author: SMITH, P.J., PITTMAN, C.J., WALLER, J., McRAE, P.J.,

text:
    W.O. “Chet” DILLARD and Others in Like or Similar Circumstances v. Governor Ronnie MUSGROVE, Lieutenant Governor Amy Tuck, House Speaker Tim Ford, and the Public Employees Retirement System of the State of Mississippi in Their Official Capacity and Not Individually.
    No. 2001-CP-00247-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2003.

      W.O. “Chet” Dillard, Pro Se, E. Michael Marks, Jackson, attorney for appellants.
    Roger Googe, Jackson, David B. Miller, attorneys for appellees.
   SMITH, P.J.,

for the Court.

¶ 1. W.O. “Chet” Dillard filed a complaint in Hinds County Chancery Court alleging that the Supplemental Legislative Retirement Plan (“SLRP”) violates his equal protection rights guaranteed under the Fourteenth Amendment of the U.S. Constitution since legislators and the Lieutenant Governor receive retirement benefits under both the Public Employees’ Retirement System (“PERS”) and SLRP while other state employees only receive benefits under PERS. The chancery court denied Dillard’s motion for summary judgment and granted the M.R.C.P. 12(b) motion to dismiss filed by Governor Ronnie Musgrove, Lieutenant Governor Amy Tuck, House Speaker Ford, and PERS (“defendants”).

¶2. On appeal Dillard argues that the trial court erroneously treated the defendants’ motion to dismiss as a motion for summary judgment and reasserts his argument that SLRP violates his equal protection rights. He also challenges only legislators being allowed to include expenses in “earned compensation” to be attributed toward retirement. Further, he asserts that PERS is not a state agency, that it is improper for liaison members of the Legislature to meet with the Board of Trustees of PERS for the benefit of the Legislature, and that the Lieutenant Governor cannot simultaneously be a member of the executive and legislative branches of the state government.

¶ 3. We affirm the judgment of the chancery court.

FACTS

¶ 4. Dillard has served Mississippi in several capacities over the years and is now receiving state employee retirement benefits under PERS, Miss.Code Ann. §§ 25-11-1 to 25-11-145 (Rev.1999 & Supp.2002). SLRP was enacted in 1989 to give legislators, as well as the Lieutenant Governor, retirement benefits in addition to those they receive under PERS. Miss. Code Ann. §§ 25-11-301 to 25-11-3109 (Rev.1999 & Supp.2002). Other state employees, including the Governor, draw from only one retirement system. The State contributions to retirement, which are a percentage of each member’s compensation that the State pays to the Board of Trustees of PERS, are higher under SLRP than under PERS. Also, “all remuneration or amounts paid, except mileage allowance” are included as compensation under SLRP, but not under PERS. Compare Id. § 25-11-307(1) with Id. § 25-11-103. Further, SLRP allows legislators and the Lieutenant Governor to receive up to 100% of what they receive under PERS. Id. § 25-11-309.

¶ 5. During the 2000 Regular Session, the Legislature amended SLRP to substantially increase participant and State contribution percentages to SLRP. After much public criticism, Governor Musgrove called the Legislature into extraordinary session wherein the increased contribution percentages were repealed. Before the enactments to SLRP were repealed, Dillard filed a complaint in the Chancery Court of the First Judicial District of Hinds County against defendants seeking declaratory and injunctive relief alleging that SLRP violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.

¶ 6. The defendants filed a M.R.C.P. 12(b) motion to dismiss asserting, among other grounds, that Dillard’s prayer for relief was mooted by the intervening repeal of portions of Miss.Code Ann. §§ 25-11-307 & -309, that he failed to state an equal protection violation, and that he failed to state a claim under Article 4, § 46 of the Mississippi Constitution. Dillard subsequently filed a motion for summary judgment supported by his affidavit. The court granted defendants’ motion to strike certain portions of Dillard’s affidavit. As the case proceeded, all parties agreed there were no genuine issues of material fact and the issues presented were entirely legal issues. After oral arguments on the motions, the special chancellor, appointed by this Court, issued an opinion and final judgment denying Dillard’s motion for summary judgment and granting the motion to dismiss on the merits.

¶ 7. Dillard timely appealed to this Court and later sought recusal of all Justices who previously served in the Legislature as well as consolidation with another case before us at the time, Public Employees Retirement System v. Hawkins, 781 So.2d 899 (Miss.2001), wherein all Justices had recused themselves. We denied consolidation and discretionary recusal and now address the issues raised in his appeal here. Even though the contribution percentages of the amendments to SLRP were repealed, the broader challenge that SLRP violates the equal protection clause is still at issue.

DISCUSSION

¶ 8. This is a case of first impression for this Court. The issue is whether a specified portion of a branch of state government and select groups of another branch can supplement over and above the general retirement system. The Legislature has carved out an exception for Mississippi Highway Safety Patrol officers to have a separate retirement system with more benefits. See Miss.Code Ann. §§ 25-13-1 to -33 (Rev.1999 & Supp.2002). The Fifth Circuit upheld that statute as constitutional and noted that the legislative purpose of the statute was attributed to the dangerous nature of a patrolman’s job. See Anderson v. Winter, 631 F.2d 1238, 1240 (5th Cir.1980).

¶ 9. When providing varying benefits to different classes of employees the only requirement is to “look to see whether the distinction has a rational relationship to a legitimate state interest.” Jackson Firefighters Ass’n Local 87 v. City of Jackson, 736 F.2d 209, 213 (5th Cir.1984). Further, “[a] legislative enactment is cloaked with a presumption of constitutionality, and in order to rebut this presumption the unconstitutionality must appear beyond reasonable doubt.” State v. Jones, 726 So.2d 572, 574 (Miss.1998) (citation omitted). Since the SLRP statute does not interfere with a fundamental right and does not create a suspect class, it violates the equal protection clause only if we find that the statute is not “rationally or reasonably related to a proper legislative purpose.” Id. at 574.

¶ 10. The U.S. Supreme Court has spoken on this matter:

equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 321, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).

¶ 11. As articulated by the defendants, the rational bases for the enactment of SLRP are (1) the inherent uncertainty in holding a legislative office, (2) the hours during which the legislators are on call to their constituents; (3) the time taken away from other gainful employment or business enterprise; and (4) the need to attract capable, qualified persons to these elected positions. These reasons are certainly plausible, and there was clearly a reasonable basis for the Legislature to create SLRP and a rational relationship between its provisions and legitimate State interests. Clearly, absence from other gainful employment for, at times, an indefinite period of time would potentially put a terrible strain on that business. The uncertainty in serving in the Legislature is a legitimate concern. Additionally, the need to attract capable, qualified people to these four-year elective positions is certainly needed incentive. While the factors listed might be different from a patrolman, nonetheless, they are legitimate, reasonable, and plausible. Thus judicial intervention by this Court is unwarranted.

¶ 12. This Court has held that “a state may confer benefits on some and not others under equal protection, so long as its decision is rational.” Westbrook v. City of Jackson, 665 So.2d 833, 838 (Miss.1995). Furthermore, in apportioning limited resources, governments “need not provide the same level of benefits to all recipients.” Baker v. City of Concord, 916 F.2d 744, 748 (1st Cir.1990). The rational basis standard of review is highly deferential to the legislative branch. Turner v. Glick-man, 207 F.3d 419, 426 (7th Cir.2000). Also, the United States Supreme Court has held that statutory distinctions based on the character of employment (i.e., service as a legislator versus as a state trooper) rather than its duration do not violate the equal protection clause. United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 178, 101 S.Ct. 463, 66 L.Ed.2d 368 (1980).

