State of Missouri, ex rel., The School District of Kansas City 33 v. The Honorable Jerri J. Zhang

• Court: Missouri Court of Appeals
• Decided: February 7, 2023
• Docket: WD85738
• Status: Published

Opinion

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

STATE OF MISSOURI, ex rel., ) THE SCHOOL DISTRICT OF ) KANSAS CITY 33, ) ) Relator, ) ) v. ) WD85738 ) THE HONORABLE JERRI J. ) Opinion filed: February 7, 2023 ZHANG, ) ) Respondent. )

ORIGINAL PROCEEDING IN PROHIBITION Writ Division: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge, and Karen King Mitchell, Judge

Jane Doe (“Plaintiff”) filed a lawsuit in the Circuit Court of Jackson County against

the School District of Kansas City 33 d/b/a Kansas City Public Schools (“KCPS”). KCPS

filed a renewed motion for summary judgment claiming sovereign immunity from

Plaintiff’s claims, and the trial court—the Honorable Jerri J. Zhang (“Respondent”)—

overruled the motion. KCPS sought a writ of prohibition from this Court, requesting we direct Respondent to take no action other than to grant KCPS’s renewed motion for

summary judgment. We issued a preliminary writ of prohibition that we now make

permanent.

Factual and Procedural Background

On June 9, 2020, Plaintiff initiated a lawsuit (“Underlying Lawsuit”) against KCPS

and four individuals employed by KCPS (“Individual Defendants”). Plaintiff alleged that

on September 28, 2015, while she was a student at what is now known as Southeast High

School, another student forcibly carried her to an unlocked and unsupervised area of the

school’s fifth floor, where he sexually assaulted her.

Plaintiff’s petition asserted four counts. Counts I and II alleged tort claims against

KCPS and the Individual Defendants. Specifically, Count I alleged the tort of negligent

training and supervision and breach of ministerial duties, and Count II alleged the tort of

negligent infliction of emotional distress. Counts III and IV were asserted solely against

KCPS. Count III alleged KCPS was vicariously liable for the actions of the Individual

Defendants under the theory of respondeat superior. Count IV asserted a claim of “Premise

[sic] Liability – Dangerous Condition.”

As relevant to this writ proceeding, Plaintiff also asserted in paragraph 8 of her

petition that:

Defendant KCPS maintains a policy of insurance or belongs to a risk pool that is the legal equivalent of an insurance policy that covers claims for bodily injury against public officials or employees for an occurrence caused by negligent acts and for the breach of ministerial duties as alleged in this Petition.

2 As discussed in greater detail in our analysis, KCPS is a governmental entity that is entitled

to sovereign immunity except to the extent waived. “The purchase of liability insurance

may function as a waiver of sovereign immunity.” State ex rel. Blue Springs Sch. Dist. v.

Grate, 576 S.W.3d 262, 265 n.5 (Mo. App. W.D. 2019) (citing § 537.610.1, RSMo1).

KCPS and the Individual Defendants filed a motion to dismiss Plaintiff’s petition,

which was granted in part. The trial court dismissed all claims against the Individual

Defendants, finding they enjoyed official immunity from Plaintiff’s claims. The trial court

also dismissed Count IV (“Premise [sic] Liability – Dangerous Condition”). Thus, the

claims remaining in the Underlying Lawsuit after the trial court’s dismissal order were

Count I (negligent supervision/training and breach of ministerial duties), Count II

(negligent infliction of emotional distress), and Count III (respondeat superior liability).2

KCPS remained the sole named defendant.

