Can a Mississippi city add a private third party as an additional named insured on the city's liability insurance policy?

Plain-English summary

The City of Gulfport's attorney asked whether the city can name a private third party as an additional insured on the city's liability insurance policy. The AG said no.

Two strands of Mississippi law combine to produce the answer:

1. The Mississippi Tort Claims Act is the exclusive remedy against governmental entities. Moton v. City of Clarksdale (Miss. 2023) confirms that any tort lawsuit against a governmental entity for money damages goes through the MTCA framework. The MTCA defines who is covered (governmental entities and their agents) and how. Private third parties are not in the coverage circle.

2. Mississippi prohibits municipalities from indemnifying third parties. A 1998 AG opinion (also issued to Gulfport's Mr. Bruni) established that a municipality cannot "obligate itself to indemnify or hold harmless a [private individual or entity], since coverage of the municipality under the Tort Claims Act may not be extended to a private individual or entity."

The opinion reasons that adding a third party as an additional insured "would essentially amount to an agreement to indemnify," which governmental entities may not do, and that the Tort Claims Act provides no authority for adding a third party to a governmental entity's coverage. Section 11-46-17 provides for obtaining insurance policies but, in the AG's reading, lacks any language or necessary implication for adding a third party.

The opinion also invokes the 2006 Stringer opinion for the proposition that a governmental entity can only do that which statute authorizes it to do. Because no statute authorizes adding a third party, the AG concludes a municipality may not do so.

What this means for you

City attorneys

The opinion holds that a municipality may not name a private third party as an additional insured on its liability policy. Its reasoning is twofold: the Tort Claims Act does not authorize extending a governmental entity's coverage to a third party (Section 11-46-17 contains no such language), and doing so would amount to an agreement to indemnify, which the office's 1998 Bruni opinion said a municipality may not do. The opinion does not suggest alternative contract structures.

Vendors and contractors doing business with a Mississippi city

For a vendor, the opinion means a Mississippi city cannot add the vendor as an additional insured on the city's own liability policy. The AG treats that as outside the city's statutory authority. The opinion does not address what coverage arrangements the vendor should use instead.

Municipal insurance carriers

The opinion identifies the 2024 Bruni opinion as the AG's position that a municipality lacks authority to name a third party as an additional insured, resting on the Tort Claims Act, Section 11-46-17, and the Stringer rule that a governmental entity may do only what statute authorizes.

Common questions

Can a Mississippi city name a private third party as an additional insured on its policy?
No. The opinion concludes a municipality may not name a third party as an additional insured on its liability insurance policy.

Why not?
The opinion gives two grounds: the Tort Claims Act limits coverage to governmental entities and provides no authority to add a third party (Section 11-46-17 has no such language), and adding a third party as an additional insured would amount to an agreement to indemnify, which the AG's 1998 Bruni opinion held a municipality may not do.

Does the opinion address a private contractor adding the city to the contractor's own policy?
No. The opinion concerns only a city adding a third party to the city's own liability policy. It does not address the reverse arrangement.

Could this change?
The opinion's analysis is statutory: it rests on the absence of statutory authority. The opinion does not address whether a future statutory change would alter the answer.

Background and statutory framework

The Mississippi Tort Claims Act, §§ 11-46-1 et seq., sets the framework for tort claims against Mississippi governmental entities. The exclusive-remedy provision is the operative principle: the MTCA "provides the exclusive civil remedy against a governmental entity for lawsuits seeking money damages arising out of tortious actions" (Moton v. City of Clarksdale, 367 So. 3d 979, 983 (Miss. 2023)).

Section 11-46-17 authorizes governmental entities to obtain insurance policies. The statute is silent on adding third parties; no provision contemplates it.

The 1998 Bruni AG opinion (the earlier one, also from Gulfport) established the indemnification prohibition. The 2006 Stringer AG opinion established the framing rule that governmental entities can only do what statutes authorize.

The 2024 Bruni opinion (the present one) brings these strands together. Adding a third party as an additional insured is functionally indemnification, and the MTCA does not authorize it.

Citations

• Miss. Code Ann. §§ 11-46-1 et seq.
• Miss. Code Ann. § 11-46-17
• Moton v. City of Clarksdale, 367 So. 3d 979 (Miss. 2023)
• MS AG Op., Bruni (May 22, 1998)
• MS AG Op., Stringer (Jan. 25, 2006)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/06/J.Bruni-June-24-2024-Additional-Named-Insured-Under-Municipal-Liability-Policy.pdf

Original opinion text

June 24, 2024
Jeffrey S. Bruni, Esq.
Attorney, City of Gulfport
Post Office Box 1780
Gulfport, Mississippi 39502-1780
Re: Additional Named Insured Under Municipal Liability Policy

Dear Mr. Bruni:
The Office of the Attorney General has received your request for an official opinion.

Question Presented
May a municipality legally name a third party as an additional named insured on its liability insurance policy/plan?

Brief Response
A municipality may not name a third party as an additional insured on its liability insurance policy.

Applicable Law and Discussion
"The Mississippi Tort Claims Act provides the exclusive civil remedy against a governmental entity for lawsuits seeking money damages arising out of tortious actions." Moton v. City of Clarksdale, 367 So. 3d 979, 983 (Miss. 2023) (citing Miss. Code Ann. §§ 11-46-1, et seq.). As noted in your request, this office has previously opined that a municipality may not "obligate itself to indemnify or hold harmless a [private individual or entity], since coverage of the municipality under the Tort Claims Act may not be extended to a private individual or entity." MS AG Op., Bruni at *1 (May 22, 1998) (citing Miss. Code Ann. §§ 11-46-1, et seq.). You ask if a municipality may nonetheless legally name a third party as an additional insured on its liability policy.

In MS AG Op., Stringer (Jan. 25, 2006), this office highlighted that a governmental entity can only do that which statute authorizes it to do. Id. at *2-3. This said, the Tort Claims Act does not provide any authority for adding a third party to a governmental entity's coverage. See Miss. Code Ann. § 11-46-17 (providing for obtaining policies of insurance and lacking language regarding adding a third party or necessary implication for the same). Further, adding a third party as an additional insured would essentially amount to an agreement to indemnify, which, as discussed above, governmental entities may not do. Accordingly, it is the opinion of this office that a municipality may not name a third party as an additional insured on its liability insurance policy.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General