State ex rel. Missouri Highway and Transp. Com'n v. Appelquist

• Decision Date: 30 August 1985
• Docket Number: No. 13956,13956
• Citation: 698 S.W.2d 883
• Parties: STATE of Missouri ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. Honorable J.A. APPELQUIST, Judge of the Circuit Court of Greene County, Division 2, Respondent.
• Court: Missouri Court of Appeals

Page 883

698 S.W.2d 883

STATE of Missouri ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. Honorable J.A. APPELQUIST, Judge of the Circuit Court of Greene County, Division 2, Respondent.

No. 13956.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 30, 1985.

Motion for Rehearing or Transfer to

Supreme Court Denied Oct. 24, 1985.

Application to Transfer Denied

Nov. 21, 1985.

Bruce A. Ring, Philip R. Pruett, Jefferson City, for relator.

David W. Ansley, John E. Price, Rex McCall, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for respondent.

CROW, Judge.

This original proceeding in prohibition arises from a suit in which the parents of a young man fatally injured in a motor vehicle collision on a Missouri highway seek damages for his death. Defendants in that suit ("the underlying case") are Forrest Nolen Lewis, driver of a "tractor-trailer unit" that collided with the vehicle occupied by the decedent, and National Oil & Supply Company, Inc., alleged employer of Lewis and owner of the unit he was driving.

Lewis and National Oil, as third-party plaintiffs, filed a third-party petition in the underlying case naming as third-party defendants the contractor who built the segment of highway where the collision occurred and the Missouri Highway and Transportation Commission ("the Commission"). The third-party petition alleged that if the tractor-trailer unit was on the wrong side of the highway at the time of impact (as charged by the parents of the decedent), it was because an "accumulation of water" on the highway caused Lewis to lose control of the tractor-trailer unit and "caused it to jackknife" into the path of the decedent's vehicle. The accumulation of water, according to the third-party petition, resulted from the Commission's negligence in the design, construction, inspection and maintenance of the highway at the collision site. The third-party petition also attributed the presence of the water to negligence on the part of the contractor, but no issues regarding the contractor are involved in this prohibition proceeding.

As pertinent here, the third-party petition averred that if Lewis or National Oil, or both, were found liable to the plaintiffs, there should be "a determination of the relative fault" of the Commission in causing the plaintiffs' damages. In the alternative, said the third-party petition, any responsibility of Lewis or National Oil for the death of the plaintiffs' son is the responsibility of the Commission "to the extent it has procured or provided insurance coverage or self-insurance, pursuant to the application of comparative fault under the laws of the State of Missouri, and would be subject to apportionment of fault, allocation of fault, and contribution pursuant to applicable comparative fault laws, or in the alternative, [the Commission] would be liable to [Lewis and National Oil] for the entire amount of any judgment entered against [them], including attorney fees, litigation expenses, damages, and court costs."

The Commission filed a motion to dismiss the third-party petition. The motion alleged that the Commission "is immune from suit or recovery by virtue of the doctrine of sovereign immunity and no exception exists to this doctrine except as provided in sections 537.600 et seq. RSMo." The motion explained that the Commission had not waived its immunity against suit or recovery in that no liability insurance exists that would indemnify the Commission against any judgment for the plaintiffs or Lewis or National Oil. Furthermore, said the motion, no self-insurance plan exists for any such indemnity. The motion was accompanied by an affidavit of the Commission's chief counsel verifying that the Commission has no liability insurance and no self-insurance plan.

The circuit judge before whom the underlying case is pending denied the Commission's motion to dismiss. The Commission promptly filed this prohibition proceeding with us, praying for an order commanding said judge ("respondent") to (a) refrain from proceeding further against the Commission in the underlying case, and (b) dismiss the third-party petition as to the Commission.

We issued a preliminary order prohibiting respondent from proceeding further against the Commission. Thereafter, in timely fashion, counsel for respondent ¹ filed a motion to dismiss the Commission's petition for writ of prohibition and, contemporaneously therewith, filed an answer to said petition. We took the motion to dismiss with the case.

Prior to Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), the State Highway Commission, predecessor of the Missouri Highway and Transportation Commission, was shielded from tort liability by the doctrine of sovereign immunity. Bush v. State Highway Commission, 329 Mo. 843, 46 S.W.2d 854 (1932); Rector v. Tobin Construction Co., 351 S.W.2d 816, 820 (Mo.App.1961), opinion after transfer 377 S.W.2d 409 (Mo. banc 1964); Manley v. State Highway Commission, 82 S.W.2d 619, 620 (Mo.App.1935). Jones, however, abrogated the doctrine of sovereign immunity prospectively as to all tort claims arising on or after August 15, 1978. ² Jones, 557 S.W.2d at 231.

