State Ex Rel. Missouri Highway & Transportation Commission v. Appelquist

judgment The is re- partition. occurred claim for disharmony no Apparently Wayne's parties until after remanded with di- among the versed and cause yet had not been in 1978. The land appel- death to reinstate rections to the trial court corpo- and the developed by Duncan-Lorch par- crossclaim for lant’s counterclaim and “paid not been back.” ration had appropriate action there- tition and to take on, opinion. this all consistent with $10,000 Although pay the initial A Rayfields for Tract was ment to the It is so ordered. corpora drawn on the made with a check account, it a if not ines tion reasonable PREWITT, C.J., TITUS, MAUS and $10,000 repre capable inference that CROW, JJ., concur. corporation to Dun sented a loan from special The minutes of the can-Lorch. of directors of the

meeting of the board 4,1981, support that

corporation August hold

inference. Authorities cited earlier grantee of land borrows when pay a lender uses it to

money from resulting trust arises in

purchase price, no the lender. favor of ex rel. STATE of Missouri MISSOURI partner in Duncan-Lorch but Lorch was AND HIGHWAY TRANSPORTATION corporation. he had no interest in the The COMMISSION, Relator, money consideration for Tract A was bor- corpora- rowed Duncan-Lorch from the tion, Duncan-Lorch had “true owner- but APPELQUIST, Judge of Honorable J.A. consideration,” ship of the Davis v. Rob- County, the Circuit Court Greene erts, supra, corporation and the had none. 2, Respondent. Division If the deed to Tract A had taken in been No. 13956. partners the names of the four of Duncan- Lorch, resulting no trust would arisen have Appeals, Missouri Court corporation. Although favor of the District, Southern deed taken in the names of wives Division Two. partners partners rather than the Aug. 1985. themselves, there is no issue here whether might such a trust have arisen favor Rehearing or Transfer Motion for comprising the four men Duncan-Lorch Denied Oct.

whether such a trust not arise for the did Application to Transfer Denied respective spouses reason that their were Nov. grantees. resulting trust corporation’s claim of heavy it

fails because did not sustain the proof imposed upon it. Indeed

burden dictate, permits, if

the evidence it does not finding resulting of a nonexistence

trust. appellant

This court holds that Lorene

owns, common, an undivid- as a tenant B) (minus interest in Tract A Tract

ed ¼ parties no interest

and that the other have interest,

in said undivided ¼ and the trial holding That er-

court erred otherwise. ruling court

roneous also caused the trial cross- deny appellant’s counterclaim and Springfield, respon- Ansley,

Donald & dent.

CROW, Judge. prohibition original proceeding This parents arises from a suit which injured in a ve- young fatally man motor highway hicle on a Missouri seek collision in that damages for his death. Defendants (“the case”) underlying are Forrest suit Lewis, Nolen driver of a “tractor-trailer occupied unit” that collided with vehicle decedent, Supply National Oil & by the Inc., alleged employer of Lewis Company, driving. unit he and owner of the Oil, third-party as Lewis and National plaintiffs, third-party petition filed a naming third-party de- underlying case seg- the contractor who built fendants the collision oc- highway ment of where Highway and and the Missouri curred (“the Transportation Commission Commis- alleged sion”). third-party petition unit was on the that if the tractor-trailer highway time of wrong side of the at the (as charged by parents of the impact decedent), an “accumulation it was because highway caused Lewis of water” on unit and of the tractor-trailer lose control path of the jackknife” it to into the “caused The accumulation of vehicle. decedent’s water, third-party petition, according to the negligence from the Commission’s resulted construction, inspection design, the collision highway of the maintenance petition also attrib- third-party site. The negli- presence uted the water contractor, but no part of the gence on the are in- the contractor regarding issues proceeding. prohibition in this volved here, third-party peti- pertinent As Oil, if Lewis or National tion averred that both, plaintiffs, to the were found liable “a determination should be there in caus- of the Commission relative fault” damages. In the alterna- ing plaintiffs’ any re- tive, third-party petition, said for the or National Oil sponsibility of Lewis responsi- son is the plaintiffs’ death of Pruett, Ring, Philip R. Jeffer- Bruce A. it the extent “to bility of the Commission City, son for relator. cover- procured has appli- self-insurance, Price, pursuant age or E. Rex Ansley, John David W. the laws fault under Fisher, Whiteaker, comparative McCall, Mc- cation Woolsey, of the State of and would be third-party petition miss the as to the Com- subject fault, apportionment alloca- mission. fault, pursuant

