Opinion
No. ED 80382
May 7, 2002
Appeal from the Circuit Court of St. Louis County, Hon. Melvyn W. Wiesman.
David Olin Kreuter, 7751 Carondelet Sutie 401, Kreuter Gordon, Clayton, MO, 63105, for Appellant.
Daniel Joseph Bruntrager, 1735 So. Big Bend Blvd., Bruntrager Billings, St. Louis, MO, 63116, for Respondent.
Introduction
Donald Amick (Appellant) appeals from the trial court's Order, Judgment and Decree of Court (judgment) granting Pattonville-Bridgeton Terrace Fire Protection District's (Respondent) Motion to Dismiss [Appellant's] First Amended Petition, and dismissing Appellant's First Amended Petition with prejudice. We reverse and remand.
Factual and Procedural Background
On June 18, 2001, Appellant filed a First Amended Petition (petition) against Respondent alleging the following. Respondent employed Appellant as a paramedic and firefighter from 1983 until 1999. Respondent fired Appellant in 1999 for filing a claim for compensation with the Labor and Industrial Relations Commission (LIRC). After being terminated, Appellant attempted to find suitable jobs in his chosen profession, but was unable to secure a position. Appellant then sought retraining in the computer field and has taken college courses in pursuit of this retraining.
Appellant claims that Respondent discharged him for exercising his rights under the Missouri Workers' Compensation Act, in violation of Section 287.270 RSMo (2000). Appellant also alleges that Respondent is covered by insurance for this act and thus there was no sovereign immunity up to the limits of that coverage.
All further statutory references are to RSMo (2000), unless otherwise indicated.
Respondent filed a Motion to Dismiss Appellant's petition, claiming that it was a validly organized fire protection district under Section 321.010, and was immune from judgment and suit under Section 537.600. Respondent also alleged that it was not covered by insurance for the act alleged by Appellant, and thus it was immune from liability.
The trial court admitted into evidence copies of the insurance policies when it considered Respondent's motion to dismiss. On October 2, 2001, the trial court granted Respondent's motion to dismiss, holding that "[A]ny insurance obtained by [Respondent] did not waive sovereign immunity under Section 537.610, RSMo or any other provision of law." This appeal follows.
Point on Appeal
Appellant asserts that the trial court erred in its decision to sustain Respondent's motion to dismiss, because Respondent waived its sovereign immunity by obtaining insurance coverage for the acts alleged in Appellant's First Amended Petition.
Standard of Review
The judgment in this case was a dismissal with prejudice. The trial court, however, considered matters outside the four corners of the petition, namely the insurance policies, which were submitted by Respondent with its motion to dismiss. The trial court gave notice to the parties that it was considering the policies, and the parties consented to the admission of the policies into the record for consideration by the court. Appellant was given the opportunity to respond, and submitted three cases in response to Respondent's motion to dismiss. Accordingly, we will treat the dismissal as a summary judgment.Deeken v. City of St. Louis, 27 S.W.3d 868, 870 (Mo.App.E.D. 2000).
"In the interest of judicial economy, we review this matter as a summary judgment, deciding if the petition stated a claim for which relief can be granted . . ." Sale v. Slitz, 998 S.W.2d 159, 162 (Mo.App.S.D. 1999). "Review in such manner is consistent with holdings that state that [sic] a motion to dismiss is ordinarily confined to the pleadings and construed in the light favorable to plaintiff, but when matters outside the pleadings are considered and not excluded by the court, the trial court shall treat the motion to dismiss as one for summary judgment." Id. See also Howard v. Armontrout, 729 S.W.2d 547, 548 (Mo.App.W.D. 1987). "Notice by the trial court is not required where a party or parties acquiesced in the trial court treating a motion to dismiss as a motion for summary judgment." Sale, 998 S.W.2d at 162. "Where the parties introduce evidence beyond that contained in the petition, . . . a motion to dismiss the petition is converted to a motion for summary judgment and the parties are charged with knowledge that the motion was so converted." Id.
In the case at bar, an affidavit and documents were submitted into evidence. Therefore, the motion to dismiss was converted to a summary judgment and in the interest of judicial economy, we will review it as such.
Deeken, 27 S.W.3d at 870.
The standard of review on appeal regarding summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). The criteria for testing the propriety of summary judgment are no different from that which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. Summary judgment will be upheld on appeal if there is no genuine dispute of material fact, and the movant is entitled to judgment as a matter of law. Id.
Discussion
It is not disputed that Appellant's cause of action for retaliatory discharge asserted against Respondent, as a political subdivision of this state, is barred by sovereign immunity. Duncan v. Creve Coeur Fire Protection Dist., 802 S.W.2d 205, 207 (Mo.App.E.D. 1991). The issue in dispute is whether Respondent purchased insurance that covers the acts of which Appellant complained in his petition, and thereby waived sovereign immunity for such acts under Section 537.610.1.
Section 537.610 is entitled "Liability insurance for tort claims may be purchased, by whom — limitation on waiver of immunity — maximum amount payable for claims out of single occurrence — exception — apportionment of settlements."
