JESSICA C. MCGLOTHIN v. STATE FARM MUTUAL INSURANCE COMPANY
No. 18-60338
United States Court of Appeals, Fifth Circuit
May 31, 2019
RHESA HAWKINS BARKSDALE, Circuit Judge
Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
At issue in this diversity action is whether, as the district court concluded, two sections of Mississippi‘s Uninsured Motorist (UM) Act,
I.
In 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.,
At the 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 omitted.)
Along 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]“.
McGlothin 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,
McGlothin‘s 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
In this 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
In 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
As a result, the court concluded
II.
It hardly bears repeating that the “grant[] and denial[] of summary judgment [is reviewed] de novo“. Century Sur. Co. v. Seidel, 893 F.3d 328, 332 (5th Cir. 2018) (quotations and citation omitted). Equally well-known is that summary judgment is proper “if the movant shows . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law“.
The facts are undisputed. We must determine whether the two provisions of Mississippi‘s UM Act are repugnant. Obviously, Mississippi substantive law applies to this diversity action. Erie R.R. v. Tompkins, 304 U.S. 64, 78-79 (1938).
The UM Act requires all automobile-liability-insurance policies to contain a provision “undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle“.
The MTCA generally waives “the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment“.
One of those exemptions is found in the MTCA‘s earlier-referenced police-and-fire-protection immunity clause:
A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim . . . [a]rising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury[.]
The MTCA also provides that “no employee [of a governmental entity] shall be held personally liable for acts or omissions occurring within the course and scope of the employee‘s duties“.
A.
In instances where the State‘s highest court has not spoken on the direct question, federal courts are required to make an ”Erie guess and determine, in [their] best judgment how [the State‘s
The Mississippi Supreme Court has not decided whether the two sections at issue are repugnant. And, to make our Erie guess far more difficult, neither has the Mississippi Court of Appeals. Therefore, State Farm urges we consider two Mississippi circuit court decisions, each of which was rendered by a different court.
First, in 2009, a circuit court granted summary judgment in favor of State Farm in Rayner v. State Farm Mutual Automobile Insurance Company, No. 2009-36 (Rankin Cty. Cir. Ct. 9 Dec. 2009). In Rayner, the circuit court stated: “[S]ince . . . Plaintiffs are not legally entitled to recover against the Deputy/County, etc., the Court finds that no UM benefits are owed to Plaintiffs under the State Farm policy“. Id.
The accident in Rayner, however, occurred in 2008, and, because the judgment provides no reasoning, it is unclear whether the court applied the UM Act as written before or after the 2009 amendment to
Second, in 2014, the other Mississippi circuit court granted summary judgment in favor of State Farm, concluding: “[B]ecause the Plaintiff‘s claims against [the law-enforcement officer] are barred by the police and fire protection exemption to the MTCA, . . . Plaintiff is not legally entitled to recover UM benefits from State Farm“. Williams v. State Farm Mut. Auto. Ins., No. L12-545 (Lafayette Cty. Cir. Ct. 16 Oct. 2014). Therefore, citing Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940), State Farm contends the district court reversibly erred by not considering the order in Williams.
It is true that, in Field, the Supreme Court held, because of the uniformity between two state-trial-court decisions interpreting the state statute in issue, the federal third circuit “was not at liberty to reject these decisions merely because it did not agree with their reasoning“. 311 U.S. at 179. But in 1967 in Roecker, our court distinguished Field, relying on the 1948 decision in King, 333 U.S. at 159-62. See Roecker, 379 F.2d at 406 (ruling, as quoted supra: “a federal court need not necessarily defer to state trial court decisions“). Because Mississippi trial courts are not “court[s] of statewide jurisdiction“, unlike the chancery court in Field, we need not defer to these unpublished circuit-court decisions. Id.
As discussed above,
McGlothin contends, however, consistent with the district court‘s ruling, that the 2009 amendment expanding the definition of “uninsured motor vehicle” to include “[a] motor vehicle owned or operated by a person protected by immunity under the [MTCA]“,
“[S]tatutes on the same subject, although in apparent conflict, should if possible be construed in harmony with each other to give effect to each“. Tunica Cty. v. Hampton Co. Nat. Sur., LLC, 27 So. 3d 1128, 1134 (Miss. 2009) (quoting Miss. Gaming Comm‘n v. Imperial Palace of Miss., Inc., 751 So. 2d 1025, 1029 (Miss. 1999)); see also Goolsby v. Blumenthal, 581 F.2d 455, 461 (5th Cir. 1978) (“Where the two statutes in question are capable of standing together, there is no irreconcilable conflict.“).
There are scenarios in which
Another example would be when a city employee (not a fireman or police officer protected by the police-and-fire-protection immunity clause of the MTCA,
When pressed at oral argument here, McGlothin countered these scenarios render
That these scenarios may not occur very often does not, of course, render the two sections repugnant. Furthermore, at oral argument, McGlothin‘s counsel admitted “repugnant” is not the word he would employ to describe the sections. Oral Argument at 35:41-46. Instead, he stated he would describe them as “confusing“. Oral Argument at 35:50-55. Obviously, the two sections’ being “confusing” does not equate to repugnancy. Our charge, as noted, is to read them in harmony, if possible. As shown, it is possible to do so.
It is true, as McGlothin contends, that the UM Act is to be “construed liberally to provide coverage and strictly to avoid or preclude exceptions or exemptions from coverage“. Miss. Farm Bureau Mut. Ins. v. Garrett, 487 So. 2d 1320, 1323 (Miss. 1986) (citation omitted). But “[l]imiting UM coverage is not in issue here, . . . for there is no person from whom [plaintiff in this action is] legally entitled to recover damages pursuant to the UM policy or the statute; at least, not until the legislature defines the required coverage differently“. Medders v. U.S. Fidelity & Guar. Co., 623 So. 2d 979, 988 (Miss. 1993) (citation omitted).
Along that line, and regarding McGlothin‘s contention that the 2009 amendment created an exception to the “legally entitled to recover” requirement, “[a]n exception must be clear from the language of the statute and cannot be created by construction“. Imperial Palace of Miss., 751 So. 2d at 1028 (citing Miss. Dep‘t of Wildlife, Fisheries & Parks v. Miss. Wildlife Enf‘t Officers’ Ass‘n, 740 So. 2d 925, 931 (Miss. 1999)). And, “[t]he statutory language, legally entitled to recover, is ‘simply too unambiguous to admit of judicially created exception . . .‘“. Medders, 623 So. 2d at 989 (emphasis in original) (citation omitted). Of course, if the Mississippi legislature had wanted to exempt “motor vehicle[s] owned or operated by . . . person[s] protected by immunity under the [MTCA]” from the “legally entitled to recover” requirement, it could have easily and explicitly done so. See, e.g., Miss. Wildlife Enf‘t Officers’ Ass‘n, 740 So. 2d at 932 (quoting State v. Heard, 151 So. 2d 417, 420 (Miss. 1963)). But, it did not.
The Mississippi Supreme Court has held that “the clear meaning of the phrase legally entitled to recover found in the Mississippi UM statute limits the scope of the coverage mandated by the
III.
For the foregoing reasons, that part of the judgment in favor of McGlothin is VACATED, and judgment is RENDERED for State Farm.