Coleman v. American Mfrs. Mut. Ins. Co.

• Citation: 930 F. Supp. 255
• Decision Date: 11 June 1996
• Docket Number: Civil Action No. 4:95cv73-D-B.
• Parties: William C. COLEMAN, Plaintiff, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Defendant/Third Party Plaintiff, v. The CITY OF GREENVILLE, Third Party Defendant.
• Court: U.S. District Court — Northern District of Mississippi

930 F. Supp. 255

William C. COLEMAN, Plaintiff, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Defendant/Third Party Plaintiff, v. The CITY OF GREENVILLE, Third Party Defendant.

Civil Action No. 4:95cv73-D-B.

United States District Court, N.D. Mississippi, Greenville Division.

June 11, 1996.

COPYRIGHT MATERIAL OMITTED

Gaines S. Dyer, James Rabun Jones, Jr., Greenville, Mississippi, for Plaintiff.

Thomas Y. Page, Walter Christian Morrison, IV, Jackson, Mississippi, for American Manufacturers Mutual Insurance Company.

Guy Ken Ellis, Jr., Greenville, Mississippi, for The City of Greenville, Mississippi.

MEMORANDUM OPINION

DAVIDSON, District Judge.

Again this court takes up the matter of a vehicular accident involving the plaintiff and a municipal fire truck owned and operated by the third-party defendant, City of Greenville, Mississippi ("Greenville"). Presently pending before the court is the second motion for summary judgment filed by the defendant American Manufacturers Mutual Insurance Company ("American"), and motions for summary judgment and to consider a motion for summary judgment out of time filed by the City of Greenville.

Factual Background

This court has already summarized the facts of this case as follows:

On October 3, 1993, an employee of the Greenville Fire Department, Homer L. Smith, drove the fire truck through a red light at the intersection of Alexander Street and Colorado Street in Greenville, striking the plaintiff's vehicle. At the time the fire truck entered the intersection, it was travelling approximately five (5) miles per hour above the posted limit of thirty-five (35) miles per hour, and had its emergency lights and sirens in operation. The plaintiff made a demand for compensation against the City of Greenville for his injuries, which was denied based upon an assertion of the city's immunity under the Mississippi Sovereign Immunity Act. Miss.Code Ann. § 11-46-9(c). The plaintiff then turned to his own auto insurance carrier and filed a claim under his uninsured motorist (UM) coverage, taking the position that the City of Greenville's fire truck was an "uninsured vehicle" as defined under Mississippi's Uninsured Motorist Act. That claim was also denied, and this litigation resulted.

Coleman v. American Manuf. Mut. Ins. Co., 930 F.Supp. 252 (N.D.Miss.1995) (Davidson, J.) (Memorandum Opinion and Order Holding Motion for Summary Judgment in Abeyance). The plaintiff originally filed suit against the defendant American for payment under the UM coverage provisions of his automotive insurance policy. American then filed a third-party complaint against the City of Greenville, seeking indemnification against the plaintiff's claims.

After consideration, this court granted in part and denied in part American's first motion for summary judgment. The undersigned determined that while American was indeed entitled to assert the defense of sovereign immunity on behalf of the alleged "uninsured motorist," the City of Greenville, against the plaintiff's claims arising out of negligence, such immunity would not protect American from claims of injury resulting from certain reckless activity. Miss.Code Ann. § 11-46-9(1)(c) (Supp.1995). The court also permitted the plaintiff to amend his complaint to charge the driver of the Greenville fire truck, Mr. Homer Smith, with recklessness.

American then filed its second motion for summary judgment with the court, charging that the Greenville fire truck is not an "uninsured vehicle" so as to trigger coverage under the plaintiff's automobile insurance policy. The City of Greenville also filed a motion for summary judgment, and asserted that American's third-party complaint against it was untimely as outside of the statute of limitations under the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-11(3). As its motion was filed beyond the set deadline for filing dispositive motions in this cause, Greenville filed a motion for this court to consider its untimely motion for summary judgment. The plaintiff has responded to these various motions, and they are ripe for decision.

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.C.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.1994). "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Federal Sav. & Loan Ins. v. Kralj, 968 F.2d 500, 503 (5th Cir.1992). The facts are reviewed drawing all reasonable inferences in favor of the party opposing the motion. Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir.1994).

