IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT

IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT KQUAWANDA MOORE, ) ) Appellant, ) ) v. ) ED 102765 ) LIFT FOR LIFE ACADEMY, INC. ) ) ) Respondent. ) Appeal from the Circuit Court of St. Louis City Twenty-Second Judicial Circuit, Division 18 Judge Robert Dierker Brief of Appellant PONDER ZIMMERMANN LLC Douglas Ponder, #54968 dbp@ponderzimmermann.com Jaclyn M. Zimmermann, #57814 jmz@ponderzimmermann.com 20 South Sarah Street St. Louis, MO 63108 Phone: 314-272-2621 FAX: 314-272-2713 ATTORNEYS FOR APPELLANT

TABLE OF CONTENTS Table of Contents... 1 Table of Authorities... 2 I. Jurisdictional Statement... 4 II. Statement of Facts... 5 III. Points Relied On... 7 IV. Argument... 8 V. Conclusion... 25 Certificate of Compliance... 26 Certificate of Service... 27 1

Cases TABLE OF AUTHORITIES Airport Tech Partners LLP v. State, 462 S.W.3d 740 (Mo. banc 2015).....8 Gilley v. Mo. Pub. Entity Risk Mgmt. Fund, 437 S.W.3d 315 (Mo. App. 2014).....14 Jones v. Missouri Highway Commission, 557 S.W.2d 225 (Mo. banc 1977)..11 Parktown Imports, Inc. v. Audi of Am., Inc., 278 S.W.3d 670 (Mo. banc 2009)...10, 11 St. Louis Police Officers Ass n v. Board of Police Comm rs, 259 S.W.3d 526 (Mo. banc 2008)..17 Stacy v. Truman Medical Center, 836 S.W.2d 911 (Mo. 1992) 21 State ex rel. Bd. of Trustees v. Russell, 843 S.W.2d 353 (Mo. banc 1992)..12 Wells Fargo Bank, N.A. v. Derrick Thomas Academy Charter School, Inc., Case No. 13-00767-CV-W-GAF (214)... 8 Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29 (Mo. 1998)....18, 20 Younger v. Mo. Pub. Entity Risk Mgmt. Fund, 957 S.W.2d 332 (Mo. App. 1997)...9, 13, 16, 23 Statutes Section 160.400 RSMo.. 14, 15, 22 Section 160.405 RSMo.... 8, 9, 13, 15, 16, 17, 18, 19, 20, 22 Section 160.420 RSMo... 18 Section 537.600 RSMo 8, 9, 10, 11, 12, 13, 14, 16, 17, 19, 20, 21, 22, 23 Section 537.610 RSMo.. 9, 11, 12, 16 2

Section 537.700 RSMo. 12, 15, 20 Section 537.705 RSMo. 10, 12, 13, 14, 23 Constitutional Provisions Mo. Const. art. V, 3.. 4 3

I. JURISDICTIONAL STATEMENT This is an appeal from a judgment of Division 18 of the Circuit Court of St. Louis City, in which the Trial Court sustained Respondent s Motion for Summary Judgment. Appellate jurisdiction is vested in this Court pursuant to Article 5, Section 3 of the Missouri Constitution. Mo. Const. art. V, 3. The court of appeals shall have general appellate jurisdiction in all cases except those within the exclusive jurisdiction of the supreme court. Id. This case does not involve the validity of a treaty or statute of the United States, or of a statute or provision of the constitution of this state, the construction of the revenue laws of this state, the title to any state office and in all cases where the punishment imposed is death, so general appellate jurisdiction is appropriate. Id. 4

