Benjamin Robinson v. Holmes County, Mississippi ( 2019 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CA-01715-SCT
BENJAMIN ROBINSON AND APRIL ROBINSON
v.
HOLMES COUNTY, MISSISSIPPI AND
BRIERFIELD INSURANCE COMPANY
DATE OF JUDGMENT: 11/22/2017
TRIAL JUDGE: HON. JANNIE M. LEWIS-BLACKMON
TRIAL COURT ATTORNEYS: BOBBY L. DALLAS
MICHAEL T. JAQUES
RICHARD T. LAWRENCE
ROY A. SMITH, JR.
DENISE WESLEY
STEVEN J. GRIFFIN
JAMES COLLIN MALEY
COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: MICHAEL T. JAQUES
ATTORNEYS FOR APPELLEES: ROY A. SMITH, JR.
STEVEN J. GRIFFIN
RICHARD T. LAWRENCE
MICHAEL O. GWIN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 09/26/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Benjamin Robinson drove his employer’s vehicle into the rear end of a stopped
Holmes County garbage truck. The garbage truck was stopped picking up garbage on the side
of the highway in dense fog. Robinson sued Holmes County and his uninsured motorist
carrier, Brierfield Insurance Company. Robinson asserts that Holmes County was negligent
in its operation of the garbage truck. Robinson also asserts a breach of contract claim, stating
that Brierfield Insurance Company breached the insurance contract by denying him uninsured
motorist benefits.
¶2. The trial court granted summary judgment and found not only that Holmes County was
not negligent but also that it was immune under the Mississippi Tort Claims Act. The trial
court further found that, since Holmes County was not negligent, Brierfield also is not liable
as the uninsured motorist insurance provider. Robinson appeals.
FACTS AND PROCEDURAL HISTORY
¶3. In the early morning hours of October 25, 2011, Robinson was driving to work in a
truck owned by his employer and insured by Brierfield Insurance Company. Robinson
described a “dense fog” and stated that he could not see the road. At the same time, a Holmes
County garbage truck was stopped in the highway while employees picked up garbage. The
fog obscured Robinson’s vision, and he did not see the truck in time to stop. Robinson
collided with the rear end of the garbage truck.
¶4. Robinson filed a complaint against Holmes County and Brierfield Insurance
Company, seeking damages for injuries sustained in the collision. Robinson alleges Holmes
County was negligent in its operation of the garbage truck. Specifically, Robinson asserts
that the accident was caused by the garbage truck’s blocking his lane of travel and by the
failure of the workers to display reasonable warning devices. Robinson alleges Brierfield
Insurance Company breached its contract by failing to pay him uninsured motorist benefits.
2
¶5. Holmes County filed its answer and defenses, denying all liability and claiming
immunity under the Mississippi Tort Claims Act. Holmes County later filed its motion for
summary judgment, seeking dismissal. Holmes County claimed immunity under Mississippi
Code Sections 11-46-9(1)(q) and 11-46-9(1)(v) (Rev. 2015). Brierfield joined Holmes
County’s motion for summary judgment, in part, and included the additional argument that
Robinson could not make a prima facie case that the Holmes County employees had been
negligent in the first place. Brierfield contended that in the absence of negligence, it was not
required to provide uninsured motorist coverage.
¶6. After a hearing, the circuit court granted Holmes County’s amended motion for
summary judgment. The court found that Robinson had failed to make a prima facie case of
negligence against Holmes County and that Holmes County was entitled to discretionary
function immunity under the tort claims act. After a motion by Brierfield, the circuit court
issued its corrected order under Mississippi Rule of Civil Procedure 60(a), reiterating that
“Holmes County should be granted immunity on all grounds.” The corrected order clarified
that “Holmes County was granted summary judgment because the fog was the sole proximate
cause of the accident,” and it further clarified that the County’s decision not to have a flag
man present was a discretionary function because it “is immune and is therefore not negligent
in the accident.” The corrected order also granted Brierfield’s motion for summary
judgment.
STANDARD OF REVIEW
3
¶7. “A trial court’s grant or denial of summary judgment is reviewed de novo.” Miss.
Baptist Med. Ctr., Inc. v. Phelps, 254 So. 3d 843, 844-45 (¶5) (Miss. 2018) (citing Leffler
v. Sharp, 891 So. 2d 152, 156 (Miss. 2004)). “Summary judgment is appropriate when ‘the
pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact.’” Id. at 845 (¶
5) (quoting Miss. R. Civ. P. 56(c)). Evidence will be viewed in the light most favorable to
the nonmoving party. Estate of Northrop v. Hutto, 9 So. 3d 381, 384 (¶ 8) (Miss. 2009).
The “[nonmoving] party’s claim must be supported by more than a mere scintilla of colorable
evidence; it must be evidence upon which a fair-minded jury could return a favorable
verdict.” Lott v. Purvis, 2 So. 3d 789, 792 (¶ 11) (Miss. Ct. App. 2009) (quoting Wilbourn
v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1213 (Miss. 1996)). If no genuine issue
of material fact exists to be resolved, then the moving party is entitled to judgment as a
matter of law. Id. at 792 (¶ 11).
DISCUSSION
I. The trial court did not err in finding that Robinson failed to
establish a prima facie case of negligence.
¶8. Robinson bears the burden of producing evidence establishing a prima facie case of
negligence on the part of the Holmes County employees. Goodwin v. Gulf Transp. Co., 453
So. 2d 1035, 1036 (Miss. 1984). If he cannot, then his claims against both Holmes County
and Brierfield fail. Horton v. City of Vicksburg, 268 So. 3d 504 (Miss. 2018). As was the
case in Horton, Robinson’s failure to make a prima facie showing of negligence obviates the
need to address the immunity issues. Id. at 505 (¶ 1).
