IN THE MISSISSIPPI COURT OF APPEALS

Transcription

1 E-Filed Document Jul :53: CA SCT Pages: 22 No.2014-CA-OI CA IN THE MISSISSIPPI COURT OF APPEALS State of Mississippi, ex. rel. rei. Mississippi Bureau of Narcotics v. APPELLANT Ronnie Burton APPELLEE REPLY BRIEF OF APPELLANT, MISSISSIPPI BUREAU OF NARCOTICS Appealed from the Circuit Court of the First Judicial District of Hinds County Filed By: Tommy Whitfield Attorney for the Appellant Mississippi Bureau of Narcotics MSB # Lakeland East, Suite 200 Flowood, Mississippi (601) Oral Arguments Are Not Requested

2 CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. Ronnie Burton Appellee/Plaintiff Carlos Moore Aafram Sellers Counsel for Appellee!Plaintiff The Mississippi Bureau of Narcotics Appellant/Defendant Tommy Whitfield John T. Kitchens MarkD. Ray Counsel for Appellant/Defendant Mississippi Bureau of Narcotics City of Jackson, Mississippi Appellant/Defendant Billy Jade "Jay'' Albright Appellant/Defendant Lora Gill Peter Teuwisson Lashunda Jackson-Winters Monica Joiner Counsel for Appellant/Defendant City of Jackson, Mississippi Counsel for Appellant/Defendant Billy Jade "Jay" Albright Hinds County, Mississippi Appellant/Defendant Jason E. Dare J. Lawson Hester Counsel for Appellant/Defendant Hinds County, Mississippi Isl Tommy Whitfield Tommy Whitfield Attorney for Appellant/Defendant Mississippi Bureau of Narcotics 1

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES.... TABLE OF CONTENTS... ii TABLE OF AUTHORITIES....iii ARGUMENT IN REPLY TO APPELLEE BRIEF I. Plaintiff does not respond directly to the MBN's argument that the trial court erroneously held both MBN liable and Officer Albright individually liable... 1 II. The Plaintiff misconstrues the Mississippi Tort Claims Act in her response... 2 III. The Verdict was against the overwhelming weight of the evidence... 6 IV. The Plaintiff's expert Lloyd Grafton was improperly allowed to give testimony outside of his area of expertise that directly influenced the trial courts opinion... 7 V. Mississippi Law does not allow for prejudgment interest, regardless of whether the Plaintiff pled for it in his prayer for relief CONCLUSION CERTIFICATE OF SERVICE... 11,12 11

4 TABLE OF AUTHORITIES State Cases Amerson v. State, 648 So.2d 58 (Miss. 1994)... 6 Bridges v. Pearl River Water Supply District, 793 So.2d 584 (Miss. 2001)... 3 City of Jackson v. Presley, 40 So.3d 520 (2010)... 6 City of Jackson v. Sandifer, 107 So.3d 978 (Miss. 2013)... 5,6 Collins v. Tallahatchie County, 876 So.2d 284 (Miss.2004)... 3 Dancy v. East Miss. State Hosp., 944 So.2d 10 (Miss. 2006)....3 Doolie v. State, 856 So.2d 669 (Miss. Ct. App. 2003) Estate of Carr ex rei. Macjield v. City of Ruleville, 5 So. 3d 455 (Miss. ct. App. 2008)... 3,4 Evans v. State, 547 So.2d 38 (Miss. 1989)... 6 Harris v. McCray, 867 So.2d 188 (Miss. 2003) L. W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999)... 3 Mason v. State, 799 So.2d 884 (Miss Ct. App. 2001)... 6 Willing v. Estate of Benz, 958 So. 2d 1240, 1250 (Miss. ct. App. 2007)... 2 State Statutes Miss. Code Miss Code Miss. Code (1)... 2, 4 Mississippi Code

