                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2017-FC-00486-SCT

H. KENNETH LEFOLDT, JR., IN HIS CAPACITY
AS TRUSTEE FOR THE NATCHEZ REGIONAL
MEDICAL CENTER LIQUIDATION TRUST

v.

DONALD RENTFRO, CHARLES MOCK,
WILLIAM HEBURN, LEROY WHITE, JOHN
SERAFIN, LINDA GODLEY, LIONEL STEPTER,
LEE MARTIN, WILLIAM ERNST AND JENNIFER
RUSS


DATE OF JUDGMENT:               04/06/2017
TRIAL JUDGE:
TRIAL COURT ATTORNEYS:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:        BRENT B. BARRIERE
                                ALYSSON LEIGH MILLS
                                D. SKYLAR ROSENBLOOM
                                REBECCA SHA
                                DOUGLAS DRAPER
                                LESLIE COLLINS
                                GRETA BROUPHY
                                JOHN THOMAS LAMAR, JR.
                                TAYLOR ALLISON HECK
                                JOHN THOMAS LAMAR, III
ATTORNEYS FOR APPELLEE:         ROY A. SMITH, JR.
                                STEVEN JAMES GRIFFIN
                                MICHAEL F. MYERS
NATURE OF THE CASE:             CIVIL - FEDERALLY CERTIFIED
                                QUESTION
DISPOSITION:                    CERTIFIED QUESTION ANSWERED -
                                12/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     EN BANC.
       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    After Natchez Regional Medical Center (“NRMC”) filed for Chapter 9 bankruptcy,

H. Kenneth Lefoldt, who had been appointed trustee for the NRMC Liquidation Trust, sued

NRMC’s former directors and officers in the United States District Court for the Southern

District of Mississippi, alleging breach of fiduciary duties of care, good faith, and loyalty.

The directors and officers sought dismissal under Federal Rule of Civil Procedure 12(b)(6)

and argued that they were immune under the Mississippi Tort Claims Act (“MTCA” or

“Act”), Mississippi Code Section 11-46-1, et seq. The district court agreed and granted

dismissal to the directors and officers. Lefoldt appealed, and the Fifth Circuit certified the

following questions to this Court:

       1)     Does the MTCA furnish the exclusive remedy for a bankruptcy trustee
              standing in the shoes of a public hospital corporation against the
              employees or directors of that public corporation?

       2)     If the answer to the foregoing question is affirmative, does the MTCA
              permit the trustee to pursue any of the claims identified in his complaint
              against the officers and directors of NRMC in their personal capacity?

Lefoldt v. Rentfro, No. 16-60491, *6 (5th Cir. filed April 6, 2017). Pursuant to Mississippi

Rule of Appellate Procedure 20(a), we answer the first question in the negative.

                       FACTS AND PROCEDURAL HISTORY

¶2.    The Fifth Circuit provided a statement of the facts, which we recite, verbatim, below:

               Natchez Regional Medical Center (“NRMC”) is a public, not-for-profit,
       community hospital owned by Adams County, Mississippi. In 2014, NRMC
       filed bankruptcy under Chapter 9 of the Bankruptcy Code, and a Trustee
       (Lefoldt) was appointed for the liquidation trust and given the right to pursue
       all claims or causes of action on behalf of NRMC.


                                              2
              Appellant, the Trustee, sued the former directors and officers
       (collectively, “Officers”) of NRMC, alleging that the Officers breached their
       fiduciary duty of care, loyalty, and good faith. The Trustee’s claims against the
       Officers arise from the performance of their duties on behalf of NRMC. In his
       complaint the Trustee asserts that the defendants were grossly negligent or
       abdicated their responsibilities in failing to bill patients for services rendered,
       respond to federal audits, and properly oversee the credentialing of its doctors.
       Among other allegations, the Trustee contends that NRMC’s Chief Financial
       Officer did not have the formal training or experience in regulatory matters
       necessary to serve as the hospital’s CFO. As a result of the Officers’
       misfeasance, the Trustee states that the hospital lost millions of dollars in
       revenue.

              The Trustee seeks to recover damages for the benefit of NRMC’s
       creditors. The parties do not dispute that: (1) NRMC qualifies as a
       “government entity” under the MTCA, (2) the defendants qualify as
       “employees” of NRMC, and (3) the “acts or omissions” complained of
       occurred within the course and scope of the defendants’ employment with
       NRMC.