¶ 13. Although some might question the wisdom, fairness, or logic of the Legislature’s decision in establishing SLRP, that is not the function of this Court. It is clear United States Supreme Court precedent holds that so long as it is based upon the rational basis, the Legislature may properly establish a different system of benefits for a specific group such as we have here, i.e., Legislators and the Lieutenant Governor. In referring to the rational basis test, the Supreme Court stated: “Where there are ‘plausible reasons’ for Congress’ action, ‘our inquiry is at an end.’ ” Beach Communications, 508 U.S. at 313-14, 113 S.Ct. 2096 (quoting, Fritz, 449 U.S. at 179, 101 S.Ct. at 461). The Fifth Circuit has addressed this issue and in rejecting the claim of the Bureau of Narcotics Agents who challenged the separate retirement plan that the Mississippi Legislature established for the Mississippi Highway Patrol, noted that “if the challenged classification bears a reasonable relationship to the accomplishment of some legitimate governmental objective, the statute must be upheld.” Anderson, 631 F.2d at 1241. Additionally, that court noted that even though the argument of the narcotic agents appeared reasonable, the argument “is made in the wrong forum. It must be addressed to the Mississippi Legislature.” Id. Thus, the remedy Dillard seeks from this Court is not judicial, but is political. The proper forum to address his concerns is the Legislature which clearly has the sole authority to establish different systems of benefits for any group including themselves, so long as the judgment of the Legislature has a rational basis for classifying that group differently.

¶ 14. Under Dye v. State ex rel. Hale, 507 So.2d 332, 344-47 (Miss.1987), the Lieutenant Governor may properly exercise some legislative functions as delegated by the Senate. Therefore, the Legislature is within its authority to allow the Lieutenant Governor the privilege of participation along with the Legislature in SLRP.

¶ 15. The benefits which Dillard receives under PERS are in no way diminished by SLRP. Thus, he has failed to state a claim which could be deemed a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution. See Jackson Firefighters, 736 F.2d at 213. Dillard has alleged no harm that he has suffered which can be distinguished from any other retiree who receives PERS benefits. Absent an allegation that Dillard’s benefits were impaired, his complaint alleging SLRP created disproportionate benefits did not state a claim and Dillard’s challenge must fail. See Heath v. New York State Teachers Ret. Bd., 79 A.D.2d 838, 435 N.Y.S.2d 136 (N.Y.App.Div.1980). See also Patton v. Fed. Security Agency, 69 F.Supp. 282 (E.D.N.Y.1946).

¶ 16. Here there are “plausible reasons” for the Legislature’s actions and when the rational basis test is applied and considered, this Court cannot judge the wisdom of the adoption of SLRP. Such is the prerogative of the Legislature. There are clearly no material factual issues yet to be determined. We have it all before us at this time for decision. Dillard cannot prevail as a matter of law.

CONCLUSION

¶ 17. There is no violation of the equal protection clause. See Fritz, 449 U.S. at 178 n. 11, 101 S.Ct. 453. The judgment of the chancery court is affirmed. Additionally, we affirm the special chancellor’s holding that the Attorney General may represent PERS. It is unnecessary to address the other issues raised on appeal.

¶ 18. AFFIRMED.

PITTMAN, C.J., WALLER, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. PITTMAN, C.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J., WALLER AND CARLSON, JJ. WALLER, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J., SMITH, P.J., AND CARLSON, J. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. COBB AND DIAZ, JJ., NOT PARTICIPATING.

PITTMAN, C.J.,

Concurring.

¶ 19. I concur with the majority and write separately only to address Presiding Justice McRae’s unprecedented behavior today. Today, only hours before this case was scheduled to be handed down, Justice McRae insisted that an internal e-mail sent by Justice Waller to the members of the Court be added to his dissent, believing, incorrectly, that it supports his attack on Justice Waller. No order of recusal has ever been issued by Justice Waller in this case, nor has any party ever sought his recusal. A majority of the Court has asked Justice McRae not to publish this informal, internal communication, and he has chosen to disregard that request. A majority of the Court meeting en banc approves this statement.

¶ 20. In order for an appellate court to function, justices must be able to communicate their. thoughts to other justices in confidence by conference, memorandum or e-mail. It is through this communication and exchange of their initial thoughts that the Court comes to final decisions which are announced in the official opinions and orders of the Court. Until today, those communications have been held confidential.

¶ 21. This revelation of internal communications of the Court, over the objection of a majority of the Court’s justices, appears to be in direct violation the Code of Judicial Conduct, including, but not limited to Section 2A and Section 3B(11). This action will be reported to the Mississippi Commission on Judicial Performance for appropriate disciplinary action.

SMITH, P.J. AND WALLER AND CARLSON, JJ., JOIN THIS OPINION.

COBB, J. NOT PARTICIPATING ON THE MERITS OF THE CASE, JOINS THIS OPINION AS ADDRESSING MATTERS OF COURT ADMINISTRATION.

WALLER, J.,

Concurring.

¶ 22. I concur with the majority, and I write separately only to state that the day before this opinion was to be handed down and issued to the public, Presiding Justice McRae inserted footnote #4 to his dissent, in which he relates that I had previously recused myself, and then later began participating in the ease, “knowing that one of the litigants is his commander in chief in the National Guard.” I presume that Presiding Justice McRae is referring to Governor Ronnie Musgrove.

¶ 23. To set the record straight, I have neither recused myself in this case nor entered an order of recusal. No party has filed a motion asking for me to recuse myself. Presiding Justice McRae has never chosen to present my participation in this case as an issue to the Supreme Court through established internal operating procedures.

¶ 24. I did, however, vote “not participating” in one circulation. The distinction between recused judges and judges who fail to take part for other reasons is fundamental. The law — statutes, rules and case law — mandates the nonparticipation of a judge disqualified by recusal. To recuse or disqualify a judge means to debar legally. A judge who merely abstains on a vote is a voluntary non-voter. See Arnold v. Eastern Air Lines, 712 F.2d 899, 903 n. 3 (4th Cir.1983) (en banc), cert. denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984).

¶ 25. In conclusion, I believe that Justice McRae has created no reasonable basis for questioning my impartiality. I have done absolutely nothing improper or unethical. I deny that I possess any interest, bias, prejudice, or other mental attitude which would preclude me from acting objectively, fairly and impartially in the above entitled matter.

PITTMAN, C.J., SMITH, P.J., AND CARLSON, J, JOIN THIS OPINION.

McRAE, P.J.,

Dissenting.