5 REPLY ARGUMENT I. Plaintiff does not respond directly to the MBN's argument that the trial court erroneously held both MBN liable and Officer Albright individually liable. In the trial court's opinion order, the Court found Mississippi Bureau of Narcotics ("MBN") liable and also found Officer Albright liable in his individual capacity. This position is contrary to applicable law. The only way a governmental employee may be found individually liable is ifhe is acting outside of the course and scope of his employment. By the same token, if he is acting outside the course and scope of his employment, the government entity MBN has not waived sovereign immunity under the MTCA. In the Plaintiffs reply briefto the City of Jackson and Officer Albright, they argue that "the trial court properly found Appellant Albright liable for his actions when he acted outside ofthe course and scope of his employment to harm Appellee." See Plaintiffs Brief to City of Jackson, pg 20. Plaintiff goes on to state that the actions ofthe Officer Albright were "both inside and outside the course and scope of his employment during the entire altercation on September 12,2008."!d. This position is untenable in that Officer Albright is either in or out of the course and scope of his employment. The State, through the MTCA has provided a limited waiver of sovereign immunity, and only for "claims for money damages arising out of torts of such governmental entities, and the torts of their employees while acting within the course and scope of their employment." Miss. Code The State has not waived sovereign immunity for the torts of employees acting outside the course and scope of their employment. See Miss. Code Therefore, MBN cannot be held liable, and is not vicariously liable for any actions of Officer Albright while he is acting outside the course and scope of his employment. The trial judge held that the actions of Officer Albright in his opinion order were outside of the course and 1

6 scope of his employment and found him individually liable. Due to this finding, MBN cannot be held liable as a matter oflaw. II. The Plaintiff misconstrues the Mississippi Tort Claims Act in her response. In the Plaintiff s response brief, he claims that the MBN is not entitled to discretionary function immunity because the trial court found reckless disregard. See Plaintiff s brief at p. 12. Defendant MBN in its original brief argued that it was entitled to immunity under two separate provisions of the MTCA. The first being the discretionary function immunity under Mississippi Code ( d), and the second being the police protection immunity under (c). If either section applies, the MBN is immune from suit as a matter oflaw. Plaintiff in his brief concedes that the decision by Officer Albright involved an element of choice. See Plaintiffs Brief at p. 12. While Plaintiffterms the decision as one of disregarding the Use of Force Policy of the City of Jackson, the decision is more simply how the officers chose to execute the search warrant and whether or not to use lethal force to protect himself and his fellow officers from deadly force being used against them. A. Discretionary Function Immunity Without any record support or authority in his response, the Plaintiff states that the discretionary function immunity does not apply because the trial court found that Defendant Albright acted with reckless disregard. However, the reckless disregard standard only applies to the police function immunity under ( c). This Court has held that "in determining whether an act or omission falls within the immunity granted by section (1)( d), the relevant inquiry begins and ends with the determination of whether the conduct complained of was discretionary." Willing v. Estate a/benz, 958 So. 2d 1240, 1250 (Miss. Ct. App. 2007). The 2

7 Mississippi Supreme Court has held that the discretionary function immunity abrogates the duty to exercise ordinary care when performing or failing to perform a discretionary function, "whether or not that discretion be abused." Collins v. Tallahatchie County, 876 So.2d at 289(~ 17). The Collins court held that: "When an official is required to use his own judgment or discretion in performing a duty, that duty is discretionary... The ordinary care standard is not applicable to Miss.Code Ann (1)( d)." Id. at 289(~ 17) (internal citations omitted). Since the reckless disregard standard does not apply to the discretionary function immunity, the inquiry turns to whether the actions of the agents, especially Officer Albright, were discretionary. In determining whether governmental conduct is discretionary[,] the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic[,] or political policy alternatives." Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588(~ 15) (Miss.2001). Regarding the first question, we must determine whether the function is discretionary or ministerial. Dancy v. East Miss. State Hosp., 944 So.2d 10, 16(~ 19) (Miss.2006). The supreme court has held that a function or duty is discretionary "[ w ]hen an official is required to use his own judgment or discretion in performing a duty..." Harris v. McCray, 867 So.2d 188, 191(~ 12) (Miss.2003). A function is considered ministerial "[ifj the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion." L. W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141(~ 22) (Miss. 1999). In Estate of Carr ex rei. v. City of Ruleville, 5 So.3d 455 (Miss. Ct. App. 2008), the Court affirmed the Trial Court which held that: 3

