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Missouri Pub. Entity Risk Mgmt. Funds (MOPERM) v. S.M.

Court of Appeals of Missouri, Western District, Third Division

August 18, 2015

MISSOURI PUBLIC ENTITY RISK MANAGEMENT FUNDS (MOPERM), Respondent,
v.
S.M., K.W., C.A. f/k/a C.H., JANE POE, K.S., and L.M., Appellants

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY. THE HONORABLE DANIEL R. GREEN, JUDGE.

Marshall V. Wilson and Michael G. Berry, Jefferson City, MO for MO Public Entity Risk Management Fund, respondent.

W. Bevis Schock and Hugh A. Eastwood, St. Louis, MO for Appellants.

BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE, ALOK AHUJA AND ANTHONY REX GABBERT, JUDGES. ALL CONCUR.

OPINION

Page 162

LISA WHITE HARDWICK, J.

S.M., K.W., C.A., K.S., and L.M. (" Claimants" )[1] appeal from the circuit court's grant of summary judgment in favor of the Missouri Public Entity Risk Management Fund (" MOPERM" ). The court determined that a Lincoln County Sheriff's Department lieutenant who sexually abused Claimants while he was acting as a drug court tracker is not covered under MOPERM's memorandum of coverage; therefore, MOPERM has no duty to defend or indemnify him in Claimants' federal civil rights lawsuit against him. On appeal, Claimants contend that MOPERM's memorandum of coverage is ambiguous and, as such, should be construed against MOPERM to provide coverage. For reasons explained herein, we find no error and affirm the judgment.

Factual and Procedural History

The facts underlying this appeal are undisputed. Scott Edwards, a lieutenant with the Lincoln County Sheriff's Department, served as a tracker for Lincoln County's drug court. As a tracker, Edwards supervised drug court participants. Claimants are all young, female drug court participants who were under Edwards's supervision.

In 2012, Edwards pled guilty to three felony counts and two misdemeanor counts of violations under federal law, including aggravated sexual abuse and kidnapping, for acts that occurred while he was acting as a drug court tracker. Claimants subsequently filed a petition for damages under 42 U.S.C. § 1983 against Edwards[2] in the United States District Court for the Eastern District of Missouri. In the suit, Claimants alleged that Edwards misused his position as a drug court tracker to coerce them into sexual acts and that, by

Page 163

doing so, he violated their constitutional rights.

At the time of Edwards's misconduct, MOPERM provided liability insurance coverage to Lincoln County. MOPERM is a statutorily-created risk management fund offering coverage to public entities in Missouri. § 537.705.1, RSMo 2000.[3] MOPERM set forth the terms of the policy in its memorandum of coverage. The memorandum of coverage was divided into six sections: I. WHAT MOPERM PAYS; II. MOPERM'S LIMIT OF LIABILITY; III. WHO IS A COVERED PARTY?; IV. WHAT MOPERM WILL NOT COVER (EXCLUSIONS); V. WORDS AND PHRASES WITH SPECIAL MEANING; and VI. CONDITIONS.

After Claimants filed their 42 U.S.C. ยง 1983 case, MOPERM filed this suit seeking a declaration that it has no duty to defend or indemnify Edwards for the claims asserted in the federal case because he is not a covered party under the memorandum of coverage. MOPERM then filed a motion for summary judgment. In its motion, MOPERM asserted that Edwards is not a covered party because he was not acting within the course and scope of his employment when he committed the acts of sexual misconduct alleged in Claimants' federal case. MOPERM further argued that, even if Edwards were a covered party, his acts would be excluded from coverage because they were criminal. ...


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