Opinion
No. ED 81496
September 9, 2003
Appeal from the Circuit Court of the City of St. Louis, Honorable Michael P. David.
Patricia A. Hageman, City Counselor; Edward J. Hanlon; Deputy City Counselor, St. Louis, MO, for Appellant.
Martin M. Green; Joe D. Jacobson; Allen P. Press: Green Schaaf Jacobson, P.C., Clayton, MO, for Respondent.
The City of St. Louis (City) appeals from the judgment entered in favor of The Junior College District of St. Louis (College) in the total amount of $8,259,757.30 on College's negligence claims, which were submitted on a stipulation of facts. We transfer this case to the Missouri Supreme Court.
On October 23, 1997, flooding occurred at College due to water line breaks on property owned by College, which was not part of the City's water main. College filed a three-count petition against City seeking monetary relief for property damage resulting from the flooding that occurred because a shutoff valve and valve box for a fire line were inaccessible and could not be located for about five hours after the flooding began. The fire line shutoff valve and valve box were not visible and were inaccessible at the time of the flood in 1997 because in 1987 City had paved over the manhole cover providing access to the fire line shutoff valve and no markings indicated the location of that manhole cover.
The parties' stipulation discloses that this type of valve controls the flow of water from a water main to a water service line, is "located in [an] underground concrete valve box" (also known as a "stop box"), and is "accessible through [a] manhole which [is] covered by [a] round steel cover on the ground." The parties also stipulated that the City owned, and operated in its proprietary function, the water main along Oakland Avenue, which was connected to the underground water service lines College owned and installed to provide water to its nearby campus buildings.
The water service line referred to as the fire line is an eight-inch diameter line servicing the fire suppression system for College's campus.
The trial court granted City's motion to dismiss College's second count, which alleged City was liable based on its noncompliance with its 1993 Ordinance No. 23.04.185. In summary, the trial court decided that City was exercising a proprietary function with respect to the water line causing College's damage and was not entitled to sovereign immunity from the negligence claims here, but that City's non-compliance with Ordinance No. 23.04.185 could not be a basis of liability, although it could be used as evidence of liability for the negligence claim in the first count.
The trial court resolved the two remaining negligence claims after the parties waived trial by jury and submitted a stipulation of facts. In the stipulation, the parties characterized College's two remaining claims as claims
that the City Water Division had a duty to maintain the shut-off valve so that it was both visible and accessible, that the City Water Division had a duty to otherwise mark the existence and location of the shut-off valve at its location, and that the City Water Division had a duty to properly train and equip its employees to locate, access, and operate shut-off valves so as to reduce the damages suffered by the City's water customers from flooding resulting from the rupture of underground lines.
In part, the parties stipulated that "the principle amount of the damages to which the College is entitled if the City is found liable is $5,825,161" and, absent sovereign immunity or a determination College had the duty to maintain the accessibility and visibility of the valve box, the trial court "must enter judgment against the City for the entirety of the College's damages." After briefing by the parties, the trial court entered judgment in favor of College and against City in the amount of $8,259,757.30, which consists of $5,825,161.00 in principal, plus $2,434,596.30 in interest at the daily rate of $1,436.34 from October 23, 1997, to June 14, 2002. This appeal followed.
City raises six points on appeal. First, City urges the trial court erred in finding City owed College a duty to maintain the visibility and accessibility of the shutoff valve, or to mark the valve's location, because the pertinent City ordinance, Ordinance 23.12.010, which was in effect in 1987 when the street was re-paved and the shutoff valve was covered, made it the responsibility of the owner of the premises to maintain the valve box's visibility and accessibility. Second, City urges the trial court erred in entering judgment in favor of College because the public duty doctrine protects City from liability on College's negligence claims in that any duty City owed College regarding the shutoff valve's accessibility or exposure and regarding the training of City personnel to locate and access concealed shutoff valves is a duty owed to the general public and not to College individually. Third, City argues the trial court erred in entering judgment in favor of College to the extent College's negligence claims are based on insufficient training, improper training, or an insufficient response at the scene of City personnel because there was no evidence of such training or response and no evidence that any such training or response was the proximate cause of the continued flooding of College's property. Fourth, City contends the trial court erred in entering judgment in favor of College for an amount exceeding $100,000.00 because College's negligence claims arise out of City's allegedly defective property, the re-paved road over the valve box, and therefore City's damages liability is limited by Section 537.610 RSMo 1994. Fifth, City urges the trial court erred in not apportioning fault between the parties because the rupture of College's own water service line was a proximate cause of its damage and College failed to comply with the duty it had under Ordinance 23.12.010 to raise access to the fire line valve box when the street was re-paved in 1987. Sixth, City argues the trial court erred in rendering a judgment in favor of College that included an award of prejudgment interest on College's negligence claims when College failed to establish City's conduct conferred a benefit on City and College did not make, by certified mail, a written settlement offer of a readily ascertainable amount pursuant to Section 408.040(2) RSMo 1994.
