Betts-Lucas v. Hartmann, WD 60363.

Decision Date30 July 2002
Docket NumberNo. WD 60363.,WD 60363.
Citation87 S.W.3d 310
PartiesElmonia BETTS-LUCAS, Respondent, v. Michael HARTMANN, Appellant.
CourtMissouri Court of Appeals

Jeremiah W. (Jay) Nixon, Atty. Gen., Robert Presson, Office of Attorney General, Jefferson City, for appellant.

Andrew Haynes McCue, Kansas City, for respondent.


This appeal involves a complicated factual and procedural tale, beginning with the death of a mental patient, leading to criminal charges, a wrongful death action, and multiple declaratory judgment actions involving the obligation of the State to indemnify for the actions of its employee.

The Missouri Commissioner of Administration ("Commissioner") appeals a summary judgment finding that the Legal Expense Fund, § 105.711, et seq., RSMo. 2000,1 provides coverage for the wrongful death of Walter Betts ("Walter") while a patient at Higginsville Habilitation Center, a facility operated by the Missouri Department of Mental Health. Walter died on April 2, 1995, after being struck on the throat by a state employee, Rick Hartgrave ("Hartgrave"). Later in the morning after the incident Walter had problems eating and drinking. The nurse was not told of the trauma to Walter's throat and believed that the swelling observed was not significant. Death resulted from asphyixation from an undiagnosed fractured larynx caused by trauma. Hartgrave was subsequently criminally charged and pled guilty to involuntary manslaughter, § 565.024, RSMo.

Walter's sister, Elmonia Betts-Lucas ("Betts-Lucas") subsequently filed, in Lafayette County, a civil action for wrongful death naming Hartgrave as a defendant.2 The Missouri Attorney General did not provide a defense to Hartgrave but instead filed, in Henry County, a declaratory judgment action on behalf of the Commissioner, seeking a finding that Hartgrave was entitled to neither representation nor coverage under the Legal Expense Fund for the action in Lafayette County. Betts-Lucas was not included as a party by the Attorney General in that action.

While the Henry County action was pending, Hartgrave entered into a Covenant Not to Execute with Betts-Lucas, isolating his personal assets3 from responsibility for any judgment obtained in the wrongful death action. At a non jury trial, at which neither Hartgrave nor the Attorney General appeared, the Lafayette County Circuit Court entered a judgment for $302,668.15 in compensatory damages and $500,000 in damages for aggravating circumstances.4 Meanwhile, Betts-Lucas filed a second declaratory judgment action in Cole County, seeking coverage for the wrongful death judgment from the Legal Expense Fund. While that action pended, but after the judgment in the wrongful death action, the Commissioner received a judgment from Henry County declaring that Hartgrave's conduct was outside the scope of coverage under the Legal Expense Fund.

To complicate this procedural history even further, the Commissioner received a summary judgment in his favor in the Cole County declaratory judgment action holding that the Fund owed no coverage. Because that judgment was granted while the court was considering Betts-Lucas' motion for summary judgment and the Commissioner had filed no counter-motion, we reversed in the first appeal in this case, Betts-Lucas v. Hanson, 31 S.W.3d 484 (Mo.App.2000). After remand, Betts-Lucas renewed her motion for summary judgment and the Commissioner filed a counter-motion, as well. The parties also filed a joint stipulation of facts for the court to consider. The Cole County Circuit Court then granted the summary judgment in favor of Betts-Lucas that is the present subject of appeal.


Our review of a grant of summary judgment is essentially de novo. Younger v. Mo. Pub. Entity Risk Mgmt. Fund, 957 S.W.2d 332, 335 (Mo.App.1997). The facts and evidence are viewed in the light most favorable to the non-moving party, here the Commissioner, who is also given the benefit of all reasonable inferences from the facts. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). To prevail on a motion for summary judgment, the movant must show that there is no dispute of material fact and that she is entitled to judgment as a matter of law. Younger, 957 S.W.2d at 335. When, as here, the matter has been submitted to the court purely upon a joint stipulation of facts, the question is not only whether Betts-Lucas is entitled to judgment as a matter of law but also whether as a matter of law she has overcome the affirmative defenses advanced by the Commissioner.5 See Rodgers v. Threlkeld, 22 S.W.3d 706, 710 (Mo.App.1999). If the facts, viewed in such a manner, do not entitle Betts-Lucas to judgment as a matter of law, then we must reverse and remand.


