Steven Plitt, Expert Witness Steven Plitt, Expert Witness
Insurance Bad Faith Claim Handling Expert Serving Clients Nationwide

IMMUNITY MATTERS

Recently the U.S. Fifth Circuit Court of Appeals held, predicting the law of Mississippi, that when a driver was immune from suit, UIM coverage was not triggered because the insured would not be "legally entitled" to recover damages from a tortfeasor with no civil liability due to immunity.

In McGlothin v. State Farm Mut. Auto. Ins. Co., 925 F.3d 741, 2019 WL 2314958 (5th Circ. 5/31/19), interpreting Mississippi law, the injured insured was struck by a fire truck. Under the law of Mississippi at the time of the accident, firemen were immune from suit when in the course of responding to a fire. However, in 2009 the Mississippi legislature had amended its UIM statute and, specifically, the definition of uninsured motor vehicle to include vehicles operated by persons with immunity. Because of this, the insured submitted the accident claim to State Farm under the UM coverage. State Farm denied the claim, arguing that the insured was not "legally entitled to recover" damages from the fireman, who had immunity.

The claim presented a contradictory demarcation in the law. On the one hand, State Farm's policy entitled its insureds to UM coverage only when they were "legally entitled to recover" damages from another motorist. That language would exclude coverage for tortfeasors who had immunity. On the other hand, the legislature's new definition of UM included "a motor vehicle owned or operated by a person protected by immunity" under Mississippi's tort claims act. The insured argued that these two provisions were repugnant. The U.S. Fifth Circuit Court of Appeals reconciled these apparently conflicting statutes (the requirement to provide UM coverage when an insured was "legally entitled to recover" and the statutory definition of UM). The Court of Appeals held, predicting Mississippi law, that because the purpose of UM coverage was to place the insured in the same position the insured would have been had suit been brought against the tortfeasor in court, if the negligent tortfeasor was immune, the insured would not be entitled to recover damages and, therefore, would not be entitled to UM benefits. Although this result appeared to conflict with the Mississippi legislature's 2009 amendment to the definition of uninsured motor vehicle, the Court reasoned that while it appeared that insureds would not be able to recover damages from an immune driver under any circumstances, the Court was able to construct two instances/examples where an insured would be "legally entitled to recover" from an immune defendant. While the constructed scenarios by the Court would not occur often, the instructed examples meant the statutes were not completely repugnant.

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