Franklin County Memorial Hospital v. Mississippi Farm Bureau Mutual Insurance Company ( 2006 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-CA-00142-SCT
FRANKLIN COUNTY MEMORIAL HOSPITAL
v.
MISSISSIPPI FARM BUREAU MUTUAL
INSURANCE COMPANY
DATE OF JUDGMENT: 12/21/2006
TRIAL JUDGE: HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED: FRANKLIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: ROBERT LEE GRANT
TIMOTHY DALE CRAWLEY
LANE B. REED
ATTORNEY FOR APPELLEE: SAM STARNES THOMAS
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: REVERSED AND REMANDED - 02/28/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, JUSTICE, FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1. Boyce Dover filed suit against Franklin County Memorial Hospital (“FCMH”) and
Sydneye Marie Jordan (“Jordan”), an employee of FCMH, for personal injuries related to an
automobile accident between Dover and Jordan.
¶2. At the time of the accident, Jordan was operating her personal vehicle. Dover alleged
he was standing in a marked crosswalk when he was struck and injured by Jordan’s vehicle.
Jordan was on an errand on behalf of her employer, FCMH. In Dover’s complaint, he alleged
that Jordan was acting within the course and scope of her employment with FCMH. FCMH
and Jordan stipulated she was acting in the course and scope of her employment at the time
of the accident.
¶3. After the complaint was filed, Dover agreed to dismiss Jordan, in her individual
capacity, as a defendant. The agreed order dismissed Jordan with prejudice as to all claims
which were or could have been raised against her. The basis of the dismissal was as follows:
The parties agree and stipulate that on June 14, 2002 between the hours of
10:45 and 11:30 Sydneye Marie Jordan was in the course and scope of her
employment with Franklin County Memorial Hospital when the incident
involving the Plaintiff, Boyce Dover, and the vehicle driven by the Defendant,
Sydneye Marie Jordan, occurred.
¶4. FCMH sought leave of court without objection from Dover to file a complaint for
declaratory judgment against Mississippi Farm Bureau Mutual Insurance Company (“Farm
Bureau”), the insurer of Jordan’s vehicle. The trial court entered an agreed order to that
effect.
¶5. In its complaint for declaratory judgment, FCMH alleged that Farm Bureau had a duty
to defend FCMH as its insured; to reimburse FCMH its costs, expenses and attorneys’ fees
expended to defend Dover’s lawsuit; and to indemnify FCMH as to any judgment against
it. FCMH relied upon the language defining “insured” in Jordan’s insurance policy with
Farm Bureau, which provided:
[T]he unqualified word “Insured” means the named Insured and, if the named
Insured is an individual, his spouse, and also any person while using the
Automobile and any person or organization legally responsible for its use,
provided the actual use of the Automobile is by the named insured or spouse
or with permission of either. . . .
2
¶6. FCMH contended it clearly met the definition of “organization legally responsible”
and thus, would qualify for coverage under the policy issued by Farm Bureau.
¶7. Farm Bureau responded to FCMH’s complaint for declaratory judgment by asserting
that FCMH lacked standing to maintain or attempt to maintain the claims alleged against
Farm Bureau. Farm Bureau additionally asserted an affirmative defense that “liability, if
any, of FCMH as to the matter or matters at issue arises from and flows through the
Mississippi Tort Claims Act [MTCA].” Farm Bureau further asserted that Farm Bureau and
Jordan were “immune from any liability on the claim or claims attempted to be stated by
FCMH,” and that the MTCA prohibited FCMH’s claim against Farm Bureau.
¶8. The trial court took under advisement FCMH’s motion for partial summary judgment
against Farm Bureau. The case was set for a bench trial as to Dover’s claims against FCMH.
At the conclusion of the bench trial, the trial court awarded Dover a judgment in the amount
of $55,000, finding FCMH’s employee, Jordan, to be ninety percent at fault and Dover ten
percent at fault, resulting in a final judgment for Dover in the amount of $49,500 against
FCMH.1 FCMH argued that, based on the “Insured” language of the policy, Farm Bureau
was responsible for paying the damages.