               The Officers moved to dismiss, arguing that they are immune from
       liability under the Mississippi Tort Claims Act (“MTCA”), Miss. Code Ann.
       § 11-46-1, et seq. The district court granted the motion to dismiss, determining
       that the plain language of the MTCA bars the Trustee’s claims against the
       Officers. . . .

Lefoldt, No. 16-60491, at **2-3.

¶3.    The Fifth Circuit observed that this Court has not resolved “whether the MTCA bars

a governmental entity from suing its own employees.” Id. at *5. Accordingly, the Fifth

Circuit asks this Court “to determine whether the MTCA ties the hands of the sovereign from

pursuing claims against its servants.” Id.

                                        DISCUSSION

       Whether the MTCA provides the exclusive remedy for a public hospital’s
       bankruptcy trustee who, on behalf of the public hospital, sued former
       officers and directors of that public hospital.



                                               3
¶4.    A careful reading of our laws reveals that a case such as presented today was not

contemplated by the MTCA. The purpose of the MTCA is to protect public entities from

being sued for the acts of their servants. It is perfectly clear that the Act does not refer to

claims “by” the sovereign. Its application comes about only as to claims “against” the

sovereign. Looking at its plain language, “claim” is defined as “any demand to recover

damages from a governmental entity as compensation for injuries.” Miss. Code Ann. §

11-46-1 (Rev. 2012) (emphasis added). “Claimant” is defined as “any person seeking

compensation under the provisions of this chapter, whether by administrative remedy or

through the courts.” Id. (emphasis added). NRMC is a governmental entity, not seeking

compensation under the provisions of the Act. The Act does not apply to actions by a

governmental entity.

¶5.    Furthermore, Section 11-46-11 provides for a one-year statute of limitations for all

claims brought under the Act. However, the State or any subdivision is not subject to any

civil statute of limitations. See Miss. Const. art. 4, § 104.1 A statute of limitations, which

extinguishes a claim, is totally inconsistent with the Constitutional provision prohibiting the

extinguishment of any civil claim by the State. Reading the Act and the Constitution




       1
        Section 104. Statutes of limitation not to run against State and political
subdivisions

       Statutes of limitation in civil causes shall not run against the State, or any
       subdivision or municipal corporation thereof.

Miss. Const. art. 4, § 104.

                                              4
harmoniously together makes it quite evident that the State is not constrained from pursuing

a civil action.

                                        CONCLUSION

¶6.    A plain reading of the Constitution and the statute lead us to the inescapable

conclusion that a suit such as this was not contemplated by the Act. The MTCA does not bind

the hands of the sovereign from pursuing any civil claim.

¶7.    CERTIFIED QUESTION ANSWERED.

    WALLER, C.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN
AND ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION.

       KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶8.    I respectfully dissent because I would answer the questions certified by the United

States Court of Appeals for the Fifth Circuit in the following manner: 1) yes, the Mississippi

Tort Claims Act (MTCA), Mississippi Code Section 11-46-1, et seq., provides the exclusive

remedy for a public hospital’s bankruptcy trustee who, on behalf of the public hospital, sued

former officers and directors of that public hospital; 2) no, the MTCA does not permit the

trustee to pursue claims of breach of fiduciary duty or gross negligence against the former

directors and officers of NRMC in their personal capacities.

       1.         Whether the MTCA provides the exclusive remedy for a public
                  hospital’s bankruptcy trustee who, on behalf of the public hospital,
                  sued former officers and directors of that public hospital.

¶9.    The MTCA provides the following: “[t]he remedy provided by this chapter against

a governmental entity or its employee is exclusive of any other civil action or civil



                                               5
proceeding by reason of the same subject matter against the governmental entity or its

employee . . . for the act or omission which gave rise to the claim or suit . . . .” Miss. Code

Ann. § 11-46-7(1) (Rev. 2012). Mississippi Code Section 11-46-7(2) provides:

       [N]o employee shall be held personally liable for acts or omissions occurring
       within the course and scope of the employee’s duties. For the purposes of this
       chapter an employee shall not be considered as acting within the course and
       scope of his employment and a governmental entity shall not be liable or be
       considered to have waived immunity for any conduct of its employee if the
       employee’s conduct constituted fraud, malice, libel, slander, defamation or any
       criminal offense.