8 The decision of how to execute a warrant includes an analysis of basic investigative decisions, including, the decision of what type of investigation to conduct prior to the execution of the warrant, considerations of resources, risk, and danger, the urgency of capturing the subject, and whether to execute the warrant at night or during the day, inside or outside of a house, and with or without force. All of which involved profoundly difficult policy or judgment considerations... The claims herein asserted arise from the performance of discretionary functions, the City of Ruleville has sovereign immunity for the claims asserted by the Plaintiff by virtue of Miss.Code Ann (1)( d). Because the Court found that the discretionary function immunity applied, the Court did not even consider the police function immunity under (c).!d. The decision by the officers and agencies in what investigation to conduct, when to obtain the search warrant, when to execute the search warrant, what force was required to execute the warrant are all discretionary functions in accord with Estate of Carr. Therefore, the discretionary function immunity applies and MBN is immune from suit by the Plaintiff. B. Police Protection Immunity The crux of the Plaintiff's argument is that Defendant Albright acted with reckless disregard because he "fired his weapon toward a group of individuals, at night, in a residential neighborhood, from a moving vehicle, with no one posing an imminent threat to the officers or others present at the scene." See Plaintiff's Brief at p. 12 (emphasis added). The Plaintiff provides no citations to any record evidence to support this position. In fact, the Plaintiff goes to great lengths to ignore the undisputed facts at trial. When the JET team approached 6460 Lyndon Johnson Drive to execute the search warrant on the residence, it is undisputed that persons under the carport opened fire on the approaching police officers. It is also undisputed from trial that the Plaintiff did not know who opened fire first, who shot him, or where he was when he was shot. (R. V. 10 pp ). 4

9 It is undisputed from trial that at least five rounds were fired from the carport area toward the police from two different guns and one bullet struck the lead vehicle in the passenger door where agent Ronald Rhodes was sitting. (R. V. 12 pp ). Officer Albright was reasonable in his assertion that the persons under the carport posed an imminent threat to his safety and to that of his fellow officers; and therefore, as a matter of law officer Albright's actions in returning fire were objectively reasonable. In addition, the recovered projectile from the lead police vehicle, which hit the door close to Agent Rhodes, was matched to the Bersa 9mm firearm recovered from the carport of 6460 Lyndon Johnson Drive. (R. Tr. Ex. 26, R.E ). The opinion order from the lower court found that the officers acted in reckless disregard, but the Court completely discounted the physical evidence of the recovered projectiles, made no mention of the undisputed facts that shots were fired from the house at the officers, and that officer Albright returned fire in an effort to protect himself and his fellow officers from imminent bodily harm. Based on the totality of the circumstances and the record evidence, the officers were confronted with deadly force as they approached 6460 Lyndon Johnson Drive. It was only after the group of individuals, which included the Plaintiff and which he claims posed no imminent threat, began shooting at the approaching officers, did Officer Albright return fire. In addition, based on the totality of the circumstances, the Plaintiff is still unable to say whether he was shot by Officer Albright or one of his associates during the crossfire. Further, the Plaintiff argues that there was reckless disregard because Officer Albright allegedly violated the General Orders and Use of Force Policy of the Jackson Police Department. The Supreme Court has rejected this approach for determining reckless disregard. In City of Jackson v. Sandifer, the Court held that the "Sandifer have pointed to no authority that would 5