tion of and contribution preliminary prohibit- We issued a order applicable comparative laws, fault or in the ing respondent proceeding from further alternative, would be lia- [the Commission] Thereafter, the Commission. ble to and National for the [Lewis Oil] fashion, timely respondent1 any judgment entire amount of entered filed a motion to dismiss the Commission’s against [them], fees, including attorney liti- and, petition prohibition for writ of contem- gation expenses, damages, and court therewith, poraneously filed an answer to costs.” petition. said took the We motion to dis- miss with case. The Commission filed a motion to dismiss third-party petition. The motion al- Prior to Highway Jones v. State Com- leged that the Commission “is immune mission, 557 S.W.2d 225 recovery by from suit or virtue of the doc- Highway Commission, predeces- State sovereign trine of excep- and no sor of the Highway Transpor- Missouri and except provid- tion exists to this doctrine as Commission, tation was shielded from tort in seq. ed sections 587.600 et The RSMo.” liability by sovereign the doctrine of immu- explained motion that the had Commission nity. Bush Highway v. State Commis- immunity against not waived its suit or sion, 843, (1932); 329 Mo. 46 S.W.2d 854 recovery in that no insurance ex- Co., Rector v. Tobin Construction 351 indemnify ists would the Commission 816, (Mo.App.1961),opinion S.W.2d 820[2] against any judgment plaintiffs for the or (Mo. 377 S.W.2d 409 banc after transfer Furthermore, Lewis or National Oil. said 1964); Manley Highway v. State Commis- motion, plan no self-insurance exists sion, 619, (Mo.App.1935). 82 S.W.2d 620[2] indemnity. for such The motion was Jones, however, abrogated the doctrine of accompanied by an affidavit of the Com- sovereign immunity prospectively as to all , verifying mission’s chief counsel that the 15, arising August tort claims on or after Commission has no insurance and Jones, 1978.2 557 S.W.2d at 231[11]. plan. no self-insurance Assembly in judge The circuit before whom the under- C.C.S.S.S.S.C.S.H.S.H.B. Laws lying pending case is denied the Commis- 982-85, (“the pp. August effective 1978 sion’s motion to dismiss. The Act”), Commission 1978 nullified the effect of Jones promptly prohibition proceeding filed modification, this reestablishing, with some us, praying commanding with for"an order doctrine of as it exist- (a) judge (“respondent”) said prior refrain 1 ed to Jones. Section of the 1978 (codified proceeding against 19783), from further the Com- Act § case, (b) in underlying marginally,4 mission dis- set out and Section 2 of the effect; that, representing except 1. Counsel Lewis and National Oil in full force and the im- underlying represent respondent munity public entity in case from prohibition proceeding. compensatory damages negligent this suit for for hereby expressly acts or omissions is waived Sovereign immunity abrogated was instanter following instances: as to the tort claims in Jones the three other "(1) resulting Injuries directly neg- from the simultaneously cases decided therewith. ligent by public employees acts or omissions 231[11]; 557 S.W.2d at Re- Fowler v. Board of arising operation out of the of motor vehicles gents University, Central Missouri State 637 employment; within the course of their (Mo.App.1982). 353 “(2) Injuries by of a caused condition public entity’s property plaintiff if the estab- 3. All references to statutes are to RSMo 1978. property dangerous con- lishes that the was provides: injury injury, 4. Section 537.600 at the time of the that the dition directly dangerous from the condi- sovereign governmental resulted im- “Such tort tion, dangerous created a munity that the condition state as existed at common law in this reasonably September except foreseeable risk of harm of the prior incurred, waived, injury abrogated and that kind of which was extent or modified stat- date, negligent wrongful prior a act or omission in effect to that shall remain either utes an action 537.610), (Mo.App.1983), in 292 (codified as set out 1978 Act § damages allegedly caused pertinent to the dis- part marginally,5 are Commission high- public in a dangerous us. a condition pute before injured parties could not way, held that the District Reorganized v. School Winston they pleaded proved unless recover (Mo. 1982), R-2, held banc 636 S.W.2d applica- had insurance that the Commission sovereign immu- limiting the waiver of the claim. ble to expressly de- nity situations to the two “(1)” “(2)” of scribed subsections Highway and v. Missouri Hohimer Const, did not offend U.S. Commission, § Transportation Const, (1945). I, 2 art. amend. XIY or Mo. re- (Mo.App.1983),another case where damages allegedly covery sought for was Special District St. Bartley v. School public in a by dangerous condition caused County, 649 S.W.2d Louis in fa- upheld summary judgment highway, 537.600 and held that under §§ ground on the vor of the Commission 537.610, sovereign immunity waived suit un- was immune from the Commission expressly provid- in the two situations only immunity in der the doctrine of 537.- ed in subsections instances, indemnify it insurance to and, that it had no even those two entity plaintiffs. had judgment favor of to the extent from purposes. liability insurance for such holdings, resource- Undismayed by these Schoemehl, three theo- Best ful offer counsel against the 743[4, (Mo.App.1983),a suit denial respondent’s of justification ries in 5] City Board of Police Commissioners the to dismiss the motion of Commission’s by caused injuries allegedly for of St. Louis theory first third-party petition. The vehicle negligent operation of a motor the by Bartley was “modified” Gustafson Board, held that the by employee of the an Benda, 11 of action in petition failed to state a cause contrib- the doctrines of supplanted Board had allege that it failed to that the chance, and clear utory negligence, last liability covering such purchased insurance comprehen- negligence with humanitarian Board had an occurrence or that the fault. 661 comparative system of sive plan for such adopted any self-insurance say counsel Gustafson, S.W.2d 16[4]. purpose. recognized that “fairness respondent, for by joining achieved can best be justice” and Trans- Talley Highway v. Missouri single law- in a Commission, parties to a transaction 659 all portation S.W.2d RSMo, law, chapter and no pensation employee public entity the within the of an of limits shall be danger- of the above employment amount in excess created the course of his Sovereign upon. immuni- public entity or awarded or settled or a had actual ous condition political and its dangerous ty of Missouri condi- for the state constructive notice only to the maximum injury is waived prior to subdivisions time tion in sufficient purposes covered the against protect amount of measures to have taken pursu- purchased by policy of insurance dangerous such condition.” and in provisions of this section ant to the part: provides, pertinent provided purposes 5. Section 537.610 and for such amount such by duly adopted plan any self-insurance administration, of "1. The commissioner any political governing body subdivision division, gov- through purchasing and the state. erning body political subdivision of of each and its of the state "2. The state, provi- notwithstanding any other this scope sections claims within entities on law, may purchase insurance sion of eight hun- not exceed to shall 537.600 or the the state for tort claims made arising claims dollars for all subdivision, thousand dred political the maximum but single or occurrence accident out of a coverage not exceed such shall amount of dol- hundred thousand exceed one not claims shall eight dollars for all hundred thousand single person accident in a one single lars for occurrence, arising and shall of a occurrence out governed except claims for those thousand dollars not exceed one hundred workmen’s provisions the Missouri any rence, person single or occur- in a accident one law, chapter RSMo. compensation governed except claims for those corn- provisions of the Missouri workmen’s suit for comparison of the fault of all Kendall also cited Whitehead & Kales for concerned. See: 661 S.W.2d at 15. Ac- proposition in adjudicating issues cording respondent, to counsel for dismiss- indemnity or contribution between tort- ing the third-party petition as to the Com- feasors, thing the essential attempt is the mission the underlying case would be persons to be fair subjected as between “inconsistent purpose joining with the Kendall, legal liability. common parties all to an action as enunciated in S.W.2d at 179. Gustafson.” moreover, Gustafson, dispute was not a We are unconvinced that Gustafson between regarding ap- several tortfeasors impaired Bartley’s construction of 537.