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State ex rel. Blue Springs School District Relator v. Grate

Court of Appeals of Missouri, Western District

May 1, 2018

STATE ex rel. BLUE SPRINGS SCHOOL DISTRICT, Relator,
v.
THE HONORABLE JACK R. GRATE, Respondent.

          Before Writ Division: Cynthia L. Martin, Presiding Judge, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge

          ORIGINAL PROCEEDING IN PROHIBITION

          Cynthia L. Martin, Judge.

         The Blue Springs School District ("School District") seeks a writ of prohibition directing the circuit court ("Respondent") to take no action other than to grant the School District's motion for summary judgment. Because the posture of this case does not support the issuance of an extraordinary writ on the issue of whether sovereign immunity has been abrogated for discrimination in public accommodation pursuant to section 213.065, [1] this court's preliminary writ of prohibition is quashed with respect to that claim asserted in this case. Because the School District did not waive sovereign immunity for common law torts by acquiring liability insurance, this court's preliminary writ of prohibition is made permanent as to the common law tort claims asserted in this case.

         Factual and Procedural Background

         On November 24, 2015, plaintiff ("B.Z.") initiated a lawsuit in the Circuit Court of Jackson County ("Underlying Lawsuit")[2] against the School District and three individuals employed by the School District ("Individual Defendants").[3] B.Z. alleged that while she was a kindergartner, she was sexually harassed and assaulted by other students at her elementary school. Count I of B.Z.'s petition alleged discrimination in public accommodation pursuant to section 213.065 of the Missouri Human Rights Act ("MHRA").[4] Count II of the petition alleged the tort of negligent supervision/breach of ministerial duties. Count III of the petition alleged the tort of breach of fiduciary duty/confidential relationship. All three Counts named the School District and the Individual Defendants as defendants.

         B.Z.'s petition alleged that "Defendants have purchased liability insurance covering the type of claims made herein."[5] The School District's answer alleged that the petition failed to state a claim for public accommodation discrimination, and that the School District had not waived sovereign immunity by acquiring insurance.[6]

         The School District filed a motion for summary judgment. The School District alleged that Count I of B.Z.'s petition failed to state a claim because political subdivisions are not "persons" who can be liable for public accommodation discrimination pursuant to section 213.065. The School District's motion also alleged that its sovereign immunity for the common law torts alleged in Counts II and III of the petition was not waived by the acquisition of liability insurance.[7] Though it is uncontroverted that the School District was insured by Missouri Public Entity Risk Management Fund ("MOPERM") when the acts and omissions giving rise to B.Z.'s petition are alleged to have occurred, [8] the parties dispute whether that policy afforded the School District coverage for the claims alleged against it in Counts II and III of the petition.

         Respondent denied the School District's motion for summary judgment on October 12, 2017.[9] On November 1, 2017, the School District filed a petition for writ of prohibition alleging that section 213.065 of the MHRA does not authorize a cause of action for discrimination in public accommodation against political subdivisions of the state, and that sovereign immunity was not waived for the common law tort claims alleged in Counts II and III of the petition by the acquisition of insurance. After requesting suggestions from the Respondent, this court issued a preliminary writ of prohibition directing that Respondent take no further action as to the School District in the Underlying Lawsuit.[10]

         Standard Applicable to Writs of Prohibition

         "This [c]ourt has discretion to issue and determine original remedial writs." State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227, 230 (Mo. banc 2017). "'The extraordinary remedy of a writ of prohibition is available: (1) to prevent the usurpation of judicial power when the trial court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.'" Id. (quoting State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41, 45 (Mo. banc 2017)). "'Prohibition is particularly appropriate when the trial court, in a case where the [pertinent] facts are uncontested, wrongly decides a matter of law thereby depriving a party of an absolute defense.'" State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002) (quoting State ex rel. City of Marston v. Mann, 921 S.W.2d 100, 102 (Mo. App. S.D. 1996)).