When we review a judgment based upon a stipulation of facts, the only question before us is whether the trial court drew the proper legal conclusions from the facts stipulated. Sheldon v. Board of Trustees, 779 S.W.2d 553, 554 (Mo.banc 1989) (while we usually review non-jury cases under Murphy v. Carron, the only question on review from a case tried on a stipulation of facts not involving the resolution of conflicting testimony is "whether the trial court drew proper legal conclusions from the facts stipulated"); Newfeld v. Chemical Dynamics, Inc., 784 S.W.2d 240, 240 (Mo.App.E.D. 1989) (using this standard of review in a rent and possession case submitted on a stipulation of facts). Here, we conclude in light of the City ordinance in effect in 1987, that the trial court erred in finding City had a duty to College on which College's negligence claims may be based. Therefore, we grant reversal on point one and do not address the remaining five points pursued by City in its appeal.
In its first point, City urges the trial court erred in finding City owed College a duty to maintain the visibility and accessibility of the shutoff valve, or to mark the valve's location, because the pertinent City ordinance, Ordinance 23.12.010, which was in effect in 1987 when the street was re-paved and the shutoff valve was covered, made it the responsibility of the owner of the premises to maintain the valve box's visibility and accessibility. City further contends the subsequent enactment in 1993 of Ordinance 23.04.185, which makes it City's obligation to insure valve boxes are visible and accessible after re-paving by City, cannot be applied retrospectively.
With respect to the duty element of College's negligence claims, the trial court stated:
City may be held liable for a breach of duty arising from the performance of its proprietary function of maintaining and operating a municipal water distribution system.
* * *
In the present case, the focus is on the City's function with respect to maintaining and operating its water service for customers. Part of this function entails the proper maintenance of, and accounting for, equipment necessary to carry out its operation, including marking and locating shutoff valves, and making such shutoff valves accessible. That function, as indicated above, is proprietary. Accordingly, City owes the duty of reasonable care that would be owed to a customer.
City next suggests that no duty attaches because the Water Division was not apprised of the Street Department's re[-]paving activities, and states that College was in a superior position to know of the Street Department's re[-]paving work. In determining foreseeability, the focus is not whether it was foreseeable that one City department would communicate with another, but whether College's damages, arising from the supply of water from City, were foreseeably the result of City's act or omission.
The facts indicate that the City performed the re[-]paving work, that it had prepared drawings showing the location of the stop boxes, and that College lacked access to these drawings as a result of the flood damage. . . . The ordinances cited, together with the excerpts from the City's Foreman's Manual, underscore the need for accessible, exposed stop boxes, placed at street level, as part of the City's duties in providing water for its customers.
City cites Section 23.[12].010 as imposing a duty on College to make the stop box accessible. However, it was the Street Department, not the College, that made the stop boxes inaccessible. City has not articulated any act or omission on the part of College that would constitute a breach of duty.[4] Further, the 1993 ordinance clearly imposes this duty on City when, as was the case here, City assumed responsibility for covering stop boxes during street repair or resurfacing.
[4] Section 82.190 RSMo [1986] gives the City exclusive control over public streets, highways, avenues, alleys, and public places, such as [the re-paved street at issue in this case].
In a negligence action, "the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant's failure proximately caused injury to the plaintiff." Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 155 (Mo.banc 2000). Whether a duty exists is a question of law. Id. Although an ordinance may not be admitted in a negligence action to demonstrate a municipality's liability, an ordinance may be introduced "as a circumstance bearing on [the municipality's] duty and what it might be expected to anticipate." McGaugh v. City of Fulton, 205 S.W.2d 547, 551 (Mo. 1947). This is important because a duty may be imposed by "a controlling statute or ordinance." Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. 1976); Keenan v. Miriam Found., 784 S.W.2d 298, 303 (Mo.App.E.D. 1990).
