                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-CA-00657-SCT
MARY MAXWELL
v.
JACKSON COUNTY, MISSISSIPPI

DATE OF JUDGMENT:                                    03/29/1999
TRIAL JUDGE:                                         HON. DALE HARKEY
COURT FROM WHICH APPEALED:                           JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                             JOE SAM OWEN
                                                     ROBERT P. MYERS, JR.
ATTORNEYS FOR APPELLEE:                              GARY S. EVANS
                                                     JACKYE L. CHAPMAN
NATURE OF THE CASE:                                  CIVIL - PERSONAL INJURY
DISPOSITION:                                         AFFIRMED - 10/05/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                      10/26/2000

      EN BANC.

      SMITH, JUSTICE, FOR THE COURT:


¶1. On December 12, 1996, Mary Maxwell ("Maxwell") filed a complaint in the Jackson County Circuit
Court against Jackson County, Mississippi, alleging she had fallen at the Jackson County Youth Court as "a
proximate result of the negligence of Jackson County, its agents, servants, contractors and/or employees."
After filing a timely answer, Jackson County in a motion for summary judgment, argued, inter alia, that
Maxwell's claim was barred by the Mississippi Tort Claims Act, specifically Miss. Code Ann. § 11-46-
9(1)(l) (Supp. 2000). Jackson County argued that pursuant to the statute, it was not liable to Maxwell
because she was an employee of a governmental entity whose injury was covered by the workers'
compensation law of this state by benefits furnished by the governmental entity by which she was employed,
in this case, the State of Mississippi. The circuit court granted a dismissal pursuant to Miss. R. Civ. P. 41(b)
on the grounds that Maxwell's claim was barred by the statute.

¶2. We affirm the circuit court's finding that, pursuant to Miss. Code Ann. §11-46-9(1)(l), Maxwell's claim
was barred as against Jackson County, Mississippi.

                                                       I.

¶3. On September 22, 1995, Maxwell was employed by the State of Mississippi as a Youth Services
Counselor Trainee/Probation Officer at the Jackson County Youth Court Facility located in Jackson
County, Mississippi. While working on the premises of the Youth Court Facility, Maxwell slipped and fell
when she walked on wet carpet that had been steam cleaned that morning by maintenance employees of
Jackson County. Maxwell alleges that there were no warning signs present in the area where she fell.
Maxwell also claims that maintenance employees of Jackson County failed to warn her of the dangerous
condition which ultimately caused her to slip and fall. As a result of her fall, Maxwell sustained injuries to her
left arm and back.

¶4. At the time of the accident Maxwell was acting within the course and scope of her employment and
consequently, her injuries and resulting medical bills were covered by the workers' compensation laws of
Mississippi. Maxwell received medical and wage benefits on behalf of her employer, the State of
Mississippi.

¶5. At the time of the accident, Jackson County had in effect a liability insurance policy which provided
coverage for the subject accident. The policy limit was $1,000,000 for premises liability occurrences. On
December 12, 1996, Maxwell initiated this litigation against Jackson County essentially alleging a premises
liability cause of action. After Maxwell presented her case in chief in a non-jury trial on March 29, 1999,
Circuit Judge Dale Harkey granted Jackson County's Rule 41(b) motion to dismiss. Maxwell now appeals
from that dismissal.

                                                       II.

¶6. In considering a Rule 41(b) motion to dismiss, the judge should consider "the evidence fairly, as
distinguished from in the light most favorable to the plaintiff," and the judge should dismiss the case if it
would find for the defendant. Century 21 Deep S. Properties, Ltd. v. Corson, 612 So.2d 359, 369
(Miss.1992). "The court must deny a motion to dismiss only if the judge would be obliged to find for the
plaintiff if the plaintiff's evidence were all the evidence offered in the case." Id. (citations omitted). "This
Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion
to dismiss pursuant to M.R.C.P. 41(b)." Id. (citations omitted).

                                                       III.

      1. WHETHER THE SOVEREIGN IMMUNITY PROTECTIONS OF MISS. CODE ANN.
      §11-46-9 ARE WAIVED WHEN A GOVERNMENTAL ENTITY PURCHASES
      LIABILITY INSURANCE IN EXCESS OF THE LIMITS IMPOSED BY MISS. CODE
      ANN. §11-46-15.

