            SUPREME COURT OF MISSOURI
                                      en banc
STATE ex rel. CITY OF                           )
GRANDVIEW, MISSOURI                             )
                                                )
                           Relator,             )
                                                )
v.                                              )      No. SC95283
                                                )
THE HONORABLE JACK R. GRATE,                    )
                                                )
                           Respondent.          )

                    ORIGINAL PROCEEDING IN PROHIBITION

                              Opinion issued April 5, 2016

      Michael Green Sr., Stephanie M. Green, Stephanie N. Green, and Michael Green

(collectively "Plaintiffs") filed a lawsuit, in the underlying case, against four police

officers and the City of Grandview. The City filed a motion for summary judgment

claiming sovereign immunity. The circuit court overruled the motion, and the City

sought a writ of prohibition from the court of appeals that was denied. The City then

sought a writ of prohibition from this Court. This Court issued a preliminary writ of

prohibition that it now makes permanent.

                          Facts and Procedural Background

      Plaintiffs filed a lawsuit against four City of Grandview police officers alleging

wrongful arrest, battery, malicious prosecution and negligence. Plaintiffs joined the City

in the suit, alleging the City was vicariously liable for the actions of the officers.
Specifically, Plaintiffs alleged the City had purchased an insurance policy that contained

a provision for law enforcement liability coverage. This coverage, the Plaintiffs asserted,

waived the City's rights to sovereign immunity and allowed it to be sued up to the policy

limits, pursuant to §§ 71.185, RSMo 2000, and 537.610. 1

         The City—in lieu of filing an answer to Plaintiff's petition—filed a motion for

summary judgment claiming that, while it had insurance coverage, the insurance policy it

had purchased contained express language preserving its sovereign immunity, except as

to those claims that sovereign immunity is already waived by statute i.e., claims

involving injuries resulting from the negligent operation of motor vehicles, or injuries

resulting from dangerous conditions on government property. Section 537.600. The

circuit court overruled the motion for summary judgment.

                                       Standard of Review

         This Court has the authority to "issue and determine original remedial writs." Mo.

Const. art. V, § 4.1. This Court has issued a writ of prohibition "[w]here a defendant has

. . . sovereign immunity." State ex rel. Bd. of Trs. of City of N. Kansas City Mem'l Hosp.

v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992) (internal citations and quotation marks

omitted). Sovereign immunity is not a defense to suit but, rather, it is immunity from tort

liability altogether, providing a basis for prohibition. See Metro. St. Louis Sewer Dist. v.

City of Bellefontaine Neighbors, 476 S.W.3d 913, 921 (Mo. banc 2016) (citing the

definition of "sovereign immunity" in Black's Law Dictionary).



1
    Statutory citations are to RSMo Supp. 2013, unless otherwise noted.
                                         I. The Policy

The policy in effect at the relevant time provides:

       Section I – COVERAGES

   A. Insuring Agreement — Liability for Law Enforcement Wrongful Acts

   1. We will pay those sums that the insured becomes legally obligated to pay
      as "damages" resulting from a "law enforcement wrongful act" to which
      this insurance applies.

                                             ***

   3. This insurance applies to "damages" resulting from a "law enforcement
      wrongful act" only if the "law enforcement wrongful act" was first
      committed:
         a. By an insured in the course and scope of their "law enforcement
             activities" for you and
         b. During the policy period.

OneBeacon Insurance Policy, Relator's Exhibit N4, p. 723.

The policy later defines "an insured:"

       SECTION IV — WHO IS AN INSURED

       If you are designated in the Declarations as a governmental unit, you are an
       insured. Each of the following is also an insured but only with respect to
       your "law enforcement activity";

   1. Your current or previously elected or appointed officials, but only for the
      conduct of their duties as your elected or appointed officials.
   2. Your "employee" or "volunteer workers" but only for acts within the course
      and scope of their employment or volunteer activities by or for you;
   3. Any person or organization providing services to you under any mutual aid
      or similar agreement, but only within the scope of the mutual aid or
      agreement
   4. Owners of commandeered equipment other than an "auto" while the
      equipment is in your temporary custody and control.

Id. at 726.


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There is an Endorsement contained within the policy that expressly provides:

       THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ
                                  IT CAREFULLY.
             MISSOURI CHANGES — PROTECTION OF IMMUNITY
       This endorsement modifies insurance provided under the following:

              LAW ENFORCEMENT LIABILITY COVERAGE PART
              LAW ENFORCEMENT LIABILITY COVERAGE PART
              (CLAIMS-MADE)

       The following is added to SECTION I — COVERAGES

   A. INSURING AGREEMENT — LIABILITY FOR LAW
      ENFORCEMENT WRONGFUL ACTS

       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.

