*1 TRUSTEES, MISSOULA COUNTY SCHOOL
DISTRICT NO. 1, Rеspondent, Plaintiff and v. PACIFIC EMPLOYER’S INSURANCE COMPANY, corporation, Appellant, Defendant and WESTERN STATES INSURANCE
AGENCY, INC.,
corporation,
a Montana
Respondent.
Defendant and
No. 93-212.
Submitted on Briefs November
1993.
Decided December
1993.
St.Rep.
JUSTICE and WEBER concurred. GRAY Williams, Ranney, Richard C. Williams Appellant:
For Shelton Ranney, Missoula. & Mulroney, Scott; Delaney, Delaney L. & Respondent: Brian
For Frank, Haines, Worden, Thane & Missoula. Patrick Opinion of the Court. JUSTICE HARRISON delivered District, of Mon- appeal This arose in the Fourth Judicial State Missoula, tana, County Douglas in and for the Honorable part remand. presiding. We affirm Harkin Court, Trustees, County case of Missoula Sch. Dist. No. This P.2d set forth 1 v. Anderson teacher, facts case. we found that Carol background of this Therein (Anderson), incompetence impropеrly dismissed for *3 poor performance following upon on four interviews her return based opinion The teaching following a sabbatical leave. of this Court to findings the district court’s which set aside the of reversed decision of and Superintendent and conclusions of law the State the fact to the deci County Superintendent. We directed the court reinstate County Superintendent. the State sion of and case to District Court year after this Court returned the One decision, into our and the entered implement to Anderson Trustees agreement That agreement and a release. settlement settlement Anderson follows: paymеnts involved to as above[,] the Release set forth Payments. 2. In consideration of $81,585.07 hereby agrees totaling to a sum pay the District District which by negotiated compromised following amounts: is the sum $64,473.74 Annual Income Total Net $12,023.81 Total Interest 5,387.81 $ Total Medical acknowledged. $81,885.36 expressly is Receipt of The agrees pay District further to required by [the interest System] [Teachers’ Teachers’ Retirement in addition to the Retire- System] ment contribution. agrees tax,
The pay District the federal income state income tax and gross salary appropriate FICA deducted from to the state agencies. federal facts, With problеm these we now going consider who is pay settlement. (Trus- the Trustees of the Missoula School District 1No.
tees), purchased a School Legal Liability Professional Insurance Policy representative from an insurance Western States Insurance (Western States). Agency, through Inc. came Pacific Em- (Pacific); ployers Company Insurance dates effective were from 1,1984 1,1987. December purchasing December Prior to the policy, upon inquiry any whether there were outstanding, lawsuits representative trustee informed the Western States that a “tenured challenged [Anderson] teacher’s being dismissal at this time through channels, regular the County now hands of State Superintendent of Schools.”
Upon amounts, being presented coverage the above Pacific denied grounds policy provided of the claims on the that the an exclusion for against “any made for claims insured amounts due under the any obligation. terms ...” Pacific characterized the payment agreement between the School District and Anderson as one arising obligation.” argue out of a “contractual The Trustees that the District’s settlement with dismissed teacher was based and, firing therefore, upon negligent provides the clause which “(a) errors, omissions, by and claims made reason of act, error, discharge or omission services rendered in applies. School District....” forth; by set the respondent
Several issues are two Trustees: Whether District holding Court erred that the “contract provision agreement, exclusion” the insurance authored Pacific, applicable preclude coverage was not the insur- *4 agreement. ance
2. Whether the District Memorandum and Order of Janu- Court’s (as 12, 1993, ary 1993, opposed February 19, entry to its of Rule 54(b) Judgment) viability has effect on the of the third and by fourth affirmative defenses raised Pacific’s answer.
