Jane Doe v. The Estate of Joshua Q. Eckerson, Individually; Harrison County

United States Court of Appeals
For the Eighth Circuit
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No. 21-2335
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Jane Doe
Plaintiff - Appellee
v.
The Estate of Joshua Q. Eckerson, Individually; Harrison County
Defendants
Lisa Worrell, Individually
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - St. Joseph
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Submitted: February 18, 2022
Filed: June 28, 2022
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Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
Jane Doe alleged that Joshua Q. Eckerson, then Sheriff of Harrison County,
Missouri, forced her into a sexual relationship that included giving her drugs,

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directing her to sell them, and protecting her from prosecution. After Doe ended the
relationship, Eckerson pursued criminal charges against her, resulting in felony
convictions.
Lisa Worrell was Doe’s probation officer. According to Doe, Worrell invited
Eckerson to her probation meetings, where Eckerson threatened Doe not to disclose
the relationship. Doe asserted a state claim against Lisa Worrell for intentional
infliction of emotional distress (in addition to claims against the Estate of Joshua Q.
Eckerson, who died in 2020). Worrell moved to dismiss based on official immunity
and a “statutory” immunity under subsection 105.711.5, RSMo 2016. For her
defense of statutory immunity, Worrell asserted that subsection 105.711.5 bars
individual-capacity claims against state employees, such as herself. The district
court1 held that section 105.711 “applies to final judgments” and therefore does not
bar Doe’s claim against Worrell. It also denied the motion based on official
immunity. Worrell appeals only the denial of statutory immunity. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
This court reviews de novo the issues of law in the denial of an immunity
defense. See Div. of Emp. Sec. v. Bd. Of Police Comm’rs, 864 F.3d 974, 978 (8th
Cir. 2017) (reviewing a state-immunity denial).
Worrell urges this court to find statutory immunity in a 2005 amendment that
added this language to subsection 105.711.5:
In the case of any claim or judgment against an officer or employee of
the state or any agency of the state based upon conduct of such officer
or employee arising out of and performed in connection with his or her
official duties on behalf of the state or any agency of the state that would
give rise to a cause of action under section 537.600, the state legal
expense fund shall be liable, excluding punitive damages . . . . The state
legal expense fund shall be the exclusive remedy and shall preclude any
1 The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri

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other civil actions or proceedings for money damages arising out of or
relating to the same subject matter against the state officer or employee,
or the officer’s or employee’s estate. No officer or employee of the state
or any agency of the state shall be individually liable in his or her
personal capacity for conduct of such officer or employee arising out
of and performed in connection with his or her official duties on behalf
of the state or any agency of the state.
§ 105.711.5, RSMo 2016 (emphasis added).
Worrell acknowledges that no Missouri court has interpreted section 105.711
to bar suits against state employees in their individual capacities. Worrell invokes
the rule against surplusage to argue that the italicized sentence in the 2005
amendment provides statutory immunity to state employees. See McAlister v.
Strohmeyer, 395 S.W.3d 546, 552 (Mo. App. 2013) (in interpreting statutes, attempt
to give “[e]ach word or phrase in a statute . . . meaning if possible”), quoting State
v. Blocker, 133 S.W.3d 502, 504 (Mo. banc 2004). Worrell also argues that the 2005
amendment provides statutory immunity to state employees equal to the sovereign
immunity of the state of Missouri. She bases this equality on the 2005 amendment’s
references to section 537.600, RSMo (waiving state sovereign immunity for the torts
of negligent operation of a motor vehicle or a dangerous condition on public
property), and section 537.610, RSMo (barring punitive damages against the state).
See Doe v. St. Louis Cmty. College, 526 S.W.3d 329, 337 (Mo. App. 2017) (“[I]f
the statutory language is unclear from consideration of the statute alone, a court
‘should interpret the meaning of the statute in pari materia with other statutes
dealing with the same or similar subject matter.’”), quoting Union Elec. Co. v.
Director of Revenue, 425 S.W.3d 118, 122 (Mo. banc 2014).
To the contrary, by its plain text, section 105.711 does not create a new
immunity. The word “immunity” does not appear in section 105.711. Rather,
section 105.711 establishes the state legal expense fund (SLEF):
Moneys in the state legal expense fund shall be available for the
payment of any claim or any amount required by any final judgment