¶7. In dismissing Maxwell's action, the circuit court held that the existence of insurance coverage for the
claim presented had no impact on the exemptions from the waiver of sovereign immunity provided under
Miss. Code Ann. §11-46-9. In other words, the circuit court ruled that it did not matter that Jackson
County had liability insurance coverage for Maxwell's claim because it was still barred by virtue of Miss.
Code Ann. §11-46-9.

¶8. Maxwell argues that regardless of whether Miss. Code Ann. §11-46-9 provides an exemption from the
waiver of sovereign immunity, a governmental entity waives such immunity if it has purchased liability
insurance which provides coverage for the type of injury sustained. Maxwell relies on a pre-MTCA case
for the proposition that "liability insurance, to the extent it protects the public funds, removes the reason for,
and thus immunity to, suit." Churchill v. Pearl River Basin Dev. Dist., 619 So.2d 900, 905 (Miss.
1993). Maxwell asserts that the reasoning found in Churchill remains sound even after the adoption of the
MTCA and is still consistent with the real purpose of the sovereign immunity doctrine. To the contrary, this
case was superseded by statute as stated by this Court in L.W. v. McComb Separate Municipal Sch.
Dist., 754 So.2d 1136, 1144-45 (Miss.1999). Specifically, we held that "Miss. Code Ann. §11-46-17(4)
(Supp. 1998) allows for the purchase of insurance by a sovereign which then covers claims in excess of the
amounts set by Miss. Code Ann. §11-46-15 (Supp. 1998) to the extent of the policy. This provision does
not limit the exclusions or exemptions enumerated in §11-46-9." L.W., 754 So.2d at 1144-45.

¶9. This Court recently reiterated its L.W. holding in Leslie v. City of Biloxi, 758 So. 2d 430 (Miss.
2000). In Leslie, the Court held that the City of Biloxi was immune from suit under Miss. Code Ann. §11-
46-9(1)(l) and that the fact that the City had insurance to cover the incident did not waive such immunity.
The Court, citing L.W., stated, "[t]he existence of liability insurance is of no consequence to this action."
Leslie, 758 So. 2d at 434.

¶10. We again reason that the purchase of insurance will not affect potential defenses under the statute,
"otherwise, sovereigns would be unlikely to continue to purchase insurance if it had the effect of waiving all
of their defenses under the MTCA-an undesirable and unintended result in this Court's view." L.W., 754
So. 2d at 1144.

¶11. For these reasons, we hold that Jackson County has not waived the protections from liability claims
which is afforded by the exemptions of Miss. Code Ann. §11-46-9. The circuit court was correct in
granting Jackson County's motion to dismiss pursuant to the statutory exemption.

      2. WHETHER MISS. CODE ANN. §11-46-9(1)(l) BARS MAXWELL'S CLAIM
      AGAINST JACKSON COUNTY.

¶12. Maxwell claims that at the time of the accident she was an employee of the State of Mississippi
working under its exclusive supervision and control and not an employee of Jackson County. In essence,
Maxwell argues that the application of Miss. Code Ann. §11-46-9(1)(l) is limited only to the governmental
entity that employs the injured employee.

¶13. Maxwell suggests that a literal reading of Miss. Code Ann. §11-46-9(l)(l) indicates that only the
governmental entity furnishing the workers' compensation benefits is immune from suit. Since Jackson
County neither furnished Maxwell with workers' compensation benefits, nor employed Maxwell at the time
of the accident, Maxwell asserts that "a governmental entity" referred to in the first paragraph of the statute
is that governmental entity which furnishes workers' compensation benefits and not "any" governmental
entity. Maxwell asserts that the exemption from waiver of sovereign immunity applies only to the
governmental entity which furnishes the worker's compensation benefits; therefore, Jackson County would
have no protection under the statute.

¶14. This conclusion is contrary to a plain reading of the statute and this Court's recent holding in Leslie.
Miss. Code Ann. §11-46-9(1)(l) provides:

      (1) A governmental entity and its employees acting within the course and scope of their employment
      or duties shall not be liable for any claim:

      (l) of any claimant who is an employee of a governmental entity and whose injury is covered by the
      Worker's Compensation Law of this state by benefits furnished by the governmental entity by which
      he is employed.

The plain language of the statute states that the governmental entity will not be liable to any claimant who is
an employee of a governmental entity. Nothing in the statute suggests, as Maxwell argues, that the
exemption applies only to the entity that provides the worker's compensation benefits.