The events leading to Walter's death and Hartgrave's involvement are muddled and disputed by the parties. It is not disputed that his death resulted from asphyxiation due to a fractured larynx caused by trauma. Apparently Walter had upset Judy Fakes, Hartgrave's supervisor, because he drank a can of soda that Fakes had left unattended. The Commissioner contends that Fakes attempted to make Walter drink from a bottle of shampoo as punishment, and that Hartgrave struck Walter in the throat to get him to drink. Betts-Lucas takes the position that Fakes attempted to make Walter drink the shampoo while she was squeezing his throat; Hartgrave struck Walter on the throat in an attempt to get him to spit out the shampoo. The only direct evidence of the events in the summary judgment record is the transcript of Hartgrave's guilty plea. The transcript supports Betts-Lucas' characterization of the evidence. Hartgrave was charged and pleaded guilty on both direct and accessory theories of criminal liability.6

Later that morning, as Walter exhibited problems eating and drinking, Fakes had him examined by the facility nurse. The nurse was not told of the trauma to Walter's throat, and she believed that the swelling was due to a minor illness. Had the nurse been aware of the trauma, she would have had Walter sent immediately to the hospital. Due to lack of further medical care, Walter died within the next two to four hours as a result of his injuries.

The parties do not dispute that Hartgrave's actions violated DMH rules. Hartgrave was subsequently terminated for his misconduct.

A. The Wrongful Death Action

Betts-Lucas filed a wrongful death action on March 30, 1998, naming Hartgrave, Fakes, and Higginsville Habilitation Center as defendants. The petition alleged that Fakes and Hartgrave failed to summon emergency medical assistance for Walter and/or misrepresented to others that Walter did not need medical aid. A second count sought damages under 42 U.S.C. § 1983 for violations of Walter's civil rights.7 Shortly after the suit was filed, private counsel for Hartgrave wrote to the Attorney General requesting a defense to the suit. After no response by the Attorney General, counsel for Hartgrave again wrote reiterating his demand for a defense in the action and indicating that, if no response was forthcoming, he would take steps himself to defend Hartgrave's interests. After the second letter, the Attorney General responded that the matter was under consideration and that Hartgrave would be notified later. Hartgrave's counsel then requested a decision by October 1, 1998.

B. The Henry County Declaratory Judgment Action

The response to the requests by Hartgrave's personal attorney for legal representation in the wrongful death action was to file a declaratory judgment action in Henry County on November 18, 1998. In that action, which named Hartgrave but not Betts-Lucas as a defendant, the Commissioner sought declaratory relief that Hartgrave's actions were not conduct arising out of his duties on behalf of the State and that Hartgrave was, therefore, not entitled to have any judgment paid from the Legal Expense Fund. Hartgrave's personal attorney filed an answer and counter-claim in the Henry County action and, by letter of December 16, 1998, indicated that his client intended to enter into a "Covenant to Limit Execution" in the wrongful death action unless the Attorney General agreed to "assume responsibility for the damages sought in the Petition and to provide him with a defense to that action." A copy of the proposed covenant with Betts-Lucas was enclosed. A response was requested by January 1, 1999.

C. The Covenant to Limit Execution

The proposed agreement with Betts-Lucas required that Hartgrave extend cooperation to the Attorney General to attempt to secure its defense of the claim. Hartgrave denied any liability for the claim. Betts-Lucas agreed to seek recovery of a judgment against Hartgrave, if she obtamed one, only against the Legal Expense Fund. The agreement was subject to approval of the court and required that Hartgrave give notice to the Attorney General of any trial in the wrongful death action, even if the Attorney General continued to refuse to defend him.

On January 6, 1999, the Attorney General responded to the December 16, 1998, letter saying that he was agreeable to providing representation in the wrongful death action through unidentified outside counsel but without agreeing that the claim was covered by the Fund or waiving the claims in the Henry County declaratory judgment action. On February 3, 1999, Hartgrave's counsel declined the offer of representation with a "reservation of rights," saying that his client "does not feel it in his best interests to have counsel ... provided to him by an agency that is disclaiming the ultimate liability for the effects of that defense." There is no indication that the Attorney General responded to that letter.

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