State ex rel. Blue Springs Sch. Dist. v. Grate

Decision Date01 May 2018
Docket NumberWD81197
CourtMissouri Court of Appeals
Before Writ Division: Cynthia L. Martin, Presiding Judge, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge

The Blue Springs School District ("School District") seeks a writ of prohibition directing the circuit court ("Respondent") to take no action other than to grant the School District's motion for summary judgment. Because the posture of this case does not support the issuance of an extraordinary writ on the issue of whether sovereign immunity has been abrogated for discrimination in public accommodation pursuant to section 213.065,1 thiscourt's preliminary writ of prohibition is quashed with respect to that claim asserted in this case. Because the School District did not waive sovereign immunity for common law torts by acquiring liability insurance, this court's preliminary writ of prohibition is made permanent as to the common law tort claims asserted in this case.

Factual and Procedural Background

On November 24, 2015, plaintiff ("B.Z.") initiated a lawsuit in the Circuit Court of Jackson County ("Underlying Lawsuit")2 against the School District and three individuals employed by the School District ("Individual Defendants").3 B.Z. alleged that while she was a kindergartner, she was sexually harassed and assaulted by other students at her elementary school. Count I of B.Z.'s petition alleged discrimination in public accommodation pursuant to section 213.065 of the Missouri Human Rights Act ("MHRA").4 Count II of the petition alleged the tort of negligent supervision/breach of ministerial duties. Count III of the petition alleged the tort of breach of fiduciary duty/confidential relationship. All three Counts named the School District and the Individual Defendants as defendants.

B.Z.'s petition alleged that "Defendants have purchased liability insurance covering the type of claims made herein."5 The School District's answer alleged that the petitionfailed to state a claim for public accommodation discrimination, and that the School District had not waived sovereign immunity by acquiring insurance.6

The School District filed a motion for summary judgment. The School District alleged that Count I of B.Z.'s petition failed to state a claim because political subdivisions are not "persons" who can be liable for public accommodation discrimination pursuant to section 213.065. The School District's motion also alleged that its sovereign immunity for the common law torts alleged in Counts II and III of the petition was not waived by the acquisition of liability insurance.7 Though it is uncontroverted that the School District was insured by Missouri Public Entity Risk Management Fund ("MOPERM") when the acts and omissions giving rise to B.Z.'s petition are alleged to have occurred,8 the parties dispute whether that policy afforded the School District coverage for the claims alleged against it in Counts II and III of the petition.

Respondent denied the School District's motion for summary judgment on October 12, 2017.9 On November 1, 2017, the School District filed a petition for writ ofprohibition alleging that section 213.065 of the MHRA does not authorize a cause of action for discrimination in public accommodation against political subdivisions of the state, and that sovereign immunity was not waived for the common law tort claims alleged in Counts II and III of the petition by the acquisition of insurance. After requesting suggestions from the Respondent, this court issued a preliminary writ of prohibition directing that Respondent take no further action as to the School District in the Underlying Lawsuit.10

Standard Applicable to Writs of Prohibition

"This [c]ourt has discretion to issue and determine original remedial writs." State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227, 230 (Mo. banc 2017). "The extraordinary remedy of a writ of prohibition is available: (1) to prevent the usurpation of judicial power when the trial court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.'" Id. (quoting State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41, 45 (Mo. banc 2017)). "'Prohibition is particularly appropriate when the trial court, in a case where the [pertinent] facts are uncontested, wrongly decides a matter of law thereby depriving a party of an absolute defense.'" State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002) (quoting State ex rel. City of Marston v. Mann, 921 S.W.2d 100, 102 (Mo. App. S.D. 1996)).

"Normally, we are reluctant to utilize the writ [of prohibition] for the purposes of reviewing a denial of summary judgment or to correct trial court error." State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 500 (Mo. App. E.D. 1985). However, "[p]rohibition is generally the appropriate remedy to forestall unwarranted and useless litigation." Id. (citing State ex rel. New Liberty Hosp. Dist. v. Pratt, 687 S.W.2d 184, 187 (Mo. banc 1985)). "Forcing upon a defendant the expense and burdens of trial when the claim is clearly barred is unjust and should be prevented." State ex rel. Howenstine v. Roper, 155 S.W.3d 747, 749 (Mo. banc 2005) (citing O'Blennis, 691 S.W.2d at 500), abrogated on unrelated grounds by Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008). 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." O'Blennis, 691 S.W.2d at 500; see also State ex rel. New Liberty Hosp. Dist., 687 S.W.2d at 187 (holding that where "appeal fails to afford adequate relief, prohibition is the appropriate remedy to forbear patently unwarranted and expensive litigation, inconvenience and waste of time and talent"). Thus, prohibition is an appropriate remedy when "a defendant is clearly entitled to immunity." State ex rel. Bd. of Trs. of City of North Kansas City Mem'l Hosp. v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992). And prohibition is an appropriate remedy where a petition fails to state a viable theory of recovery, entitling the relator to be dismissed. State ex rel. Henley v. Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009); State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 81-82 (Mo. banc 2008). However, "[a] writ of prohibition does not issue as a matter of right.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." Derfelt v. Yocom, 692 S.W.2d 300, 301 (Mo. banc 1985) (internal citation omitted).


This writ proceeding requires us to resolve two issues: (i) whether the School District, a political subdivision, is a "person" subject to liability for public accommodation discrimination pursuant to section 213.065; and (ii) whether the School District's MOPERM policy waived sovereign immunity for the common law torts alleged in Counts II and III of B.Z.'s petition by affording the School District coverage. The first issue requires us to construe a statute, a question of law. Delta Air Lines, Inc. v. Dir. of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995). The second issue requires us to construe an insurance policy, also a question of law. Seeck v. Geico General Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). We review questions of law de novo. Mantia v. Mo. Dep't of Transp., 529 S.W.3d 804, 808 (Mo. banc 2017).


Whether the School District is subject to liability for discrimination in public accommodation pursuant to section 213.065

(i) The School District is a political subdivision and is immune from statutory liability unless sovereign immunity has been waived

Count I of B.Z.'s petition alleges discrimination pursuant to the MHRA, and specifically, discrimination in public accommodation pursuant to section 213.065. B.Z.alleges that the School District11 directly or indirectly discriminated against her use of a public elementary school12 on the grounds of sex.

Section 213.065.2 describes the statutory claim for discrimination in public accommodation:

It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, as defined in section 213.010 and this section, or to segregate or discriminate against any such person in the use thereof on the grounds of race, color, religion, national origin, sex, ancestry, or disability.

(Emphasis added.) Although discrimination claims pursuant to the MHRA are of statutory origin, they sound in tort. State ex rel. Diehl v. O'Malley, 95 S.W.3d 82, 87-88 (Mo. banc 2003) (holding that a claim under the MHRA is analogous to a tort claim for purposes of the right to trial by jury); Soto v. Costco Wholesale Corp., 502 S.W.3d 38, 57-58 (Mo. App. W.D. 2016) (holding that MHRA claims sound in tort for purposes of determining the statutory rate of post-judgment interest) (citing Bowolak v. Mercy E. Comtys., 452 S.W.3d 688, 704 (Mo. App. E.D. 2014)).

Section 213.065.2 limits those who can be liable for discrimination in public accommodation to "any person." Under the MHRA, the term "person" is statutorily defined as follows:

[I]ncludes one or more individuals, corporations, partnerships, associations, organizations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, trustees, trustees in bankruptcy, receivers, fiduciaries, or other

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