Miss. Code Ann. § 11-46-7(2) (Rev. 2012).

¶10.   Lefoldt first submits that the plain language of the MTCA forecloses its applying in

an action by a public entity against its employee. He refers to Mississippi Code Section 11-

46-3(1), which states that:

       The Legislature of the State of Mississippi finds and determines as a matter of
       public policy and does hereby declare, provide, enact and reenact that the
       “state” and its “political subdivisions,” . . . are not now, have never been and
       shall not be liable, and are, always have been and shall continue to be immune
       from suit at law or in equity on account of any wrongful or tortious act or
       omission . . . including but not limited to libel, slander or defamation, by the
       state or its political subdivisions, or any such act, omission or breach by any
       employee of the state or its political subdivisions . . . .

Miss. Code Ann. § 11-46-3(1) (Rev. 2012). Lefoldt takes the position that “[n]othing in

Section 11-46-3(1) supports . . . that the Mississippi Legislature intended to recognize

sovereign immunity for employees for all claims against them, including claims brought by

the sovereign.”




                                              6
¶11.   Lefoldt argues that “[t]he express references to ‘person’ in the MTCA’s definitions

for ‘claim,’2 ‘claimant,’3 and ‘injury’4 evince[] the Mississippi Legislature’s clear intent that

the MTCA apply only in actions by a person—not in actions by a public entity.” Such

argument is supported, according to Lefoldt, by the legislature’s omission of the word

“person” from the definitions of “[g]overnmental entity,” which “includes the state and

political subdivisions;” “[p]olitical subdivision,” which includes a “community hospital;” and

“[s]tate,” which includes “the State of Mississippi and any office, department, agency,

division, bureau, commission, board, institution, hospital, college, university, airport

authority or other instrumentality thereof . . . .” (quoting Miss. Code Ann. §§ 11-46-1(g), (i),

(j) (Rev. 2012)). The majority adopts Lefoldt’s reading of the statute: “[t]he purpose of the

MTCA is to protect public entities from being sued for the acts of their servants. It is

perfectly clear that the Act does not refer to claims ‘by’ the sovereign.” Maj. Op. ¶ 4.

¶12.   Lefoldt continues that various aspects of the MTCA would be rendered nonsensical

were it to apply. He references Section 11-46-11(1), which states that “any person having a

claim under this chapter shall proceed as he might in any action at law or in equity, except

that at least ninety (90) days before instituting suit, the person must file a notice of claim with



       2
       “Claim” is defined as “any demand to recover damages from a governmental entity
as compensation for injuries.” Miss. Code Ann. § 11-46-1(a) (Rev. 2012).
       3
          “Claimant” is defined as “any person seeking compensation under the provisions
of this chapter . . . .” Miss. Code Ann. § 11-46-1(b) (Rev. 2012).
       4
         “Injury” is defined as “death, injury to a person, damage to or loss of property or any
other injury that a person may suffer that is actionable at law or in equity.” Miss. Code Ann.
§ 11-46-1(h) (Rev. 2012).

                                                7
the chief executive officer of the governmental entity.” Miss. Code Ann. § 11-46-11(1) (Rev.

2012). He argues that requiring the trustee to provide notice of the claim against himself and

then requiring the trustee to wait ninety days before filing suit against himself would be

nonsensical. Lefoldt also argues that the one-year statute of limitations of Section 11-46-

11(3)(a) would not apply because Article 4, Section 104, of the Mississippi Constitution and

Mississippi Code Section 15-1-51 (Rev. 2012) prohibit the running of statutes of limitation

in civil cases against the State.5 The majority agrees: “[a] statute of limitations, which

extinguishes a claim, is totally inconsistent with the Constitutional provision prohibiting the

extinguishment of any civil claim by the State.” Maj. Op. ¶ 5.

¶13.   But Mississippi Code Section 41-13-11(5) provides that:

       . . . any community hospital, owner, or board of trustees shall be subject to and
       shall be governed by the provisions of Section 11-46-1 et seq., Mississippi
       Code of 1972, for any cause of action which accrues from and after October
       1, 1993, on account of any wrongful or tortious act or omission of any such
       governmental entity, as defined in Section 11-46-1, Mississippi Code of 1972,
       or its employees relating to or in connection with any activity or operation of
       any community hospital.

