IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT NO. ED KQUAWANDA MOORE, Plaintiff/Appellant, vs.

Transcription

1 IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT NO. ED KQUAWANDA MOORE, Plaintiff/Appellant, vs. LIFE FOR LIFE ACADEMY, INC., Defendant/Respondent. APPEAL FROM THE CIRCUIT COURT OF THE CITY OF SAINT LOUIS, STATE OF MISSOURI THE HONORABLE ROBERT H. DIERKER, Jr., JUDGE CASE NO CC00247 BRIEF OF RESPONDENT BEHR, MCCARTER & POTTER, P.C. Timothy J. Reichardt, #57684 Andrew T. Tangaro, # Bonhomme, Suite 1400 Clayton, MO / / (fax) Attorneys for Respondent

2 TABLE OF CONTENTS Page Table of Authorities... 2 Statement of Facts... 5 Argument... 6 Introduction... 6 Standard of Review... 6 I. Sovereign Immunity applies in this Case.. 7 II. As a matter of law, Lift for Life s participation in MOPERM does not waive sovereign immunity.. 16 Conclusion Certificate Required by Rule 84.06(c) Certificate of Service Appendix... A1 1

3 Cases TABLE OF AUTHORITIES Aiello v. St. Louis Community College District, 830 S.W.2d 556, 559 (Mo. Ct. App. 1992)... 7 Page Babb v. Missouri Public Service Commission, et al., 414 S.W.3d 64 (Mo. Ct. App. 2013)... 12, 13 Balderee v. Beeman, 837 S.W.2d 309 (Mo. Ct. App. 1992) Bolivar Insulation Company v. Bella Pointe Development, LLC, 166 S.W.3d 610 (Mo. Ct. App. 2005)... 7 Conway v. St. Louis County, 254 S.W.3d 159 (Mo. Ct. App. 2008) Dale v. Edmonds, 819 S.W.2d 388 (Mo. Ct. App. 1991)... 10, 11 DeMarr v. Kansas City School District, 802 S.W.2d 537 (Mo. Ct. App. 1991) Humane Society of the United States v. State of Missouri, 405 S.W.3d 532 (Mo. banc 2013)... 8 Langley v. Curators of the University of Missouri, 73 S.W.3d 808 (Mo. Ct. App. 2002) Meramec Valley R-III School District v. City of Eureka, 281 S.W.3d 827 (Mo. Ct. App. 2009)... 6, 7 Naucke v. Missouri Public Entity Risk Management Fund, 95 S.W.3d 166 (Mo. Ct. App. 2003)... 18, 19 Parish v. Novus Equities Company, 231 S.W.3d 236 (Mo. Ct. App. 2007) Patterson v. Meramec Valley R-III School District, 864 S.W.2d 14 (Mo. Ct. App. 1993)

4 Payne v. County of Jackson, 484 S.W.2d 483 (Mo. 1972) Plummer v. Dace, 818 S.W.2d 317 (Mo. Ct. App. 1991)... 7 Rogers v. Hester, 334 S.W.3d 528 (Mo. Ct. App. 2010)... 19, 20 Stacy v. Truman Medical Center, 836 S.W.2d 911 (Mo. banc 1992)... 14, 15, 16 State v. Nunley, 341 S.W.3d 611 (Mo. 2011) State ex rel. Board of Trustees of North Kansas City Memorial Hospital v. Russell, 843 S.W.2d 353 (Mo. banc 1992) Taylor v. Klund, 739 S.W.2d 592 (Mo. Ct. App. 1987) Topps v. City of Country Club Hills, 272 S.W.3d 409 (Mo. Ct. App. 2008)... 20, 21 Younger v. Missouri Public Risk Entity Management Fund, 957 S.W.2d 332 (Mo. Ct. App. 1997)... 16, 17, 18 Statutes Page MO. REV. STAT (7) (2015) MO. REV. STAT (2015)... 8, 14 MO. REV. STAT (2015).16 MO. REV. STAT (4) (2015) 9, 12 MO. REV. STAT (2015)...10 MO. REV. STAT (2015).9, 10 MO. REV. STAT (2015) 9 3

