IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-IA-01542-SCT

CITY OF TUPELO

v.

HEATHER J. MARTIN; JUDY SMITH, AS

MOTHER AND COURT APPOINTED CONSERVATOR

OF THE PERSON AND ESTATE OF WILLIAM GREG SMITH;

ANNETTE McKAY, MOTHER AND REPRESENTATIVE

OF THE HEIRS AT LAW OF LISA MAY, DECEASED;

MAMIE IVY, MOTHER AND REPRESENTATIVE OF

THE HEIRS AT LAW OF CALANDRA C. IVY, DECEASED;

FRANKIE M. HUGHES, MOTHER AND REPRESENTATIVE

OF THE HEIRS AT LAW OF CHRIS HUGHES, DECEASED;

DELMONTEZ MAGEE, PAMELA LOUISE HARRIS

AND LORIE LEE ARMSTRONG

CONSOLIDATED WITH

NO. 97-IA-01624-SCT

CITY OF TUPELO

v.

HEATHER J. MARTIN; JUDY SMITH, AS

MOTHER AND COURT APPOINTED CONSERVATOR

OF THE PERSON AND ESTATE OF WILLIAM GREG SMITH;

ANNETTE McKAY, MOTHER AND REPRESENTATIVE
OF THE HEIRS AT LAW OF LISA MAY, DECEASED;

MAMIE IVY, MOTHER AND REPRESENTATIVE OF

THE HEIRS AT LAW OF CALANDRA C. IVY, DECEASED;

FRANKIE M. HUGHES, MOTHER AND REPRESENTATIVE

OF THE HEIRS AT LAW OF CHRIS HUGHES, DECEASED;

DELMONTEZ MAGEE; PAMELA LOUISE HARRIS;

AND LORIE LEE ARMSTRONG

CONSOLIDATED WITH

NO. 97-IA-01647-SCT

CITY OF TUPELO

v.

WILLIE PAUL DIXON, FATHER

AND LEGAL HEIR AT LAW OF

MARCUS DIXON, DECEASED

CONSOLIDATED WITH

NO. 97-IA-01648-SCT

CITY OF TUPELO

v.

ANNIE PEARL STEVENS,

MOTHER AND LEGAL HEIR AT LAW

OF YUSEF McKINLEY, DECEASED
DATE OF JUDGMENT: 12/18/1997

TRIAL JUDGE: HON. FRANK A. RUSSELL

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: MARTHA BOST STEGALL

ATTORNEYS FOR APPELLEES: JOSEPH C. LANGSTON

 RONALD MICHAEL

 RICHARD BOWEN

 MICHAEL D. GREER

 JIMMY D. SHELTON

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: REVERSED AND RENDERED - 09/02/1999

MOTION FOR REHEARING FILED: 09/30/99; denied 12/02/99

MANDATE ISSUED:12/09/99

EN BANC.

WALLER, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. These four consolidated interlocutory appeals arise out of an automobile wreck

which resulted in the deaths of five persons and injuries to five other people. After the

one-year Tort Claims Act statute of limitations had run, the Circuit Court of Lee

County, Mississippi, issued orders granting leave for the representatives of Marcus

Dixon, deceased, and Yusef McKinley, deceased, to join in the complaints which had

been timely filed against the City of Tupelo by the representatives of other persons

killed in the accident. Thereafter, the circuit court denied the City of Tupelo's motion

for judgment on the pleadings which sought dismissal of these claims based upon
failure to comply with the pre-suit notice of claim and the statute of limitations

requirements of Miss. Code Ann. § 11-46-11 (Supp. 1998).(1) After the circuit court

certified its orders, the City of Tupelo petitioned for interlocutory appeal. This Court,

by way of four separate orders, granted the interlocutory appeals to consider the

following issues assigned by the City of Tupelo:

I. Did the trial court err in granting leave to Willie Paul Dixon and Annie

Pearl Stevens for the filing of wrongful death lawsuits against the City of

Tupelo for the deaths of Marcus Dixon and Yusef McKinley on the

reasoning that the lawsuit was not barred by either the Notice of Claim

provision or the running of the limitations period set forth in the

Mississippi Tort Claims Act, Miss. Code Ann. §§ 11-46-1 to -23 (Supp.

1998).

