LINCOLN COUNTY SCHOOL DIST. v. Doe, 96-IA-01165-SCT.

• Decision Date: 29 April 1999
• Docket Number: No. 96-IA-01165-SCT.,96-IA-01165-SCT.
• Citation: 749 So.2d 943
• Parties: LINCOLN COUNTY SCHOOL DISTRICT and Mike Warren v. Jane DOE, Natural Mother and Next Friend of L.S.B., A Minor.
• Court: Mississippi Supreme Court

749 So.2d 943

LINCOLN COUNTY SCHOOL DISTRICT and Mike Warren v. Jane DOE, Natural Mother and Next Friend of L.S.B., A Minor.

No. 96-IA-01165-SCT.

Supreme Court of Mississippi.

April 29, 1999.

Perry Sansing, Victoria W. Thomas, Jackson, Robert O. Allen, Brookhaven, Sally Burchfied Doty, Attorneys for Appellants.

Karla J. Pierce, Dale Hubbard, Jackson, Attorneys for Appellee.

EN BANC.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE FACTS AND CASE

¶ 1. On January 13, 1994,¹ Jane Doe² ("the mother") filed suit in Hinds County Circuit Court on behalf of her fifteen-year old³ daughter, LSB, against the Mississippi State Department of Education (" the SDE"), the Lincoln County School District ("the District"), and Mike Warren ("Warren") in his official capacity as principal of the Eva Harris Center ("Eva Harris"). The lawsuit arose out of an April 28, 1993, incident in which LSB was allegedly raped by a male student in the girls' restroom on the campus of Eva Harris.

¶ 2. LSB, who suffers from learning disabilities and a hearing impairment, alleges that Patrick McCoy, an 11th grade student at Eva Harris, followed her into the restroom at 11:40 on the morning of April 28 and raped her. The incident was reported that same day to Principal Mike Warren, who interviewed LSB, Patrick McCoy, and several witnesses. Warren did not contact the police, however, nor did he obtain medical attention for LSB.

¶ 3. Warren later explained that he was uncertain that the alleged incident had actually occurred, although the mother notes that Patrick McCoy had been previously expelled for a very similar prior incident in the girl's restroom at the school. Indeed, the record indicates that McCoy had a lengthy history of violent and otherwise delinquent conduct at the school, and the mother alleges in her lawsuit that Warren and the School District failed to adequately protect LSB and other students from McCoy's known violent propensities by failing to maintain adequate security at the school and by failing to warn the students of McCoy's violent past.

¶ 4. Warren notes, however, that the incident was first reported by another student and that LSB had initially denied that a rape took place. Warren stated in an affidavit that:

When I questioned her, (LSB) said the boy was in the restroom and they had sex. She did not say that she had been attacked or otherwise assaulted. (LSB) did not appear to be upset and did not have any outward signs of an assault. Her clothes were not torn; she did not have any visible bruises or scratches.

McCoy was eventually expelled for the incident involving LSB, but a grand jury failed to indict him on criminal charges for the alleged rape. The mother asserts that the grand jury's decision resulted from Warren's failure to contact the police or obtain medical assistance for LSB, thus resulting in a lack of physical evidence of a rape having occurred.

¶ 5. In response to the mother's lawsuit, the defendants raised defenses of immunity and improper venue. On May 15, 1996, the Circuit Judge denied Warren's and the District's motion for summary judgment, but granted the SDE's motion, thus dismissing it from the lawsuit. On October 2, 1996, the Circuit Judge denied the remaining defendants' motions for certification for interlocutory appeal. On December 20, 1996, a panel of this Court granted a motion for interlocutory appeal and stay filed by Warren and the District. The case is currently before this Court on interlocutory appeal.

A. Whether Section 11-46-3 of the Mississippi Tort Claims Act is constitutional and, as a result, the Lincoln County School District and Mike Warren are immune from this action.

¶ 6. In response to Warren and the District's defenses of sovereign immunity, the mother argues that Miss.Code Ann. § 11-46-3 (Supp.1998) is unconstitutional in that it "purports to declare not only what the law will be, but also to declare what the law is and has been, in derogation of the separation of powers doctrine." As noted by Warren, however, the incident from which the present suit arose occurred on April 28, 1993 and the present cause of action thus arose after the April 1, 1993 effective date of § 11-46-3. The mother argues, however, that the retroactive provisions of § 11-46-3 render the statute constitutionally defective as a whole and that this Court should therefore not even enforce the statute prospectively. This argument is without merit.