5 MO. REV. STAT (2015)...9 MO. REV. STAT (2015)...10 MO. REV. STAT (2015)...11, 12, 15 MO. REV. STAT (2015).9 MO. REV. STAT (2015)...16 MO. REV. STAT (1999) 13, 18 MO. REV. STAT (2015).13 MO.REV. STAT (2015) 13 Other Authorities Page MO. SUP. CT. R (d).19, 20 MO. SUP. CT. R (e).20 4

6 STATEMENT OF FACTS Because Lift for Life Academy ( Lift for Life ) disagrees with several portions of Appellant s Statement of Facts, it submits the following additional facts, pursuant to Rule 84.04(f): In her First Amended Petition, Appellant expressly alleges that Lift for Life Academy is a public school. (LF 7 at 6; LF 20 at 6). In its Motion for Summary Judgment, Lift for Life argued that (1) it has sovereign immunity from Appellant s wrongful termination claim unless an exception and/or waiver of such sovereign immunity applies, and (2) Lift for Life has not waived sovereign immunity by its participation in MOPERM. (LF 26-28). In the Trial Court s February 11, 2015 Memorandum, Order, and Judgment sustaining Lift for Life s Summary Judgment Motion, the Court held that Appellant s allegations in her First Amended Petition, including that Lift for Life Academy is a public school, defeat her claim that Lift for Life is not a school entitled to sovereign immunity protection. (LF 55). The Court then held that [e]ven if this Court were to ignore [Appellant s] allegation that Lift for Life is a public school and examine Lift for Life solely as a charter school, the Court still concludes that Lift for Life is entitled to the same sovereign immunity protection under Section , RSMo., as a public school. Id. Finally, the Court held that Lift for Life s participation in MOPERM does not waive its sovereign immunity protection under Section RSMo. (LF 56). 5

7 ARGUMENT: THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF LIFT FOR LIFE ACADEMY BECAUSE IT HAS SOVEREIGN IMMUNITY FROM APPELLANT S WRONGFUL TERMINATION CLAIM TO WHICH NO EXCEPTION APPLIES. INTRODUCTION This Court must decide (1) whether sovereign immunity applies in this case, and (2) if sovereign immunity applies, whether it has been waived by Lift for Life. Appellant attempts to frame this appeal, and the issue of whether a charter school is entitled to the same sovereign immunity as traditional public schools in the state of Missouri, as a matter of first impression. As correctly identified by the Trial Court, however, this Court need not even reach that issue. Appellant s allegation that Lift for Life Academy is a public school defeats her claim that Lift for Life is not entitled to sovereign immunity, as it is well-established that Missouri public schools are entitled to sovereign immunity. Regardless, Missouri law and policy indicates that Missouri charter schools are entitled to sovereign immunity. Finally, as a matter of law, there has been no exception to or waiver of sovereign immunity by virtue of Lift for Life s participation in MOPERM. For the reasons set forth herein, this Court should affirm the ruling of the Trial Court. STANDARD OF REVIEW The propriety of summary judgment is purely an issue of law. Meramec Valley R- III School Dist. v. City of Eureka, 281 S.W.3d 827, 835 (Mo. Ct. App. E.D. 2009). Accordingly, the standard of review on appeal is no different from that which should be employed by the trial court to determine the propriety of sustaining the motion initially. 6

