Opinion
Nos. WD 60723, 60724
August 27, 2002
Appeal from the Circuit Court of Miller County, Missouri, The Honorable James A. Franklin, Jr., Judge.
Daniel N. McPherson, Jefferson City, MO, Attorney for Appellants.
Thomas E. Rice, Jr., Kara Trouslot Stubbs, and Elizabeth S. Raines, Kansas City, MO, Attorneys for Respondent.
Before Howard, P.J., and Smith and Newton, JJ.
R. Mitchel Bachtel and Cary M. Bisbey appeal the dismissal with prejudice, under Rule 55.27(a)(6), of their petitions for damages for wrongful discharge by the respondent, the Miller County Nursing Home District. In dismissing, the trial court held that on the face of the appellants' petitions it was clear that, as a matter of law, the respondent was immune, by reason of sovereign immunity, from suit by the appellants.
All rule references are to the Missouri Rules of Civil Procedure (2001), unless otherwise indicated.
The appellants raise two points on appeal. In Point I, they claim that the trial court erred in dismissing, with prejudice, their damage petitions against the respondent for failure to state a claim upon which relief could be granted on the basis of respondent's sovereign immunity because their wrongful discharge claims against the respondent, which were filed pursuant to § 198.070.10, prohibiting, in part, a facility from dismissing or retaliating against an employee for reporting any violation or suspected violation of laws, ordinances or regulations applying to the facility, were statutorily excepted from the bar of the respondent's sovereign immunity. In Point II, they claim that the trial court erred in dismissing with prejudice their damage petitions for failure to state a cause of action on the basis of respondent's sovereign immunity because the court dismissed without first determining whether respondent had waived its sovereign immunity, pursuant to § 537.610.1, through the purchase of liability insurance covering the wrongful discharge claims of the appellants.
All statutory references are to RSMo 2000, unless otherwise indicated.
We affirm.
Facts
The respondent is a nursing home district, as defined in § 198.200, which owns and operates the Miller County Nursing Home, located in Miller County, Missouri. Appellant Bachtel, a licensed practical nurse, was employed by the respondent in several different capacities from February 1995 through October 18, 2000, the date he was terminated. Appellant Bisbey, a doctor of osteopathic medicine, was employed by the respondent as its medical director from September 1, 1997, until his termination on October 1, 2000.
Bachtel filed a petition for damages against the respondent in the Circuit Court of Miller County on July 27, 2001, alleging wrongful discharge. Bisbey also filed a petition for damages for wrongful discharge against the respondent in the Circuit Court of Miller County on August 2, 2001. The appellants' petitions alleged that they were wrongfully discharged by the respondent in that they were terminated for reporting the abuse and neglect of residents of the respondent's facility to the Missouri Division of Aging and the Directors of the Miller County Nursing Home District in violation of § 198.070.10, which prohibits, inter alia, the retaliation by a covered facility against a nursing home employee who has reported the violation or suspected violation of laws, ordinances, or regulations.
Appellant Bisbey's petition also included a claim for breach of an employment contract, but that claim was voluntarily dismissed by Bisbey on October 12, 2001.
On August 29, 2001, the respondent filed its answer to Bachtel's petition and a motion to dismiss the petition for failure to state a claim upon which relief could be granted. And, on September 6, 2001, in response to Bisbey's petition, the respondent filed a motion to dismiss for failure to state a claim upon which relief can be granted and filed its answer on September 10, 2001. In support of its motions to dismiss, the respondent alleged that from the face of the appellants' petitions it was clear that their suits were barred by sovereign immunity.
On September 20, 2001, the trial court heard the respondent's motions and took them under advisement. On October 31, 2001, the trial court entered two similar orders sustaining the respondent's motions to dismiss with prejudice in that the respondent was immune from suit as a result of sovereign immunity.
The appellants appealed the dismissal of their petitions to this court. Their appeals were consolidated by order of this court on December 18, 2001.
I.
In Point I, the appellants claim that the trial court erred in dismissing with prejudice, under Rule 55.27(a)(6), their damage petitions against the respondent for failure to state a claim upon which relief could be granted on the basis of respondent's sovereign immunity because their wrongful discharge claims against the respondent, which were filed pursuant to § 198.070.10, were statutorily excepted from the bar of the respondent's sovereign immunity. We disagree.
