In the recent case of STATE OF MISSOURI, EX REL., THE SCHOOL DISTRICT OF KANSAS CITY v. HONORABLE ZHANG, WD 85738 (FEB. 7, 2023) the plaintiff, a high school student, was forcibly carried to an unlocked and unsupervised area of the school and was sexually assaulted. Plaintiff sued the School District pleading, among other causes of action that were, negligent training and supervision, negligent infliction of emotional distress and agency. The trial court ruled against the District on its motion for summary judgment on the issue of Sovereign Immunity, holding that since the District had purchased a liability policy that would cover these allegations the District waived its sovereign immunity defense. The District filed a Writ of Prohibition seeking to overturn the court’s decision and to dismiss the case.
The Western District Court of appeals held that although generally a party cannot appeal from a ruling denying a motion for summary judgment, in this instance it reasoned that “Sovereign immunity is not a defense to suit but, rather, it is immunity from tort liability altogether, providing a basis for prohibition.” The Court then took up the appeal on the merits and ruled in favor of the district.
Generally, a municipality may not be sued in tort unless an exception applies. The two exceptions set forth in §537.600. 1 allows for suit if (1) injuries result from a public employee’s negligent operation of a motor vehicle within the course of employment; and (2) where injuries are caused by a dangerous condition of the public entity’s property. Finding neither of these two exceptions applied, the Appellate court looked to a third exception found in RSMo §537.610, which provides immunity may be waived if the governmental entity procures insurance covering tort claims. However, whether the insurance policy will function as a waiver of Sovereign Immunity is wholly dependent on the policy’s express provisions. Case law is clear “that a public entity retains its full sovereign immunity when the insurance policy contains a disclaimer stating that the entity’s procurement of the policy was not meant to constitute a waiver of sovereign immunity.”
Looking at the policies at issue here the Court found one had language that provided that the policy did “not apply to any Claim to which the Insured . . . [i]s Immune under the legal doctrine of sovereign immunity; or . . . would have been immune . . . but for the Insured’s waiver of such immunity.” Another policy had similar language. The Court held this language in the policy was clear and met the legal standard for maintaining the immunity defense even though a liability policy was in place for the municipality and held that the immunity provided a complete bar to suit.
As a practical matter be aware Plaintiffs have the burden of pleading specific facts that show an exception applies to sovereign immunity, and failure to do so will result in dismissal. Also, when one of these claims comes in, always carefully read the policy to determine whether there is a waiver of immunity in the policy.