Thereafter, KCPS filed a motion for summary judgment, asserting “there is no

genuine dispute of material fact and KCPS is shielded as a matter of law by sovereign

immunity from Plaintiff’s claims.” The trial court denied the motion. KCPS sought a writ

of prohibition from this Court in Case No. WD84793. The respondent in that writ

proceeding (the Honorable David Michael Byrn) opposed the writ petition, in part, by

asserting that the summary judgment motion was “premature and filed with an incomplete

record.” On September 21, 2021, we denied the writ petition “without prejudice with the

1 All statutory references are to RSMo 2016. 2 “A governmental employer may still be liable for the actions of its employee even if the employee is entitled to official immunity.” Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 766 (Mo. banc 2006). 3 understanding that the summary judgment motion may be renewed following the close of

discovery.”

In May 2022, KCPS filed a renewed motion for summary judgment, again arguing

“that there is no genuine dispute as to any material fact and that KCPS is entitled to

judgment as a matter of law because it is shielded by sovereign immunity.” Plaintiff

opposed the motion, asserting KCPS “procured liability insurance covering both it and its

agents for claims like those being made by Plaintiff,” thereby waiving KCPS’s sovereign

immunity. Plaintiff also asserted that “the sovereign immunity preservation provisions” in

KCPS’s insurance policies did “not comply with Missouri law,” specifically section

432.070’s requirement that contracts entered into by public entities, including school

districts, “shall be subscribed by the parties thereto, or their agents authorized by law and

duly appointed and authorized in writing.” Plaintiff asserted that “without proof of

compliance with § 432.070, the preservation of sovereign immunity through policy

language is inadequate.” Respondent denied the motion on the grounds that “there still

remains a genuine issue of material fact” and KCPS “failed to illustrate its right to judgment

as a matter of law.”

KCPS filed a petition for writ of prohibition with this Court, thereby initiating this

writ proceeding. KCPS asserted that “extensive discovery revealed no issues of material

fact on the issue of sovereign immunity” and Plaintiff “failed to carry the burden to prove

KCPS waived sovereign immunity.” KCPS sought a writ of prohibition “barring

Respondent from taking any further action in the underlying action other than to vacate the

Order of Respondent’s [entered on] September 2, 2022, denying the renewed motion for

4 summary judgment and to enter summary judgment in favor of KCPS based on sovereign

immunity.”

After Respondent filed suggestions in opposition to KCPS’s writ petition, we issued

a preliminary writ of prohibition directing Respondent to refrain from taking any further

action in the Underlying Lawsuit until further order of this Court “except to reconsider

[the] denial of [KCPS’s] Motion for Summary Judgment based on sovereign immunity.”

Standard of Review

This Court has discretion to issue and determine original remedial writs, including

writs of prohibition. Blue Springs Sch. Dist., 576 S.W.3d at 266. “Whether a writ should

issue in a particular case is a question left to the sound discretion of the court to which

application has been made.” Id. at 267.

“Sovereign immunity is not a defense to suit but, rather, it is immunity from tort

liability altogether, providing a basis for prohibition.” State ex rel. City of Grandview v.

Grate, 490 S.W.3d 368, 369 (Mo. banc 2016). “[P]rohibition is generally the appropriate

remedy to forestall unwarranted and useless litigation.” Blue Springs Sch. Dist., 576

S.W.3d at 266. “Because there is no right of appeal from the denial of a motion for

summary judgment, the refusal to utilize a writ where the issues before the court are solely

matters of law would compel a defendant to defend unwarranted and useless litigation at

great expense and burden.” Id. at 267 (internal marks omitted). “Forcing upon a defendant

the expense and burdens of trial when the claim is clearly barred is unjust and should be

prevented.” Id. at 266. “Thus, prohibition is an appropriate remedy when a defendant is

clearly entitled to immunity.” Id. at 267 (internal marks omitted); see also State ex rel. Bd.

5 of Trustees of City of N. Kan. City Mem’l Hosp. v. Russell, 843 S.W.2d 353, 355 (Mo. banc

1992) (“Where a defendant is clearly entitled to immunity, it is not necessary to wait

through a trial and appeal to enforce that protection.”).