4
¶9. In today’s case, viewing the evidence in the light most favorable to Robinson, he
cannot hope to prove negligence at trial. The conduct of the Holmes County employees was
not a proximate contributing cause of the accident.
¶10. Robinson alleges that the accident was caused “by the garbage truck’s blockage of the
lane of travel” and by the “failure of the garbage truck to display any adequate or reasonable
warning devices, including lights.” However, there is no evidence of negligence on the part
of Holmes County. The only evidence of any type of negligence is Robinson’s running into
the rear end of the garbage truck in blinding fog.
¶11. In Robertson v. Welch, 134 So. 2d 491, 491 (Miss. 1961), Welch was traveling too
fast down a highway in “misty and foggy” weather; the defendant even admitted “you
couldn’t hardly see a thing.” Id. at 491-92. The defendant’s vehicle struck a pedestrian. Id.
The defendant stated he never saw the pedestrian before hitting her. Id. at 493. The Court
noted the defendant’s legal duty to be on the alert for pedestrians and others using the
highway and the defendant’s legal duty to drive his automobile at such a speed necessary to
avoid injury to others coming within the range of his lights. Id. The Court stated that
“because of the condition of the weather,” Welch “had no right whatever to operate his
automobile blindly down this highway at 35 miles an hour.” Id. at 493 (citing Keith v. Yazoo
& M.V.R. Co., 151 So. 916, 916 (1934)).
To all intents and purposes Welch, if he was telling the truth, might as well
have been physically blind. It should be indelibly seared into the memory of
all motorists that neither the law nor the courts can, or will, turn loose to kill
and maim persons on the highways of this state, drivers, who are either
physically blind, or are so indifferent to their responsibility to others that they
do not see although they have eyes for that purpose.
5
Id. at 493-94. Welch’s “conduct stands out as a glaring instance of unadulterated
carelessness and negligence.” Id. Based on the evidence, the Court found no negligence on
the part of the pedestrian, and it found Welch’s conduct, speeding in foggy weather, to be the
sole cause of the accident. Id.
¶12. In Gartman v. Bush Construction Co., 227 So. 2d 846 (Miss. 1969), the Court held
that no fault or negligence on the part of a construction company and its driver could be
shown after the plaintiff drove into a dense dust cloud and collided with the rear end of a
construction water truck. The trial court granted a directed verdict against Gartman, finding
that “there was nothing to keep [the plaintiff] from seeing the dust before he entered it
without slacking his speed.” Id. at 847. Reviewing the record, the Court was “unable to find
any evidence of negligence” on the part of the construction company or its employee that the
Court could conclude “caused or contributed to the accident.” Id. Accordingly, the Court
upheld the directed verdict in favor of the defendants. Id.
¶13. The record belies Justice Maxwell’s position that the trial judge did not find that
Robinson failed to make a prima facie showing of negligence. In her corrected order, the
trial judge wrote in reference to the original order, “[I]t was the Court’s finding that . . .
Holmes County was not negligent . . . .” The trial judge clarified her earlier finding because
she had failed to rule upon Brierfield’s separate motion for summary judgment, in which
Brierfield argued that because plaintiff could not make a prima facie showing of negligence,
the plaintiff’s claim for uninsured motorist benefits must fail.
6
¶14. Justice Maxwell is correct that, other than arguing causation, which pertains to both
the weather-immunity provision and the common-law negligence elements, Holmes County
did not expressly argue that Robinson failed to make a prima facie case of negligence.
However, Brierfield, also a defendant, did. In its motion, Brierfield argued, “The plaintiffs
have not and can not produce any evidence establishing a prima facie case of the following
essential elements of negligence against the County (a) breach of duty or (b) proximate
cause.” The entirety of the trial judge’s treatment of Brierfield’s motion in the corrected
order reads as follows:
At the time of the original order, the Court did not entertain the Defendant,
Brierfield Insurance Company’s Motion for Joinder in Holmes County’s
Motion for Summary Judgment, and realizes that Brierfield’s motion should
have been addressed at that time in that the motion was argued before the
Court. It was the Court’s finding that since Holmes County was not negligent,
Brierfield Insurance Company was not liable. At the time of the original order,
it was the Court’s intent to grant Summary Judgment to Holmes County, as
well as to Brierfield Insurance Company.
The most apparent meaning of the above-quoted paragraph—especially given the trial court’s
use of the word “negligent” instead of immunity—is that the trial judge agreed with
Brierfield’s separate argument regarding plaintiff’s failure to make a case of common-law
negligence.1 Brierfield’s argument combined with the trial judge’s second order entered for
the express purpose of addressing it lead to the conclusion that the trial court granted
summary judgment on both grounds: sovereign immunity as to Holmes County and the
failure of the plaintiff to provide evidence of his negligence claim as to Brierfield.
1
Brierfield both joined Holmes County’s motion for summary judgment and made its
own separate motion.
7
¶15. Immunity from liability for negligence based on sovereign immunity differs from not
being negligent. Given the difference between immunity from liability on one hand and
failing to prove the elements of common-law negligence on the other, given the fact that one
of the parties argued (and continues to argue on appeal) that Robinson failed to produce
evidence as to all elements of his common-law negligence claim, and, finally, given that the
trial court’s finding that fog was the sole proximate cause of the accident pertains to the
elements of a negligence claim but not to discretionary-function immunity, we cannot agree
with Justice Maxwell that the trial judge only addressed immunity in her orders.
