Younger v. Missouri Public Entity Risk Management Fund

Decision Date30 September 1997
Docket NumberNo. WD,WD
Citation957 S.W.2d 332
PartiesDale YOUNGER and Yvonne Younger, Appellants, v. MISSOURI PUBLIC ENTITY RISK MANAGEMENT FUND and Rebecca Leiter, et al., Respondents. 52533.
CourtMissouri Court of Appeals

Danieal H. Miller, Columbia, for appellants.

Steven F. Coronado, Sherman, Taff & Bangert, Kansas City, R. Max Humphreys, Carson & Coil, Jefferson City, for respondents.

Before LOWENSTEIN, P.J., and BRECKENRIDGE and SMART, JJ.

BRECKENRIDGE, Judge.

This appeal originates from a garnishment action filed by the Youngers against the Missouri Public Entity Risk Management Fund (MoPERM) and three nurses, Peggy Kuhlman, Linda M. Jeffries, and Rebecca Leiter. 1 The Youngers sought to recover judgments for medical malpractice totalling $1,330,634, which were rendered in favor of the Youngers and against the nurses in a prior suit. The trial court granted MoPERM's motion for summary judgment.

The Youngers contend on appeal that the trial court erred in granting summary judgment because MoPERM funds are available as liability insurance coverage to satisfy their judgment against the nurses since coverage is provided without exclusion by the terms of the "Memorandum of Coverage" issued by MoPERM to the City of Sedalia, Missouri. They also claim that coverage is mandated by § 537.705.1, RSMo 1994. 2 This court finds that coverage is statutorily mandated by § 537.705.1 for tort claims against any officer or employee of a participating public entity, if the claim arose out of the officer or employee's official duties on behalf of the public entity. Although the question of whether the nurses are employed by the hospital may ordinarily be a question of fact, here, there is no dispute that Bothwell employed the nurses. Therefore, because the hospital and city are one entity, the hospital is a participating public entity under § 537.705.1 and the statute mandates coverage of the Youngers' claims. The judgment of the trial court is reversed and remanded.

On October 8, 1991, Mr. Younger underwent surgery at Bothwell Regional Health Center, a hospital owned and operated by the City of Sedalia. During surgery, Mr. Younger experienced changes in his vital signs and a subsequent cardiac arrest. As a result, he is now permanently brain damaged.

Mr. and Mrs. Younger sued eight separate defendants for medical malpractice, including the City of Sedalia, doing business as Bothwell Regional Health Center, and the nurses. The Youngers voluntarily dismissed their claims against four of the defendants pursuant to an agreement, and Bothwell was dismissed after asserting the affirmative defense of sovereign immunity. The nurses were the sole remaining defendants.

Prior to trial, the Youngers and the nurses executed a written agreement pursuant to § 537.065 which granted the nurses protection from enforcement of any judgments, except to the extent the Youngers' claim was covered by the Memorandum of Coverage issued by MoPERM to the City of Sedalia. As part of the agreement, the nurses stated that they were directly employed by the City of Sedalia and were acting within the course and scope of their duties when they negligently administered medication to Mr. Younger during his surgery at Bothwell. Thereafter the trial court rendered judgments totalling $1,330,634 against the nurses and in favor of Mr. and Mrs. Younger. The Youngers' efforts to satisfy these judgments from MoPERM funds proved unsuccessful and the present garnishment action ensued.

In their garnishment petition, the Youngers asserted that MoPERM funds were available as liability insurance coverage for payment of their unsatisfied judgment against the nurses under § 537.705.1, as well as under the Memorandum issued by MoPERM to the City of Sedalia. This was based on their claim that the nurses were covered city employees while working at Bothwell Regional Health Center. MoPERM denied coverage and moved for summary judgment pursuant to Rule 74.04. In response to the motion for summary judgment, the Youngers alleged that coverage was mandated by § 537.705 and by the Memorandum. The trial court granted summary judgment, finding that no coverage existed under the terms of the Memorandum and, therefore, MoPERM had no obligation to indemnify. The Youngers appeal.

MoPERM is a state-operated risk management fund for local public entities which has the same effect as a self-insurance plan. Section 537.705.1. Certain public entities, including cities, have the option of participating in the fund and making annual contributions to it. Sections 537.700.2(3) and 537.705.1. For a participating entity, MoPERM funds shall be available for: (1) the payment and settlement of all claims for which a public entity obtained coverage; (2) for the payment and settlement of all tort claims against an officer or employee of the public entity, if the claim arose out of the performance of the officer or employee's official duties on behalf of the entity; and (3) for any attorney fees and expenses incurred in the settlement and defense of the covered claims. Section 537.705.1.

At the time of Mr. Younger's surgery, the City of Sedalia was a public entity participating in MoPERM and the sole "Member Agency" identified in the Memorandum issued by MoPERM to the City of Sedalia. The Memorandum provided the city and all "Covered Parties" with coverage for liability created by the statutory waiver of sovereign immunity in § 537.600.1(1)-(2). The Memorandum permitted claims attributable to a dangerous condition of the city's property, or claims arising from the negligence of a city employee while operating a motor vehicle within the course of employment. Section 537.600.1. The Memorandum also provided coverage for the member agency for claims on causes of action other than those established by Missouri law and coverage for public officials and employees on all claims if imposed by law or assumed by contract.