II. STATEMENT OF FACTS On or about October 31, 2013, Appellant Kquawanda Moore (hereinafter referred to as Moore ) was terminated from her job as a bus driver with Respondent Lift for Life Academy, Inc. (hereinafter Lift for Life ). (LF at 8.) Lift for Life is a charter school located in the City of St. Louis. (LF at 51.) On January 31, 2014, Moore filed suit in the Circuit Court of the City of St. Louis, setting forth a claim for common law wrongful discharge against Lift for Life. (LF at 7.) On July 7, 2014, Moore filed a Motion for Leave to File First Amended Petition. (LF at 17.) On July 17, 2014, Moore s Motion for Leave to File First Amended Petition was sustained, and her First Amended Petition was filed on that same date. (LF at 25.) Therein, Moore set forth a claim of common law wrongful discharge, and also alleged that Lift for Life was not protected by sovereign immunity because RSMo. 160.405.4(4) requires charter schools to maintain liability insurance to cover tort claims. (LF at 20-24.) On August 18, 2014, Lift for Life filed a Motion for Summary Judgment, arguing it was protected by sovereign immunity under RSMo. 537.600 because it is allowed to purchase insurance through the Missouri Public Entity Risk Management Fund, or MOPERM, and its insurance is limited, through a Memorandum of Coverage issued by MOPERM, to only cover claims involving the two statutory exceptions set forth in RSMo. 537.600. (LF at 26.) On that same date, Lift for Life also filed its Statement of Uncontroverted Facts in Support of its Motion for Summary Judgment. (LF at 29.) On September 15, 2014, Moore filed her Response to Defendant s Statement of 5

Uncontroverted Facts, as well as her Statement of Additional Uncontroverted Facts. (LF at 46 and 49.) On September 24, 2014, Lift for Life filed its Response to Plaintiff s Statement of Additional Uncontroverted Facts. (LF at 51.) On February 11, 2015, the Trial Court entered its Memorandum, Order and Judgment sustaining Lift for Life s Motion for Summary Judgment. (LF at 53.) The Trial Court laid out three primary bases as to why it believed charter schools are protected under RSMo. 537.600: (1) charter schools are public schools; (2) RSMo. 160.405.13 states that any entity, either public or private, operating administering, or otherwise managing a charter school shall be considered a quasi-public governmental body ; and (3) charter schools are allowed to participate in MOPERM. (LF at 53-58.) This appeal follows. 6

III. POINTS RELIED ON I. The Trial Court erred in entering summary judgment in favor of Lift for Authorities Life, based on its determination that charter schools are public entities for purposes of the sovereign immunity statute, RSMo. 537.600, because the legislature clearly demonstrated its intent that charter schools not be protected by sovereign immunity when the legislature created charter schools via statute in 1998 in that RSMo. 160.405.4(4) requires all charter schools to maintain liability insurance for tort claims. Section 160.405 RSMo... 9, 13, 15, 16, 17, 18, 19, 20, 22 Section 537.610 RSMo..9, 11, 12, 16 Younger v. Mo. Pub. Entity Risk Mgmt. Fund, 957 S.W.2d 332 (Mo. App. 1997) 9, 13, 16, 23 7

IV. ARGUMENT I. The Trial Court erred in entering summary judgment in favor of Lift for Life, based on its determination that charter schools are public entities for purposes of the sovereign immunity statute, RSMo. 537.600, because the legislature clearly demonstrated its intent that charter schools not be protected by sovereign immunity when the legislature created charter schools via statute in 1998 in that RSMo. 160.405.4(4) requires all charter schools to maintain liability insurance for tort claims. A. Standard of Review. This appeal presents a legal issue, such that review is de novo. Airport Tech Partners LLP v. State, 462 S.W.3d 740, 744 (Mo. banc 2015). To the extent the factual record is reviewed, it is reviewed in a light most favorable to the party against whom summary judgment was entered. Id. B. Introduction and Summary. This case presents an important issue of first impression: whether charter schools are protected by sovereign immunity. 1 As explained below, charter schools are 1 This issue was recently put before the United States District Court for the Western District of Missouri in Wells Fargo Bank, N.A. v. Derrick Thomas Academy 8

entirely creatures of statute, and when the legislature created them in 1998, it clearly demonstrated its intent that charter schools be subject to liability for tort claims in general, meaning it did not intend for charter schools to be protected by sovereign immunity. The charter school statutory scheme is found at RSMo. 160.400 160.425. Section 160.405.4(4) states that charter schools shall provide liability insurance to indemnify the school, its board, staff and teachers against tort claims. The term tort claims has a clear and defined meaning in the context of sovereign immunity. It means any tort claims beyond the two types of claims expressly identified as exceptions to sovereign immunity in RSMo. 537.600, i.e., tort claims in general. See RSMo. 537.610 (entitled Liability insurance for tort claims may be purchased by whom. and stating public entities may purchase insurance for tort claims and such purchase of insurance is considered a waiver of sovereign immunity); State ex rel. Bd. of Trustees v. Russell, 843 S.W.2d 353, 360 (Mo. banc 1992) (explaining that public entities may purchase insurance to cover tort claims beyond the exceptions in RSMo. 537.600 and such purchase is a waiver of sovereign immunity); Younger v. Mo. Pub. Entity Risk Mgmt. Fund, 957 S.W.2d 332 (Mo. App. 1997) (holding that MOPERM was statutorily mandated to pay judgment on medical malpractice claim against employees of public Charter School, Inc., Case No. 13-00767-CV-W-GAF (2014). However, the case was decided on different grounds. 9

