Topps v. City of Country Club Hills

• Decision Date: 18 November 2008
• Docket Number: No. ED 91509.,ED 91509.
• Citation: 272 S.W.3d 409
• Parties: Evelyn B. TOPPS, Appellant, v. CITY OF COUNTRY CLUB HILLS, Missouri, Respondent.
• Court: Missouri Court of Appeals

272 S.W.3d 409

Evelyn B. TOPPS, Appellant, v. CITY OF COUNTRY CLUB HILLS, Missouri, Respondent.

No. ED 91509.

Missouri Court of Appeals, Eastern District, Division One.

November 18, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 29, 2008.

Application for Transfer Denied January 27, 2009.

Donald Murano, The Murano Law Firm, LLC, St. Louis, for Appellant.

Priscilla F. Gunn, Rabbitt, Pitzer & Snodgrass, P.C., St. Louis, for Respondent.

KURT S. ODENWALD, Presiding Judge.

Introduction

Evelyn Topps (Topps) appeals from the trial court's second order granting a motion for summary judgment in favor of the City of Country Club Hills (the City), after this Court, in Topps v. City of Country Club Hills (Topps I), 236 S.W.3d 660 (Mo. App. E.D.2007), reversed and remanded the trial court's first summary judgment order. We affirm.

Background

We review the facts in the light most favorable to Topps, as the party against whom summary judgment was entered. City of Hazelwood v. Peterson, 48 S.W.3d 36, 38 (Mo. banc 2001). Topps was an at-will employee with the City from May 21, 2001, through April 2, 2004, when she voluntarily resigned her position as City Clerk. Topps alleges she experienced whistle blower retaliation after reporting alleged "inappropriate and unethical business practices and violations of policies and procedures" by the City. Topps I, 236 S.W.3d at 660-61. Topps asserts she was then "forced to resign" and was "constructively terminated" when she left her position. During Topps' employment, the City participated in the Missouri Public Entity Risk Management (MOPERM) fund¹ for its insurance coverage.

The MOPERM "Memorandum of Coverage" sets forth the coverage provided, as well as applicable exceptions. Section I, Part A of the "Memorandum of Coverage" sets forth the insurance coverage provided to the City. Part A(1) of the policy states that

For claims on causes of action established by Missouri Law, MOPERM will pay on behalf of [the City] the ultimate net loss which [the City] shall become legally obligated to pay by reason of liability arising out of: ... (a) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motorized vehicles within the course of their employment ... [and] (b) Injuries caused by the condition of a public entity's property if ... the property was in dangerous condition at the time of the injury ....²

Part A(2) of the policy provides coverage for "claims against [the City] on causes of actions other than those established by Missouri Law and for claims against public officials and employees."

A disclaimer section also is included in the language of the policy in Section I, of the "Memorandum of Coverage," noting that

Nothing contained in this section, or the balance of this document, shall be construed to broaden the liability of [the City] beyond the provisions of sections 537.600 to 537.610 of the Missouri Statutes [the sovereign immunity sections], nor to abolish or waive any defense at law which might otherwise be available to [the City] or its officers and employees.

Section IV of the "Memorandum of Coverage" sets forth policy exclusions, though nothing is mentioned in this section about whistle blower claims.

The MOPERM policy also contains a "Declarations" page, which notes "Employment Practice Liability" (EPL) coverage with a $10,000 deductible and limits of $2,000,000 per occurrence. While EPL is listed under "Coverage" on the "Declarations" page, EPL is not defined in the "Memorandum of Coverage."

Topps filed suit against the City on October 18, 2005, alleging whistle blower retaliation in Count I and disability discrimination in Count II. After Topps dismissed her count for disability discrimination, the City filed a motion for summary judgment on the remaining whistle blower retaliation count, alleging the City was entitled to sovereign immunity. Topps opposed the City's motion for summary judgment, arguing the City's MOPERM coverage applies to her lawsuit and that the City's procurement of that coverage waived the City's sovereign immunity to the extent of that coverage, pursuant to Kunzie v. City of Olivette, 184 S.W.3d 570 (Mo. banc 2006). The trial court granted the City's motion for summary judgment, noting, "The Court finds that this is a whistle blower case, and [the City] is entitled to sovereign immunity pursuant to [Section] 537.600. Kunzie v. City of Olivette. [The City] did not waive sovereign immunity through its purchase of a MOPERM policy."