       The following is added to SECTION VI — CONDITIONS

       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.

Id. at 738.

       The plain language of the policy allows coverage to not only the City but also to

employees of the City—such as police officers—as "Insureds." The policy, however,

reserves the right of the City to raise sovereign immunity if it is provided for under the

constitution or in statutes because Missouri no longer has common law sovereign

immunity. Sovereign immunity is governed by § 537.600, which provides:

       1. Such sovereign or governmental tort immunity as existed at common
          law in this state prior to September 12, 1977, except to the extent

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         waived, abrogated or modified by statutes in effect prior to that date,
         shall remain in full force and effect; except that, the immunity of the
         public entity from liability and suit for compensatory damages for
         negligent acts or omissions is hereby expressly waived in the following
         instances:

         (1) Injuries directly resulting from the negligent acts or omissions by
             public employees arising out of the operation of motor vehicles or
             motorized vehicles within the course of their employment;

         (2) Injuries caused by the condition of a public entity's property if the
             plaintiff establishes that the property was in dangerous condition at
             the time of the injury, that the injury directly resulted from the
             dangerous condition, that the dangerous condition created a
             reasonably foreseeable risk of harm of the kind of injury which was
             incurred, and that either a negligent or wrongful act or omission of
             an employee of the public entity within the course of his
             employment created the dangerous condition or a public entity had
             actual or constructive notice of the dangerous condition in sufficient
             time prior to the injury to have taken measures to protect against the
             dangerous condition. . . .

"Missouri municipalities are not provided immunity for proprietary functions—those

performed for the benefit or profit of the municipality as a corporate entity—but are

immune for governmental functions-those performed for the common good." Southers v.

City of Farmington, 263 S.W.3d 603, 609 (Mo. banc 2008). The operation of a police

department is a governmental function whereby sovereign immunity attaches to a

municipality. See, e.g., Fantasma v. Kansas City, Mo., Bd. of Police Comm'rs, 913

S.W.2d 388, 391 (Mo. App. 1996) ("[S]overeign immunity attaches to the operation and

maintenance of a police force.").     Nonetheless, this section's benefit of sovereign

immunity can be waived—and as Plaintiffs argue was waived—pursuant to §§ 71.185

and 537.610.



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         II. The City's Insurance Policy did not Waive Sovereign Immunity

      Section 71.185.1, RSMo 2000, provides:

      Any municipality engaged in the exercise of governmental functions may
      carry liability insurance and pay the premiums therefor to insure such
      municipality and their employees against claims or causes of action for
      property damage or personal injuries, including death, caused while in the
      exercise of the governmental functions, and shall be liable as in other cases
      of torts for property damage and personal injuries including death suffered
      by third persons while the municipality is engaged in the exercise of the
      governmental functions to the extent of the insurance so carried.

Additionally, § 537.610.1, provides:

      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, . . . . 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.

Because the City had an insurance policy in effect at the time of the underlying incident,

the issue is whether that policy waived the grant of sovereign immunity provided for

under § 537.600 or whether there were terms of that policy preserving the grant of

sovereign immunity.

      This same issue was decided in State ex rel. Board of Trustees. In that case, the

plaintiffs sued the City of North Kansas City Hospital Board of Trustees for medical

malpractice because of its operation of the city's hospital, and the Board moved for


                                            6
summary judgment on the basis of sovereign immunity. 843 S.W.2d at 354. That motion

was overruled, and the Board sought a writ of prohibition from this Court. Id. This

Court made its writ permanent, holding that the Board was part of a public entity (the

City) and entitled to sovereign immunity for the governmental function of operating a

hospital. Id. at 358-59. The Board had purchased insurance policies with identical

coverage, but the policies expressly disclaimed insurance coverage for any claim that

would be barred by sovereign immunity. Id. at 360.

       Here, the same situation holds true.      The City is a municipality entitled to

sovereign immunity so long as it is engaged in a governmental function or the claims

against it do not fall within one of the statutory exceptions to immunity. The operation of

a police department is a governmental function sovereign immunity. While the City

purchased insurance coverage, the policy expressly disclaims a waiver of sovereign

immunity, and provides coverage to the City only for those claims for which sovereign

immunity has been statutorily waived. Therefore, the City did not waive sovereign

immunity when it purchased an insurance policy that disclaimed coverage for any actions

that would be prohibited by sovereign immunity. The preliminary writ of prohibition is

made permanent.



                                                        _______________________________
                                                        Zel M. Fischer, Judge

All concur.




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