II. Did the trial court err in denying the City of Tupelo's motion for

judgment on the pleadings filed in the Dixon and McKinley lawsuits, which

motions sought dismissal of the lawsuits on the basis that they were barred

by the notice of claim provisions of Miss. Code Ann. § 11-46-11 (Supp.

1998) and by the running of the applicable limitations period.

STATEMENT OF THE FACTS

¶2. The civil actions underlying these appeals arose from a vehicular accident which

occurred in the late evening hours of January 12, 1996, on Coley Road in Tupelo,

Mississippi. As a result of freezing conditions, a large pool of water turned into a sheet

of ice that covered both lanes of traffic on Coley Road. The patch of ice triggered a

three-car accident in which five people were killed and five people were injured. Those

injured were Heather J. Martin, William Greg Smith, Delmontez Magee, Pamela Louise

Harris and Lorie Lee Armstrong. Those killed in the wreck were Lisa May, Chris

Hughes, Calandra C. Ivy, Yusef McKinley and Marcus Dixon. The representatives of

all of the accident victims except for Yusef McKinley and Marcus Dixon timely and

properly filed separate notices of claim with the mayor of the City of Tupelo in

accordance with what is commonly referred to as the Mississippi Tort Claims Act.

See Miss. Code Ann. § 11-46-11(2) (Supp. 1998). The plaintiffs claimed that the City

was responsible for the accident because it failed to maintain properly the drainage

along Coley Road, leading to the accumulation of the thin sheet of ice on the road.

¶3. Thereafter, eight separate lawsuits were timely filed by each of the persons who

had served the City with a notice of claim. The eight actions were then consolidated in

the circuit court under the lead action of Heather J. Martin, et al. v. City of Tupelo.

Following denial of the City's motion for summary judgment based on sovereign
immunity, the lawsuits were settled. At the time of settlement, the City had not been

served with a notice of claim concerning the deaths of either McKinley or Dixon. On

August 22, 1997, more than 19 months after the accident, Annie Pearl Stevens,

McKinley's representative, filed a motion for leave to file a complaint and join the

action filed by the representative of Chris Hughes in the Lee County Circuit Court.

Dixon's representative, Willie Paul Dixon, filed an identical motion on November 4,

1997, seeking to join the lawsuit filed by the representative of Lisa May.

¶4. The two motions asserted that McKinley and Dixon, who died as a result of the

same accident complained of in the pending lawsuits, were mistakenly not included in

the other lawsuits. The motions asserted that joinder would protect McKinley and

Dixon from possible prejudice and avoid duplication of discovery and multiple

litigation. They further asserted that the City would suffer no prejudice. The City

opposed the motions on the grounds that any lawsuit on behalf of McKinley or Dixon

was barred because no one had filed a notice of claims on behalf of either plaintiff,

and, in any event, the statute of limitations had run as to both lawsuits.

¶5. The trial judge, Honorable Frank A. Russell, granted the motions of both McKinley

and Dixon. He found that the City had actual notice of both claims within one-year of

the accident and that the City would suffer no prejudice. As to McKinley, the trial

judge held that the failure to file timely was due to the excusable neglect of his

attorneys, while Dixon's failure to file was due to the excusable neglect of his heir.

Judge Russell ruled that allowing joinder was "within the sound discretion of the trial

court."

¶6. The trial court distinguished City of Jackson v. Lumpkin, 697 So. 2d 1179

(Miss. 1997), on the basis that Lumpkin involved a single plaintiff who failed to notify

the City of his possible claim. As a result the City was unable to foresee that it would

have to mount a defense. Judge Russell also relied on Womble v. Singing River

Hosp., 618 So. 2d 1252 (Miss. 1998), which is discussed further infra. The lower

court found that the City had actual notice and that no time or resources would be

wasted by defending the McKinley and Dixon lawsuits. Therefore, the circuit court

granted the representatives of McKinley and Dixon leave to file complaints against the

City and subsequently amended its orders to certify them for interlocutory appeal.