This writ proceeding requires us to examine whether KCPS’s insurance policies

waived sovereign immunity for the torts alleged in Plaintiff’s petition. Interpretation of an

insurance policy is a question of law, Blue Springs Sch. Dist., 576 S.W.3d at 267, and we

construe narrowly any waiver of sovereign immunity, Topps v. City of Country Club Hills,

272 S.W.3d 409, 415 (Mo. App. E.D. 2008).

Analysis

KCPS asserts that it is “entitled to an order prohibiting the respondent from

proceeding in the underlying action other than to dismiss the action or enter summary

judgment for KCPS.” Specifically, KCPS asserts that the undisputed material facts show

that Plaintiff’s claims are barred by sovereign immunity, arguing that no exception to

sovereign immunity applies and KCPS did not waive its sovereign immunity “by obtaining

insurance coverage that explicitly did not provide coverage for any claim barred by

sovereign immunity.”

Respondent counters by arguing that the insurance policies—including policy

language that preserves KCPS’s sovereign immunity—are void because they were not

signed by all parties to the contracts as required by section 432.070. Respondent asserts

that, as a result, the sovereign immunity preservation provisions “do not have binding

force.”

We address each issue in turn.

6 KCPS did not waive its sovereign immunity.

We first find that the insurance policies procured by KCPS did not waive KCPS’s

sovereign immunity.3 A public entity—such as a school district—is generally protected

from liability for negligent acts under the doctrine of sovereign immunity, unless an

exception to sovereign immunity applies, see § 537.600,4 or the public entity waives its

immunity through the procurement of liability insurance covering tort claims,

see § 537.610. Regarding waiver, procurement of an insurance policy does not necessarily

waive sovereign immunity for all tort claims asserted against a public entity. Rather,

immunity is waived only “to the extent of and for the specific purposes covered by the

insurance purchased.” Blue Springs Sch. Dist., 576 S.W.3d at 269; see also § 537.610.1 (a

public entity waives sovereign immunity “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 . . . .”). Thus, whether an insurance policy waives sovereign immunity “is

expressly dictated, and limited, by the terms of the insurance policy.” Topps, 272 S.W.3d

at 415.

3 To the extent the parties disagree as to whether Plaintiff adequately pleaded in paragraph 8 of her petition that KCPS waived its sovereign immunity by purchasing insurance (as opposed to the immunity of only KCPS’s employees and public officials), we do not resolve this issue. That is because, presuming for the purposes of this proceeding that Plaintiff’s allegations were adequate, we find—as discussed more fully infra—that the undisputed material facts show KCPS did not waive its sovereign immunity. 4 Section 537.600 provides two 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 [public entity’s] property.” Topps, 272 S.W.3d at 414. Neither exception has been raised in this matter. 7 During the relevant time period, KCPS was covered by two insurance policies: a

“Commercial General Liability Policy” applicable to occurrences for the policy period of

July 1, 2015 to July 1, 2016 (hereinafter the “Commercial Policy”) and a “Directors,

Officers, Insured Entity and Employment Practices Insurance Policy” applicable to claims

made and reported during the period of July 1, 2017 to July 1, 2018 (hereinafter the

“Directors and Officers Policy”).5 As detailed below, both policies expressly disclaimed

any waiver of sovereign immunity. “[A] number of courts have held that a public entity

retains its full sovereign immunity when the insurance policy contains a disclaimer stating

that the entity’s procurement of the policy was not meant to constitute a waiver of sovereign

immunity[.]” Blue Springs Sch. Dist., 576 S.W.3d at 271 (quoting Topps, 272 S.W.3d at

418) (internal marks omitted).

