Court upholds summary judgment in Mizzou defamation case

According to the court opinion, KWMU hired Eby in 2009, and he later became the station’s general manager. The opinion states that he was removed from that position after being accused of racism.

Eby subsequently filed a defamation action alleging that the university repeated or republished defamatory statements made by an anonymous group of KWMU staffers who had posted accusations on Medium claiming Eby upheld “white supremacy at the station by remaining complacent with the status quo.”

Eby also alleged that KWMU published online articles quoting and linking to those accusations and falsely reported that he had mismanaged the station’s finances.

The university responded by arguing that the claims were barred by sovereign immunity.

The circuit court initially found unresolved factual questions regarding whether the university’s insurance policies waived sovereign immunity, but later granted summary judgment after the university filed a second motion asserting that all applicable policies expressly preserved immunity protections.

On appeal, Eby argued that the university should not receive sovereign immunity protection because KWMU allegedly performed a proprietary function rather than a governmental one.

The appellate court rejected that argument, explaining that the governmental-versus-proprietary distinction applies only to municipalities and not to state entities such as the University of Missouri.

The court noted that Eby himself acknowledged the university is a state entity established under the Missouri Constitution and state statute. Citing prior case law, the opinion stated that the university is recognized as a governmental body entitled to full common-law sovereign immunity.

The appeal also focused heavily on an insurance policy exhibit submitted during summary judgment proceedings.

Eby argued the university improperly substituted a corrected insurance policy exhibit, identified as Exhibit G-1, after initially filing an incorrect version.

The appellate court determined the circuit court acted within its discretion in allowing the substitution because the corrected exhibit merely fixed an erroneous filing and did not alter the underlying factual assertions supporting the motion for summary judgment.

The opinion stated that the university’s assistant vice president of management services and director of risk and insurance management verified that the original exhibit had mistakenly included an outdated endorsement and that Exhibit G-1 reflected the policy actually in effect at the relevant time.

The court further noted that Eby had already received the corrected exhibit during discovery and was permitted to file a sur-reply addressing the substitution.

Eby additionally argued that the corrected exhibit was not properly authenticated and that the policy language contained ambiguities regarding sovereign immunity endorsements.

The court rejected both arguments, finding the exhibit had been sufficiently authenticated through sworn verification and noting that Eby’s ambiguity argument relied on a superseded version of the policy that was no longer operative in the case.

The appellate court also dismissed Eby’s argument that the endorsement preserving sovereign immunity lacked consideration, concluding that his claim had not been properly supported within the summary judgment framework required under Missouri procedural rules.

In addition, the court upheld the denial of Eby’s motion for default judgment against the university. Eby had argued that the university filed its answer to his petition late and therefore should have been held in default.

The court found that although the answer was untimely, the university had continued actively defending the case through discovery and summary judgment motions, meaning it was not in default under Missouri rules.

Finally, the appellate court dismissed as moot Eby’s challenge to the circuit court’s denial of his motion to compel discovery because the sovereign immunity ruling resolved the case.

Chief Judge John P. Torbitzky authored the opinion, with Judges Angela Turner Quigless and Thomas C. Clark II concurring. The appellate court’s ruling affirmed the judgment of the lower court in full.

Missouri Court of Appeals, Eastern District, Division Three case number: ED113499