Shannon Lewis v. Progressive Gulf Insurance Company
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00781-COA
SHANNON LEWIS, JANA LEWIS,
INDIVIDUALLY, AND ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES OF
MINOR WILLIAM ROBERTSON LEWIS,
DECEASED; AND CALVIN E. ROBERTSON,
INDIVIDUALLY, AND ON BEHALF OF ALL
THE WRONGFUL DEATH BENEFICIARIES OF
DOROTHY P. ROBERTSON, DECEASED
APPELLANTS
v.
PROGRESSIVE GULF INSURANCE COMPANY,
INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
04/03/2008
HON. JOSEPH H. LOPER, JR.
ATTALA COUNTY CIRCUIT COURT
B. WAYNE WILLIAMS
REAGAN DAVID WISE
JAMES L. PERRY
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT IN FAVOR OF
APPELLEE
AFFIRMED-03/31/2009
BEFORE KING, C.J., ROBERTS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
This appeal arises from an order granting summary judgment in favor of Progressive
Gulf Insurance Company, Inc. (Progressive).
The trial court found that a policy of
automobile insurance issued by Progressive to Lofton Timber Company (Lofton) did not
provide any coverage for the independent contract hauler, Albert Nickerson d/b/a Nickerson
Trucking (Nickerson Trucking), or Nickerson’s driver, Cleansy Barksdale (Barksdale).
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On February 12, 2004, Barksdale ran a stop sign at an intersection in Attala County,
Mississippi and crashed into a vehicle occupied by Shannon and Jana Lewis; their infant son,
William Robertson Lewis; and Dorothy Robertson. William Lewis and Dorothy Robertson
died as a result of the accident. The logging truck Barksdale was driving was owned by
Nickerson Trucking. Barksdale had been hired by Nickerson Trucking to take a load of
wood from Lofton’s storage facility to a mill owned by Georgia Pacific in Monticello,
Mississippi. The accident occurred while Barksdale was en route to Nickerson’s house to
park the logging truck.
¶3.
The wrongful death beneficiaries, Shannon and Jana Lewis, initially filed suit against
Barksdale, Nickerson Trucking, Georgia Pacific, Lofton, Charles Donald, Jr., and Charles
Donald Pulpwood, Inc. The Lewises later amended their complaint to add Progressive,
asking the court to declare that the automobile insurance policy Progressive issued to Lofton
also covered Barksdale and Nickerson Trucking.1 None of Nickerson Trucking’s vehicles
were listed on the Lofton insurance policy, and Barksdale was not listed as an insured driver
1
The Attala County Circuit Court found that the Lewises had acknowledged the
affirmation of summary judgment on November 7, 2006, in favor of Lofton and Georgia
Pacific in Stewart v. Lofton Timber Co., LLC, 943 So. 2d 729, 735 (¶¶21-23) (Miss. Ct. App.
2006) and that they were collaterally estopped from recovering against Georgia Pacific and
Lofton on the theories of respondent superior, vicarious liability, and joint venture.
Progressive is now the only defendant in this matter.
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on the Lofton insurance policy.
¶4.
In the Lewises’ November 18, 2004, complaint, the Lewises sought a declaratory
judgment that Progressive had issued an insurance policy to Lofton with a policy limit of
$1,000,000 that covered “not only [Lofton], but also Nickerson Trucking and/or one or more
of the other named defendants by way of its terms and conditions.” Progressive filed a
motion for summary judgment on August 22, 2007.
¶5.
On April 9, 2008, the trial court granted Progressive’s motion for summary judgment.
The trial court found that Lofton was not renting the Nickerson truck on the date of the
accident. The trial court explained its order granting summary judgment as follows:
Lofton hired Nickerson to provide them with a service; that service being one
of hauling logs. While Nickerson had to have a driver, truck and trailer to
accomplish this task, it was the service of hauling the logs that Lofton had
contracted for with Nickerson, and not a truck rental. Finally, the plaintiffs
have provided no evidence . . . that would show that the Nickerson truck was
a “hired auto” under the terms of the insurance policy issued by Progressive.
¶6.
The Lewises now appeal alleging that the Nickerson truck driven by Barksdale at the
time of the accident was a “hired auto” under the hired-auto provision of Lofton’s
commercial automobile insurance policy with Progressive; therefore, the trial court erred
when it granted summary judgment in favor of Progressive.2 Finding no error, we affirm.
2
The Lewises also argue as a sub-issue that the trial court prematurely ruled on
Progressive’s motion for summary judgment because the Lewises should have been given
the opportunity to depose Progressive’s corporate representative before any motion for
summary judgment was ruled upon. However, the Lewises fail to demonstrate how any
information from Progressive’s corporate representative would have enabled them to
develop their case any further. Moreover, we find that under our current case law and the
facts of the case, further discovery would not have aided the Lewises in avoiding an adverse
rendering of summary judgment. See Powe v. Roy Anderson Constr. Co., 910 So. 2d 1197,
1205 (¶25) (Miss. Ct. App. 2005) (stating that summary judgment was not premature, even
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STANDARD OF REVIEW
¶7.