Miss. Code Ann. § 41-13-11(5) (Rev. 2013) (emphasis added). In a case in which the State

had brought a civil action against generic pharmaceutical provider, Sandoz, Inc., and

prevailed, this Court rejected the State’s argument that the statutory punitive-damages cap

did not apply to it “due to its sovereignty.” Sandoz, Inc. v. State, 190 So. 3d 829, 833, 843

(Miss. 2015). The applicable statute, Mississippi Code Section 11-1-65(3)(a), in pertinent



       5
         “Statutes of limitation in civil causes shall not run against the State . . . .” Miss.
Const. art. 4, § 104. “Statutes of limitation in civil cases shall not run against the state . . .
.” Miss. Code Ann. § 15-1-51 (Rev. 2012).

                                                8
part, limited punitive damages “[i]n any civil action where an entitlement to punitive

damages shall have been established under applicable laws . . . .” Id. at 844 (emphasis in

original). This Court held that the statute’s application to “any civil action” was

unambiguous: “‘[T]he word “any” has an expansive meaning, that is, “one or some

indiscriminately of whatever kind.”’” Id. (quoting United States v. Gonzales, 520 U.S. 1, 5,

117 S. Ct. 1032, 137 L. Ed. 2d 132 (1997)). The same is true here. Section 41-13-11(5)

provides that any cause of action for any wrongful or tortious act or omission of any

community hospital or its employees relating to or in connection with any activity or

operation of any community hospital is subject to the MTCA, irrespective of the identity of

the claimant. The MTCA applies to Lefoldt’s claim because Section 41-13-11(5) says it does.

¶14.   Moreover, “‘[s]tatutes in pari materia, although apparently conflicting should, if

possible, be construed in harmony with each other to give effect to each.’” Roberts v. Miss.

Republican Party State Exec. Comm., 465 So. 2d 1050, 1052 (Miss. 1985) (quoting Lamar

County Sch. Bd. v. Saul, 359 So. 2d 350, 353 (Miss. 1978) (citing Greaves v. Hinds Cty.,

166 Miss. 89, 145 So. 900 (1933))). To the extent the majority’s interpretation of the MTCA

does not harmonize with Section 41-13-11(5), “[t]he rule is well established that where a

special and particular statute deals with a special and particular subject its particular terms

as to that special subject control over general statutes dealing with the subject generally.”

Lenoir v. Madison Cty., 641 So. 2d 1124, 1129 (Miss. 1994) (quoting Townsend v. Estate

of Gilbert, 616 So. 2d 333, 335 (Miss. 1993)). The majority references the language of the

MTCA in support of its dismissal of the argument that it provides the exclusive remedy to



                                              9
a public hospital’s bankruptcy trustee who, on behalf of the public hospital, sued former

officers and directors of that public hospital. But to the extent that terms of the general

MTCA and those of Section 41-13-11(5), which specially and particularly applies the MTCA

to any cause of action against any community hospital or its employees, conflict, Section 41-

13-11(5) controls.

¶15.   It is true, as Lefoldt argues, that the California Court of Appeals for the Second

District, Division 3, held that the California Tort Claims Act would be turned “on its head”

by the suggestion “that the City is required to file a claim with itself before bringing suit

against its employees,” and that, “[a]s the action here was brought on behalf of the City,

compliance with the Tort Claims Act was not required.” People ex rel. Harris v. Rizzo, 214

Cal. App. 4th 921, 939 (2013) (emphasis in original).

¶16.   But in California, “a public employee is liable for injury caused by his act or omission

to the same extent as a private person.” Cal. Gov’t Code § 820(a). In Rizzo, the California

attorney general sued various city officials, including the chief administrator, the deputy chief

administrator, the police chief, and members of the city council, after it became known that

those officials “were receiving salaries well in excess of the amounts paid similar individuals

in similarly-sized cities, and that these . . . individuals went to great lengths to conceal their

salaries from public knowledge.” Rizzo, 214 Cal. App. 4th at 928. The defendants argued,

in part, that the attorney general was required to comply with the requirements of the

California Tort Claims Act, including the requirement that “all claims for money or damages




                                               10
against local entities shall first be presented to the governmental entity.” Id. at 938-39 (citing

Cal. Gov’t Code § 905).

