STATE ex rel. BLUE SPRINGS SCHOOL DISTRICT, Relator,
THE HONORABLE JACK R. GRATE, Respondent.
Writ Division: Cynthia L. Martin, Presiding Judge, Karen King
Mitchell, Judge and Anthony Rex Gabbert, Judge
ORIGINAL PROCEEDING IN PROHIBITION
Cynthia L. Martin, Judge.
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,
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.
and Procedural Background
November 24, 2015, plaintiff ("B.Z.") initiated a
lawsuit in the Circuit Court of Jackson County
("Underlying Lawsuit") against the School District
and three individuals employed by the School District
("Individual Defendants"). 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"). 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.
petition alleged that "Defendants have purchased
liability insurance covering the type of claims made
herein." 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
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. 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,  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.
denied the School District's motion for summary judgment
on October 12, 2017. 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
Applicable to Writs of Prohibition
[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).
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.
the School District is subject to liability for
discrimination in public accommodation pursuant to section
The School District is a political subdivision and is
immune from statutory liability unless
sovereign immunity has been waived
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 directly or indirectly discriminated
against her use of a public elementary school on the
grounds of sex.
213.065.2 describes the statutory claim for discrimination in
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)).
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
[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.
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; 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).
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. "[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)).
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. 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
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
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)).
statutory definition of "person" does not mention
the state or its political subdivisions. The statutory
definition of "person" does not expressly abrogate
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.
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.
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." 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
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)); 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
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.
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