The 5th Circuit Court of Appeals recently issued a decision in McGlothin vs. State Farm Mutual Insurance Company interpreting the Mississippi Uninsured Motorists (UM) statute and its application to auto accidents involving governmental employees operating government vehicles. The opinion addresses the definition of an uninsured motor vehicle when the Mississippi Tort Claims Act (MTCA) immunizes the driver.  In 2009, the definition “uninsured motor vehicle” was changed to include a vehicle that was owned or operated by a person who was protected by immunity under the MTCA. 

However, the UM statute also provides that policy benefits are only paid in situations where the insured “shall be legally entitled to recover” from the owner or operator of an uninsured motor vehicle. 

Thus, it was argued that there is an apparent conflict between these two provisions. If the MTCA immunizes the at-fault parties, how can the insured be legally entitled to recover?  The federal district court indeed held that the two provisions were “repugnant” and that the new 2009 definition acted as an exception to the standard rule.   The Fifth Circuit reversed that decision, and held that no UM benefits are due when both the driver and his employer are immune under the MTCA.

Under the MTCA, there are situations where the driver/employee is immune but his employer is not.  For example, if a police officer is recklessly pursuing a suspect and causes an accident, the officer still personally receives immunity, but the City does not (due to his reckless disregard for the rights of others).  In this situation, the since the insured is legally entitled to recover against the City, the vehicle can still be considered an uninsured motor vehicle.  However, in situations where the City or County is also immune, then the insured is not entitled to recover from them, and no UM benefits can be paid (under the statute).   Another example is if the city garbage truck or utility vehicle is involved in an accident.  There is no immunity for these types of accidents at least as it applied to the government entity (the employee is still immune, however).  So, if a run-of-the-mill city or county employee is involved in an accident (and not in the performance of police or fire duties), the city or county can be liable under the MTCA.

No Mississippi appeals court has ruled on the issue.  Nevertheless, this ruling adds an additional step in determining under what circumstances a governmental entity is liable for an accident.  When it can be liable, UM is available.  When both the government entity and its employee are protected by immunity, the UM Statute precludes recovery of UM benefits. 

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