¶16. In any event, whether the trial court based its grant of summary judgment to the
defendants on sovereign immunity, negligence, or both, we may affirm the lower court’s
grant of summary judgment for any sufficient reason apparent from the record. Cummins
v. Goolsby, 255 So. 3d 1257, 1258-1259 (¶ 8) (Miss. 2018). As noted above, Brierfield
argued the plaintiff’s failure to make a prima facie case of negligence in its separate motion
for summary judgment before the trial court. In its brief on appeal, Brierfield again argues
that Robinson failed to offer “admissible evidence to establish the negligence of Holmes
County and its employees.” Brierfield argued that Robinson’s failure to make a prima facie
showing of negligence before the trial court and in the instant appeal and Robinson’s failure
to demonstrate an issue of fact on the element of proximate cause disposes of all issues
before the Court.
II. To recover against Brierfield Insurance Company, the uninsured
motorist laws of Mississippi require that Robinson prove Holmes
County’s negligence.
8
¶17. Robinson’s obligation to prove negligence is embedded in the uninsured motorist
statutes. The uninsured motorist statutes require Robinson to prove he is “legally entitled to
recover as damages for bodily injury . . . from the owner or operator of an uninsured motor
vehicle.” Miss. Code Ann. § 83-11-101 (Rev. 2011). The Court has held previously that it
“was essential to due process” that insureds under an uninsured motorist policy “carry the
burden which rested upon [the insured]” to prove against the uninsured motorist carrier the
essential elements of a tort claim. State Farm Fire & Cas. Co. v. Wightwick, 320 So. 2d
373, 375 (Miss. 1975).
¶18. The fundamental requirement of proving breach of duty and proximate cause against
the uninsured motorist is confirmed by legal scholarship:
Plaintiff must show that he is “legally entitled to recover” damages from the
uninsured motorist; that is, he must show that the uninsured motorist’s
negligence was the proximate cause of the accident.
Richard T. Phillips, A Guide to Uninsured Motorist Law in Mississippi, 52 Miss. L.J. 225,
307 (1982).
¶19. The Court has held previously that there is no “different rule for the application of
negligence in an uninsured motorist cause and the ordinary automobile case” and that “[a]
plaintiff must show the collision was the proximate result of negligence on the part of the
uninsured [motorist.]” State Farm Fire & Cas. Co. v. McGee, 368 So. 2d 230, 234 (Miss.
1979) (citing Wightwick, 320 So. 2d at 375).
¶20. Because Robinson’s negligence claim fails as a matter of law, so does his claim
against Brierfield for uninsured motorist benefits. Robinson’s failure to make a prima facie
9
showing of negligence disposes of all claims against both defendants, so we need not address
the application of the Mississippi Tort Claims Act. See Chaffee v. Jackson Pub. Sch. Dist.,
270 So. 3d 905, 907 (¶ 9) (Miss. 2019) (failure of plaintiff to make prima facie showing of
negligence moots issue regarding application of the Mississippi Tort Claims Act).
CONCLUSION
¶21. Finding no genuine issue of material fact, we affirm the judgment of trial court
granting summary judgment to Holmes County and Brierfield Insurance Company.
¶22. AFFIRMED.
KING, P.J., CHAMBERLIN AND ISHEE, JJ., CONCUR. RANDOLPH, C.J.,
CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN
OPINION. MAXWELL, J., CONCURS IN RESULT ONLY WITH SEPARATE
WRITTEN OPINION JOINED BY BEAM, J.; RANDOLPH, C.J., COLEMAN AND
CHAMBERLIN, JJ., JOIN IN PART. KITCHENS, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J.
MAXWELL, JUSTICE, CONCURRING IN RESULT ONLY:
¶23. This case is really about sovereign immunity—more precisely, which immunity
provisions, if any, apply and what impact that has on the Robinsons’ ability to recover
uninsured-motorist benefits. The parties teed it up that way. The judge did too. But since
the plurality does not address it, I will.
¶24. I start with the fact the record compels me to respectfully disagree with the plurality’s
view that the trial court granted summary judgment based on “finding that Robinson failed
to establish a prima facie case of negligence.” As stated in her corrected order, the trial
judge granted summary judgment because “Holmes County is immune and is therefore not
negligent in the accident.” (Emphasis added.) Finding the County was “not negligent” was
10
not an independent and alternative reason for granting summary judgment. Instead, it was
a finding that logically flowed from the court’s holding that Holmes County was entitled to
summary judgment “because fog was the sole proximate cause of the accident and not having
a flagman was a discretionary function . . . .” In short, the judge found Holmes County was
immune based on Mississippi Code Section 11-46-9(1)(q) (Rev. 2012), which immunizes
against claims arising out of injuries caused solely by the effect of weather on road
conditions, and Mississippi Code Section 11-46-9(1)(d) (Rev. 2012), which immunizes
against claims based on the exercise of a discretionary function.
¶25. If the judge’s corrected order left any doubt that she granted summary judgment based
on Holmes County’s immunity claim, one need only look at Holmes County’s amended
motion—a motion requesting summary judgment based solely on its argument that it was
immune under Mississippi Code Sections 11-46-9(1)(d), (q), and (v).
¶26. When it comes to a grant of summary judgment by the circuit court, we have said we
will affirm “if any ground raised and argued below will support the lower court’s decision.”
Horton ex rel. Estate of Erves v. City of Vicksburg, 268 So. 3d 504, 507 (Miss. 2018)
(emphasis added). And here, Holmes County neither raised nor argued to the trial court any
ground for summary judgment that was an alternative to or independent of its immunity
11
claim.2 But even if Holmes County got enough of its foot in the door to support a no-
negligence argument, the immunity question is still before us.