entity because the MOPERM statute, RSMo. 537.705, required MOPERM to cover all tort claims against employees of a public entity). Public entities which are entitled to sovereign immunity are not immune from claims for injuries resulting from car accidents or dangerous conditions of property, and they can also waive their immunity for other types of tort claims if they voluntarily purchase insurance for those claims. Unlike charter schools, public entities that enjoy the benefit of sovereign immunity are not required to purchase insurance for general tort claims. The meaning of the term tort claims was in place in 1998 when charter schools were created. Thus, by requiring all charter schools to have insurance for tort claims (as opposed to it being voluntary for public entities who are subject to sovereign immunity) the legislature clearly intended charter schools to be subject to liability for tort claims in general, which is synonymous with not being protected by sovereign immunity. It required them to be insured for such claims, clearing foreseeing that they would be subject to liability for such claims. C. The Legislature Did not Intend to Give Charter Schools Protection Under the Sovereign Immunity Statute, RSMo. 537.600, When It Created Charter Schools in 1998. The primary rule of statutory interpretation is to give effect to the legislative intent as reflected in the plain language of the statute at issue. Parktown Imports, Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). Other rules of statutory interpretation are merely aids that allow courts to ascertain the legislature s intended 10

result. Id. Here, in order to ascertain the legislature s intent with regard to whether charter schools are to be treated like traditional public entities in the context of sovereign immunity, we first need to review the legislative and judicial history of sovereign immunity, MOPERM, and charter schools in Missouri. i. Sovereign Immunity. Sovereign immunity was originally a common law concept. However, the Missouri Supreme Court abolished sovereign immunity with a 1977 case styled Jones v. Missouri Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). The legislature quickly reacted to the Jones decision, and in 1978 sovereign immunity was reinstated via statute. The sovereign immunity statutory scheme is found at RSMo. 537.600 537.650. Under RSMo. 537.600.1, sovereign immunity was reinstated for public entities as it existed prior to the Jones decision. However, RSMo. 537.600.1 also created two exceptions to sovereign immunity: (1) the motor vehicle exception; and (2) the dangerous condition of property exception. In addition, RSMo. 537.600.2 states that the two exceptions set forth in RSMo. 537.600.1 apply regardless of whether the public entity is functioning in a governmental or proprietary function, and regardless of whether the public entity is covered by a liability insurance for tort. Section 537.610 then goes on to identify another waiver of sovereign immunity. The title of this Section is as follows: Liability for tort claims may be purchased by whom limitation on waiver of immunity maximum amount payable for claims out of single occurrence exception apportionment of settlements inflation penalties. 11

The statute states, in pertinent part, that public entities may purchase liability insurance for tort claims and that sovereign immunity is waived for claims covered by any such insurance. RSMo. 537.610.1. And, Missouri courts have long recognized that the waiver in RSMo. 537.610, commonly referred to as the insurance waiver, means that public entities may, if they choose to, purchase insurance to cover tort claims beyond the exceptions in RSMo. 537.600 and such purchase of insurance is a waiver of sovereign immunity. See, e.g., State ex rel. Bd. of Trustees v. Russell, 843 S.W.2d 353, 360 (Mo. banc 1992). ii. MOPERM. MOPERM is essentially a self-insurance pool/fund created by statute in 1986. The MOPERM statutes are found at RSMo. 537.700 537.756. Under RSMo. 537.705.1, all Missouri public entities have the option to participate in MOPERM. The term public entity is defined in RSMo. 537.700.2(3) as any city, county, township, village, town, municipal corporation, school district, special purpose or taxing district, or any other local public body created by the general assembly. 2 Thus, if an entity is a public entity pursuant to RSMo. 537.700.2(3), it can participate in MOPERM without the need for any additional statutory authorization. In addition, the legislature has authorized certain types of entities that do not meet the statutory definition of a public entity to participate in MOPERM. One such type of entity is charter schools. See 2 The sovereign immunity statutes, RSMo. 537.600 537.650, do not define the term public entity. 12