8 Id. Summary judgment is upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. If, as a matter of law, summary judgment is sustainable on any theory, even one entirely different from that addressed by the trial court, it should be sustained on appeal. Bolivar Insulation Co. v. Bella Pointe Dev. LLC, 166 S.W.3d 610, 614 (Mo. Ct. App. 2005). I. SOVEREIGN IMMUNITY APPLIES IN THIS CASE. A. Plaintiff pleads that Lift for Life is a public school, and public schools are entitled to sovereign immunity from common law tort claims under Missouri law. Despite Appellant s extensive attempts to have Lift for Life treated differently than a public school for purposes of sovereign immunity, Appellant s First Amended Petition expressly alleges that Lift for Life Academy is a public school. (LF 7 at 6; LF 20 at 6). In Missouri, public schools are protected by sovereign immunity unless an exception applies. See Aiello v. St. Louis Cmty. Coll. Dist., 830 S.W.2d 556, 559 (Mo. Ct. App. 1992)( The school district, as a political subdivision of this state, is entitled to claim sovereign immunity as a defense to tort suits. ); Plummer v. Dace, 818 S.W.2d 317, 319 (Mo. Ct. App. 1991)( It is not disputed that the school district, a subdivision of the State, is protected from liability under the doctrine of sovereign immunity. ); Patterson v. Meramec Valley R-III Sch. Dist., 864 S.W.2d 14, 15 (Mo. Ct. App. 1993)( A public school or school district is a state public entity. It is, therefore, authorized to claim sovereign immunity against negligent actions. ). Here, as correctly decided by the Trial Court, the sovereign immunity doctrine 7

9 applies to Appellant s claim in light of her pleading that Lift for Life is a public school. Consequently, an examination of the issue raised by Appellant whether sovereign immunity applies to charter schools is superfluous. Nonetheless, as explained in detail below, Missouri law and policy all indicate that Missouri charter schools are entitled to the same sovereign immunity protection as traditional public schools. B. Irrespective of Plaintiff s allegation that Lift for Life is a public school, Missouri law and policy indicate that charter schools are public entities that have sovereign immunity from common law tort claims. 1. Missouri statutes indicate that charter schools are public schools and, therefore, public entities protected by sovereign immunity. A charter school is an independent public school. MO. REV. STAT (2015) (emphasis added). Under Missouri law, the legislature is presumed to know the existing law when enacting a new piece of legislation. Humane Soc y of the US v. State, 405 S.W.3d 532, 538 (Mo. banc 2013) (citation omitted). When the charter school legislation was enacted in 1998, Missouri public schools were entitled to sovereign immunity from common law tort claims. Because the legislature is presumed to have known that public schools were entitled to sovereign immunity, this statutory declaration that charter schools are public schools indicates a clear legislative intent to put charter schools on the same footing as public schools, except for the differences and requirements stated in the Missouri Charter Schools statutes, MO. REV. STAT , et seq. The Missouri Charter Schools statutes, MO. REV. STAT , et seq., contain 8

10 numerous other provisions suggesting that charter schools are public schools/entities or, moreover, that charter schools are entitled to the protection of sovereign immunity. First, MOPERM is referenced twice in the statutory scheme. For the purposes of securing such insurance, a charter school shall be eligible for the Missouri public entity risk management fund pursuant to section MO. REV. STAT (4). Charter school board members shall be subject to the same liability for acts while in office as if they were regularly and duly elected members of school boards in any other public school district in this state. The governing board of a charter school may participate, to the same extent as a school board, in the Missouri public entity risk management fund in the manner provided under sections to MO. REV. STAT (2015) (emphasis added). Furthermore, in Missouri, a public school includes all elementary and high schools operated at public expense. MO. REV. STAT (7) (2015). Missouri charter schools, such as Lift for Life, are operated at the public expense. See LF (citing MO. REV. STAT (2015) ( A charter school receives its state and local revenues directly from the Missouri Department of Elementary and Secondary Education ). Like traditional public schools, charter schools may not charge tuition nor impose fees that a school district is prohibited from imposing. MO. REV. STAT (2015). Charter school personnel may participate in the public school district s retirement plan as public school employees. MO. REV. STAT (2015). Just as with traditional public schools, pupil enrollment, space permitting, is mandatory within the school district in which the charter school operates. MO. REV. 9