¶27. Since the immunity issue is primed for review, I will address it and explain why the
trial court did not err. The trial court granted Holmes County summary judgment based on
finding the governmental entity and its employees were immune under Mississippi Code
Section 11-46-9(1)(d) and (q). As the trial judge pointed out in her order, the Robinsons did
not dispute but instead advocated for why Holmes County was entitled to immunity under
subsection (d)—discretionary-function immunity. But in doing so, they strenuously argued
against the trial court’s application of subsection (q)—weather-condition immunity. One
would ordinarily ask, why would they do that since “[a]pplicability of any one of these
sections creates immunity”? Pearl River Valley Water Supply Dist. v. Bridges, 878 So. 2d
1013, 1016 (Miss. Ct. App. 2004) (citing State v. Hinds Cty. Bd. of Supervisors, 635 So. 2d
839, 842 (Miss. 1994)).
2
Even Holmes County’s summary-judgment argument that the Robinsons had not
established prima facie evidence that the county violated Mississippi Code Section 63-3-903
(Rev. 2013) was made in the context of discretionary-function immunity. While this case
was pending at the trial level, this Court’s now-abandoned “Brantley test” controlled the
application of discretionary-function immunity. And one of the unintended consequences
of Brantley was that it erroneously shifted the focus to alleged statutory violations, which in
themselves do not create private causes of action, as a means of defeating discretionary-
function immunity. See Wilcher v. Lincoln Cty. Bd. of Supervisors, 243 So. 3d 177, 184
(Miss. 2018). So the Robinsons alleged Holmes County violated Section 63-3-903 because
under Brantley they thought they had to. Under that now-abandoned law, it was the only way
to defeat discretionary-function immunity. And Holmes County argued on summary
judgment that the Robinsons could not establish prima facie evidence that it violated Section
63-3-903 because, under Brantley, without a statutory violation, all the Robinsons would be
left with are non-minsterial, discretionary duties for which the county could not be sued. In
other words, even its no-prima-facie-evidence argument was another argument for why
Holmes County was immune.
12
¶28. But the answer becomes apparent when the Robinsons’ uninsured-motorist claim is
factored in. Discretionary-function immunity applies “whether or not the discretion be
abused.” Miss. Code Ann. § 11-46-9(1)(d). So finding Holmes County immune under this
provision would not preclude finding Holmes County still abused its discretion—i.e., was
negligent. In this respect, I agree with the dissenting justice that finding Holmes County was
immune did not equate to finding no evidence of Holmes County’s negligence. And the trial
court’s finding Holmes County immune but still potentially negligent was precisely the
needle the Robinsons hoped to thread to keep alive their uninsured-motorists claim against
Brierfield.
¶29. But weather-condition immunity creates a different scenario.
¶30. Weather-condition immunity applies when the claimed injury was “caused solely by
the effect of weather conditions on the use of streets or highways.” Miss. Code Ann. § 11-
46-9(1)(q). So finding Holmes County immune under this provision does preclude finding
Holmes County was negligent. If the sole cause of Robinson’s injuries was the dense fog
on the highway that morning, Holmes County’s negligence could not have been a
contributing cause to Robinson’s injuries. And if Holmes County’s negligence was not a
contributing cause of the wreck, then—regardless of immunity—the Robinsons are not
“legally entitled to recover . . . damages” from Holmes County. Miss. Code. Ann.
§ 83-11-101(1) (Supp. 2018). This would also upend the Robinsons’ attempts at an
uninsured-motorist claim.
13
¶31. So the key question this Court should address on appeal is—Did the trial court err by
finding Holmes County was immune under Section 11-46-9(1)(q) because the fog was the
sole proximate cause of the accident?
¶32. The two cases the plurality cites, Robertson v. Welch, 242 Miss. 110, 134 So. 2d 491
(1961), and Gartman v. Bush Construction Co., 227 So. 2d 846 (Miss. 1969), cannot help
answer this question. Not only do both predate the Mississippi Tort Claims Act, but also
neither has anything to do with sovereign immunity. Further, in neither case did this Court
conclude, as the trial judge did here, that the weather condition was the sole proximate cause
of the wreck. Instead, both cases found the driver of the colliding vehicle negligent for
driving in low visibility conditions. So by citing these cases as controlling, I agree with the
dissenting justice that the plurality leaves the impression that our holding is based on a
finding that Robinson, like the drivers in Robertson and Gartman, had been negligent and
his negligence was the sole proximate cause of the accident. And I share the dissenting
justice’s concern that such a conclusion ignores the possibility that Holmes County could
have been likewise negligent for operating under the same conditions and thus seemingly
takes this issue away from a jury. See White v. Miller, 513 So. 2d 600, 601 (Miss. 1987)
(rejecting a per se rule that the driver who hits another vehicle from behind is the negligent
one).
¶33. But I do not join the dissent for the simple reason the trial court did not find Robinson
had been negligent or that his negligence caused, even in part, the accident. Importantly, the
trial court found no evidence of any negligence at all. Instead, the fog was the sole proximate
14
cause of the accident. So the case on point is not Robertson or Gartman but rather Hayes
v. Green County, 932 So. 2d 831 (Miss. Ct. App. 2005).
¶34. Like the case before us, Hayes dealt with heavy morning fog, a stopped garbage truck,
and a rear-end collision. The only difference is that Hayes involved an additional car. While
the driver of first car was able to stop in time to avoid the garbage truck, the driver of the
second car never saw the first car or the garbage truck due to the dense fog. The driver of
the second car slammed into the first car without even hitting the breaks, severely injuring
the first car’s driver. Id. at 832. The trial court in Hayes found the fog was the sole
proximate cause of the accident. So it granted the garbage truck’s operator, Green County,
summary judgment based on Section 11-46-9(1)(q). Id.