¶17.   It was in the context of the argument that the act had not been complied with that the

court found that requiring compliance with the tort claims act would “turn [it] on its head”

in a case in which the city was “bringing suit against its employees for acting outside the

scope of their employment.” Rizzo, 214 Cal. App. 4th at 939 (emphasis in original). The

court held that “compliance with the Tort Claims Act was not required” because “the plaintiff

is the employing public entity itself” and “the Attorney General brought the instant action on

behalf of the City.” Id. at 939 (emphasis in original). The California court’s analysis answers

Lefoldt’s concern that the other provisions of the Mississippi Tort Claims Act would be

rendered “nonsensical.”

¶18.   Moreover, in Rizzo, the California attorney general alleged that the officials had been

“looting the city’s coffers for their own benefit” and that the city’s employees were acting

outside the scope of their employment. Id. The court held that, while no liability existed

where a decision was made in the discretion of the public official, if the decision “was made

outside the authority of the officials—either as an ordinance outside the city council’s

authority under the charter, or a contract made by someone without the authority to bind the

city to it . . . the city officials who purported to authorize the unauthorized expenditure may

. . . be liable in restitution . . . .” Id. at 943 (emphasis in original). The court held that

immunity did not apply to “prevent the action from proceeding with respect to defendants’

allegedly ultra vires acts.” Id. at 929. Here, Lefoldt has not alleged that the directors and



                                               11
officers were acting outside the course and scope of their duties, nor does he allege that the

directors and officers engaged in ultra vires acts. On the contrary, Lefoldt “does not dispute

that the relevant acts or omissions occurred within the course and scope of the [directors’ and

officers’] employment.” Lefoldt, No. 16-60491, at *3. Lefoldt instead “insists that the

[directors and officers] were grossly negligent in the execution of, or failed to perform, their

duties.” Id.

¶19.   Lefoldt cites Natchez Regional Medical Center v. Quorum Health Resources, 2010

WL 3324955 (S.D. Miss. Aug. 20, 2010), in further support of his argument that the plain

language of the MTCA impels a conclusion that it does not shield employees of a public

entity from an action against them by the public entity. In Quorum, the question before the

United States District Court for the Southern District of Mississippi was whether the

protections of the MTCA applied to bar the NRMC’s claims against Quorum, a third-party

private corporation and its employees, which had been engaged “to provide hospital

management services” for NRMC. Quorum, 2010 WL 3324955, **3, 1.

¶20.   The court analogized the case to another in which a patron of the public bus system

in Jackson, Mississippi, JATRAN, sued the management company with which JATRAN had

contracted to run its day-to-day operations. Id. at *4 (citing Thompson v. McDonald Transit

Assocs., Inc., 440 F. Supp. 2d 530 (S.D. Miss. 2006)). The court in Thompson held that the

management company was not entitled to the protections of the MTCA because the

“‘operation and ownership of JATRAN is likely not McDonald’s lone purpose for

existence.’” Id. (quoting id. at 533). The “‘capitalistic nature’ of McDonald’s business was



                                              12
the ‘overriding consideration’ for finding that it was not entitled to the protections of the

MTCA.” Id. (quoting id.).

¶21.   The court held that Quorum, like McDonald in Thompson, was not entitled to the

protections of the MTCA. Quorum, 2010 WL 3324955, *4. The court distinguished a case

in which a plaintiff sued Quorum and the Neshoba County Nursing Home (NCNH) for

wrongful death and the Mississippi Court of Appeals held that Quorum, as “an

‘instrumentality’ of a community hospital . . . ‘[was] entitled to the protections, limitations[,]

and immunities of the MTCA.’” Id. (quoting Sykes v. Quorum Health Res., Inc., 45 So. 3d

667 (Miss. Ct. App. 2009), rev’d on other grounds, 45 So. 3d 641 (Miss. 2010)). The district

court in Quorum held that “the findings of the Sykes court that [Quorum] was an

instrumentality of the state is not applicable to the instant case because, here, [Quorum] is

being sued by a community hospital and not by a private individual.” Quorum, 2010 WL

3324955, *4.

¶22.   Lefoldt argues that the district court “held the MTCA did not prevent NRMC from

suing its own employees.” But Quorum involved NRMC’s suit against a third-party private

corporation and its employees, with which NRMC had contracted to provide management

services for the hospital. It did not, as here, involve the hospital’s bankruptcy trustee’s suit

against former hospital employees.

