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RICHARD KIM STRAIT v. PAT HARRISON WATERWAY DISTRICT

MARCH 02, 1988

RICHARD KIM STRAIT
v.
PAT HARRISON WATERWAY DISTRICT



BEFORE ROY NOBLE LEE, ROBERTSON and ANDERSON

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Richard Kim Strait appeals from a summary judgment entered against him and in favor of Pat Harrison Waterway District in the Circuit Court of Lauderdale County. The complaint sought damages for personal injuries sustained by Strait at a waterslide amusement part operated by the appellee. The issues presented are incorporated in the following assigned error:

THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEE, THE PAT HARRISON WATERWAY DISTRICT, ON THE BASIS OF SOVEREIGN IMMUNITY AND IN DENYING THE APPELLANT'S MOTION TO RECONSIDER JUDGMENT.

 Appellee, Pat Harrison Waterway District, is a state agency charged with the construction of reservoirs, water supplies, and recreational facilities throughout a fifteen-county area in the State of Mississippi. Mississippi Code Annotated 51-15-101, et seq. (1972). On July 4, 1984, appellant, his wife and their two children went to a recreational facility operated by the district as "Okatibbee Splash Down Country," a waterslide amusement park located on Okatibbee Lake near Meridian, Mississippi. The family took several rides on three waterslides at the park, and on one of the rides, appellant suffered a severe injury to his left ankle.

 On October 10, 1984, appellant filed a complaint against appellee for personal injuries sustained on the ride, seeking damages of four hundred sixty-two thousand, two hundred twenty-six dollars twelve cents ($462,226.12). Discovery principally consisted of the depositions of (1) appellant; (2) appellee's engineer who designed the waterslide; and (3) another engineer who appraised the safety of the waterslide. Appellee moved for judgment on the pleadings, claiming the absolute defense of sovereign immunity. The lower court agreed that sovereign immunity barred appellant's claim, and summary judgment was entered in favor of appellee.

 I.

 DID THE LEGISLATURE IN MISSISSIPPI CODE ANNOTATED 51-15-120 WAIVE THE SOVEREIGN IMMUNITY OF PAT HARRISON WATERWAY DISTRICT TO THE EXTENT OF GENERAL LIABILITY INSURANCE PURCHASED BY THE DISTRICT IN THE SUM OF $2,500,000?

 Pruett v. City of Rosedale, 421 So.2d 1046 (Miss. 1982), abolished the doctrine of sovereign immunity prospective from July 1, 1984. In response to Pruett, the legislature enacted the Sovereign Immunity Act of 1984, which, as amended, extended the prospective date for the abolition of sovereign immunity to July 1, 1988, for the State of Mississippi, and October 1, 1988, for its political subdivisions. Mississippi Code Annotated 11-46-1, et seq. (Supp. 1987). The act specifically provides that claims against the State or its subdivisions arising before the 1988 abolition dates

 shall not be affected by this chapter but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So.2d 1046, and by the statutory law governing sovereign immunity in effect from and after the passage of Chapter 474, Laws of 1985.

 Mississippi Code Annotated 11-46-6 (Supp. 1987). *fn1

 Appellant's claim arose on July 4, 1984, and is controlled by pre-Pruett caselaw and the Sovereign Immunity Act, as amended. Under this law, the State and its subdivisions are not subject to suit in the absence of express statutory authority, and such authority cannot merely be implied unless the implication is made clear and unambiguous by the enabling statute. Lowndes County District 5 v. Miss. State Hwy. Comm'n, 220 So.2d 349 (Miss. 1969). See also French v. Pearl River Valley Water supply Dist., 394 So.2d 1385 (Miss. 1981); City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223 (1940).

 Mississippi Code Annotated 51-15-120 (Supp. 1987), provides:

 In addition to the acts authorized by Section 51-15-119, the Pat Harrison Waterway District, through its board of directors, is hereby empowered, in its discretion, to purchase comprehensive general

 liability insurance in such amount or limit as the board of directors may deem advisable in order to protect and indemnify said district against damages resulting from an accident. Premiums accruing on insurance purchased under the provisions of this section shall be paid from the general fund of the district.

 This section shall stand repealed from and after October 1, 1988.

 Pursuant to this authority, appellee obtained two liability insurance policies totalling two million five hundred thousand dollars ($2,500,000) in liability coverage. The policies were in force at the time of appellant's accident. Appellant contends that 51-15-120 is an implied waiver of sovereign immunity and that such immunity is waived to the extent of the insurance coverage purchased by appellee.

 In French v. Pearl River Valley Water Supply District, supra, the Court held that the mere purchase of liability insurance by a governmental entity does not waive sovereign immunity. However, the Court did note:

 It is true that some jurisdiction [sic] take the view that a government unit is liable for its torts to the extent that a liability insurance policy protects it, because the insurance, to the extent that it protects the public funds, removes the reason for immunity from suits, i.e., if the public funds are protected by liability insurance, the justification and reasoning for the rule of immunity are removed.

 However, the majority of jurisdictions adhere to the rule that there can be no liability against the State or its political subdivisions, unless expressly or impliedly created by statute.

 394 So.2d at 1387 (citations omitted).

 In Joseph v. Tennessee Partners, Inc., 501 So.2d 371 (Miss. 1987), the Court said:

 A government entity has not waived immunity from suit simply because it has obtained liability insurance ...


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