Perry By and Through Perry v. Nationwide General Ins. Co., 95-CA-00269-SCT

• Decision Date: 02 October 1997
• Docket Number: No. 95-CA-00269-SCT,95-CA-00269-SCT
• Citation: 700 So.2d 600
• Parties: Ladarrell PERRY, a Minor, By and Through His Mother and Next Friend, Addie PERRY v. NATIONWIDE GENERAL INSURANCE COMPANY.
• Court: Mississippi Supreme Court

Page 600

700 So.2d 600

Ladarrell PERRY, a Minor, By and Through His Mother and Next

Friend, Addie PERRY v. NATIONWIDE GENERAL INSURANCE COMPANY.

No. 95-CA-00269-SCT.

Supreme Court of Mississippi.

Oct. 2, 1997.

Charles Richard Mullins, Dale Danks, Jr., Merrida Coxwell, Keyes Danks Coxwell & Leonard, Jackson, for Appellant.

Douglas G. Mercier, Mark C. Carroll, Upshaw Williams Biggers Beckham & Riddick, Jackson, for Appellee.

En Banc.

McRAE, Justice, for the Court:

¶1 This case arises from a January 23, 1995 order of the Hinds County Circuit Court granting Nationwide General Insurance Company's motion for summary judgment. We are asked to consider only the question of a municipality's plan of self-insurance is liability insurance as contemplated by the Uninsured Motorist Act. Finding that it is not, we reverse the circuit court's grant of summary judgment.

I.

¶2 Sixteen-year-old Ladarrell Perry was injured on April 9, 1994, when his vehicle was struck by a City of Jackson police car. The car Perry was driving was covered by an insurance policy with Nationwide General Insurance Company, which provided $50,000.00 in uninsured motorist benefits.

¶3 Perry, through his mother and next friend, Addie Perry, filed a complaint against the City of Jackson, the police officer and Nationwide Insurance on October 27, 1994, charging that his injuries were caused by the officer's negligence. He asserted that the City of Jackson had rejected his claim made through the City Attorney's office, and that Nationwide also had refused to pay the benefits to which he was entitled. Nationwide filed a motion for summary judgment on January 14, 1995, arguing that because the City of Jackson purportedly was self-insured at the same level of the uninsured motorists coverage available to Perry, the patrol car was neither uninsured nor underinsured pursuant to the definition set forth in Miss.Code Ann. § 83-11-103(c)(iii).

II.

¶4 The sole issue raised by the parties for our consideration is whether a plan of self-insurance is "insurance" for the purpose of determining whether a tortfeasor is an "uninsured" motorist under the terms of our Uninsured Motorist Act. We find that it is not. See McCoy v. South Central Bell Telephone Co., 688 So.2d 214 (Miss.1996)(a plan of self-insurance is not a commercial insurance policy for purposes of the Uninsured Motorists Act). However, we decline Nationwide's invitation to overrule this Court's decision in Morgan v. City of Ruleville, 627 So.2d 275 (Miss.1993). ¹

¶5 Accordingly, we reverse the order of the circuit court granting Nationwide's motion for summary judgment and remand for further proceedings consistent with this opinion.

¶6 REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

DAN LEE, C.J., SULLIVAN, P.J., and BANKS and JAMES L. ROBERTS, Jr., JJ., concur.

PRATHER, P.J., concurs in part and dissents in part with separate written opinion joined by PITTMAN, SMITH and MILLS, JJ.

PRATHER, Presiding Justice, concurring in part and dissenting in part:

¶7 I concur with the majority's view that the statutory self-insurance in the present case does not constitute insurance for the purposes of this State's uninsured motorist (UM) law. I write separately, however, to note an additional issue which, in my view, renders this issue moot in most, if not all, cases. Under statute and under the policy in the present case, Perry is only entitled to recover UM benefits to the extent that he is able to establish that he is "legally entitled to recover" damages from the City. Miss.Code Ann. § 83-11-101(1) (1991) provides that:

No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions 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 ...

Given that Perry has available to him a statutory maximum of $50,000 in self-insurance benefits from the city, he is entitled to no recovery in excess of this amount from the City. By statutory definition, immunity has been waived for the State and its political subdivisions for money damages arising out of the torts of the government and its employees, but only to the extent of $50,000, unless liability insurance in excess of this amount is obtained. See: Miss.Code Ann. § 11-46-16 (Supp.1997).

¶8 This Court has previously held that no UM benefits are available to the plaintiff when recovery against the tortfeasor is barred by immunity. In Aitken v. State Farm Mut. Auto. Ins. Co., 404 So.2d 1040, 1044-1045 (Miss.1981), this Court held that where the plaintiff's claim against his wife, who was an uninsured driver, was barred by interspousal immunity, the plaintiff was thus not "legally entitled to recover" from said wife and the wife's defense of immunity could be raised by the UM carrier. In Medders v. U.S. Fidelity and Guar. Co., 623 So.2d 979, 989 (Miss.1993), this Court reaffirmed that there "is no statutory mandate...