Topps appealed to this Court, which reversed and remanded the grant of summary judgment in Topps I. Relying on Kunzie, this Court found that there was "an insufficient factual record regarding [MOPERM] coverage such that it [could not] be determined as a matter of law that [the City was] due judgment." Topps I, 236 S.W.3d at 663. The case was remanded "for a factual determination as to the effect of the MOPERM policy." Id.

The case returned to the trial court where both parties provided Proposed Findings of Fact. The trial court again granted the City's motion for summary judgment on June 11, 2008. The trial court's order granting summary judgment in favor of the City set forth both findings of fact and conclusions of law, and was substantially longer and more detailed than the first order of summary judgment. The trial court's findings of fact and conclusions of law analyzed and interpreted the MOPERM policy to determine whether the policy's language constituted a waiver of the City's sovereign immunity. First, relying on several cases and the express disclaimer language found in the MOPERM "Memorandum of Coverage," the trial court determined that the City did not waive sovereign immunity when it purchased insurance coverage through MOPERM. Second, the trial court found that, even absent the disclaimer language in the policy, the City still did not waive sovereign immunity by participating in MOPERM because the Missouri General Assembly specifically mandated in Section 537.745.1 that MOPERM coverage does not waive sovereign immunity. Finally, the trial court concluded that the language of the MOPERM coverage did not provide coverage for whistle blower claims within the parameters of coverage, and thus, again, the City did not waive sovereign immunity.

This appeal follows.

Point on Appeal

In her only point on appeal, Topps alleges that the trial court erred in granting summary judgment in favor of the City because it improperly viewed the record in the light most favorable to the moving party, instead of the non-moving party, and failed to analyze the insurance policy coverage as mandated by this Court in Topps I.

Standard of Review

As we noted in Topps I, "[t]he standard of review on appeal regarding summary judgment is de novo." Topps I, 236 S.W.3d at 660, citing City of Hazelwood v. Peterson, 48 S.W.3d 36, 38 (Mo. banc 2001). Summary judgment is proper and will be upheld on appeal only when this Court finds there is "no genuine dispute of material fact" and the movant is "entitled to judgment as a matter of law." Id. We review the record "in the light most favorable to the party against whom summary judgment was entered." Id. "We take as true the facts set forth by affidavits or otherwise in support of the moving party's summary judgment motion unless contradicted by the non-moving party's response to the motion and accord the non-moving party the benefit of all reasonable inferences from the record." Parish v. Novus Equities Co., 231 S.W.3d 236, 244 (Mo.App. E.D.2007).

Discussion

Traditionally, under the common law, "only the State and its entities were entitled to complete sovereign immunity from all tort liability." Junior Coll. Dist. of St. Louis v. City of St. Louis, 149 S.W.3d 442, 447 (Mo. banc 2004). "Sovereign immunity does not necessarily describe the immunity held by municipalities because municipalities, as distinguished from other governmental entities, exercise both governmental and proprietary functions." Parish, 231 S.W.3d at 241. Municipalities have traditionally had immunity with regard to actions they undertake as a part of their "governmental functions— actions benefiting the general public." Junior Coll. Dist. of St. Louis, 149 S.W.3d at 447. On the other hand, municipalities do not enjoy sovereign immunity for torts committed "while performing proprietary functions—actions benefiting or profiting the municipality in its corporate capacity." Kunzie, 184 S.W.3d at 574. The Missouri Supreme Court "has held that termination of a city employee is a governmental function," and thus sovereign immunity applies. Id.

I. Waiver of Sovereign Immunity

While sovereign immunity typically protects municipalities from actions taken as part of their governmental functions, specific exceptions to sovereign immunity can apply, and a municipality can specifically waive its immunity.³ Id.; Parish, 231 S.W.3d at 242. Section 537.600 sets forth two such specific exceptions to sovereign immunity: (1) where injuries result from a public employee's negligent operation of a motor vehicle within the course of employment; and (2) where injuries are caused by a dangerous condition of the municipality's property. See also Parish, 231 S.W.3d at 242.

With particular application to the case before us, Section 537.610 provides that sovereign immunity may also be waived by the purchase of insurance covering tort claims. See also Section 71.185; Epps v. The City of Pine Lawn, 353 F.3d 588 (8th Cir.2003). Notably, this section mandates the waiver of sovereign immunity "only to the maximum amount of and only for the purposes covered by such policy of insurance." Section 537.610; Kunzie, 184 S.W.3d at 574.

Section 537.610 "provides an independent basis for waiving sovereign immunity that is cemented in the existence of coverage for the damage or injury at issue under the language of the insurance policy, and we will...