State v. The Honorable R. Jack Garrett

• Decision Date: 26 April 2000
• Citation: 18 S.W.3d 504
• Parties: (Mo.App. S.D. 2000) State of Missouri ex rel. Ripley County, Missouri, Relator, v. The Honorable R. Jack Garrett, Judge of the Circuit Court of Carter County, Missouri, Respondent. 23241 0
• Court: Missouri Court of Appeals

18 S.W.3d 504 (Mo.App. S.D. 2000)

State of Missouri ex rel. Ripley County, Missouri, Relator, v. The Honorable R. Jack Garrett, Judge of the Circuit Court of Carter County, Missouri, Respondent.

23241

Missouri Court of Appeals Southern District

04/26/2000

Appeal From: Original Proceeding in Prohibition or, in the Alternative, Mandamus

Counsel for Appellant: D. Keith Henson

Counsel for Respondent: John E. Toma, Jr., and Richard L. Saville, Jr.

Opinion Summary: None

Parrish, J., concurs. Shrum, J., concurs in result and files concurrence.

John C. Crow, Presiding Judge

Relator, a county of the third class, is one of five defendants in a lawsuit pending before Respondent. In that suit ("the underlying suit"), Charles David Smith ("Plaintiff") avers he was arrested without probable cause on or about May 28, 1995, in Ripley County by the county sheriff, Dennis Cox, and two of Cox's deputies, Steve Gant and Bruce Ridlen; that those three officers and another deputy sheriff, Margaret Ayers, instigated a criminal prosecution against Plaintiff for forcible rape, forcible sodomy and felonious restraint; that Plaintiff was held in custody approximately twenty hours and compelled to post bond before being released; and that Ayers made false and slanderous statements about Plaintiff.

Plaintiff's three-count, second amended petition in the underlying suit pleads that the conduct of the four individual defendants occurred "in the course and scope of their employment" by Relator, hence Relator is liable for such conduct. In Count I, Plaintiff seeks actual and punitive damages against Relator and the four individual defendants for malicious prosecution; in Count II, Plaintiff seeks actual and punitive damages against Relator and the four individual defendants for false imprisonment; in Count III, Plaintiff seeks actual and punitive damages against Relator and Ayers for slander.

Relator moved for summary judgment in the underlying suit, averring all claims against it are barred "by the doctrine of sovereign immunity."

Plaintiff answered Relator's motion by alleging Relator purchased insurance for "claims of malicious prosecution, false imprisonment and slander for the calendar year 1995," thereby waiving sovereign immunity "as provided by section 537.610 RSMo."

Respondent denied Relator's motion for summary judgment.

Relator thereupon filed a petition in this court for a writ of prohibition or, in the alternative, mandamus. Relator prayed this court to bar Respondent from allowing the underlying suit to proceed against Relator, and for this court to command Respondent to grant Relator's motion for summary judgment.

This court issued a preliminary order in prohibition barring Respondent from allowing the underlying suit to proceed against Relator until further order of this court. Plaintiff thereafter filed an answer to Relator's petition,¹ and Relator and Plaintiff subsequently filed briefs.

The sole issue before this court, as framed by the briefs, is whether Relator's purchase of insurance waived Relator's sovereign immunity against Plaintiff's claims in the underlying suit. The answer to that question lies in section 537.610, RSMo 1994,² and Relator's insurance policy.

The policy was issued by Savers Property & Casualty Insurance Company and bears number CP0000954-01. This opinion henceforth refers to the policy as "Policy 954." The period covered by Policy 954 was from "1-11-95" to "1-11-96."

This court gathers from the briefs that Relator and Plaintiff agree that the provisions of Policy 954 on which the outcome of this proceeding hinges are found in a part of Policy 954 denominated "Commercial General Liability Coverage Part." That part contains a segment denominated "Section I -- Coverages." One of the components of Section I is denominated "Coverage B. Personal and Advertising Injury Liability." It reads, inter alia:

"1. Insuring Agreement.

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of `personal injury' or `advertising injury' to which this insurance applies. . . . "

This opinion henceforth refers to the above-quoted passage as "Section I.B.1.a."

The term "personal injury" in Section I.B.1.a. is defined in another segment of the "Commercial General Liability Coverage Part" of Policy 954. That segment is denominated "Section V -- Definitions." It reads, inter alia:

" . . . .

13. `Personal injury' means injury, other than `bodily injury', arising out of one or more of the following offenses:

a. False arrest, detention or imprisonment;

b. Malicious prosecution;

c. . . .

d. Oral or written publication of material that slanders or libels a person . . .

or disparages a person's . . . goods, products or services[.]"