KCPS’s Commercial Policy contained a “Sovereign Immunity Exclusion

Endorsement,” which stated that the policy did “not apply to any Claim to which the

Insured . . . [i]s Immune under the legal doctrine of sovereign immunity; or . . . would have

been immune . . . but for the Insured’s waiver of such immunity[.]” The Directors and

Officers Policy contained a “Governmental Immunity Endorsement,” which expressly

stated it did not provide coverage for any claim for which immunity is granted pursuant to

section “537.600 et seq.,”6 and it excluded coverage for any claim barred by the doctrine

5 Plaintiff initially filed her claims against KCPS in a lawsuit commenced in October 2017, which Plaintiff voluntarily dismissed and re-filed in 2020 as the Underlying Lawsuit. 6 “Section 537.600.1 codifies sovereign immunity for tort liability as existed at common law, except to the extent waived, abrogated or modified by statutes in effect prior to September 12, 1977, and except for injuries resulting from a public employees’ [sic] operation of a motor vehicle 8 of sovereign immunity. Moreover, the Directors and Officers Policy contained additional

disclaimer language that was almost identical to a provision in the insurance policy at issue

in Topps v. City of Country Club Hills, and the Eastern District found the Topps policy

language “act[ed] to retain the City’s sovereign immunity.”7 272 S.W.3d at 418. Similarly,

here, the disclaimer provisions in KCPS’s insurance policies acted to retain KCPS’s

sovereign immunity. See id.; see also Russell, 843 S.W.2d at 360; Langley v. Curators of

Univ. of Mo., 73 S.W.3d 808, 811 (Mo. App. W.D. 2002) (insurance policy that expressly

stated “[n]othing in this [policy] shall be construed as a waiver of any governmental

immunity” retained the public entity’s sovereign immunity).

It is uncontroverted in the summary judgment record that the Commercial Policy

contained the Sovereign Immunity Exclusion Endorsement and the Directors and Officers

Policy contained the Governmental Immunity Endorsement. As described above, these

provisions disclaimed any waiver of sovereign immunity. Accordingly, we find that the

undisputed material facts demonstrate that KCPS’s insurance policies did not waive

KCPS’s sovereign immunity.

in the course of their employment, or injuries caused by the condition of a public entity’s property.” Blue Springs Sch. Dist., 576 S.W.3d at 268. 7 Compare KCPS’s Directors and Officers Policy (“[N]othing contained in this policy will be construed to broaden the liability of the insured beyond the provisions of Sections 537.600 to 537.610 of the Missouri Statutes, as may be amended from time to time, nor to abolish or waive any defense at law which might otherwise be available to the insured or its officers and employees.”), with the policy language in Topps, 272 S.W.3d at 412 (“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, nor to abolish or waive any defense at law which might otherwise be available to [the City] or its officers and employees.”).

9 Section 432.070 does not affect our determination.

Respondent does not contest that the Sovereign Immunity Exclusion Endorsement

and the Governmental Immunity Endorsement disclaim any waiver of sovereign immunity.

Instead, Respondent argues that the insurance policies—including the sovereign immunity

preservation provisions—are void and unenforceable because the insurance policies were

not signed by KCPS agents as required by section 432.070.8 Respondent’s argument is self-

defeating. Even presuming Respondent was correct in her assertion that KCPS failed to

comply with section 432.070, KCPS would still enjoy sovereign immunity from Plaintiff’s

claims.9 As previously described, a school district is protected by the doctrine of sovereign

immunity unless an exception applies or the school district waives its immunity by

procuring liability insurance that covers the plaintiff’s claims. If KCPS’s insurance policies

are void and unenforceable, as Respondent contends, then no insurance policy exists that

8 Section 432.070 provides that no school district

shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.

(emphasis added). It is uncontroverted that KCPS agents did not sign the insurance policies at issue.

9 Because Plaintiff’s claims would be barred by sovereign immunity whether or not KCPS complied with section 432.070 when purchasing the policies, we need not decide whether the signature requirement of section 432.070 applies to the purchase of standard-form insurance contracts like those involved here.

