Powell v. Clay County Bd. of Supervisors, et al.
| Docket Number: | 2005-CA-00018-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 03-16-2006 Opinion Author: Cobb, P.J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Wrongful death - Tort Claims Act - Liability insurance - Section 11-46-9(1)(m) - Malice Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Graves, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 12-09-2004 Appealed from: Clay County Circuit Court Judge: James T. Kitchens, Jr. Disposition: Granted summary judgment in favor of Appellee Case Number: 98-0005 |
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| Party Name: | Attorney Name: | |||
| Appellant: | GEORGE POWELL, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
LORENZO POWELL |
ANGELA TURNER LAIRY
BENNIE L. TURNER |
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| Appellee: | CLAY COUNTY BOARD OF SUPERVISORS, LADDIE HUFFMAN, IN HIS OFFICIAL CAPACITY AS SHERIFF OF CLAY COUNTY, MISSISSIPPI, AND CARL PIERCE | BENJAMIN E. GRIFFITH CHRIS POWELL |
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| Topic: | Wrongful death - Tort Claims Act - Liability insurance - Section 11-46-9(1)(m) - Malice |
| Summary of the Facts: | Lorenzo Powell, a state inmate, died after falling off the back of a garbage truck owned by Clay County. 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; and Pierce. The circuit court granted summary judgment in favor of Clay County, and the Estate appeals. |
| Summary of Opinion Analysis: | Powell’s Estate argues the County waived governmental immunity by a provision in its liability insurance contract with Coregis Insurance Company. However, the purchase of insurance does not operate as a waiver of sovereign immunity, nor does it hinder any exclusions or exemptions from liability. Powell’s claim is barred by the plain language of section 11-46-9(1)(m), and the court did not err when it so found. The Estate also argues there is enough evidence in the record to show that Pierce acted with malice, and therefore acted outside the scope of employment. 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. |
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