Notably, the case before us does not involve City's liability for negligence pertaining to one of its broken water mains that floods private property. See Adam Hat Stores, Inc. v. Kansas City, 316 S.W.2d 594 (Mo.banc 1958).
In light of these principles, we consider how City's duty is affected by the pertinent ordinance in effect at the time of the re-paving in 1987 and the subsequently enacted ordinance regarding the concealment of water service line valve boxes due to City's street re-paving. To construe a city ordinance, we apply
the same general rules of construction as are applicable to state statutes. The cardinal rule for construing ordinances is to ascertain and give effect to the intent of the enacting legislative body. Words contained in an ordinance should be given their plain and ordinary meaning and should be interpreted to avoid absurd results.
State ex rel. Teefey v. Board of Zoning Adjustment of Kansas City, 24 S.W.3d 681, 684 (Mo.banc 2000) (citations omitted).
At the time of re-paving in 1987, a City ordinance provided that "[s]top boxes over shut off valves on all [water] service pipes must be kept in repair, exposed and accessible at all times by the agent, owner or occupant of the premises supplied by such service pipes. (Ord. 48646 Section 11 (part), 1958: 1948 C. Ch. 55 Section 24 (part); 1960 C. Section 551.010.)" City of St. Louis, Mo., Revised Code Section 23.12.010 (1994). By its clear and express terms, this ordinance, which was in effect in 1987, placed on an owner of premises having water supplied through water service lines the obligation to maintain the exposure and accessibility of the valve boxes for the shutoff valves for those water service lines. Therefore, under this ordinance, College had the duty to maintain the accessibility and visibility of the fire line shutoff valve box when the City re-paved the street in 1987. As stipulated, College had drawings indicating the location of the shutoff valve box.
The duty of the premises owner to maintain the exposure of and access to its water lines' shutoff valves and valve boxes is reiterated in other City ordinances in existence at the time of the 1987 re-paving. Another City ordinance in effect at that time stated:
Whenever a stop box or shut off valve is found by the water commissioner to be broken, in need of repairs, covered up or in any way inaccessible, he shall notify the agent, owner or occupant to repair, locate or uncover the stop box or shut off valve within five days. Failure by the agent, owner or occupant to comply with such notice shall be sufficient to warrant . . . the water commissioner to excavate and shut off the water at the curb or at the main, in his discretion. (Ord. 48646 Section 11 (part), 1958: 1948 C. Ch. 55 Section 24(part): 1960 C. Section 551.020.)
City of St. Louis, Mo., Revised Code Section 23.12.020 (1994). A second City ordinance in effect in 1987 stated:
Permission for the use of water for premises supplied from [a broken or inaccessible] tap shall not be granted, nor shall the water be turned on at the tap until the stop box or shut off valve is repaired and placed in a condition satisfactory to the water commissioner and the total expense of excavating, disconnecting and reconnecting the service pipe and of replacing the street pavement is paid. (Ord. 48646 Section 11 (part), 1958: 1948 C. Ch. 55 Section 24 (part): 1960 C. Section 551.030.)
City of St. Louis, Mo., Revised Code Section 23.12.030 (1994).
Notably, City is not liable for failing to enforce its ordinances . Bean v. City of Moberly, 169 S.W.2d 393, 397 (Mo. 1943); Von Der Haar v. City of St. Louis, 226 S.W.2d 376, 380 (Mo.App.E.D. 1950)).
In 1993, another City ordinance went into effect providing that:
[n]otwithstanding the provision of any other ordinance, the Water Division with funds from the Water Division shall, by contract or otherwise, expose, make street level, and make accessible stop boxes over shut off valves whenever the City of St. Louis, by contract or otherwise is responsible for covering said stop boxes during street repair or resurfacing. (Ord. 62836 Section 1, 1993.)
City of St. Louis Mo., Revised Code Section 23.04.185 (1994). The flooding at issue here occurred four years after enactment of this ordinance. The question is whether the provisions of this 1993 ordinance, which clearly place on City the responsibility of exposing and making accessible valve boxes concealed by street re-paving performed by City, apply to impose on City a duty to expose and make accessible water service line valve boxes concealed by street re-paving City performed prior to enactment of this ordinance. We conclude they do not.