- §§ portionment of injured party’s fault for an 600 and Bartley 537.610. held that statu damages, but was instead a suit one tory provisions that waive immu plaintiff against one arising defendant nity strictly must be construed. from a collision a motorcycle between S.W.2d at Bartley also held that 868[11]. an automobile. Act, enacting the 1978 the General As sembly of Missouri intended to reasons, reestablish For the above we hold that Gus- doctrine of as it supplies no respondent’s basis for tafson prior existed any exceptions with denial of the Commission’s motion to dis- being its status in the 1978 Act. third-party petition. miss the at 870. Given the narrow con struction of 537.600 and §§ separate As a element of their first Supreme in Bartley, Court Missouri theory, respondent argue unpersuaded Supreme are that the Court in Bartley did not con intended, by its in Gustafson, decision Assembly, sider whether the General governmental entity allow a shielded from providing intended that tort liability by sovereign immunity under types for the specified two of claims the 1978 Act joined party to be as a in a subsections 537.600 be tort case for purpose adjudicating its mandatory discretionary. Counsel for share of damages sustained respondent suggest Supreme the injured the party. Court, assumed, deciding in Bartley, but Indeed, points out in Gustafson hold, 537.610.1, not pur did that under § Maryland Heights State ex rel. Concrete chasing liability providing insurance or Contractors, Ferriss, Inc. v. discretionary. self-insurance was That as (Mo. 1979), Supreme 489 banc Court of sumption, according respon to counsel for recognized Missouri statutory immuni- dent, interpre was erroneous. The correct ty employers compensation in workers’ 537.610.1, say tation of counsel for re § cases and declined party to leave them as a spondent, political is that each subdivision purpose defendant for the sole of determin- purchase liability the State must either ing comparative their Gustafson, fault. adopt plan insurance or a self-insurance 661 S.W.2d at 14. also notes Gustafson covering types specified of claims in Sears, Co., that in Kendall v. Roebuck and “(1)” “(2)” subsections 537.600. § (Mo. 1982), 634 S.W.2d 176 banc the Su- is, provide That the choice is not to whether preme Court reaffirmed its commitment to insurance; merely the choice is which of parental immunity keep and declined to providing the two methods to use in it. parent party in damage of a suit for the pur political Failure of a subdivision to purpose determining comparative his adopt chase insurance or a self-in Gustafson, fault. 661 S.W.2d at Ken- would, plan according surance to counsel dall, citing Missouri Railroad Co. Pacific political respondent, expose subdivi Co., v. Whitehead & Kales 566 S.W.2d 466 up the limits in sion to right held that types of the de 537.610.2 for claims indemnity presupposes § non-contractual ac- “(2)” “(1)” in scribed subsections negligence parties tionable of both toward Kendall, party. a third S.W.2d 537.600. § purview. 636 at 328. Re- disagree. indisput- makes it ture’s Bartley We argue sover- that inasmuch as ably spondent’s clear that under counsel prior to eign guide as it existed Jones contains no standards to 537.610.1 § effect, subject remains in full force and political governing bodies of the State’s exceptions limited carved out only to the whether, deciding in or to subdivisions (subsections exceptions the Act. Those extent, sovereign immunity, what to waive “(2)” 537.600) “(1)” opera- become § it is invalid. entity to the extent the “only tive why 537.610.1is inval- Another reason § for such purchased liability has insurance id, respondent, is according to counsel at 868. purposes.” Bartley, 649 S.W.2d person injured if is under circum- find that the Bartley states: “[W]e “(1)” in stances described subsections pri- it existed exceptions to the doctrine as “(2)” political 537.600 and subdivi- § 537.- or to are those contained Jones § responsible injury for the has insur- sion 600(1) (2) operation of motor vehicles and — recourse, ance, if injured party has but property modified and condition of —as political subdivision has chosen not been ac- when insurance has § insurance, injured person no have has (Emphasis 649 S.W.2d at 870. quired.” counsel, This, say respondent’s recourse. added). message clear: no Bartley’s is two results in discrimination between insurance, no waiver. people, injured those insured classes cham- dissenting opinion Bartley The injured and those political-subdivisions by counsel for pions position embraced dis- political subdivisions. Such uninsured respondent majority concedes that the but crimination, counsel, “equal insist violates opinion rejects it. at 871. Id. Const, protection guaranties” of U.S. theory by respon- Const, first tendered I, art. amend. XIV and Mo. § dent’s counsel is without merit. (1945). theory by counsel The second relied on attacks These constitutional Bartley’s interpre- that if is require us to consider whether 537.610.1 § correct, tation of 537.610.1 be then that § proceeding, as jurisdiction have of this we section, body empowering governing appellate are mindful that exclusive political of each subdivision State involving the jurisdiction in all cases validi purchase liability adopt insurance or a self- of this lies ty of a statute State (and plan thereby decide whether Mo. of Missouri. Const. or to what extent its 1982);6 V, (1945, ex amended State art. specified in the instances waived subsec- Mehan, rel. Jordon v. 537.600) tions is an however, proceeding, (Mo.App.1980). This delegation legisla- “unconstitutional by by appeal, instead did not reach us but power the ture’s state’s administrative original remedial writ. application for an Winston, 324, Citing 636 S.W.2d bodies.” jurisdiction under Consequently, we have 354, Fowler, coun- and S.W.2d Const, (1945, V, 4.1 amended Mo. art. § sovereign immunity of sel insist that the though of the issues resolution even may waived the State and its entities be validity may require a determination of by offi- only by Assembly, not the General Jordon, at 725- of a statute. cers, employees agents or of State. Crain, 308 26[1]; rel. v. State ex Coffman underscore the statement Win- Counsel ex (Mo.App.1958);State 454[7] limits, constitutional a sov- that within ston Crain, 301 S.W.2d v. City rel. of Mansfield condi- ereign may prescribe the terms and 415, 417-18[1, (Mo.App.1957). 2] sued, may and the it be tions under which by theory tendered Implicit in the second immunity, and to what to waive decision assumption that waived, legisla- respondent’s counsel is is lies within extent it Const, V, 1982) involving validity (1945, of a ... statute ... cases art. amended § Mo. state_” supreme part: court pertinent "The of this provides, in appellate jurisdiction in all exclusive shall have if 537.610.1 be held unconstitutional Consequently, “(1)” “(2)” § subsections and counsel, either of the reasons by advanced of essentially insepa- 537.600 are so and § “(1)” “(2)” subsections rably 537.610.1, and of 537.600 connected with and so § § it, dependent upon remain force and unconditionally presume waive that we cannot sovereign that the Assembly in the General would have en- instances therein “(1)” “(2)” acted and described. subsections 537.- § enacting 600 without 537.610.1. § reject assumption. We Section contrary, On the it is evident provides: 1.140 to us from legislative intent as determined provisions every “The statute are Bartley Assembly that the General would any provision severable. If of a statute “(1)” not have enacted subsections by competent jurisdic- found court of “(2)” 537.600 if Assembly the General § unconstitutional, remaining tion to be had believed that 537.610.1 would be de- § provisions of the statute are valid unless clared invalid. The Assembly obvi- provisions the court finds the valid ously intended nullify the 1978 Act to essentially statute are and inseparably so the effect of Jones and to reestablish the with, dependent upon, connected and so doctrine of immunity except in provision pre- the void that it cannot be “(1)” the instances described subsections legislature sumed the would have enact- “(2)” as limited § provisions ed valid without the void 537.610.1. § one; or unless court finds that the alone, provisions, standing valid in- are holding in Bartley Given complete incapable being and are exe- “(1)” “(2)” subsections 537.600 § cuted in legislative accordance with the sovereign immunity only waive to the ex intent.” tent insurance is for such 537.610.1, purposes under we are con § right uphold The test 1.140,Enright vinced that under and Au § law, invalid, portions may some of which be “(2)” County, drain subsections so, in doing separat is whether or not after of 537.600 cannot remain if viable 537.- § § ing invalid, that which is a law in all re 610.1 be declared invalid. spects complete susceptible of constitu left, tional enforcement is which the Gener Assembly Had the General assumed that Assembly al if would have enacted it had infirm, constitutionally 537.610.1was § portions known that the exscinded were Assembly believe that the General would Connett, Enright invalid. State ex rel. v. portion have enacted of 537.600 § 1972); State 81[1] sovereign immunity gener- which restores Hackmann, County ex rel. Audrain Jones, ally prior as it existed and would (banc 1918). 275 Mo. 205 S.W. 14[4] portion not have enacted that § waives Here, Assembly intent the General instances described in subsections enacting as divined “(2)” (as 537.610.1). limited Bartley, of Missouri in sovereign im- to reestablish the doctrine of Accordingly, we need not decide whether munity prior as it existed with is, 537.610.1 is constitutional. If it any exceptions being those in the 1978 Act. sovereign immu- Commission is shielded Bartley, Supreme 649 870. The S.W.2d at nity liability and National from to Lewis further in the Bartley Court found that case, underlying in the as the absence Oil Assembly intended to waive sover- of insurance means there is no of waiver eign in immunity only “(2)” the instances de- sovereign immunity under subsection “(1)” “(2)” in scribed subsections and of pertinent of the subsection to § and, instances, 537.600 even in those petition the of Lewis and Na- third-party § hand, political the if 537.- only extent that subdivi- tional Oil. On the other § unconstitutional, “(1)” purposes. sion had insurance for such 610.1 be subsections survive, “(2)” cannot as Bartley, at 870. and of 537.600 649 S.W.2d §