"The standard of review when a case is dismissed under Rule 55.27(a)(6) is 'whether, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to plaintiffs, the averments invoke principles of substantive law entitling plaintiffs to relief.'" Mark VII, Inc. v. Barthol , 926 S.W.2d 128, 131 (Mo.App. 1996) ( citing Lowrey v. Horvath , 689 S.W.2d 625, 626 (Mo. banc 1985)) . In determining whether a dismissal under Rule 55.27(a)(6) was proper, we may not address the merits of the discharge case or consider evidence outside the pleadings. Brennan By and Through Brennan v. Curators of the Univ. of Mo . , 942 S.W.2d 432, 434 (Mo.App. 1997).
In support of their claim in this point, the appellants contend that the respondent facility is subject to the provisions of §§ 198.003 to 198.186, known as the "Omnibus Nursing Home Act" (ONH Act), § 198.003, and, as such, is amenable to suit for damages for wrongful discharge by reason of § 198.070.10, which prohibits, inter alia, dismissal of or retaliation against an employee by a covered nursing home facility for reporting any violation or suspected violation of laws, ordinances or regulations applying to the facility. While conceding that the respondent would ordinarily be immune from suit for damages for wrongful discharge by reason of its sovereign immunity, the appellants contend that a wrongful discharge claim brought pursuant to § 198.070.10 is exempt from the bar of sovereign immunity by virtue of the language of that subsection and the language of § 198.093.6 and § 198.067.5. Section 198.093.6 reads, in pertinent part: "Nothing contained in sections 198.003 to 198.186 shall be construed as abrogating, abridging or otherwise limiting the right of any person to bring appropriate legal actions in any court of competent jurisdiction to insure or enforce any legal right or to seek damages." Section 198.067.5 reads: "The imposition of any remedy provided for in sections 198.003 to 198.186 shall not bar the imposition of any other remedy."
The respondent concedes that the appellants are correct in their assertion that it is subject to the provisions of the ONH Act, however, it contends that the Act does not "prescribe" an exception to sovereign immunity that would subject it to suit for wrongful discharge under § 198.070.10. There is no dispute that pursuant to its sovereign immunity, the respondent was immune from suit by the appellants for wrongful discharge unless an exception to the respondent's sovereign immunity applied. State ex rel. New Liberty Hosp. Dist. v. Pratt , 687 S.W.2d 184, 186 (Mo. banc 1985). Thus, to state a cause of action sufficient to survive the respondent's motion to dismiss on the pleadings, the appellants' petitions, when viewed in their most favorable light, must plead facts, which if taken as true, establish an exception to the rule of sovereign immunity. Burke v. City of St. Louis , 349 S.W.2d 930, 931 (Mo. 1961); Brennan , 942 S.W.2d at 436; Talley v. Mo. Highway and Transp. Comm'n , 659 S.W.2d 290, 291 (Mo.App. 1983); Best v. Schoemehl , 652 S.W.2d 740, 743 (Mo.App. 1983). This pleading requirement conflicts with this court's holding in Greene County v. State , 926 S.W.2d 701, 704 (Mo.App. 1996), where we held that sovereign immunity was an affirmative defense that had to be pled and proven by the avoiding party. However, the cases cited, including the Missouri Supreme Court pronouncement in Burke , appear to hold otherwise. Thus, to the extent that Greene County can be cited for the proposition that sovereign immunity is an affirmative defense, it should not be followed.
This opinion has been reviewed and approved by order of the court en banc.
The appellants contend that they pled an exception to the rule of sovereign immunity, pointing to the fact that they expressly pled their causes of action based upon § 198.070.10, which they claim provides an express exception to the rule of sovereign immunity. The question then for us is whether under the provisions of the ONH Act, specifically § 198.070.10, a covered facility's sovereign immunity is waived such that a cause of action for damages for wrongful discharge can be maintained by an employee against the facility.
In deciding the issue presented, we necessarily must interpret the language of the statutes cited by the appellants for why sovereign immunity would not apply to bar their wrongful discharge claims against the respondent. In interpreting statutes, we are to ascertain the intent of the legislature and give effect to that intent, if possible. Pavlica v. Dir. of Revenue , State of Mo . , 71 S.W.3d 186, 189 (Mo.App. 2002). In order to ascertain the legislature's intent, we are to give the language used its plain and ordinary meaning. Id . In determining whether a statute is clear and unambiguous, we look to whether the language is plain and clear to a person of ordinary intelligence. Westrope Assocs. v. Dir. of Revenue , 57 S.W.3d 880, 883 (Mo.App. 2001). "Where the legislative intent is made evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute an intent which is contrary thereto." Pavlica , 71 S.W.3d at 189 (citation omitted) . If the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied. Id .