Article I, Section 13 of the Missouri Constitution prohibits the enactment of any law that is "retrospective in its operation." An ordinance may be subject to review regarding whether or not it is retrospective in operation. See, e.g., Fleming v. Moore Bros. Realty Co., 251 S.W.2d 8, 16 (Mo. 1952). There are two exceptions to this constitutional prohibition against the retrospective operation of laws: "(1) where the legislat[ive body] manifests a clear intent that the [law] act retroactively, and, (2) where the [law] is solely procedural or remedial and does not affect the substantive rights of the parties."Jones by Williams v. Missouri Dept. of Social Servs., 966 S.W.2d 324, 327 (Mo.App.E.D. 1998).
The clear intent that the law operate retroactively may be disclosed through express language or by "unavoidable implication." See Id. Here, the 1993 ordinance does not contain language expressly stating it is to operate retroactively. Nor do we see how its language requires that it be applied retroactively due to "unavoidable implication."
College argues that the 1993 ordinance does not state City shall uncover only those valve boxes it covered by re-paving after the ordinance's enactment. We, however, must presume enacted legislation operates prospectively. Id. Therefore, the fact the 1993 ordinance fails expressly to state that it applies only to valve boxes covered by City's re-paving after enactment of the ordinance does not indicate the retrospective application of the ordinance.
College also urges that, if the 1993 ordinance applied only to valve boxes covered by City's re-paving after enactment of the ordinance, then the ordinance would have the word "when" rather than the word "whenever" in it. We are not persuaded by this argument given the Missouri cases which have defined the term "when" as meaning "if" or "at the time," and "whenever" as meaning "if" or "at any time."
Chagnon v. Shampaine Indus., Inc., 412 S.W.2d 519, 528 (Mo.App.E.D. 1967).
State ex rel. Elsas v. Missouri Workmen's Compensation Comm'n, 2 S.W.2d 796, 802 (Mo. 1928); Ennis v. McLaggan, 608 S.W.2d 557, 563 (Mo.App.S.D. 1980).
State ex rel. Kansas City v. School Dist. of Kansas City, 62 S.W.2d 813, 816-17 (Mo.banc 1933).
College also urges the 1993 ordinance may properly apply to the 1987 re-paving because the law "is solely procedural or remedial and does not affect the substantive rights of the parties." Jones by Williams, 966 S.W.2d at 327. We disagree. "Procedural law . . . prescribes a method of enforcing rights or obtaining redress for their invasion [and r]emedial laws include laws that 'merely substitute a new or more appropriate remedy for the enforcement of an existing right.' Faulkner v. St. Luke's Hosp., 903 S.W.2d 588, 592 (Mo.App. [W.D.] 1995)." Id. at 328 (one citation omitted). On the other hand, "[s]ubstantive law creates, defines, and regulates rights and duties giving rise to a cause of action. . . . [It] takes away or impairs a vested right acquired under existing law, creates a new obligation, imposes a new duty, or attaches a new disability to a past transaction." Id. The 1993 ordinance does not prescribe a method of enforcing rights or substitute a new remedy for a prior remedy; therefore it is not procedural. Instead, the 1993 ordinance is substantive because it clearly imposes on City a new duty, one that had been placed on College under the earlier ordinance.
Moreover, if we interpreted the 1993 ordinance as College argues, then we would have the result that City must review every street it has ever re-paved to locate, expose, and make accessible all concealed valve boxes for water service lines of City property owners. This would be an absurd result. A more reasonable interpretation of the 1993 ordinance is that it requires City to expose and make accessible any valve boxes for water service lines of City property owners that are concealed due to City's re-paving after enactment of the 1993 ordinance.
Due to our interpretation that the ordinance in effect when the re-paving occurred in 1987 is the pertinent ordinance, and that the 1993 ordinance is inapplicable here, we need not address College's contention that the 1993 ordinance, as the more specific ordinance or the more recently enacted ordinance, applies in this case.
The trial court erred in entering judgment in favor of College because City did not owe College the duty necessary to establish City's liability for the 1997 flooding of College's campus.
Point one is granted.
Because of the general interest and importance of the issues in this case, we transfer this case to the Missouri Supreme Court pursuant to Rule 83.02.
Robert G. Dowd, Jr., Presiding Judge; concurs and George W. Draper III, Judge; concurs in result only and files separate opinion.
I concur in the result of transferring this case to the Missouri Supreme Court. However, I respectfully dissent from the majority's rationale.