160.405.4(4) (expressly enabling charter schools to secure insurance for tort claims through MOPERM). A case decided in 1997 by the Missouri Court of Appeals, Western District is noteworthy in the instant matter, in that the Court made the distinction between tort claims in general, and the torts excepted under the sovereign immunity statute. In Younger v. Mo. Pub. Entity Risk Mgmt. Fund, 957 S.W.2d 332 (Mo. App. 1997), a judgment was obtained against several employees of a public entity that participated in the MOPERM fund, specifically nurses working for a county hospital. The plaintiffs argued that MOPERM was required to cover the judgment because, at that time, RSMo. 537.705.1(2) stated the MOPERM fund was available for the payment and settlement of tort claims against any officer or employee of a participating public entity when the claim is upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the participating public entity[.] In response, MOPERM argued it was not required to cover the judgment because the Memorandum of Coverage provided to the defendant public entity limited the insurance to the two exceptions set forth in RSMo. 537.600, namely the motor vehicle exception and the dangerous condition exception. The Younger Court rejected MOPERM s argument, and found in favor of the plaintiffs. The Court explained that the Memorandum of Coverage was irrelevant as the statute clearly stated insurance was available for tort claims against employees. Id. at 336-37. Thus, the Younger case establishes that the term tort claims means tort claims in 13

general, and the term s meaning cannot be limited by MOPERM to include only the two statutory exceptions set forth in RSMo. 537.600. 3 iii. Charter Schools. Charter schools are a specific type of public school in Missouri created by statute in 1998. The Missouri Department of Elementary and Secondary Education describes charter schools as follows on its website: Charter Schools are independent public schools that are free from rules and regulations that apply to traditional public school districts unless specifically identified in charter school law. In exchange for flexibility, charter school sponsors are to hold the schools accountable for results. Charter schools are non-sectarian, do not discriminate in their admission policies and may not charge tuition or fees. (http://dese.mo.gov/quality-schools/charter-schools). As noted above, the charter school statutory scheme is found at RSMo. 160.400 160.425. While charter schools are considered a type of public school, they are created differently than traditional public schools, overseen differently than traditional public schools, and are subject to many different requirements than traditional public schools. For example, a charter school is required to be organized as a Missouri non-profit corporation under chapter 355. See RSMo. 160.400.7. In addition, a charter 3 Section 537.705.1(2) was amended in 1999 such that MOPERM is no longer required to cover tort claims in general against employees of public entities, unless the public entity purchases such insurance and thereby waives sovereign immunity. See Gilley v. Mo. Pub. Entity Risk Mgmt. Fund, 437 S.W.3d 315, 319 (Mo. App. 2014). However, this amendment in no way altered the meaning of the term tort claims. 14

school is required to have a sponsor, which can be the local school district, a public university, a private university, or the Missouri Charter Public School Commission. See RSMo. 160.400.3. The sponsor, as opposed to the Missouri Department of Elementary and Secondary Education, is then responsible for oversight of the charter school. See RSMo. 160.405.6 & 160.405.7. And, RSMo. 160.405.3 states that charter schools shall: Except as provided in sections 160.400 to 160.425, be exempt from all laws and rules relating to schools, governing boards and school districts. iv. The Legislature Demonstrated its Intent That Charter Schools Not be Treated as Public Entities in the Context of Sovereign Immunity By Requiring Charter Schools to Have Insurance for Tort Claims. The legislature s intent with regard to whether charter schools should be treated as public entities in the context of sovereign immunity is found in RSMo. 160.405.4(4). Therein, the legislature stated that charter schools shall provide liability insurance to indemnify the school, its board, staff and teachers against tort claims. In addition, in that same section, RSMo. 160.405.4(4), the legislature stated: For the purposes of securing such insurance, a charter school shall be eligible for the Missouri public entity risk management fund pursuant to section 537.700. As discussed above, the term tort claims has a clear and defined meaning in the context of sovereign immunity, and this clear and defined meaning was already understood and recognized in 1998 when charter schools were created. The term tort claims means tort claims in general, or tort claims beyond the two statutory exceptions 15