In addition to these general provisions, the Memorandum contained an exclusion for liability due to a health care facility's rendering or failure to render medical services. However, the Memorandum provided for an exception to this exclusion and provided coverage for the services of registered nurses, licensed practical nurses or nurses' aides directly employed by the Member Agency. It is this exception to the general exclusion that the Youngers claim grants them coverage under the Memorandum.

On February 26, 1996, the trial court granted MoPERM's motion for summary judgment, finding that:

Based on the material facts to which there is no genuine dispute the Court concludes the terms of the Memorandum of Coverage issued by MoPERM to its member agency, the City of Sedalia, given the plain meaning of the language contained in the Memorandum, consistent with reasonable expectations, objectives and intent of the parties affords no coverage for the claims or causes of action out of which the judgment entry dated October 28, 1993 against [the nurses] arises. The Court further concludes on October 8, 1991 at the time Dale Younger was a patient at Bothwell Regional Health Center, [the nurses] were directly employed by Bothwell and were not directly employed by the City of Sedalia. Under the circumstances, summary judgment is proper.

The trial court also sustained the motion for summary judgment filed by the nurses but did not consider whether coverage was mandated by § 537.705. The Youngers filed a timely appeal to this court.

In their sole point on appeal, the Youngers contend that the trial court erred in granting summary judgment in favor of MoPERM and the nurses because they were not entitled to judgment as a matter of law since MoPERM funds are available as liability insurance coverage to satisfy their judgment against the nurses. Specifically, the Youngers argue that (1) coverage is mandated by § 537.705.1; and (2) that coverage is provided, without exclusion, by the terms of the Memorandum issued by MoPERM to the City of Sedalia because Bothwell is not a separate entity and the City of Sedalia directly employed the nurses.

In reviewing a grant of summary judgment, this court views the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). "Appellate review is essentially de novo." Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo. banc 1996). The criteria for ascertaining the propriety of summary judgment on appeal are the same as those used by the trial court when determining the propriety of sustaining the motion initially. Id. Summary judgment is appropriate if the movant has a right to judgment as a matter of law and no genuine issue of material fact exists. Id. A "genuine issue" is one that is real, not merely argumentative, imaginary or frivolous. ITT, 854 S.W.2d at 382.

Here, the trial court entered summary judgment on the ground that the Memorandum of Coverage does not show that the parties intended to cover the Youngers' claims. However, statutorily mandated coverage supersedes the agreement of the parties and invalidates any contrary clauses in those agreements as void against public policy. Halpin v. American Family Mut. Ins. Co., 823 S.W.2d 479, 480 (Mo. banc 1992). Therefore, in order to address the propriety of summary judgment, this court must first consider what the trial court did not: whether § 537.705 statutorily mandates coverage of the Youngers' claim regardless of the intent of the parties as expressed in the Memorandum of Coverage.

Resolution of the issue of whether § 537.705 mandates coverage involves statutory interpretation. This court ascertains the intent of the legislature from the "language of the act, considering the words used in their plain and ordinary meaning, and...

To continue reading

Request your trial
15 cases
  • North Kansas City Hosp. Bd. of Trustees v. St. Luke's Northland Hosp.
    • United States
    • Missouri Court of Appeals
    • November 3, 1998
    ... ... No. WD 54167 ... Missouri Court of Appeals, ... Western District ... (1) that NKC Hospital itself was not a "public governmental body;" (2) that certain requested ... , contracts, or agreements with any related entity, including but not limited to Meritas and ... Younger v. Missouri Pub. Entity Risk, 957 S.W.2d 332, 338 ... contracts, for the use, operation or management of the hospital; to make and enter into leases ... ...
  • Dept. of Soc. Serv. V. Senior Cit. Nursing
    • United States
    • Missouri Court of Appeals
    • February 13, 2007
    ... ... No. WD 66236 ... Missouri Court of Appeals, Western District ... E. Public Policy and Deference to Administrative Agencies ... way to the specific." Younger v. Missouri Pub. Entity Risk Mgmt. Fund, 957 ... ...
  • Betts-Lucas v. Hartmann, WD 60363.
    • United States
    • Missouri Court of Appeals
    • July 30, 2002
    ... ... No. WD 60363 ... Missouri Court of Appeals, Western District ... July ... judgment finding that the Legal Expense Fund, § 105.711, et seq., RSMo. 2000, 1 provides ... Younger v. Mo. Pub. Entity Risk Mgmt. Fund, 957 S.W.2d ... ...
  • Sherf v. Koster
    • United States
    • Missouri Court of Appeals
    • June 26, 2012
    ... ... WD 73952.Missouri Court of Appeals,Western District.May 29, ... to collect from the State Legal Expense Fund. We affirm.Factual BackgroundThe following facts ... W.D.2002) (citing Younger v. Mo. Pub. Entity Risk Mgmt. Fund, 957 S.W.2d ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT