Cotton v. Paschall

782 So. 2d 1215, 2001 WL 107863
CourtMississippi Supreme Court
DecidedFebruary 8, 2001
Docket1999-CA-00498-SCT
StatusPublished
Cited by8 cases

This text of 782 So. 2d 1215 (Cotton v. Paschall) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotton v. Paschall, 782 So. 2d 1215, 2001 WL 107863 (Mich. 2001).

Opinion

782 So.2d 1215 (2001)

Gregory COTTON and Tammy Cotton
v.
Barbara PASCHALL.

No. 1999-CA-00498-SCT.

Supreme Court of Mississippi.

February 8, 2001.
Rehearing Denied May 3, 2001.

Robert P. Myers, Jr., Joe Sam Owen, Gulfport, Attorneys for Appellants.

Jessica S. Upshaw, Robert E. Briggs, Gulfport, Attorneys for Appellee.

EN BANC.

COBB, Justice, for the Court:

¶ 1. Gregory and Tammy Cotton filed suit against the Pass Christian Public School District and Barbara Paschall pursuant to the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to 23 (Supp.2000). Paschall was the driver of a school bus which collided with Gregory Cotton, who sustained various injuries. The Harrison County Circuit Court, Second District, dismissed the school district, finding that it was not served with process within 120 days of the filing of the Cottons' complaint. No appeal was taken from this decision of the trial court.

¶ 2. The trial court also dismissed Paschall, finding that she was acting in the course and scope of her employment with the school district and thus was immune from liability. The Cottons' Motion to Reconsider was denied. Aggrieved, the Cottons timely filed a notice of appeal to this Court, raising the following issues:

I. WHETHER THE TRIAL COURT PROPERLY GRANTED THE MOTION TO DISMISS FILED BY *1216 THE DEFENDANT, BARBARA PASCHALL.
II. WHETHER THE TRIAL COURT PROPERLY DENIED THE MOTION FOR RECONSIDERATION OF THE COURT'S EARLIER ORDER DISMISSING THE DEFENDANT, BARBARA PASCHALL.
III. WHETHER A CAUSE OF ACTION EXISTS AGAINST AN EMPLOYEE OF A POLITICAL SUBDIVISION FOR NEGLIGENT ACTIONS OCCURRING WITHIN THE SCOPE OF HIS/HER EMPLOYMENT, TO THE EXTENT THE EMPLOYEE IS COVERED AND WILL BE INDEMNIFIED BY AN INSURANCE POLICY MAINTAINED BY THE POLITICAL SUBDIVISION.

¶ 3. Paschall's response raised the following issue:

I. WHETHER A PLAINTIFF CAN SUE A GOVERNMENTAL EMPLOYEE IN HER INDIVIDUAL OR REPRESENTATIVE CAPACITY FOR ALLEGED ACTS OF NEGLIGENCE COMMITTED IN THE COURSE AND SCOPE OF EMPLOYMENT WITHOUT FIRST JOINING THE GOVERNMENTAL EMPLOYER.

¶ 4. We agree that the trial court properly dismissed Paschall, and we affirm the trial court's judgment.

STATEMENT OF FACTS

¶ 5. On September 16, 1996, a Pass Christian Public School District bus driven by Paschall collided with a vehicle driven by Gregory Cotton. A notice of claim letter was sent to Dr. Philip Terrell of the Pass Christian Public School District (school) on May 19, 1997, and the compliance with the notice of claim requirements of the MTCA is not at issue.

¶ 6. The Cottons' complaint, filed on August 18, 1997, contained the usual request for service of process on both the school district and Paschall, but there was no record that service of process was ever completed on the school district. On May 5, 1998, the school district made a special appearance and filed a Motion to Dismiss for failure to comply with Miss.R.Civ.P. 4(h) and the applicable statute of limitations. On that same day, without a hearing, the court dismissed the school district with prejudice.

¶ 7. The Cottons filed a motion to rescind or amend, requesting an opportunity to present the court with proof of good cause as to why service was not made within the specified time. The court granted the motion to rescind and amend but again found that the Cottons failed to serve the school district within 120 days of filing the complaint and that Rule 4(h) required dismissal of the school district, changing only one provision, to state that the dismissal was granted without prejudice. Apparently no record was made of the hearing, nor of the judge's analysis by which he determined that the Cottons had not shown good cause for failure to timely serve the school district.

¶ 8. Court documents indicate that Paschall was personally served with the summons and complaint on February 1, 1998, which was also past the 120 days allowed by Miss.R.Civ.P. 4(h). However, Paschall did not limit her appearance and acknowledged receipt of the complaint in her answer filed on March 2, 1998. Subsequently, Paschall filed a Motion to Dismiss, and following a hearing on the motion, the judge dismissed Paschall, finding that she was immune from liability because the school district had been dismissed and because she was an employee in the course and scope of her employment as a bus *1217 driver with the Pass Christian School District at the time the accident occurred. The court denied the Cottons' Motion for Reconsideration. Aggrieved, the Cottons timely filed an appeal with this Court.

¶ 9. Although the Cottons' statement of the issues listed three separate issues, their argument only addressed Issue III, which we find to be dispositive. We affirm the judgment of the trial court.

DISCUSSION

WHETHER A CAUSE OF ACTION EXISTS AGAINST AN EMPLOYEE OF A POLITICAL SUBDIVISION FOR NEGLIGENT ACTIONS OCCURRING WITHIN THE SCOPE OF HIS/HER EMPLOYMENT, TO THE EXTENT THE EMPLOYEE IS COVERED AND WILL BE INDEMNIFIED BY AN INSURANCE POLICY MAINTAINED BY THE POLITICAL SUBDIVISION.

STANDARD OF REVIEW

¶ 10. The court's decision involves the interaction of the dismissal of both parties. "When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Butler v. Board of Supervisors, 659 So.2d 578, 581 (Miss.1995). Questions of law are reviewed de novo, and the reviewing court will reverse if the law has been applied or interpreted erroneously. Mississippi Transp. Comm'n v. Fires, 693 So.2d 917, 920 (Miss.1997). The order disposing of the motion for reconsideration was a final judgment for purposes of appeal. Pruett v. Malone, 767 So.2d 983 (Miss.2000); Belhaven Improvement Ass'n, Inc. v. City of Jackson, 507 So.2d 41, 45 (Miss.1987).

¶ 11. The District, a governmental entity, was dismissed from the lawsuit. This decision was not appealed by the Cottons. Subsequently, Paschall was dismissed on her motion which declared that she was immune from liability under the MTCA, specifically § 11-46-7, which states that employees of governmental entities are immune from liability for acts or omissions within the course and scope of their employment. The court ruled that Paschall cannot be held personally liable and should be dismissed. The Cottons agree that an employee acting within the course and scope of her employment is immune from personal liability, but argue that a judgment may be taken against an employee and that the judgment must be satisfied by the employing governmental entity, citing Miss.Code Ann. § 11-46-15(2), as well as § 11-46-7(3) & (8) in support of their argument that a judgment may be taken against an employee, even in his representative capacity. There is record of a liability policy in existence and argument was presented to the court concerning this issue.

¶ 12. This Court has previously held that "[t]he purchase of insurance does not affect potential defenses under Miss.Code Ann. § 11-46-9." Leslie v. City of Biloxi, 758 So.2d 430, 434 (Miss.2000).

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Cite This Page — Counsel Stack

Bluebook (online)
782 So. 2d 1215, 2001 WL 107863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotton-v-paschall-miss-2001.