S.M. v. R.B.

JUSTICE WEBER delivered the Opinion of the Court. The complaint alleges that R.B., an educational aide for the Missoula School District, sexually assaulted four-year-old plaintiff. S.M. who was enrolled in the Missoula School District special education program for the developmentally disabled. The defendants include the School District and the School District personnel involved in the special education program. The District Court for the Fourth Judicial District, Missoula County, granted defendants’ motion to dismiss the Amended Complaint of the plaintiffs on the grounds of immunity, and subsequently granted the motion to dismiss the Second Amended Complaint on the same grounds. Plaintiffs appeal. We affirm in part and reverse in part. The issues are: 1. Have the Montana statutes and case law interpretations resulted in an ambiguity requiring a reversal of the District Court holding that the defendants are immune under § 2-9-111, MCA? 2. Does the purchase of insurance waive immunity? 3. Did the District Court improperly fail to rule on plaintiffs’ claims under 42 U.S.C. § 1983? 4. Is § 2-9-111, MCA, unconstitutional? The facts as alleged in the Amended Complaint and the Second Amended Complaint are as follows: Plaintiffs included S.M., her two parents, and the other two minor — 324 — children in her family. S .M. was a four-year-old suffering developmental disabilities and was enrolled in the School District’s special education program when the acts occurred. Plaintiffs allege that the special education program established a special relationship between S.M., her family, and the School District. R.B. was an educational aide for the School District, who helped in the education and training of developmentally disabled children attending the School District’s program. The School District maintained a policy of liability insurance insuring against liabilities arising from its negligence. Plaintiffs contend the procurement of such insurance constitutes a waiver of sovereign immunity to the extent of the insurance coverage. Plaintiffs alleged that on or about April 16, 1987, R.B. sexually assaulted S.M. and committed sodomy and attempted rape. S.M. received vaginal lacerations of such severity that reconstructive surgery will be required at adulthood. She suffers continual nightmares, and has become fearful of school. Plaintiffs alleged that the School District and its employees were negligent in the hiring, controlling and supervising of R.B. as an educational aide. Plaintiffs maintain the School District knew or should have known that R.B. had “a predatory predisposition toward young developmentally disabled children by virtue of prior reports” that warned the School District of R.B.’s “antisocial and dangerous behavior”. Plaintiffs alleged seven different causes of action with various theories of liability which will be discussed where appropriate. In substance the defendants assert that plaintiffs’ claims are barred by the following defenses: doctrine of sovereign immunity; doctrine of respondeat superior; doctrine of exhaustion of remedies; failure to seek administrative review; lack of jurisdiction; claims for monetary damages barred by § 2-9-108, MCA; claims for punitive damages barred by § 27-1-221, MCA; and claims barred by 42 U.S.C. § 1983 (1981). Following the failure of R.B. to appear, plaintiffs moved for default judgment which was entered against him on September 8, 1989. The School District filed a Rule 12, M.R.Civ.P., motion to dismiss the plaintiffs’ complaint. On January 25, 1990, the District Court granted the motion to dismiss the plaintiffs’ Amended Complaint on — 325 — the grounds of immunity. Subsequently, the District Court also granted defendants’ motion to dismiss plaintiffs’ Second Amended Complaint on the same grounds. From that order, plaintiffs appeal. I. Have the Montana statutes and case law interpretations resulted in an ambiguity requiring a reversal of the District Court holding that the defendants are immune under § 2-9-111, MCA? Plaintiffs argue there is a statutory ambiguity which is apparent upon a comparison of § 2-9-111, MCA, the immunity section, and § 20-3-331, MCA, which authorizes the trustees of a school district to purchase insurance coverage against liability for death, injury or disability of any person. Essentially plaintiffs argue there is no purpose in authorizing a school district to purchase liability insurance if there is immunity. This contention is cared for in Part II of this opinion in which we conclude that the purchase of liability insurance in this case does constitute a waiver of immunity. Plaintiffs contend there is ambiguity as a result of the various cases previously decided in Montana. In particular, plaintiffs rely upon B.M. v. State (1982), 200 Mont. 58,649 P.2d 425, [1 Ed.Law 157.] Plaintiffs argue that in B.M. this Court found there was no governmental immunity for negligence committed under a special education program and that such theory should be