(namely the motor vehicle and dangerous condition exceptions). See RSMo. 537.610 and Younger, 957 S.W.2d 332 (Mo. App. 1997). Considering the foregoing, there can be no legitimate doubt about the legislature s intent with regard to whether charter schools are to be protected by sovereign immunity. Charter schools are required, pursuant to RSMo. 160.405.4(4), to purchase liability insurance to cover tort claims. There is nothing in RSMo. 160.405.4(4) limiting this requirement to tort claims falling within the two exceptions set forth in RSMo. 537.600. Thus, since charter schools are required to be insured for tort claims, it is clear the legislature intended for charter schools to be subject to liability for tort claims. Otherwise, there would be no need for insurance. The legislature s intent on this issue is best ascertained by directly comparing the language of RSMo. 537.610 and RSMo. 160.405.4(4). Section 537.610 states: 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, However, RSMo. 160.405.4(4) states: A charter school shall, as provided in its charter provide liability insurance to indemnify the school, its board, staff and teachers against tort claims. Thus, a traditional public entity may choose to open itself up to liability for tort claims by purchasing insurance for tort claims, whereas charter schools shall have insurance for tort claims and thereby be subject to liability for tort claims. By using the word shall, instead of may, the legislature clearly demonstrated an intent that charter schools not have a choice as to whether they are subject to liability for 16

tort claims. Generally, the use of the word shall connotes a mandatory duty. St. Louis Police Officers Ass n v. Board of Police Comm rs, 259 S.W.3d 526, 528 (Mo. banc 2008) (holding that a statute stating the Board shall provide health insurance to retired police officers meant the Board was required to provide the same insurance as that provided to active police officers). Hence, it is clear that the legislature wants traditional public entities to have a choice about whether they are open to liability for tort claims, but does not want charter schools to have that same choice. v. The Legislature Also Demonstrated Its Intent That Charter Schools Not be Treated as Public Entities in the Context of Sovereign Immunity By Declaring That Charter Schools Should be Treated as Public or Quasi- Public Bodies in Several Other Contexts, But Not Making a Similar Declaration In the Context of Sovereign Immunity. The charter school statutory scheme, found in RSMo. 160.400 160.425, does not contain an express declaration as to whether charter schools are to be treated as public entities under RSMo. 537.600, other than the instruction that charter schools are required to have insurance for tort claims discussed above. 4 The legislature only 4 While not addressing actual charter schools, RSMo. 160.405.12 states that board members of a charter school shall be subject to the same liability for acts while in 17

identified three contexts in which charter schools should be treated like public bodies or quasi-public bodies, specifically leaving out sovereign immunity. First, RSMo. 160.405.4(4) states: For purposes of an audit by petition under section 29.230, a charter school shall be treated as a political subdivision on the same terms and conditions as the school district in which it is located. 5 Second, RSMo. 160.405.13 states: Any 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 610.010 to 610.035. Sections 610.010 to 610.035 deal with whether records of public governmental bodies and quasi-public governmental bodies are closed or open to the public. And third, RSMo. 160.420.3 states: For purposes of participating in the retirement system [of the local school district], the charter schools shall be considered to be a public school within the school district, and personnel employed by the charter school shall be public school employees. Missouri courts recognize the rule of statutory construction that the express mention of one thing implies the exclusion of another. Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 32 (Mo. 1988) (internal quotation omitted). Thus, by declaring office as if they were regularly and duly elected members of school boards in any other public school district in this state. 5 It is noteworthy that this declaration is found in the same statutory subsection where the legislature states that charter schools shall have liability insurance for tort claims. 18

