Hendricks v. CURATORS OF UNIV. OF MISSOURI

• Decision Date: 27 April 2010
• Docket Number: No. WD 70398.,WD 70398.
• Citation: 308 SW 3d 740
• Parties: Daniel HENDRICKS and Katherine Hendricks, Appellants, v. The CURATORS OF the UNIVERSITY OF MISSOURI, et al., Respondents.
• Court: Missouri Court of Appeals

308 SW 3d 740

Daniel HENDRICKS and Katherine Hendricks, Appellants, v. The CURATORS OF the UNIVERSITY OF MISSOURI, et al., Respondents.

No. WD 70398.

Missouri Court of Appeals, Western District.

April 27, 2010.

Kathleen A. McNamara, Esq., and Frederick G. Thompson, IV, Esq., Kansas City, MO, for appellant.

Susan F. Robertson, Esq., Kansas City, MO and Wade H. Ford, Jr., Esq., Columbia, MO, for respondent.

Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

Plaintiffs-Appellants Daniel and Katherine Hendricks filed a petition seeking damages from the Curators of the University of Missouri, among others, for alleged negligence relating to medical care provided to Daniel Hendricks when he was a patient at the University Hospital in Columbia. The circuit court dismissed the Hendrickses' claims against the Curators on the basis of sovereign immunity, and certified its judgment as final.

The Hendrickses appeal. In their first Point Relied On, they argue that the Curators waived sovereign immunity by adopting a self-insurance plan which provides coverage for the Hendrickses' claims. In their second Point, the Hendrickses contend that the court erroneously treated the Curators' motion to dismiss as a motion for summary judgment, and that the motion to dismiss should have been overruled under the standards applicable thereto. We affirm.

Standard of Review

We review a trial court's decision to grant a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

"A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case."

State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009) (citation omitted).

Analysis

I.

Under § 537.600,¹ sovereign immunity generally protects public entities from liability for negligent acts. "The Curators of the University of Missouri `is a public entity with the status of a governmental body and, as such, is immune from suit for liability in tort in the absence of an express statutory provision.'" Langley v. Curators of the Univ. of Mo., 73 S.W.3d 808, 811 (Mo.App. W.D.2002) (quoting Brennan ex rel. Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo.App. W.D.1997)).²

Two exceptions to sovereign immunity exist, neither of which is applicable under these facts. §§ 537.600.1(1), (2).³ Besides the exceptions to sovereign immunity contained in § 537.600.1, § 537.610.1 provides that a public entity may waive sovereign immunity for tort claims by the purchase of liability insurance, or the adoption of a self-insurance plan, to the extent of the coverage provided in the insurance policy or self-insurance plan.

At the time of the alleged injury to Mr. Hendricks, the Curators had adopted a self-insurance plan which provided, subject to the limits of liability and other conditions of the plan, that:

The Employer . . . will pay on behalf of the covered person all sums which the covered person shall become legally obligated to pay as damages because of injury to the person or property of a patient arising out of the operations of a medical facility or because of injury arising out of the rendering of or failure to render, while the Plan is in effect, professional services by the covered person, or by any person for whose acts or omissions such covered person is legally responsible, performed in the practice of the individual covered person's profession including service by the individual covered person as a member of a formal accreditation or similar professional board or committee of a medical facility or professional society.

The plan defined "Employer" to mean "The Curators of the University of Missouri, a public corporation, including all its campuses, divisions, branches and parts." "Covered persons" was defined to include "the Employer," "individual members of the Board of Curators of the University of Missouri and the Board of Curators of the University of Missouri," as well as "all employees." The self-insurance plan also expressly provided, however, that it not be construed as a waiver of sovereign immunity:

Nothing in the Plan shall be construed as a waiver of any governmental immunity of the Employer, the Board of Curators of the University of Missouri nor any of its employees in the course of their official duties.

