                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2005-CA-00018-SCT

GEORGE POWELL, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
LORENZO POWELL

v.

CLAY COUNTY BOARD OF SUPERVISORS,
LADDIE HUFFMAN, IN HIS OFFICIAL CAPACITY
AS SHERIFF OF CLAY COUNTY, MISSISSIPPI,
AND CARL PIERCE


DATE OF JUDGMENT:                          12/9/2004
TRIAL JUDGE:                               HON. JAMES T. KITCHENS, JR.
COURT FROM WHICH APPEALED:                 CLAY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   ANGELA TURNER LAIRY
                                           BENNIE L. TURNER
ATTORNEYS FOR APPELLEES:                   BENJAMIN E. GRIFFITH
                                           CHRIS POWELL
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
DISPOSITION:                               AFFIRMED - 03/16/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE COBB, P.J., EASLEY AND RANDOLPH, JJ.

       COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Lorenzo Powell, a state inmate, died after falling off the back of a garbage truck owned

by Clay County.   Subsequently, his father, George Powell, filed a wrongful death suit alleging

that Carl Pierce, a Clay County employee, was negligent in his operation of the garbage truck.

Named as defendants were the Clay County Board of Supervisors; Sheriff Laddie Huffman, in

his official capacity; the Mississippi Department of Corrections (MDOC); and Pierce
(sometimes collectively Clay County).        Powell’s Estate is now before this Court for the third

time, seeking relief from an adverse ruling in which the Clay County Circuit Court granted

summary judgment in favor of Clay County, after finding the Estate’s claim was barred by the

Mississippi Tort Claims Act (MTCA).

                              FACTS AND PROCEDURAL HISTORY

¶2.      On November 11, 1996, while an inmate in the Clay County Jail, Lorenzo Powell

volunteered to help with the garbage collection detail. As he was riding on the back of a county

garbage collection truck, it crossed some railroad tracks, and Powell was propelled to his

death.       In the suit filed on behalf of Powell’s estate1 and wrongful death beneficiaries, the

complaint alleged Pierce was negligent in driving the garbage truck and that the remaining

defendants were liable under the doctrine of respondeat superior or enterprise liability because

Pierce was a county employee.

¶3.      This case has been before this Court twice before, and a short summary of its history

is provided here, not only to explain the lengthy passage of time since Powell’s death and

commencement of the wrongful death action but also to explain the procedural posture of the

present appeal. 2 On September 20, 2001, the circuit court granted summary judgment in favor

of Clay County, the sheriff, MDOC and Pierce, and subsequently, the court dismissed MDOC



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         Throughout this opinion, to eliminate confusion, actions taken by Powell’s father, George
Powell, who is identified in the Complaint as the “personal representative of Powell’s estate, . . . and
the wrongful death beneficiaries” are referred to as “Powell’s Estate” or “the Estate”.
         2
        See Powell v. Clay County Bd. of Supervisors, 883 So. 2d 562 (Miss. 2004), for more
complete details.

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with prejudice following an agreement by the parties. On October 19, 2001, Powell’s Estate

filed a notice of appeal as to the dismissal and the summary judgment, but on March 25, 2002,

filed a motion for rehearing in the circuit court, seeking to present additional evidence not

previously available.         The circuit court granted the rehearing and set aside the summary

judgment after finding that M.R.C.P. 60(b) allowed the reconsideration. The parties were

directed to re-file their briefs, and the Estate be allowed to pursue the issue of Clay County’s

liability insurance policy.

¶4.     On December 12, 2002, this Court dismissed the first appeal, stating that no appealable

order existed at that time. Subsequently Clay County sought to reinstate the Estate’s appeal,

but was denied by Order of this Court on April 4, 2003. Due to the retirement of the circuit

judge, his replacement was assigned to handle this case, and on July 15, 2003, he reinstated the

original order of summary judgment. Once again, Powell’s Estate appealed to this Court, and

on September 23, 2004, this Court remanded to the circuit court for further proceedings.

¶5.     On remand, the Estate alleged the MTCA did not immunize Clay County, because

immunity was waived as a result of a provision in its liability insurance contract with Coregis

Insurance Company (Coregis).          The defendants again filed a Motion for Summary Judgment,

and following a hearing before the new circuit judge on October 14, 2004, the circuit court

again entered summary judgment, finding the County, the Sheriff and Pierce immune from suit

under the MTCA. The Estate is once again before this Court on appeal, raising two issues: (1)

whether the Clay County Defendants are bound by the unambiguous language in the County’s




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liability insurance policy; and (2)     whether Pierce’s liability is an issue for the jury.   Finding

no error, this Court affirms the trial court’s grant of summary judgment.