This opinion henceforth refers to the above-quoted passage as "Section V.13."

Obviously, Plaintiff's claims in the underlying suit are for "personal injury" as defined in Section V.13. If the analysis ended there, this would be an easy case; this court would summarily quash its preliminary order.

However, the analysis does not end with Section V.13. Whether Relator is entitled to relief in this court depends on whether Section I.B.1.a. of Policy 954, measured against section 537.610.1,³ waives Relator's sovereign immunity against Plaintiff's claims.

The crucial language of Section I.B.1.a. is the clause obligating the insurer to pay "those sums that the insured becomes legally obligated to pay as damages" because of injuries defined in Section V.13. For ease of discussion, this opinion henceforth refers to that language as "the crucial policy language."

The crucial language of section 537.610.1 is the clause providing that sovereign immunity for political subdivisions is waived "only for the purposes covered by such policy of insurance." For ease of discussion, this opinion henceforth refers to that language as "the crucial statutory language."

In State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621 (Mo. banc 1990), a county hospital shielded by sovereign immunity against medical negligence claims was sued for medical negligence. Id. The suing party, relying on section 537.610.1, RSMo 1986,⁴ maintained the hospital waived its immunity by purchasing a liability insurance policy. Id. at 623.

The Supreme Court of Missouri rejected the argument. The court examined the policy language to ascertain the "purposes covered." Id. That examination revealed the purposes covered did not include medical negligence. Id. The opinion explained:

"The insurance contract . . . never promised coverage of the kind of claim made by [the suing party]. . . . Because [the] negligence claim does not fall under `the purposes covered by [the] policy of insurance,' no coverage exists under this policy for the claim and no waiver of sovereign immunity exists under the language of section 537.610.1."Id.

Accordingly, the Supreme Court in Cass Medical Center barred the trial court from allowing the suit to proceed against the hospital. Id. at 624.

Endeavoring to distinguish Cass Medical Center from the underlying suit, Plaintiff points out -- and this court agrees -- that in Cass Medical Center the hospital's insurance policy provided no coverage for the claim there (medical negligence) whereas Plaintiff's claims in the underlying suit fall within the definition in Section V.13 of Policy 954. Plaintiff insists: "[T]he purchase of insurance waives sovereign immunity if the insurance provides coverage for the very risks for which the defendant is being sued."

Plaintiff's argument, while superficially plausible, ignores the crucial policy language. The insurer's obligation under that language is to pay only the sums Relator becomes legally obligated to pay as damages because of injuries listed in Section V.13. If Relator never becomes legally obligated to pay damages for such injuries, no coverage exists under Section I.B.1.a., hence there is no waiver of sovereign immunity under section 537.610.1.

That was the analysis in Balderree v. Beeman, 837 S.W.2d 309 (Mo.App. S.D. 1992). There, a party sued a regional planning commission for slander. Id. at 311. This court held the commission was a public entity within the ambit of section 537.600 and thereby immune from slander liability unless it waived immunity pursuant to section 537.610.1 by purchasing insurance. Id. at 317.

The insurance in Balderree, like Policy 954, obligated the insurer to pay "those sums that the insured becomes legally obligated to pay as damages." Id. at 318. As the commission's sovereign immunity shielded it from liability for slander, the commission could never become legally obligated to pay damages therefor (unless, of course, the commission waived immunity). Id. at 319. Because nothing in the policy obligated the insurer to pay, on behalf of the commission, any sum other than that which the commission became legally obligated to pay, this court held the commission did not waive immunity against the slander claim when it bought the insurance. Id.

Plaintiff astutely observes that Policy 954 differs from the policy in Balderree in that the policy there did not list slander as a covered injury, whereas Section V.13 of Policy 954 specifically lists the types of claims for which Plaintiff seeks recovery in the underlying suit. Consequently, maintains Plaintiff, Balderree provides no support for Relator's argument that Relator did not waive sovereign immunity against Plaintiff's claims when Relator bought Policy 954.

In addressing Plaintiff's hypothesis, this court emphasizes the crucial policy language in Section I.B.1.a. requires the insurer to pay those sums that Relator becomes legally obligated to pay as damages because of injuries listed in Section V.13. It is clear from that language that unless Relator becomes legally obligated to pay such damages, the insurer has no duty to pay, as the condition triggering the insurer's obligation will not have occurred. Under the...