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Hall v. Mississippi Department of Public Safety4/9/1998
insurance to sovereign immunity in Mississippi Transp. Comm'n v. Jenkins, 699 So. 2d 597 (Miss. 1997). In Jenkins, the plaintiff argued that Miss. Code Ann. § 11-46-3 did not operate as a bar to recovery since "the Department had a liability policy in effect at the time of the accident which covered the conditions under which the accident occurred." Id. at 599.
ccording to Miss. Code Ann. § 11-46-16(2), a state agency may be sued for tortious conduct and recovery may be had to the extent that the agency has liability insurance. Thus, sovereign immunity is waived to the extent of insurance coverage in effect at the time of the incident.... nsurance was purchased under the authority granted in Miss. Code Ann. § 65-1-8(p) (1972), ... [which] authorized the Department to purchase liability insurance for employees operating motor vehicles in the performance of their official duties. [However,] Jenkins could offer no more than "could have" and "might have been" evidence to suggest that the insurance policy covered the allegedly negligent flagman, who certainly was not operating a motor vehicle at the time of the accident.
This Court frowns upon the use of conjecture as evidence in negligence cases.
Id.at 599 (citations omitted).
The case at bar is similar to Jenkins, in that Hall does not provide any evidence that MDPS had a liability insurance policy in effect at the time of the accident and if so, that such policy would cover the conditions under which the accident occurred. It was mentioned at trial that there was a $50,000 cap on any damages, which is the limitation amount set by Miss. Code Ann. § 11-46-15 (Supp. 1997). However, there is nothing in the record to demonstrate that MDPS had a liability policy and what types of conditions it would cover. Furthermore, § 11-46-16 provides that liability insurance may be purchased to cover wrongful or tortious acts or omissions. The trial Judge specifically found that " o act or omission on the part of the State's employee caused the patrol car to roll forward,..." Therefore, inasmuch as there were no wrongful or tortious acts involved in the case at bar, this Court finds that the statutory provisions relied upon by Hall are not applicable.
Conclusion
Hall maintains on appeal that Officer Cox acted in reckless disregard of his safety and that Cox's actions did not constitute "police" activities as contemplated by Miss. Code Ann. § 11-46-9(1)(c). Even though Hall's Complaint alleged negligence on Officer Cox's part, these issues were not pursued at trial. Instead, at trial, Hall's counsel made it clear that this case was not based on the theory of negligence against Officer Cox, but was based on res ipsa loquitur against the state for negligent maintenance of the patrol vehicle. Moreover, Hall made no effort at trial to show how Cox's actions were distinguishable from those "police" activities that are contemplated under the statute. Therefore, this Court will not address those issues that were raised for the first time on appeal.
Additionally, Hall argues that reading subsection (1)(c) and (1)(d) of § 11-46-9 together reveals that non-discretionary acts or omissions were not meant to be protected by the sovereign immunity provisions. Once again, Hall did not submit the discretionary versus ministerial analysis in his Complaint or at trial. Accordingly, this Court will not address this issue on appeal beyond pointing out that the statute is written in the disjunctive which indicates that these subsections should not be read together but should be read as alternatives separate and apart from one another.
Hall also alleges that the trial court erred in failing to render ju
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