applied in the present case. In considering the cases, it is necessary that we first set forth the provisions of § 2-9-111, MCA: “Immunity from suit for legislative acts and omissions. (1) As used in this section: “(a) the term ‘governmental entity5 includes the state, counties, municipalities, and school districts; “(b) the term ‘legislative body5 includes the legislature vested with legislative power by Article V of The Constitution of the State of Montana and any local governmental entity given legislative powers by statute, including school boards. “(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof. “(3) A member, officer, or agent of a legislative body is immune for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body. “(4) The immunity provided for in this section does not extend to — 326 — any tort committed by the use of a motor vehicle, aircraft, or other means of transportation.” Plaintiffs have not discussed the cases subsequent to B.M. which must be considered. In State ex rel. Eccleston v. Montana Third Judicial Dist. Ct. (1989), 240 Mont. 44, 53, [8 Ed.Law 146g,] 783 P.2d 363, 369, the forth the contentions of the plaintiffs in B.M. and stated: “In B.M., the plaintiffs sued the State for negligence in placing a six-year old child in a special education program for educable mentally retarded children. The State was granted summary judgment based on immunity under § 2-9-111, MCA. We reversed on the grounds that the legislature had not enacted legislation to limit the liability of school boards in the administration of special education programs. We held that in the absence of a clear statutory declaration granting immunity it is this Court’s duty to permit rather than to deny an action for negligence. B.M., 649 P.2d at 427.” However, Eccleston pointed out that § 2-9-111, MCA, was not discussed in B.M. In concluding that under the decisions, the plain language of the statute constitutes a clear statutory declaration granting immunity, the Court said in Eccleston: “The plain meaning of the actual language used in § 2-9-111, MCA, was not discussed in our decision in B.M. v. State. We have decided several other immunity cases since our 1982 decision in B.M. In the process, we have arrived at the current construction of § 2-9-111, MCA, on a case-by-case basis. B.M.’s rule of strict construction still holds true. However it is now clear, particularly after our decisions in Bieber [v. Broadwater County, (1988) 232 Mont. 487, 759 P.2d 145,] and Peterson v. [Great Falls School District No. 1, (1989) 237 Mont. 376, 773 P.2d 316, 8 Ed.Law 61,] that the plain language of the statute constitutes a clear statutory declaration granting immunity to the relators in this case.” Eccleston, 783 P.2d at 369. The Court then analyzed further and pointed out that the statute granted immunity to both the school district and its individual employees, and stated: “In this regard, we are not asserting in this opinion that the statute is unequivocally clear at first glance. Indeed, several interpretations of § 2-9-111, MCA, have been argued in the line of cases that have come before us since the statute’s adoption. However, it is this line of cases, particularly our recent decisions in Bieber and Peterson that has given a specific and reasonable interpretation to the statute based on the plain meaning of the actual language used. Moreover, this interpretation of § 2-9-111, MCA, leads us to but one conclusion: — 327 — the statute grants immunity to both the school district and its individual employees in this case.” Id. at 369. It is clear that Eccleston disposes of the argument made by the plaintiff. This interpretation was approved in Hayworth v. School Dist. No. 19 (1990), 243 Mont. 503, 795 P.2d 470, [9 Ed.Law 108,] in which this Court affirmed the Eccleston rationale and its interpretation of B.M., and reached the conclusion that the claims of the plaintiffs in Hayworth were barred by the immunity found in § 2-9-111, MCA. In a similar manner, in Crowell v. School Dist. No. 7 (Mont. 1991), 805 P.2d 522, 48 St.Rep. 81 [10 Ed. Law 8,] this Court affirmed the rationale of Eccleston, holding that the school district in Crowell was immune from suit for an act or omission of its agent and that the physical education teacher was the agent of the school district. Further the Court concluded that the claim for damages arose from the lawful discharge by the teacher of an official duty associated with actions of the school district and its legislative body. The Court held that the physical education teacher was immune under § 2-9-111, MCA. Montana now has a number of consistent interpretations of § 2-9-111, MCA, which are controlling on the present issue. We conclude that there is no basis for a reversal of the holding of the District Court that the defendants were immune under the provisions of § 2-9-111, MCA. II. Does the purchase of insurance waive immunity? Plaintiffs maintain that even if the School District and its employees are