The commissioner of administration, through the purchasing division, and the governing body of each political subdivision of this state, notwithstanding any other provision of law, may purchase liability insurance for tort claims, made against the state or the political subdivision, but the maximum amount of such coverage shall not exceed two million dollars for all claims arising out of a single occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers' compensation law, chapter 287, RSMo, and no amount in excess of the above limits shall be awarded or settled upon. Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions of this section and in such amount and for such purposes provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the state.
(emphasis added). Statutory provisions that waive sovereign immunity must be strictly construed. State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621, 623 (Mo.banc 1990).
Appellant contends that Respondent has two types of insurance coverage that may apply to his claim: Emergency Service Management Liability Coverage (MLC) and MoFAD coverage (MoFAD). The MLC policy provides:
SECTION I — COVERAGES
INSURING AGREEMENTS
Coverage A — Liability for Monetary Damages
We will pay those sums that the insured becomes legally obligated to pay as monetary damages because of a 'wrongful act' to which this insurance applies.
The MLC policy defines "wrongful act" as "[A]n actual or alleged act, error or omission by or on behalf of you in the performance of your operations." Appellant maintains that the actions of Respondent alleged in his petition are clearly wrongful acts as defined by the MLC policy.
The acts alleged in Appellant's petition are clearly "wrongful acts." We find such broad language encompasses a retaliatory discharge claim, and therefore Appellant's claim falls under "the purposes covered by the [MLC] policy of insurance." Cass Medical Center, 796 S.W.2d at 623. Accordingly, we find that this language in the MLC policy waives Respondent's sovereign immunity for the acts alleged in Appellant's petition, and therefore Respondent is legally obligated to pay for the damages caused by those acts.
We recognize that the Southern District found no coverage because of sovereign immunity in State ex rel. Ripley County v. Garrett, 18 S.W.3d 504, 507 (Mo.App.S.D. 2000). In Garrett, Ripley County had purchased an insurance policy that specifically covered the acts of which the plaintiff complained, namely malicious prosecution, false imprisonment and slander. However, the policy also contained an endorsement, which provided:
"This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
. . .
The purpose of this insurance does not include coverage for any liability or suit for damages which is barred by the doctrines of sovereign or governmental immunity by whatever name, as set forth in RS MO 537.600. et. [sic] seq;
This policy is not intended to act as a waiver, nor is it a waiver of any defense . . . available to the Insured by statute or at common-law;
. . . .
All other terms and conditions remain unchanged."
The Southern District held that this endorsement "unassailably establishes that Relator, by buying Policy 954, did not waive sovereign immunity under § 537.610.1 against Plaintiff's claims in the underlying suit." Id. at 509. In the case at bar, the policy contains no endorsement. Therefore, it is distinguishable from the case set forth in Garrett.
To the extent Garrett's holding is contrary to ours, we disagree with the majority opinion and agree with the concurring opinion of Judge Shrum. He writes:
I concur in the result. I do so because of "the Endorsement" attached to Policy 954 and the analysis of the Endorsement made by the majority, including its reliance on State ex rel. Board of Trustees v. Russell, 843 S.W.2d 353 (Mo.banc 1992), and Casey v. Chung, 989 S.W.2d 592 (Mo.App. 1999). I write separately because of my disagreement with the rest of the majority opinion.
Unlike the Relator here, the political subdivisions in State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621 (Mo.banc 1990), and in Balderree v. Beeman, 837 S.W.2d 309 (Mo.App. 1992), had not purchased liability insurance coverage for the very risks for which the respective public bodies were being sued. I view that as a definitive and dispositive distinction. I do not agree that Cass and Balderree support the implicit holding of the majority that Relator would retain immunity from the plaintiff's claims after buying Policy 954 without the Endorsement. By reading the plain language of § 537.610.1, RSMo 1994, I conclude that, but for the Endorsement, Relator's purchase of insurance protection against claims of the type asserted by plaintiff was a waiver of Relator's immunity from such claims. Any other interpretation renders the coverage illusory under Section 1.B.1.a. of Policy 954.
Id. at 509.
In the case at bar, based on the language in the MLC policy, and because there is no endorsement in the policy like the one in Garrett, we find that Respondent has waived its sovereign immunity. We do not agree with the majority opinion in Garrett that even without an endorsement, Respondent would retain its immunity, because it would never become legally obligated to pay damages. Such reasoning would render the insurance coverage illusory. We agree with Judge Shrum's concurring opinion that (1) unlike the relator in Garrett, the political subdivisions in Cass Medical Center and Balderree had not purchased liability insurance coverage for the very risks for which the respective public bodies were being sued, and that is a definitive and dispositive distinction, and (2) the endorsement in Garrett was crucial in finding no waiver of immunity. There is no such endorsement in this case.
Conclusion
The judgment of the trial court is reversed and remanded with instructions pursuant to this opinion.
Lawrence G. Crahan, J., and Lawrence E. Mooney, J., concur.