¶7. On October 16 and November 13, 1997, respectively, the representatives of

McKinley and Dixon filed their complaints which asserted wrongful death claims

arising from the January 12, 1996, accident. However, the complaints failed to comply

with the notice of claim requirement of § 11-46-11. In its answer, the City admitted that

the accident occurred on January 12, 1996, but denied liability and asserted as

defenses the failure to comply with the notice of claim and statute of limitations

provisions of § 11-46-11. At the same time, the City moved for judgment on the
pleadings pursuant to M.R.C.P. 12(c) on the notice of claim and statute of limitations

issues. The circuit court denied those motions in separate one-page orders filed on

December 18, 1997, and certified the orders for interlocutory appeal on the issue of

whether the actions were barred by the notice of claim and statute of limitations

provisions of the Tort Claims Act. This Court then granted the City's petitions for

interlocutory appeal and consolidated these four interlocutory appeals.

DISCUSSION OF THE LAW

I. INTERVENTION.

¶8. In granting the representatives of McKinley and Dixon leave to file their complaints

in the pending consolidated actions, the circuit court did not discuss intervention or

cite M.R.C.P. 24 which, as its comment states, "governs the rights of a stranger to the

action who desires to be joined." Rule 24 provides in pertinent part:

(a) Intervention of Right. Upon timely application, anyone shall be permitted to

intervene in an action:

(1) when a statute confers an unconditional right to intervene; or

(2) when the applicant claims an interest relating to the property or

transaction which is the subject of the action and he is so situated that the

disposition of the action may as a practical matter impair or impede his ability

to protect that interest, unless the applicant's interest is adequately

represented by existing parties.

(b) Permissive Intervention. Upon timely application anyone may be permitted

to intervene in an action:

(1) when a statute confers a conditional right to intervene; or

(2) when an applicant's claim or defense and the main action have a question

of law or fact in common.

* * *

In exercising its discretion the court shall consider whether the intervention

will unduly delay or prejudice the adjudication of the rights of the original

parties.

(c) Procedure. A person desiring to intervene shall serve a motion to intervene

upon the parties as provided in Rule 5. The motion shall state the grounds

therefor and shall be accompanied by a pleading setting forth the claim or defense

for which intervention is sought. The same procedure shall be followed when a
statute gives a right to intervene. . . .

M.R.C.P. 24.

¶9. As the language of Rule 24 suggests, a trial court has considerable discretion in

ruling on a motion to intervene. Cummings v. Benderman, 681 So. 2d 97, 101

(Miss. 1996); Guaranty Nat'l Ins. Co. v. Pittman, 501 So. 2d 377, 381 n.1 (Miss.

1987). As a result, we review such a ruling using an abuse of discretion standard of

review. Perry County v. Ferguson, 618 So. 2d 1270, 1271-72 (Miss. 1993); Pittman,

501 So. 2d at 383.

¶10. Here, the motions did not identify whether intervention of right or permissive

intervention was sought. Further, the motions did not attach copies of the proposed

complaint as required by Rule 24(c). The motions did explicitly reference the January

12, 1996, accident date.

¶11. Regardless of whether intervention of right or permissive intervention is sought, in

either case the motion must be timely. As we noted in Pittman, timeliness has no fixed

meaning and should normally be determined after considering the following four

factors:

(1) the length of time during which the would be intervenor actually knew or

reasonably should have known of his interest in the case before he petitioned for

leave to intervene;

(2) the extent of the prejudice that the existing parties to the litigation may suffer as

a result of the would be intervenor's failure to apply for intervention as soon as he

actually knew or reasonably should have known of his interest in the case;

(3) the extent of any prejudice that the would be intervenor may suffer if his

petition for leave to intervene is denied; and

(4) the existence of unusual circumstances militating either for or against a

determination that the application is timely.

Pittman, 501 So. 2d at 382. We went on to clarify that

likelihood of success on the merits of the claim intervention is not a factor which

should be considered in determining whether a motion for leave to intervene is

timely or should otherwise be granted, except only in the limited sense that the

complaint in intervention should state a claim upon which relief can be granted . . .

.

Id. It is that "threshold test" which we consider today. Id.
¶12. On their faces, the motions filed by the representatives of McKinley and Dixon on

August 22 and November 4, 1997, respectively, sought leave to file a complaint

seeking wrongful death tort damages against the City arising from the January 12, 1996,

accident.