891 only Thus, mentions explained. the Commis- tain that because 537.610.2 heretofore § Act liability, the 1978 cannot be construed liability to Lewis and sion is immune from public immunize entities from suit. to underlying Oil the case whether National not, as the is 537.610.1 constitutional § contention, ingenious, while is unten- The immunity in sovereign of restoration Depart- In ex Missouri State rel. able. would survive the exscision 537.600 § McHenry, 687 Agriculture v. ment of “(1)” “(2)” thereof. subsections and (Mo. 1985), prohibition banc regard in which sought to a suit was unnecessary decision it is Our that the money damages were from demanded constitutionality of 537.- to decide the Department the State of Missouri Supreme analogous is that of the to Inspection Agriculture, the Grain of Missouri in ex rel. Kansas Court State Warehousing of al- Division “because Commission, City Highway v. State leged performances deficiencies the 1942). (banc Mo. 163 S.W.2d 948 the state and its officials.” Id. at 180. There, provision that a statute contained a Supreme prohibited The Court of Missouri arguably constituted an unconstitutional money allowing trial court from the the delegation political of one subdivision’s proceed against to the damages claim provision another. Another power to Division, State, Department and the that chal susceptible statute was not to that the 1978 Act mandated the noting Supreme concluded it lenge. The Court sovereign immunity as it ex- restoration of unnecessary pass to on the constitu was prior McHenry, isted 687 S.W.2d Jones. section, the latter tionality of the former doctrine, Supreme 182. That said the at dispositive case and the was section Court, designed public protect was “sufficiently separable” section was latter sought treasury against kind of claims latter from the former section that State, maintained to be though section could stand the former even [12], Id. at Department and Division. objectionable. at section were 163 S.W.2d prohibition appropri- holding In that was an 952[2]. remedy, Supreme ate Court observed respon- theory The second tendered “immunity” not immuni- connotes dent’s counsel without merit. immunity from judgment but also ty from theory The third relied on counsel 181[2], at suit. Id. Commission, respondent is even if the require a appropriate it is added that Bartley, virtue 1978 Act and be officers to litigant who sues state or its immune from National theo- demonstrating to Lewis or a viable petition file a Oil, im- necessarily ry liability. the Commission Id. is not [4]. from “to relative mune suit determine its State, its reason of Prior to percentage According of fault.” to counsel from suit immunity, immune was Act or respondent, nothing in the 1978 own courts not be sued its and could protects from a

