Court of Appeals of Missouri, Western District, Writ Division
STATE ex rel. BLUE SPRINGS SCHOOL DISTRICT, Relator,
THE HONORABLE JACK R. GRATE, Respondent.
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")
sought 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.
We issued a preliminary writ of prohibition. Thereafter, we
quashed our preliminary writ on the issue of whether
sovereign immunity has been abrogated for discrimination in
public accommodation pursuant to section
213.065. We made our preliminary writ of
prohibition permanent as to the common law claims asserted in
this case because the School District did not waive sovereign
immunity for common law torts by acquiring liability
Supreme Court accepted transfer of the case, and then
retransferred the case for reconsideration in light of
R.M.A. (a Minor Child) by his Next Friend, Rachelle
Appleberry v. Blue Springs R-IV School District and Blue
Springs School District Board of Education, 568 S.W.3d
420 (Mo. banc 2019).
again hold that our preliminary writ of prohibition is
quashed with respect to the claim for discrimination in
public accommodation asserted against the School District
pursuant to section 213.065, though for different reasons
than originally relied on by this court. We also again hold
that our preliminary writ of prohibition should be made
permanent with respect to the common law claims asserted
against the School District, as R.M.A. has no
bearing on that holding.
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
Lawsuit.We later quashed the preliminary writ of
prohibition with respect to the claim against the School
District pursuant to section 213.065, but made permanent the
writ of prohibition with respect to the common law claims
asserted against School District. The Supreme Court accepted
transfer of the case, then retransferred the case for
reconsideration in light of R.M.A. Our previous
opinion issued on May 1, 2018 is withdrawn.
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)).
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 is controlled by the
Supreme Court's recent decision in R.M.A., 568
S.W.3d 420, 429-30 (Mo. banc 2019). The second issue requires
us to construe an insurance policy, 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).
the School District is subject to liability for
discrimination in public accommodation pursuant to section
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.) 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,