¶ 26. While I agree that the Special Judge correctly held that the Attorney General may represent PERS, I disagree with the majority’s affirmance of the trial court’s dismissal under M.R.C.P. 12(b). As a member of PERS, Dillard has standing to bring this challenge to the supplemental benefits conferred on other PERS members. The majority strains at a gnat’s hair to find a reasonable basis for a select group to compensate itself over and above the general public employees of this State. In effect it allows the Legislature to enhance themselves with a silent pay raise and allow it to circumvent the Constitution at the expense of all other state employees in the retirement system. See Miss.Code. Ann. § 96 and § 272(A). This is not like the Highway Patrol group in which they set up a separate retirement system with separate boards of trustees and giving a legitimate reason for having done so. This is a “retirement system” within the retirement system causing the other participants to have to incur expenses to pay for a few to have additional benefits over and above the state employees under this system. To say that Dillard has no standing to file this suit is disingenuous. Based on the simple filing of a motion to dismiss under M.R.C.P. 12(b) the trial court cut him off by not allowing any proof of facts. Then, in its rush to grant the legislators this extra benefit over and above all other state employees, the majority uses facts that are not in the pleadings to preclude Dillard from going forward. One wonders if the majority is seeking certain legislation to be part at this time. This simply should not occur under the equal protection clause of our Constitution. The four factors that the majority lists as reasons would apply to any public official in this State. To say that the Lieutenant Governor who is a member of the executive branch and who has some duties in the legislative branch can be pulled into and be given benefits because of it, is disingenuous. This case should be reversed and remanded. Accordingly, I respectfully dissent.

¶ 27. Our highway patrolmen have a separate retirement system, and the cost of administering that system is absorbed by the members of that system. The expenses for SLRP are paid by everyone under PERS. See Miss.Code Ann. §§ 25-13-27 & 25-11-307(3). Moreover, SLRP is not a separate retirement system, but rather is a supplement or addition to PERS for members of the Legislature and the Lieutenant Governor. Therefore, the majority’s comparison to the Highway Patrol’s separate retirement system is of little import here.

¶ 28. This case comes down to whether a selective group can have additional benefits, and in essence, double dip from the same general retirement system. There was no actuarial study done as to the impact that all other employees would suffer at the hands of a select few. The rational basis for allowing the Patrol to have a separate retirement system from the general system is completely different and distinguishable from the case sub judi-ce. However, the Legislature has attempted to use the same rational basis factors that applied to the Highway Patrol in Anderson (the comparative dangers and the need to attract the most capable and qualified persons) and certain firefighters and policemen in Jackson Firefighters (the time of employment and the fiscal integrity of the system) to apply to a supplemental fund of the general retirement fund for legislators and the Lieutenant Governor.

¶ 29. As the majority states, the rational basis factors given for the enactment of SLRP are (1) the inherent uncertainty in holding a legislative office, (2) the hours during which the legislators are on call to their constituents; (3) the time taken away from other gainful employment or business enterprise; and (4) the need to attract capable, qualified persons to these elected positions.

¶30. The invocation of these factors, however, is but a weak attempt at parroting the factors used for highway patrolmen and firefighters in order to establish a rational relation to a legitimate state interest so that the statute would seemingly hold constitutional muster. Indeed, “uncertainty in holding office” is in no way comparable to the potentially deadly peril patrolmen face on a daily basis. While these factors may be legitimate if the Legislature established a separate retirement system, that is not what has been created here. SLRP is a supplemental system under which the Lieutenant Governor and members of the Legislature are entitled to receive benefits in addition to the benefits they receive under PERS.

¶ 31. It must be determined, therefore, whether the equal protection clause is violated by allowing a particular group to double dip by drawing supplemental benefits from the same retirement system. To make this determination, more facts need to be established.

¶ 32. The trial court essentially treated the defendants’ Rule 12(b) motion to dismiss as a motion for summary judgment. Both sides agreed that no facts were needed for the motion for summary judgment. However, the court went further on the pending motion to dismiss and dismissed it, holding that there was no substantial basis under equal protection. In this case, other factors need to be resolved before that determination can be made, including how much money has been put into SLRP by the legislative members from which they can draw under the bill that was pending at the time. Also, the Legislature repealed only a portion of the statute; the supplementation is still there. Further, the Legislature selectively put in as a participant the Lt. Governor, a member of the executive branch who also has duties in the legislative branch.

¶ 33. The Lieutenant Governor is a full-time member of the executive branch, but since she serves as President of the Senate when the Legislature is in session, she is considered part of the legislative branch for purposes of SLRP and is allowed to draw retirement under both PERS and SLRP. This dual classification creates an arguable violation of the separation of powers provision of our Constitution.

¶34. The Mississippi Constitution of 1890, Art. 1, § 1 provides:

The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

¶ 35. Further, Article 1, Section 2 states:

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

¶ 36. While we have held that it is not a violation of the separation of powers doctrine for the Lieutenant Governor, a full-time member of the executive branch and the President of the Senate, to exercise certain legislative functions as delegated by the Senate through Senate Rules and not in violation of our Constitution, we have not addressed the dual capacity in relation to collecting from one retirement system twice. See Dye v. State ex rel. Hale, 507 So.2d 332 (Miss.1987). This matter clearly needs to be addressed by the trial court.

While the trial court dismissed this under M.R.C.P. 12(b) the trial court did not allow additional facts to be pled and granted a final judgment. Under our rules, a plaintiff is entitled to amend to allege additional facts, M.R.C.P. 15(a), and this was not done. Indeed, additional factors need to be addressed and resolved to determine the constitutionality of SLRP. The constitutionality of the SLRP retirement system for this select group should not be resolved on a Rule 12(b) dismissal, it should only be done after a full trial. While the legislators may be able to prove that there is a reason for a separate retirement system, it should not be allowed to have their own retirement system based on the shoulders of all public employees that come under PERS. This was not done with the Highway Patrol or the Bureau of Narcotics. The majority has opened a Pandora’s box; any set of public officials can give the same “logical” rational basis of factors to grant separate retirement systems for any group that can curry the favor of the' legislators. “The inherit uncertainty in holding a office, the hours the legislators work, on call to their constituents, the time taken away from other gainful employment or business enterprise, and the need to attract capable qualified persons to this position” will fit any public office, and there is no basis given as to why none of the others particularly firefighters cannot get the same SLRP retirement benefits.

¶ 37. On this limited record, I refuse to accept the apparent premise of both the Legislature and the majority that a few privileged members of PERS are more equal than others. Accordingly, I dissent.

APPENDIX A.

From: WALLER, WILLIAM L.

Sent: Thursday, December 19, 2002 2:17 PM

To: < < SC Justices > >

Cc: << SC J.A. >>; Kirchmayr, Steve; Sexton, Donna

Subject: Dilliard v. Musgrove

At the last en banc this case was taken up. OED, KBC and I were N/P. Following the en banc, ELP asked that I reconsider participating because of a divided court and the lack of justices participating. Apparently KBC and OED have actual, potential financial conflicts. I did not participate because Mr. Dilliard was appointed Commissioner of Public Safety during the Waller administration and he ran against me for the Supreme Court in 96. Also the civil division of the AG’s office is representing the Gov in his official capacity. The attorneys from the civil division of the AG’s office representing me in the Doe v. Waller case, Hunt Cole and Harold Piz-zetta, do not appear to be involved in the Dilliard case. In any event, after having considered everything I intend to now participate. wlw

      . Dillard has served as a Chancellor, the Commissioner of Public Safety, a District Attorney, an Assistant Attorney General, and as a member of the military.

      . Member contributions were increased from 3% to 6%. The State was to pay an amount equal to member contributions termed "normal contributions”, i.e. match the 6%, in addition to an "accrued liability contribution.” The accrued liability contribution was increased from 6 1/3% to 17.09% through the 2000 amendments. See Miss.Code Ann. § 25-11-307 (Supp.2002) Amendment Notes.

      . Normal contribution percentages were returned to 3%, and the accrued liability contribution was returned to 6 1/3%. See id.

      . Justice Pittman talked Justice Waller, who had recused himself, to get back into the case in order to have a majority knowing that one of the litigants is his commander in chief in the National Guard. See Appendix A.


source: Caselaw Access Project

author: EASLEY, J.,

license: Public Domain

text:
    TRAVELERS PROPERTY CASUALTY CORP. v. Teresa STOKES.
    No. 2001-IA-00089-SCT.
    Supreme Court of Mississippi.
    Feb. 20, 2003.

      Hugh Gillon, IV, attorney for appellant.
    Tylvester Otis Goss, Jackson, Bryant Donlevy Guy, attorneys for appellee.
   EASLEY, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. This case arises from a motor vehicle accident that occurred on October 23, 1997, in Clarke County, Mississippi, involving Teresa Stokes (Stokes) and an uninsured motorist (UM), Daniel Wayne Hodge (Hodge). At the time of the accident Stokes was operating a school bus in the course and scope of her employment at Friends of Children of Mississippi (FCM). Stokes sued Travelers Property Casualty Corporation (Travelers), FCM’s automobile insurance carrier, seeking UM coverage. However, FCM and Travelers contend that the policy did not contain UM coverage at the time of the accident. The case was transferred from the Circuit Court of the First Judicial District of Jasper County, Mississippi, to the Circuit Court of Madison County, Mississippi. Travelers filed a motion for summary judgment which was subsequently heard by the trial court. At the hearing, the trial court denied Travelers’s motion and entered an order to that effect.

¶ 2. Travelers filed a motion for reconsideration which was denied by the trial court. The trial court determined that Travelers’s failure to produce the written rejection of UM benefits created a genuine issue of material fact. The trial court denied Travelers’s motion for summary judgment and request for declaratory relief. Furthermore, the order granted certification pursuant to M.R.A.P. 5(a). In a subsequent order, the trial court granted Travelers permission to seek an interlocutory appeal to this Court. This Court granted Travelers’s petition for interlocutory appeal.

¶ 3. The Travelers policy which was in effect at the time of the subject accident was a commercial auto policy with effective dates from December 1, 1996, to December 1, 1997. Said policy was a renewal of the insurance originally procured in 1992. The original policy was written with effective dates of December 1, 1992, to December 1, 1993, and originally included UM coverage.- When the policy was next renewed with effective dates of December 1, 1993, to December 1, 1994, it included UM coverage.

¶ 4. Yolande Allen (Allen), Deputy Director of FCM, swore in her affidavit that before the December 1, 1994, renewal occurred, she, on behalf of FCM, met with Statewide General Insurance Agency, Inc. (Statewide) to discuss whether FCM would continue to have UM coverage. Allen stated in her affidavit that FCM willingly, knowingly and voluntarily rejected, in writing, all UM coverage on the subject Travelers’s automobile liability policy effective for December 1, 1994, through December 1, 1995. Allen further stated that all subsequent renewals of the Travelers’s policy did not contain any UM coverage. Accordingly, Allen provided in her affidavit that at the time of the accident on October 23, 1997, FCM’s automobile liability policy did not provide any UM coverage.

¶ 5. Matt Thomas (Thomas) handled FCM’s account since 1978 for Statewide and handled all subsequent renewals. Meetings were held to discuss the advantages and disadvantages of UM coverage, and FCM decided to drop the UM coverage from its policy. In Thomas’s affidavit, he stated that following at least one meeting he attended with FCM’s representatives to discuss UM coverage, FCM opted to renew its automobile liability policy in December of 1994, knowingly, willingly and voluntarily rejecting, in writing, all UM coverage for the policy effective December 1,1994, through December 1, 1995. Thomas stated that all subsequent renewals on December 1, 1995, 1996 and 1997, were made without any changes to the UM coverage. Thomas’s affidavit supports FCM’s position that it did not have any UM coverage under its Travelers’s policy since December 1,1994.

¶ 6. Randy Wiggins (Wiggins), an underwriter for Travelers, provided by affidavit that he conducted a “diligent search of Travelers’[s] files and records in an effort to find the written rejection of uninsured motorist coverage for the Friends of Children of Mississippi, Inc. policy.” Wiggins concluded that after his unsuccessful search that the “written rejection of uninsured motorist coverage had been lost.” Nothing in the record demonstrated that the subject policy contained UM coverage at the time of the accident.

DISCUSSION

I. Whether the trial court erred in denying Travelers’s motion for summary judgment.

¶ 7. This Court applies a de novo standard of review on appeal from a grant of summary judgment by the trial court. Jenkins v. Ohio Cas. Co., 794 So.2d 228, 232 (Miss.2001); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995). Summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c).

¶8. The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). See also Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). “If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.” Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001).

¶ 9. “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Tucker, 558 So.2d at 872.

Of importance here is the language of the rule authorizing summary judgment “where there is no genuine issue of material fact.” The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.

Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.l994)(citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)). The evidence must be viewed in the light most favorable to the non-moving party. See Russell, 700 So.2d at 622; Richmond, 692 So.2d at 61; Northern Elec. Co., 660 So.2d at 1281; Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.

¶ 10. To avoid summary judgment, the non-moving party must establish a genuine issue of material fact within the means allowable under the Rule. Richmond, 692 So.2d at 61 (citing Lyle v. Mla-dinich, 584 So.2d 397, 398 (Miss.1991)). “If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise the decision is affirmed.” Richmond, 692 So.2d at 61.

¶ 11. The Mississippi UM statute provides in pertinent part:

No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law, as amended, under provisions approved by the commissioner of insurance; however, at the option of the insured, the uninsured motorist limits may be increased to limits not to exceed those provided in the policy of bodily injury liability insurance of the insured or such lesser limits as the insured elects to carry over the minimum requirement set forth by this section. The coverage herein required shall not be applicable where any insured named in the policy shall reject the coverage in writing and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in any renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

Miss.Code Ann. § 88-11-101(1) (Rev.1999) (emphasis added).

¶ 12. Stokes argues that the statute requires that the written waiver be maintained by the insurance company to be produced at some later date. The UM statute, however, only requires a written waiver rejecting the UM coverage in connection with the issuance of a policy. Id. The statute does not contain any language to support Stokes’s argument that the written rejection must be maintained.

¶ 13. The real issue before this Court is whether FCM rejected its UM coverage in writing. Stokes does not present any evidence to contradict the sworn affidavits provided by Allen, Deputy Director of FCM, and Thomas, the insurance agent for Statewide. Both Allen and Thomas were party to the written rejection of the UM coverage under the Travelers policy. No evidence has been offered that FCM had ever maintained UM coverage since December 1, 1994, or paid for UM coverage since December 1,1994.

¶ 14. We find that no genuine issues of a material fact exist as to whether FCM waived its UM coverage. Clearly, FCM did not have UM coverage under the Travelers policy at the time of this accident. In Brown v. Credit Center, Inc., 444 So.2d 358, 364 (Miss.1983), this Court stated:

Our Rule 56 mandates that the party opposing the motion be diligent. “Mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment.” Liberty Leasing Co. v. Hillsum Sales Corporation, 380 F.2d 1013, 1015 (5th Cir.1967). The party opposing the motion is required to bring forward significant probative evidence demonstrating the existence of the triable issue of fact. Union Planters National Leasing, Inc. v. Woods, 687 F.2d 117, 119 (5th Cir. 1982).

