State Ex Rel. Missouri Highway & Transportation Commission v. Appelquist

698 S.W.2d 883, 1985 Mo. App. LEXIS 4344

• Court: Missouri Court of Appeals
• Decided: August 30, 1985
• Docket: 13956
• Status: Published

Opinions

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 587.600 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 respondent¹ 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[2] (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[2] (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[11].

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 1978³), 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. XIY 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[4]. 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[11]. 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 parent of a party in a damage suit for the purpose of determining his comparative fault. Gustafson, 661 S.W.2d at 14. Kendall, citing Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978), held that the right to non-contractual indemnity presupposes actionable negligence of both parties toward a third party. Kendall, 634 S.W.2d at 179. Kendall also cited Whitehead & Kales for the proposition that in adjudicating issues of indemnity or contribution between tort-feasors, the essential thing is the attempt to be fair as between persons subjected to a common legal liability. Kendall, 634 S.W.2d at 179.

Gustafson, moreover, was not a dispute between several tortfeasors regarding apportionment of fault for an injured party’s damages, but was instead a suit by one plaintiff against one defendant arising from a collision between a motorcycle and an automobile.

For the above reasons, we hold that Gus-tafson supplies no basis for respondent’s denial of the Commission’s motion to dismiss the third-party petition.

As a separate element of their first theory, counsel for respondent argue that the Supreme Court in Bartley did not consider whether the General Assembly, in the 1978 Act, intended that providing insurance for the two types of claims specified in subsections “(1)” and “(2)” of § 537.600 be mandatory or discretionary. Counsel for respondent suggest that the Supreme Court, in deciding Bartley, assumed, but did not hold, that under § 537.610.1, purchasing liability insurance or providing self-insurance was discretionary. That assumption, according to counsel for respondent, was erroneous. The correct interpretation of § 537.610.1, say counsel for respondent, is that each political subdivision of the State must either purchase liability insurance or adopt a self-insurance plan covering the types of claims specified in subsections “(1)” and “(2)” of § 537.600. That is, the choice is not whether to provide insurance; the choice is merely which of the two methods to use in providing it. Failure of a political subdivision to purchase liability insurance or adopt a self-insurance plan would, according to counsel for respondent, expose the political subdivision to liability up to the limits provided in § 537.610.2 for claims of the types described in subsections “(1)” and “(2)” of § 537.600.

We disagree. Bartley makes it indisputably clear that under the 1978 Act, sovereign immunity as it existed prior to Jones remains in full force and effect, subject only to the limited exceptions carved out by the Act. Those exceptions (subsections “(1)” and “(2)” of § 537.600) become operative “only to the extent the public entity has purchased liability insurance for such purposes.” Bartley, 649 S.W.2d at 868. Bartley states: “[W]e find that the only exceptions to the doctrine as it existed pri- or to Jones are those contained in § 537.-600(1) and (2) — operation of motor vehicles and condition of property — as modified by § 537.610, when insurance has been acquired.” 649 S.W.2d at 870. (Emphasis added). Bartley’s message is clear: no insurance, no waiver.

The dissenting opinion in Bartley champions the position embraced by counsel for respondent but concedes that the majority opinion rejects it. Id. at 871.

The first theory tendered by respondent’s counsel is without merit.

The second theory relied on by counsel for respondent is that if Bartley’s interpretation of § 537.610.1 be correct, then that section, in empowering the governing body of each political subdivision of the State to purchase liability insurance or adopt a self-insurance plan (and thereby decide whether or to what extent its sovereign immunity is waived in the instances specified in subsections “(1)” and “(2)” of § 537.600) is an “unconstitutional delegation of the legislature’s power to the state’s administrative bodies.” Citing Winston, 636 S.W.2d 324, 328, and Fowler, 637 S.W.2d 352, 354, counsel insist that the sovereign immunity of the State and its entities may be waived only by the General Assembly, not by officers, agents or employees of the State. Counsel underscore the statement in Winston that within constitutional limits, a sovereign may prescribe the terms and conditions under which it may be sued, and the decision to waive immunity, and to what extent it is waived, lies within the legislature’s purview. 636 S.W.2d at 328. Respondent’s counsel argue that inasmuch as § 537.610.1 contains no standards to guide the governing bodies of the State’s political subdivisions in deciding whether, or to what extent, to waive sovereign immunity, it is invalid.

Another reason why § 537.610.1 is invalid, according to counsel for respondent, is that if a person is injured under circumstances described in subsections “(1)” or “(2)” of § 537.600 and the political subdivision responsible for the injury has insurance, the injured party has recourse, but if the political subdivision has chosen not to have insurance, the injured person has no recourse. This, say respondent’s counsel, results in discrimination between two classes of people, those injured by insured political-subdivisions and those injured by uninsured political subdivisions. Such discrimination, insist counsel, violates “equal protection guaranties” of U.S. Const, amend. XIV and Mo. Const, art. I, § 2 (1945).