¶9. The trial court subsequently entered its final judgment addressing FCMH’s claim
against Farm Bureau for indemnification under FCMH’s complaint for declaratory judgment.
1
The information as to the judgment in favor of Dover is taken from the trial court’s
final judgment entered December 21, 2006, regarding the complaint of FCMH against Farm
Bureau, seeking a declaratory judgment.
3
The trial court granted summary and final judgment for Farm Bureau on the claims of FCMH
and dismissed FCMH’s action against Farm Bureau with prejudice.
¶10. FCMH timely appealed to this Court. The issue before this Court is whether the trial
court erred in granting summary and final judgment on behalf of Farm Bureau, as to the
claims of FCMH.
STANDARD OF REVIEW
¶11. “We employ the de novo standard in reviewing a trial court's grant of summary
judgment. The moving party shall be granted judgment ‘if the pleadings, depositions,
answers to interrogatories and admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Callicutt v. Prof'l Servs. of Potts Camp, Inc., 2007 Miss.
LEXIS 708, *6 (Miss. Dec. 13, 2007) (citations omitted). See also Miss. R. Civ. P. 56(c).
ANALYSIS
¶12. The order of dismissal as to Jordan was agreed to by all parties, including FCMH. In
its final judgment, the trial court found this order of dismissal to operate to “fully and
completely release Jordan’s auto insurance carrier, the Third-party Defendant, Mississippi
Farm Bureau Insurance Company, from any responsibility and/or coverage.”
¶13. The dismissal of claims against Jordan, in her individual capacity, was premised upon
the Mississippi Tort Claims Act, as Jordan was acting within the course and scope of her
employment with FCMH. See Miss. Code Ann. § 11-46-1, et seq., (Rev. 2002). Farm Bureau
asserts the statutory immunity granted to Jordan should be extended to Farm Bureau, as the
liability insurer of Jordan, without addressing that FCMH is also an insured. Farm Bureau
4
relies on a portion of Mississippi Code Annotated Section 11-46-7(5). “A governmental
entity shall not be entitled to contribution or indemnification, or reimbursement for legal fees
and expenses from its employee unless a court shall find that the act or omission of the
employee was outside the course and scope of his employment.” (Emphasis added).
¶14. FCMH submits the trial court erred in holding that the dismissal of Jordan individually
also served to act as a release of her insurance carrier, as FCMH was an “Insured” under the
policy. FCMH contends that while it is a “public entity” as defined by the Mississippi Tort
Claims Act, the Mississippi Tort Claims Act “does not contain any language which could be
construed as limiting the right of a ‘public entity’ to be an ‘insured’ under a policy of
insurance.”
¶15. In its finding that the Order of Dismissal of Jordan applied both to Jordan and Farm
Bureau, the trial court strayed from the pivotal issue by focusing on the absence of Jordan’s
personal liability to Dover. However, Jordan’s personal immunity does not absolve FCMH
from liability for Jordan’s negligence. As FCMH was declared liable, the focus of the inquiry
should have been whether FCMH was an insured under the Farm Bureau policy, and if so,
whether FCMH was entitled to the protections afforded by the liability coverage provisions.
Pursuant to the application of the common law theory of respondeat superior,
an employer is generally held to be vicariously “legally responsible” for its
employees’ negligent driving. The employer is thus an omnibus insured under
the terms of the policy covering the vehicle being driven by the employee.
This principle will only have application when the vehicle is driven during the
course of the employee’s employment or within the scope of the permission
given by the employer.
5
8 Lee Russ & Thomas Segalla, Couch on Insurance § 111:42 (2005).2
¶16. Farm Bureau’s argument that Mississippi Code Annotated Section 11-46-7(5) and this
Court’s decision in Mozingo v. Scharf, a medical malpractice case, are applicable is
unpersuasive. Mozingo is clearly distinguishable,3 as it held that whether an employee of a
governmental entity possesses “liability insurance is irrelevant to the inquiry as to whether
he enjoys immunity under the MTCA.” Mozingo v. Scharf, 828 So. 2d 1246, 1255-56 (Miss.