II. WAS THE FIRE TRUCK AN "UNINSURED VEHICLE?"

The court acknowledged this problem when analyzing American's first motion for summary judgment:

Initially, in order to recover under his insurance policy's uninsured motorist provisions, the plaintiff must establish that the fire truck was an "uninsured vehicle" as defined under Mississippi law. Miss.Code Ann. § 83-11-103(c). The most common qualification is that an "uninsured motor vehicle" is "a motor vehicle as to which there is no bodily injury liability insurance." Miss.Code Ann. § 83-11-103(c)(i). The plaintiff has alluded to the fact that the City of Greenville does not possess traditional insurance coverage, but rather is self-insured through the Mississippi Municipal Liability Plan (MMLP), and such self-insurance is authorized by state statute. Miss.Code Ann. § 11-46-17(5) (Supp. 1995). The MMLP is a form of self-insurance and does not constitute "insurance" sufficient to create a waiver of sovereign immunity. Morgan v. City of Ruleville, 627 So.2d 275, 281 (Miss.1993); McGee v. Parker, 772 F.Supp. 308, 310-12 (S.D.Miss. 1991); White v. City of Morton, 775 F.Supp. 962, 967-69 (S.D.Miss.1990), rev'd on other grounds, 959 F.2d 539 (5th Cir. 1992); C-1, a Minor v. City of Horn Lake, 775 F.Supp. 940, 951-52 (N.D.Miss.1990). One of the plaintiff's contentions in this cause is that the MMLP likewise does not constitute "insurance" for purposes of the Mississippi Uninsured Motorist Act. In any event, the defendant feels this is a non-issue, and instead relies upon its other arguments. As it is the burden of the defendant to establish that it is entitled to summary judgment, and as it has not attempted to do so on this issue, the court shall not dwell upon this matter further.

Coleman v. American Manuf. Mut. Ins. Co., 930 F.Supp. 252 (N.D.Miss.1995) (Davidson, J.) (Memorandum Opinion and Order Holding Motion for Summary Judgment in Abeyance). In their second motion for summary judgment, American does indeed feel this matter is of some import. This court agrees, and fully believes that the issue has serious implications which will impact a vast amount of litigation in Mississippi courts. As this cause is fraught with matters which have never been conclusively decided under Mississippi law, this court will make its best Erie-guess¹ as to how the Mississippi Supreme Court would decide these issues if faced with them.

Mississippi statutory law dictates the qualifications for a vehicle to be considered "uninsured" for purposes of the Uninsured Motorists Act. Miss.Code Ann. § 83-11-103(c). Two of the available categories of "uninsured" vehicles are at issue in the case at bar.

A. DID THE FIRE TRUCK HAVE "BODILY INJURY LIABILITY INSURANCE?"

The first category of "uninsured" vehicles in dispute here are those vehicles "as to which there is no bodily injury liability insurance." Miss.Code Ann. § 83-11-103(c)(i). As already noted, the Greenville fire truck involved in this accident was not covered by a traditional automobile liability policy, but rather was protected under the MMLP. The court has also already noted that the Mississippi Supreme Court has determined that the MMLP is not "insurance" for purposes of the waiver of sovereign immunity. Morgan, 627 So.2d at 281.

American urges this court to find that the MMLP is indeed insurance, at least as far as Mississippi's UM statute is concerned. In support of this claim, American basically argues that MMLP protection is the equivalent of liability insurance and therefore should be treated as such. "Insurance" is defined under Mississippi law as:

an agreement by which one party for a consideration promises to pay money or its equivalent, or to do some act of value to the assured, upon the destruction, loss, or injury of something in which the assured or other party has an interest, as to indemnity therefor.

Miss.Code Ann. § 83-5-5. The Morgan court essentially found that the MMLP did not meet this definition, but rather that "the MMLP is a non-profit organization created to share the liability of municipalities." Also relevant to the determination of the Mississippi Supreme Court was the fact that the by-laws of the MMLP state it is "not intended to operate as an insurance company, but rather is intended to provide mechanisms by which each municipality provides reserves for itself and its employees in their official capacities for uninsured liability claims not covered by immunity or a...