¶ 15. In the case sub judice, we find that (1) Stokes failed to demonstrate the existence of a triable issue of fact and (2) Travelers is entitled to judgment as a matter of law. The trial court erred in denying Travelers’s Motion.

CONCLUSION

¶ 16. Accordingly, the judgment of the Madison County Circuit Court denying Travelers’s motion for summary judgment is reversed, and judgment is rendered here that Travelers does not owe UM coverage under its policy issued to FCM and that Stokes’s complaint and this civil action are finally dismissed with prejudice.

¶ 17. REVERSED AND RENDERED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR. McRAE, P.J., DIAZ AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.


author: SMITH, P.J., EASLEY, J.,

text:
    CITY OF JACKSON, Mississippi v. Rebecca F. BRISTER, Executrix of the Estate of Jamie Fowler Boyll, Deceased; and Guy L. Boyll, III, and Jill Fowler Boyll, Heirs at Law of Jamie Fowler Boyll, Deceased.
    No. 2001-CA-01393-SCT.
    Supreme Court of Mississippi.
    Feb. 20, 2003.

      Hilton Ray Miller, Oxford, attorney for appellant.

      Dale Danks, Jr., Pieter John Teeuwis-sen, Jackson, attorneys for appellee.
   SMITH, P.J.,

for the Court.

¶ 1. On January 13, 2000, Elizabeth Slater (Slater) attempted to evade arrest by City of Jackson police officers after she allegedly attempted to pass a forged check at a bank. A pursuit began and lasted approximately 40-60 seconds. While fleeing from the police, Slater’s vehicle crashed into the side of Jamie Fowler Boyll’s (Boyll) vehicle at the intersection of Ridgewood Road and Northside Drive in Jackson. The police patrol cars did not collide with any vehicle. Boyll subsequently died on January 14, 2000, from the injuries suffered in the collision.

¶ 2. Rebecca F. Brister (Brister) is the sister of Boyll and executrix of Boyll’s estate. Guy L. Boyll, III. and Jill Fowler Boyll are the adult children and heirs-at-law of Boyll. On February 9, 2000, Bris-ter, executrix of the estate of Jamie Fowler Boyll, deceased, and Guy L. Boyll, III, and Jill Fowler Boyll, heirs at law of Jamie Fowler Boyll, deceased (hereinafter collectively named “the Estate”), sent notice to the City of Jackson (City) pursuant to the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11^46-1 to -23 (Rev. 2002). On March 8, 2000, the Estate also filed a negligence and wrongful death complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against Slater and Brenda K. Dykes (Dykes).

¶ 3. On May 11, 2000, an amended complaint was filed adding as defendants the City and four police officers in their individual and official capacities, Corey Watson (Watson); Loris D. Taylor (Taylor); Robbie Huff (Huff); and Milton McFarland (McFarland). On June 20, 2000, the trial court signed an agreed order of dismissal with prejudice for the named defendant, Dykes. On October 9, 2000, the trial court dismissed Officers Watson, Taylor, Huff, and McFarland as to liability in their individual capacities.

¶ 4. Following a bench trial, the trial court issued its opinion and order. The trial judge determined that the officers acted with reckless disregard and allocated 50% liability to Slater and 50% liability to the City for the collision between Slater’s and Boyll’s vehicles. The trial court determined that the Estate was entitled to $1,000,000 to be paid jointly and severally among the defendants. However, the trial court noted that an insurance carrier had paid $10,000 on Slater’s behalf. The trial court therefore, reduced the judgment against the City to $250,000 or the limits of the liability insurance of the City, whichever was greater. Following this ruling, the City filed a notice of appeal to this Court.

¶ 5. We find no abuse of discretion by the trial judge whose ruling is supported by substantial, credible and reasonable evidence. Because the learned trial judge applied our controlling case law, we affirm.

FACTS

¶ 6. On January 13, 2000, at approximately 11:00 a.m. a chase began between Jackson police officers and Slater. Less than one minute after the pursuit began, Slater’s and Boyll’s vehicles collided at the intersection of Ridgewood Road and Northside Drive. The patrol car did not collide with any vehicle.

¶ 7. The incident started when the City received an emergency call from Omni Bank located on Old Canton Road in Jackson. Slater was allegedly attempting to pass a forged check. The bank teller stated that Slater presented to her a check in the amount of four hundred dollars. Linda Williams (Williams), the teller, tried to stall Slater at the bank until the police arrived.

¶ 8. However, Slater suddenly ran out of the bank. Williams followed Slater to the door. When Williams got to the door,.she saw that police officers had arrived at the bank. Williams began to point her finger at Slater and yelled, “That’s her, get her.”

¶ 9. According to Williams, the police car parked beside Slater’s vehicle. The vehicle was driven by Officer Watson and also occupied by Officer Taylor. Slater was already half way inside her car when Officer Watson got out of the patrol car. Slater backed out of the parking space and the police officer jumped into his patrol car. Slater’s vehicle then squealed out of her space and jumped over the walkway, nearly hitting the patrol car in the process. By this time a second patrol car, occupied by Officers McFarland and Huff, entered the parking lot. The two police cars left the parking lot entrance with their lights on.

¶ 10. Slater left the parking lot traveling east onto Old Canton Road. She turned south onto Ridgewood Road. The police followed Slater onto Ridgewood Road and drove through a red light at the intersection of Old Canton and Ridgewood Road. The officers continued driving through a green light at the intersection of Sheffield Drive and Ridgewood Road. Then the officers exited the patrol car at the intersection, and collision site, of Northside Drive and Ridgewood Road. The police chased Slater as she trotted away from the collision and arrested her. The patrol car in which Officers Watson and Taylor were traveling did not strike any vehicle.

¶ 11. Officer Watson stated that he took the totality of the circumstances into consideration when pursuing Slater. Officer Taylor did not know the amount of the forged check. Officer Taylor did not know the speed limit nor how fast Officer Watson was driving.

¶ 12. While the two parties present a number of issues for this Court’s review, the pivotal issue concerns whether the trial court erred in ruling that the City was hable for the acts of its officers and whether those acts were in reckless disregard of the safety and well being of others. After review of the case, we find that the ruling of the trial court was correct and was supported by substantial, credible, and reasonable evidence. For this reason, the trial court’s judgment is affirmed.

DISCUSSION

WHETHER THE TRIAL COURT ERRED IN RULING THAT CITY OF JACKSON POLICE OFFICERS ACTED IN RECKLESS DISREGARD AND IMPOSING LIABILITY ON THE CITY.

¶ 13. “The standard of review for a judgment entered following a bench trial is well settled. ‘A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,’ and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000) (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)). “This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.” Id. (citations omitted). The MTCA is the exclusive remedy for filing a lawsuit against governmental entities and its employees. City of Jackson v. Lipsey, 834 So.2d 687 (Miss.2003); City of Jackson v. Sutton, 797 So.2d 977, 980 (Miss.2001). See also Maldonado, 768 So.2d at 909.

¶ 14. The Mississippi Tort Claims Act, § 11 — 46—9(l)(c), provides immunity to government entities and employees that act within the course and scope of employment duties. MTCA § ll-46-9(l)(c) provides in pertinent part as follows:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of the injury ...

In addition, MTCA § 11-46-7(2) addresses the Act’s coverage when an employee is sued as follows:

An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties. For the purposes of this chapter an employee shall. not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.

Miss.Code Ann. § 11-46-7(2) (emphasis added).

¶ 15. This Court has stated that “[ajpparent in the language [of Miss.Code Ann. § 11-46-9] is that those officers who act within the course and scope of their employment, while engaged in the performance of duties relating to police protection, without reckless disregard for the safety and well being of others, will be entitled to immunity.” McGrath v. City of Gautier, 794 So.2d 983, 985 (Miss.2001). Indeed, this Court noted that “[t]he purpose of Miss.Code Ann. § 11-46-9 is to ‘protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.’ ” Maldonado, 768 So.2d at 909 (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)). A governmental entity’s purchases of liability insurance does not waive any sovereign immunity, nor does it hinder any exclusions or exemptions from waiver. McGrath, 794 So.2d at 987(citing L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136 (Miss.1999)). Miss.Code Ann. § 11-46-17(4) “does not limit the exclusions or exemptions in Section 11-46-9.” Maldonado, 768 So.2d at 908 (citations omitted).

¶ 16. The trial judge in the case sub judice determined the following:

The [c]ourt must balance the competing interests of the community’s safety with the expectation that police will apprehend criminals. However, the [c]ourt finds that it is unreasonable to believe that pursuit could be terminated and the effect of termination be realized by the fleeing defendant given the distance from the point where the pursuit began and the point of collision. It is especially unreasonable when the officers testified that the pursuit was terminated but they continued to follow Slater to obtain her license plate number. In other words, the officers continued to engage in a course of conduct in which all the indicia of pursuit was present up to the point of collision. Moreover, pursuit was initiated and maintained despite the fact that the officers did not know whether Slater had committed a felony or a misdemeanor. Accordingly, this [cjourt finds that the officers acted with reckless disregard.

¶ 17. The City claims that the acts of the police did not rise to the level of reckless disregard. The police officers were responding to a 911 emergency call with their blue lights and sirens running. In addition, the City argues that none of the officers’ police cars collided with Boyll or Slater. Slater alone was involved in the collision with Boyll. Furthermore, the chase lasted less than 60 seconds over a distance of less than a mile.

¶ 18. Brister argues that the officers’ actions did amount to reckless disregard. She claims that, considering the totality of the circumstances and the officers’ failure to follow the City’s own police department’s general order number 600-20, the trial court had overwhelming evidence to find a reckless disregard for the safety and well being of others.

¶ 19. Based on our standard of review, the circuit judge’s findings are safe on appeal if they are supported by substantial, credible, and reasonable evidence. Furthermore, in a bench trial such as the case at bar, when the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of witnesses. Yarbrough v. Camphor, 645 So.2d 867, 869 (Miss.1994); Bryan v. Holzer, 589 So.2d 648, 659 (Miss.1991); Bell v. Parker, 563 So.2d 594, 597 (Miss.1990).

¶ 20. Dennis Waller, plaintiffs’ expert witness, who had previously testified on over 100 occasions on related subject matter, concluded that the officers’ conduct here presented an extreme and unreasonable danger to the public. Waller based his opinion on the following:

1) the chase was contrary to General Order 600-20;
2) the officers were still engaged in active pursuit up to the collision;
3) pursuit should have been terminated after the officers turned onto Ridgewood Road and realized the suspect would not stop;
4) the officers did not attempt to obtain the license plate number which would have eliminated the need for continued pursuit; and
5) the officers did not properly balance the public’s safety versus immediate apprehension of a check forger.

The circuit judge clearly based his findings on substantial, credible, and reasonable evidence. Applying our appropriate legal standard and recent caselaw, that is all that is necessary. Had a jury tried this case, it could have reasonably found that all of these circumstances establish more than simple negligence. The learned trial judge found by looking at the totality of the circumstances that the officers acted with reckless disregard to public safety. That is exactly what our caselaw requires.

¶ 21. From the beginning of this tragic incident, the officers showed recklessness and disregard for the safety of others. Here, we have two officers involved: Taylor, a training officer, who certainly knew better than to allow the actions which occurred, and Watson, a new rookie on the police force, who should have known better but, nonetheless, proceeded in spite of his training and police policy. There are further facts that support the premise that the trial judge took the totality of all the circumstances into consideration. For instance, Slater’s vehicle was the only one in the parking lot and although the officers could have blocked in her vehicle at the bank parking lot, they did not. They could have easily written down the tag number there instead of attempting such in a hot pursuit chase. Instead, they merely parked their vehicle beside Slater’s. General Order 600-20 requires that a pursuit may only be initiated when the officer knows that a felony has been committed and the officer has probable cause to believe that the individual who committed the felony and the suspect’s escape is more dangerous to the community than the risk posed by the pursuit. The officers failed to ascertain this information in clear violation of the established police department policy. The officers initial actions in parking next to the suspect’s vehicle instead of blocking it allowed the suspect to easily avoid arrest at the bank parking lot. It also allowed the suspect to leave the parking lot with the two police cars, sirens and lights sounding and flashing in hot pursuit, all proceeding at a high rate of speed. The lead police car was driven by Watson, a one month rookie on the force, involved in his first hot pursuit and totally unfamiliar with the area. Additionally, the pursuit route was heavily populated. The route took them through residential areas including apartment complexes, single-family housing and condominiums, a park, and even past an elementary school traveling in a 35 miles per hour zone at speeds in excess of 55 miles per hour. The suspect was traveling at times in excess of 70 or 80 miles per hour. At the time of the crash, eyewitness testimony placed the two patrol cars within 20 yards behind the suspect’s vehicle. It is clear here that the officers never should have initiated this high speed chase, much less continued it right up to the time of the collision.

¶ 22. District of Columbia v. Hawkins, 782 A.2d 293 (D.C.Ct.App.2001), is instructive in determining the reckless disregard standard in the case sub judice. That court considered the following to determine whether a police chase constitutes reckless disregard: (1) length of chase; (2) type of neighborhood; (3) characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle. Id. Here, the circuit judge considered many of these factors in making his determination. It is noteworthy that here, as in Hawkins, the collision occurred immediately after the vehicles crested a hill and proceeded into a vision-obscured intersection.

¶ 23. This Court’s controlling caselaw on the subject of reckless disregard is clearly established. We have held that reckless disregard is more than ordinary negligence, but less than an intentional act. An officer’s conduct although normally shielded by immunity, when coupled with reckless disregard, may allow for a finding of liability. Certainly if this Court found in Maye v. Pearl River County, 758 So.2d 391, 395 (Miss.1999), that the deputy sheriffs actions amounted to recklessness when he merely backed his automobile into an oncoming vehicle when he could not see “cars coming into the lot,” then clearly in the case sub judice recklessness was properly found by the trial judge. In Maye, the deputy’s claim that he first checked his rear view mirrors prior to backing up his vehicle availed him not with this Court. This Court noted: “This decision does not require a showing of specific intent to harm. The plaintiffs are not required to show Collier intended to hit Goodwin’s car when Collier backed out of the parking lot.” Id. at 395. Thus, the fact here that the officers did not intend that a fatal accident would result as a direct consequence of their high speed chase in violation of Jackson Police Department existing written policy is of no concern. Brister need only show that the officer actions “rose to the level of recklessness.” Id. at 391. Here, it is sufficient that Brister has shown, and the trial judge so found, that the officers initiated a high speed chase with “conscious indifference” knowing they had not complied with Order 600-20 which was the existing governing policy of the police department at that time. Without adhering to that policy, the officers should have reasonably expected the possibility of adverse consequences including a fatal accident, thus plaintiffs clearly proved reckless disregard to the general public safety. If this Court also found reckless disregard based on the facts of City of Jackson v. Perry, 764 So.2d 373 (Miss.2000), and the allegations in Turner v. City of Ruleville, 735 So.2d 226 (Miss.1999), then certainly this judgment should be upheld. Here, overwhelming evidence exists that the officers acted in reckless disregard to the general safety of the public. Proving reckless disregard is all that is required under Turner, Perry and Maye.