Bartley the Commission Eagleton its consent. State ex rel. without “third-party action” its “com- to determine Hall, v. 801[3] injured par- parative causing fault” an 1965). concept of damages. The ty’s Gustafson Fami Division ex rel. Missouri State parties in a joining all to a transaction (Mo. Moore, ly Services comparison single lawsuit nullified 1978 Act App.1983), held concerned, say for re- of all counsel fault restored Jones party if im- spondent, cannot be realized Jones, subject occupied before the status it from immune mune from is also 537.600(1) (2) and 537.610. to §§ suit. Accordingly, Moore, S.W.2d at 34. Family hold Bartley insist did not held that Division Counsel Moore for com entity from immune from suit that a immune Services wrong damages for punitive 537.- pensatory under subsections re income tax a federal fully garnishing of insurance reason the absence support judgment a child main- to collect also immune from suit. Counsel fund is assigned to the Division. A preliminary ON OR, MOTION FOR REHEARING order in prohibition commanding the trial ALTERNATIVELY, TO TRANSFER court to refrain proceeding from further in TO SUPREME COURT such suit was made absolute. PER CURIAM. On the McHenry, basis of Eagleton respondent, Counsel for in a motion for Moore, reject hypothesis rehearing or, alternative, to transfer respondent counsel for the Commis this case to the Court of sion, even if liability, immune from is not cite several statutes not heretofore cited immune from suit. respondent either to or to us. These stat- theory final by respon- relied on utes, say respondent, are in dent’s merely counsel is reprise direct conflict opinion. with our first Consequently, three. requires it no Were this case appeal before us on discussion and is denied. judgment from a denying relief on the The preliminary prohibition order in is third-party petition, we would not be made absolute. Respondent prohibited is obliged to consider newly these cited stat from proceeding against further the Com- utes, court, as an appellate appeal on from mission in the underlying- case and is or- judgment relief, denying will not consider grant dered to the Commission’s motion to question liability on a basis not dismiss the third-party petition as to the presented in the trial court. Moore v. Ri If, despite Commission. the affidavit of ley, 487 (Mo.1972). 558-59[2] counsel, the Commission’s chief Lewis and However, the origi case is before us as an National Oil believe there insur- proceeding prohibition, nal presenting ance or plan a self-insurance that would question respondent whether should be indemnify the damages Commission for as- proceeding against forbidden from further against sessed allegations it under the underlying the Commission in the case. third-party petition, Lewis and National Therefore, any exposing statute the Com may request respondent grant Oil them mission to to Lewis or National Oil leave to file an amended third-party peti- third-party petition under the must be con alleging tion the existence of such insur- sidered. ance, grant shall Lewis and National Oil a reasonable time to do so. newly The first cited statute is C.C.S. 284-85, H.B. pp. Laws effective Respondent’s motion to dismiss the Com- September 28, (“the Act”),7 petition mission’s prohibition for writ of 34.260, repealed which RSMo § quash and to our preliminary pro- order in enacted lieu thereof one new section hibition is denied. carrying the same number. The new sec- PREWITT, C.J., HOGAN, tion, P.J., 34.260, Cum.Supp. codified as RSMo MAUS, J., concur. marginally.8 is set out duties, Regular employment, military scope 7. The 1983 Act was enacted at the First or the Eighty-second Assembly agency, dangerous Session of the their or for conditions of 537.600, RSMo; adjourned property June 1983. Under Mo. as defined in section Const, Ill, (1945, however, provided, procuring art. amended in lieu days adjournment. risks, 1983 Act took effect 90 after insurance to cover such the commis- may sioner determine that the state shall self- ("the Cum.Supp.1983 8. Section any portion insure all or of such risks. Act”), provides: department agency govern- Each of state may coming "The provisions commissioner of administration ment within the of sections procure competitive provide on the basis of bids un- 34.260 to 34.275 shall the commis- provisions chapter, regarding der the hicle, aircraft, of this motor ve- sioner with such information necessary. and marine risks to be insured as he deems covering operation apply of state-controlled mo- Sections 34.260 to 34.275 shall not vehicles, aircraft, which, departments agencies Sep- tor and marine vessels employees, state members of the Missouri na- tember bility motor vehicle lia- guard, agents employees oper- tional in the course of their insurance for their who 34.260, 1978, origin purpose It evident the of The of RSMo was is (“the the 1973 Act was to authorize the State to pp. H.B. Laws 108-09 expense, Act”), provide, public liability insur which contained sections numbered sections, employees coverage ance for State while through respectively, 4. Those 34.260, 34.265, they operating motor ve 34.- were State-owned became codified as §§ in of their 34.275, Cum.Supp.1975. hicles and vessels the course 270 and RSMo Indeed, employment.10 the title of marginally.9 set They are out vehicles, aircraft, employment subject to the course of their ate state-controlled motor following in their em- exclusive of interest and or marine vessels the course of limits duties, military ployment, scope or of their costs: liability (1) agency. procurement twenty-five insur- Not less than thousand dol- to, adoption plan bodily injury self-insur- ance or the of a the death lars because of or of, accident; by person any of administration ance the commissioner one one express (2) (1), Subject shall not limit the waiver of to limit in subdivision cases such situations fifty in all within not less than thousand dollars because of public to, of, specified whether or not the bodily therein injury or death two or more governmental entity functioning accident; was in a or persons any one and proprietary capacity or not the or whether (3) Not less than five thousand dollars be- (1) by liability public entity to, of, is: covered insur- injury property or destruction cause (2) plan or uninsured. ance or a self-insurance any others one accident.” specified this sec- In the other situations 34.270, Cum.Supp.1975, provid- Section RSMo tion, and tort liabil- in