578 S.W.2d 279 | Mo. Ct. App. | 1979
This appeal arises out of a wrongful death action brought by Ann Marie Bailey, mother of the decedent, against the City of St. Louis in its capacity as operator of an ambulance service. The trial court sustained the City’s motion for summary judgment based upon the doctrine of sovereign immunity. On appeal, plaintiff contends that the City was not entitled to summary judgment as a matter of law because a genuine issue of material fact existed as to whether the operation of an ambulance service was a governmental or proprietary function. Further, plaintiff claims that the City is liable in tort to the extent that it is required by statute to carry liability insurance. We affirm.
On appeal, we review the record in the light most favorable to the party against whom the judgment was rendered. Edwards v. Heidelbaugh, 574 S.W.2d 25 (Mo.App.1978); Seliga Shoe Stores v. City of Maplewood, 558 S.W.2d 328 (Mo.App.1977). We recognize that summary judgment is a harsh remedy; consequently, the moving party has the burden to show by unassailable proof that there is no genuine issue of fact. Edwards v. Heidelbaugh, supra. Yet, the party confronted by a proper motion for summary judgment may not sit idly by. Rule 74.04(e) states that the party adverse to summary judgment may not rest upon mere allegations or denials in his pleadings but must set forth, by affidavits or otherwise, specific facts which show that there is a genuine issue for trial, (emphasis added) See, Seliga Shoe Store v. City of Maplewood, supra. Plaintiff has failed to meet her burden of rebuttal and presented neither case law nor affidavits to refute those of the City. Instead, she professes that summary judgment was granted before she had the opportunity to make any meaningful discovery to establish the proprietary nature of the City’s ambulance service. However, Rule 74.04(f) provides a means by which the court may order a continuance to permit affidavits to be obtained, or depositions to be taken, or discovery to be had. We have no indication that this remedy was sought. Therefore, on what it had before it, the trial court properly determined that no question of material fact existed concerning the ambulance service’s status as a governmental functionary.
Plaintiff also argues that the trial court erred in granting summary judgment on the basis of sovereign immunity because the City was liable in tort to the extent that it was required by statute to carry liability insurance. To reach this conclusion, plaintiff adverts to §§ 190.052-190.195, RSMo Supp.1975, which regulate ambulances, am
“No ambulance license shall be issued under sections 190.100 to 190.195, nor shall such license be valid after issuance, nor shall any ambulance be operated in Missouri unless there is at all times in force and effect insurance coverage for each and every ambulance owned or operated by or for the applicant or licensee, providing for the payment of damages in an amount as prescribed by the board issued by an insurance company licensed to do business in the state of Missouri:
(1) for injury to or death of individuals in accidents resulting from any cause for which the owner of said vehicle would be liable on account of liability imposed on him by law, regardless of whether the ambulance was being driven by the owner or his agent; and
(2) For the loss of or damage to the property of another, including personal property, under like circumstances.
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(3) Every insurance policy required by the provisions of this section shall contain a provision for a continuing liability thereunder to the full amount thereon; that the liability of the insurer shall not be affected by the insolvency or the bankruptcy of the assured; and that until the policy is revoked the insurance company will not be relieved from liability on account of nonpayment of premium, failure to renew license at the end of the year, or any act or omission of the name[d] assured. Such policy of insurance shall be further conditioned for the payment of any judgments up to the limits of said policy, recovered against any person other than the owner, his agent or employee, who may operate the same with the consent of the owner.” (emphasis added)
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As this statute was in effect on October 15, 1977, plaintiff concludes first that the City was required to carry insurance on each of its ambulances. From here she seeks to make the quantum jump that the required insurance was to cover any tort committed in connection with the operation of the ambulances. Finally, plaintiff postulates that any immunity which the City may have had was waived at least up to the amount of insurance required by the State Board of Health.
The City counters that § 190.120 refers only to liability insurance for vehicular accidents and not to alleged negligent acts unrelated to the actual driving of the ambulance. We must agree. Plaintiff’s theory is not congruent with the intent of the Legislature which was to require licensees to obtain insurance coverage for “each and every ambulance,” as opposed to each and every ambulance attendant. Such insurance is intended to cover those who drive the vehicle, whether or not the owner, an agent, an employee or merely a person who operates the ambulance with consent. The accidents referred to in § 190.120 are for the negligent operation of the ambulance, not negligent or maladroit administration of emergency care as complained of by plaintiff. Consequently, § 190.120 does not provide the basis for legislative waiver of sovereign immunity. Inasmuch as plaintiff’s claim arose before August 15, 1978, the date from which sovereign immunity was prospectively abrogated, the City of St. Louis is protected from plaintiff's claim by reason of the doctrine and the reasoning
Affirmed.
. The City carries no policies of insurance § 71.185, RSMo 1969. under either § 190.120, RSMo Supp.1975 or
. Sections 537.600-537.650, 1978 Mo.Legis. Serv., effective August 13, 1978, Laws of Mo. 1978, p. -, provide for conditions of sovereign immunity and substantially modify the ef-feet of Jones v. State Highway Commission, supra, particularly to the State and its political subdivisions having insurance coverage.