10 would operate to waive KCPS’s sovereign immunity. See Kindred v. City of Smithville,

292 S.W.3d 420, 424 (Mo. App. W.D. 2009) (“A contract that fails to comply with Section

432.070 is void ab initio, not merely voidable.”). In such a situation, KCPS would not have

waived its sovereign immunity because it would not have procured liability insurance. On

the other hand, if KCPS’s policies are valid and enforceable, then—as described above—

the policies each contain provisions that preserve KCPS’s sovereign immunity. Under

either set of circumstances, sovereign immunity protects KCPS from Plaintiff’s claims.10

Respondent attempts to avoid this outcome by arguing that “it is the purchase of

the policy” that waives sovereign immunity, and KCPS waived its sovereign immunity by

purchasing liability insurance, even though the insurance policies “purchased” were, under

Respondent’s theory, void and unenforceable due to noncompliance with section 432.070.

Missouri law does not support this curious argument. In fact, the law is clear that the

language of the insurance policy—not merely the act of purchasing a policy—dictates the

existence and extent of any waiver. See § 537.610.1 (expressly providing that immunity is

10 The circumstances here are different than those in Newsome v. Kansas City, Missouri School District, in which the Missouri Supreme Court determined that the school district waived its sovereign immunity by purchasing liability insurance. 520 S.W.3d 769, 776-77 (Mo. banc 2017). In Newsome, it was undisputed that the school district’s insurance policy covered the type of claim asserted by the plaintiff. Id. at 776. Months after the school district purchased its policy, it negotiated an endorsement that disclaimed any waiver of sovereign immunity. Id. The Missouri Supreme Court found that the endorsement never became part of the policy because it “was not subscribed to by any authorized and appointed agent of the District,” as required by section 432.070. Id. The Court held that, because the endorsement did not comply with the requirements of section 432.070, the school district could not rely on the endorsement to preserve immunity that was otherwise waived. Id. at 767-77. Unlike in Newsome, here, the sovereign immunity preservation provisions were part of the school district’s insurance policies; the preservation provisions were not later-negotiated endorsements. Thus, the policies here are either valid in their entirety or void in their entirety. As described above, under either scenario KCPS has sovereign immunity. 11 waived “only to the maximum amount of and only for the purposes covered by such policy

of insurance”); see also Blue Springs Sch. Dist., 576 S.W.3d at 269 (in determining whether

an insurance policy waives sovereign immunity, “we are guided by the policy language

alone”); Topps, 272 S.W.3d at 415 (“the extent of [the waiver of sovereign immunity] is

expressly dictated, and limited, by the terms of the insurance policy”). The cases relied

upon by Respondent merely stand for the general proposition that the purchase of liability

insurance may operate as a waiver of sovereign immunity; they do not hold that the act of

purchasing an insurance policy constitutes a waiver, regardless of whether the insurance

policy is void and unenforceable.11 See generally City of Grandview, 490 S.W.3d at 371-

72; Russell, 843 S.W.2d at 360.

For these reasons, any failure of KCPS to comply with section 432.070 would not

affect our determination that KCPS was immune from Plaintiff’s claims.

Conclusion

The undisputed facts demonstrate that KCPS’s insurance policies did not waive

KCPS’s sovereign immunity, therefore KCPS enjoys immunity from the claims asserted

in Plaintiff’s petition. The preliminary writ of prohibition we issued is made permanent.

11 In any event, we question whether KCPS could fairly be said to have “purchased” insurance, if Respondent was correct that the insurance policies were themselves unenforceable and void. “‘Purchase’ is defined in Webster’s dictionary as meaning ‘to obtain by paying money or its equivalent.’” Tolu v. Reid, 639 S.W.3d 504, 539 (Mo. App. E.D. 2021) (citations omitted). We fail to see how KCPS could be said to have “obtain[ed],” or “secure[d] the receipt” of insurance, if the insurance contracts were themselves null and void. 12 The matter is remanded with instructions that Respondent enter summary judgment in

favor of KCPS in the Underlying Lawsuit.

__________________________________________ EDWARD R. ARDINI, JR., PRESIDING JUDGE

All concur.