¶13. The MTCA provides the exclusive remedy for a party injured by a governmental

entity's acts or omissions. Brewer v. Burdette, No. 97-CA-01016-SCT, 1999 WL

216842, at *2 (Miss. Apr. 15, 1999) (motion for rehearing pending). The MTCA

states:

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.

Miss. Code Ann. § 11-46-7(1) (Supp. 1998) (emphasis added). Clearly, these appeals

involve claims against a governmental entity which are subject to the provisions of the

MTCA.

¶14. The MTCA provides a one-year statute of limitations for lawsuits brought against

governmental entities. The time period is tolled for 95 days upon the filing of a pre-suit

notice of claim. The statute of limitations provides:

All actions brought under the provisions of this chapter shall be commenced

within one (1) year next after the date of the tortious, wrongful or otherwise

actionable conduct on which the liability phase of the action is based, and not

after; provided, however that the filing of a notice of claim as required by

subsection (1) of this section shall serve to toll the statute of limitations for a

period of ninety-five (95) days. The limitations period provided herein shall

control and shall be exclusive in all actions subject to and brought under the

provisions of this chapter, notwithstanding the nature of the claim, the label or

other characterization the claimant may use to describe it, or the provisions of any

other statute of limitations which would otherwise govern the type of claim or

legal theory if it were not subject to or brought under the provisions of this

chapter.

Miss. Code Ann. § 11-46-11(3) (Supp. 1998). We have enforced this one-year statute

of limitations on a number of occasions. E.g., State v. Dampeer, No. 97-IA-00276-

SCT, 1999 WL 418804 (Miss. June 24, 1999); Mississippi Dep't of Pub. Safety v.
Stringer, No. 97-IA-00187-SCT, 1999 WL 353025 (Miss. June 3, 1999); Marcum v.

Hancock County Sch. Dist., No. 97-CA-00916-SCT, 1999 WL 353073 (Miss. June 3,

1999).

¶15. The representatives of McKinley and Dixon filed their motions to join on August

25, 1997, and November 5, 1997, respectively. The accident which gave rise to these

claims occurred on January 12, 1996. The one-year statute of limitations in § 11-46-

11(3) expired on January 13, 1997. Filing a notice of claim would have tolled the

statute of limitations for 95 days. Miss. Code Ann. § 11-46-11(3). Thus, had a notice

of claim been properly submitted, the statute of limitations would have finally expired

on April 18, 1997. The McKinley and Dixon representatives had filed neither a notice

of claim nor a complaint by that date. Because they did not comply with the statute of

limitations established in the MTCA, the intervention motions were, on their faces,

untimely as barred by the applicable statute of limitations and, thus, did not state a

claim upon which relief could be granted.

¶16. The McKinley and Dixon representatives make several similar arguments as to

why the orders of the lower court should be affirmed. First, they argue that the City

waived sovereign immunity by purchasing liability insurance in excess of the amounts

provided for in Miss. Code Ann. § 11-46-15 (Supp. 1998).(2) Second, they assert that

because the City was engaged in a proprietary function, sovereign immunity is not

applicable. Combining these two arguments, McKinley and Dixon contend that Miss.

Code Ann. § 15-1-49 (1995), the general three-year statute of limitation, rather than the

one-year limitation period of the MTCA, controls their respective causes of action.

Even assuming the MTCA applies, McKinley and Dixon assert that the City had

sufficient notice of the claim and suffered no prejudice as a result of the late filing. This

is essentially the position taken by the circuit court in granting the motions to join.

¶17. Immunity from suit for damages in excess to the amounts provided in § 11-46-15

is waived only to the extent of the amount of excess liability insurance coverage held

by the governmental entity. Miss. Code Ann. § 11-46-17(4) (Supp. 1998). Contrary to

this provision, the representatives of McKinley and Dixon argue that purchasing

liability insurance somehow removes claims from the requirements of the MTCA.

They rely on Lee County Bd. of Supervisors v. Fortune, 611 So. 2d 927 (Miss.

1993), and Churchill v. Pearl River Basin Dev. Dist., 619 So. 2d 900 (Miss. 1993).

Both of these cases involved interpretation of law prior to the effective date of the

current MTCA and are inapposite to the current litigation.

¶18. Citing our recent decision in L.W. v. McComb Separate Mun. Sch. Dist., No.