CONCLUSION

¶24. The trial court did not err by finding the City liable. The trial court’s ruling was clearly supported by substantial, credible, and reasonable factual evidence. The learned trial judge followed and applied our caselaw. The judgment of the circuit court is affirmed.

¶ 25. AFFIRMED.

PITTMAN, C.J., McRAE, P.J., COBB, DIAZ AND CARLSON, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. WALLER AND GRAVES, JJ., NOT PARTICIPATING.

EASLEY, J.,

Dissenting.

¶ 26. In my view, the majority errs in affirming the circuit court’s determination that the police officers of the City of Jackson acted in reckless disregard for the safety and well being of others by pursuing Slater. Accordingly, I disagree with the holding that the City is hable for the acts of the officers.

¶ 27. From the onset, I stress that the actions of the suspect, Slater, were the proximate cause of the fatal collision resulting in Boyll’s death. Additionally, this case involves an alleged attempted forgery, which is a felony, and a pursuit which lasted less than sixty (60) seconds and covered a distance of less than one mile. (.7).

I.

¶ 28. Miss.Code Ann. § 97-21-29 (Rev. 2000) states:

If any person shall, with intent to injure or defraud, make any instrument in his own name, intended to create, increase, discharge, defeat, or diminish any pecuniary obligation, right or interest, or to transfer or affect any property whatever, and shall utter and pass it under the pretense that it is the act of another who bears the same name, he shall be guilty of forgery.

¶ 29. Miss.Code Ann. § 97-21-33 (Rev. 2000) designates the penalty for a forgery:

Persons convicted of forgery shall be punished by imprisonment in the penitentiary for a term of not less than two (2) years nor more than fifteen (15) years, provided, however, that when the amount of value involved is less than one hundred dollars ($100.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than twelve (12) months, within the discretion of the court.

¶ 30. Pursuant to Miss Code Ann. § 1-3-11 (Rev.1998), “the term ‘felony,’ when used in any statute, shall mean any violation of law. punished with death or confinement in the penitentiary.”

¶ 31. The bank teller testified that Slater allegedly attempted to pass a forged check worth $400. Pursuant to the above statute and the penalty associated with forgery, the crime is a felony. The dollar amount of an attempted forged check is irrelevant.

II.

¶32. Miss.Code Ann. § 11 — 4—9(1)(c) (Rev.2002) provides immunity for governmental entities and employees acting within the course and scope of their employment duties. However, the statute does not specifically define the term “reckless disregard,” but this Court has held the following:

Since “reckless disregard” is not defined by statute, Maldonado directs this Court’s attention to the various sources we have used in the past to define recklessness. This Court examined this issue in Turner v. City of Ruleville, and the Court looked to Black’s Law Dictionary for guidance as to the proper definition:
“Reckless disregard of the rights of others” is defined [a]s used in automobile guest law, means the voluntary doing by motorist of an improper or wrongful act, or with knowledge of existing conditions, the voluntary refraining from doing a proper or prudent act when such an act or failure to act evinces an entire abandonment of any care, and heedless indifference to results which may follow and the reckless taking of chance of accident happening without intent that any occur ....
735 So.2d 226, 228-29 (Miss.1999) (quoting Black’s Law Dictionary 1270 (6th ed.1991)). Additionally, this issue was also revisited in Maye v. Pearl River County, where we cited a definition of recklessness given by the Fifth Circuit:
The terms “willful,” “wanton,” and “reckless” have been applied to that degree of fault which lies between intent to do wrong, and the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to do [sic] terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.
758 So.2d 391, 394 (Miss.1999) (quoting Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224 n. 3 (5 th Cir.1991) (emphasis in original)). Additionally, this Court has held that “wantonness is a failure or refusal to exercise any care, while negligence is a failure to exercise due care.” Turner, 735 So.2d at 229 (citing Beta Beta Chapter v. May, 611 So.2d 889, 895 (Miss.1992)) (quoting Covington v. Carley, 197 Miss. 535, 541-42, 19 So.2d 817, 818 (1944)).

Maldonado v. Kelly, 768 So.2d 906, 909-10 (Miss.2000).

¶ 33. This Court has ruled on quite a few occasions in cases involving police actions within the context of the MTCA. In Maldonado, an officer was driving a patrol car to a service station for maintenance when he collided with a vehicle driven by Kelly. Maldonado, 768 So.2d at 908. At the time of the accident, a water tower partially blocked Maldonado’s view and he did not see Kelly’s vehicle until right before the collision. Id. This Court held that while “Maldonado may have been negligent, his actions do not rise to the level of reckless disregard.” Id. at 911. Consequently, Maldonado and Hinds County were immune pursuant to the MTCA, § 11 — 46—9 (1) (c). Id.

¶ 34. This Court has further held that immunity pursuant to MTCA applied to the City of Gautier and a police officer in a negligence suit. Involving the brake failure of the officer’s patrol car which caused a collision with McGrath. McGrath v. City of Gautier, 794 So.2d 983 (Miss.2001). The Court based its holding, in part, upon the theory that municipalities are exempt from an injury caused by a police vehicle since the maintenance of a police department is a governmental function. Id. at 987.

¶ 35. In contrast, this Court has found, that a police officer’s actions amounted to reckless disregard. City of Jackson v. Perry, 764 So.2d 373, 375 (Miss.2000). There, the police officer was on his way to dinner with fellow officers when he was involved in an accident. Id. At the time of the collision, the officer was speeding, however, he was not on an emergency call and was not using either the siren or blue lights. Id. This Court held that the officer’s actions did show a reckless disregard for the safety and well-being of others and affirmed the lower court’s ruling. Id. at 378. Likewise in Maye v. Pearl River County, 758 So.2d 391, 395 (Miss.1999), this Court held that a deputy sheriff acted with reckless disregard for the safety and well-being of others when he backed up an incline knowing that he could not see oncoming traffic. Id. Maye, the other driver, blew her horn, yet the officer did not respond until his patrol car struck her vehicle. Id. at 394.

¶ 36. In Turner v. City of Ruleville, 735 So.2d 226, 230 (Miss.1999) the trial court’s dismissal of a complaint for failure to state a claim was reversed and remanded by this Court. A passenger, Turner, was injured in a collision with a drunk driver. Id. at 227. Turner sued the drunk driver and the City of Ruleville when she alleged that prior to the accident an officer stopped the drunk driver and then allowed the visibly intoxicated driver to continue driving. Id. The Court concluded that “[b]y this alleged act, the officer allegedly showed a reckless or wanton and willful disregard for the safety of other drivers on the road, including Turner.” Id. at 230. See also Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584 (Miss.2001) (case reversed and remanded in part due to trial court’s misreading of Miss. Code Ann. § 11-46-5. The statute states an employee is not acting within the course and scope of employment when the conduct constitutes fraud, malice, libel, slander, defamation or any criminal offense.).

III.