10 support a finding that Clark's or Talton's alleged violation of JPD general orders or policies would constitute reckless disregard, and this Court has recently rejected such an argument." City of Jackson v. Sandifer, 107 So.3d 978 (2013) (Citing City of Jackson v. Presley, 40 So.3d 520 (20 I 0) (finding plaintiff and court of appeals cited no authority for the proposition that a violation of an internal police operating procedure constitutes reckless disregard.) While the case law specifically rejects this approach, Plaintiff continues to argue for its application to show reckless disregard and not taking into account that the Officers were confronted with and responded to deadly force upon their arrival 6460 Lyndon Johnson Dr. III. The Verdict was against the overwhelming weight of the evidence. The standard of review for a judgment entered following a bench trial is well settled. In a bench trial, the trial judge is "the jury" for all purposes of resolving issues of fact. Evans v.state, 547 So.2d 38, 40 (Miss. 1989). "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." DooUe v. State, 856 So.2d 669, 671 (~ 7) (Miss.Ct.App.2003) (citing Mason v. State, 799 So.2d 884, 885 (~ 4) (Miss.Ct.App.2001) (quotations omitted)). "The Mississippi Supreme Court has stated that: "[ fjor review of the findings of a trial judge sitting without a jury, [the appellate court] will reverse 'only where the findings of the trial judge are manifestly erroneous or clearly wrong.' " Amerson v. State, 648 So.2d 58, 60 (Miss. 1994). In its Appellant Brief, MBN listed numerous instances of the trial court's ruling and findings of fact that were unsupported in the record at trial. The Plaintiff in his response makes no response or citation to any authority or record support of his position other than the trial court's opinion order. See Plaintiffs Response Brief to MBN at p. 13. In its brief, MBN cited 6

11 numerous instances of undisputed facts that showed the erroneous conclusions of the trial courts opinion order which included: 1) The Plaintiff did not know whether he was shot by the police or one of his associates. [T.T ]. 2) The Plaintiff was carrying a weapon, drew his weapon, but was unable to fire his weapon because the magazine fell out. [T. T. 36]. 3) The opinion order found that there was no imminent threat to the officers, however, the physical evidence as well as the testimony of the officers showed that at least five rounds were fired by the persons under the carport which included the Plaintiff, and one of the bullets struck the police vehicle next to one of the agents. (R. Tr. Ex. D.26, R.E ). The Plaintiff failed to address these facts from the record and merely recited the Courts opinion order. The record evidence shows that the officers were confronted with deadly force when they arrived to execute the search warrant at 6460 Lyndon Johnson Dr. It also shows that force was only used to protect themselves from imminent harm. It was during this exchange of gunfire from a known drug house that the Plaintiff suffered a pass-through wound to his shoulder. The trial court had no direct evidence that the bullets fired by Officer Albright caused the Plaintiffs injuries. The Plaintiff could not testify as to who shot first, which person (his associates or the officer) shot the bullet that hit him, or whether he was shot from the front or behind. [T.T ] The overwhelming weight of the evidence shows that the officers acted in accordance with proper police procedure, and that they did not act with reckless disregard. IV. The Plaintiff's expert Lloyd Grafton was improperly allowed to give testimony outside of his area of expertise that directly influenced the trial courts opinion. "[W]hile this Court has said a specialist in a particular branch within a profession will not be required, we have gone on to say, only if the witness possesses scientific, technical, or 7

12 specialized knowledge on a particular topic will he qualify as an expert on that topic." Worthy v. McNair, 37 So.3d 609, 616 (Miss.201O) (internal citations omitted) (emphasis in original). An expert witness "must exercise the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Troupe v. McAulley, 955 So.2d 848 (Miss. 2007) (quoting Poole, 908 So.2d at 724). Lloyd Grafton was admitted as an expert in the field of criminal justice, law enforcement and use of force, and not in ballistics or forensic pathology. [T.T , ]. However, over the objections of counsel, he was allowed to give opinions as to the caliber of bullet that struck the Plaintiff, the entry and exit wound on the Plaintiff, and ultimately opined who actually shot the Plaintiff. [T.T. 287]. In addition, Mr. Grafton failed to examine the relevant evidence in rendering his opinion. He admits that he did not consider the use of force policy ofthe Mississippi Bureau of Narcotics. [T. T. 260, 290]. The record evidence shows that the MBN use of force policy would have been the correct policy to analyze the actions of the agents at the time, as the JET Enforcement Team operated under the auspices and policies ofmbn. [T.T ]. He admits that he was unaware of medical evidence that contradicted his opinion as to the entry and exit wound on the Plaintiff. [T.T ]. Finally he admits that he did not know that the officers had taken fire at the time he made his written report. [T.T ]. The trial court's admitting and considering the testimony of Lloyd Grafton which was outside of his designated area of expertise was unfairly prejudicial and should have been excluded. V. Mississippi Law does not allow for prejudgment interest, regardless of whether the Plaintiff pled for it in his prayer for relief. Regardless of whether the Plaintiff pled for prejudgment interest in his Second Amended 8