¶35. On de novo review, the Court of Appeals affirmed. Id. at 832-33. The second driver
testified the reason she did not see the first car or garbage truck was the fog. Id. at 833. The
same is true here. Robinson testified he could think of no reason why he did not see the
garbage truck in time to brake other than the fog. So Robinson’s own deposition testimony
sufficiently supports Holmes County’s affirmative defense that the fog was the sole
proximate cause of the accident.
¶36. While the dissent argues the Robinsons’ pleadings are sufficient to create a material
fact dispute, we are not confronted with dismissal on the pleadings. We are instead dealing
with the grant of summary judgment. And at the summary-judgment stage, “[m]ere
allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid
an adverse rendering of summary judgment.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564
15
So. 2d 1346, 1356 (Miss. 1990). So while Robinson alleged the garbage truck did not have
sufficient warning lights, he could not testify whether the truck’s flashers were on or not.
Meanwhile, the truck’s driver testified the flashing lights were on that morning. Thus,
Robinson has failed to establish a genuine fact issue that the truck’s failure to use its warning
lights that morning was a contributing cause of the wreck. In fact, Robinson has presented
no other causation evidence other than the fog.3 So the trial court did not err by finding the
fog was the sole proximate cause of the accident.
¶37. For this reason, the trial court did not err by granting Holmes County summary
judgment based on weather-condition immunity. Miss. Code Ann. § 11-46-9(1)(q). And
because the application of weather-condition immunity necessarily includes a finding that
the weather was the sole proximate cause of the Robinsons’ injuries, the Robinsons would
not be legally entitled to recover damages from Holmes County even absent immunity. For
these reasons, the trial court also did not err by granting Brierfield summary judgment on the
Robinsons’ uninsured-motorist claim.
¶38. Accordingly, I concur in the result only.
BEAM, J., JOINS THIS OPINION. RANDOLPH, C.J., COLEMAN AND
CHAMBERLIN, JJ., JOIN THIS OPINION IN PART.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
3
While the dissent presents some interesting—and unpled—theories why the garbage
truck operator could possibly be negligent, all these theories are inextricably linked to the
fog’s presence and impact on the road conditions that morning. Simply put, the record
evidence, even when viewed in the Robinsons’ favor, points to one conclusion—no fog, no
wreck.
16
¶39. I dissent from the plurality’s finding that Robinson failed to make a prima facie case
of negligence. Robinson4 pled sufficient facts to allow this matter to proceed to a jury, and
I would reverse the lower court’s grant of summary judgment determining that fog was the
sole proximate cause of this accident in addition to its findings regarding the Mississippi Tort
Claims Act (MTCA) and Mississippi’s Uninsured Motorist Act.
¶40. The vehicle driven by Benjamin Robinson was insured under an automobile liability
insurance policy issued to his employer by Brierfield Insurance Company. The policy
included uninsured and underinsured motorist coverage. Robinson averred that he was legally
entitled to recover damages for the County’s negligence under his employer’s policy,
pleading, “to the extent that [Robinson is] barred from recovery against Holmes County”
under the Mississippi Uninsured Motorist Act, he could collect from the carrier Brierfield.5
Robinson pled that Brierfield was properly joined “in the event that the County was immune,
and therefore ‘uninsured,’ or in the event that Robinson’s damages exceeded . . . liability
under the MTCA, rendering the County ‘underinsured.’” Brierfield disputed this obligation,
arguing, inter alia, that the Robinsons are not entitled to recover uninsured motorist benefits
because they “are not ‘legally entitled to recover’ a judgment from Holmes County because
of Holmes County’s immunity.”
4
April Robinson is an additional plaintiff, having asserted a claim for loss of
consortium.
5
See Miss. Code. Ann. § 83-11-101(1) (Rev. 2011) (“No automobile liability insurance
policy or contract shall be issued or delivered . . . unless it contains an endorsement or
provisions 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 . . . .”).
17
¶41. The trial court granted summary judgment to Brierfield, thus relieving the uninsured
motorist carrier of its contractual obligation to pay the Robinsons whatever damages, if any,
they might have been due from Holmes County but for its immunity. The trial court found
that because “Holmes County was not negligent, Brierfield Insurance Company was not
liable” but also stated in its order that, as “Holmes County is immune from liability [it] is
therefore not negligent in this action” and as “Holmes County is not negligent, Brierfield is
not liable.”
¶42. With respect, the trial court’s reasoning was flawed. The court’s finding that the
County was immune from liability did not equate to the county’s not having been negligent.
The County’s cloak of immunity precluded its being liable for the payment of damages to the
Robinsons, even if its negligence was the sole proximate cause of the accident. Sovereign
immunity protects negligent governmental tortfeasors from the burden of paying damages
to those injured by their negligence. Holmes County can, at the same time, be a negligent
party and an immune party.
¶43. The trial court’s initial role was to adjudicate Holmes County’s immunity. Miss. Code.
Ann. § 11-46-13(1) (Rev. 2011) (“The judge of the appropriate court shall hear and
determine, without a jury, any suit filed under the provisions of this chapter.”). Having done
so, and having found that the County indeed was immune, the trial court was not in a position
to adjudicate the County’s negligence, or the lack thereof. That task remained for a jury’s
determination.