Although the Curators had adopted a self-insurance plan whose coverage clause is apparently broad enough to apply to the Hendrickses' claims, the express proviso that the plan would not waive the Curators' sovereign immunity defeats any waiver argument. Numerous cases have applied such non-waiver provisions in governmental entities' insurance policies, and held that immunity was preserved despite the existence of insurance coverage which might otherwise fall within § 537.610.1. Thus, in State ex rel. Board of Trustees of City of North Kansas City Memorial Hospital v. Russell, 843 S.W.2d 353 (Mo. banc 1992), a city-owned hospital had purchased liability insurance which contained an endorsement explicitly disclaiming coverage for "any claim barred by the doctrine of sovereign immunity," and declaring that "nothing in this policy . . . shall constitute any waiver of whatever kind of the defense of sovereign immunity." Id. at 360. The Supreme Court held that "the endorsement disclaiming coverage of any claim barred by the doctrine of sovereign immunity avoids any waiver of sovereign immunity" which might otherwise have resulted from the purchase of liability insurance. Id.⁴

Later decisions have followed Russell, and held that an express non-waiver provision in a liability insurance policy purchased by a governmental entity defeats any waiver of sovereign immunity under § 537.610.1. See, e.g., Topps v. City of Country Club Hills, 272 S.W.3d 409, 417-18 (Mo.App. E.D.2008); Conway v. St. Louis County, 254 S.W.3d 159, 167 (Mo. App. E.D.2008); Parish v. Novus Equities Co., 231 S.W.3d 236, 246 (Mo.App. E.D. 2007); State ex rel. Ripley County v. Garrett, 18 S.W.3d 504, 508-09 (Mo.App. S.D. 2000);⁵ Casey v. Chung, 989 S.W.2d 592, 594 (Mo.App. E.D.1998).

In Langley, we applied these cases to hold that the very self-insurance plan at issue here did not effect a waiver of the Curators' sovereign immunity:

A public entity does not waive its sovereign immunity by maintaining an insurance policy where that policy includes a provision stating that the policy is not meant to constitute a waiver of sovereign immunity. Since the Curators' self-insurance plan contains such language, Appellant cannot establish that the self-insurance plan gives rise to a waiver of their sovereign immunity.

73 S.W.3d at 811-12 (citing, inter alia, Russell, Ripley County, and Casey).

The Hendrickses argue that we should disregard Langley's holding and address the effect of the non-waiver provision in the Curators' self-insurance plan anew, because the appellant in Langley apparently did not seriously contest whether the self-insurance plan waived the Curators' sovereign immunity, but instead focused her arguments on the Curators' purchase of a separate excess liability insurance policy. See id. at 812 ("Recognizing that sovereign immunity was expressly retained by the Curators in their self-insurance plan, thereby defeating her claim, Appellant seizes on the Curators' purchase of an excess liability insurance policy as a basis for claiming waiver."). We are not persuaded, however, that we can dismiss Langley's explicit holding that the self-insurance plan was ineffective to waive sovereign immunity as mere dictum. First, it arguably would have been unnecessary for Langley to even address the appellant's arguments as to the effect of the separate excess policy if it had found that the self-insurance plan itself waived immunity to the extent of its coverage. Moreover, the proper interpretation of the self-insurance plan's non-waiver clause was essential to Langley's interpretation of the excess policy on which the appellant there principally relied. Langley noted that the excess policy provided that its coverage was generally "`subject to the same terms, conditions, agreements, exclusions and definitions' as the underlying self-insurance plan," id., and that the excess insurer's payment obligation was contingent on the fact "`that the underlying insurance also applies, or would apply but for the exhaustion of its applicable limits of insurance.'" Id. at 813 (footnote omitted). Thus, the Court's conclusion that the Curators' excess insurance policy did not waive immunity depended in significant degree on the Court's interpretation of the self-insurance plan: "The self-insurance plan expressly retains the Curators' sovereign immunity, and the language of the excess liability insurance policy incorporates that provision by reference." Id.

The Hendrickses also argue that Langley's interpretation of the non-waiver provision of the Curators' self-insurance plan was erroneous, and that we should therefore disregard (or, more properly, overrule) it. First, the Hendrickses argue that the phrase "in the course of their official duties" in the non-waiver clause limits the scope of the Curators' preservation of sovereign immunity. We cannot agree that the phrase "in the course of their official duties" applies to all three categories of insureds listed in the non-waiver provision: "the Employer," "the Board of Curators," and "its employees." To the contrary, the phrase appears directly after the reference to "employees," and is properly interpreted to...