     Case: 18-60338   Document: 00514978663        Page: 1   Date Filed: 05/31/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                    No. 18-60338                    FILED
                                                                May 31, 2019
                                                               Lyle W. Cayce
JESSICA C. MCGLOTHIN,                                               Clerk

             Plaintiff - Appellee

v.

STATE FARM MUTUAL INSURANCE COMPANY,

             Defendant - Appellant




                Appeal from the United States District Court
                  for the Southern District of Mississippi
                           USDC No.: 1:17-CV-83


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
    Case: 18-60338     Document: 00514978663      Page: 2    Date Filed: 05/31/2019



                                  No. 18-60338
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,
                                         2
    Case: 18-60338     Document: 00514978663        Page: 3     Date Filed: 05/31/2019



                                  No. 18-60338
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 (2004); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68–78
(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
                                         3
    Case: 18-60338     Document: 00514978663      Page: 4    Date Filed: 05/31/2019



                                  No. 18-60338
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 (1938).



                                         4
    Case: 18-60338      Document: 00514978663      Page: 5    Date Filed: 05/31/2019



                                    No. 18-60338
      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.




                                         5
    Case: 18-60338    Document: 00514978663     Page: 6   Date Filed: 05/31/2019



                                 No. 18-60338
                                          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, 524 F.3d 676, 678 (5th Cir. 2008) (internal quotations
and citation omitted); but, we “need not necessarily defer to state trial court
decisions”, particularly when they are unpublished, Roecker v. United States,
379 F.2d 400, 406 (5th Cir. 1967) (citing King v. Order of United Commercial
Travelers of Am., 333 U.S. 153 (1948)).
      The Mississippi Supreme Court has not decided whether the two sections
at issue are repugnant. And, to make our Erie guess far more difficult, neither
has the Mississippi Court of Appeals. Therefore, State Farm urges we consider
two Mississippi circuit court decisions, each of which was rendered by a
different court.
      First, in 2009, a circuit court granted summary judgment in favor of
State Farm in Rayner v. State Farm Mutual Automobile Insurance Company,
No. 2009-36 (Rankin Cty. Cir. Ct. 9 Dec. 2009). In Rayner, the circuit court
stated: “[S]ince . . . Plaintiffs are not legally entitled to recover against the
Deputy/County, etc., the Court finds that no UM benefits are owed to Plaintiffs
under the State Farm policy”. Id.
      The accident in Rayner, however, occurred in 2008, and, because the
judgment provides no reasoning, it is unclear whether the court applied the
UM Act as written before or after the 2009 amendment to § 83-11-103(c)(vi)
                                          6
    Case: 18-60338     Document: 00514978663       Page: 7   Date Filed: 05/31/2019



                                   No. 18-60338
(uninsured-motor-vehicle definition). And, even if the court did apply the 2009
amendment, it is unclear whether the parties raised the issue presented by
this action: whether §§ 83-11-101 (policy requirement) and 83-11-103(c)(vi)
(uninsured-motor-vehicle definition) are repugnant. Moreover, the Mississippi
Supreme Court affirmed Rayner in a per curiam affirmance, No. 2010-CA-
00738-SCT (Miss. 21 July 2011), which, according to Mississippi Rule of
Appellate Procedure 35-A(c), “ha[s] no precedential value”.
      Second, in 2014, the other Mississippi circuit court granted summary
judgment in favor of State Farm, concluding: “[B]ecause the Plaintiff’s claims
against [the law-enforcement officer] are barred by the police and fire
protection exemption to the MTCA, . . . Plaintiff is not legally entitled to recover
UM benefits from State Farm”. Williams v. State Farm Mut. Auto. Ins., No.
L12-545 (Lafayette Cty. Cir. Ct. 16 Oct. 2014). Therefore, citing Fidelity Union
Trust Co. v. Field, 311 U.S. 169 (1940), State Farm contends the district court
reversibly erred by not considering the order in Williams.
      It is true that, in Field, the Supreme Court held, because of the uniformity
between two state-trial-court decisions interpreting the state statute in issue, the
federal third circuit “was not at liberty to reject these decisions merely because it
did not agree with their reasoning”. 311 U.S. at 179. But in 1967 in Roecker, our
court distinguished Field, relying on the 1948 decision in King, 333 U.S. at 159–
62. See Roecker, 379 F.2d at 406 (ruling, as quoted supra: “a federal court need
not necessarily defer to state trial court decisions”). Because Mississippi trial
courts are not “court[s] of statewide jurisdiction”, unlike the chancery court in
Field, we need not defer to these unpublished circuit-court decisions. Id.
                                         B.
      As discussed above, § 83-11-101(1) (policy requirement) limits UM coverage
to those sums the insured “shall be legally entitled to recover as damages for bodily
injury or death from the owner or operator of an uninsured motor vehicle”.

