IN THE SUPREME COURT OF MISSISSIPPI NO. 2013-CA-02124-SCT CY NTHIA S. WOODALL, INDIV IDUALLY

, AS ADMINISTRATRIX OF THE ESTATE, AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES, OF CLIFTON WOODALL, DECEASED

v. AAA AMBULANCE SERV ICE, INC. DATE OF JUDGMENT: 11/04/2013 TRIAL JUDGE: HON. MICHAEL M. TAYLOR TRIAL COURT ATTORNEYS: JAMES F. NOBLE, II MICHAEL J. TARLETON COURT FROM W HICH APPEALED: PIKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAMES F. NOBLE, III ATTORNEY FOR APPELLEE: MICHAEL J. TARLETON NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: AFFIRMED - 04/23/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ. DICKINSON, PRESIDING JUSTICE, FOR THE COURT: ¶1. In this wrongf

u l -death suit, the c i r c u i t j udge f ound that, because t he d ef endant was

an instrum entality of governm ental entities, t he suit was c ontrolled by the Mississippi Tort Claim s Act. And because the plaintif f f ailed t o f ile her com

plaint within the one-y ear statute of lim itations, the circuit judge granted the def endants sum m a r

y judgm e nt. W e af

f irm

.FACTS AND PROCEDURAL HISTORY

¶2. Cy nthia W oodall f

i l e d t h i s wrongf

u l-death action in the Pike County Circuit Court against AAA Am

bulance Service, I nc., and P h i llip McKey , AAA em ergency m edical technician-param edic. ¶3. On July 3, 2010, Cy nthia W oodall’s h usband suf f e r ed a cardiac a rrest w hile working

as a heating and cooling contractor at a hom e in McCom b, Miss i s s i p p i

. T h e h om eowner prom ptly called 911 at 11:54 a . m. , a nd the Pike County Civil Def ense/Em ergency Managem ent Agency transf e rred that call to A AA at 11:55 a.m . W oodall alleges that AAA then f ailed to respond and arrive in a tim ely m anner, and that t he am bulance crew, including McKey , f ailed to f ollow established protocol f or cardiac-arrest r esponse and m ade m inim al
attem pts to provide Mr. W oodall proper care. ¶4. On February 24, 2012, W oodall f iled this wrongf

ul-death action. AAA and McKey responded with a com

bined answer and m otion to dism i ss f or f ailure to tim ely f

ile, arguing that they were protected governm ental entities, and t h at the Mississippi Tort C laim s Act provided the sole procedural avenue f or W o odall’s claim

. T hey f urther argued that W oodall had f ailed to f i le within the Act’s o ne-y ear statute of lim itations, a n d that W oodall had f ailed to provide the Act’s required ninety -day pre-suit notice. ¶5. The circuit judge denied the m otion without prejudice, allowing the parties t o conduct discovery abo u t w h ether the def e ndants were entitled to Tort Claim s Act protection. The parties renewed t heir argum ents in a m otion f or s um m ary judgm e nt and response. F ollowing

2a hearing, the circuit judge d e t e r m ined that AAA and McKey were entitled to the Act’s

protections and dism issed W oodall’s com plaint. W oodall appealed. ANALYSIS ¶6. This sole quest i o n f o r o u r r eview is w hether A A A is entitled to T o rt Claim s Act protections. T he parties agree that if AAA is a n i n s t r u mentality of a governm e ntal entity , McKey shares its protection, and this claim was u ntim ely f iled. The parties likewise agree if AAA is not an instrum entality of a governm en t a l e ntity , this case was tim ely f iled, and

sum m ary judgm ent was im

proper. ¶7. O n a m o tion f

o r sum m ary judgm ent, the m ovant is entitled to a judgm e nt “i f t h e pleadings, depositions, answers to interrogatories and adm issions on f ile, together with the af f idavits, if any , show that there is no g enuine issue a s to any m a terial f act a nd that the

m oving party is entitled to a judgm ent as a m atter of law.” 1 “ I n considering a m otion f or

sum m ary judgm ent, courts view the evidence i n the light m ost f a v orable to the nonm oving party ,” 2 but whether an entity is subject to Mississi p p i T o r t Claim s A ct protection is a question of law reviewed de novo. 3 ¶8. The Mi s s i s s i p p i T o rt Claim s Act p rovides t he exclusive c ivil rem edy a gainst any
governm ental entity or its em p loy ee, 4 and all claim s brought under the Act are subject to a

1 M iss. R . C iv . P . 5 6 ( c).

2 A n d erso n v. L a V

e re , 1 3 6 S o . 3 d 4 0 4 , 4 0 9 (M i ss. 2 0 1 4 ).