97-CA-01465-SCT, 1999 WL 174267, at *9 (Miss. Mar. 31, 1999) (motion for

rehearing pending), the McKinley and Dixon representatives argue that we held that, in

an MTCA case, the purchase of insurance waives sovereign immunity to the extent of
the policy. While this is true, L.W. is distinguishable in that it dealt with the application

of the exemptions from liability statute, § 11-46-9, and did not address the effect of

the purchase of insurance on the notice of claim and statute of limitations defenses

under the MTCA. Thus, L.W. is not controlling here.

¶19. Prior to the enactment of the MTCA, we did use the governmental/proprietary

function test in applying sovereign immunity to municipalities. See, e.g., Parker v.

City of Philadelphia, 725 So. 2d 782, 784 (Miss. 1998); White v. City of Tupelo,

462 So. 2d 707, 708 (Miss. 1984). However, with the enactment of the MTCA, that

test is no longer applicable to claims subject to the MTCA except to the extent which it

may be incorporated in the provisions of the MTCA. We find no such incorporation.

Therefore, we reject the argument that we must apply that test here to find the MTCA

and its statute of limitations provision inapplicable.

¶20. Relying on Womble v. Singing River Hosp., 618 So. 2d 1252 (Miss. 1993), the

trial judge allowed McKinley's representative to join the Hughes complaint and Dixon's

representative to join the complaint filed by May's representative. In Womble, the trial

court allowed a plaintiff to add additional defendants after the statute of limitations had

run. Id. at 1266-68. The Court relied on M.R.C.P. 15(c) in reaching its conclusion that

the defendants would suffer no prejudice from being added after the statute had run.

Id.

¶21. The obvious problem here is that neither representative filed an initial pleading

within the one-year statute of limitations. Thus, there is nothing for the amendment to

relate back to as is required by our rules. See M.R.C.P. 15(c). The instant case is

completely different from Womble where the plaintiff had timely filed a complaint

against at least some of the defendants and claims against other defendants related

back to that original filing. Id. at 1267-68. The representatives for McKinley and Dixon

were not plaintiffs in the original eight lawsuits which were filed. Instead, they filed their

own separate wrongful death lawsuits outside the statute of limitations. Because they

did not file before the one-year statute had run, their claims are barred by the statute of

limitations.

¶22. The representatives for McKinley and Dixon argue that the City had actual notice

of the claims and was preparing a defense before the statute of limitations had run. The

Womble Court relied in part upon a similar argument advanced by the plaintiff.

Womble, 618 So. 2d at 1267. The distinguishing factor is that in the instant case there

is no mistake in the identity of the parties, as was the case in Womble. Id. The only

mistake here is that either the parties or their lawyers failed to file a complaint within the

appropriate statute of limitations. Womble is of no consequence in the cases at bar.

¶23. Assuming for the sake of argument that a notice of claim had been timely filed
with the City, the representatives of McKinley and Dixon would have had to file their

lawsuits no later than one-year plus 95 days after January 12, 1996. Since their motions

and complaints were all filed long after that deadline, we have no need to address here

the notice of claim requirement and our recent substantial compliance standard set

forth in Reaves v. Randall, 729 So. 2d 1237 (Miss. 1998), and Carr v. Town of

Shubuta, No. 96-CT-01266-SCT, 1999 WL 62772 (Miss. Feb. 11, 1999).

¶24. The parties do not provide nor can we find any instance where"excusable

neglect" has tolled or otherwise stayed a statute of limitations. That today's decision

works to preclude McKinley's and Dixon's representatives' day in court is of no

consequence. Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss. 1996) (citing

Traina v. United States, 911 F.2d 1155 (5th Cir. 1990)). There is nothing in the

record to indicate that the representatives' failure to file was anything other than a result

of their own inactions or omissions.

¶25. For these reasons, we conclude that the motions to intervene were not timely on

their faces and failed to state a claim upon which relief can be granted. As a result, the

circuit court abused its discretion in granting leave to the representatives of McKinley

and Dixon to file their complaints, and we reverse and render on this issue.

II. JUDGMENT ON THE PLEADINGS.

¶26. We have noted that the motion for judgment on the pleadings under M.R.C.P.

12(c) serves a similar function to the Rule 12(b)(6) motion to dismiss for failure to

state claim. Holland v. Kennedy, 548 So. 2d 982, 984 n.3 (Miss. 1989). Thus, it

raises a question of law for the circuit court which we review de novo.