11 STAT (2015). Also, pursuant to MO. REV. STAT , [a]ny entity, either public or private, operating, administering, or otherwise managing a charter school shall be considered a quasi-public governmental body and subject to the provisions of sections to Similarly, traditional public schools have been deemed to be quasipublic governmental bodies. See Taylor v. Klund, 739 S.W.2d 592, 593 (Mo. Ct. App. 1987)( In Missouri, it has been said, a school district is in no sense a municipal corporation with diversified powers, but is a quasi public corporation, the arm and instrumentality of the State for one single and noble purpose, viz., to educate the children of the district. ); see also DeMarr v. Kan. City, Sch. Dist., 802 S.W.2d 537, 540 (Mo. Ct. App. 1991) (holding that school districts are quasi-public governmental bodies and are, therefore, protected by the doctrine of sovereign immunity to the same extent as the State. ). Furthermore, MO. REV. STAT directly refutes Appellant s argument that the legislature intended for charter schools to not be treated as public entities for the purposes of sovereign immunity. Charter school board members shall be subject to the same liability for acts while in office as if they were regularly and duly elected members of school boards in other public school districts in this state. MO. REV. STAT (2015). In Missouri, traditional public school board members have sovereign immunity from common law tort claims in their official capacities. See Dale v. Edmonds, et al., 819 S.W.2d 388 (Mo. Ct. App. 1991) (granting summary judgment to the Board of Education for the St. Louis Public Schools in a student s personal injury action on the 10

12 doctrine of sovereign immunity). If charter school board members are subject to the same liability as those in public school districts, they are necessarily afforded the same protections, including sovereign immunity from tort claims against them in their official capacities. Ultimately, the statutory scheme, in addition to expressly stating that charter schools are independent public schools, shows the intention of the legislature for charter schools to have the same protections and resources as traditional public schools for the benefit of charter school students. 2. The public policy reasons behind entitling traditional public schools to sovereign immunity apply with equal force to charter schools. In general, the doctrine of sovereign immunity rests on two public policy considerations: the protection of the public against profligate encroachments on the public treasury and the need for the orderly administration of government, which, in the absence of immunity, would be disrupted if the state could be sued at the instance of every citizen. Balderee v. Beeman, 837 S.W.2d 309, 317 (Mo. Ct. App. E.D. 1992) (overruled on other grounds) (citation omitted). In other words, sovereign immunity guards [funds provided by the public treasury] from depletion by tort claims, which could impair government s ability to carry out its duties. Id. (citing Payne v. County of Jackson, 484 S.W.2d 483, (Mo. 1972)). Because charter schools receive their revenues directly from state and local governments, and sovereign immunity allows for the financial stability of government entities, public policy considerations support the conclusion that charter schools be entitled to sovereign immunity. See MO. REV. STAT. 11

13 (2015) (A charter school is a local education agency that receives its state and local revenues directly from the Missouri Department of Elementary and Secondary Education); see also LF at Moreover, protecting the resources of the schools charged with the responsibility of educating the state s children is of utmost importance. The public policy considerations that underlie a traditional public school s sovereign immunity apply with equal force to charter schools, and, therefore, suggest that charter schools also have sovereign immunity. 3. There is no clear legislative intent that charter schools not be protected by sovereign immunity. The linchpin of Appellant s argument is the following statutory provision: A charter school shall, as provided in its charter: provide liability insurance to indemnify the school, its board, staff and teachers against tort claims. MO. REV. STAT (4). From this, and in relying on the superseded Younger case, Appellant makes the leap in logic that there was clear legislative intent that charter schools not have sovereign immunity because they must purchase liability insurance for all tort claims. The linchpin, however, is pulled a few lines thereafter: For the purposes of securing such insurance, a charter school shall be eligible for the Missouri public entity risk management fund pursuant to section MO. REV. STAT (4). In other words, the statute indicates exactly how charter schools may meet this requirement of purchasing liability insurance through MOPERM. In determining the legislature s intent, we review the statute in the context of the entire statutory scheme on the same 12