3 B o liva r L eflo r e M

e d . A llia n ce, L L P v. W

illia m s , 9 3 8 S o . 2 d 1 2 2 2 , 1 2 2 6 (M iss. 2 0 0 6 ) (q u o t in g A m ik er v. D ru g s F o r L ess, In c. , 7 9 6 S o . 2 d 9 4 2 , 9 4 5 (M iss. 2 0 0 0 )).

4 M iss. C o d e A n n . § 1 1 -4 6 -7 (1 ) (R ev . 2 0 1 2 ). 3one-y ear statute of l im itations. 5 The Act def ines “ governm ental entity ” as “the state and [ its] political subdivisions.” 6 And, under the statute, a “political subdivision” includes
any . . . body c orporate other than t he s tate responsible f or governm ental activities only in geographic areas sm aller than that of the state, including, but not lim ited to, any
. . . instrumentality of t he st a t e , w hether or n ot the

. . . instrum entality h a s the authority to levy taxes or to sue or be sued in its o wn nam e. 7 AAA claim s it is an instrum entality of governm ental entities. ¶9. An instrum entality is “som ething that s e r v e s a s a n i n t e r me diary or agent through which one or m ore f

u n ctions of a controlling f orce a r e carried out: a part, organ, or subsidiary branch esp. o f a governing body

. ” 8 In past cases, we have f ound that independently incorporated entities can constitute instrum entalities o f governm ental entities subject to the Mississippi Tort Claim s Act. ¶10. In Bolivar Leflore Medical Alliance, L L P v . W i l l i am s , we considered whether a f am ily m edical c l i nic created as a joint venture between a com m unity hospital and several doctors constituted an instrum entality of t hat hospital subject to Tort Claim s Act protection. 9
W e discussed the f

act that the hospital created and oversaw the m edical practice; appointed two-thirds of t h e p r actice’s executive com m ittee, which controlled the practice’s business

5 M iss. C o d e A n n . § 1 1 -4 6 -1 1 (3 )(a) (R e v . 2 0 1 2 ).

6 M iss. C o d e A n n . § 1 1 -4 6 -1 (g ) (S u p p . 2 0 1 4 ).

7 M iss. C o d e A n n . § 1 1 -4 6 -1 (i) (S u p p . 2 0 1 4 ) (em p h asis ad d ed ).

8 W illia m s , 9 3 8 S o . 2 d at 1 2 2 8 (q u o tin g Web ster’s T h ird N ew In t’l D i ctio n a ry 1 1 7 2 (3 d ed . 1 9 8 6 )).

9 W illia m s , 9 3 8 S o . 2 d at 1 2 2 3

. 4af

f airs; a nd owned a n inety -eight percent interest in the practice. 10 W e also considered that the practice was created to assist the hospital’s m ission of providing healthcare services to the public. 11 These f

acts led us to the conclusion that the practice was an instrum entality 12 and, in so f

inding, we rejected the plaintif f ’s contention that the practice lost instrum entality
status by del e g a t i n g som e powers f rom the h ospital-controlled trustees to of f icers in the practice. 13 ¶11. Likewise, in E

state of Grim es v. Warrin g t o n , w e c oncluded that a sim ilar m edical practice was a n instrum entality of another com m unity hospital. 14 Rely i ng h eavily on William s , we noted that the com m unity hospital held a ninety -six percent interest in the practice while the rem aining interest was divided am ong i ndividual doctors. 15 W e e xplained
t h a t t h is partnership agreem ent dif f ered f rom that in William s because i ts executiv e

com m ittee actions r equired a unanim ous v ote, ef f ectively giving t he ind i v i d u a l d octors a
veto. 16 But we concluded that this f act cut both way s because that sam e veto power rested with the hospital, giving a governm ental entity substantial control. 17

10 Id . at 1 2 2 8

. 11 Id . at 1 2 3 1

. 12 Id . at 1 2 3 2

. 13 Id . at 1 2 3 1 -3 2

. 14 E sta te o f G rim es v. W

a r rin g to n , 9 8 2 S o . 2 d 3 6 5 , 3 7 0

- 7 1 (M iss. 2 0 0 8 ).