such other situations of ed: ity for insurance or self-insurance acquired pursuant sections “Insurance to provided, sovereign plan or is obtained immu- to shall be issued an insur- 34.260 34.275 of, nity is waived to the maximum amount company to ance or association authorized by, policy purposes and for covered such in this state and shall its transact business plan, provided insurance or self-insurance provide adequate insurance for the em- terms sovereign immunity in instances other provisions ap- ployee policy under standard (1) specified than those in subdivisions and proved by division of insurance for the state RSMo, 537.600, (2) of section shall be re- coverage specified in sections 34.260 to public entity in the event the elects not tained damages any caused reason of 34.275 for implement procure to insurance or to self- death, injury, property damage personal or plan provisions insurance under the of sec- operation resulting negligent of a from the 537.650, tions 537.620 to RSMo." on vehicle or vessel state state-owned motor employ- or the course of his business within 34.260, Cum.Supp.1975, provid- 9. Section RSMo ment." ed: 34.275, Cum.Supp.1975, provid- RSMo Section agent procure purchasing “The state shall ed: competitive under the on the basis of bids "Nothing is to in- in sections 34.260 34.275 chapter provisions of motor vehicle and it as a waiver to shall be construed tended nor opera- liability covering the marine insurance acknowledg- or tion of state-owned vehicles and vessels liability part on the or creation of ment employees employ- state course their death, injury, proper- personal or the state agency department ment. Each of state ty damage.” coming government provisions within the provide 34.260 to shall sections 34.260, Cum.Supp.1975, indi- RSMo Section agent purchasing the information state necessary with became before the Act cated that even insurance, procure to September 1973— effect effective—it took department each cost of insurance for departments agencies that were State there paid agency appropriations shall be out of insurance for motor vehicle department agency. Sections 34.260 to ve- motor employees who drove State-owned departments apply not 34.275 shall to to employment. The of their hicles in the course which, agencies September authority statutory given Commission provide motor vehicle insurance for employees its provide such insurance employees drive motor ve- who state-owned (now pp. 287-88 H.B. Laws employment.” in the course of their hicles 226.092, 1978) provided: §as RSMo codified provid- Cum.Supp.1975, Section authorized, Highway Commission "The State ed: inter- it to be in considered when “Motor vehicle marine for, est, compensa- part acquire pay pursuant acquired to 34.275 sections 34.260 involved, liability insur- employee tion coverage provide state em- blanket shall ployees operation ve- covering of state-owned ance operating motor ve- while state-owned opera- performance of involved in hicles or in the or vessels on state business hicles Act,12 Act relating which, was: “An explained earlier, Act motor vehicle changed as and liability marine insurance for state em- 34.260. That section was the one § ployees operating state owned vehicles and affected by the Act. The other sec- necessarily vessels.” The of an act is title 34.270, (34.265, 34.275) tions 34.272 and re- part thereof is to be considered in 34.275, mained intact. Section it will be State, construing Bullington the act. v. remembered, provides is the section that 334, (Mo.1970); 459 S.W.2d A.J. 341[3] nothing 34.260 to 34.275 in- is §§ Meyer Unemployment Compen- & Co. v. tended to nor shall be construed as a waiv- Commission, 147, sation 348 Mo. 152 er of sovereign immunity or the acknowl- 184, (1941). Title, S.W.2d in this 189[4] edgment any or liability creation on the context, title by means the as enacted part personal injury, of the State for death not Assembly, pre- the catchwords property damage. by fixed Revisor Statutes which are Admittedly, portion of the 1983 part not a title in a constitutional Act13 beginning the fourth with sentence sense. Bullington, 341[3]; 459 S.W.2d at Act, continuing end of to the while Lockhart, parte 1220, Ex 350 Mo. mysteriously worded and difficult to fath- (banc 660, 1943). 663[5] om, arguably subject is nonetheless to in- course, unnecessary, It was provide terpretation as an unconditional waiver of protection for the against State sovereign immunity speci- the instances because, time, tort in 1973 at that fied in subsections the State was shielded from such 537.600, ignore, RSMo 1978. We cannot § by sovereign immunity. doctrine however, 34.275, 1978, RSMo osten- § 226; Bush, at 557 S.W.2d 46 S.W.2d sibly by remained undisturbed the 1983 34.275, It is manifest from 857[1]. § Act. (a Cum.Supp.197511 part RSMo of the 1973 maintained, course, It could be Act), Assembly, that the General in enact- 34.275, 1978, to the extent RSMo that it ing Act, the 1973 no had intention of waiv- may with the be conflict ing abrogating State’s im- repealed by implication the latter. It munity liability. from tort has been where there are held that two 34.260, 34.270, Sections 34.265 and RSMo legislative subject they acts on one are Cum.Supp.1975, were amended in repugnant provisions, their any 1528, 1976, 602-04, H.B. pp. Laws act, laws, any repealing later oper- without added State-owned aircraft to the vehicles repugnancy ates to the extent of the for which pro- insurance was to be repeal City the earlier. Kirkwood v. cured, and added members of the Missouri Allen, 30, (Mo. banc 34[1] agents guard national in the “or course of 1966). employment” employees their to be 34.275, Cum.Supp. covered. Section RSMo may, Be ponder that as it we need not 1975, legisla- was not amended the 1976 34.275, the effect of the 1983 Act on § did, however, legislation tion. The 1976 1978, RSMo or on 537.60014 and 537.- §§ defining contain a new section the terms 610,15 RSMo 1978. That because the vehicle,” “aircraft,” “motor “state-con- effect, noted, already 1983 Act took trolled.” became That section codified as 28, September third-party peti- 34.272, Supp.1976. RSMo tion alleges that the collision that caused the death of son occurred changes plaintiffs’ After no were made in through 34.275 until March §§ 12. Footnote supra. tions of the Commission. The in tort Highway actions of the and the State State Com- 13. Footnote 8, supra. way mission shall affected not be this act.” 14. Footnote 4, supra.