                                         7
     Case: 18-60338      Document: 00514978663    Page: 8   Date Filed: 05/31/2019



                                  No. 18-60338
(Emphases added.) It is uncontested that the fireman was acting in the course
and scope of his employment at the time of the accident, and, therefore, pursuant
to the MTCA’s government-employee immunity clause, § 11-46-7(2), McGlothin is
not “legally entitled to recover” damages from him. Moreover, because it is also
uncontested the fireman was not acting with “reckless disregard” for McGlothin’s
safety or well-being, the fire department and the city are also immune, pursuant
to the MTCA’s police-and-fire-protection immunity clause, § 11-46-9(1)(c), and
McGlothin is not “legally entitled to recover” damages from either entity.
Accordingly, under § 83-11-101(1) (policy requirement), McGlothin cannot recover
UM benefits from State Farm because she is not “legally entitled to recover” from
the fireman, the fire department, or the city.
      McGlothin contends, however, consistent with the district court’s ruling,
that the 2009 amendment expanding the definition of “uninsured motor vehicle”
to include “[a] motor vehicle owned or operated by a person protected by immunity
under the [MTCA]”, § 83-11-103(c)(vi), is repugnant to § 83-11-101(1) (policy
requirement), because, otherwise, an insured would never be “legally entitled to
recover” from “a person protected by immunity under the [MTCA]”.
      “[S]tatutes on the same subject, although in apparent conflict, should if
possible be construed in harmony with each other to give effect to each”. Tunica
Cty. v. Hampton Co. Nat. Sur., LLC, 27 So. 3d 1128, 1134 (Miss. 2009) (quoting
Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So. 2d 1025, 1029
(Miss. 1999)); see also Goolsby v. Blumenthal, 581 F.2d 455, 461 (5th Cir. 1978)
(“Where the two statutes in question are capable of standing together, there is no
irreconcilable conflict.”).
      There are scenarios in which §§ 83-11-101(1) (policy requirement) and 83-
11-103(c)(vi) (uninsured-motor-vehicle definition) can be construed in harmony.
For example, consider a hypothetical using the facts of this case, but in which the
fireman was acting in reckless disregard for McGlothin’s safety.         The fire-
department vehicle would still be an “uninsured motor vehicle” because it was
                                         8
    Case: 18-60338     Document: 00514978663       Page: 9   Date Filed: 05/31/2019



                                   No. 18-60338
“operated by a person protected by immunity under the [MTCA]”—the fireman.
But, because, in this hypothetical, the fireman was acting in “reckless disregard”
for McGlothin’s safety, McGlothin would be “legally entitled to recover” damages
from the fire department or the city, pursuant to MTCA § 11-46-9(1)(c) (police-
and-fire-protection immunity clause); and, therefore, McGlothin would be entitled
to UM benefits under the statute and policy.          This scenario alone defeats
McGlothin’s claim.
      Another example would be when a city employee (not a fireman or police
officer protected by the police-and-fire-protection immunity clause of the MTCA,
§ 11-46-9(1)(c)) is driving a city vehicle in the course and scope of his employment
and is involved in an accident caused by the city employee’s violating a traffic law.
The employee would have immunity pursuant to MTCA § 11-46-7(2) (government-
employee immunity clause), and, therefore, the vehicle would be an “uninsured
motor vehicle” because it was “operated by a person protected by immunity under
the [MTCA]”, see § 83-11-103(c)(vi) (uninsured-motor-vehicle definition). The city,
however, would be liable, because of the general waiver of immunity under MTCA
§ 11-46-5(1); and, therefore, the insured would be “legally entitled to recover” from
the city, resulting in the insurer’s being required to pay UM benefits. See Mixon
v. Miss. Dep’t of Transp., 183 So. 3d 90, 94 (Miss. Ct. App. 2015) (ruling the
department was not immune because its employee “did not fall within [any]
exception[ to liability], and [the employee’s] duty to adhere to applicable traffic
regulations was in no way discretionary”).
      When pressed at oral argument here, McGlothin countered these scenarios
render § 83-11-103(c)(vi) (uninsured-motor-vehicle definition) meaningless,
because, in them, the governmental entity’s insurance, in any event, would pay
the claim. However, as State Farm notes, the MTCA only waives immunity up to
$500,000. See Miss. Code Ann. § 11-46-15(1)(c). Therefore, for any claim in excess
of $500,000 for which the governmental entity has waived immunity, the
governmental entity’s insurance would pay up to $500,000, and then the insured’s
                                         9
    Case: 18-60338      Document: 00514978663       Page: 10    Date Filed: 05/31/2019