          "Normally, we are reluctant to utilize the writ [of prohibition] for the purposes of reviewing a denial of summary judgment or to correct trial court error." State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 500 (Mo. App. E.D. 1985). However, "[p]rohibition is generally the appropriate remedy to forestall unwarranted and useless litigation." Id. (citing State ex rel. New Liberty Hosp. Dist. v. Pratt, 687 S.W.2d 184, 187 (Mo. banc 1985)). "Forcing upon a defendant the expense and burdens of trial when the claim is clearly barred is unjust and should be prevented." State ex rel. Howenstine v. Roper, 155 S.W.3d 747, 749 (Mo. banc 2005) (citing O'Blennis, 691 S.W.2d at 500), abrogated on unrelated grounds by Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008). 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." O'Blennis, 691 S.W.2d at 500; see also State ex rel. New Liberty Hosp. Dist., 687 S.W.2d at 187 (holding that where "appeal fails to afford adequate relief, prohibition is the appropriate remedy to forbear patently unwarranted and expensive litigation, inconvenience and waste of time and talent"). Thus, prohibition is an appropriate remedy when "a defendant is clearly entitled to immunity." State ex rel. Bd. of Trs. of City of North Kansas City Mem'l Hosp. v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992). And prohibition is an appropriate remedy where a petition fails to state a viable theory of recovery, entitling the relator to be dismissed. State ex rel. Henley v. Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009); State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 81-82 (Mo. banc 2008). However, "[a] writ of prohibition does not issue as a matter of right. 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." Derfelt v. Yocom, 692 S.W.2d 300, 301 (Mo. banc 1985) (internal citation omitted).

         Analysis

         This writ proceeding requires us to resolve two issues: (i) whether the School District, a political subdivision, is a "person" subject to liability for public accommodation discrimination pursuant to section 213.065; and (ii) whether the School District's MOPERM policy waived sovereign immunity for the common law torts alleged in Counts II and III of B.Z.'s petition by affording the School District coverage. The first issue requires us to construe a statute, a question of law. Delta Air Lines, Inc. v. Dir. of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995). The second issue requires us to construe an insurance policy, also a question of law. Seeck v. Geico General Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). We review questions of law de novo. Mantia v. Mo. Dep't of Transp., 529 S.W.3d 804, 808 (Mo. banc 2017).

         I.

         Whether the School District is subject to liability for discrimination in public accommodation pursuant to section 213.065

         (i) The School District is a political subdivision and is immune from statutory liability unless sovereign immunity has been waived

         Count I of B.Z.'s petition alleges discrimination pursuant to the MHRA, and specifically, discrimination in public accommodation pursuant to section 213.065. B.Z. alleges that the School District[11] directly or indirectly discriminated against her use of a public elementary school[12] on the grounds of sex.

         Section 213.065.2 describes the statutory claim for discrimination in public accommodation:

It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person, or to attempt to refuse, withhold from or deny any other person, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, as defined in section 213.010 and this section, or to segregate or discriminate against any such person in the use thereof on the grounds of race, color, religion, national origin, sex, ancestry, or disability.

(Emphasis added.) Although discrimination claims pursuant to the MHRA are of statutory origin, they sound in tort. State ex rel. Diehl v. O'Malley, 95 S.W.3d 82, 87-88 (Mo. banc 2003) (holding that a claim under the MHRA is analogous to a tort claim for purposes of the right to trial by jury); Soto v. Costco Wholesale Corp., 502 S.W.3d 38, 57-58 (Mo. App. W.D. 2016) (holding that MHRA claims sound in tort for purposes of determining the statutory rate of post-judgment interest) (citing Bowolak v. Mercy E. Comtys., 452 S.W.3d 688, 704 (Mo. App. E.D. 2014)).

         Section 213.065.2 limits those who can be liable for discrimination in public accommodation to "any person." Under the MHRA, the term "person" is statutorily defined as follows:

[I]ncludes one or more individuals, corporations, partnerships, associations, organizations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, trustees, trustees in bankruptcy, receivers, fiduciaries, or other organized groups of persons.