14 subject. Babb v. Mo. PSC, 414 S.W.3d 64, 75 (Mo. Ct. App. 2013) (citation omitted). Appellant would like this Court to read a portion of the statute in isolation rather than, as is required to determine legislative intent, read the remainder of the statute and consider the implications of the same. The reference to MOPERM in MO. REV. STAT (4) is the only guidance charter schools have in determining which coverages are required and the amount of coverage required. By statute, the coverages available and/or offered to public entities by MOPERM are established by the MOPERM Board. See MO. REV. STAT ( Moneys in the [MOPERM] fund shall be available for: (1) The payment and settlement of all claims for which coverage has been obtained by any public entity in accordance with coverages offered by the board. ); see also MO. REV. STAT ( The [MOPERM] board shall determine and prescribe all rules, regulations, coverages to be offered, forms and rates to carry out the purposes of sections to ). The limits of coverage in the MOPERM policy are limited to the sovereign immunity cap, and the maximum amount payable per occurrence, per MO. REV. STAT , is Two Million Dollars. On the other hand, under Appellant s offered interpretation that coverage for all torts is required, a charter school could comply with the statute by purchasing a policy with very low limits so long as all tort claims were covered. Appellant s argument could even be read to suggest that the legislature imperiled charter schools by stating that MOPERM coverage would satisfy the liability insurance requirement, while, at the same time, exposing those charter schools to liability for which MOPERM does not issue 13

15 coverage. Finally, employing Appellant s suggestion that tort claims means all tort claims would require a charter school to purchase broad-sweeping liability coverage for any conceivable tort claim committed by a board member, agent, teacher, etc. In this regard, Appellant s offered interpretation and result would have serious cost implications for Missouri charter schools. The plain language of the statute, as well as the absurd results that would be realized if Appellant s interpretation were given effect, suggest that there was absolutely no intention by the legislature by way of MO. REV. STAT (4) to exclude charter schools from sovereign immunity protection. 4. Contrary to Appellant s suggestion, Stacy v. Truman Medical Center is inapplicable but, nonetheless, still indicates that Lift for Life is a public entity entitled to sovereign immunity. In Stacy, the Missouri Supreme Court wrote, In considering the trial court s ruling that [the medical center] is a public entity under the sovereign immunity statute, this Court must decide whether [the medical center] is simply a not-for-profit corporation or whether it is enough like a governmental entity that it is entitled to the benefits of sovereign immunity. 836 S.W.2d 911, 915 (Mo. banc 1992). Charter schools are not like governmental entities; they are governmental entities. See MO. REV. STAT (2015)( A charter school is an independent public school. ). A charter school, like a traditional public school, has the noble goal of educating the 14

16 state s children, and receives its funding from state and local treasuries to do so. 1 As a result, a charter school is funded by the government and is a governmental entity. 2 Contrary to Appellant s suggestion, Lift for Life is not a hybrid entity requiring an analysis of the Stacy factors. Even if an analysis of the Stacy factors is required, each factor points to charter schools being public entities. The first factor whether the public entity performs a service traditionally performed by government weighs in favor of Lift for Life and charter schools as a matter of law. As set forth supra, Missouri courts have held that the government, through public schools, has the noble goal of educating children. The second factor whether the entity is controlled by and directly answerable to one or more public officials, public entities, or the public itself also weighs in favor of Lift for Life being a public entity for the purpose of sovereign immunity. Even though charter schools are governed by a board of directors and may or may not be sponsored by a public school district or other public entity, charter schools are held accountable to 1 In fact, the legislature limits grants, gifts, and donations to charter schools only to those that are not contrary to law applicable to other public schools. MO. REV. STAT (2015). 2 This is a clear point of distinction between Lift for Life and the medical center at issue in Stacy, which received funds from the State, private organizations and foundations, the County, the City, and its patients. Stacy, 836 S.W.2d at 916. Charter schools are not permitted to accept tuition payments, and even accepting donations is limited by statute. 15