immune, such immunity is waived to the extent of existing liability insurance coverage. The School District argues that the grant of immunity is a public right which cannot be waived. In Crowell this Court concluded that the purchase of insurance may constitute a waiver of immunity by a school district. In Crowell, the plaintiff alleged that the negligence of the physical education teacher and the school district caused her injuries. Summary judgment was granted to the defendants based on immunity. On appeal plaintiff contended that any such immunity was waived by the school district’s purchase of an insurance policy specifically covering teachers and physical training instructors. After an extensive review — 328 — of Montana legislative history and the case law of other jurisdictions, this Court concluded: “We emphasize that Montana’s statutory provisions are unique. We conclude that the Montana Legislature has reached the following conclusion: while a school district is granted immunity of various types, a school district still is granted authority to purchase insurance which may have the effect of waiver of immunity to the extent of the insurance proceeds. We do not find it necessary to imply a waiver, as the intention of the Legislature is clear. That intention is reemphasized by its authorization of tax levies sufficient to pay for insurance premiums. That intention is consistent with the legislative theory that a claim against a school district should be paid in a manner similar to payment required of a private party. We conclude that the Legislature has declared its intent to allow a school district to waive immunity to the extent of the insurance proceeds.” Crowell, 805 P.2d at 533. This Court then made the following holding: “Balancing all applicable factors, we hold that the purchase by the School District of liability insurance waives its immunity to the extent of the coverage granted by the pertinent insurance policy.” Crowell, 805 P.2d at 534. In accordance with the holding in Crowell, we hold that the purchase by the School District of liability insurance waives its immunity to the extent of the coverage granted by the pertinent insurance policies. We remand to the District Court for further proceedings consistent with this holding. III. Did the District Court improperly fail to rule on plaintiffs’ claims under 42 U.S.C. § 1983? By its Opinion and Order dated January 25, 1990, the District Court granted defendants’ motion to dismiss the Amended Complaint with prejudice on the grounds that the named defendants were immune from suit for damages under § 2-9-111, MCA, and cases interpreting that section. The District Court did not specifically rule on the § 1983 claims. Plaintiffs contend that the District Court abused its discretion by dismissing those claims. The defendants urge that the doctrine of implied findings should be used to reach the conclusion that the District Court did rule on the federal claims. In a consideration of the § 1983 claims of the plaintiffs, the District Court was required to analyze the complaint, the facts presented to — 329 — it, and to apply the law in reaching a decision as to whether or not § 1983 claims were barred. The court did not make such an analysis. Apparently it assumed that the § 1983 claims would be barred under § 2-9-111, MCA. We note that Howlett v. Rose (1990),_U.S._, 110 S.Ct. 2430, 110 L.Ed.2d 332, is a case in which the United States Supreme Court concluded that a state immunity defense was not available in a § 1983 action brought in a state court, when such a defense would not be available if the action were brought in a federal court. Howlett precludes any implication on our part that the District Court properly dismissed § 1983 claims. We therefore remand this issue for consideration and determination by the District Court. IV. Is § 2-9-111, MCA, unconstitutional? In their pleadings the plaintiffs briefly alleged deprivation of constitutional rights. In a similar manner, plaintiffs’ briefs contain only a limited argument on theories of unconstitutionality. It appears that the plaintiffs added constitutional arguments in the hope that if previous contentions failed, there might be some basis for a reversal on theories of unconstitutionality. In view of our remand to the District Court on the issues of waiver of immunity by insurance and also 42 U.S.C. § 1983, it may be that the plaintiffs will choose no longer to urge the constitutional issues. If they conclude that they wish to present such issues, then both sides may present their theories and briefs to the District Court and request an appropriate determination by that court. We note that the District Court did not rule on this issue. We conclude it is not appropriate in this case to consider the issue of unconstitutionality of § 2-9-111, MCA. We reverse the orders of dismissal of the District Court and remand for further proceedings consistent with this opinion. CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.