that charter schools should be treated as a public or quasi-public body in several specific circumstances, but failing to declare that charter schools should be treated as a public entity under RSMo. 537.600, the legislature demonstrated its intent that charter schools not be treated as public entities under RSMo. 537.600. Stated another way, if the legislature wanted charter schools to be treated as public entities under RSMo. 537.600, it would have said so. Instead, the legislature said charter schools are required to maintain insurance for tort claims. D. The Fact That Charter Schools Are a Type of Public School Does Not Mean They Are Protected By Sovereign Immunity. The Trial Court laid out three bases for summary judgment in favor of Lift for Life. The first basis discussed in the Trial Court s Memorandum, Order and Judgment is that charter schools are protected by sovereign immunity because they are a type of public school. Simply put, this rationale does not address the fact that charter schools were created via statute in 1998, long after sovereign immunity was reinstated in RSMo. 537.600. Thus, there was nothing prohibiting the legislature from creating a new type of public school and, at the same time, excluding it from protection under RSMo. 537.600. The issue is not whether charter schools are a type of public school, it is whether charter schools are public entities under RSMo. 537.600. E. Section 160.405.13 Does Not Establish That Charter Schools Are Protected by Sovereign Immunity. The Trial Court s second enumerated basis for granting summary judgment in favor of Lift for Life is RSMo. 160.405.13, which states: Any entity, either public or 19

private, operating, administering, or otherwise managing a charter school shall be considered a quasi-public governmental body and subject to the provisions of sections 610.010 to 610.035. However, the fact the legislature declared that a public or private entity that runs a charter school shall be considered a quasi-public governmental body for purposes of determining whether its records are open to the public, does not suggest the legislature intended for charter schools to be protected by sovereign immunity. In fact, as discussed above, it suggests the opposite conclusion, considering Missouri courts recognize the rule of statutory construction that the express mention of one thing implies the exclusion of another. Wolff Shoe Co., 762 S.W.2d at 32. Again, if the legislature wanted charter schools to be considered public entities under RSMo. 537.600, it easily could have said so. Instead, the legislature instructed charter schools to maintain insurance for tort claims. F. The Fact That Charter Schools Are Allowed to Participate In MOPERM Does Not Establish That Charter Schools Are Protected By Sovereign Immunity. The third basis enumerated by the Trial Court for granting summary judgment in favor of Lift for Life is that charter schools are allowed to participate in MOPERM. In that regard, RSMo. 160.405.4(4) states that a charter school shall have liability insurance for tort claims, and that: For the purposes of securing such insurance, a charter school shall be eligible for the Missouri public entity risk management fund pursuant to section 537.700. However, at no place in RSMo. 160.405.4(4) does the legislature indicate that the insurance secured by a charter school from MOPERM can be limited to 20

cover only claims involving the motor vehicle and dangerous condition exceptions to RSMO. 537.600. Hence, what the legislature envisioned by granting charter schools the ability to participate in MOPERM is not that they would be protected from liability for tort claims, but that they would be insured for liability for tort claims. G. Under Stacy v. Truman Medical Center, Charter Schools Do Not Qualify as Public Entities. Even if this Court concludes the legislature did not demonstrate a clear intent that charter schools not be treated as public entities in the context of sovereign immunity by requiring charter schools to have liability insurance for tort claims, charter schools nonetheless do not qualify as public entities for purposes of sovereign immunity. When dealing with situations where the legislature s intent with regard to whether a particular type of entity is to be protected under RSMo. 537.600, commonly referred to as hybrid entities, Missouri courts look at three factors: (1) whether the entity must perform a service traditionally performed by the government; (2) whether the entity is controlled by and directly answerable to one or more public officials, public entities, or the public itself; and (3) what limitations, if any, apply to the creation of a public entity that will have the benefits of sovereign immunity. Stacy v. Truman Medical Center, 836 S.W.2d 911, 919 (Mo. 1992). As noted in Stacy, the most critical factor is the second factor: whether the entity is controlled by and directly answerable to a public official, public entity, or the public itself. Id. The very nature of charter schools dictates that charter schools cannot be considered public entities under the Stacy analysis. Charter schools necessarily must be 21