17 public officials by statute. Even traditional public schools are permitted by statute to designate an educational service agency to manage the programs within the district. See MO. REV. STAT (2015). The educational service agency designated to manage the affairs of the district shall be a non-profit corporation organized under chapter 355 of the Missouri Revised Statutes. MO. REV. STAT (2015). Thus, the fact that charter schools are required to be organized as non-profit corporations under Chapter 355 has no bearing on whether they are public entities. The third factor whether the limitations, if any, that apply to the creation of a public entity that will have the benefits of sovereign immunity involves an analysis of how and by whom a public entity is formed. Stacy, 836 S.W.2d at 919. If the public entity is formed by the government itself or by a group of voters, it is more likely to be a public entity entitled to sovereign immunity. See id. As applied here, charter schools are approved and chartered by the department of elementary and secondary education. MO. REV. STAT (2015). They cannot be formed by private citizens without state approval. The Stacy factors all require the conclusion that charter schools are public entities cloaked with sovereign immunity. II. AS A MATTER OF LAW, LIFT FOR LIFE S PARTICIPATION IN MOPERM DOES NOT WAIVE SOVEREIGN IMMUNITY. A. Younger has been superseded. Appellant s sole reliance on Younger v. Missouri Public Risk Entity Risk Management Fund, 957 S.W.2d 332 (Mo. Ct. App. W.D. 1997), as to this issue is both puzzling and misleading. Appellant argues that, in light of Younger, MOPERM is not 16

18 authorized to unilaterally limit the insurance it provides to Lift for Life to the exceptions set forth in RSMo (Appellant s Brief, p. 23). The portion of Younger upon which Appellant relies, however, has been expressly superseded by statutory amendment and appellate decisions acknowledging the same. In Younger, the Youngers appealed the grant of summary judgment in favor of MOPERM in a garnishment action to recover on a judgment of about $1.3 million in favor of Youngers and against the nursing staff of a hospital owned and operated by the City of Sedalia in an underlying medical malpractice suit. 957 S.W.2d at 333. In the garnishment action, the Youngers argued that MOPERM funds were available for payment of their unsatisfied judgment against the nurses under , as well as under the Memorandum of Coverage issued by MOPERM. Id. The trial court concluded that the Youngers claims were not covered under the MOPERM policy, as it only provided coverage for liability created by the statutory waiver of sovereign immunity. Id. In reversing the trial court, the Court of Appeals first noted that statutorily mandated coverage supersedes the agreement of the parties and invalidates any contrary clauses in those agreements as void against public policy. Id. at As a result, before considering whether the parties intended for the Youngers claims to be included in the Memorandum of Coverage, the Court of Appeals considered whether mandated coverage for the Youngers claims. According to the Court, because the legislature used the word shall in section (2), moneys in the fund must be paid for claims falling within the coverage purchased by the public entity and for tort claims against the public entity s officers and employees to the extent these claims relate 17

19 to conduct performed in connection with the employees official duties. Id. at 336. The specific language of this section indicates that the legislature intended funds to be available for tort claims against the officers and employees of a participating entity. Id. [M]oneys in the fund are available for tort claims regardless of whether the entity obtained such coverage. Id. at 337. In other words, it is unnecessary for participating public entities to obtain this coverage because it is mandated by statute. Id. Therefore, moneys in the fund shall be available for the settlement and payment of tort claims so described in section (2). Id. As a result, the Court of Appeals ruled that the statutory requirement of coverage superseded any limitation on coverage for tort claims provided in the Memorandum of Coverage. Following Younger, the Missouri legislature amended MO. REV. STAT (2) to its current version, which states that money from the fund shall be available for, The payment and settlement of tort claims against any officer or employee of a participating public entity for which coverage has been obtained in accordance with the coverages afforded by the board when the claim is upon conduct of such officer or employee arising out of and performed in connection with her or her official duties on behalf of the participating public entity. MO. REV. STAT (2) (1999) (emphasis added to new language); Naucke v. Mo. Pub. Entity Risk Mgmt. Fund, 95 S.W.3d 166, 168 (Mo. Ct. App. W.D. 2003). Following the amendment to the (2) in 1998, subsequent appellate courts have concluded that the language added by the legislature in 1999 permits the policy coverage to be limited either by the terms of coverage offered by the Fund or the coverage obtained by the covered entity. 18