The City raises six points on appeal. In its first point, the City of St. Louis (hereinafter, "the City") claims the trial court erred in finding the City owed The Junior College District of St. Louis (hereinafter, "the College") a duty to maintain the visibility and accessibility of the shutoff valve or to mark the location of the valve, because the effective ordinance made it the responsibility of the owner of the premises to maintain the valve box's visibility and accessibility.
The College had a water service valve located within a portion of the Oakland Avenue (hereinafter, "the road") roadway. In 1987, the City repaved the road and raised the grade of the roadway. The City did not notify the College that it was going to change the grade of the road during its repaving project nor did it give the College constructive notice of roadwork by marking the manhole cover which allowed access to the College's water service valve.
The City has exclusive control over public streets, including the repaved portion of the road. Section 82.190 RSMo (1986). Further, the City ordinance in effect at the time of the repaving project required "[s]top boxes over shut off valves on all [water] service pipes must be kept in repair, exposed and accessible at all times by the agent, owner or occupant of the premises supplied by such service pipes." City of St. Louis, Mo., Revised Code Section 23.12.010 (1994).
If the College had actual knowledge the roadwork would make the water service valve inaccessible at the time the City repaved the road, then I believe the College would have been responsible for maintaining access to the water service valve located under the roadway. Further, even if the College realized after the City raised the grade of the road and covered its access to the water service valve, the College has no ability to modify the condition of the roadway because, according to Missouri statute, the City is in exclusive control of the roadway. Hence, once the City made the water service valve inaccessible by changing the grade of the roadway without notifying the College its access would be denied unless the College took steps to prevent the manhole from being covered, the City became responsible for the inaccessibly of the water service valve. Point denied.
Not every re-paving project raises the grade of the street level, hence, mere roadwork would not necessarily give the agent, owner, or occupant notice that a valve would become inaccessible.
Second, the City urges the trial court erred in entering judgment in favor of the College because the public duty doctrine protects the City from liability on the College's negligence claims in that any duty the City owed the College regarding the shutoff valve's accessibility or exposure and regarding the training of the City personnel to locate and access concealed shutoff valves is a duty owed to the general public and not the College individually. Essentially, the City argues it should have been protected by the public duty doctrine even though it did not enjoy sovereign immunity.
The public duty doctrine states that "a public employee is not liable to an individual for injuries resulting from a breach of duty the employee owes only to the general public." Davis-Bey v. Missouri Dept. of Correction, 944 S.W.2d 294, 298 (Mo.App.W.D. 1997). Further, the public duty doctrine allows liability to attach to some public employees when they owe a duty to particularized individuals. Jungerman v. City of Raytown, 925 S.W.2d 202, 205 (Mo.banc 1996). However, several cases involving municipal entities have addressed the public duty doctrine. See GWT-PAT, Inc. v. Mehlvile Fire Protection District, 801 S.W.2d 798 (Mo.App.E.D. 1991); Lawhon v. City of Smithville, 715 S.W.2d 300 (Mo.App.W.D. 1986).
In both GWT-PAT and Lawhon, the public duty doctrine applied in cases where the firefighters were engaged in governmental actions, and the municipality had sovereign immunity from its departmental actions because it was performing a governmental function. In cases where a municipality negligently performs a government function, it is not liable. Mitchell v. Village of Edmundson, 891 S.W.2d 848, 850 (Mo.App.E.D. 1995). However, the public duty doctrine may allow liability to attach to some public employees when they owe a duty to particularized individuals even though the municipality maintains its sovereign immunity.
In the instant case, the public duty doctrine is not applicable. The trial court accurately found the City was not entitled to sovereign immunity because the City was acting within its proprietary function rather than its governmental function. Hence, the trial court did not have to address the public duty doctrine because it was not a proper legal conclusion derived from the stipulated facts. Point denied.
Third, the City maintains the trial court erred in entering judgment in favor of the College to the extent that the College's negligence claims are based on insufficient training, improper training, or an insufficient response at the scene by the City personnel. The City contends there was no evidence of such training or response and no evidence that any such training or response was the proximate cause of the continued flooding of the College's property.
Proximate cause determines "whether an injury is the natural and probable consequence of the defendant's negligence." Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 239 (Mo.banc 2001). An examination of proximate cause determines whether a defendant could have anticipated a series of events resulting in injury or a defendant should have foreseen the extent of the risk. Id. A defendant need not anticipate the exact injury, but rather, a defendant should know or ought to know there was an appreciable chance some injury would occur. Id.