                                    No. 18-60338
UM carrier would be liable for any remainder. See, e.g., City of Jackson v. Perry,
764 So. 2d 373, 381–83 (Miss. 2000) (holding insurer required to pay remainder of
damages above statutory cap).
      That these scenarios may not occur very often does not, of course, render
the two sections repugnant. Furthermore, at oral argument, McGlothin’s counsel
admitted “repugnant” is not the word he would employ to describe the sections.
Oral Argument at 35:41–46.        Instead, he stated he would describe them as
“confusing”. Oral Argument at 35:50–55. Obviously, the two sections’ being
“confusing” does not equate to repugnancy. Our charge, as noted, is to read them
in harmony, if possible. As shown, it is possible to do so.
      It is true, as McGlothin contends, that the UM Act is to be “construed
liberally to provide coverage and strictly to avoid or preclude exceptions or
exemptions from coverage”. Miss. Farm Bureau Mut. Ins. v. Garrett, 487 So. 2d
1320, 1323 (Miss. 1986) (citation omitted). But “[l]imiting UM coverage is not in
issue here, . . . for there is no person from whom [plaintiff in this action is] legally
entitled to recover damages pursuant to the UM policy or the statute; at least, not
until the legislature defines the required coverage differently”. Medders v. U.S.
Fidelity & Guar. Co., 623 So. 2d 979, 988 (Miss. 1993) (citation omitted).
      Along that line, and regarding McGlothin’s contention that the 2009
amendment created an exception to the “legally entitled to recover” requirement,
“[a]n exception must be clear from the language of the statute and cannot be
created by construction”. Imperial Palace of Miss., 751 So. 2d at 1028 (citing Miss.
Dep’t of Wildlife, Fisheries & Parks v. Miss. Wildlife Enf’t Officers’ Ass’n, 740 So.
2d 925, 931 (Miss. 1999)). And, “[t]he statutory language, legally entitled to
recover, is ‘simply too unambiguous to admit of judicially created exception . . .’”.
Medders, 623 So. 2d at 989 (emphasis in original) (citation omitted). Of course, if
the Mississippi legislature had wanted to exempt “motor vehicle[s] owned or
operated by . . . person[s] protected by immunity under the [MTCA]” from the
“legally entitled to recover” requirement, it could have easily and explicitly done
                                          10
    Case: 18-60338     Document: 00514978663      Page: 11      Date Filed: 05/31/2019



                                   No. 18-60338
so. See, e.g., Miss. Wildlife Enf’t Officers’ Ass’n, 740 So. 2d at 932 (quoting State
v. Heard, 151 So. 2d 417, 420 (Miss. 1963)). But, it did not.
      The Mississippi Supreme Court has held that “the clear meaning of the
phrase legally entitled to recover found in the Mississippi UM statute limits
the scope of the coverage mandated by the statute to those instances in which the
insured would be entitled at the time of injury to recover through legal action.
There is no statutory mandate to provide coverage in instances where the alleged
tortfeasor is immune from liability”. Medders, 623 So. 2d at 989 (emphasis in
original) (internal citations omitted). The 2009 amendment did not create this
statutory mandate. In short, and pursuant to our Erie guess, McGlothin was not
legally entitled to recover from the fireman, the fire department, or the city, and,
therefore, is not legally entitled to recover UM benefits from State Farm.
                                        III.
      For the foregoing reasons, that part of the judgment in favor of McGlothin
is VACATED, and judgment is RENDERED for State Farm.




                                         11