¶23.   Lefoldt advocates that “[t]he FTCA’s legislative history indicates that that statute only

applies to claims by a private individual against a public entity.” But this Court has

determined that “the Mississippi Tort Claims Act contains a requirement not present in the



                                               13
Federal Tort Claims Act: that the immunity attaches to a ‘governmental entity and its

employees acting within the course and scope of their employment or duties . . . .” Brantley

v. City of Horn Lake, 152 So. 3d 1106, 1112 (Miss. 2014) (quoting Miss. Code Ann. § 11-

46-9(1)(d) (Rev. 2012)) (emphasis in Brantley).

¶24.   According to Lefoldt, the limitation on a Mississippi governmental entity’s

entitlement to contribution or indemnification or reimbursement for legal fees and expenses

from its employee unless “a court shall find that the act or omission of the employee was

outside the course and scope of his employment,” makes no sense in this context, because,

were NRMC to prevail, NRMC would have to pay the judgment itself. Miss. Code Ann. §

11-46-7(5) (Rev. 2012). But Section 11-46-7(5) states that “[a] governmental entity shall not

be entitled to contribution or indemnification, or reimbursement for legal fees and expenses

from its employee unless a court shall find that the act or omission of the employee was

outside the course and scope of his employment.” Miss. Code Ann. § 11-46-7(5) (emphasis

added). Here, Lefoldt has conceded that the directors and officers at all times acted within

the course and scope of their employment.

¶25.   Because the legislature unequivocally provided in Section 41-13-11(5) that

community hospitals and their employees are subject to and governed by the MTCA, Section

11-46-1, et seq., I would answer the Fifth Circuit’s inquiry in the affirmative. The MTCA

provides the exclusive remedy for a public hospital’s bankruptcy trustee who, on behalf of

the public hospital, sued former officers and directors of that public hospital.




                                             14
       2.       Whether, if the MTCA does provide the exclusive remedy, the
                bankruptcy trustee can maintain his claims against the directors
                and officers in their personal capacities.

¶26.   Under the MTCA, an employee can be held personally liable only if his or her act was

outside “the course and scope of [his or her] duties.” Miss. Code Ann. § 11-46-7(2) (“[N]o

employee shall be held personally liable for acts or omissions occurring within the course and

scope of the employee’s duties.”). And a governmental entity is not liable and “an employee

shall not be considered as acting within the course and scope of his employment . . . if the

employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal

offense.” Id.

¶27.   Lefoldt claims that NRMC’s former directors and officers breached fiduciary duties

they owed to NRMC. This Court has held that “[a] claim of breach of fiduciary duty is

‘appropriately recognized as an action in tort . . . .’” Union Nat’l Life Ins. Co. v. Crosby, 870

So. 2d 1175, 1180 (Miss. 2004) (quoting Tyson v. Moore, 613 So. 2d 817, 823 (Miss. 1992)).

But, according to Section 11-46-7(2), unless the breach of fiduciary duty claim alleged

“fraud, malice, libel, slander, defamation or any criminal offense,” MTCA immunity shields

employees from personal liability. Lefoldt does not allege that NRMC’s former directors and

officers committed fraud, malice, slander, defamation, or any criminal offense, and he

concedes in this Court, as he conceded in the district court and in the Fifth Circuit, that

NRMC’s former directors and officers acted within the course and scope of their duties.

¶28.   In addition to an allegation of breach of fiduciary duty, Lefoldt alleged gross

negligence. This Court decided a case in which a teacher administered corporal punishment



                                               15
to a student and the student’s mother sued but alleged only gross negligence in her complaint.

Duncan v. Chamblee, 757 So. 2d 946, 947, 949 (Miss. 1999). This Court observed that while

“assault and battery are intentional torts for which no defendant can claim immunity,” the

mother’s claim failed because, by the mother’s “own allegations, [the teacher] was acting

within the course and scope of her employment with the School when the alleged torts

occurred.” Id. at 949-50. According to the Court, the mother’s complaint had failed to state

a claim because it did “not allege that [the teacher’s] conduct constituted ‘fraud, malice, libel,

slander, defamation, or any other criminal offense’ within the meaning of § 11–46–7(2).” Id.

at 950.

¶29.      Lefoldt’s complaint does not contain allegations of “fraud, malice, libel, slander,

defamation or any criminal offense.” Under the MTCA, therefore, the former directors and

officers of NRMC are shielded from personal liability for conduct which occurred within the

course and scope of their duties.




                                               16