125 issue as set forth responds to second Western States as: appellants partial summary judg- prоperly grant Court
3. Did the District issue without the Trustees on “contract exclusion” ment to forth coverage defenses set in Pacific’s answer? addressing several naming filed an action in District Court as Plaintiff Trustees alleged States. The Trustees that defendants Pacific and Western to the they declaratory coverage relief and benefits entitled to were to the school district. Pacific under a Pacific insurance issued to coverage paid for sums the Trustees Carol after denied successfully as a teacher. The appealed she her dismissal tenured alleged complaint also in the amended that Western States Trustees advising purchase policy. negligent had in them to been judgment partial summary for parties filed cross-motions addressing policy pre- the “contract exclusion” Pacific’s whether paid Trustees to Anderson. The cluded for sums Trustees, granted summary judgment partial District Court apply exclusion did not and that Pacific had ruling that contract provide coverage its the insurance breached represented by the policy. Pacific and Western States were same during summary judgment proceedings and thereafter counsel aligned States itself separate represented counsel Western which purpose appeal. Trustees of this with the in reviewing This Court the same a denial of uses standard summary judgment denying as the District Court used motion. Ass’n, Trustees, Valley County Frazier Educ. MEA v. Board /FEA Elementary 2 267, Sch. Dist. No. (1993), 223, 225, Mont. 256 (1988), University v. Montana State 269; Graham also see 284, issue, 287, 301, summary judgment P.2d In order “genuine affirmed can be no issue to all appeal, and to be on there light principles of the substantive facts deemed material v. as a matter of law.” Cereck judgment to a [the movant] entitle 509, Inc. 511; Albertson’s P.2d 56(c), Rule M.R.Civ.P.
I the “contract holding Court erred Whether District by Pacific, agreement, authored of the insurance provision exclusion” agreement. coverage under insurance applicable preclude was not dispute is material us, factual case before there no Based on the contract exclusion issue. to the determination *5 126
briefs that been have submitted to the District Court and to this Court, parties agree the that Pacific’sexclusion be must construed in the appeal context of Anderson’s of dismissal. While the parties may differing supply interpretations facts, of the contextual the facts undisputed. themselves are the real appeal Thus issue on is whether determined, correctly law, the District Court as a matter of that the apply, exclusion did not which entitled the to рartial Trustees sum- mary judgment.
In reaching principal in this appeal, issue we must first decide challenge how to characterize Anderson’s Appellant to her dismissal. Pacific repeatedly challenge characterizes the as one for breach of bring contract in it order within ambit ofthe contract exclusion. argues Western that misperceives States nature of Ander- son’s Montana authority claim. “1. establishes Carol claim was for good dismissal without cause in of her rights violation 20-4-207, under section M.C.A.”
Montana school laws generally embody a legislative effort to
balance the
rights
Anderson,
teachers with those оf trustees.
757
1318; Massey
P.2d at
Argenbright (1984),
331, 336,
and
v.
1332, 1334.
rights
The
of tenured teachers are treated with
substantial, valuable,
solicitude
“tenure is a
because
and beneficial
right
cannot
away except
good
Anderson,
which
be taken
cause.”
Our also rights cases have looked to the and of school maintaining integrity Anderson, trustees in of their schools. 757 X, P.2d at provides 1318. Article 8 ofthe Montana Constitution “[t]he supervision control of schools in each school district shall 20-3-324, MCA, be vested in a board of trustees Section ....” enumer- trustees, powers ates the specific including and duties power employ personnel. and to dismiss We held that have trustees deciding must they employ exercise discretion whom will (1929), they Kelsey whom will dismiss. See v. School Dist. No. 25 84 453, 458, P. 276 20-4-207, governed Section MCA the dismissal of Anderson, rights the competing reflected tension between provided: The teachers and trustees. statute (1) before trustees district dismiss teacher immorality, unfitness, expiration employment of his contract for incompetence, adopted policies or violation of the of such trustees.
(2) may writing within has been dismissed Any teacher who county superintendent. to the Fol- days appeal such dismissal days. held If the appeal hearing shall be within lowing such hearing, after a determines the dis- county superintеndent, cause, he shall order by the trustees was made without missal compensate such teacher and to such the trustees to reinstate during pending time at his contract amount for the lost teacher appeal. appellate procedure covers the established This statute However, and is conceded Pacific. damages ofAnderson’s measure “strictly solely her claim a claim for Pacific insists that contract” and that she employment breach of *6 previously, that contract. As noted received were for breach of disagrees. Western States remedial distinguished process
This Court has
affоrded a teacher who is dismissed while under contract from an
26-27;
Kelsey,
Wyatt
of contract.
276 P. at
see also
v.
action for breach
(1966),
83, 89,
221,
No. 104
148 Mont.
417 P.2d
224. These
Sch. Dist.
statutory appeal
cases show the differences between a
of a dismissal
contract, noting that a
and an action for breach of
teacher is not free
damages;
appeal
to choose between an
and an action for contractual
In the
proceedings
interchangeable.
excep
are not
absence
tional circumstances a teacher must exhaust his or her administra
tive remedies under Montana school lаw. See Throssell v. Board (1988),
497,
County
Gallatin
Sch. Dist. No. 7
232 Mont.
Trustees of
348,
P.2d
349-50.
