(1) The board of trustees of a county hospital may not purchase liability insurance to cover their own negligence, as they are protected by sovereign immunity. (2) The county hospital board of trustees may authorize the purchase of liability insurance covering the negligence of the employees of a county hospital as a form of compensation. (3) The board of trustees of a county hospital does not waive its sovereign immunity by the purchase of a liability insurance policy covering its employees.

INSURANCE : (1) The board of trustee s of a COUNTY HOSPITALS : countv hospital may not purchase liability insurance to cover their own negligence , as they are nrotected by soverei~n immunity . (2) The county hospital board of trustees may authorize the purchase of l i ability insurance coverin~ the ne~li v,ence of the employees of a county hospital as a form of compensation . (3) The board of trust- ees of a county hospital does not waive its sovereign immunity by the purchase of a liability insurance policy coverin~ its employees. OPINION NO . 15 Honorable James Millan Prosecutin~ Attorney May 10, 1971 Pike County Court House Bowlin~ Green , Missouri 63334 Dear l\1r . Millan: FILED ;.s-- This is in reply to your reauest for an opinion of this office in which you ask the followin~: "Is your opinion No. 99, dated "1a:v 12, 1960 still in effect and is it your ooinion that a county hospital onerated and main- tained under this chapter has no tort lia- bility and cannot pronerly purchase liability insurance to ~uard a~ain st any liabjlity? " If this is still your opinion can it purchase liability insurance to cover negli- ~ences of individual emnloyees who mi~ht be personally responsible even though a county hospital would not be liable itself for their ne~ligence s? 11 My final question , 1 s ,.whether or not such a county hospital would waive its im- munity for tort liability, if it is still immune, by purchasin~ general liability insurance?" I The issue of first concern is whether a county hospital , ope- rated pursuant to Sections 205 . 160 throu~h 205.340, RSMo 1969, is Honorable James Millan liable in tort for its neqli~ence, or the ne~li~ence of its em- ployees, and whether it may purchase liability insurance to ~uard against any theoretical liability. By previous opinion of this office, No . 99 , Woods , 5-1 2-60 , and by Opinion No. 528, Conley, 12-16-69, this office has held that a county hospital operated and maintained under th e fore~oin.t?; sections is not liable in tort , and that a county hospital cannot properly purchase liability insurance to ~uard a~ainst a non- existent liability. After a review of the foregoing ooinions, and in li~ht of Abernathy v. Sisters of St. Mary's (Mo.Sup . en bane 1969) 446 S .W. 2d 599; and Garnier v. St. Andrew Presbyterian Church of St . Louis (Mo.Sup . en bane 1969) 4~6 S . W.2d 607 , it is the conclusion of this office that the opinions of the Attorney General No. 99, Woods , and No . 528, Conley, correctly express the state of the law in re~ard to county hosoitals . II Your second question asks whether liability insurance, to cover the negli~ence of individual emnloyees , may be purchased by the board of hospital trustees, even thou~h the trustees would not be liable itself for their employee's ne~li~ence . By reference to Section 205 . 190()), RSMo 1969, it can be seen that the hospital board of trustees may fix the co~oensation for the employees under consideration: "Said board of hospital tru3tees !'"hall have power to appoint a suitable superintendent or matron , or both , and necessary assistants and fix their compensat1on, and shall also have power to remove such anpointees; and shall in ~eneral carry out the spirit and in- tent of sections 205.160 to 205.340 in estab- lishing and maintainin~ a county nublic hospital." As can be seen by reference to the above section , the legis- lature has not attempted to limit the fern that consideration for employee services is to take, but has instead given the hospital board of trustees the authority to fix "com;1ensation. 11 The ques- tion then becomes, whether a liability insurance policy purchased for an employee may be le~ally considered as nart of said emoloyee ' s "compensation . 11 In a former opinion of this office , Opinion "1\Jo. 93, Cason , 9-9-69, we held, under a similar factual instance , that the purchase of insurance for an ennlovee may he considered a proper form of compensation. Thus, it is the oninion of this office , that -2- Honorable James Millan those employees hired and compensate d consistent with Section 205.190(5) , supra, by the board of hosnital trustees, may have purchased for them a liaoility insurance policy covering their negligence du rin~ the normal activities of their emnloyment. IIT Your third question is whether a purchase of liability insur- ance coverin~ the ne~li~ ence of the hosnital board of trustees would act as a waiver of the board's sovereian immunity. As we have previously held in this opinion, the board of trustees of the county hospital have no authority to purchase liability insurance on a non-existent liability, and thus this question becomes moot. The auestion may arise, however, as to whether the purchase of lia- bility insurance coverin~ the ne ~lieence of ennloyees of a hospital board of trustees would act an a waiver of the trustees' soverei~n immunity. In Opinion No . 93, Ca~on, 9-9- 69, this office held that ourchase of liability insurance as a form of comnensat1on for em- ployee services, was not an attempt by the ~ove rnment al unit to cover any ne~li~ent liability of its own , and thus no waiver or estoppel problems arise. CONCLUSION It is the conclusion of this office that: (1) The board of trustee s of a county hosnital may not purchase liability insurance to cover their own ne~lit,ence, as they are pro- tected by sovereign immunity . (2) The county hospital board of trustees may authorize the purchase of liability insurance covering the neRli~ence of the em- ployees of a county hospital as a form of comnensation . (3) The board of trustees of a county hospital does not waive its soverei ~n immunity by the purchase of a liability insurance policy covering its employees. The fore~oing opinion, which I hereby anorove , was prepared by my Assistant, Kenneth Romines. ~u;_ ve:y ::J~_p; Enc losures: Op. No. 99 5-12-60, Hoods Op. No. 528 12-16-69, Conley Op. No. 93 9-9-69, Cason JOliN C. DANFORTH Attorney General -3-