McGlothin v. State Farm Mut. Ins. Co.

• Decision Date: 31 May 2019
• Docket Number: No. 18-60338,18-60338
• Parties: Jessica C. MCGLOTHIN, Plaintiff-Appellee v. STATE FARM MUTUAL INSURANCE COMPANY, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

925 F.3d 741

Jessica C. MCGLOTHIN, Plaintiff-Appellee

v.STATE FARM MUTUAL INSURANCE COMPANY, Defendant-Appellant

No. 18-60338

United States Court of Appeals, Fifth Circuit.

FILED May 31, 2019

Michael Scott Bishop, Esq., Morris Bart, L.L.C., Gulfport, MS, for Plaintiff-Appellee.

John Anderson Banahan, Michael Riley Moore, Calen James Wills, Bryan, Nelson, Schroeder, Castigliola & Banahan, Pascagoula, MS, for Defendant-Appellant.

Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue in this diversity action is whether, as the district court concluded, two sections of Mississippi's Uninsured Motorist (UM) Act, Mississippi Code §§ 83-11-101 et seq ., are repugnant: §§ 83-11-101(1) (requiring automobile insurers provide UM coverage to extent insured is "legally entitled to recover") and 83-11-103(c)(vi) (defining "uninsured motor vehicle", as used in UM Act, to include vehicle "owned or operated by a person protected by immunity under the Mississippi Tort Claims Act"). State Farm Mutual Automobile Insurance Company maintains: the sections are not repugnant; and, as a result, it is not liable for UM coverage. Therefore, it challenges the district court's, on cross-motions for summary judgment, denying its motion in that regard and granting Jessica C. McGlothin's. That part of the judgment in favor of McGlothin is VACATED, and judgment is RENDERED for State Farm.

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. , Miss. Code Ann. § 11-46-9(1)(c) (Mississippi Tort Claims Act (MTCA); police-and-fire-protection immunity clause).

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]". § 83-11-103(c)(vi). Under the MTCA, employees of governmental entities are personally immune from claims arising from acts performed within the course and scope of their employment. § 11-46-7(2) (government-employee immunity clause). Because the fireman is protected by immunity under the MTCA, the fire-department vehicle he was driving is considered an uninsured motor vehicle as defined by the UM Act. (As explained more fully infra , the city and fire department were also immune from suit pursuant to the MTCA's police-and-fire-protection immunity clause.)

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, Mississippi Code §§ 11-46-1 et seq . State Farm removed this action to federal court based on diversity jurisdiction.

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 28 U.S.C. § 1332. See Grupo Dataflux v. Atlas Global Group, L.P. , 541 U.S. 567, 571–73, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) ; Caterpillar Inc. v. Lewis , 519 U.S. 61, 68–78, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996).) Instead, McGlothin pursued her claims against the fireman, the fire department, and the city in state court. The state court granted defendants' summary-judgment motion, concluding: "[The fireman] was not acting with reckless disregard as required for a governmental entity or governmental employee to be held liable under the [MTCA]". McGlothin v. Mason , No. A2402-17-20 (Harrison Cty. Cir. Ct. 30 Nov. 2017).

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 Mississippi Code §§ 83-11-101(1) and 83-11-103(c)(vi) are repugnant, with the latter being the more specific, controlling section. McGlothin v. State Farm Mut. Ins. , 297 F. Supp. 3d 635, 638 (S.D. Miss. 2018).

Section 83-11-101 (policy requirement) lists mandatory provisions to be contained in automobile-liability-insurance policies, including requiring automobile insurers provide UM coverage to the extent the insured is "legally entitled to recover". As discussed supra , § 83-11-103(c) (uninsured-motor-vehicle definition) contains definitions of the term "uninsured motor vehicle" as used in the UM Act, which includes, in subpart (c)(vi), a vehicle "owned or operated by a person protected by immunity under the [MTCA]".

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 Miss. Code Ann. § 83-11-103(c)(vi) [ (uninsured-motor-vehicle definition) ] is to view it as an exception to Miss. Code Ann. § 83-11-101(1) [ (policy requirement) ]". McGlothin , 297 F. Supp. 3d at 638.

As a result, the court concluded § 83-11-103(c)(vi) (uninsured-motor-vehicle definition) was the more specific, and, therefore, controlling section, and McGlothin was entitled to UM benefits. Id. (On the other hand, the court granted State Farm's summary-judgment motion against McGlothin's claims for extra-contractual and punitive damages based on State Farm's denial of her UM claim. Id. at 639. McGlothin did not appeal that decision.)

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". Fed. R. Civ. P. 56(a). "When parties file cross-motions for summary judgment, we review each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party." Cooley v. Hous. Auth. of Slidell , 747 F.3d 295, 298 (5th Cir. 2014) (internal quotations and citation omitted).

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, 58 S.Ct. 817, 82 L.Ed. 1188 (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 ". § 83-11-101(1) (policy requirement) (emphases added). Pertinent to this action, the Act was amended in 2009 to expand the definition of "uninsured motor vehicle" to include the above-described "motor vehicle owned or operated by a person protected by immunity under the [MTCA] ... if the insured has exhausted all administrative remedies under that chapter". § 83-11-103(c)(vi) (uninsured-motor-vehicle definition).

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". § 11-46-5(1). "But it exempts certain claims from that immunity waiver." City of Clinton v. Tornes , 252 So. 3d 34, 37 (Miss. 2018) (citing § 11-46-9 ).

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[.]

§ 11-46-9(1)(c) (emphases added).

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". § 11-46-7(2) (government-employee immunity clause)(emphasis added); see also Tornes , 252 So. 3d at 37.

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 highest court] would resolve the issue if presented with the same case". Temple v. McCall , 720 F.3d 301, 307 (5th Cir. 2013) (first alteration in original) (internal quotations and citation omitted). In doing so, our court "defer[s] to intermediate state appellate court decisions unless convinced by other persuasive data that the highest court of the state would decide otherwise". Mem'l Hermann Healthcare Sys., Inc. v. Eurocopter Deutschland, GMBH , ...