United States District Court, W.D. Missouri.
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
Buchanan County, Missouri, Natalie Bransfield, Brian Gross,
Dan Hausman, Ron Hook, Jody Hovey, Dustin Nauman, Harry
Roberts, and Mike Strong (the “Buchanan County
Defendants”) move to dismiss Count I of the Amended
Complaint alleging wrongful death under Missouri law. Doc.
263. In response, plaintiffs Brenda Davis and Frederick
Stufflebean move for leave to amend their First-Amended
Complaint. Doc. 279. For the following reasons, the Court
grants the Buchanan County Defendants' motion to dismiss
with leave to amend.
Count I of the Amended Complaint, Plaintiffs allege that the
Buchanan County Defendants failed to provide Justin
Stufflebean appropriate medical care during the three-day
period he was incarcerated at Buchanan County Jail awaiting
transfer to the Missouri Department of Corrections, resulting
in his death. Doc. 78 (Amended Complaint), ¶¶
78-82. Plaintiffs assert their claims against defendants
Roberts, Hausman, and Hook in their official capacities,
id. at ¶ 6.b, and defendants Strong, Hovey,
Gross, Bransfield, and Nauman in their individual and
official capacities, id. at ¶¶ 7.e, 8.d,
9.e, 10.d, 11.d.
17, 2017, as part of its Rule 26 initial disclosures,
Buchanan County produced insurance policy 791-00-02-72-0005
issued by Atlantic Specialty Insurance Company (the
“Atlantic Specialty Policy”). Doc. 278
(Plaintiffs' Suggestions in Opposition to Buchanan
County's Motion to Dismiss), p. 2; Doc. 278-1 (Atlantic
Specialty Policy). The Atlantic Specialty Policy contains the
following language, which has been recognized as preserving
an entity's sovereign immunity:
We have no duty to pay damages on your behalf under this
policy unless the defenses of sovereign and governmental
immunity are inapplicable to you.
This policy and any coverages associated therewith does not
constitute, nor reflect an intent by you, to waive or forego
any defenses of sovereign and governmental immunity available
to any Insured, whether based upon statute(s), common law or
otherwise, including Missouri Revised Statute Section 537.610
or any amendments; or Missouri Revised Statute Section 71.185
or any amendments.
Doc. 278-1, p. 2.
September 26, 2017, defendant Advanced Correctional
Healthcare (“ACH”) made its Rule 26 disclosures,
producing a declaration page which did not provide a policy
number and contained no reference to additional insureds.
Doc. 278-5 (Arch Insurance Declaration). On February 9, 2018,
in response to Plaintiffs' first request for production
of documents, Buchanan County again indicated that the
Atlantic Specialty Policy was the only applicable insurance
policy which might provide coverage. Doc. 278-2 (Buchanan
County Responses and Objections to Plaintiffs' First
Request for Production of Documents), p. 5.
January 4, 2019, ACH produced insurance policy #UFL0059924-00
issued by Arch Specialty Insurance Company (the “Arch
Policy”). Doc. 278-6 (ACH Arch Policy).
April 16, 2019, the Buchanan County Defendants filed a motion
seeking partial dismissal of Count I of Plaintiffs'
Amended Complaint, Doc. 78, as barred by sovereign immunity.
Then on April 23, 2019, Buchanan County produced a
certificate of liability insurance applicable from August 1,
2015 to August 1, 2016 (“Certificate”), pursuant
to Plaintiffs' Sunshine Request. Doc. 278-9 (Certificate
of Liability). The Certificate revealed the following
coverage: Commercial General Liability coverage for $1, 000,
000 and Umbrella Liability coverage for $10, 000, 000 under
policy #S1997699, issued by Selective Insurance Group, and
“Medical Professional Liability including Civil
Rights” coverage for $1, 000, 000 under policy
#MM-825711, issued by Essex Insurance Company. Id.
The Certificate stated that “Buchanan County, MO and
the Sheriff of Buchanan County, MO are included as additional
insured under the General Liability and Professional
Liability coverage if required by contract in writing.”
April 26, 2019, Buchanan County produced the Request for
Proposal #13-0032 for Inmate Health Care Services
(“RFP”) pursuant to Plaintiffs' Sunshine
Request. The RFP mandates that the successful vendor for
inmate health care services, in this case ACH, provide a
certificate of insurance showing a $10, 000, 000 umbrella
liability policy and medical professional coverage of $5,
000, 000 per occurrence. Doc. 278-3 (RFP), p. 4, § 2.4.
The contract between Buchanan County and ACH states:
5.11.4 ADDITIONAL INSUREDS. ACH agrees to name the SHERIFF
and the COUNTY as an additional insured under the Commercial
Automobile, Commercial General, and Professional Liability
portions of insurance and provide the COUNTY with a
Certificate of Insurance specific to correctional facilities