¶ 7. This Court noted in Mississippi State Tax Comm'n By and Through Marx v. Veazey, 624 So.2d 997, 1000 (Miss.1993) that "(i)t has long been the law of this State that this Court does not pass upon the constitutionality of statutes at the instance of parties not in a position to question them." In Mississippi Insurance Guaranty Ass'n v. Gandy, 289 So.2d 677, 679 (Miss.1973), this Court noted that "(o)ne who is not prejudiced by the enforcement of an act of the legislature cannot question its constitutionality or obtain a decision as to its constitutionality on the ground that it impairs the rights of others." Given that the mother is not prejudiced by application of the retroactive provisions of the Tort Claims Act, it is apparent that, under Gandy, she is not in a position to challenge their constitutionality in the present case.

¶ 8. As in Gressett v. Newton Sep. Mun. School Dist., 697 So.2d 444 (Miss.1997), the cause of action in the present case arose prior to the effective date of the waiver of sovereign immunity on October 1, 1993. See Miss.Code Ann. § 11-46-1(i) (Supp. 1998). The present cause of action is accordingly barred by the provisions of the Tort Claims Act, absent a waiver through the procurement of liability insurance, discussed in the next point of error.

a. Since Mississippi Statutes specifically provide that a school district is subject to liability only to the extent for which it has insurance, and the Lincoln County School District's general liability policy expressly excludes the type of claim alleged by Appellee, whether the Hinds County Circuit Court erred by failing to grant the Appellant, the School District, motion for summary judgment.

¶ 9. Having rejected the mother's constitutional argument, the issue arises as to whether the District had in effect liability insurance which would serve to waive the statutory immunity which the District otherwise enjoys in the present case. Miss.Code Ann. § 11-46-16(2) provides for a waiver of sovereign immunity to the extent that a governmental entity has liability insurance to cover "wrongful or tortious acts or omissions" of the governmental entity or its employees.

¶ 10. The District had a commercial general liability insurance policy in effect with Titan Indemnity Company on April 28, 1993, but the policy contained a provision which, the mother argues, served to exclude from coverage some, but not all, of the damages arising out of the alleged sexual assault in the present case. Endorsement GL-19 of the policy provides as follows:

Abuse or Molestation Exclusion-Commercial General Liability

This insurance does not apply to `bodily injury,' `property damage,' `advertising injury,' or `personal injury' arising out of:

(a) the actual or threatened abuse or molestation by anyone of any person, or

(b) the negligent:

(i) employment

(ii) investigation

(iii) supervision;

(iv) reporting to the proper authorities, or failure to so report;

(v) retention;

of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by (a) above.

¶ 11. The mother notes that, by its terms, the exclusion only applies to her claims if they qualify as `bodily injury' or `personal injury' arising out of abuse or molestation⁴. The policy defines "bodily injury" as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." The mother argues that:

(a)lthough one minor element of the damages Doe seeks is for physical injuries, she has also asserted claims for emotional distress, pain and suffering, fear of contracting a dangerous and/or deadly disease, and humiliation. While her claim for physical injuries probably qualify as a `bodily injury,' her remaining claims are in the nature of emotional and intangible injuries and do not fall within the policy's definition of `bodily injury,' which clearly applies only to physical injuries, including sickness and disease. While Titan could have easily included emotional and other intangible injuries within this definition, as many insurers do, it did not do so in this policy.

The mother's arguments might have merit except for the fact that the policy in question only provides coverage for "bodily injury, personal injury, advertising injury, and property damage" in the first place. The language of the policy explicitly limits any liability which it might have to these classifications of damages, and the molestation exclusion accordingly serves to exclude from coverage all classifications of damages arising out of incidents of molestation. The mother does not argue that LSB's injuries were not the result of an incident of molestation as defined under the terms of the policy, and the exclusion is clearly applicable to the alleged incident in the present case.

¶ 12. If this Court were to adopt the interpretation of "bodily injury" urged by the mother in the present case, then there would be no coverage for the sort of "emotional and intangible injuries" asserted in the lawsuit in the first place, and the insurer would have no need to resort to any exclusions in the policy at all. If, on the other hand, this Court were to adopt a broader view of the term "bodily injury" so as to include the sort of emotional injuries alleged by the mother, then recovery would still not be available to LSB in light of the exclusionary language in the policy. Under either scenario, there is no coverage available to LSB under the facts of the present case, and the Titan policy...