JESSICA C. MCGLOTHIN, Plaintiff - Appellee
STATE FARM MUTUAL INSURANCE COMPANY, Defendant-Appellant
from the United States District Court for the Southern
District of Mississippi USDC No.: 1:17-CV-83
BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
HAWKINS BARKSDALE, CIRCUIT JUDGE.
issue in this diversity action is whether, as the district
court concluded, two sections of Mississippi's Uninsured
Motorist (UM) Act, Mississippi Code §§ 83-11-101
et seq., are repugnant: §§ 83-11-101(1)
(requiring automobile insurers provide UM coverage to extent
insured is "legally entitled to recover") and
83-11-103(c)(vi) (defining "uninsured motor
vehicle", as used in UM Act, to include vehicle
"owned or operated by a person protected by immunity
under the Mississippi Tort Claims Act"). State Farm
Mutual Automobile Insurance Company maintains: the sections
are not repugnant; and, as a result, it is not liable for UM
coverage. Therefore, it challenges the district court's,
on cross-motions for summary judgment, denying its motion in
that regard and granting Jessica C. McGlothin's. That
part of the judgment in favor of McGlothin is VACATED, and
judgment is RENDERED for State Farm.
February 2016, a fireman with the Biloxi, Mississippi, fire
department, rear-ended McGlothin's vehicle. The fireman
was acting in the course and scope of his employment with the
fire department at the time of the accident, and was
not-as McGlothin concedes-acting "in reckless
disregard of [her] safety and well-being". See,
e.g., Miss. Code Ann. § 11-46-9(1)(c)
(Mississippi Tort Claims Act (MTCA);
police-and-fire-protection immunity clause).
time of the accident, McGlothin's vehicle was insured
under a State Farm policy, which provided UM coverage. As
required by the UM Act, the UM provision in the policy
provides, in pertinent part: State Farm "will pay
compensatory damages for bodily injury and property damage an
insured is legally entitled to collect from the owner or
driver of an uninsured motor vehicle". (Emphasis
that line, the UM Act's definition of an "uninsured
motor vehicle" includes, inter alia, "a
vehicle owned or operated by a person protected by immunity
under the [MTCA]". § 83-11-103(c)(vi). Under the
MTCA, employees of governmental entities are personally
immune from claims arising from acts performed within the
course and scope of their employment. § 11-46-7(2)
(government-employee immunity clause). Because the fireman is
protected by immunity under the MTCA, the fire-department
vehicle he was driving is considered an uninsured motor
vehicle as defined by the UM Act. (As explained more fully
infra, the city and fire department were also immune
from suit pursuant to the MTCA's
police-and-fire-protection immunity clause.)
filed this action in February 2017 in Mississippi state court
against the fireman, the fire department, and the City of
Biloxi, claiming negligence. And, in the alternative, she
included State Farm as a defendant, seeking UM coverage in
the event the other parties were entitled to sovereign
immunity, pursuant to the MTCA, Mississippi Code §§
11-46-1 et seq. State Farm removed this action to
federal court based on diversity jurisdiction.
claims against the fireman, the city, and the fire department
were dismissed because McGlothin failed to serve them with
process. (This dismissal created complete diversity; and,
therefore, the district court had jurisdiction under 28
U.S.C. § 1332. See Grupo Dataflux v. Atlas Global
Group, L.P., 541 U.S. 567, 571-73 (2004);
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-78
(1996).) Instead, McGlothin pursued her claims against the
fireman, the fire department, and the city in state court.
The state court granted defendants' summary-judgment
motion, concluding: "[The fireman] was not acting with
reckless disregard as required for a governmental entity or
governmental employee to be held liable under the
[MTCA]". McGlothin v. Mason, No. A2402-17-20
(Harrison Cty. Cir. Ct. 30 Nov. 2017).
action, McGlothin and State Farm filed cross-motions for
summary judgment. The district court granted McGlothin's,
and partially denied State Farm's, concluding McGlothin
is entitled to UM coverage, pursuant to its ruling
Mississippi Code §§ 83-11-101(1) and
83-11-103(c)(vi) are repugnant, with the latter being the
more specific, controlling section. McGlothin v. State
Farm Mut. Ins., 297 F.Supp.3d 635, 638 (S.D.Miss. 2018).
83-11-101 (policy requirement) lists mandatory provisions to
be contained in automobile-liability-insurance policies,
including requiring automobile insurers provide UM coverage
to the extent the insured is "legally entitled to
recover". As discussed supra, §
83-11-103(c) (uninsured-motor-vehicle definition) contains
definitions of the term "uninsured motor vehicle"
as used in the UM Act, which includes, in subpart (c)(vi), a
vehicle "owned or operated by a person protected by
immunity under the [MTCA]".
granting summary judgment against State Farm on the issue of
UM coverage, the district court concluded: under State
Farm's proposed reading of the two sections, "[a]n
insured would never be 'legally entitled to recover'
damages from a person or entity entitled to immunity under
the [MTCA]"; therefore, the sections are repugnant;
"and the only way to carry out the Mississippi
Legislature's intent in enacting Miss. Code Ann. §
83-11-103(c)(vi) [(uninsured-motor-vehicle definition)] is to
view it as an exception to Miss. Code Ann. §
83-11-101(1) [(policy requirement)]".
McGlothin, 297 F.Supp.3d at 638.
result, the court concluded § 83-11-103(c)(vi)
(uninsured-motor-vehicle definition) was the more specific,
and, therefore, controlling section, and McGlothin was
entitled to UM benefits. Id. (On the other hand, the
court granted State Farm's summary-judgment motion
against McGlothin's claims for extra-contractual and
punitive damages ...