The city filed a motion for summary judgment claiming that, although it had insurance coverage, the insurance policy it had purchased contained express language preserving its sovereign immunity, except as to those claims for which sovereign immunity already was waived by statute – i.e., claims involving injuries resulting from the negligent operation of motor vehicles or injuries resulting from dangerous conditions on government property.

The trial court denied the city's motion for summary judgment.

The city sought a writ of prohibition from the court of appeals that was denied. The city then sought a writ of prohibition from the Missouri Supreme Court.

The City's Insurance Policy

The insurance policy issued to the city provided:

Section I—COVERAGES

A. Insuring Agreement — Liability for Law Enforcement Wrongful Acts

1. We will pay those sums that the insured becomes legally obligated to pay as “damages” resulting from a “law enforcement wrongful act” to which this insurance applies.

* * *

3. This insurance applies to “damages” resulting from a “law enforcement wrongful act” only if the “law enforcement wrongful act” was first committed:

a. By an insured in the course and scope of their “law enforcement activities” for you and

b. During the policy period.

The policy also stated:

SECTION IV — WHO IS AN INSURED

If you are designated in the Declarations as a governmental unit, you are an insured. Each of the following is also an insured but only with respect to your “law enforcement activity”;

1. Your current or previously elected or appointed officials, but only for the conduct of their duties as your elected or appointed officials.

2. Your “employee” or “volunteer workers” but only for acts within the course and scope of their employment or volunteer activities by or for you;

3. Any person or organization providing services to you under any mutual aid or similar agreement, but only within the scope of the mutual aid or agreement

4. Owners of commandeered equipment other than an “auto” while the equipment is in your temporary custody and control.

An endorsement provided:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

MISSOURI CHANGES — PROTECTION OF IMMUNITY

This endorsement modifies insurance provided under the following:

LAW ENFORCEMENT LIABILITY COVERAGE PART

LAW ENFORCEMENT LIABILITY COVERAGE PART

(CLAIMS–MADE)

The following is added to SECTION I — COVERAGES

A. INSURING AGREEMENT — LIABILITY FOR LAW ENFORCEMENT WRONGFUL ACTS

We have no duty to pay “damages” on your behalf under this policy unless the defenses of sovereign and governmental immunity are inapplicable to you.

The following is added to SECTION VI — CONDITIONS

This policy and any coverages associated therewith does not constitute, nor reflect an intent by you, to waive or forego any defenses of sovereign and governmental immunity available to any Insured, whether based upon statute(s), common law or otherwise, including Missouri Revised Statute Section 537.610 or any amendments; or Missouri Revised Statute Section 71.185 or any amendments.

Missouri Revised Statute Section 71.185.1 provides:

Any municipality engaged in the exercise of governmental functions may carry liability insurance and pay the premiums therefor to insure such municipality and their employees against claims or causes of action for property damage or personal injuries, including death, caused while in the exercise of the governmental functions, and shall be liable as in other cases of torts for property damage and personal injuries including death suffered by third persons while the municipality is engaged in the exercise of the governmental functions to the extent of the insurance so carried.

Section 537.610.1 provides:

The commissioner of administration, through the purchasing division, and the governing body of each political subdivision of this state, notwithstanding any other provision of law, may purchase liability insurance for tort claims, made against the state or the political subdivision, but the maximum amount of such coverage shall not exceed two million dollars for all claims arising out of a single occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence…. Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions of this section and in such amount and for such purposes provided in any self-insurance plan duly adopted by the governing body of any political subdivision of the state.

Section 537.600 provides:

1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;

(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition….

The Missouri Supreme Court's Decision

The court granted the writ of prohibition sought by the city, finding that its insurance policy did not waive its sovereign immunity under § 537.600 but, rather, that the terms of the policy preserved the grant of sovereign immunity.

In its decision, the court explained that the city was a municipality entitled to sovereign immunity so long as it was engaged in a governmental function or the claims against it did not fall within one of the statutory exceptions to immunity. The court then pointed out that the insurance policy purchased by the city expressly disclaimed a waiver of sovereign immunity and provided coverage to the city only for those claims for which sovereign immunity had been statutorily waived.

Therefore, the court concluded, the city had not waived sovereign immunity when it had purchased an insurance policy “that disclaimed coverage for any actions that would be prohibited by sovereign immunity.”

The case is State ex rel. City of Grandview, Missouri v. Grate, No. SC 95283 (Mo. April 5, 2016).