However,
law,
under Montana
the remedies that are available in
statutory
necessarily
of dismissal are not
the same as those
appeal
a
20-4-207(2),
in a
of contract action. Section
MCA
available
breach
(1983),
wrongfully
limits the relief that is available to a
dismissed
compensation
teacher
reinstatement
and to
“at his contract
during
pending
appeal.”
amount for the time lost
of the
supports characterizing
The decision of this Court
Anderson’s
vindicating
statutory rights
her
as a teacher
proceedings as one
than a
of contract case. As noted in Western States’s
rather
breach
may
analogy
proceeding
brief an
be drawn with
vindicate
discriminatory
suffered a
termi
rights
protected person
of a
who has
VII,
(1964),
Rights
Title
Civil
Act
42 U.S.C.
employment.
nation of
See
Act,
2000e-2(a)(l);
Rights
and the Montana Human
49-2-
§
§
303(l)(a),
types
proceedings
originally consigned
Both
are
MCA.
ex-
agencies by
exceptions,
statute and with limited
administrative
proceedings
Both kinds of
feature remedies
required.
haustion is
statute,
compen-
include reinstatement and
by
prescribed
compensation
pay
The fact that
or back
is calcu-
pay.
sation or back
proceed-
to a contraсt amount does not convert the
lated
reference
of statute to one for breach of contract.
ing from one for violation
noted,
undisputed
facts here establish that
previously
As
good
claim was for dismissal without
cause
violation
Anderson’s
statutory
Her claim establishes that she was dismissed
rights.
than a
of contract. Here all the
good cause rather
breach
without
district court
appeals,
both the administrative
both
proceedings,
decisions,
characterizing
Court
are consistent with
Supreme
of the Montana statute that
claim as one for a violation
a contract from dismissal without
cause.
teаchers -under
protects
(1983).
20-4-207,
find
neither the
nor the
MCA
We
law
Section
“strictly
Pacific’s assertion that Anderson’s claim was
support
facts
employment
of her
contract.”
solely
a claim breach
rule,
company must look to the
general
an insurance
As
“Coverage
if
to determine
a loss is covered.
allegations
complaint
of a
claims,
giv[es]
that]
rise to the
upon
[or
the act
conduct
is based
pleading
other
language
complaint”
or
necessarily upon
Group
Ins.
v. Strecker
proceeding.
Hampshire
initiates a
New
130, 132;
478, 482,
see Burns v. Under
(1990), 244 Mont.
798 P.2d
508, 510,
Adjusting Co.
writers
Here,
proceeding
an administrative
Anderson initiated
Sсhools,
County Superintendent
submitting
“appeal”
a form
Therefore,
MCA,
20-4-207,
appeal.
as the
for her
designating
basis
20-4-207, MCA,
appeal.
read into her
The statute
must be
*7
although
trustees
dismiss
establish that
interpretive precedent
contract,
good
they may not do so without
is -under
a teacher who
(1989), 236
County High Sch. Dist.
v. Beaverhead
cause. Johnson
138;Anderson,
1318; and
534,
137,
Under the damages a obligated pay as as legally became which the Trustees policy period “byreason during first made result of claims discharge in act, in rendered School error, services or omission obligated pay Trustees became Clearly, ...” District duties. the decisions of the damages after this Court reinstated Anderson Superintendents. question There also no that County State is of an in services rendered claim arose reason omission Thus, ofthe discharge purposes in the ofthe Trustees’ duties. for issue Court, agreement provided coverage before this Pacific’s insurance gave that to Anderson’s claim. conduct rise “sought contends that the While Pacific [the terms of [her] Tor... amounts due received were her,” provides exclusion obligation’ District’s] contractual with due terms claim must be for amounts under the of a obligation. argues misper- States that Paсific Western position Pacific’s ceives the nature of Anderson’s claim anything if her claim is other than one breach untenable viewed agree. of contract. We discharged case facts of this indicate Anderson was from goodfaith, in from the SchoolDistrict but this Court employment
later that she should not have been. The School District found was her, maliciously in that there acting discharging not as it felt were mistake, case, As it it a in this grounds. sufficient turned out was but wrongful discharge negligent cases a termi- many other where they occurred, they negligent did had done was nation not know what finally byso a court. Under these higher until it determined to be circumstances, coverage the School District should not be denied bargained which it had for. United presented A situation is the case of very similar (D. 1987), 664 F. Bancsystems Supp. Interstate
Ins. Co. v. First dispute involving there was an insurance where There, unique wrongful discussing claim. nature termination claim, discharge the court stated: wrongful termination, there intent to terminate Likewise, wrongful is an jury unless a Court or estab- injuries compensable but are wrongful. the termination was lishes that *8 130
An employer not know that his or her conduct wrongful is liability until is established. Because the purpose liability insur- risk, ance is to protect against this deny Court should not employ- protection ers the coverage insurance ....