15 Id . at 3 6 8

. 16 Id . 17 Id . 5¶12. Here, AAA supported its m otion f or sum m ary judgm ent with exhibits showing that
governm ental entities e ntirely o wn AAA a n d e xercise substantial c ontrol over its operations. 18 I n 1 967, Harvel S m ith inf orm ed the City of H attiesburg and o ther i nterested entities that he intended to term inate his f or-prof it am bulance service, which had provided the only a m

bulance service in th a t a r e a . Recognizing the need f or a replacem ent, the Hattiesburg Board o f May or and C om m issioners adopted a resolution to e nter a joint venture with Forrest C ounty , Forrest County General Hospital, and Methodist H o s p i tal to own, operate, and ma i n t a i n a n onprof it am bulance service. That venture—AAA—had been incorporated by Forrest County General Hospital. ¶13. AAA’s original by laws lim it the corporation’s m em bership to the C ity of Hattiesburg,
Forrest County , Forrest County G eneral Hospital, and Methodist Hospital. T hey were later

am ended to rem ove Methodist Hospital. The by laws vest AAA’s m anagem e n t and control in a b oard of directors. The board has f our directors appointed by Forrest County General Hospital, one appointed b y Forrest County , and one a ppo i nted by the City of Hattiesburg. Vacancies are f

illed by the m em ber whose seat is vacant. ¶14. The b oard elects and m ay rem ove AAA’s of f icers. The board m a y h i r e a general

m anager who r

uns AAA’s operations. The board sets the com pensation f

or of f icers and the
g e n e r a l m anager, but the p resident or general m anager sets t he em ploy ees’ com

pensation. The president executes policies and program s that the board approves, and t he boar d m ay conf er other powers on the president and other of f icers bey ond their traditional roles.

18 A A A i s o w n ed b y th e C ity o f H attiesb u rg , F o rrest C o u n ty , an d F o rrest C o u n ty G e n e ral H o sp ital, a co m m u n ity h o sp ital. 6¶15. Each m em ber r e c e i v e s mo n t h ly f

inancial operating statem ents. The b oard m ust

em ploy auditors to audit AAA’s b o oks, r ecords, and operations y early and provide the results
to t he m em

b ers. Mem

bers m ay a l s o d e ma n d a d ditional audits at their o wn expense. The board determ i n es where AAA will provide am bulance services, s e ts rates a n d charges, and
prom ulgates regulations that g overn AAA’s operations. And AAA m ay be dissolved only by a unanim ous m e m

ber vote. ¶16. A A A ’ s o p e r a t i o n s a l s o are governed by A AA’s G e n eral Managem ent Service s Agreem ent with Forrest County General Hospital. T he Agreem ent appoints Forrest General Hospital “as the sole and exclusive entity acting f or and on behalf of AAA as m anager in the

r o u t i ne operations o f Service.” The Agreem ent recognizes that AAA m aintains “ult i ma t e control” over its “assets and af f airs of Service.” But it requires Forrest General to obtain,

m aintain, and r enew all l icenses and p e rm its needed to operate AAA; to work with accreditation and g overnm ental entities on AAA’s behalf ; to im plem ent A AA’s o perational procedures a nd policies; and t o prepare AAA’s b udgets. Forrest General provides AAA’s adm inistrator, chief f

inancial of

f icer, and d irector o f operations. Forrest General m akes all

e m p l o y m e n t r e l a t e d d e c i s i o n s

—

h i r i n g , fi r i n g , a

n d p r o m otions—regarding t h o s e p o s i t i o n s a

n d
sets their com

pensation

. F o r r e s t G eneral also has access to AAA’s records. But the Agreem ent provides that nothing in it should be c onstrued to m a ke Forrest General or AAA

an em p loy ee, partner, o r joint v e nture in the o ther, and that Forrest General shall rem ain an independent contractor.

7¶17. Under a second contract, AAA provides transportation f rom Forrest General’s m ain hospital cam

pus to its cancer center. Under t hat contract, AAA reports to Forrest G eneral’s Vice-President of Support Services, provides one am bulance f or exclusive hospital use, and

m ust com ply with F orrest General’s policies, pr o c e d u r e s , and by laws. T hat contract also contains a disclaim er that it should not be construed to m ake A AA a n agent, servant, or

em ploy e e of Forrest General or Forrest General an agent f or A AA. Instead, the contract

s t a t e s that “AAA is intended to b e, and shall be, an independent AAA and not an agent,
servant or em