2002). Although the holding references an attorney general opinion that a “governmental
employee’s personal policy is not subject to exposure for injuries resulting from torts
committed during the course and scope of employment,” this attorney general opinion did
not address whether the governmental entity was likewise an insured under the employee’s
policy of insurance. See Miss. Att’y Gen. Op. No. 96-0053 (Feb. 16, 1996) (emphasis added).
Accordingly, the Mozingo Court did not address the issue presented in this case, i.e., whether
FCMH is an insured under the policy, and if so, what are the obligations of the insurer?
FCMH is seeking neither contribution nor indemnification from its employee, Jordan. Since
FCMH is not seeking contribution or indemnification, or reimbursement for legal fees and
2
“The purpose of the omnibus clause is to provide broad coverage where possible and
broadly construing exclusions in a policy would be contrary to the express purpose.” 8 Lee
Russ & Thomas Segalla, Couch on Insurance § 111:8 (2005).
3
The issues before the Court in Mozingo were as follows: 1) Whether the trial court
erred in determining that Dr. Scharf was a state employee rather than an independent
contractor, and as such, was entitled to immunity under the MTCA; 2) whether the trial court
erred in determining that the practice plan, University Anesthesia Services, PLLC, was a
governmental entity such that it was subject to immunity under the Mississippi Tort Claims
Act; 3) whether the trial court erred in determining that Dr. Scharf did not waive his
immunity under the MTCA by purchasing malpractice insurance.
6
expenses from its employee, analysis of that portion of the Mississippi Tort Claims Act is
neither necessary nor warranted.
¶17. The facts are undisputed that Jordan was acting in the course and scope of her
employment at the time of the accident. Jordan’s immunity, however, is of no consequence
in determining whether Farm Bureau was contractually required to respond to Dover’s action
versus FCMH.
¶18. The case sub judice is most analogous to United States v. Myers. In Myers, a suit was
instituted to recover for injuries and damages “sustained in an automobile accident involving
an automobile owned and operated by a United States employee, Elwood C. Pugh, who at
the time of the accident was acting in the course and scope of his employment.” United
States v. Myers, 363 F.2d 615, 617 (5th Cir. 1966). At the time of the accident, Pugh’s
automobile liability policy defined as insured, “‘any other person or organization legally
responsible for the use of [the insured automobile]. . . .’” Id. In its ruling, the Fifth Circuit
held:
But nowhere in the amendments is there any indication that Congress intended
to preclude recovery by the United States from the employee’s liability carrier,
where the employee has voluntarily, albeit unnecessarily, included the United
States as an “insured” under his policy. The court below found this intent
implied from the fact that Congress did not expressly include within the
amendments authority for the United States to proceed against its employees’
insurers. However these amendments had as their purpose the protection of
Government employees from personal liability arising from automobile
accidents negligently caused by them; they were not designed to, and should
not be held to, affect the rights created by and existing by virtue of insurance
contracts taken out by Government employees. Plainly Government employees
no longer need to insure against automobile accidents occurring while they are
acting within the scope of their Government employment; but nothing
prohibits them from doing so if they so choose.
7
Id. at 620.
¶19. Unquestionably, FCMH is an additional insured under the Farm Bureau policy. As
such, it is entitled to the contractual benefits provided by the language of the Farm Bureau
policy, which clearly and unambiguously covers employers as insureds. If the “language in
an insurance contract is clear and unambiguous, then the court should construe it as written.”
Jackson v. Daley, 739 So. 2d 1031, 1041 (Miss. 1999) (citation omitted).
¶20. The pertinent clause of the Farm Bureau policy declares, “Under Coverages A and B,
the unqualified word “Insured” means the named Insured . . . any person or organization
legally responsible for its use, provided the actual use of the automobile is by the named
Insured or spouse or with permission of either.” (Emphasis added).