Pursuant to § 537.600, sovereign immunity remains the general rule in this state, protecting public entities from liability for negligent acts. State ex rel. Cass Med. Ctr. v. Mason , 796 S.W.2d 621, 622 (Mo. banc 1990); Fantasma v. Kansas City, Mo., Bd. of Police Comm'rs , 913 S.W.2d 388, 391 (Mo.App. 1996). The rule is not waived unless the state consents to the public entity in question being sued, or in other words, waives its sovereign immunity. McNeill Trucking Co., Inc. v. Mo. State Highway Transp. Comm'n , 35 S.W.3d 846, 848 (Mo. banc 2001); Fort Zumwalt Sch. Dist. v. State , 896 S.W.2d 918, 923 (Mo. banc 1995). To constitute a waiver of sovereign immunity, there must be an express consent by the state to be sued. Keeney v. Mo. Highway Transp. Comm'n , 70 S.W.3d 597, 600 (Mo.App. 2002); King v. Probate Div., Circuit Court of the County of St. Louis, 21 st Judicial Circuit , 958 S.W.2d 92, 93 (Mo.App. 1997).
Section 537.600.1 provides an absolute waiver of sovereign immunity for injuries directly resulting from the negligent acts or omissions of a public employee operating a motor vehicle and injuries caused by the dangerous condition of a public entity's property. Fantasma , 913 S.W.2d at 391. "Additionally, under Section 537.610 RSMo, when a public entity purchases liability insurance for tort claims sovereign immunity is waived to the extent of and for the specific purposes of the insurance purchased." Id . In this point, the appellants are not claiming an exception to sovereign immunity under the exceptions of § 537.600 or § 537.610. Rather, they claim an exception based upon the language of §§ 198.070.10, 198.093.6, and 198.067.5.
Section 198.070.10 provides:
No person who directs or exercises any authority in a facility shall evict, harass, dismiss or retaliate against a resident or employee because such resident or employee or any member of such resident's or employee's family has made a report of any violation or suspected violation of laws, ordinances or regulations applying to the facility which the resident, the resident's family or an employee has reasonable cause to believe has been committed or has occurred.
Although this court has held that a private cause of action can be maintained by an employee for wrongful discharge predicated on the dismissal and retaliation prohibition language found in § 198.070.10, Clark v. Beverly Enters.-Mo., Inc . , 872 S.W.2d 522, 525-26 (Mo.App. 1994), it cannot be argued that the statute expressly creates such a cause of action, much less that it contains an express consent of the state for covered facilities to be sued for such a cause of action. It would be illogical to suggest that the legislature intended to expressly waive sovereign immunity to a suit in tort in a public policy statute condemning and prohibiting certain conduct by a public entity, such as § 198.070.10, which does not expressly create or even mention a private cause of action in tort. The proof of this fact is in the pudding. The appellants do not point to and we cannot find any language in § 198.070.10 that could in any way be interpreted as an express waiver of sovereign immunity in a tort action against a covered facility predicated on the prohibitions of that section. If the legislature truly intended in § 198.070.10 to waive sovereign immunity for a cause of action in tort predicated on that section, we would expect explicit language to that effect such as that which appears in § 393.720, which provides, in pertinent part, that joint municipal utility commissions "shall have the duties, privileges, immunities, rights, liabilities and disabilities of a public body politic and corporate but shall not have taxing power nor shall it have the benefit of the doctrine of sovereign immunity." (Emphasis added.) No comparable language appears in § 198.070.10.
As to the other statutory provisions cited by the appellants in support of their claim, § 198.093.6, which reads, in pertinent part: "Nothing contained in sections 198.003 to 198.186 shall be construed as abrogating, abridging or otherwise limiting the right of any person to bring appropriate legal actions in any court of competent jurisdiction to insure or enforce any legal right or to seek damages"; and § 198.067.5, which reads, in pertinent part: "The imposition of any remedy provided for in sections 198.003 to 198.186 shall not bar the imposition of any other remedy," neither helps the appellants' cause. These provisions, when the language used is given its plain and ordinary meaning, simply stand for the proposition that whatever rights or remedies a plaintiff otherwise has under the law, outside of the ONH Act, are in no way restricted, limited, or barred by the rights or remedies provided for in the Act. However, the provisions of §§ 198.093.6 and 198.067.5 cannot be read as expanding one's rights or remedies under the law. The clear import of these statutes is to maintain the legal status quo of the plaintiff with respect to his rights and remedies. Under this interpretation then, if a plaintiff is otherwise barred by sovereign immunity from suing a facility in tort, the provisions in question in and of themselves cannot be read as constituting an express waiver of sovereign immunity.