Section 213.010(14). The School District alleges that it is a political subdivision, and that political subdivisions are not included in the statutory definition of "person." As such, the School District alleges it is not a "person" subject to liability for discrimination in public accommodation pursuant to section 213.065.2. This issue of statutory construction is one of first impression in Missouri.[13]

         To determine whether the School District is a "person" subject to liability pursuant to section 213.065.2, we must "ascertain the intent of the legislature from the language used and [] consider the words used in their ordinary meaning." Macon Cty. Emergency Servs. Bd. v. Macon Cty. Comm'n, 485 S.W.3d 353, 355 (Mo. banc 2016). Relevant to ascertaining legislative intent, however, is the settled principle "'that the state, by reason of its sovereign immunity, is immune from suit and cannot be sued in its own courts without its consent.'" Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 921 (Mo. banc 2016) (quoting State ex rel. Eagleton v. Hall, 389 S.W.2d 798, 801 (Mo. banc 1965)). "In other words, sovereign immunity applies to the government and its political subdivisions unless waived or abrogated or the sovereign consents to suit." Id. (citing Bush v. State Hwy. Comm'n, 46 S.W.2d 854, 857 (Mo. 1932) ("The proposition that the state is not subject to tort liability without its consent is too familiar to deserve extended citations")). "School districts are political subdivisions of the state . . . ." Hughes v. Civil Serv. Comm'n, 537 S.W.2d 814, 815 (Mo. App. 1976) (citing section 70.210(2), RSMo 1969;[14] State ex inf. McKittrick v. Whittle, 63 S.W.2d 100, 102 (Mo. banc 1933) (other citations omitted)). "A school district, or a district board of education or of school trustees, or other local school organization, is a subordinate agency, subdivision, or instrumentality of the state, performing the duties of the state in the conduct and maintenance of the public schools." State ex inf. McKittrick, 63 S.W.2d at 102; see also Byrd v. Bd. of Curators of Lincoln Univ., 863 S.W.2d 873, 876 (Mo. banc 1993) (superseded on other grounds by statute); P.L.S. ex rel. Shelton v. Koster, 360 S.W.3d 805, 813 (Mo. App. W.D. 2011, modified Jan. 31, 2012).

         "[I]n the absence of an express statutory exception to sovereign immunity, or a recognized common law exception such as the proprietary function and consent exceptions, sovereign immunity is the rule and applies to all suits against public entities . . . ." Metro. St. Louis Sewer Dist., 476 S.W.3d at 921-22. Here, the only exception to sovereign immunity argued by B.Z. is that the word "person" as used in section 213.065.2 and defined in section 213.010(14) includes the state and its political subdivisions.[15] "[S]tatutory provisions that [are alleged] to waive sovereign immunity must be strictly construed." Id. at 921; see also Bartley v. Special Sch. Dist., 649 S.W.2d 864, 868 (Mo. banc 1983) (holding that "we are bound to hold that statutory provisions that waive sovereign immunity must be strictly construed") (superseded on other grounds by statute). "'[S]trict construction of a statute presumes nothing that is not expressed.'" Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 381 (Mo. banc 2014) (quoting Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App. W.D. 2010)).

         Thus, in resolving whether political subdivisions like the School District are a "person" who can be sued for discrimination in public accommodation pursuant to section 213.065.2, we necessarily begin with the proposition that the state and its political subdivisions enjoy sovereign immunity from liability for discrimination in public accommodation unless sections 213.010(14) and section 213.065.2 expressly waive sovereign immunity.[16] Metro. St. Louis Sewer Dist., 476 S.W.3d at 921-22.

          (ii) The statutory definition of "person" set forth in section 213.010(14) does not include the state and its political subdivisions within its scope

         Section 213.065.2 limits the imposition of liability for discrimination in public accommodation to "any person" who directly or indirectly engages in one of the described discriminatory practices. Unless the word "person" includes the state and its political subdivisions within its scope, section 213.065.2 does not expressly abrogate sovereign immunity for discrimination in public accommodation.

         As noted, the word "person" is statutorily defined in section 213.010(14). "'The statutory definition [of a word] should be followed in the interpretation of the statute to which it relates and is intended to apply and supersedes the commonly accepted dictionary or judicial definition and is binding on the courts.'" State v. Myers, 386 S.W.3d 786, 794 (Mo. App. S.D. 2012) (quoting State v. Harris, 156 S.W.3d 817, 822 (Mo. App. W.D. 2005)).

         The statutory definition of "person" does not mention the state or its political subdivisions. The statutory definition of "person" does not expressly abrogate sovereign immunity.

         Respondent counters that the statutory definition of "person" includes "one or more individuals" and "corporations, " and argues that the School District would qualify as either. Respondent's argument ignores, however, that the School District is a political subdivision that enjoys sovereign immunity unless that liability is expressly waived. The question we must answer, therefore, is not whether the School District, viewed without regard to its status as a political subdivision, is made up of "one or more individuals" or is a "corporation, " but is instead whether general terms like "one or more individuals" and "corporation" can be permissibly construed to include the state and its political subdivisions within their scope, particularly when the effect of doing so would be to abrogate sovereign immunity.