United Pacific, F.Supp. 664 at 1394. case, We note that in the United the claim damages for was Pacific compensation, for loss of earning loss of future capacity, physical and humiliation, emotional stress and benefits, loss of and loss of work life earnings. obviously While the claim damages involved which were tied contract, to the employment nowhere the United decision is the claim stated to be a claim arising out of a obligation. There, the clearly court was ofthe opinion that the claim was for tortious wrongful termination and personal injury for such as emotional stress Pacific, and humiliation. F.Supp. United at 1394. here, Pacific,
As is the case in United First Interstate seeking reimbursement from its insurer related to a a wrongful settlement of regard, termination claim. this the court noted: Although the settlement does not distinguish grounds for settlement, complaint Schroeder’s provided potential for dam- ages negligence based on and plaintiff duty would a have indemnify defendants. Pacific,
United F.Supp. at 1393. case, In this as in Pacific, United the settlement document does specifically identify grounds for settlement in terms of theo- liability (although virtually ries of all of the claims released tort). minimum, Anderson sound in At a potential” “the pure negligence, based on though subject specific statutory even to a remedy, Thus, was there. there a is clear in this case for loss, subject Pacific to cover the to other defenses which were not at issue here.
It is obvious that the contract portion exclusion of the insur agreement ambiguous ance applied Although as in this case. exclusion had its purpose, legitimately could fulfill its purpose — supportive position case where the facts were of that this is not one ambiguity exclusionary of them. The provision an agreement against insurance should be construed the facts of the presented. Considеring instance, matter the facts in this the District clearly “eliminating Court’s decision does not have the effect of policy entirely, alleged by contract exclusion” from the Pacific. In fact, nothing could be further from the case. facts, agreement
From the statement the insurance claims acts, errors, provide range negligent wide or discharge omissions rendered in the of School District duties. It then *9 coverage “any on exclude under goes to amounts due the terms of obligation.” here, any before, contractual As we have noted the obligation was not due under the terms of a contractual case, obligation. this a contractual exclusion most certainly purportedly applies unclear. It without limitation to con- purportedly struction and demolition contracts and to other contrac- obligations, tual but as to non-construction or non-demolition con- tracts, fees, company agrees costs, etc., the insurance to cover result- ing from the School failure perform District’s or breach of contract. apparent Nowhere in this exclusion is it applies the exclusion in anything than other contracts School District entered into with parties third of goods outside the School District for and services. specific There is no in the mention exclusion clause for internal District, obligations within the impor- or more tantly liability by of of employment. termination
If policy it was the intent of the drafters coverage to exclude related negligence, or even wrongful intentional termination of employment, appropriate language could have been inserted. The policy very carefully and, such, drafted as the fact that an specifically excluded, incident is not conclusively demonstrates that it was ambiguity by not intended be. Here the was created policy against and must be company construed as a of matter lаw. very The District Court acutely and properly noted: agreement The not does address issues such those presented in this where case sustained are a result errors made terminating Therefore, school officials in a contract. the terms of the insurance contract need to be construed according entirety its terms and set in policy. See, conditions as forth 33-15-316, M.C.A.; § and United .... A particular clause of a[n always insurance] contract must be subordinate to the con- general 28-3-307, tract’s intent. M.C.A. general present intent of the policy case is to insure the liability
School District from discharge errors of their duties. The exclusions or policy words limitations in the must against insurer; be v. construed Bauer Ranch Mountain West Insurance, (1985), 153, Farm Bureau Mutual 215 Mont. 695 P.2d 1307, 1309, as an insured is to all he entitled
“reasonably expect” provided in a “reason- to be to in [Citation able doctrine subscribed this state. expectation” omitted.] (1992), 352, also, Ins. Farmers UnionMut. Co.v.Oakland
See 356-57,825 554, 556-67; P.2d and Bauer Ranch v.Mountain WestFarm 153, 156, 1307, 1309. Co. Bureau Mut. Ins.