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rendered by a court of competent jurisdiction against: . . . Any officer
or employee of the State of Missouri . . . upon conduct of such officer
or employee arising out of and performed in connection with his or her
official duties on behalf of the state.
§ 105.711.2(2), RSMo. The SLEF is “merely a voluntary assumption of defense and
payment of judgments or claims.” Missouri ex rel. Cravens v. Nixon, 234 S.W.3d.
442, 447 (Mo. App. 2007). “All payments” from the SLEF must be approved by the
Missouri attorney general. § 105.711.5, RSMo (first sentence).
The 2005 amendment also amended section 105.726 to add: “Sections
105.711 to 105.726 do not waive the sovereign immunity of the State of Missouri.”
§ 105.726.1, RSMo. Construing the additions to subsection 105.711.5 and
subsection 105.726.1 together, the 2005 amendment preserves immunities already
in place for the State and its employees, and it does not create a new, statutory
immunity. See R.M.A by Appleberry v. Blue Springs R-IV School Dist., 568
S.W.3d 420, 429 (Mo. banc 2019) (“The provisions of a legislative act are not read
in isolation but construed together, and if reasonably possible, the provisions will be
harmonized with each other.”), quoting Bachtel v. Miller Cty. Nursing Home Dist.,
110 S.W.3d 799, 801 (Mo. banc 2003). See also Erlenbaugh v. United States, 409
U.S. 239, 244 (1972) (construing statutes in pari materia “makes the most sense
when the statutes were enacted by the same legislative body at the same time.”).
Statutory history confirms that the Missouri General Assembly did not adopt
a new statutory immunity. See Doe, 526 S.W.3d at 337 (“[C]ourts may turn to
legislative history to review the earlier versions of the law.”). The legislature
rejected a provision that no employee would be “personally liable in any civil action
brought against them in courts . . . for conduct arising out of and in connection with
their official duties on behalf of the state, whether or not such acts are ministerial or
discretionary.” S. 220, 93rd Gen. Assemb., 1st Reg. Sess. (Mo. 2005), available at
https://www.senate.mo.gov/05info/pdf-bill/perf/SB220.pdf (last visited June 3,
2022) (emphasis added) (provision that passed Senate); S. 420, H.R. Journal, 93rd
Gen. Assemb., 1st Reg. Sess., 1751-54 (Mo. 2005), available at

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https://www.house.mo.gov/billtracking/bills051/jrnpdf/jrn073.pdf#page=19 (last
visited June 3, 2022) (House passing same provision). The legislature did not
include this provision in the final version of the 2005 amendment that passed both
chambers and was signed into law. S. 420, 2005 Mo. Laws 1483-84.
Regardless, Worrell asks this court to predict that the Missouri Supreme Court
would find statutory immunity in subsection 105.711.5. See Brill v. Midcentury
Ins. Co., 965 F.3d 656, 659 (8th Cir. 2020) (when the Missouri Supreme Court has
not spoken on an issue, the district court must “predict how it would decide the issue”
considering “relevant state precedent, analogous decisions, considered dicta . . . and
any other reliable data”). Worrell relies on the Missouri Supreme Court’s statement
that subsection 105.711.5 “reinforces the SLEF’s purpose to protect state employees
by limiting the circumstances in which they may be sued and held liable for conduct
arising out of and in connection with their official duties.” Laughlin v. Perry, 604
S.W.3d 621, 632 (Mo. banc 2020).
But the Laughlin opinion contradicts Worrell’s argument. The Missouri
Supreme Court rejected the argument that the SLEF “creates blanket immunity for
all state employees.” Id. at 633. Instead, the SLEF’s “protection from personal
liability for a judgment differs significantly from a suit being initiated. Protection
from personal liability still subjects a public [employee] to all of the burdens of
litigation.” Id. The Missouri Supreme Court reasoned that if coverage by the SLEF
precluded state employees from an official immunity defense, then the state
employees would still be subject to burdens of litigation other than judgments for
money damages. Id. If a state employee had the “protection from personal liability
for damages under the SLEF” but did not have official immunity, then “the benefits
of immunity from suit would be lost.” Id. See Nash v. Folsom, 2021 WL 4844005,
at *3, *4 (E.D. Mo. Oct. 18, 2021) (citing Laughlin v. Perry to conclude that the
SLEF “does not bar the underlying claims themselves” and to receive “such
immunity from suit” the defendant “would have to invoke the defense of official
immunity.”). In Laughlin, the Missouri Supreme Court recognized that section
105.711 does not create a new immunity.

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*******
The order denying the motion to dismiss is affirmed, and the case remanded
for further proceedings consistent with this opinion.
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