20 Naucke, 95 S.W.3d at 168 (upholding a trial court s granting of summary judgment in favor of MOPERM where the plaintiffs sought punitive damages from MOPERM and the MOPERM Memorandum of Coverage expressly excluded coverage for punitive damages). Thus, due to the amendment to the statute, public entities participating in MOPERM may limit covered claims to only those for which the public entity does not have sovereign immunity. Appellant s argument, which cites to the overturned portion of the Younger opinion, that Lift for Life may not limit coverage in a Memorandum of Coverage ignores the revised version of section (2) and is plainly incorrect as a matter of law. B. Appellant has not preserved any challenge pertaining to the MOPERM Policy language in a Point Relied On; regardless, the MOPERM Policy does not cover claims for wrongful discharge. Appellant s lone argument as to whether the MOPERM policy waives sovereign immunity was that, based on Younger, MOPERM has no authority to exclude any tort claim whatsoever from coverage. No other challenge to the MOPERM policy language has been made in the trial court or in Appellant s Points Relied On. Pursuant to MO. SUP. CT. R (d), an appellant's brief must properly present its "points relied on," in which the appellant is required to: "(A) identify the trial court ruling or action the appellant challenges; (B) state concisely the legal reasons for the appellant's claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." MO. SUP. CT. R (d)(1)(A)-(C); Rogers v. Hester, 334 S.W.3d 528, 536 (Mo. App. 2010). MO. SUP. CT. R (e) 19

21 further provides that "[t]he argument shall be limited to those errors included in the 'Points Relied On.'" Thus, any issues not properly raised before the appellate court in a Point Relied On and supported with authority in the argument section of the brief are deemed waived or abandoned. MO. SUP. CT. R (d); State v. Nunley, 341 S.W.3d 611, 625 (Mo. 2011). Accordingly, Appellant has preserved no claim of error in the Trial Court s finding that, as a matter of law, the MOPERM policy does not waive sovereign immunity. Nonetheless, this Court has held that the exact same MOPERM policy language in Lift for Life s policy does not waive a municipality s sovereign immunity. In Topps v. City of Country Club Hills, a former at-will employee of the city filed suit alleging whistleblower retaliation for reporting unethical practices and asserted that she was forced to resign and constructively terminated. 272 S.W.3d 409, 412 (Mo. Ct. App. E.D. 2008). The city moved for summary judgment, asserting sovereign immunity. Id. at 413. In response, the employee argued that the city waived sovereign immunity by participating in the MOPERM Fund for its insurance coverage. Id. Upon review of the MOPERM Memorandum of Coverage, the Court held that the MOPERM policy did not constitute a waiver of the city s sovereign immunity. Id. at 419. First, the Topps court held that there was no affirmative language covering common law wrongful termination claims. Id. at In examining the MOPERM Memorandum of Coverage Section I, Parts A(1) and A(2), the Court noted that the policy sets forth coverage provided to the City for claims on causes of action established by Missouri law. Id. The Court further noted that plaintiff s whistleblower claim was 20

22 based on Missouri law, and that the only claims or causes of action established by Missouri law which were covered under the MOPERM policy were those arising out of injuries resulting from the operation of motor vehicles or dangerous conditions of property. Id. Examining the language of this section, it appears clear the MOPERM policy was drafted to cover specifically only those types of claims to which sovereign immunity does not apply under section , as the language of this section of the policy mirrors the language of the statute exactly. Id. at 416, n. 5. The Court concluded that the insurance coverage extended under the MOPERM policy does insure the City for any of its governmental functions except those involving the operation of motor vehicles or the dangerous condition of property. Id. at 417. In addition, the Topps Court held: Not only is the MOPERM policy devoid of affirmative language indicating [plaintiff s] whistleblower claim is covered, but the policy expressly includes disclaimer language that reserves the City s sovereign immunity. Section I of the Memorandum of Coverage clearly states that the policy should not be construed to broaden the liability of the city beyond the sovereign immunity provisions of Sections to , nor to abolish or waive any defense at law which might otherwise be available to the city. Because a number of courts have held that a public entity retains full sovereign immunity when the insurance policy 21