¶21. Neither party questions that FCMH was an organization legally responsible for the use
of the auto with the permission of the named insured, Jordan. Although FCMH was not the
named insured, the “same duty is owed to an unnamed party to a contract and a named
party.” Grange Mut. Cas. Co. v. United States Fid. and Guar. Co., 853 So. 2d 1187, 1191
(Miss. 2003). “The insured may be named within the policy or may be identified by
description. . . . If the description of the insured within the policy is sufficient to identify who
is protected, the insured does not have to be specifically named.” 3 Lee Russ & Thomas
Segalla, Couch on Insurance § 40:3 (2005).
¶22. Since this Court has never defined an “organization legally responsible,” we seek
guidance from other courts called upon to define the term. Recognized treatises such as
8
Appleman’s Insurance Law and Practice and Blashfield’s Automobile Law and Practice,
along with numerous courts throughout the land,4 agree with the Fifth Circuit, which opined,
In very plain language [the] policy insures any ‘person or organization legally
responsible for the use’ of the insured automobile. The only question in the
court below was, and in this court is, whether the United States may qualify as
an additional ‘insured’ under this language. And we are convinced that this no
longer is a question to be answered by applying the usual rules of contract
construction. On the contrary, an unbroken line of cases, presenting this very
question and involving the same or very similar contract language, has
definitively answered the question in favor of the United States.
¶23. Myers, 363 F.2d at 617-618 (citations omitted). Clearly, FCMH was an “organization
legally responsible,” and as an insured, FCMH is entitled to the same benefits, protections
and coverages provided by Farm Bureau to its named insured.
¶24. Certainly an insurer possesses the right to exclude government employers should it
choose, as many insurers, including Farm Bureau, have done in specifically excluding the
United States government. The policy sub judice excluded “the United States Government
or any of its Agencies, Departments, or Services.” The failure of Farm Bureau to exclude
4
See Government Employees Ins. Co. v. United States, 349 F.2d 83 (10th Cir. 1965),
cert. denied. 382 U.S. 1026, 15 L. Ed. 2d 539, 86 S. Ct. 646 (1966); Adams v. United States,
241 F. Supp. 383 (S.D. Ill. 1965); Purcell v. United States, 242 F. Supp. 789 (D.Minn.
1965); United States v. State Farm Mut. Auto. Ins. Co., 245 F. Supp. 58 (D.Ore. 1965);
Barker v. United States, 233 F. Supp. 455 (N.D. Ga. 1964); Gahagan v. State Farm Mut.
Auto. Ins. Co., 233 F. Supp. 171 (W.D. La. 1964); Nistendirk v. United States, 225 F. Supp.
884 (W.D. Mo. 1964); McCrary v. United States, 235 F. Supp. 33 (E.D. Tenn. 1964);
Patterson v. United States, 233 F. Supp. 447 (S.D. Tenn. 1964); Vaughn v. United States,
225 F. Supp. 890 (E.D. Tenn. 1964); Nistendirk v. McGee, 225 F. Supp. 883 (W.D. Mo.
1963); Irvin v. United States, 148 F. Supp. 25 (D.S.D. 1957); Rowley v. United States, 140
F. Supp. 295 (D. Utah 1956). See also 6C John Alan Appleman, Insurance Law and Practice
§ 4355, n.88.25; 8 Blashfield Automobile Law and Practice § 321.11, n.6.
9
[Mississippi] state or local governments or any of their agencies, departments or services
validates FCMH’s claim that it is indeed an insured.
¶25. “Insurance contracts are construed most strongly against the party drafting the contract
and most favorably for the policyholder. . . . The rule is based upon the doctrine of omnia
praesumuntur contra proferrentem - all things are presumed against the offeror.” Jeffrey
Jackson, Mississippi Insurance Law § 1:8 (2001) (citations omitted). Farm Bureau had the
option of excluding state employers. “Exclusions to omnibus coverage are not implied and
must be clearly stated in the policy or will be generally construed against the insurer.” 8 Russ
& Segalla, Couch on Insurance at § 111.8.
