Mississippi Advisory Opinions October 03, 1997: AGO 97-0618 (October 03, 1997)

Advisory Opinion Text

Mr. Greg Hardy

Mississippi Tort Claims Board

P. O. Box 267

Jackson, Mississippi 39205

Re: Uninsured Motorist Insurance Coverage for the State and political subdivisions

Dear Mr. Hardy:

Attorney General Mike Moore has received your request for an Official Opinion from this office and has assigned it to me for research and reply.

Your letter states and asks:

Please give your opinion as to whether the State or a political subdivision has authority to purchase uninsured motorist coverage where the benefit of such insurance would inure solely to the benefit of an employee injured by an uninsured motorist. There would be no benefit to the public entity on a bodily injury claim, but there would be coverage for damage to a public entity vehicle damaged by an uninsured motorist. The insurance industry does not have an uninsured motorist policy to cover property damage - only to a vehicle. All policies cover bodily injury and property damage.

Enclosed is a copy of MS AG Op., Hardy (July 21, 1995), wherein we opined that a state agency may purchase uninsured motorist and property damage insurance only if it is specifically granted authority to do so within the four corners of the statutes and laws which govern it, or if such is necessarily implied therefrom.

We find no statutes expressly permitting the purchase of uninsured motorist coverage by political subdivisions of the state.

In regard to counties, Section 19-7-7 of the Mississippi Code of 1972 provides in pertinent part:

The board of supervisors may have the courthouse, jail and other buildings of the county, the furniture thereof, the books of the county, and the personal property of the county, insured against loss by fire, cyclone and tornado, and other hazards. The board of supervisors may carry steam boiler, plate glass and other miscellaneous casualty insurance against loss of county property, as in the discretion of the board of supervisors may seem proper.

The phrase “personal property of the county” includes motor vehicles owned by a county. Therefore, it appears at first blush that Section 19-7-7 permits a board of supervisors to purchase uninsured motorist property damage insurance. However, Section 83-11-101 (3) prevents such a purchase without also purchasing uninsured motorist bodily injury insurance:

(3) The insured may reject the property damage liability insurance coverage required by subsection (2) and retain the bodily injury liability insurance coverage required by subsection (1), but if the insured rejects the bodily injury liability coverage he may not retain the property damage liability coverage. No insured may have property damage liability insurance coverage under this section unless he also has bodily injury liability insurance coverage under this section.

Section 19-3-40, the so-called “home rule” statute for counties, furnishes additional powers to counties:

(1) The board of supervisors of any county shall have the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi; and any such board shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances. Except as otherwise provided in subsection (2) of this section, the powers granted to boards of supervisors in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi. ***.

(2) This section shall not authorize the board of supervisors of a county to (a) levy taxes other than those authorized by statute or increase the levy of any authorized tax beyond statutorily established limits, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for county elections or establish any new elective office, (d) use any public funds, equipment, supplies or materials for any private purpose, (e) regulate common carrier railroads, (f) grant any donation, or (g) without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the county does not have a property interest; unless such actions are specifically authorized by another statute or law of the State of Mississippi.

A purchase of uninsured motorist bodily insurance is within the term “county affairs” and such a purchase is not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972 , or any other statute or law of the State of Mississippi, and does not fall within the prohibition of sub-section (2) of Section 19-3-40. Therefore, it is the opinion of this office that a board of supervisors may purchase uninsured motorist coverage when some of the benefit of such insurance would inure to the employee who is exposed to risk because of his employment.

The legislature has supplied similar powers to municipalities in Section 21-37-45, which states:

The governing authorities of municipalities shall have the power and authority to insure municipal property, including buildings, furniture, books and records, and all other property, against loss by fire and tornado, and to carry such amount of employer's liability, steam boilers, plate glass and other miscellaneous casualty insurance as in the discretion of the governing authorities of the municipality may be deemed proper, and to pay for the premiums thereof out of the municipal treasury.

The phrase “other property” includes motor vehicles owned by a municipality, and, but for Section 83-11-101 (3), would permit a municipality to purchase uninsured motorist property damage insurance.

Section 21-17-5, the so-called “home rule” statute for municipalities, furnishes additional powers to municipalities:

(1) The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances. In addition to those powers granted by specific provisions of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances. Except as otherwise provided in subsection (2) of this section, the powers granted to governing authorities of municipalities in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi.

(2) Unless such actions are specifically authorized by another statute or law of the State of Mississippi, this section shall not authorize the governing authorities of a municipality to (a) levy taxes of any kind or increase the levy of any authorized tax, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for municipal elections or establish any new elective office, (d) change the procedure for annexation of additional territory into the municipal boundaries, (e) change the structure or form of the municipal government, (f) permit the sale, manufacture, distribution, possession or transportation of alcoholic beverages, (g) grant any donation or (h), without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the municipality does not have a property interest.

A purchase of uninsured motorist bodily insurance is within the term “municipal affairs” and such a purchase is not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972 , or any other statute or law of the State of Mississippi, and does not fall within the prohibition of sub-section (2) of Section 21-17-5. Therefore, it is the opinion of this office that a municipality may purchase uninsured motorist coverage when some of the benefit of such insurance would inure to the employee who is exposed to risk because of his employment.

Very truly yours,

Mike Moore Attorney General.

Edwin T. Cofer Special Assistant Attorney General.