13 Complaint, prejudgment interest ins not allowed by law. Pursuant to Mississippi Code : (2) No judgment against a governmental entity or its employee for any act or omission for which immunity is waived under this chapter shall include an award for exemplary or punitive damages or for interest prior to judgment, or an award of attorney's fees unless attorney's fees are specifically authorized by law. Miss. Code (2). (emphasis added) Because the Mississippi Bureau of Narcotics is immune from any award of pre-judgment interest pursuant to the Mississippi Tort Claims Act, this Court erred as a matter oflaw in awarding such damages, and the Plaintiff has not provided any statutory or case law authority which would allow for such an award. CONCLUSION The totality of the circumstances show that Officer Albright' s actions in returning fire toward those who were placing himself and his fellow officers in danger of imminent harm, was objectively reasonable and not acting with reckless disregard. The Hinds County Circuit Court improperly applied the Mississippi Tort Claims Act in denying immunity, improperly allowed Mr. Grafton to offer expert opinions outside of his area of expertise, and based its judgment on allegations that are wholly unsupported in the record. As such, the decision of the Hinds County Circuit Court should be reversed and rendered. Respectfully submitted, this the 15th day of July, Isl Tommy Whitfield Tommy Whitfield Attorney for Appellant/Defendant Mississippi Bureau of Narcotics 9

14 Tommy Whitfield John T. Kitchens Whitfield Law Group, PLLC 660 Lakeland East, Suite 200 Flowood, Mississippi Telephone: Facsimile:

15 CERTIFICATE OF SERVICE I, Tommy Whitfield, one of the attorneys for the Mississippi Department of Public Safety, Bureau of Narcotics, do hereby certify that I have this day electronically filed the above and foregoing with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Carlos Moore, Esq. Aafram Sellers, Esq. MOORE LAW OFFICE PLLC 1155 Martin Luther King, Jr. Boulevard (38901) Post Office Box 1487 Grenada, Mississippi Carlos E. Moore (carlos@carlosmoorelaw.com) Counsel for Appellee/Plaintiff J. Lawson Hester, Esq. Jason Dare, Esq. WYATT TARRANT & COMBS LLP Post Office Box16089 Jackson, Mississippi Hester, Lawson (lhester@wyattfirm.com) Dare, Jason (jdare@wyattfirm.com) Counsel for Appellant/Defendant Hinds County, Mississippi LaShundra Jackson-Winters, Esq. Monica Joiner, Esq. Office of the City Attorney Post Office Box 2779 Jackson, Mississippi Winters, LaShundra (lwinters@city.jackson.ms.us) Counsel for Appellants/Defendants City of Jackson, Mississippi and Billy Jade (Jay) Albright I further certify that I have this day caused to be mailed by United States Mail, postage pre-paid, a true and correct copy of the above and foregoing to the following: Honorable Winston Kidd Hinds County Circuit Court Judge Post Office Box 327 Jackson, Mississippi