¶26. The decision of the trial court unnecessarily intertwined the employment, and
ultimately, contribution vel non issue between Jordan and FCMH, with a separate and
distinct contractual dispute between FCMH and Farm Bureau. Under the four corners of
Farm Bureau’s policy, FMCH was an additional insured, regardless of Jordan’s immunity
and/or dismissal from the suit. “An insurer denies coverage to its insured when it fails or
refuses to accord him the satisfaction it contracted to give. . . .” State Farm Mut. Auto Ins.
Co. v. Talley, 329 So. 2d 52, 56 (Miss. 1976) (quoting North River Ins. Co. v. Gibson, 244
S.C. 393, 397, 137 S.E.2d 264, 266 (1964)) (quoting State Farm Mut. Ins. Co. v. Brower,
204 Va. 887, 134 S.E.2d 277 (1964)). Farm Bureau was contractually obligated to defend
and/or indemnify FCMH as an additional insured by the language of Farm Bureau’s contract
10
of insurance. FCMH’s coverage is not eviscerated by either the Mississippi Tort Claims Act
or Jordan’s immunity thereunder.5
¶27. Accordingly, we reverse and remand for proceedings consistent with this opinion.
¶28. REVERSED AND REMANDED.
SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON AND
LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION.
EASLEY, JUSTICE, DISSENTING:
¶29. Today’s majority opinion places an undue financial burden on many state employees
who drive their own vehicles in the course and scope of their employment with the State of
Mississippi. Therefore, I respectfully dissent with the majority’s opinion to reverse and
remand to the Circuit Court of Franklin County. I would affirm the trial court decision which
granted summary judgment in favor of Farm Bureau. I base my dissent on the fact that (1)
the Mississippi Torts Claim Act (MTCA) provides that “Nothing in this Chapter shall enlarge
or otherwise adversely affect the personal liability of an employee of a government entity.”
5
The public policy adopted by legislative act has also ensured coverage. See Miss.
Code Ann. § 63-15-43(2)(b)(Rev. 2004) (emphasis added):
(2) Such owner's policy of liability insurance:
(b) Shall pay on behalf of the insured named therein and any other person, as insured,
using any such motor vehicle or motor vehicles with the express or implied
permission of such named insured, all sums which the insured shall become legally
obligated to pay as damages arising out of the ownership, maintenance or use of such
motor vehicle or motor vehicles. . . .
11
Miss. Code Ann. § 11-46-7(8) (Rev. 2002); (2) an employee’s personal liability will be
affected by higher personal premium rates; and (3) all parties, including Franklin County
Memorial Hospital (FCMH) agreed to dismiss Jordan from the suit with prejudice and with
no reservation of rights or actions against Jordan’s insurance coverage by Farm Bureau.
I.
¶30. This Court employs the de novo standard in reviewing a trial court's grant of summary
judgment. Dearman v. Christian, 967 So. 2d 636 (Miss. 2007). The moving party shall be
granted summary judgment "if the pleadings, depositions, answers to interrogatories and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law." Miss.
R. Civ. P. 56(c). "Summary judgment is mandated where the respondent has failed to make
a showing sufficient to establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial." Dearman, 967 So. 2d at 639.
(citations omitted).
¶31. While this appeal involves only the dispute between FCMH and Farm Bureau, it is
helpful to examine the trial court’s order dismissing Jordan. In its order of dismissal as to
Jordan, the trial court stated:
[A]ll claims which were or could have been raised herein against the
individual Defendant, Sydneye Marie Jordan, are hereby dismissed, with
prejudice, from the above styled and numbered cause, pursuant to Section 11-
46-7(2) of the Mississippi Code of 1972, as amended. The said Sydneye Marie
Jordan may be retained in the pleadings and style of this case in a
representative capacity, only, and no claim may be made against her, nor any
Judgment rendered against her in her individual capacity.