         Missouri courts have consistently refused to conclude that the state and its political subdivisions are included within the scope of general, nonspecific terms used in a statute. For example, in St. Joseph Light & Power Co. v. Nodaway Worth Electric Cooperative, Inc., a statute prohibited an electric power supplier from providing power to "any person" already receiving power from another electrical power supplier. 822 S.W.2d 574, 576 (Mo. App. W.D. 1992). The issue was whether a school district was a "person" pursuant to the statute, and thus a customer prohibited from switching electric power suppliers. Id. at 576. Section 394.315.1(1) defined "person" as "a natural person, cooperative or private corporation, association, firm, partnership, receiver, trustee, agency, or business trust." Id. at 575. We concluded that school districts do not fall within this definition. Id. at 577. Specifically, we held that school districts "are not within the common definition of agency." Id. at 576. We concluded that the definition of "person" set forth in section 394.315.1, having not expressly included the state and its political subdivisions and agencies, could not be read to have done so through use of the general term "agency." Id. at 576-77.

          The same result has been reached with respect to the general term "corporation." "Our Constitution and statutes consistently recognize the difference between private business corporations and municipal corporations."[17] Hunt v. St. Louis Hous. Auth., 573 S.W.2d 728, 730 (Mo. App. 1978) (holding that a municipal corporation is not a "corporation" when that term is used in a statute).

"In definition and legal classification and terminology a well-settled distinction exists, and is recognized generally, between a 'corporation' and a 'municipal corporation.' Each term has a distinct and commonly accepted meaning. . . . [] Reverting to statutory language in this state, the term 'corporation' is used and refers to private and business corporations . . . . Likewise where the term 'corporation' is used in our Constitution it uniformly refers to private or business organizations of individuals. . . . [T]he meaning commonly ascribed to the word 'corporation' both in popular usage and legal nomenclature and absence of language indicating a legislative intent to use it in a different sense we must assume it was used in its ordinary and commonly understood meaning and the assumption legitimately follows that had the Legislature intended to include a municipality in the act it would have done so by specific language to that effect."

Id. at 731 (quoting City of Webster Groves v. Smith, 102 S.W.2d 618, 619-20 (Mo. 1937)). This principle was reaffirmed in State ex rel. Ormerod v. Hamilton, where our Supreme Court held that "[u]nless otherwise specified, where the term 'corporation' is used in our statutes and Constitution it uniformly refers to private or business organizations, not to public corporations." 130 S.W.3d 571, 572 (Mo. banc 2004) (citing City of Webster Groves, 102 S.W.2d at 619; Cas. Reciprocal Exch. v. Mo. Emp'rs Mut. Ins. Co., 956 S.W.2d 249, 253 (Mo. banc 1997))[18]; see also Haggard v. Div. of Emp't Sec., 238 S.W.3d 151, 154-55 (Mo. banc 2007) (holding that the Division of Employment Security is a state agency, and thus not a "corporation, partnership or other business entity authorized by law" for purposes of Rule 5.29(c)).

         We thus reject Respondent's contention that general phrases such as "one or more individuals" or "corporations" included in the statutory definition of "person" can be permissibly construed to include the state and its political subdivisions within their scope, particularly as the effect of doing so would be to abrogate sovereign immunity when no such intent is expressed.

         Respondent next argues that the School District is a "person" because the statutory definition includes a catchall for "other organized groups of persons." Respondent argues that because the definition of "person" includes "individuals, " and the School District is an organized group of individuals, we must conclude that the School District is a "person." Respondent's argument disregards the discussion above, that a statutory waiver of sovereign immunity must be express, and that general terms and phrases are not subject to a construction that includes the state and its political subdivisions, particularly where a statute is alleged to waive sovereign immunity. Moreover, Respondent's argument is logically and legally flawed. The phrase "organized group of persons" uses the defined term "person." The scope of the catchall phrase is thus limited to an organized group of those who otherwise qualify as a "person" under the statutory definition. The School District, a political subdivision, is not "one or more individuals" or a "corporation, " as we have ...


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