18
¶44. The trial court’s logic that, as “Holmes County is not negligent, Brierfield is not
liable,” is mistaken. First, the trial court should not, at that point, have undertaken to
determine whether Holmes County had been negligent in the garbage truck accident. See
Mitchell v. City of Greenville, 846 So. 2d 1028, 1029 (¶ 8) (Miss. 2003) (“The Mississippi
Legislature has determined that governmental entities and their employees shall be exempt
from liability . . . . This exemption . . . is an entitlement not to stand trial rather than a mere
defense to liability and, therefore, should be resolved at the earliest possible stage of
litigation.” (emphasis added) (citation omitted)); Lowe v. City of Moss Point, 243 So. 3d
753, 756-57 (¶ 12) (Miss. Ct. App. 2017) (“Because immunity has been established, it is
unnecessary . . . to address the parties’ alternative arguments, which were, likewise, not relied
upon or addressed by the trial court.”), cert. denied, 246 So. 3d 69 (Miss. 2018). Second, a
jury determination that Holmes County, although immune, was in fact negligent in some
degree would be the very thing that would make Brierfield liable for all or some part of the
Robinsons’ damages. But instead of submitting questions of the County’s fault and the
amount of the plaintiffs’ damages, if any, to a jury, the trial court granted summary judgment
to the uninsured motorist carrier.
¶45. Because the County was adjudicated immune under the MTCA for any negligence
claim, it became an uninsured motorist from the Robinsons’ standpoint. Providing coverage
when its insured is in an accident in which the negligent party has no coverage available is
the purpose for which Robinson’s uninsured motorist coverage had been procured.
19
¶46. By amendment of the uninsured motorist statute in 2009, “[t]he term ‘uninsured motor
vehicle’ shall [also] mean . . . . [a] motor vehicle owned or operated by a person protected
by immunity under the Mississippi Tort Claims Act . . . if the insured has exhausted all
administrative remedies under that chapter.” Miss. Code. Ann. § 83-11-103(3)(c)(vi) (Rev.
2011). As Robinson notes, “the amendment to Mississippi’s uninsured motorist statute was
a clear expression of legislative intent that uninsured motorist coverage would be available
and provide coverage to insureds notwithstanding an adverse driver’s entitlement to MTCA
immunity.”
¶47. The United States Court of Appeals for the Fifth Circuit recently addressed the
interplay between MTCA immunity and our uninsured motorist provisions, holding that
uninsured motorist benefits are not recoverable to the extent that an insured is not “legally
entitled to recover” from the tortfeasor because it has immunity under the MTCA. McGlothin
v. State Farm Mut. Ins. Co., 925 F.3d 741, 747-49 (5th Cir. 2019) (quoting Miss. Code.
Ann. § 83-11-101(1) (Rev. 2011)). The federal appeals court’s interpretation of our statute,
while interesting, is not binding upon this Court. We have not spoken on this issue, and it is
before us now.
¶48. Other states’ courts have considered the relationship between sovereign immunity and
their uninsured motorist statutes. See, e.g., Tinsley v. Worldwide Ins. Co., 442 S.E.2d 877,
879 (Ga. Ct. App. 1994) (“[I]t would defeat the intent and purpose of the Act if the appellee
were allowed to escape liability because of the defendants’ discharge from this litigation
under the doctrine of sovereign immunity.”); Losiniecki v. Am. States Ins. Co., 610 N.E.2d
20
878, 880 (Ind. Ct. App. 1993) (“[Plaintiff] fails to establish that he is legally entitled to
recover damages from [the] Officer . . . . Indiana Code Section 34-4-16.5-3(7) [the Indiana
Torts Claims Act statute] precludes [the plaintiff’s] right of action against [the officer] and,
thus, his legal entitlement to recovery of uninsured motorist benefits.”).
¶49. For instance, the North Carolina Court of Appeals, construing North’s Carolina’s
statutory parameters defining “uninsured motor vehicle[s],” found that
[p]erhaps most importantly, the nature of the UM statute is remedial and
therefore should be liberally construed to accomplish the beneficial purpose
intended by the General Assembly. The purpose of the statute is to provide
some financial recompense to innocent persons who receive bodily injury or
property damage due to the negligence of uninsured motorists or those
unidentified drivers who leave the scene of an accident, i.e., those who cannot
be made to respond to damages.
Williams v. Holsclaw, 495 S.E.2d 166, 171 (N.C. Ct. App. 1998) (citations omitted).
¶50. Discerning a party’s ability to receive uninsured motorist benefits confronted with a
defendant shielded by sovereign immunity, the court could not countenance the “patent
inequity of depriving an insured party of the benefit of his or her UM premium.” Id.
Accordingly, the Williams plaintiffs could pursue recovery of their damages from their
uninsured motorist carrier after the court had determined that the government tortfeasors
constituted “uninsured motor vehicle[s].” Id. at 170-71 (“Barring compensation to injured
motorists based solely on the fortuity of being rear-ended by a ‘municipal’ vehicle is contrary
to the remedial purpose of the UM statute. Moreover, precluding UM coverage in the present
case in no way advances the rationale supporting the doctrine of sovereign immunity.”).