We apply a de novo standard of review to a grant of summary judgment by the trial
court. Hudson v. Courtesy Motors, Inc., 794 So. 2d 999, 1002 (¶7) (Miss. 2001). Summary
judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.”
M.R.C.P. 56(c). “The evidence must be viewed in the light most favorable to the party
against whom the motion has been made.” Northern Elec. Co. v. Phillips, 660 So. 2d 1278,
1281 (Miss. 1995).
¶8.
“The burden of demonstrating that no genuine issue of fact exists is on the moving
party.” Lewallen v. Slawson, 822 So. 2d 236, 238 (¶6) (Miss. 2002) (citation omitted). "The
presence of fact issues in the record does not per se entitle a party to avoid summary
judgment.” Id. “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." Id.
(citation omitted).
WHETHER THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO LOFTON
¶9.
On February 12, 2004, the date of the accident, Lofton had an automobile liability
though the appellants claimed that they "did not yet have sufficient time to conduct
discovery on outstanding fact issues” when law was clearly decisive on the outcome of the
case); cf. Malone v. Aetna Cas. and Sur. Co., 583 So. 2d 186, 187 (Miss. 1991) (reversing
the trial court’s granting of motion for summary judgment for Aetna when beneficiaries had
not been provided reasonably sufficient time to develop their theory of liability).
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insurance policy issued by Progressive. Neither Barksdale nor Nickerson Trucking were
listed as insured drivers or entities in the policy. However, the Lewises argue that the
Nickerson truck is covered under the portion of the policy that is titled, “Hired Auto
Coverage.” That portion of the policy states the following:
1.
The definition of your Insured auto includes hired autos. Such
insurance applies to:
a.
You, as rentee of such auto, in the same manner as if you were
the owner, and
b.
each of the following, as Insureds:
(i)
(ii)
(iii)
the owner of such auto
any lessee of [whom] you are a sub-lessee
any agent or employee of such owner or lessee,
while such auto is being used in your business by you or for personal
or pleasure purposes.
2.
When used in this endorsement, “hired auto” means an auto which is
not owned by you, registered in your name, or borrowed from your
employees and which is obtained under a short-term rental agreement
not to exceed thirty (30) days.
3.
The Insurance provided by this endorsement is excess over any other
valid and collectible insurance whether primary, excess, or contingent.
4.
“Cost of Hire” is the total amount paid by you for the hire of
automobiles including charges for services performed by motor carriers
of property or passengers which are subject to the compulsory
requirements of any motor carrier law or regulation.
5.
The premium for this hired auto coverage is based on cost of hire, and
is subject to a minimum cost of hire as listed below. We may audit the
cost of hire and bill for additional premium; for up to three years after
the policy inception.
Progressive argues that under the terms of the “hired auto” policy, the Nickerson truck was
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not covered because there was no short-term rental agreement between Lofton and Nickerson
Trucking.
¶10.
The Lewises argue that even though “Nickerson/Barksdale may have been an
independent contractor,” Lofton had “rented” the Nickerson truck involved in the accident.
The Lewises reason that “Lofton hired Nickerson/Barksdale on a job-by-job basis”;
therefore,
“every
time
Nickerson/Barksdale
hauled
logs
for
Lofton[,]
the
Nickerson/Barksdale vehicle was being operated under a ‘short-term rental agreement.’” The
Lewises state that the term “short-term rental agreement” was not defined anywhere in the
policy and that the policy contained no requirement of a written rental agreement. From this
proposition, the Lewises leap to the conclusion, without citing any case law, that “[t]hus, the
vehicle being driven by Barksdale was a ‘hired auto’ as defined by the policy.”
¶11.
The present appeal is a companion case to Stewart, 943 So. 2d 729. Although the
plaintiffs in this case are now the Lewises, and the only defendant is now Progressive,
Stewart addressed the facts surrounding the same accident and the same relationships among
Georgia Pacific, Lofton, and Nickerson Trucking. Id. at 732 (¶¶1-6). In Stewart, we held
that Nickerson Trucking was an independent contractor, hired by Lofton to haul logs to
Georgia Pacific. Id. at 734 (¶15). "An independent contractor is a person who contracts with
another to do something for him but who is not controlled by the other nor subject to the
other's right to control with respect to his physical conduct in the performance of the
undertaking." Id. at 733 (¶10) (citation omitted).
¶12.
To begin our analysis, we now turn to the basic principles in analyzing contracts
between individuals and insurance companies. Before recovery is warranted, we must decide
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whether the individual is an insured under the insurance contract. See Meyers v. Am. States
Ins. Co., 914 So. 2d 669, 676 (¶21) (Miss. 2005) (citations omitted). “The central factor in
making this determination, which involves a question of law for this Court to resolve, is
whether the policy provision under review is ambiguous.” J&W Foods Corp. v. State Farm
Mut. Auto. Ins. Co., 723 So. 2d 550, 552 (¶7) (Miss. 1998). “If this Court finds an insurance
policy ambiguous, we must necessarily find in favor of coverage.” Id.
¶13.