11. Section Cum.Supp.1975, is the 15. Footnote appearing supra. supra. last in footnote statute operation clearly appears the cause of action that Lewis active from the concede that seek to maintain express language and National Oil of the act or neces- third-party petition the Commission sary implication. Depart- or unavoidable collision, a “accrued” at the time of the Capri ment Social Services Villa prior to the effec- date more than 6 months Homes, Inc., (Mo. 332[2] Consequently, of the 1983 Act. tive date 1985); Peach, Lincoln Credit v.Co. third-party petition whether the states 1982), ap- 34[3] against cause of action the Commission is dismissed, 1094, peal 103 S.Ct. U.S. 537.600 and 537.- to be determined §§ 711, (1983). 74 L.Ed.2d 942 find nei- We 1978, 610, by Bartley, as construed RSMo express language necessary ther nor or Act. regard and to the 1983 without implication unavoidable in the 1983 Act otherwise, argue respondent operate retroactively. Counsel for that it was meant to message insisting that the 1983 Act “was a Accordingly, reject the contention of legislature Supreme Court from the respondent counsel for that the 1983 Act majority Bartley in that the decision of applied retroactively. should be incorrect,” dissenting that that, Having done we need not consider interpreted opinion correctly 537.600 §§ application whether retroactive Therefore, 537.610, say RSMo 1978. Const, I, Act would offend Mo. art. 13§ respondent, reject we should counsel for (1945), provides: which Assembly’s Bartley and follow law, post “That no ex facto nor law “construction” of 537.600 and 537.610 §§ contracts, impairing obligation of or Subsequent in as set forth the 1983 Act. operation, making retrospective in its or legislation declaring the intent of an earlier grant special privi- any irrevocable is, according respon- for statute to counsel immunities, leges can enacted.” or be dent, weight construing great accorded whether, need determine We likewise not that statute. Act, extent, when it or what argument The of counsel for re effective, changed con- Bartley’s became spondent the fact that 537.600 overlooks §§ 537.610, RSMo struction of 537.600 §§ 537.610, 1978, had RSMo been con 1978, change time such that by Bartley prior strued to the effective impaired im- would not have date of the 1983 Act. It has been held that munity from that had shielded State judicial construction of a statute that had “accrued” tort for a claim part court of last resort becomes as much 4, March 1983. of the statute as the text itself. Eberle v. premise Koplar, (Mo.App. 923[7] 1935). Thus, result compels Act a different Bartley after the decision that the 1983 is, opinion and absent amendment the General As in our than the one reached sembly reasons, or a different construction sub merit. foregoing without sequent decision of the legis- attention to other now turn our We 537.610, RSMo 537.600 and §§ activity place took lative Bartley they meant what said meant. respondent cite S.B. Laws Counsel so, bearing in being That mind (hereafter to as pp. 378-80 referred claim that Lewis and National Oil seek 275”), repealed versions both “S.B. “ac- to assert the Commission Supp.1982 appearing in RSMo the effective date of the 1983 crued” before thereof four new sec- and enacted lieu only way that the 1983 Act could 105.711,105.716,105.721 and 105.- (§§ tions would possibly aid Lewis and National Oil things, cre- 726). among other H.B. applied Act retroac- be if the 1983 were Fund” to re- Legal Expense ated a “State tively. Fund, Tort Defense place the available, in would be moneys therein generally pre Statutes are circumstances, payment certain operate prospectively unless sumed to against the State judgments they given retro- claims or legislative intent that be any agency “pursuant thereof to section H.C.S.S.B. enacted at the Regu- First 537.600,RSMo,” payment and for of claims lar Session Eighty-third General As- judgments against any officer or em- sembly. legislation (“the Act”) That ployee of the State and members became September effective guard Missouri national based on conduct days opinion our was filed. after arising performed out of and in connection repealed The 1985 Act with official duties on behalf of the State. 1978,16and enacted in lieu thereof a new H.B. 275 took September 28, effect section carrying the same number. The carefully We have studied H.B. 275 and the new section everything contains ap- replaced, statutes it and we have found peared in repealed and, section in addi- nothing suggesting that H.B. 275 should be tion, provisions some appear that did not applied retroactively to alter the effect repealed section. The new section is Bartley’s construction of 537.600 and §§ marginally, set out provisions the new iden- 537.610, RSMo 1978. Inasmuch as the tified italics.17 sought claim to be against asserted respondent Counsel for assert that the by Commission the third-party petition “ac- 1985 Act makes it “absolutely certain” that 4, 1983, crued” on March we need not con- sovereign immunity is inju- waived as to all impact, sider what if any, H.B. 275 had on by dangerous ries caused a condition of a Bartley’s of construction 537.600 and §§ public entity’s property, irrespective of 537.610 when H.B. Septem- 275 took effect whether the entity by is covered ber Therefore, insurance. say counsel For the same reasons that earli we respondent, for if applies the 1985 Act er held compel that the 1983 Act did not a retroactively to an accident that occurred different opinion, result than the one in our (the March date of the collision that we likewise compels hold that H.B. 275 no son), plaintiffs’ caused the death of the it is different result. unnecessary for Lewis and National Oil to allege final statute cited in their third-party petition that the post-opinion motion is Commission has insurance or a 4, supra. 16. Footnote public entity ous condition aor had actual or dangerous constructive notice of the condi- Act, appears 17. Section as it in the 1985 prior injury tion in time sufficient to the to reads: protect against have taken measures to sovereign governmental “1. Such or tort dangerous condition. In action under immunity as existed at common law this plaintiff alleges this subdivision wherein a 12, 1977, prior September except state to to damaged by negligent, he was or defective waived, abrogated the extent or modified road, dangerous design highway a or which of date, prior statutes in effect to that shall re- designed prior Septem- was and constructed effect; that, except main in full force and public entity ber shall be entitled public entity from complete to a which shall be a bar to defense compensatory damages negli- and suit for recovery public entity prove whenever the can gent hereby expressly acts or omissions is preponderance a the evidence that the following of waived in the instances: alleged negligent, defective, dangerous or de- (1) Injuries directly resulting neg- from the sign reasonably complied highway with ligent by public employees acts or omissions design generally accepted road standards at arising operation out of motor vehicles designed highway the time road or was or vehicles within the course of motorized employment; their and constructed. (2) Injuries caused the condition of express a 2. The waiver immuni- public'entity’s property plaintiff (1) if the estab- ty specified in the instances in subdivisions property dangerous lishes that the was in con- (2) are subsection 1 this section injury, injury dition at the time