21
¶51. As such courts determined when faced with both uninsured motorist recovery and
sovereign immunity, I also find that “the patent inequity of depriving an insured party of the
benefit of his or her UM premium is self-evident.” Id. at 171. With due respect for the Fifth
Circuit’s Erie6 guess, that Section 83-11-103(1) (Rev. 2011) governs uninsured motorist
recovery to the extent that the insured “shall be legally entitled to recover,” Section
83-11-103 (Rev. 2011) clearly defines MTCA-immune vehicles as “uninsured motor
vehicles.” Miss. Code. Ann. § 83-11-103(3)(c)(iv) (Rev. 2011). This plain language codifies
the Legislature’s intent to protect our state’s traveling public who incur damages in accidents
with immune motorists. In the face of this express statutory provision, it strains credulity to
preclude recovery under an uninsured motorist policy solely because the other party is a
government entity. It would be unconscionable to allow a private insurance company,
desiring to protect itself from providing coverage under a duly issued uninsured motorist
policy, to reap a windfall by cloaking itself in MTCA immunity, especially if the immune
entity could be found negligent in whole or in part. See Lawler v. Gov’t Emps. Ins. Co., 569
So. 2d 1151, 1154 (Miss. 1990) (“Quite simply, the nonprotection advocated by the trial
court is contrary to the statutory language and the recognized purpose of our UM act. Our
jurisprudence holds that we must enforce our UM Coverage Act as a valid expression of our
6
“We must determine whether the two provisions of Mississippi’s UM Act [Section
83-11-103(1) (Rev. 2011) and Section 83-11-103(3)(c) (Rev. 2011)] are repugnant. . . . The
Mississippi Supreme Court has not decided . . . . [a]nd, to make our Erie guess far more
difficult, neither has the Mississippi Court of Appeals.” McGlothin, 925 F.3d 741, 745-46
(citing Erie R.R. v. Tompkins, 304 U.S. 64, 78-79, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).
22
legislature’s interest in protecting innocent victims injured at the hands of financially
irresponsible drivers. In recognizing this valid expression, we have consistently construed
the Act to provide, not limit, protection.”).
¶52. If Robinson had been able to litigate a claim against Holmes County under the MTCA,
a bench trial would have ensued. The circuit judge would have decided issues of fact as well
as questions of law. But the trial court’s ruling that Holmes County was immune from civil
liability to Robinson meant that there would be no trial under the procedures unique to the
MTCA, one of which is that there is no jury in tort claims trials against Mississippi
governmental entities. One inescapable effect of the trial court’s ruling that Holmes County
is immune was that Robinson then could proceed to a jury trial against the remaining
defendant, the uninsured motorist insurance carrier, which clearly is a private entity, not an
immune governmental one. See Daniels v. Hetrick, 595 S.E.2d 700, 702 (N.C. Ct. App.
2004) (“In cases where the alleged tortfeasor is dismissed from the action based upon
governmental immunity it is appropriate for the plaintiff to proceed against her own
uninsured motorist’s coverage.” (citing Williams, 495 S.E.2d 166)).
¶53. Even though the trial judge opined that “the fog was the sole proximate cause of the
accident,” that observation is of no import, because it invaded the province of the jury as the
factfinder with respect to claims against any defendant to whom MTCA protection does not
apply—here, the uninsured motorist insurance carrier. The trial court’s finding that Holmes
County was immune from civil liability does not mean that Holmes County was in nowise
negligent. The import of that ruling is that, even if Holmes County was negligent, it is
23
immune from civil liability. In the jury trial against the uninsured motorist carrier, it is for
the jury to decide who, if anyone, was negligent. A jury might well determine that Holmes
County was negligent; but, even so, the jury could not render a verdict against Holmes
County due to its immune status. See Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107, 1114
(¶ 26) (Miss. 2003) (“Fault and liability are not synonyms. . . . Immunity from liability does
not prevent an immune party from acting or omitting to act. Rather, immunity shields that
party from any liability stemming from that act or omission. There is nothing logically or
legally inconsistent about allocating fault but shielding immune parties from liability for that
fault.”).
¶54. Even if Holmes County carried liability insurance on its garbage truck, the trial court’s
decision that the County is immune rendered that coverage unavailable to Robinson. So, in
effect, Holmes County became an uninsured motorist when it prevailed on its immunity
defense. This is abundantly clear in light of Section 83-11-103(3)(c). The trial court’s
declaration of the County’s immunity triggered the uninsured motorist coverage of the
vehicle being driven by Benjamin Robinson.
¶55. Because the plurality does not acknowledge the issue of uninsured motorist recovery,
and instead finds that there is no genuine issue of material fact that Robinson alone was
negligent, I proceed to address this singular basis for affirming summary judgment here. Our
decision in Robertson v. Welch is cited by the plurality to support its assertion that “the only
evidence of any type of negligence is of Robinson’s running into the rear end of the garbage
truck in blinding fog.” Pl. Op. ¶ 10. See Robertson v. Welch, 242 Miss. 110, 119, 134 So.
24
2d 491, 494 (1961) (“[This] conduct stands out as a glaring instance of unadulterated
carelessness and negligence.”).
¶56. To the contrary, “[t]his Court has never adopted a per se rule that the driver of the
following car is negligent if he collides with the rear of a preceding vehicle, nor [should] we
in this case.” White v. Miller, 513 So. 2d 600, 601 (Miss. 1987). See, e.g., Clark v.
McCorkle, 252 So. 3d 603, 608 (¶ 22) (Miss. Ct. App. 2017) (plaintiffs in following car
“presented sufficient evidence showing that genuine issues of material fact precluding
summary judgment exist as to . . . whether the fog constituted an unusually dangerous
condition”) cert. denied, 250 So. 3d 1269 (Miss. 2018); Jamison v. Barnes, 8 So. 3d 238,
245 (¶ 20) (Miss. Ct. App. 2008) (“[T]here is a genuine issue of material fact as to whether
[the driver of the following car] was negligent because he should have seen the tractor in
time to avoid or mitigate the accident.”).
¶57. A summary assignment of 100 percent of the negligence to Robinson overlooks
Mississippi’s status as a comparative negligence state. See Miss. Code. Ann. § 11-7-15 (Rev.