12
¶32. The trial court conducted a bench trial as to Dover’s claim against FCMH, ultimately
awarding Dover $49,500 in damages against FCMH. Following the bench trial, the trial
court entered its order of final judgment as to FCMH’s claim against Third-Party Defendant
Farm Bureau. The final judgment provided:
This comes before the court on the Third-Party Plaintiff’s motion for
partial summary judgment and also the Third-Party Defendant’s motion for
summary judgment. The court previously conducted a bench trial and resolved
all issues between the plaintiff, Boyce Dover[,] and the defendant, Franklin
County Memorial Hospital. The parties agreed that the issue involved in the
Third-Party Complaint was one of law for the court to subsequently decide.
Boyce Dover was on foot at the Wal-Mart store in Natchez,
Mississippi[,] on June 14, 2002. Sydneye Marie Jordan was operating a
private vehicle, insured by the Third-Party Defendant, which hit Dover in the
parking lot on said date. Jordan was an employee of the Third-Party Plaintiff
at the time, acting within the course and scope of her employment.
Dover sued Franklin County Memorial Hospital and Jordan, specifically
alleging that Jordan was within the course and scope of her employment with
the hospital at the time. The initial answer of Jordan and the hospital
specifically denied that allegation. Jordan and the hospital subsequently
amended their answer to specifically admit that allegation. Apparently, Jordan
was on an errand for the hospital at the time.
Subsequent thereto, an order of dismissal was entered upon Jordan’s
motion to be dismissed. This order was agreed to by all of the parties.
Included in the order was a stipulation and agreement by the parties that on
the occasion in question Jordan was in the course and scope of her
employment with the hospital. It further provided for the dismissal with
prejudice of “all claims which were or could have been raised herein against
the individual Defendant, Sydneye Marie Jordan.” Significantly, the order
further provided that Jordan “may be retained in the pleadings and style of
this case in a representative capacity, only, and no claim may be made
against her, nor any judgment rendered against her in her capacity.”
The court subsequently found after a bench trial Jordan to be 90% at
fault, with the plaintiff Dover 10% at fault, and assessed total damages at
$55,000.00 resulting in a final judgment of $49,500.00. The Third-Party
Plaintiff argues that Jordan’s auto liability carrier, the Third-Party Defendant,
13
is responsible for the damages. This argument is based primarily on the
language of the insurance contract. The Third-Party Defendant argues that it
has no liability or responsibility due to this action being pursuant to the
Mississippi Torts Claims Act and the individual order of dismissal that was
entered for Jordan.
The court has found none of the authorities cited by either party to be
clearly dispositive of the issue before the court. The court finds persuasive the
conclusion that the clear and unambiguous language of the agreed order of
dismissal with prejudice as to Jordan[,] individually, also operated to fully
and completely release her individual auto insurance carrier, the Third-
[P]arty Defendant, Mississippi Farm Bureau Mutual Insurance Company,
from any and [all] responsibility or coverage. The court finds this
persuasive because of the clear language of the dismissal order, and the
absence of any reservation of rights or actions against Jordan’s private auto
insurance coverage.
It is therefore ordered that summary judgment and final judgment be
granted for the Third-Party Defendant, Mississippi Farm Bureau Mutual
Insurance Company, on the claims of the Third-Party Plaintiff, Franklin
County Memorial Hospital. It is further ordered that the Third-Party
Complaint be dismissed with prejudice, with each of the parties to bear their
respective costs, as already incurred.
(Emphasis added).
¶33. Mississippi Code Annotated Section 11-46-7 (Rev. 2002) provides, in pertinent part:
as follows:
(1) The remedy provided by this chapter against a governmental entity or its
employee is exclusive of any other civil action or civil proceeding by reason
of the same subject matter against the governmental entity or its employee or
the estate of the employee for the act or omission which gave rise to the claim
or suit; and any claim made or suit filed against a governmental entity or its
employee to recover damages for any injury for which immunity has been
waived under this chapter shall be brought only under the provisions of this
chapter, notwithstanding the provisions of any other law to the contrary.