                                              ANALYSIS

        I.      IMMUNITY

¶6.     This Court reviews errors of law, which include the proper application of the MTCA,

de novo. Maldonado v. Kelly, 768 So. 2d 906, 908 (Miss. 2000). Further, this Court reviews

the grant of a summary judgment de novo. Mississippi Farm Bureau Mut. Ins. Co. v. Walters,

908 So. 2d 765, 768 (Miss. 2005).

¶7.     The MTCA provides that “[a] governmental entity or its employees acting within the

course and scope of their employment, shall not be liable for any claims:

        (m) Of any claimant who at the time the claim arises is an             inmate of any
        detention center, jail, workhouse, penal farm, penitentiary           or other such
        institution, regardless of whether such claimant is or is not an      inmate of any
        detention center, jail, workhouse, penal farm, penitentiary,          or other such
        institution when the claim is filed . . . .”

Miss. Code Ann. § 11-46-9(1)(m). In Wallace v. Town of Raleigh, 815 So. 2d 1203, 1206

(Miss. 2002), an inmate of the Mississippi Department of Corrections, brought suit against

the Town of Raleigh for injuries he sustained while a passenger on a garbage truck in a work

release program.     The garbage truck was struck on the passenger’s side by another vehicle,

leaving Wallace injured.     Id. at 1205.     This Court held Wallace’s claim was barred by the

express language of Miss. Code Ann. Section 11-46-9(1)(m). Notwithstanding this precedent,

Powell’s Estate argues the County waived governmental immunity by a provision in the

insurance contract with Coregis.

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¶8.     This Court has held that the purchase of insurance does not operate as a waiver of

sovereign immunity, nor does it hinder any exclusions or exemptions from liability.     McGrath

v. City of Gautier, 794 So. 2d 983, 987 (Miss. 2001). See also Leslie v. City of Biloxi, 758

So. 2d 430, 434 (Miss. 2004) (finding City immune from suit under Miss. Code Ann. Section

11-46-9(1)(l) and that City had liability insurance to cover the incident was of no

consequence); Maxwell v. Jackson County, 768 So. 2d 900, 902 (Miss. 2000) (holding the

county “has not waived the protections from liability claims . . . afforded by the exemptions of

Miss. Code Ann. Section 11-46-9 ”); L.W. v. McComb Municipal Sch. Dist., 754 So. 2d 1136,

1144 (Miss. 1999) (reasoning that “the purchase of insurance does not affect potential

defenses under Miss. Code Ann. Section 11-46-9. 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.”)

¶9.     The provisions of MTCA Section 11-46-9(1)(m) are controlling in the present case.

Powell’s claim or cause of action is barred by the plain language of this section. The trial court

did not err when it so found.

        II.     MALICE

¶10.    The standard of review on the grant of a summary judgment is de novo. Walters, 908

So. 2d at 768. In addition, the facts are viewed in a light most favorable to the nonmoving party.

Rankin v. Clements Cadillac, Inc., 903 So. 2d 749, 751 (Miss. 2005). Powell’s Estate argues

that the grant of summary judgment should be reversed because the issue of Pierce’s liability

was incorrectly resolved on summary judgment. Specifically, the Estate asserts there is enough

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evidence in the record to show that Pierce acted with malice, and therefore acted outside the

scope of employment, eliminating any immunity he would have had under the MTCA.                       The

Estate, however, fails to point to any place in the record where there is either an explicit or

implicit allegation of malice, and a careful review of the record by this Court reveals none.

¶11.    This argument is barred because only negligence, not malice, was pled in the complaint,

and no amendment was made. It is well-settled law in Mississippi that plaintiffs are bound by

what is alleged in the complaint, absent a subsequent amendment or modification.                See Ray v.

State, 503 So. 2d 222, 226 (Miss. 1986); Minor v. Engineering Service Co., Inc., 304 So. 2d

45, 48 (Miss. 1974). The Estate’s M.R.C.P. 60 motion was based on the insurance policy, not

Pierce’s liability.   The issue of malice was not specifically raised, and thus was not before the

circuit court.

¶12.    If Powell’s Estate sought to use malice as a way to pierce the government’s immunity,

it should have done so in the complaint, an amendment or modification to the complaint, or

properly in a Rule 60 motion.        Accordingly, for failure to properly raise the issue below, this

Court is relieved of the duty to consider it. Branch v. State, 882 So. 2d 36, 79 (Miss. 2004).

The circuit court properly granted the motion for summary judgment in favor of the Clay

County defendants.

                                              CONCLUSION

¶13.    We affirm the trial court on all issues.

¶14.    AFFIRMED.




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     SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.




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