¶ 37. First and foremost, Slater’s actions proximately caused the collision with Boyll. This was a tragic accident. However, there was no testimony that Slater would have avoided the collision if the police had not pursued her. The police in this case did not collide with Boyll’s vehicle. Further, Officers Watson and Taylor responded to a call for an alleged forgery in progress at the Omni Bank. An attempted forgery is a felony. The officers received a dispatch and responded to the call since they were near the bank at the time of the call.

¶ 38. The bank teller testified that Slater allegedly attempted to pass a forged check worth $400. The teller tried to stall Slater until the police arrived at the bank. Slater had her back to the bank entrance; thus, she would not have known if the police were arriving at the bank. However, Slater suddenly turned around and exited the bank. She began to flee the scene at the moment she turned from the counter to leave the bank. Slater left the bank and was already on her way to a vehicle when the officers arrived at the bank and pulled into a parking space. The bank employee was pointing at Slater. Officer Watson began to exit his vehicle and told her to stop, but Slater ignored him and continued to get into the vehicle.

¶ 39. The majority cites the officer’s failure to block Slater’s vehicle and write down her tag number. The police did not know that the vehicle in the parking lot belonged to Slater. In fact, the parking lot was blocked. A second police car was entering the parking lot as Slater was leaving, and the patrol car blocked the parking lot entrance. The incident occurred so quickly that the officers had only pulled into the space when Slater jumped into the vehicle and sped away making writing down the license plate number difficult at best. Testimony revealed that the vehicle did not belong to Slater. Consequently, the tag number would not have necessarily provided the police with the identity of the suspect, Slater.

¶ 40. As Slater pulled out of her parking space, she nearly collided with Officer Watson’s vehicle. About this same time, the other patrol car began to enter the parking lot. Slater then drove her car over the sidewalk to flee from the area at an excessive speed. The majority appears to suggest that the police had lights flashing, sirens blazing, and cars racing after Slater in hot pursuit. The fact is, the police did not have any sirens or lights on at the time that they pulled into the bank parking lot. Officer Taylor only turned on the lights and sirens as the police left the parking lot of the bank. Therefore, Slater was fleeing in the vehicle before any police lights or sirens were in use. The officers did not initiate the pursuit until after Slater was already headed east on to Old Canton Road. In fact, Officer Watson, in the lead parol vehicle, stopped momentarily to calm himself on Old Canton prior to following Slater on Ridgewood Road. Slater never stopped fleeing. She finally attempted to run a red light and unfortunately collided with Boyll’s vehicle. There was no indication that Slater would not have fled and sped away at a high rate of speed even if the police had not followed her.

¶ 41. A pre-MTCA case, Mosby v. Moore, 716 So.2d 551, 557 (Miss.1998), is helpful because it provides guidance on the issue of police driving. This Court held that “[t]he act of driving for police officers is a major part of their jobs. It is something that they must do in order to fulfill their duties. They do not drive simply to get from one place to another, instead they patrol. This type of driving does involve a discretionary, decision-making process ...” Id. Pursuit of criminals or suspected criminals is clearly in the course and scope of police protection, this would include pursuit in the patrol car.

¶ 42. The officers’ actions raise the issue of whether the acts were performed in reckless disregard to the safety of others. The officers were responding to an alleged crime in progress, check forgery. Officer Watson testified that he told Slater to stop, however, she continued to get into her car. Slater did not exit through the parking lot; rather she jumped over the sidewalk in the vehicle she was driving.

¶43. Officer Watson testified that he looked at the totality of the circumstances and considered: Slater’s actions, her refusal to stop, her almost hitting another vehicle, and her exit at a high rate of speed. Officer Watson also considered that the traffic was light to medium and that he saw no pedestrians, nor pedestrians in a nearby park, and no school buses or children in the school zone. Officer Watson also considered the weather conditions.

The majority states that the route was “heavily populated.” This is an unfair statement because, although the route was in an area of high population, the officers testified that on this day the traffic was light and there were no children, no school buses and no pedestrians nearby.

¶ 44. I believe that the police actions in this case did not amount to reckless disregard to the safety and well being of others. The tragedy of Boyll’s death is not to be diminished nor does it go unnoticed. However, Slater’s actions caused the collision and death of Boyll. Slater allegedly attempted to pass a forged check. Slater fled from the bank and jumped the sidewalk. Slater began speeding away from the scene. Slater struck Boyll’s vehicle.

¶ 45. The time and distance between Slater fleeing the bank and crashing into Boyll’s vehicle are too inconsequential. The collision occurred in less than 60 seconds, with some accounts being as little as 40-45 seconds, and less than one mile from the bank. The police officers were not a part of the fatal collision. Slater struck Boyll’s vehicle only and was the proximate cause of the collision and Boyll’s subsequent death. There is no evidence to suggest that had the police not followed Slater the collision would have been avoided. Thus, it is unreasonable to assume that had the police not followed Slater, she would not have continued her flight. Slater allegedly had just attempted to pass a forged check, a felony; she ran from the bank; she refused to stop at police request; and she was bound and determined to flee from the scene regardless of the police presence.

¶46. The testimony also showed that the officers considered many factors and in the totality of the circumstances chose to pursue Slater. The job of a police officer is to enforce the laws and apprehend suspects. In order to apprehend a suspect, police personnel must reasonably be able to pursue suspects. If this were not the case, then criminals need only to jump in their vehicles and ride away to freedom. The majority’s opinion today informs suspects that all they need is a fast car to ensure freedom. Even for more simple cases of a traffic violation, be it speeding, an out-of-date license tag, or other infraction, the suspect need only gun the engine, step on the gas, breathe a sigh of relief and drive off to liberty.

¶ 47. This Court found reckless disregard in Perry, where the police officer sped on his way to dinner and was not on an emergency call nor was he using either the siren or blue lights. Perry, 764 So.2d at 375. In contrast, the officers in this case were performing their duty of apprehending a suspect for an alleged crime and used both lights and sirens. This case is also distinguishable because the officers did not collide with Boyll. The suspect, Slater, was driving the only vehicle that collided with Boyll that fateful day. Furthermore, the time and distance between Slater’s flight and the collision was too minimal to impart liability on the City.

¶48. This was a tragic accident that claimed the life of Boyll, a mother and hard-working individual. The unfortunate fact, however, is that Slater caused the fatal collision. This accident was inevitable, and there was no evidence that the police caused the accident. The reality is that in our “sue happy” society the City and its officers would have been sued in this case in any event. It makes no difference whether the officers acted in the manner the majority deems proper, which would be to do nothing and let the suspect flee the scene, or whether they pursued someone allegedly attempting forgery. The actions of the officers would be questioned in either scenario, and a lawsuit would be filed in our court system.

¶ 49. Under the specific facts of the case sub judice, I believe that the trial court erred in ruling the City liable for the actions of the officers. The trial court erred by finding the City liable. The trial court’s ruling was not supported by substantial, credible, and reasonable evidence. Accordingly, I disagree with the majority’s ruling today and would reverse and render judgment in favor of the City. Therefore, I respectfully dissent.

      . Dykes was a property owner at the intersection of the accident.

      . On September 13, 2001, a final judgment of dismissal with prejudice was signed by the trial court judge and the parties. The order indicated that all the Estate's claims against Slater were fully settled.

      . Officer Taylor was the training officer riding with Officer Watson.

      . Williams did not know if the sirens were on at the time. Williams's hearing problem prevented her from being able to hear a siren's pitch.