23 contains a disclaimer stating that the entity s procurement of the policy was not meant to constitute a waiver of sovereign immunity, the disclaimer provision in the city s MOPERM policy acts to retain the city s sovereign immunity. Id. at 418 (citing Parish v. Novus Equities, Co., 231 S.W.3d 236, 246 (Mo. Ct. App. E.D. 2007); State ex rel. Bd. of Trustees of City of North Kansas City Mem. Hosp. v. Russell, 843 S.W.2d 353, 360 (Mo. banc 1992); Conway v. St. Louis Cty., 254 S.W.3d 159, 167 (Mo. Ct. App. E.D. 2008); Langley v. Curators of Univ. of Mo., 73 S.W.3d 808, 811 (Mo. Ct. App. W.D. 2002)). Here, Lift for Life only maintains coverage through MOPERM. (LF 30). The applicable MOPERM Memorandum of Coverage contains identical policy language to the language examined by this Court in Topps. Specifically, the MOPERM Memorandum of Coverage at Section I, Part A(1) also provides, For claims on causes of action established by Missouri law, MOPERM will pay by reason of liability arising out of: a. [injuries resulting from motor vehicle operation]; b. [injuries caused by condition of a public entity s property in a dangerous condition]. (LF 36). Furthermore, just as in Topps, and other cases examining the MOPERM policy language, the Memorandum of Coverage applicable to Lift for Life states as follows at Section I, Part B: Nothing contained in this section, or the balance of this document, shall be construed to broaden the liability of the Member Agency beyond the provisions of Section to of the Missouri statutes, nor to abolish or waive any defense at law which might otherwise be available to the Member Agency or its officers and employees. (LF 36). 22

24 Just as in Topps, Lift for Life s MOPERM policy (1) does not affirmatively cover Appellant s common law wrongful termination claim, and (2) retains Lift for Life s sovereign immunity by express disclaimer of the same. Accordingly, Appellant cannot establish an exception to Life for Life s sovereign immunity, and, therefore, the Trial Court correctly ruled that Lift for Life is entitled to judgment as a matter of law as to Count I of the First Amended Petition. CONCLUSION For the reasons set forth herein, this Court should affirm the Trial Court s grant of summary judgment in favor of Respondent Lift for Life Academy, Inc. Respectfully submitted, /s/ Timothy J. Reichardt Timothy J. Reichardt, #57684 Andrew T. Tangaro, #64193 Behr, McCarter & Potter, P.C Bonhomme Ave., Suite 1400 Clayton, MO treichardt@bmplaw.com atangaro@bmplaw.com Attorneys for Respondent 23

25 CERTIFICATE OF COMPLIANCE Comes now Counsel for Respondent, and hereby certifies that: (1) the brief includes the information required by Rule 55.03; (2) the brief complies with the limitations contained in Rule 84.06(b); (3) the brief contains 5,379 words, relying on the word processing system used to prepare this brief; (4) the brief complies with the page limits of Local Rule 360; and (5) the brief was prepared in 13 point Times New Roman font on Microsoft Word. A true and correct copy of the foregoing Brief was electronically filed this 1st day of December, 2015 to the Court s electronic filing system, and a paper copy of the same was served on counsel for Appellant. Along with the electronic copy of this Brief, pursuant to Local Rule 333(d), four (4) paper copies of the Brief will be delivered to the Clerk s office no more than five (5) days from December 1, /s/ Timothy J. Reichardt Timothy J. Reichardt 24

26 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and complete copy of the above and foregoing was served this 1st day of December, 2015, by operation of this Court s electronic filing system and by electronic mail and by placing the same in the United States Mail, postage pre-paid, and addressed to: Mr. Douglas Ponder Ms. Jaclyn Zimmermann Ponder Zimmermann, LLC 1141 South 7th Street St. Louis, MO dbp@ponderzimmermann.com jmz@ponderzimmermann.com Attorneys for Appellant /s/ Timothy J. Reichardt 25