City of Jackson v. Perry

• Decision Date: 04 May 2000
• Docket Number: No. 1998-CA-01513-SCT.,1998-CA-01513-SCT.
• Citation: 764 So.2d 373
• Parties: CITY OF JACKSON, Mississippi, Marcus Edwards and Nationwide General Insurance Company v. Ladarrell PERRY, a minor, by and Through his mother and next friend, Addie PERRY.
• Court: Mississippi Supreme Court

764 So.2d 373

CITY OF JACKSON, Mississippi, Marcus Edwards and Nationwide General Insurance Company v. Ladarrell PERRY, a minor, by and Through his mother and next friend, Addie PERRY.

No. 1998-CA-01513-SCT.

Supreme Court of Mississippi.

May 4, 2000.

Rehearing Denied August 24, 2000.

Romaine Levean Richards, Hugh W. Tedder, Jr., Mark C. Carroll, Jackson, Patrick M. Tatum, Greenwood, Attorneys for Appellants.

Dale Danks, Jr., Jackson, Pieter John Teeuwissen, Attorneys for Appellee.

En Banc.

BANKS, Presiding Justice, for the Court:

¶ 1. This case presents issues concerning the interplay between our underinsured motorist statutes and those governing sovereign immunity. We conclude that the statutes were properly interpreted to allow recovery on both the uninsured motorist provision and the tort claims act. We reform the judgment to reflect that the total is not jointly and severally due. In all other respects we affirm.

I.

¶ 2. On April 9, 1994, Ladarrell Perry, a minor, was involved in an automobile accident with Officer Marcus Edwards, a Jackson City Police Officer. Perry, by and through his mother, Addie Perry, brought suit against Officer Edwards, the City of Jackson (hereinafter referred to as "City") and Nationwide General Insurance Company (hereinafter referred to as "Nationwide"). Perry alleged that the sole proximate cause of his injuries was attributable to Edwards's negligent operation of his automobile, causing it to crash into Perry's vehicle. Perry alleged that Officer Edwards acted with gross negligence while acting in the course and scope of his employment as an agent and employee of the City of Jackson, Mississippi. Perry demanded judgment from the City of Jackson and Officer Edwards for $250,000 in actual damages and $250,000 punitive damages. The facts producing this suit are as follows.

¶ 3. On April 4, 1994, at 11:00 p.m., Perry, was driving a black vehicle owned by Connie Dixon. Perry did not have a driver's license at that time. He testified that he was not sure whether he had a learner's permit. Perry was exiting the parking lot of the Fairmont Apartments, on Raymond Road. As Perry proceeded into Raymond Road, Officer Edwards was speeding going east in a police patrol vehicle on Raymond Road without using the sirens or blue lights. Officer Edwards was not on an emergency call, but was going to dinner. Perry pulled into Raymond Road turning left, and going westward. Officer Edwards crashed into the car that Perry was driving.

¶ 4. The City of Jackson does not possess general liability insurance but is self-insured. Based on the aforementioned facts, Perry sued Nationwide to obtain the uninsured/underinsured motorist proceeds. At the time of the accident, the car Perry was driving was owned by Connie Dixon, a nonparty that Nationwide insured.

¶ 5. Nationwide responded by arguing the City is not an uninsured/underinsured motorist for purposes of the Uninsured Motorist Act. Nationwide contended that the liability amount limit of the City of Jackson, in effect at the time of this accident, was the same amount of Nationwide's uninsured motorist coverage on Perry. Therefore, Nationwide claimed that Mr. Perry was not entitled to the uninsured motorist benefits provided by Nationwide.

¶ 6. In an previous appeal on this issue, this Court held that the City's self-insurance plan was not "insurance" for determining coverage under the Uninsured Motorist Act. Perry v. Nationwide Gen. Ins. Co., 700 So.2d 600, 601 (Miss.1997).

¶ 7. On August 24 and 25, 1998, a bench trial was held before the Honorable James E. Graves, Jr., Circuit Judge. At the close of the evidence, the City and Nationwide each made a motion for directed verdict. Both motions were denied. Subsequently, the trial judge entered a decision in favor of Perry. The trial court found that Perry was 10% contributorily negligent. A judgment was entered for Perry in the amount of $101,700.

¶ 8. Nationwide and the City of Jackson appeal from that judgment.

II.