16 THIS the 15th day of July, ls/tommy Whitfield Tommy Whitfield 12

17 Legislative intent, MS ST West's Annotated Mississippi Code Title 11. Civil Practice and Procedure Chapter 46. Immunity of State and Political Subdivisions from Liability and Suit for Torts and Torts of Employees (Refs &Annos) Miss. Code Ann Legislative intent Currentness (1) 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," as such terms are defined in Section , 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 or breach of implied term or condition of any warranty or contract, 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, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor. (2) The immunity of the state and its political subdivisions recognized and reenacted herein is and always has been the law in this state, before and after November 10, 1982, and before and after July 1, 1984, and is and has been in full force and effect in this state except only in the case of rights which, prior to the date of final passage hereof, have become vested by final judgment of a court of competent jurisdiction or by the express terms of any written contract or other instrument in writing. Credits Laws 1984, Ch. 495, 2; Laws 1985, Ch. 474, 2; Laws 1986, Ch. 438, l; Laws 1987, Ch. 483, l; Laws 1988, Ch. 442, l; Laws 1989, Ch. 537, l; Laws 1990, Ch. 518, l; Laws 1991, Ch. 618, 1; Laws 1992, Ch ; Laws 1992,!st Ex. Sess., Ch. 3, I; Laws 1993, Ch. 476, 2, eff. from and after passage (approved April 1, 1993). Notes of Decisions containing your search terms (0) View all 56 Miss. Code Ann , MS ST The Statutes and Constitution are current through the End of the 2015 Regular Session. End of Document 2015 Thomson Reuters. \Jo claim to original U.S. Government Works. to U.

18 Waiver of immunity, MS ST , West's Annotated Mississippi Code Title 11. Civil Practice and Procedure Chapter 46. Immunity of State and Political Subdivisions from Liability and Suit for Torts and Torts of Employees (Refs &Annos) Miss. Code Ann Waiver of immunity Currentness (1) Notwithstanding the immunity granted in Section , or the provisions of any other law to the contrary, the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment is hereby waived from and after July 1, 1993, as to the state, and from and after October 1, 1993, as to political subdivisions; provided, however, immunity of a governmental entity in any such case shall be waived only to the extent of the maximum amount of liability provided for in Section (2) 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 other than traffic violations. (3) For the purposes of this chapter and not otherwise, it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment. ( 4) Nothing contained in this chapter shall be construed to waive the immunity of the state from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States. Credits Laws 1984, Ch. 495, 3; Laws 1985, Ch. 474, 3; Laws 1986, Ch. 438, 2; Laws 1987, Ch. 483, 2; Laws 1988, Ch. 442, 2; Laws 1989, Ch. 537, 2; Laws 1990, Ch. 518, 2; Laws 1991, Ch. 618, 2; Laws 1992, Ch. 491, 4, eff. from and after passage (approved May 12, 1992). Notes of Decisions (69) Miss. Code Ann , MS ST The Statutes and Constitution are current through the End of the 2015 Regular Session. End of Document CO 2015 Thomson Reuters. No claim to original U S Government Works to Works

19 Exclusiveness of remedy, MS ST West's Annotated Mississippi Code Title 11. Civil Practice and Procedure Chapter 46. Immunity of State and Political Subdivisions from Liability and Suit for Torts and Torts of Employees (Refs &Annos) Miss. Code Ann Exclusiveness ofremedy Currentness ( 1) The remedy provided by this chapter against a governmental entity or its employee is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee or the estate of the employee for the act or omission which gave rise to the claim or suit; and any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary. (2) An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no 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. (3) From and after July 1, 1993, as to the state, from and after October 1, 1993, as to political subdivisions, and subject to the provisions of this chapter, every governmental entity shall be responsible for providing a defense to its employees and for the payment of any judgment in any civil action or the settlement of any claim against an employee for money damages arising out of any act or omission within the course and scope of his employment; provided, however, that to the extent that a governmental entity has in effect a valid and current certificate of coverage issued by the board as provided in Section , or in the case of a political subdivision, such political subdivision has a plan or policy of insurance and/or reserves which the board has approved as providing satisfactory security for the defense and protection of the political subdivision against all claims and suits for injury for which immunity has been waived under this chapter, the governmental entity's duty to indemnify and/or defend such claim on behalf of its employee shall be secondary to the obligation of any such insurer or indemnitor, whose obligation shall be primary. The provisions of this subsection shall not be construed to alter or relieve any such indemnitor or insurer of any legal obligation to such employee or to any governmental entity vicariously liable on account of or legally responsible for damages due to the allegedly wrongful error, omissions, conduct, act or deed of such employee. ( 4) The responsibility of a governmental entity to provide a defense for its employee shall apply whether the claim is brought in a court of this or any other state or in a court of the United States. ( 5) 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. Any action by a governmental entity against its employee and any action by an employee against the governmental entity for contribution, indemnification, or necessary legal fees and expenses shall be tried to the court in the same suit brought on the claim against the governmental entity or its employee. WestlavvNext U.S