These constitutional attacks on § 537.610.1 require us to consider whether we have jurisdiction of this proceeding, as we are mindful that exclusive appellate jurisdiction in all cases involving the validity of a statute of this State lies in the Supreme Court of Missouri. Mo. Const. art. V, § 3 (1945, amended 1982);⁶ State ex rel. Jordon v. Mehan, 597 S.W.2d 724, 726 (Mo.App.1980). This proceeding, however, did not reach us by appeal, but instead by application for an original remedial writ. Consequently, we have jurisdiction under Mo. Const, art. V, § 4.1 (1945, amended 1976), even though resolution of the issues may require a determination of the validity of a statute. Jordon, 597 S.W.2d at 725-26[1]; State ex rel. Coffman v. Crain, 308 S.W.2d 451, 454[7] (Mo.App.1958); State ex rel. City of Mansfield v. Crain, 301 S.W.2d 415, 417-18[1, 2] (Mo.App.1957).

Implicit in the second theory tendered by respondent’s counsel is the assumption that if § 537.610.1 be held unconstitutional for either of the reasons advanced by counsel, subsections “(1)” and “(2)” of § 537.600 remain in force and unconditionally waive sovereign immunity in the instances therein described.

We reject that assumption. Section 1.140 provides:

“The provisions of every statute are severable. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.”

The test of the right to uphold a law, some portions of which may be invalid, is whether or not in doing so, after separating that which is invalid, a law in all respects complete and susceptible of constitutional enforcement is left, which the General Assembly would have enacted if it had known that the exscinded portions were invalid. State ex rel. Enright v. Connett, 475 S.W.2d 78, 81[1] (Mo. banc 1972); State ex rel. Audrain County v. Hackmann, 275 Mo. 534, 205 S.W. 12, 14[4] (banc 1918).

Here, the intent of the General Assembly in enacting the 1978 Act, as divined by the Supreme Court of Missouri in Bartley, was to reestablish the doctrine of sovereign immunity as it existed prior to Jones, with any exceptions being those in the 1978 Act. Bartley, 649 S.W.2d at 870. The Supreme Court further found in Bartley that the General Assembly intended to waive sovereign immunity only in the instances described in subsections “(1)” and “(2)” of § 537.600 and, even in those instances, only to the extent that the political subdivision had insurance for such purposes. Bartley, 649 S.W.2d at 870.

Consequently, subsections “(1)” and “(2)” of § 537.600 are so essentially and inseparably connected with § 537.610.1, and so dependent upon it, that we cannot presume that the General Assembly would have enacted subsections “(1)” and “(2)” of § 537.-600 without enacting § 537.610.1.

On the contrary, it is evident to us from the legislative intent as determined in Bartley that the General Assembly would not have enacted subsections “(1)” and “(2)” of § 537.600 if the General Assembly had believed that § 537.610.1 would be declared invalid. The General Assembly obviously intended by the 1978 Act to nullify the effect of Jones and to reestablish the doctrine of sovereign immunity except in the instances described in subsections “(1)” and “(2)” of § 537.600, as limited by § 537.610.1.

Given the holding in Bartley that subsections “(1)” and “(2)” of § 537.600 waive sovereign immunity only to the extent that insurance is provided for such purposes under § 537.610.1, we are convinced that under § 1.140, Enright and Audrain County, subsections “(1)” and “(2)” of § 537.600 cannot remain viable if § 537.-610.1 be declared invalid.

Had the General Assembly assumed that § 537.610.1 was constitutionally infirm, we believe that the General Assembly would have enacted only that portion of § 537.600 which restores sovereign immunity generally as it existed prior to Jones, and would not have enacted that portion of § 537.600 which waives sovereign immunity in the instances described in subsections “(1)” and “(2)” (as limited by § 537.610.1).

Accordingly, we need not decide whether § 537.610.1 is constitutional. If it is, the Commission is shielded by sovereign immunity from liability to Lewis and National Oil in the underlying case, as the absence of insurance means there is no waiver of sovereign immunity under subsection “(2)” of § 537.600, the subsection pertinent to the third-party petition of Lewis and National Oil. On the other hand, if § 537.-610.1 be unconstitutional, subsections “(1)” and “(2)” of § 537.600 cannot survive, as heretofore explained. Thus, the Commission is immune from liability to Lewis and National Oil in the underlying case whether § 537.610.1 is constitutional or not, as the restoration of sovereign immunity in § 537.600 would survive the exscision of subsections “(1)” and “(2)” thereof.

Our decision that it is unnecessary to decide the constitutionality of § 537.-610.1 is analogous to that of the Supreme Court of Missouri in State ex rel. Kansas City v. State Highway Commission, 349 Mo. 865, 163 S.W.2d 948 (banc 1942). There, a statute contained a provision that arguably constituted an unconstitutional delegation of one political subdivision’s power to another. Another provision in the statute was not susceptible to that challenge. The Supreme Court concluded it was unnecessary to pass on the constitutionality of the former section, as the latter section was dispositive of the case and the latter section was “sufficiently separable” from the former section that the latter section could stand even though the former section were objectionable. 163 S.W.2d at 952[2].

The second theory tendered by respondent’s counsel is without merit.