(2) An employee may be joined in an action against a governmental entity in
a representative capacity if the act or omission complained of is one for which
the governmental entity may be liable, but no employee shall be held
personally liable for acts or omissions occurring within the course and scope
14
of the employee's duties. For the purposes of this chapter an employee shall
not be considered as acting within the course and scope of his employment and
a governmental entity shall not be liable or be considered to have waived
immunity for any conduct of its employee if the employee's conduct
constituted fraud, malice, libel, slander, defamation or any criminal offense.
....
(5) A governmental entity shall not be entitled to contribution or
indemnification, or reimbursement for legal fees and expenses from its
employee unless a court shall find that the act or omission of the employee
was outside the course and scope of his employment. Any action by a
governmental entity against its employee and any action by an employee
against the governmental entity for contribution, indemnification, or necessary
legal fees and expenses shall be tried to the court in the same suit brought on
the claim against the governmental entity or its employee.
....
(8) Nothing in this chapter shall enlarge or otherwise adversely affect the
personal liability of an employee of a governmental entity. Any immunity or
other bar to a civil suit under Mississippi or federal law shall remain in effect.
The fact that a governmental entity may relieve an employee from all
necessary legal fees and expenses and any judgment arising from the civil
lawsuit shall not under any circumstances be communicated to the trier of fact
in the civil lawsuit.
(Emphasis added).
¶34. In Mozingo v. Scharf, 828 So. 2d 1246, 1256 (Miss. 2002), this Court held that under
the MTCA, a governmental employee does not waive his/her immunity to the extent of the
insurance policy limits if he/she has a personal insurance policy. The Court reasoned that
a governmental employee's personal insurance policy is not subject to exposure for injuries
caused by the employee in his/her capacity as an employee, during the course and scope of
his/her employment. Id. The Court stated:
By having liability insurance, Dr. Scharf has not waived his immunity under
the MTCA. We held in Knight v. McKee, 781 So. 2d 121 (Miss. 2001), that
a physician who treats a patient in his capacity as an employee of UMMC does
not waive his immunity by possessing professional liability insurance.
15
Likewise, the fact that Dr. Scharf possessed liability insurance is irrelevant
to the inquiry as to whether he enjoys immunity under the MTCA. See also
Miss. Att'y Gen. Op. No. 96-0053, 1996 WL 88865 (Feb. 16, 1996) (stating
that governmental employee's personal policy is not subject to exposure for
injuries resulting from torts committed during the course and scope of
employment).
Mozingo, 828 So. 2d at 1256 (emphasis added).6
II.
¶35. Despite the fact that under the MTCA, Jordan’s personal insurance is not subject to
exposure because of her role as a governmental employee acting within the course and scope
of her employment as discussed above, the trial court instead reasoned that the agreed order
of dismissal with prejudice as to Jordan barred any claim by FCMH against Farm Bureau.
The trial court determined that the clear and unambiguous language of the agreed order of
dismissal with prejudice as to Jordan, individually, operated to fully and completely release
her individual auto insurance carrier, Farm Bureau, from any and all responsibility or
coverage. As the trial court stated, “the clear language of the dismissal order and the absence
of any reservation of rights or actions against Jordan’s private auto insurance coverage”
required that summary and final judgment be granted for Farm Bureau on FCMH’s claims.
The result reached by the trial court is correct.
6
The Court in Mozingo distinguished between a governmental entity and a
governmental employee when considering waiver of immunity to the extent of its insurance
coverage under the MTCA. Mozingo, 828 So. 2d at 1256 . The Court held: “Miss. Code
Ann. § 11-46-17(4) has been interpreted by this Court as providing that only the
governmental entity, not the employee, may be sued to the extent of its insurance coverage.”
Id. (citations omitted).
16
¶36. Based on the facts of this case, Farm Bureau had no duty to defend or to indemnify
FCMH. Therefore, the trial court’s judgment should be affirmed.
III.
¶37. The trial court properly determined that Third-Party Defendant Mississippi Farm
Bureau Mutual Insurance Company was entitled to summary and final judgment with
prejudice as to all claims raised by Third-Party Plaintiff Franklin County Memorial Hospital.
Therefore, I would affirm the final judgment of the Circuit Court of Franklin County,
Mississippi.
17