20 Exclusiveness of remedy, MS ST (6) The duty to defend and to pay any judgment as provided in subsection (3) of this section shall continue after employment with the governmental entity has been terminated, if the occurrence for which liability is alleged happened within the course and scope of duty while the employee was in the employ of the governmental entity. (7) For the purposes of this chapter and not otherwise, it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment. (8) Nothing in this chapter shall enlarge or otherwise adversely affect the personal liability of an employee of a governmental entity. Any immunity or other bar to a civil suit under Mississippi or federal law shall remain in effect. The fact that a governmental entity may relieve an employee from all necessary legal fees and expenses and any judgment arising from the civil lawsuit shall not under any circumstances be communicated to the trier of fact in the civil lawsuit. Credits Laws 1984, Ch. 495, 5; Laws 1985, Ch. 474, 4; Laws 1986, Ch. 438, 3; Laws 1987, Ch. 483, 4; Laws 1988, Ch. 442, 4; Laws 1989, Ch. 537, 4; Laws 1990, Ch. 518, 4; Laws 1991, Ch. 618, 4; Laws 1992, Ch. 491, 6; Laws 1993, Ch. 476, 3, eff. from and after passage (approved April 1, 1993). Notes of Decisions (56) Miss. Code Ann , MS ST The Statutes and Constitution are current through the End of the 2015 Regular Session. l~nd of Document Thomson Reuters. No claim to original lj S Government Works. VVorks

21 Limitation of liability, MS ST West's Annotated Mississippi Code Title 11. Civil Practice and Procedure Chapter 46. Immunity of State and Political Subdivisions from Liability and Suit for Torts and Torts of Employees (Refs &Annos) Miss. Code Ann Limitation ofliability Currentness (1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter: (a) For claims or causes of action arising from acts or omissions occurring on or after July l, 1993, but before July 1, 1997, the sum of Fifty Thousand Dollars ($50,000.00); (b) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1997, but before July 1, 2001, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00); (c) For claims or causes of action arising from acts or omissions occurring on or after July 1, 2001, the sum of Five Hundred Thousand Dollars ($500,000.00). (2) No judgment against a governmental entity or its employee for any act or omission for which immunity is waived under this chapter shall include an award for exemplary or punitive damages or for interest prior to judgment, or an award of attorney's fees unless attorney's fees are specifically authorized by law. (3) Except as otherwise provided in Section (4), in any suit brought under the provisions of this chapter, ifthe verdict which is returned, when added to costs and any attorney's fees authorized by law, would exceed the maximum dollar amount of liability provided in subsection (1) of this section, the court shall reduce the verdict accordingly and enter judgment in an amount not to exceed the maximum dollar amount ofliability provided in subsection (1) of this section. Credits Laws 1984, Ch. 495, 9; Laws 1985, Ch. 474, 8; Laws 1987, Ch. 483, 8; Laws 1988, Ch. 442, 5; Laws 1989, Ch. 537, 5; Laws 1990, Ch. 518, 5; Laws 1991, Ch. 618, 5; Laws 1992, Ch. 491, 2, eff. from and after passage (approved May 12, 1992). Notes of Decisions (27) Miss. Code Ann , MS ST The Statutes and Constitution are current through the End of the 2015 Regular Session. Reuters. U.S. INorks

22 Limitation of liability, MS ST End of Document 2015 Thomson Reuters. No claim to original US. Government Works. VVestlawNext Reuters