2011); Burton ex rel. Bradford v. Barnett, 615 So. 2d 580, 582 (Miss. 1993) (“Where
negligence by both parties is concurrent and contributes to injury, recovery is not barred
under such doctrine, but plaintiff’s damages are diminished proportionately, even to the
extent that negligence on the part of the plaintiff was ninety percent (90%) and on the part
of the defendant was ten percent (10%) . . . .” (emphasis added)); Blackmon v. Payne, 510
So. 2d 483, 486 (Miss. 1987) (“Even though a plaintiff might have been negligent, he might
25
still recover from a defendant whose negligence proximately caused or contributed to the
plaintiff’s injuries.” (citing Evans v. Journeay, 488 So. 2d 797, 799 (Miss. 1986))).
¶58. Whether a defendant was negligent and, if so, to what extent, are issues for a jury’s
consideration. Spann v. Shuqualak Lumber Co., 990 So. 2d 186, 190 (Miss. 2008) (¶ 13)
(“Whether the weather or the steam was the cause-in-fact of the accident is a question within
the province of a jury.”). With regard to automobile accidents, “if a jury can properly find
that failure to maintain a proper lookout could render either driver guilty of negligence, then
logically it should follow that both drivers could potentially have been negligent, and the jury
[is] entitled to the option of apportioning fault or damages between the two parties.” Wansley
v. Brent, 80 So. 3d 125, 128 (¶ 13) (Miss. Ct. App. 2011).
¶59. Here, I would find that the trial court erred by keeping this case from a jury. The trial
court found, but later amended its holding, that Holmes County “should be granted liability
on all grounds.” The order did provide additional findings regarding the grant of summary
judgment respecting legal cause and immunity, holding
[t]herefore, the County is granted immunity under the discretionary function
of the MTCA, no sufficient evidence has been offered to dispute that the fog
was the sole cause of the accident, and this was not an open and obvious
danger and a flagman was required to be on the scene, the lack of a flag man
is a discretionary decision for which the Defendants are granted immunity
from liability.
¶60. The order was amended under Mississippi Rule of Civil Procedure 60(b) “to state that
Holmes County should be granted immunity on all grounds.” Further, the revised order
stated, “it was the Court’s intent to rule that Holmes County was granted summary judgment
because the fog was the sole proximate cause of the accident, and not having a flagman was
26
a discretionary function in which Holmes County is immune and is therefore not negligent
in the accident.”
¶61. I would reverse this decision because Robinson presented viable claims that could
permit a reasonable jury to find Holmes County negligent to some degree. Obviously, the
presence of a garbage truck stopped or slowly moving in a traffic lane of a two-lane state
highway, obscured by thick fog, very well may pose some risk to other motorists. The
traveling public is as much entitled to use the roads as the county garbage truck, and, whether
the road is public or private, every motorist is bound to fulfill the duties owed to others. See,
e.g., Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 144, 141 So. 2d 226, 230 (1962)
(“This Court has pointed out in highway accident cases that it is the duty of an automobile
driver to keep his automobile under control and to keep a lookout in the direction in which
he is proceeding, and must at all times be vigilant and anticipate and expect the presence of
others and cannot assume that the way is clear.”). A reasonable factfinder could find that it
was foreseeable to Holmes County that approaching motorists would not be able to see a
garbage truck clearly in blinding fog, if at all. A jury could find that Holmes County failed
to exercise reasonable care by operating its garbage truck under these conditions. See Ready
v. RWI Transp., LLC, 203 So. 3d 590, 594 (¶ 9) (Miss. 2016) (“While duty and causation
both involve a foreseeability analysis, duty is an issue of law, and causation is generally a
matter for the jury.” (citing W. Page Keeton et al., Prosser & Keeton on Torts § 37, 236 (5th
ed. 1984))). Reasonable jurors could conclude that Holmes County’s sending its garbage
truck and crew to collect garbage in a blinding fog was, in and of itself, negligent.
27
¶62. While both parties were entitled to use of the road, they were obligated to use it safely,
with due regard for the safety of others. A jury could have found it foreseeable that the risk
of collision could have been lessened significantly if the garbage truck had waited until the
fog had dissipated, allowing it better and safer visibility.
¶63. The trial court found that Robinson could not produce sufficient evidence to dispute
that the fog was the sole cause of the accident; but that determination by the court invaded
the jury’s province as the sole finder of fact. Spann, 990 So. 2d at 190 (¶ 13) (“[T]he
cause-in-fact of the accident is a question within the province of a jury.”); Clark, 252 So. 3d
at 607 (¶ 21) (“[F]actual question[s] exist[] as to the presence of an emergency or unusual
condition.” (citing White, 513 So. 2d at 601)). While Robinson did say that the fog
contributed to the accident, that is but one factor for a jury to take into account in assigning
and/or apportioning fault.
¶64. The Robinsons are entitled to a jury trial. They are entitled to adduce whatever proof
they can that the negligence, if any, of Holmes County, proximately caused or contributed
to the accident and their resulting damages. In such a trial, Holmes County would be
defended by the uninsured motorist carrier. If the Robinsons were to prevail in such a trial,
a verdict for money damages in their favor would be paid by that carrier up to the limits of
its coverage.
¶65. That is the way that uninsured motorist coverage is supposed to work. The owner of
the vehicle that Benjamin Robinson was driving had made provision for the payment of civil
claims for damages on behalf of persons using that vehicle when those damages occurred by
28
the negligence of motorists without collectible liability insurance coverage. Here, even
though Holmes County may have purchased liability insurance coverage, it became
inaccessible to the Robinsons when the county’s immunity was established by the trial
judge’s ruling. Thus, to the Robinsons, the garbage truck was uninsured.
¶66. Accordingly, I would also reverse the grant of summary judgment as to Brierfield
and remand this case for a jury trial.
GRIFFIS, J., JOINS THIS OPINION.
29