II January the District Comb’sMemorandum and Order of Whether 54(b) (as 19, February 1993, entry its of Rule opposed to viability has on the the third and fourth Judgment) effect defenses raised Pacific’s answer. affirmative least, viability Last, question ofthe ofPacific’sthird but has been raised for discussion. The District and fourth defenses 54(b) ruling on merits Judgment indicated Court’s Rule summary judgment presented motions which were partial January 12,1993, “there was through memorandum and order of its *10 subject insuring [sic] Plaintiffs’ losses under the for the agree with agreement.” Both the School District Western States viability its third and fourth affirmative defenses Pacific that the of to yet subject to a court determination. The solution have been 54(b) by holding judgment Rule can be resolved that a problem this here.” is, essence, “judgment appealed practical in the to be from The 54(b) certify Court judgment of Rule is District effect partial adjudicating memorandum and order Judge’s previous 12, 1993, January of as a “final order.” summary judgment motion We find that the “judgment appealed from.” hold that this We result in its memorandum and proper District Court reached the January 12, doing in we hold that the contract of so order policy as coverage under the insurance had no effect on the exclusion history underlying facts background and the against construed of Anderson’s claim. of the settlement re- case is affirmed on issue one The District Court is affirm- opinion as to the third and fourth conform to this manded to ative defenses. TURNAGE, TRIEWEILER and JUSTICES JUSTICE
CHIEF HUNT concur. dissenting: NELSON
JUSTICE dissent. respectfully
I I is a Notwithstanding, This difficult case. believe that the more reasoning position of Pacific persuasive supports Employers (Pacific), Insurance Company and for I that reason would reverse. (Anderson) opinion ofthe Court holds that Carol Anderson
The statutory making “vindicating” rights by her a claim for dismissal good 20-4-207, cause in of MCA. That without violation conclusion ignores plain language inevitably of the statute which leads that, contract, a breach employment conclusion without of her claim against Anderson would have no the Trustees of Missoula (School District), County School District nor No. would she have otherwise, any rights, statutory or to vindicate. provides pertinent part
The statute that: any The trustees of district dismiss teacher before expiration employment unfitness, his immorality, contract for trustees, incompetence, adopted or violation of the policies such added) (emphasis 20-4-207(1),
Section MCA. The statute not provide right does against wrongful separate underlying dismissal from apart presupposes contract. statute there is an employment place, contract, contract the first and it is the breach of that — firing unfitness, teacher than immorality, for other cause — or incompetence adopted policies violation that gives rise to a For reason, violation statute. I cannot conclude that against claim School District wаs anything but Simply sums due under her contract. put, she wanted the benefit employment, her contract. She wanted paid and she wanted to be employment accordance with the terms of her contract. Here, the exclusion in the insurance policy applies any claims against “any due, made the School District for amounts under the obligation.” argues terms of While Anderson she claim statutory thereby filed her to vindicate her rights, avoiding the exclusionary policy, language in the the exclusion does not itself limit excluding damages only presented claims for if under a breach *11 theory. applies The if damages contract exclusion the claimed are in fact “amounts due under terms of contractual obligation,” theory regardless liability how the is characterized. rights employment, compensation fringe
Anderson’s bene- rights fits did not arise from the statute. arose Those from obligations parties, gave contract assumed the breach ofwhich very very damages rise to the claimed Anderson and the paid by School District. her actuality, vindicating statutory rights;
In Anderson was not was, truth, none from apart vindicating she had her contract. She under her contract and the rights her contract teacher’s collective agreement incorporated which the statute that allowed bargaining immoral, if to dismiss her she was found to be the School District unfit, incompetent, policies. or if trustees’ adopted she violated the only rights arising Anderson had out of her contract were those particular District. The fact this contract was with School special required appeals to a statute administrative subject change action as the means of enforcement does not opposed court — arising claim one out of the contact. the essence of the itself MCA, opinion, 20-4-207(5), in the pointed As out Court’s limits wrongfully-dismissed relief is available to a teacher to compensation “at contract [her] reinstatement and amount appeal.” The during pending time lost statute itself makes Anderson amounts due under her clear that amounts due were Here, with the School District. Anderson re- contractual exactly equal which included to the ceived a settlement amounts she have types compensation and amounts of should received contract, her with interest. salary, the medical received her