¶ 9. This Court's standard of review of a judgment from a bench trial is well settled. "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor," and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. Puckett v. Stuckey, 633 So.2d 978, 982 (Miss. 1993); Sweet Home Water & Sewer Ass'n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss.1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992). This Court will not disturb those findings unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss.1985). This Court reviews errors of law, which include summary judgments and motions to dismiss, de novo. Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991). "Notwithstanding our respect for and deference to the trial judge, on matters of law it is our job to get it right. That the trial judge may have come close is not good enough." Cooper, 587 So.2d at 239 (quoting UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 754 (Miss.1987)).

III.

A.

¶ 10. We must first determine whether the City of Jackson and Officer Edwards were entitled to immunity under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. § § 11-46-1-et seq. (Supp.1999). The City of Jackson and Edwards argue that they are entitled to immunity because there was no showing of reckless disregard of the safety and well-being of others by Officer Edwards. The City of Jackson and Edwards also argue that they are not liable because Perry was in the commission of a criminal activity at the time of the accident.

¶ 11. Section 11-46-9 waives immunity if Officer Edwards acted with reckless disregard of Perry's safety. That statute states as follows:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... (c) Arising 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.

Miss.Code Ann. § 11-46-9 (Supp.1999) (emphasis added). The City and Officer Edwards argue that Perry pled neither that Officer Edwards acted with reckless disregard of Perry's safety and well-being, nor that Officer Edwards's actions were "willfully or wantonly" committed. We review these arguments in turn.

¶ 12. The City argues that the facts asserted by Perry may show simple negligence, but not reckless disregard of safety. The City argues that this Court has held that speeding by itself is not reckless disregard. The City cites to speeding cases addressing punitive damage awards because the standard to award punitive damages is the same as is required under the MTCA to waive immunity, reckless disregard of the safety of others. The City cites to Maupin v. Dennis, 252 Miss. 496, 175 So.2d 130 (1965) and Mayfield v. Johnson, 202 So.2d 630 (1967), for the proposition that punitive damages, like damages under the MTCA, are not awarded for simple negligence, but only reckless disregard.

¶ 13. In Maupin, this Court held that an individual who was driving at an excessive rate of speed and hit a parked vehicle acted with reckless or wanton disregard of the safety of others, but the plaintiff was not entitled to punitive damages. Maupin v. Dennis, 252 Miss. at 499-500, 175 So.2d at 131. The Court held that punitive damages are ordinarily recoverable only in cases where the negligence is so gross as to indicate reckless or wanton disregard for the safety of others. There, Maupin's actions were found to be simple negligence in failing to exercise due care in the operation of his car.

¶ 14. In Mayfield, punitive damages were not allowed where the proof indicated that the defendant was speeding. May-field, 202 So.2d 630. There, Johnson drove his automobile into the rear of May-field's vehicle, which was struck and rolled the distance of more than five car lengths. Id. The Court considered the fact that Johnson attempted to stop his car and not strike Mayfield. The Court concluded that such conduct is not so gross as to be equivalent to willfulness. Id. at 631-32.

¶ 15. The City's reliance on Maupin and Mayfield for support that Officer Edwards's conduct does not reach the level of reckless disregard for human safety is misplaced. Neither Maupin nor Mayfield involved claims under the MTCA. Perry cites to the correct authorities for the determination of whether an officer's actions constitute "reckless disregard" in the MTCA context, Turner v. City of Ruleville, 735 So.2d 226 (Miss.1999); and Maye v. Pearl River County, 758 So.2d 391 (Miss.1999).

¶ 16. In Turner, this Court held that a showing of intent to harm is not required to remove an act from immunity, but it must be determined whether the officer's actions were "in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury." Turner v. City of Ruleville, 735 So.2d at 230 (¶¶ 18-19). In Turner, this Court held that an officer acted with reckless disregard for the safety of others when he allowed a visibly intoxicated motorist to continue driving. Id. The Court held this to be reckless disregard of the safety of any person, when that intoxicated motorist later had an accident.

¶ 17. In Maye, a police officer backed his car into a car that the plaintiff was driving. Maye v. Pearl River County, 758 So.2d 391, at 392. This Court held that with conscious indifference to the consequences, the officer backed out knowing he could not see what was behind him. The Court held that the officer's actions rose above simple negligence to the level of reckless disregard of the...