Cherokee Ins. Co v. Babin, 2008-Ca-00145-Sct

37 So. 3d 45, 2010 Miss. LEXIS 295, 2010 WL 2305855
CourtMississippi Supreme Court
DecidedJune 10, 2010
Docket2008-CA-00145-SCT, 2009-CA-00531-SCT
StatusPublished
Cited by28 cases

This text of 37 So. 3d 45 (Cherokee Ins. Co v. Babin, 2008-Ca-00145-Sct) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherokee Ins. Co v. Babin, 2008-Ca-00145-Sct, 37 So. 3d 45, 2010 Miss. LEXIS 295, 2010 WL 2305855 (Mich. 2010).

Opinion

KITCHENS, Justice,

for the Court:

¶ 1. In this case, we are asked to determine whether the parties waived their right to appeal when they entered into a settlement agreement but agreed to litigate the issue of coverage. If the parties did not waive their right to appeal, we must determine whether the trial court erred in finding that, under Tennessee law, a general liability insurance policy covered injuries related to an automobile accident.

Facts and Procedural History

¶ 2. On July 21, 2005, on Interstate 55 in Copiah County, Mississippi, an automobile accident occurred involving two eighteen-wheelers, a bob-tailed truck, 1 and a pas *47 senger automobile. One of the eighteen-wheelers was owned by Three Rivers Trucking, Inc., a Tennessee corporation, and was driven by that company’s employee, Bobby Morris. The other eighteen-wheeler was owned by Safeway Transportation Co., Inc., and was driven by its employee, Jerry Cooper. Britt Rogers was driving the bob truck and died as a result of the accident. Kathy Gustavis was driving her Toyota Camry, the passenger vehicle. She survived the accident but sustained severe physical injuries.

¶ 3. Sarajean Babin, individually, and on behalf of the estate and heirs of Rogers (collectively “Babin”), brought suit in Copi-ah County Circuit Court against Morris, Three Rivers, Gustavis, Safeway, and Cooper. Gustavis filed a cross-claim against Three Rivers and Morris, and later amended her complaint to add Safeway and Cooper as defendants. All claims against Safeway and Cooper eventually were dismissed, as well as Babin’s claim against Gustavis. Therefore, the only claims that remained were Babin’s and Gustavis’s claims against Three Rivers and Morris. In addition to their claims that Three Rivers was hable for Morris’s negligence via respondeat superior, the plaintiffs also alleged that Three Rivers was directly liable for its negligence in hiring, supervising, training, and monitoring its employee, Morris.

¶4. On November 14, 2006, Babin and Gustavis reached a settlement agreement with Three Rivers, Morris, and Three Rivers’ insurance carrier, Cherokee Insurance Company. Three Rivers carried both commercial automobile insurance and general commercial liability (GCL) insurance policies with Cherokee. The parties agreed to settle for the automobile policy’s $1,000,000 limit, with Babin and Gustavis each receiving agreed percentages. The parties also agreed to litigate the issue of coverage under the GCL policy, capping the coverage limit at $800,000, by agreement. 2 This agreement was dictated into the record in open court but was not otherwise reduced to writing.

¶ 5. Babin and Gustavis (the plaintiffs) amended their complaints, adding Cherokee as a defendant and requesting a declaratory judgment that the GCL policy afforded coverage to Three Rivers for its negligence in the supervision, hiring, employment, training and/or monitoring of Morris. The circuit court ruled in favor of the plaintiffs, finding that their claims against Three Rivers fell outside the GCL policy’s exclusions.

¶ 6. After Cherokee appealed the decision, Babin filed a motion in the circuit court to enforce the settlement agreement, arguing that the parties, while agreeing to litigate the coverage issues, had waived their right to appeal from the trial court. The circuit court declined to rule on the motion, believing that jurisdiction was with the appellate courts. The appeal was retained by this Court, 3 and the plaintiffs filed motions to dismiss, arguing that the parties had waived any right to appeal. We granted the motions, but did not rule on the waiver issue, simply dismissing the appeal without prejudice. Following dismissal of the appeal, the trial court granted Babin’s motion to enforce the settlement agreement and entered a final judgment in favor of the plaintiffs.

¶ 7. Cherokee has appealed a second time and asks this Court to reverse. Cherokee argues that it never waived its right to appeal and that the GCL policy *48 excludes the type of claims filed by the plaintiffs against Three Rivers.

Discussion

¶ 8. Both issues in this case involve the interpretation of contracts. Such issues are questions of law reviewed by our appellate courts under a de novo standard of review. Warwick v. Gautier Util. Dist., 738 So.2d 212, 215 (Miss.1999) (citing Miss. State Hwy. Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss.1993)). We first look to the express wording of the contract itself, looking at the contract as a whole, to the exclusion of extrinsic or parole evidence. Id. (citing Brown v. Hartford Ins. Co., 606 So.2d 122, 126 (Miss.1992); Cooper v. Crabb, 587 So.2d 236, 239-41 (Miss.1991)). If the parties’ intent is unclear, the court will utilize the applicable “canons” of contract construction. HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1105 (Miss.2003) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349 (Miss.1990)). Finally, if the meaning remains ambiguous, only then may the court consider extrinsic evidence. Id.

I. Right to Appeal

¶ 9. The plaintiffs argue that when the parties reached a settlement, they waived their right to appeal. The terms of the settlement agreement were recited into the record by Gustavis’s attorney with all parties present. After articulating the settlement as it related to the automobile insurance, the attorney said:

The second policy is a commercial general liability policy. And [Cherokee] has filed a declaratory] action in federal district court in front of Judge Wingate. And the parties have agreed on that particular matter that we will agree to cap the coverage limit at $800,000, that we will litigate that in federal district court or any court that has jurisdiction — and if it’s the Circuit Court of Copiah County. But it’s, of course, to determine who has jurisdiction' — that the split between the parties on the amounts would be 250 [thousand dollars] to Kathy Gustavis and 550 [thousand dollars] to the heirs of Britt Rogers on the additional coverage under the commercial general liability.

¶ 10. Babin argues that Cherokee never reserved its right to appeal and that once the circuit court determined coverage existed under the GCL policy, this satisfied a condition precedent requiring Cherokee to pay. However, an agreement not to appeal “should be very clear in its terms, and leave no doubt of the intention of the party to cut himself off from the right of appeal.” Nobile v. Nobile, 535 So.2d 1385, 1387 (Miss.1988) (quoting 4 Am.Jur.2d Appeal and Error § 236 (Supp. 1988)). We find nothing in the foregoing recitation that clearly expresses a waiver of any party’s right to appeal from the trial court. Thus, Cherokee’s appeal is properly before this Court.

II. Coverage under the Commercial General Liability Policy

¶ 11.

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Bluebook (online)
37 So. 3d 45, 2010 Miss. LEXIS 295, 2010 WL 2305855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherokee-ins-co-v-babin-2008-ca-00145-sct-miss-2010.