The General Assembly of Missouri, in C.C.S.S.S.S.C.S.H.S.H.B. 1650, Laws 1978, pp. 982-85, effective August 13, 1978 ("the 1978 Act"), nullified the effect of Jones by reestablishing, with some modification, the doctrine of sovereign immunity as it existed prior to Jones. Section 1 of the 1978 Act (codified as § 537.600, RSMo 1978 ³), set out marginally, ⁴ and Section 2 of the 1978 Act (codified as § 537.610), set out in part marginally, ⁵ are pertinent to the dispute before us.

Winston v. Reorganized School District R-2, 636 S.W.2d 324 (Mo. banc 1982), held that limiting the waiver of sovereign immunity to the two situations expressly described in subsections "(1)" and "(2)" of § 537.600 did not offend U.S. Const. amend. XIV or Mo. Const. art. I, § 2 (1945).

Bartley v. Special School District of St. Louis County, 649 S.W.2d 864, 868 (Mo. banc 1983), held that under §§ 537.600 and 537.610, sovereign immunity was waived only in the two situations expressly provided in subsections "(1)" and "(2)" of § 537.600 and, even in those two instances, only to the extent that the public entity had liability insurance for such purposes.

Best v. Schoemehl, 652 S.W.2d 740, 743[4, 5] (Mo.App.1983), a suit against the Board of Police Commissioners of the City of St. Louis for injuries allegedly caused by the negligent operation of a motor vehicle by an employee of the Board, held that the petition failed to state a cause of action in that it failed to allege that the Board had purchased liability insurance covering such an occurrence or that the Board had adopted any self-insurance plan for such purpose.

Talley v. Missouri Highway and Transportation Commission, 659 S.W.2d 290, 292 (Mo.App.1983), an action against the Commission for damages allegedly caused by a dangerous condition in a public highway, held that the injured parties could not recover unless they pleaded and proved that the Commission had insurance applicable to the claim.

Hohimer v. Missouri Highway and Transportation Commission, 659 S.W.2d 521 (Mo.App.1983), another case where recovery was sought for damages allegedly caused by a dangerous condition in a public highway, upheld summary judgment in favor of the Commission on the ground that the Commission was immune from suit under the doctrine of sovereign immunity in that it had no insurance to indemnify it from a judgment in favor of the plaintiffs.

Undismayed by these holdings, resourceful counsel for respondent offer three theories in justification of respondent's denial of the Commission's motion to dismiss the third-party petition. The first theory is that Bartley was "modified" by Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), which supplanted the doctrines of contributory negligence, last clear chance, and humanitarian negligence with a comprehensive system of comparative fault. 661 S.W.2d at 16. Gustafson, say counsel for respondent, recognized that "fairness and justice" can best be achieved by joining all parties to a transaction in a single lawsuit for the comparison of the fault of all concerned. See: 661 S.W.2d at 15. According to counsel for respondent, dismissing the third-party petition as to the Commission in the underlying case would be "inconsistent with the purpose of joining all parties to an action as enunciated in Gustafson."

We are unconvinced that Gustafson impaired Bartley's construction of §§ 537.600 and 537.610. Bartley held that statutory provisions that waive sovereign immunity must be strictly construed. 649 S.W.2d at 868. Bartley also held that by enacting the 1978 Act, the General Assembly of Missouri intended to reestablish the doctrine of sovereign immunity as it existed prior to Jones, with any exceptions to its status being provided in the 1978 Act. 649 S.W.2d at 870. Given the narrow construction of §§ 537.600 and 537.610 by the Supreme Court of Missouri in Bartley, we are unpersuaded that the Supreme Court intended, by its decision in Gustafson, to allow a governmental entity shielded from tort liability by sovereign immunity under the 1978 Act to be joined as a party in a tort case for the purpose of adjudicating its share of liability for the damages sustained by the injured party.

Indeed, Gustafson points out that in State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979), the Supreme Court of Missouri recognized the statutory immunity of employers in workers' compensation cases and declined to leave them as a party defendant for the sole purpose of determining their comparative fault. Gustafson, 661 S.W.2d at 14. Gustafson also notes that in Kendall v. Sears, Roebuck and Co., 634 S.W.2d 176 (Mo. banc 1982), the Supreme Court reaffirmed its commitment to parental immunity and declined to keep the...