¶15. In Leslie, Leslie, a Harrison County Deputy Sheriff, filed suit against the City of Biloxi and Campbell,
an employee of the Biloxi Police Department, for injuries sustained by Leslie in an accident with Campbell.
Both Leslie and Campbell were acting within the scope of their employment at the time of the accident.
Leslie received worker's compensation benefits from Harrison County. This Court affirmed the circuit
court's grant of summary judgment to Biloxi and Campbell, stating that the claim was barred under Miss.
Code Ann. §11-46-9(1)(l). 758 So. 2d at 434. Maxwell's argument that the statute is limited only to the
governmental entity that employs the injured employee is similar to the dissent in Leslie. This argument was
duly rejected by the Court at that time and is likewise rejected in the case at hand.

¶16. The holdings of L.W. and Leslie are clearly applicable in this case. For these reasons, Miss. Code
Ann. §11-46-9(1)(l) bars Maxwell's claim, and the judgment of the circuit court is affirmed.

¶17. AFFIRMED.

      PRATHER, C.J., PITTMAN, P.J., MILLS, WALLER AND COBB, JJ., CONCUR.
      BANKS, P.J., CONCURS IN RESULT ONLY. McRAE, J., DISSENTS WITH
      SEPARATE WRITTEN OPINION JOINED BY DIAZ, J.

      McRAE, JUSTICE, DISSENTING:

¶18. The majority again declines to hold that, by purchasing insurance, a public entity waives its defense of
sovereign immunity to the extent of the policy limits. With its opinion in the present case, the majority
purports to encourage the state subdivisions to become insured while removing the impetus to do so.
Simultaneously, the majority frustrates the purpose of purchasing liability insurance, which is to indemnify the
insured against liability. There is no reason to indemnify an immune tortfeasor.

¶19. Mary Maxwell was injured while at work, allegedly as a result of Jackson County's negligence. Today
the majority rules that she cannot hold her tortfeasor liable for its negligence, a right enjoyed by those
injured by private-sector actors and guaranteed by Article 3, Section 24 of the Mississippi Constitution. In
doing so, the majority denies her the benefit of a liability insurance policy purchased by her tortfeasor,
Jackson County. Accordingly, I dissent.

¶20. The language of the Tort Claims Act does not preclude political subdivisions from suing each other. If
the negligence of one political entity causes an on-the-job injury to an employee of another political entity,
the employer entity could then sue the tortfeasor entity to recover workers' compensation benefits paid to
the injured employee. If the political subdivisions can sue one another, a unique and exclusive class would
then be created by not allowing the injured employee to also bring suit.

¶21. In other words, while a victimized government employee cannot seek restitution from another
governmental entity that negligently caused her injury, the victim's employer would be able to bring suit to
reclaim the workers' compensation benefits. Under this paradigm, everyone is made whole except the
innocent victim, who is punished because she was injured by another government entity and its employees.

¶22. Providing a remedy at law for the government while denying that right to its employees, when both are
aggrieved by the same event, does not comport with the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution, nor with Article 3, Section 24 of the Mississippi Constitution,
which provides an open court and a remedy by due course of law for every injury. U.S. Const. Amend.
XIV, § 1; Miss. Const. Art. 3, § 24.

¶23. Furthermore, from a reading of the statutory scheme as a whole, it is clear that the Tort Claims Act
was intended to partially waive sovereign immunity in order to provide for additional civil remedies, not to
limit the civil remedies that were already in existence at the time the Act was passed. When read by itself, §
11-46-9(1)(l) appears to bar all lawsuits brought by any government employees who are receiving
workers' compensation benefits against the governmental entity providing the benefits. However, this code
section must be interpreted in light of the statutory scheme as a whole, not as an independent dictate. Lee v.
Alexander, 607 So.2d 30, 36 (Miss. 1992)(citing Pearl River Valley Water Supply Dist. v. Hinds
County, 445 So.2d 1330 (Miss. 1984)). This section simply complies with the Workers' Compensation
Act. It does not preclude an employee from suing another public entity. She is only precluded from suing
her own employer that has provided workers' compensation coverage.

¶24. When the Tort Claims Act was passed in 1993, the Legislature also passed the Tort Claims Fund to
pay for the increased number of lawsuits anticipated by the Act. Miss. Code Ann. § 11-46-17. Section
three of this statute requires all political subdivisions to become insured against all risks of claims and
lawsuits for which the entity may be liable. Miss. Code Ann. § 11-46-17(3). Section 4 of this provision
states the following:

      Any governmental entity of the state may purchase liability insurance to cover claims in excess of the
      amounts provided for in Section 11-46-15 and may be sued by anyone in excess of the amounts
      provided for in Section 11-46-15 to the extent of such excess insurance carried; provided,
      however, that the immunity from suit above the amounts provided for in Section 11-46-15 shall be
      waived only to the extent of such excess liability carried.