of the that the absolute waivers in all directly dangerous resulted from the condi- cases within such situations whether or not tion, dangerous that the condition created a public entity functioning governmen- in a was reasonably foreseeable risk of harm of the proprietary capacity or not tal or and whether incurred, injury kind which was and that by liability public entity a is covered insur- negligent wrongful either a act or omission ance tort." employee public entity of an within the employment danger- course of his created the they given be retro indemnify legislative it intent plan to self-insurance clearly appears from plaintiffs operation or Lewis or judgment for active according language of the act or neces Consequently, express Oil. National implication. Depart issue this respondent, sary or unavoidable counsel Services, to decide is whether the 1985 needs ment Social Co., retroactively to March 636 S.W.2d at applies 332[2]; Credit Act Lincoln is, course, express no lan There 34[3]. in- Assembly Insisting that the General providing that it guage in the 1985 Act operate Act to retroac- tended the 1985 Therefore, must retroactively. we operate respondent point tively, counsel for operate intended to presume that it was providing that segment of the 1985 Act contrary clearly unless the prospectively negligent, defective action based on the an impli by necessary or unavoidable appears highway or road dangerous design of a follow, cation. For the reasons prior Septem- designed and constructed implication. find no such 12,1977, public entity has a defense ber by preponderance prove it can whenever legislative action After the first alleged negligent, that the of the evidence Assembly regarding by the sover dangerous design reasonably defective or eign immunity was highway design and road complied with ex sovereign immunity as it had restored accepted at the time generally standards (the prior September date isted highway designed the road or Jones), subject exceptions to the limited convenience, For we hence- constructed. Act. out in the 1978 specifically carved design refer to this defense as “the forth Nothing in the 1978 Act standards defense.” apply therein were to retroac exceptions respondent us that 12, Counsel for remind 1977, and it was tively September to 12, 1977, September was the date the Su- Parkway squarely Christophel held in Jones, 557 preme Court of Missouri decided (Mo. District, 61, School 62[3] 225, which, earlier, S.W.2d as noted abro- im a school district was App.1980), that immunity gated sovereign the doctrine personal for mune from and suit arising all on prospectively as to tort claims allegedly premises on its injuries sustained 15, August after 1978. Counsel for 20, 1978, February a date after Jones on respondent argue only logical rea- that the effective date of the 1978 prior but Assembly provide for the General to son result, Christophel reaching In that Act. design the standards defense 1985 in language noted the Assembly intended Act is that the General abrogation of sover 231, made the immunity sovereign to waive the State’s order immunity prospective there eign “[i]n 12, 1977, as to September from and after made, that orderly transition be that an Act, in the 1985 all situations described place, that planning financial take adequate Assembly correspondingly the General adjust time to governmental units have design standards de- granted the State the legislature the be practices and that their “compensate” for the absence fense to to consider opportunity an afforded Sep- after sovereign immunity from and Christophel, 600 subject general....” in for tember Counsel at 62. retroac- that if the 1985 Act is not maintain coun- accept argument to Were we tive, no waiver of the Com- there would be holding we be respondent, for would sel Sep- sovereign immunity prior to mission’s enacting in Assembly, the General that 28, 1985, for the and thus no need tember sovereign im- Act, to waive intended that date. design standards defense before specified) (in therein munity the instances sound, superficially while argument, Sep- retroactively to —insurance not— examination, unconvincing. is, upon closer though the General even tember make did not in the 1978 Assembly, remember, explained as must We immunity in sovereign exceptions to earlier, generally pre statutes are 12, September to retroactive that Act prospectively unless operate to sumed Assembly, If the General in did not reasonably We cannot infer Gen- that the exceptions sovereign intend to make the to Assembly eral intended to create hav- such immunity in the 1978 Act retroactive to Bearing in oc. mind that the 1985 Act was 12, 1977, September fail see how it we to passed legislative at the session that ended unavoidably implied be can in 1985 Act 30, 1985, effect, June that it took as years—7 after the 1978Act—that the Gen- earlier, September noted we Assembly excep- eral intended to make logical more assumption believe the sovereign to tions 1985 Act Assembly the General intended September 12, to retroactive a date operate prospectively, thereby Act to years prior than 8 more to the effective affording departments the State and its apply date the 1985 Act. To the 1985 agencies pas- interval between the retroactively policy Act would offend sage Act and its to effective date expressed change Jones that sov- prepare changes occasioned ereign immunity prospective should be so Act before it became Accordingly, law. we made, an orderly be transition can reject respon- the contention of counsel for adequate place, financial take planning can dent that the General Assembly meant governmental units can have time to apply That retroactively. Act adjust practices. their unnecessary makes it con- consider the Moreover, Const, Act applying the 1985 retroac implications (Mo. I, stitutional art. tively September 12, 1977, urged by (1945)) application, of retroactive respondent, result counsel would forgo task. public entities such as the school district or, rehearing The motion in the alter- Christophel being retroactively stripped of native, to transfer this case to the immunity in the defense of re Court of is denied'. gard claims like the in that case one (which occurred after Jones but before the Act), date of

effective bizarre 5-year inasmuch statute

denouement as the limitations, 516.120(4), ap actions, Farwig to such v.

plicable City of Louis, (Mo.1973);

St. Sams, Farthing v. 296 Mo. S.W. STATE (1922),would run —unless already have Plaintiff-Respondent, tolled—before the 1985 Act law. became Embracing position advocated also would mean LONG, Frederick D. Commission, public entities such as the Defendant-Appellant. say

which understood the 1978 Act No. 48694. only in the was waived expressly provided Appeals, situations sub- Court of two Missouri District, sections Eastern and, instances, even in those two Division Two. entity had the extent Sept. plan insurance or a self-insurance Rehearing and/or Transfer Motion for (the interpretation purposes such Oct. Denied and which Bartley

reached consequently provide elected not to to Transfer Denied Application plan, adopt a self-insurance 21, 1985. Nov. would, September 28, be retro- any unin- actively exposed of limita- claim on which the statute

sured had not run.

tions

Case Details

Case Name: State Ex Rel. Missouri Highway & Transportation Commission v. Appelquist

Court Name: Missouri Court of Appeals

Date Published: Aug 30, 1985

Citation: 698 S.W.2d 883

Docket Number: 13956

Court Abbreviation: Mo. Ct. App.