¶27. Given our disposition above of the timeliness issue on the intervention question, it

necessarily follows that we conclude that the two complaints were not timely in that

they are barred by Miss. Code Ann. § 11-46-11(3) (Supp. 1998), the applicable oneyear statute of limitations. Thus, the circuit court erred as a matter of law in denying

the City's motions for judgment on the pleadings on the statute of limitations issue. We

reverse and render on this issue.

CONCLUSION

¶28. Although the result is harsh, the representatives of McKinley and Dixon did not

file their motions or complaints within the applicable statute of limitations. M.R.C.P.

15(c) affords no relief as the causes of action for the deaths of McKinley and Dixon

were not preserved with an initial filing and thus cannot be saved by "joining" a thirdparty's timely filing. Therefore, their respective wrongful death actions are barred by

Miss. Code Ann. § 11-46-11(3) (Supp. 1998). The orders of the lower court allowing

the representatives of McKinley and Dixon to file wrongful death actions against the
City of Tupelo are reversed and rendered because of the failures of the McKinley and

Dixon representatives to comply with the time limitations set forth in the MTCA.

Likewise, the orders of the lower court denying the City's motions for judgment on the

pleadings are reversed, and we render judgment here for the City finally dismissing the

complaints and actions with prejudice as barred by the statute of limitations.

¶29. REVERSED AND RENDERED.

 PRATHER, C.J., PITTMAN, P.J., BANKS, SMITH, MILLS AND COBB,

JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN

OPINION JOINED BY SULLIVAN, P.J.

 McRAE, JUSTICE, DISSENTING:

¶30. I respectfully dissent.

¶31. With the majority decision today, the waters surrounding the Mississippi Tort

Claims Act have once again been clouded. The legislature has stated that a

governmental entity is allowed to waive its sovereign immunity up to the amount of

insurance it contracted prior to an event, thus taking it out of the procedures required

under the Act when there is no insurance.

¶32. When a public entity is benevolent enough to purchase insurance for the

protection of the entity and potential claimants, it should be taken out of the Act

altogether, up to the amount of that policy. If an entity chooses to come out from

under the protection of the legislatively created umbrella for a "bigger" one provided

by an insurance company, it should be barred from claiming any privileges or defenses

under the Act, up to the amount of coverage. Consequently, an insurance provider has

no right to gain shelter under the very umbrella created by the Act. That right was

created for governmental entities and may not be delegated.

¶33. To better understand why a governmental entity relinquishes the right to claim

immunity when it purchases liability insurance, a brief look at the life, death, and

resurrection of sovereign immunity in Mississippi is necessary.

¶34. In 1982, this Court determined that absolute sovereign immunity was out of date

in modern society and modern legal concepts. Pruett v. City of Rosedale, 421 So. 2d

1046 (Miss. 1982). Ruling that the control and policing of sovereign immunity was a

legislative and not judicial responsibility, this Court abrogated such immunity just as it

had previously created it. Pruett, 421 So. 2d at 1047. Several years later the

Mississippi Legislature reciprocated by enacting an exhaustive tort claims act,

providing for a limited waiver of sovereign immunity. Miss. Code Ann. §§ 11-46-1 et
seq. (Supp. 1998).

¶35. In response to our abrogation of our judicially created sovereign immunity the

Legislature created the Mississippi Tort Claims Act to allow citizens to be

compensated for torts committed against them and to hold the public entity

accountable. It set up certain procedures to follow when no insurance is obtained so

the public entity will be aware of a claim, have it investigated to determine their liability

and consider the possibility of settlement if there is such liability. However, as had

been done prior to the enactment of the Act, the Legislature authorized the public

entity to waive the sovereign immunity up to the amount of insurance.

¶36. In 1993,(3) when the Mississippi Tort Claims Act became effective, it was subject

to a list of substantive and procedural requirements. The Act provided the exclusive

civil remedy against a governmental entity or its employees for acts or omissions

giving rise to a tort suit. Miss. Code Ann. § 11-46-7(1) (Supp. 1998); L.W. McComb

Separate Mun. Sch. Dist., No 97-CA-01465-SCT, 1999 WL 174267, at *2 (Miss.