and she received benefits she She health insurance with the policy have received under her would addition, the School District contributed School District. System, interest, paid federal and Retirement with Teachers’ FICA which would have been deducted from state income tax and salary. exactly what Ander- gross The settlement matched contract, her with interest. The received under son would have paid the amounts agreement and release broke out settlement paid had precisely the manner that those amounts would have been agreement its with Anderson and not breached the School District employment. terminated her wrongfully it not had employment con- were due because Anderson’s These amounts discharged it Anderson SchoolDistrict breached when tract which the Clearly, cause. еven if her contract without during the term of “vindicating Anderson as one where action is characterized this paid District statutory the amounts rights,” of [her] due under the terms the “amounts precisely were coverage by terms of the from and are thus excluded obligation,” Pacific. with simple breach of contract Effectively, Court has turned a this case coverage, a tort action, is no insurance into for which there *12 is, guise “vindicating teacher there under the the statutory rights.” This is a of contract case and amounts breach obligation and arose under the contractual the paid due of therefore, are, and excluded from under District to Anderson policy. insurance the
Similarly, agree opinion I cannot with the of the Court which policy as “ambiguous.” characterizes the contract exclusion The con- — exclusion, broad, very is it to specific applies tract while amounts any obligation. contractual There are no to exceptions due this language There is no exclusion. the exclusion that limits its contracts, application only to third-party to construction or other contracts, special-type to contracts under which an of assumed, indemnity is or to “internal obligations.” This the limiting language, by expedient Court reads into exclusion the finding that the are not That the limitations there. turns rules of upside construction down. I do not believe the contract requires construction, at here exclusion issue even much less that it be against theory ambiguous. construed Pacific on the it is broad; not, however, exclusion be is ambiguous. it When the language case, of a contract is clear and unambiguous, as it is in this the require application construction, contract does the rules the duly isit this Court’s to parties. enforce contract made 539, Dooling (1991), 535, Keller v. 437, Finally, potential generated by for mischief which will be disturbing, opinion say Court’s is least. this opinion, Under schoоl districts with policies similar insurance will free rein have contract, discharge knowing tenured teachers under their liabil- ity insurer have pay attorney’s will all fees to defend adminis- appeals, pay compensation trative will then have to all and fringe ultimately if benefits awarded it turns out that the termination was win-win, good not for cause. This is a no-risk situation for the school district; simply there is to roll no incentive not the dice and fire good might or, teachers where cause questionable perhaps, lacking be altogether.
The School District can an employment firing breach contract regard the teacher without to whether there is cause or not. If the teacher appeal, gone loses administrative then the teacher is and the district pay salary school does not have to from benefits and after termination. If teacher appeal, wins administrative gone then teacher or reinstated and school district does not or, after least pay salary from and termination at have benefits through point from and after termination of reinstatement. If, out, Co. v. points citing as the Court United Insurance (D. Montana, 1987), Inc. F. Bancsy First Interstate stems of liability purpose protect “the insurance is to Supp. where, under risk,” pressed I am hard to discover the facts against case, It School District assumed or incurred risk at all. this (interest excluded) exactly what it have paid paid settlement would it, and had employment agreement had it not breached *13 instead, employment. required Pacific is now to indem continued costs, attorney’s District for the fees and nify And, termination. the School District improper associated with rid of teacher. There is no in that for the School got an unwanted risk District!
Worse, certainly provide any not incentive to that scenario does to a school to insure school board of trustees and administration terminating employment. cause a teacher’s there before realistically I fact, is true. cannot believe that it was quite opposite or refer- either the insured insurer that the contemplation in the interpreted be to allow such an absurd enced exclusion would however, may I there a few teachers suspect, result. do be relationships their and administrations who shaky with boards begin looking over their shoulders. should now reasons, I foregoing would reverse the District Court For the School District’s claim. hold that the contract exclusion bars foregoing in the dissent. JUSTICE GRAYconcurs ex- foregoing dissent concurs with JUSTICE WEBER paragraphs does concur in the last four ception that he be regard potential mischief dissent with opinion. generated by the Court’s