In light of our holding, that a wrongful discharge action brought pursuant to § 198.070.10 is not exempt from the application of sovereign immunity, a detailed review of the appellants' petitions reveals that they pled no facts, which if taken as true, would constitute a waiver of the respondent's admitted sovereign immunity. As such, with respect to the appellants' claim as to the purported exception to sovereign immunity of § 198.070.10, the trial court did not err in dismissing with prejudice, under Rule 55.27(a)(6), the appellants' petitions for failure to state a cause of action upon which relief could be granted.
Point denied.
II.
In Point II, the appellants claim that the trial court erred in dismissing with prejudice their damage petitions for failure to state a cause of action on the basis of respondent's sovereign immunity because the court dismissed without first determining whether respondent had waived its sovereign immunity, pursuant to § 537.610.1, through the purchase of liability insurance covering the wrongful discharge claims of the appellants. Specifically, the appellants claim that prior to dismissing their claims, the trial court should have sua sponte granted them time for discovery in order to discover whether the respondent had purchased liability insurance for wrongful discharge claims such that if it did, they could have amended their petitions so as to properly plead the exception of § 537.610.1 and avoid dismissal of their petitions.
The appellants are correct in their assertion that pursuant to § 537.610.1, a public entity, when it purchases liability insurance for tort claims, waives its sovereign immunity to the extent of and for the specific purposes of the insurance purchased. Fantasma , 913 S.W.2d at 391. However, they cite no authority that supports their claim that the trial court was duty bound, prior to dismissing their petitions, to sua sponte grant them time for discovery to allow them an opportunity to determine whether there was a factual basis for pleading the exception of § 537.610.1 so as to avoid having their petitions dismissed for failure to state a cause of action due to the application of sovereign immunity. The only authority cited, Fields v. Curators of the Univ. of Mo . , 848 S.W.2d 589 (Mo.App. 1993), does not address the issue presented.
In Fields , the plaintiff filed a petition for medical malpractice against multiple defendants, including the Curators. However, the plaintiff's claim against the Curators was subsequently dismissed with prejudice by the trial court for failure to state a claim upon which relief could be granted because sovereign immunity barred the plaintiff's suit. Id . at 590. On appeal, the appellant claimed, inter alia, that the trial court erred in dismissing her claim against the Curators before determining whether they had purchased liability insurance such that sovereign immunity would be waived for claims such as hers. Id . at 591. Although agreeing with the appellant that prior to dismissing the case the trial court was required to determine whether the Curators had purchased liability insurance waiving sovereign immunity, id . at 592-93, the Fields court did not address the issue presented in the case at bar: whether the trial court erred in failing to sua sponte grant additional time for discovery in order to uncover whether the sovereign had purchased liability insurance which would waive its immunity from suits of this nature.
In Fantasma , 913 S.W.2d at 391, this court did address the exact issue presented by the appellants in this point. There, like here, the defendants filed a motion to dismiss for failure to state a cause of action based on the application of sovereign immunity, which the trial court sustained. Id . at 392. On appeal, the plaintiffs claimed, inter alia, that the trial court erred in failing to allow them to complete discovery and/or amend their petition prior to dismissing their petition. Id . This court affirmed the trial court's dismissal, stating:
[a]s to appellants' contention they were not permitted time to complete discovery and/or amend their petition, nothing in the record reflects that appellants sought leave of the trial court to amend their petition, nor does the record demonstrate that appellants requested any additional discovery. The trial court is not required to sua sponte grant leave to a party to amend a deficient petition. In fact, if a party fails to request leave of the court to amend his petition, the court may assume he has made the strongest presentation of his case which the facts permit and was satisfied with his pleading. Likewise, when a party does not make a request for discovery, the trial court will not be convicted of error for failing to allow the parties an opportunity for additional discovery.
Id . (citations omitted) . Like in Fantasma , the record in our case does not reflect that the appellants ever asked for additional time for discovery or leave to amend. Accordingly, Fantasma controls and their claim in this point is without merit.
Point denied.
Conclusion
The circuit court's orders dismissing with prejudice, pursuant to Rule 55.27(a)(6), the appellants' petitions for wrongful discharge for failure to state a claim upon which relief could be granted, are affirmed.
Howard, P.J., and Newton, J., concur.