Miss. Code Ann. § 11-46-17(4). (emphasis added).

¶25. By 1993, when the Mississippi Tort Claims Act was passed, this Court had consistently held that a
governmental entity waives sovereign immunity up to the limits of the policy when it purchases liability
insurance. The Act created additional waivers of immunity, and created a fund to pay for the additional
liability anticipated by the Act.

¶26. Furthermore, the Act required all political entities to purchase insurance sufficient to cover "all risks of
claims or suits for which political subdivisions may be liable." Miss. Code Ann. § 11-46-17(3). In passing
the Act, the legislature created civil remedies, created a fund to pay for judgments against the state, required
insurance to pay claims, and expressly authorized the entities to purchase insurance above the liability limits
established by the Act.

¶27. Today this Court holds that, by enacting the aforementioned measures, the legislature actually intended
to limit the civil remedies available to those injured by governmental tortfeasors. This holding defies logic,
sound reasoning, and the clear intention of the legislature when it passed the Mississippi Tort Claims Act.
When a political entity is insured against liability, sovereign immunity should be waived to the extent of the
insurance coverage.

¶28. Citing L.W. v. McComb Separate Municipal Sch. Dist., 754 So.2d 1136, 1144 (Miss. 1999), this
Court again holds that even insured governmental tortfeasors are immune from suits by their victims. The
majority justifies this inequity with the following statement: "Otherwise, sovereigns would be unlikely to
continue to purchase insurance if it had the effect of waiving all of their defenses under the MTCA - an
undesirable and unintended result in this Court's view." Id.

¶29. Ironically, the majority's opinion in this case may bring about the very evil that it intends to avoid by
removing any incentive for procuring insurance. With the risk of liability removed, a political subdivision may
no longer be required to obtain insurance under Miss. Code Ann. § 11-46-17(3). That statute requires all
political subdivisions to obtain such insurance as is "necessary to cover all risks of claims and suits for
which political subdivisions may be liable under this chapter." (emphasis added).

¶30. Therefore, sovereigns may be less likely to continue to purchase insurance if they are immunized from
liability by this Court. Under the holding of the majority, governmental entities would be bound to remain
insured by neither prudence, nor § 11-46-17(3). This would indeed be "an undesirable and unintended
result" in my view.

¶31. It is beyond reason to assert that the legislature has expressly required governmental entities to
purchase insurance, while at the same time barring the use of those policies to compensate those who are
injured because of the entity's negligence. Who is the majority protecting here? Surely not private insurance
companies. The state government and the public must not be jeopardized by the tortious actions of state
employees.

¶32. However, this Court has acknowledged that the need to protect the public's funds is non-existent
where the governmental entity is insured against liability. In such a situation, the public is no longer at risk
because the risk of loss has been transferred from the state to an insurance company. This transference of
risk is the value that the state should receive in return for the premiums that it pays for the insurance.

¶33. Under the majority's view, the risk of being sued by its victims is not transferred from the state to the
insurance companies. Essentially, the insurer benefits from the insured's sovereign immunity. In return, the
state gets diminished coverage because it pays for liability insurance that can never be used to compensate
the injured. This amounts to a delegation of immunity, which is rightfully vested only in the state. This Court
acknowledged as much in 1993 when it held that "where a political subdivision has insured itself in tort
liability, no justification exists for insulating the insurance carrier from a claim under the Doctrine of
Sovereign Immunity." Churchill v. Pearl River Basin Dev. Dist., 619 So.2d 900, 905 (Miss. 1993).

¶34. The majority, however, holds that insurance companies may be vicariously immunized from the state
by selling insurance policies to political entities that have been declared immune by this Court. When a
public entity is insured against the type of event giving rise to injury, the only party benefitting from immunity
is the insurance company, not the state, not the public, and certainly not the injured party.

¶35. For these reasons, Mary Maxwell should be entitled to her day in court, the judgment of the circuit
court should be reversed, and this case remanded for a trial on the merits. Accordingly, I dissent.

      DIAZ, J., JOINS THIS OPINION.