organized as a non-profit corporation, and there is no requirement that its governing board contain any public officials. See RSMo. 160.400.6 & 160.400.7. In addition, RSMo. 160.405.3 states that charter schools shall: Except as provided in sections 160.400 to 160.425, be exempt from all laws and rules relating to schools, governing boards and school districts. And, charter schools are overseen by a sponsor, not the Missouri Department of Elementary and Secondary Education, and private universities are authorized to be charter school sponsors. Hence, the basic idea behind charter schools runs counter to the second and most important factor under the Stacy analysis. Charter schools are designed not to be controlled by the government. H. Even if Charter Schools Are Public Entities, MOPERM Has No Authority to Limit the Insurance Provided to Lift for Life to Claims Involving the Motor Vehicle and Dangerous Condition Exceptions. Even assuming, arguendo, that charter schools are public entities, Lift for Life is not entitled to summary judgment because Lift for Life was insured for tort claims under MOPERM, and therefore waived any arguable sovereign immunity. MOPERM is not and was not allowed to limit its coverage to Lift for Life to just those claims that are excluded from RSMo. 537.600, because Lift for Life was required by statute to purchase insurance for tort claims in general. As noted throughout this Brief, RSMo. 160.405.4(4) requires charter schools to have insurance for tort claims, and also authorizes charter schools to obtain their required insurance for tort claims through MOPERM. Here, Lift for Life obtained 22

insurance through MOPERM. However, MOPERM has limited, or attempted to limit, the insurance being provided to Lift for Life to claims involving the motor vehicle and dangerous condition exceptions set forth in RSMo. 537.600. The Younger v. Mo. Pub. Entity Risk Mgmt. Fund case, discussed above, is directly on point, and establishes that MOPERM does not have any authority to limit the insurance provided to Lift for Life to the statutory exceptions. 957 S.W.2d 332 (Mo. App. 1997). In Younger, the version of RSMo. 537.705.1(2) in effect at the time, stated the MOPERM fund was available for the payment and settlement of tort claims against any officer or employee of a participating public entity when the claim is upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the participating public entity[.] Notwithstanding, MOPERM attempted to limit the insurance it provided to the defendant public entity and its employees, through its own Memorandum of Coverage, to claims involving the motor vehicle and dangerous condition exceptions. In ruling against MOPERM, the Younger Court determined MOPERM had no authority to limit the insurance to the statutory exceptions, such that the Memorandum of Coverage was irrelevant, as coverage for tort claims was statutorily mandated. Id. at 336-37. The same holds true here. Lift for Life is required to have insurance for tort claims, and Lift for Life is authorized to obtain the required insurance from MOPERM. MOPERM, on the other hand, is not authorized to unilaterally limit the insurance it provides to Lift for Life to the exceptions set forth in RSMo. 537.600. Thus, regardless of the Memorandum of Coverage issued by MOPERM to Lift for Life, Lift for Life is 23

insured for tort claims through MOPERM. As such, Lift for Life has waived any sovereign immunity it might have had for tort claims. 24

V. CONCLUSION For all of the foregoing reasons, Appellant respectfully asks the Court to reverse the decision of the Trial Court and remand this matter for further proceedings. Respectfully submitted, PONDER ZIMMERMANN LLC By /s/ Douglas B. Ponder Douglas Ponder, #54968 dbp@ponderzimmermann.com Jaclyn M. Zimmermann, #57814 jmz@ponderzimmermann.com 20 South Sarah Street St. Louis, MO 63108 Phone: 314-272-2621 FAX: 314-272-2613 Attorneys for Appellant Kquawanda Moore 25

CERTIFICATE OF COMPLIANCE The foregoing brief complies with Missouri Rule of Civil Procedure 84.06. The type size and style of this brief is in Times New Roman 13-point font in compliance with Missouri Rule 84.06(a)(6). The word count based on the word processing system used to prepare this brief is 5382 words. The word-processing system used in preparing this brief is Microsoft Word. /s/ Douglas B. Ponder Douglas Ponder, #54968 dbp@ponderzimmermann.com Jaclyn M. Zimmermann, #57814 jmz@ponderzimmermann.com 20 South Sarah Street St. Louis, MO 63108 Phone: 314-272-2621 FAX: 314-272-2713 Attorneys for Appellant 26

CERTIFICATE OF SERVICE The undersigned certifies that a true and correct electronic copy of the foregoing was served this 16 th day of October, 2015, by and through the court s electronic filing system and two paper copies via US Mail, postage prepaid, to: Timothy J. Reichardt Behr, McCarter & Potter, P.C. 7777 Bonhomme Avenue, Suite 1400 St. Louis, MO 63105 Attorneys for Respondent /s/ Douglas B. Ponder 27