IN THE SUPREME COURT OF MISSISSIPPI

NO. 98-CA-00369-SCT

SAMMY CALHOUN, BY AND THROUGH HIS NATURAL MOTHER AND NEXT

FRIEND, DORTHEA CALHOUN

v.

ELLISVILLE STATE SCHOOL, A DEPARTMENT OR AGENCY OF THE STATE OF

MISSISSIPPI; THE STATE OF MISSISSIPPI, BY AND THROUGH THE DEPARTMENT

OF MENTAL HEALTH; AND JOHN DOE, AN INDIVIDUAL AND EMPLOYEE OF

ELLISVILLE STATE SCHOOL

DATE OF JUDGMENT: 02/03/1998

TRIAL JUDGE: HON. BILLY JOE LANDRUM

COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: JOHN HERR MUSSER, IV

RUSSELL S. GILL

ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL

BY: MAUDINE G. ECKFORD

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

DISPOSITION: VACATED AND REMANDED - 4/15/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/6/99

EN BANC.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. The complaint alleges that appellant Sammy Calhoun (hereinafter Calhoun) is a profoundly mentally

retarded resident of the Ellisville State School and has been since 1976 when he was committed by his

mother at the age of twelve. It further alleges that on or about September 1, 1990, Calhoun was discovered

by an unknown person in apparent severe pain resulting from a blow or blows inflicted upon him by an as

yet unknown employee of the Ellisville State School, who was designated in this complaint as John Doe. It

is also alleged that Calhoun was subsequently admitted to South Central Regional Medical Center with the

diagnosis of a ruptured spleen secondary to a blunt abdominal trauma and anemia secondary to blood loss

from blunt abdominal trauma.

¶2. The complaint alleged negligent hiring; negligence of the State of Mississippi, acting by and through the
Department of Mental Health; and negligence of defendant John Doe. Calhoun seeks compensatory

damages in the amount of $1,250,000 and punitive damages in the amount of $500,000.

¶3. Ellisville State School filed a motion to dismiss and to hold discovery in abeyance on September 30,

1993. After hearing oral arguments from counsel of both parties, reviewing the court file, as well as

reviewing the briefs submitted, the Honorable Billy J. Landrum, Circuit Judge, granted Ellisville State

School's motion to dismiss.

¶4. Calhoun appeals this order granting Ellisville State School's motion to dismiss raising the following

assignments of error on appeal:

I. WHETHER OR NOT NEGLIGENCE OR FAULT IN THE CARE, CUSTODY AND

CONTROL OF AN INTERDICT BY THE ELLISVILLE STATE SCHOOL OR THE

DEPARTMENT OF MENTAL HEALTH IS A PROPRIETARY FUNCTION?

II. IF SUCH NEGLIGENT OR FAULTY CARE AND CUSTODY OF AN INTERDICT IS

A PROPRIETARY FUNCTION, WHETHER OR NOT A DAMAGE CAUSING

INCIDENT WHICH OCCURRED ON OR ABOUT SEPTEMBER 1, 1990, IS BARRED

BY THE DOCTRINE OF SOVEREIGN IMMUNITY?

DISCUSSION OF LAW

¶5. This Court does not reach these issues as the trial court erred by not inquiring into whether the Ellisville

State School waived any immunity it may have had by carrying liability insurance at the time of the accrual

of this action. This Court, in Churchill v. Pearl River Basin Development Dist., 619 So.2d 900

(Miss., 1993), overruled a previous line of cases that stated that sovereign immunity was not waived by the

purchase of liability insurance. Id. at 905. In Churchill, this Court held:

We find that French and its progeny perpetuate[] the ill-advised policy of eschewing the notion that

an insurance company is accountable for that which it has been paid a premium. Thus, we overrule

French and hold that the Pearl River Basin Development District is amenable to suit to the extent of

coverage of any liability policy or indemnification plan.

619 So. 2d at 905.

¶6. The record is silent as to whether Ellisville State School carried liability insurance at the time of accrual

of the alleged cause of action here. Therefore, this case must be remanded to the circuit court for a

determination as to whether Ellisville State School had liability insurance, thereby waiving any sovereign

immunity up to those policy limits.

CONCLUSION

¶7. This is a pre-tort claims act case. This cause of action accrued on or about September 1, 1990, and

therefore, the law as it existed prior to the Pruett v. City of Rosedale, 421 So.2d 1046 (Miss., 1982),

decision controls. If the Ellisville State School was covered by liability insurance at the time these alleged

incidents occurred, then any sovereign immunity will be waived up to those policy limits. Accordingly, the

judgment of the Jones County Circuit Court is vacated, and this case is, therefore, remanded to the Jones

County Circuit Court for a determination of whether such liability insurance was present at the time of the
accrual of this cause of action and for any necessary further proceedings consistent with this opinion.

¶8. VACATED AND REMANDED.

PRATHER, C.J., SULLIVAN, P.J., BANKS, McRAE, MILLS AND WALLER, JJ., CONCUR.

SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION. COBB, J., NOT

PARTICIPATING.

SMITH, JUSTICE, DISSENTING:

¶9. I dissent because the majority bases its opinion on an issue not raised in the briefs nor even argued to

the trial court. This Court does not address issues not raised by the appellant in his brief. See M.R.A.P.

28(a)(3); Greenlee v. Mitchell, 607 So.2d 97 (Miss.1992); R.C. Petroleum, Inc. v. Hernandez, 555

So.2d 1017 (Miss.1990); Wood v. Gulf States Capital Corp., 217 So.2d 257 (Miss.1968);

Richardson v. Stokes, 254 Miss. 71, 180 So.2d 153 (1965); Chrismond v. Chrismond, 213 Miss.

189, 56 So.2d 482 (1952); E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350 (1936). All the

record reveals is that Calhoun filed Interrogatories and Requests for Admissions along with the Complaint.

Interrogatory #3 and #13 specifically address the issue of insurance carried by the School. Calhoun's

Request for Production of Documents #2 calls for all policies of insurance carried by the School. However,

Calhoun never argued that liability insurance waived sovereign immunity to the trial court, nor did she raise

the issue in her briefs to this Court.

¶10. Finally, in the recent case of Foster v. Noel, 715 So.2d 174 (Miss. 1998), this Court held that

slander per se was "irrelevant for present purposes because that issue--that tort--is not before this Court,

" because "Noel (plaintiff) sued Yazoo City for false arrest, not slander or any. . . other torts." Id. at 179

(emphasis added). The same logic applies in the case sub judice. For whatever reason, Calhoun chose not

to make the argument either to the trial court or to this Court that liability insurance waived sovereign

immunity. Therefore, in accord with our case precedent and our rule of appellate procedure, the issue of

liability insurance waiving sovereign immunity is not before this Court, and thus, should not be considered

on appeal.

¶11. I respectfully dissent.