The third theory relied on by counsel for respondent is that even if the Commission, by virtue of the 1978 Act and Bartley, be immune from liability to Lewis or National Oil, the Commission is not necessarily immune from suit “to determine its relative percentage of fault.” According to counsel for respondent, nothing in the 1978 Act or Bartley protects the Commission from a “third-party action” to determine its “comparative fault” in causing an injured party’s damages. The Gustafson concept of joining all parties to a transaction in a single lawsuit for the comparison of the fault of all concerned, say counsel for respondent, cannot be realized if a party immune from liability is also immune from suit.

Counsel insist that Bartley did not hold that a public entity immune from liability under subsections “(1)” and “(2)” of § 537.-600 by reason of the absence of insurance is also immune from suit. Counsel maintain that because § 537.610.2 mentions only liability, the 1978 Act cannot be construed to immunize public entities from suit.

The contention, while ingenious, is untenable. In State ex rel. Missouri Department of Agriculture v. McHenry, 687 S.W.2d 178 (Mo. banc 1985), prohibition was sought in regard to a suit in which money damages were demanded from the State of Missouri, the Missouri Department of Agriculture, and the Grain Inspection and Warehousing Division “because of alleged deficiencies in the performances of the state and its officials.” Id. at 180. The Supreme Court of Missouri prohibited the trial court from allowing the money damages claim to proceed against the State, the Department and the Division, noting that the 1978 Act mandated the restoration of sovereign immunity as it existed prior to Jones. McHenry, 687 S.W.2d at 182. That doctrine, said the Supreme Court, was designed to protect the public treasury against the kind of claims sought to be maintained against the State, the Department and the Division. Id. at [12], In holding that prohibition was an appropriate remedy, the Supreme Court observed that “immunity” connotes not only immunity from judgment but also immunity from suit. Id. at 181[2], The Supreme Court added that it is appropriate to require a litigant who sues the state or its officers to file a petition demonstrating a viable theory of liability. Id. at [4].

Prior to Jones, the State, by reason of its sovereign immunity, was immune from suit and could not be sued in its own courts without its consent. State ex rel. Eagleton v. Hall, 389 S.W.2d 798, 801[3] (Mo. banc 1965).

State ex rel. Missouri Division of Family Services v. Moore, 657 S.W.2d 32 (Mo.App.1983), held that the 1978 Act nullified Jones and restored sovereign immunity to the status it occupied before Jones, subject to §§ 537.600(1) and (2) and 537.610. Moore, 657 S.W.2d at 34. Accordingly, Moore held that the Division of Family Services was immune from suit for compensatory and punitive damages for wrongfully garnishing a federal income tax refund to collect a child support judgment assigned to the Division. A preliminary order in prohibition commanding the trial court to refrain from proceeding further in such suit was made absolute.

On the basis of McHenry, Eagleton and Moore, we reject the hypothesis of counsel for respondent that the Commission, even if immune from liability, is not immune from suit.

The final theory relied on by respondent’s counsel is merely a reprise of the first three. Consequently, it requires no discussion and is denied.

The preliminary order in prohibition is made absolute. Respondent is prohibited from proceeding further against the Commission in the underlying- case and is ordered to grant the Commission’s motion to dismiss the third-party petition as to the Commission. If, despite the affidavit of the Commission’s chief counsel, Lewis and National Oil believe there is liability insurance or a self-insurance plan that would indemnify the Commission for damages assessed against it under the allegations of the third-party petition, Lewis and National Oil may request respondent to grant them leave to file an amended third-party petition alleging the existence of such insurance, and respondent shall grant Lewis and National Oil a reasonable time to do so.

Respondent’s motion to dismiss the Commission’s petition for writ of prohibition and to quash our preliminary order in prohibition is denied.

PREWITT, C.J., HOGAN, P.J., and MAUS, J., concur.

1 . Counsel representing Lewis and National Oil in the underlying case represent respondent in this prohibition proceeding.

2 . Sovereign immunity was abrogated instanter as to the tort claims in Jones and the three other cases decided simultaneously therewith. Jones, 557 S.W.2d at 231[11]; Fowler v. Board of Regents for Central Missouri State University, 637 S.W.2d 352, 353 (Mo.App.1982).

3 . All references to statutes are to RSMo 1978.

4 . Section 537.600 provides:

“Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

"(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles within the course of their employment;

“(2) Injuries caused by the condition of a public entity’s property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

5 . Section 537.610 provides, in pertinent part:

"1. The commissioner of administration, through the purchasing division, and the governing body of each political subdivision of this state, notwithstanding any other provision of law, may purchase liability insurance for tort claims made against the state or the political subdivision, but the maximum amount of such coverage shall not exceed eight hundred thousand dollars for all claims arising out of a single occurrence and shall not exceed one hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workmen’s corn-pensation law, chapter 287, RSMo, and no amount in excess of the above limits shall be awarded or settled upon. Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions of this section and in such amount and for such purposes provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the state.

"2. The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed eight hundred thousand dollars for all claims arising out of a single accident or occurrence and shall not exceed one hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workmen’s compensation law, chapter 287, RSMo.

6 . Mo. Const, art. V, § 3 (1945, amended 1982) provides, in pertinent part: "The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity of a ... statute ... of this state_”