“The initial question of whether the contract is ambiguous is a matter of law, while
the subsequent interpretation of an ambiguous contract is a finding of fact.” Phillips v. Enter.
Transp. Serv. Co., 988 So. 2d 418, 421 (¶13) (Miss. Ct. App. 2008) (citing Clark v. State
Farm Mut. Auto. Ins. Co., 725 So. 2d 779, 781 (¶5) (Miss. 1998)). "If a contractual term is
unambiguous and not subject to interpretation, then it will be enforced as written, without
attempting to surmise some 'possible but unexpressed intent of the parties.’” Id. (citation
omitted). “The fact that parties may disagree over the meaning of a contractual term does
not, by itself, render that term ambiguous.” Id. (citation omitted).
¶14.
This Court will construe the provisions of an insurance contract strongly against the
drafter. J&W Foods Corp., 723 So. 2d at 552 (¶8) (citation omitted). We will interpret and
construe an insurance policy liberally in favor of the insured. Id. (citation omitted).
¶15.
The evidence presented in this case indicates that the vehicle involved in the accident
was owned by Nickerson Trucking, not by Lofton. Lofton's agreement with Nickerson
Trucking represented a contract for services, specifically the hauling of wood. No agreement
existed between Nickerson Trucking and Lofton for the purchase, lease, rental, or hiring of
the specific Nickerson truck in question or of any other vehicle owned by Nickerson
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Trucking. Furthermore, in granting summary judgment to Progressive, the trial court found
Nickerson Trucking to be an independent contractor of Lofton, not one of its employees, and
the Lewises admit this finding in their brief.
¶16.
Upon reading the language of Progressive’s insurance policy, we find, as a matter of
law, no ambiguity with the term "hired auto." See Phillips, 988 So. 2d at 423 (¶25) (finding
that there was no ambiguity in the phrase “hired auto” and that the automobile involved in
the accident was not a “hired auto” within the plain meaning of that phrase and that the
contract at issue was for the services of an independent contractor and that the contracting
did not cover the transportation services of an independent contractor). As defined in the
policy, a "hired auto" was an automobile that Lofton leased, hired, rented, or borrowed. In
this case, Lofton did not "hire" the "auto" that was involved in the accident.
¶17.
Lofton did, however, "hire" the "services" of Nickerson Trucking, which incidentally
included the use of the truck that was involved in the accident. There was also no indication
that Lofton had any control over which truck Nickerson Trucking used to haul wood from
Lofton’s facility to the Georgia Pacific mill. Barksdale, the driver of the truck involved in
the accident, was an employee of Nickerson Trucking, not an employee of Lofton.
Furthermore, aside from designating pickup and drop-off locations, Lofton had no control
over the methods or routes used by Nickerson Trucking to haul wood. Nickerson Trucking
owned its own trucks, hired its own drivers, provided its own insurance, and controlled all
operations of its business.
¶18.
“Interpreting a Mississippi insurance contract, the Fifth Circuit noted that courts have
recognized that ‘[f]or a vehicle to constitute a hired automobile, there must be a separate
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contract by which the vehicle is hired or leased to the named insured for his exclusive use
or control.’” Phillips, 988 So. 2d at 422 (¶22) (quoting Sprow v. Hartford Ins. Co., 594 F.2d
418, 422 (5th Cir. 1979)); see also Toops v. Gulf Coast Marine, Inc., 72 F.3d 483, 487-88
(5th Cir. 1996) (stating that “for a vehicle to constitute a hired automobile, there must be a
separate contract by which the vehicle is hired or leased to the named insured for his
exclusive use or control” and that the hired vehicle must also be under the named insured's
exclusive use or control) (citation omitted). The evidence in this case reflects that Lofton had
no control over Nickerson Trucking’s operations, and Lofton did not use or control any of
Nickerson Trucking’s vehicles. Again, no agreement or contract existed between Lofton and
Nickerson Trucking providing that Lofton would acquire any control over Nickerson
Trucking’s vehicles.
¶19.
Taking the evidence in a light most favorable to the Lewises, the evidence reflects that
the truck was owned by Nickerson Trucking, driven by Barksdale – a Nickerson Trucking
employee – and covered by separate insurance that was provided by Nickerson Trucking.
See J&W Foods Corp., 723 So. 2d at 552 (¶8). Nickerson Trucking was an independent
contractor of Lofton, and Lofton did not use or control the truck in question or any other
vehicle owned by Nickerson Trucking. See Toops, 72 F.3d at 487-88. As the phrase "hired
auto" was defined in the Progressive insurance policy, the trial court was correct in finding
that under controlling case law that Lofton did not lease, hire, rent, or borrow the truck
involved in the accident from Nickerson Trucking. The trial court also found that no
evidence was presented to show that Barksdale was someone that was using a covered "auto"
that Lofton owned, hired, or borrowed; therefore, Barksdale was not an "insured" as defined
9
by the policy. Accordingly, we find that the trial court did not err in granting Progressive’s
motion for summary judgment, and we affirm that judgment.
¶20. THE JUDGMENT OF THE ATTALA COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE
AND ROBERTS, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.
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