ploy ee of Hospital.” ¶18. W e f

ind it clear that governm ental entities c ontrol A AA. The city , t he county , and the hospital select the entire board of directors, and that board m akes AAA’s strategic decisions.
F orrest County General Hospital controls AAA’s day -to-day m anagers. So g overnm enta l entities entirely

control both AAA’s big-picture and day -to-day decisions. ¶19. D e s p i t e t h i s g o v e r n m e ntal co n t r o l , h o w e v e r , Wo o d a l l a r g u e s t h a t A A A ’ s instrum entality status is def eated by the language i n each contract suggesting that AAA is an independent contractor providing services to Fo r r e s t C o unty General Hospital. 19 W oodall contends that this case should be disposed of based on our opinions i n P o p p e n h e i m er v. Estate of C

oyle and Flye v. Spotts , which held that volunteer f i re departm ents did not derive

19 A A A w as n o t p ro v i d in g serv ices f o r Fo rrest C o u n ty G e n e ral H o sp ital w h en th e acts in q u estio n o ccu rred

. In stead , A A A ’s o p e r a t i o n s in clu d e P i k e C o u n ty th ro u g h a co n tract w i th S o u th w est M ississip p i R eg io n a l M ed ical C en ter. B u t A A A d o es n o t claim in stru m en tality

statu s th r o u g h S o u th w est M ississip p i R eg io n al M ed ical C e n t er. 8instrum entality status f rom t he counties t hey served as i n d e p e n d ent contractors. 20 Those

cases “f ound ‘that a private com pany an d i t s e m

p loy ees who p rovide “governm ental activities” via contract with a political subdivision are not im m une f rom liability

under the MTCA.’” 21 But we noted i n Flye that the volunteer f ire departm ent never argued it was an instrum entality and f

ound that t h e departm ent’s “operations are not controlled by the county

. ” 2 2 Here, AAA’s operations are overwhelm ingly controlle d by governm ental entities, and those entities own AAA. ¶20. A l t e r

natively , W oodall argues that o ur d ecision should be guided by a 1998 letter f ro m AAA’s counsel to t he Mississipp i T o rt Claim s Board asserting that AAA was neither a political s ubdivision nor a governm ental entity a s def ined in t he Tort Claim s Act. W oodall contends t hat this letter creates a genuine issue of m aterial f act as to AAA’s instrum entality status, precluding sum m a ry judgem ent. W e disagree. ¶21. Wh e n the circuit judge considered the letter, he noted t h a t i t p o s s e s s e d l i mi t e d relevance because it predates our relevant caselaw. For t hat sam e reason, we f in d t h a t the letter f ails to create a genuine issue of m aterial f act. At the tim e AAA’s counsel wrote the letter, w e had not provided the now-dispositive c ontrol a n aly sis f rom William s and Grim es . W e f ail to see how AAA’ s v i e w o f i t s own status pre- William s and Grim e s can create a genuine i ssue of m aterial f act in the application of William s and Grim es . And, in any case,

20 P o p p en h e im er v. E

sta te o f C o yle , 9 8 S o . 3 d 1 0 5 9 , 1 0 6 5 ( M i s s . 2 0 1 2 ); F lye v. S p o tts , 9 4 S o . 3 d 2 4 0 , 2 4 7 -4 8 (M iss. 2 0 1 2 ).

21 P o p p en h eim er , 9 8 S o . 3 d at 1 0 6 5 (q u o t in g F lye , 9 4 S o . 3 d at 2 4 7 -4 8 ).

22 F lye , 9 4 S o . 3 d at 2 4 6

. 9a s w e h ave said above, an e ntity ’s claim to Mississippi Tort Claim s Act p rotection is a

question of law that we review de novo. 23 Stated another way , if we do not def er to a trial judge’s opinion regarding t his q u e stion, certainly we would n ot def er to the opinions expressed by

AAA’s counsel in a letter.

CONCLUSION ¶22. W e agre e w i t h t h e c i r c u it judge that AAA is an instrum entality o f governm ental entities, and that it i s entitled t o Tort Claim s Act protection. And because W o odall did not f ile her com

plaint within the one-y ear statute o f lim itations, the circuit judge prope rly granted

sum m ary judgm ent, so we af

f i rm . ¶23. AFFIRMED. WALLER, C.J., RANDOLPH, P.J., L A M AR, KITCHENS, C HANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

23 W i llia m s , 9 3 8 S o . 2 d at 1 2 2 6 (q u o tin g A m ik er 7 9 6 S o . 2 d at 9 4 5 )

. 1 0