Mo. banc 1985), the court stated:
Statutes are generally presumed to operate prospectively, "unless the legislative intent that they be given retroactive...
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