Opinion No. 43-74

Topics:

STATE UNIVERSITY.
UNIVERSITY OF MISSOURI.

Summary conclusion

The Board of Curators of the University of Missouri may assume responsibility for operation of the Residence Center in Independence currently operated by Central Missouri State University and the Center may be operated as a part of the University of Missouri at Kansas City at the discretion of the curators.

January 24, 1974

Honorable Alex J. Fazzino
Representative, District 22
Room 302, Capitol Building
Jefferson City, Missouri 65101

Dear Representative Fazzino:

 May 28, 1974 OPINION LETTER NO. 4t Answer. by Letter - Dean Mr. Walter G. Sartorius Member, Missouri Board of Probation and Parole Post Office Box 267 Jefferson City, Missouri 65101 Dear Mr. Sartorius: This letter has been prepared i by you. Your questions are as fol "Section 105.710 - ohs \ provides for: 'Payment NI) \I' o a maxi¬mum of one-hurkd `c. \t olu§c n ? . liars for all claims arisrn' ou't _ ane act except Question No. 2. Does the term 'arising out of the same act' limit the damages up to $100,000 for the total number of suits filed, or is it applicable to each separate suit filed arising out of the same act? Question No. 3. If more than one defen¬dant is included in the suit, does the pay¬ment of damages limited to $100,000 allow for payment up to $100,000 for each defen¬dant named, or would it only allow for pay¬ment of up to a total of $100,000 for all defendants collectively?" Does payment of damages c de payment for negligences, ms, as well as any suit for mages?, Section 105.710, House Bill 500, 77th General Assembly, provides: "1. As part of the compensation to be paid to the director of the department of corrections, the director of the department of public health and welfare, the director of the division of health, the director of the division of welfare, the curators and regents of public institutions of higher ed¬ucation which award baccalaureate degrees, the director of the division of mental health, the adjutant general and other off' cers, em¬ployees and agents of the depart 4At of cor¬rections, the division of heal , ivi¬sion of welfare and the divis3 L Qn* en al health and members of the N*i*sa 'ink ' nal guard while on active du `o`Y3e\s to of Missouri the comptrolle i's, Wk% ed to pay from the 'Tort De --n eN which is hereby created, all *a*?_ *da nts awarded in courts of comp - - - . t'*.* ' u . ' sIction to any claimant agains t e f. --.Id officers, em ployees, agentO;\ \a Nib- s of the Missouri national guy. .s arising out of and performed e i. with their official duties ' ;-Ja ^af the state. Payment shall be li ed" imum of one hundred thou san 1**s o all claims arising out of tI ai . t e cept that no payment shall be ma.- o a' c lair, which arises because of or i *cle ction with the operation of a motor either privately or publicly owned. "2. The attorney general shall investi¬gate each claim and if he finds that the alleged damaging acts were performed in con¬nection with the official duties of the per¬son against whom the claim is made he shall prepare a defense. As a part of the compen¬sation to be paid to officers and employees of public institutions of higher education which award baccalaureate degrees, the afore¬mentioned investigation and defense prepara¬tion is hereby authorized and shall be done by legal counsel provided by the institution of higher education. "3. The attorney general may negotiate and compromise any claim covered by this section which he deems valid, and payment shall be made out of the tort defense fund by the comptroller with the approval of the attorney general." A reading of the statute reveals that it provides in effect, insurance for the state employees enumerated in subparagraph 1. That is, this insurance or "Tort Defense Fund" is to pay: "[A]ll final judgments awarded in courts . . . to any claimant against the aforesaid officers, employees, agents, and members of the Missouri national guard, for is aris - ing out of and performed in cones t on with their official duties in beh.. o state. A limitation of payment is estab i * `,ar-kq! *Otor vehicle related claims are excluded. Provisio n s m`ad ` the Attorney General's Office to defend cases aris' ,r*c**tn, ej t^h and with the power to negotiate and settle case an insurance contract w.^ liabilities of the i si1c % % and settlement by ell, In makin gr.. &ir interpretin N_ns interpret' t is approp4tt stated above; f enumerated s The parallels in interpretation used for statutes and insur¬ance contracts are clear. The basic rule of statutory construc¬tion is to seek the legislative intent, which should be ascertained from the words used, if that is possible. In so doing, the words should be given their plain and ordinary meaning so as to promote the object and manifest purpose of the statute. State ex rel. Highway Commission v. Wiggins, 454 S.W.2d 899 (Mo '.Banc 1970). Likewise, while interpreting an insurance contract the plain and unambiguous language in the contract must be given its plain meaning. The meanin g of the terms used in an insurance contract is to be tested by the common understanding and ordinary speech of average men and women. The insurance contract should receive reasonable interpretations in order to accomplish the intention of the parties. Jordanv.United Equitable Life Insurance Company, 486 S.W.2d 664 (Mo.Ct.App. at St.L. 1972). In requesting an interpretation of section 105.710, you ask: "Does payment of damages include or exclude payment for negligences,"liability claims, as well as any suit for punitive damages?" The material attached to your opinion request indicates that your concern is whether punitive damamges as well as actual dam¬ages are included in the payments authorize. .y the Tort Defense Fund. Punitive damages/are awarded fo e` ,u moo- of inflicting punishment for wr- gdoing and to cr Q' a -- e, or deterrent to similar conduct-'Punitive dam . a e no arded as compensa tion to a plaintiff for injury ox\l u^ ned by him. Chappell v.City of Springfield, 423 S 1968). Due to the nature of u i^ e . ages an insurance policy that reimburses for puni-t . d a would contravene public policy. Northwester /N.t '. alter Corn any v. McNulty, .307 F.2d 432 (5th Cir /S6 If insura..-`\coul' btained to pay punitive damages, puni tive damages ^ o useful purpose. The damages meant to punish ^w <:o d e and to deter others, would in effect, punish then rer deter no one. The insurer, who in this case, is the \.,t Missouri, would pass the expense on to the citizens of Mi$ ri through taxation and the people would then bear the expense of punitive damages which had been imposed in the first instance for the protection of the public. In effect, society would be punishing itself for the wrongs of the insured. Northwestern National Casualty Company v. McNulty, supra. The Missouri legislature could not have intended that the policy behind punitive damages be thwarted by this section. There¬fore, we believe that the answer to your first question is that punitive damages are not covered by the Tort Defense Fund. We do not believe that we can answer your second and third questions in the abstract. A ruling as to such questions could be made only if specific facts were set forth. Your request mentions a specific case but sets forth no facts as to this case and it is our understanding that this case has been determined. Very truly yours,

Very truly yours,

John C. Danforth
Attorney General