March 31, 1999) (pending on motion for rehearing); Moore v. Carroll County,

Mississippi, 960 F. Supp. 1084, 1088 (N.D. Miss. 1997).

¶37. Prior to this time when there was created judicial sovereign immunity was waived

up to the amount of insurance. In other words, the public entity (insurance company)

was treated like anyone else. The company could not claim immunity or any other

defense personal to its insured.

¶38. Before the enactment of the Tort Claims Act, a defendant sovereign was

estopped from asserting sovereign immunity up to the amount of insurance purchased.

Churchill v. Pearl River Basin Dev. Dist., 619 So. 2d 900, 906 (Miss. 1993). The

holding was later codified in Miss. Code Ann. § 11-46-16(2) but in 1993 expired and

became of no force.(4) The only insurance provision we are left with is found in Miss.

Code Ann. § 11-47-17 (Supp. 1998), which became effective April 1, 1993. Pursuant

to subsections (1) and (3) the "Tort Claims Fund" was created in the State Treasury

and all political subdivisions were required to provide insurance or reserves to

adequately cover risks of claims and suits for which they may be liable.

¶39. Governmental entities are allowed to purchase liability insurance over the limits

provided for in §11-46-15 (Supp. 1998). In simple terms, an entity may waive its

sovereign immunity but it does so only up to the amount of the policy. If an entity

chooses to purchase insurance, the Tort Claims Act is clearly inapplicable.

¶40. Whenever a public entity contracts with an insurance company to provide liability

insurance, future claims against that entity are handled altogether by the insurance

company. The insurance provider is thereafter responsible for investigating the

circumstances surrounding the claim, making a determination of liability, and deciding
whether such claims will be paid. Just as the entity has surrendered the defense of

sovereign immunity, the insurance company cannot come into court and claim that

defense. It is personal to the public entity.

¶41. In this case as a practical matter, as is in most Tort Claim Act cases, a plaintiff

proceeds against a public entity without knowledge of any insurance policies and

therefore notice is given to the entity. But once it is determined that there is in fact

insurance, the claim is taken out of the province of the Act and proceeds like any other

tort case. As a result, there is no need to give notice to an insurance company that is

already aware of the action, much less one already investigating and developing a

defense. See Smith County v. McNeil, No. 97-IA-00748-SCT.

¶42. The majority acknowledges that the City of Tupelo has a one million dollar

insurance policy. Therefore, the real party of interest in this case is the insurance

company and not the City of Tupelo. The insurance company cannot be allowed to

settle several of the claims and then seek immunity from others. Especially immunity

which it does not possess. Sovereign immunity cannot be transferred to the insurance

carrier; and therefore, the one-year statute of limitations provided for under the Act is

inapplicable in this case.

¶43. Once the public entity contracts and turns over the responsibility to the insurance

company to handle the claims against it, it has waived its immunity up to the policy

limits and the scope and procedure of the act do not apply. It is no different from any

other wrongful death or personal injury tort case in Mississippi and the general 3 year

statute of limitations should apply, thus making the appellees' filing timely and allowing

the case to continue on to be heard by a jury. We should not apply the one-year statute

of limitations since immunity is waived and the real party is the insurance company.

After all, the public entity contracted for the insurance company to adjust the claim and

if a catastrophic injury occurs and a claim is made and denied one and a half years

later, then another part of the government will have to pay the bills. The public entity

did not get what it paid for. The citizen did not get the benefit of it. The only one who

obtains a windfall is the insurance company. Accordingly, I dissent.

 SULLIVAN, P.J., JOINS THIS OPINION.

1. Effective March 25, 1999, Section 11-46-11 was amended by 1999 Miss. Laws ch.

469 to clarify the notice of claim procedure in that statute. However, this amendment

has no application to the facts of this case.

2. Although not established in the record, the City admits in its briefs that it had $1

million in liability insurance which is applicable to the subject accident.

3. Miss. Code Ann. § 11-46-5 provided for a waiver of sovereign immunity as to the
State from and after July 1, 1993, and for political subdivisions of the state from and

after October 1, 1993.

4. Miss. Code Ann. § 11-46-16(2) expired from and after July 1, 1993, for the state

and October 1, 1993, for the political subdivisions.