French v. Pearl River Valley Water Supply Dist.

• Decision Date: 18 March 1981
• Docket Number: No. 52313,52313
• Citation: 394 So.2d 1385
• Parties: James E. FRENCH et al. v. PEARL RIVER VALLEY WATER SUPPLY DISTRICT et al.
• Court: Mississippi Supreme Court

Page 1385

394 So.2d 1385

James E. FRENCH et al. v. PEARL RIVER VALLEY WATER SUPPLY DISTRICT et al.

No. 52313.

Supreme Court of Mississippi.

March 18, 1981.

L. Glenn Fant, Jr., Holly Springs, for appellants.

William N. Reed, Watkins, Pyle, Ludlam & Stennis, Walker W. Jones, III, Jones & Mockbee, Heber Ladner, Jr., William C. Reeves, Upshaw & Ladner, Jackson, for appellees.

En banc.

WALKER, Justice, for the Court:

This is an appeal from a final judgment of the Circuit Court of the First Judicial District of Hinds County, which court sustained defendants' demurrer and dismissed plaintiffs' declaration.

Plaintiffs had sued Pearl River Valley Water Supply District and the members of its Board of Directors. The declaration alleged in detail improper management and operation of Ross Barnett Reservoir and resulting property damage to plaintiffs. The declaration, as amended, stated that prior to the occurrence of the alleged wrongs and injuries one or more of the defendants, acting either severally or in concert, procured for the protection of the Pearl River Valley Water Supply District and the members of its Board of Directors a policy of liability insurance, issued by a company qualified to do and doing business in the State of Mississippi, in the usual and ordinary form of such policies, and in the principal sum unknown to plaintiffs.

The defendants' demurrer and the court's reason for sustaining same was upon the ground of sovereign immunity.

I.

The appellants' first assignment of error is that the Legislature waived the District's immunity from suit by including in the statute under which the District was formed, Mississippi Code Annotated section 51-9-121(j) (1972), the power "to sue and be sued in its corporate name." The appellants contend that this language in the statute clearly permits suits against the District and, in effect, waives its sovereign immunity. However, we laid this question to rest in Berry v. Hinds County, 344 So.2d 146 (Miss.1977), where suit was brought against the county for injuries suffered when the plaintiff's automobile crashed into a collapsed bridge. In that case the Court said:

Appellants contend that they were authorized to bring suit and did bring suit under the provisions of Mississippi Code Annotated § 11-45-17 (1972), which provides:

"Any county may sue and be sued by its name, and suits against the county shall be instituted in any court having jurisdiction of the amount sitting at the county site; ..."

Long ago, we held, in State Highway Commission v. Gully, 167 Miss. 631, 145 So. 351 (1933):

"A general statutory grant of authority to sue a governmental subdivision or agency does not create any liability, and suit may be maintained thereunder only for such liability as is authorized by statute expressly or by necessary implication. City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Brabham v. Board of Supervisors of Hinds County, 54 Miss. 363, 28 Am.Rep. 352. At the time these cases were decided, the statute provided that any county might sue or be sued by its name, section 3484, Rev.Code 1871, section 309, Code 1906; and it was expressly held in each of these cases that there can be no liability against the state or its political subdivisions or agencies unless it is expressly or impliedly created by statute." 167 Miss. at 647, 145 So. at 354. (Emphasis added).

Of course, the courts, as well as the legislature, have the undoubted right to abrogate the doctrine of governmental immunity. We are of the opinion, however that the legislature is in a better position to limit and restrict claims that can be asserted and to provide the ways and means for the paying of such claims (either by taxation or appropriation), if it should see fit to do so. Therefore, we decline to abolish the doctrine of governmental immunity as this time by judicial decision. (344 So.2d at 150-51). (Emphasis added).

II.

The appellants' next assignment of error is: "The existence of liability insurance waives, pro tanto, sovereign immunity."

The question, as it pertains to this case, is: Does a governmental entity, by obtaining liability insurance without express statutory authority, waive, to the extent of its coverage, immunity from suit?

This is a question of first impression in this State. Although the doctrine of sovereign immunity is of common-law origin and was first pronounced in this State by the Supreme Court, we have consistently held since that time that there can be no liability against the State or its political subdivisions or agencies unless it is expressly or impliedly created by statute. We have also held steadfast to the proposition that, although the courts have the authority to abolish the doctrine of governmental immunity, the Legislature is in a better position to limit and restrict claims that can be asserted because the Legislature must provide the ways and means for paying, by taxation or appropriation, such claims it should see fit to allow.

It is true that some jurisdiction take the view that a governmental unit is liable for its torts to the extent that a liability insurance policy protects it, because the...