Following the water main rupture, the City's employees arrived on the scene with their engineering drawings, accurately depicting the location of the shutoff valve. However, the City's employees were unable to locate the valve. Then, they left the location of the water main rupture, taking the drawings with them, and not returning for several hours.
The trial court did not err in finding there was proximate cause in the instant case. The City repaved the road without giving notice to the College. The City maintained drawings identifying the location of the shutoff valves, and the College did not have access to those drawings. The admitted ordinances and manual emphasized the need to have an accessible shutoff valve. When the City's employees left during the water main break and took the drawings with them, it was foreseeable that water would continue to flow and there would be flooding. Point denied.
Next, the City alleges the trial court erred in entering judgment in favor of the College for an amount exceeding $100,000.00. The City believes the College's negligence claims arise out of the City's allegedly defective property, and therefore, the City's liability is limited by Section 537.610 RSMo (1994).
All further statutory references are to RSMo (1994) unless otherwise noted.
Section 537.610 limits the amount recoverable when sovereign immunity has been waived pursuant to Section 537.600. Section 537.600.1 provides "the immunity of the public entity for liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:" (1) injuries resulting from "negligent acts or omissions by public employees arising out of the operation of motor vehicles within the course of their employment;" (2) injuries resulting from a "condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury."
The City claims that its liability should be capped by this statute because at trial, the College argued the City's employees negligently created a dangerous condition of public property by repaving the road. A city has the duty "to exercise ordinary care to maintain its streets in a reasonably safe condition for travel by those using them in the proper manner and with due care." Williams v. City of Independence, 931 S.W.2d 894, 896 (Mo.App.W.D. 1996) ( citing Lavinge v. City of Jefferson, 262 S.W.2d 60, 63 (Mo.App.W.D. 1953)). A city will be liable "for injuries sustained by one properly traveling its streets by reason of failure to barricade or warn of an excavation, declivity or other dangerous condition on the border of the travelled portion of a street or so near thereto that a traveller by accidental misstep or inadvertent deviation is injured by it." Williams, 931 S.W.2d at 896.
In the instant case, neither the City nor its employees created a dangerous condition by repaving the road. Rather than make the road a dangerous condition, the City repaved which would, under normal circumstances, facilitate safe travel for those on the road. The stipulated facts do not evince any detail which would lead this Court to believe the repaving caused the road to become a dangerous condition. Point denied.
In its penultimate point, the City urges the trial court erred in not apportioning fault between the parties because the rupture of the College's own water service line was a proximate cause of its damage, and the College failed to comply with the duty it had under Ordinance 23.12.010 to raise access to the fire line valve box when the street was repaved in 1987. The City notes that in the stipulated facts both parties agree that if they were both negligent, the trial court would apportion damages.
As previously stated, the College did not have a duty to raise the access to the fire line valve box prior to the repaving because it was not provided any notice. The City claims the College could have discovered the inaccessiblity of the fire line valve box with maintenance, however, the City cites no authority that the College has a duty to provide periodic maintenance. Point denied.
Finally, the City claims the trial court erred in entering judgment in favor of the College that included an award of prejudgment interest on the College's negligence claims when the College failed to establish the City's conduct conferred a benefit on the City, and the College did not make, by certified mail, a written settlement offer of a readily ascertainable amount pursuant to Section 408.040(2).
Generally, prejudgment interest is not awarded in tort cases. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 449 (Mo.banc 1998). However, Section 408.040.2 provides:
In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest . . . shall be calculated from a date sixty days after the demand or offer was made, or from the date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier. Nothing contained herein shall limit the right of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise provided by law or contract.
When a judgment is based on stipulated facts, the only question before us is whether the trial court drew proper legal conclusions from the stipulated facts. Sheldon v. Board of Trustees, 779 S.W.2d 553, 554 (Mo.banc 1989). Courts are required to give effect to clear statutory language and they have no authority to change the legislative intent contrary to the plain language of a statute. M.A.B. v. Nicely, 909 S.W.2d 669, 672 (Mo.banc 1995).
In this case, there is no stipulated fact showing the College made a demand on the City in writing and sent it via certified mail. Since prejudgment interest is only awarded in tort cases when there is strict compliance with Section 408.040, I would reverse the judgment of the trial court only in its award of prejudgment interest to the College.
For the foregoing reasons, I disagree with the majority's written rationale. However, I concur with the decision to transfer this case to the Missouri Supreme Court.