Gregory v. Audubon Indemnity Co.

951 So. 2d 600, 2007 Miss. App. LEXIS 136, 2007 WL 738752
CourtCourt of Appeals of Mississippi
DecidedMarch 13, 2007
DocketNo. 2006-CA-00267-COA
StatusPublished

This text of 951 So. 2d 600 (Gregory v. Audubon Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregory v. Audubon Indemnity Co., 951 So. 2d 600, 2007 Miss. App. LEXIS 136, 2007 WL 738752 (Mich. Ct. App. 2007).

Opinion

ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Neil Gregory was injured at the Sand Creek Dirt Pit in Lee County, Mississippi. Gregory and his wife, Sherry, sued numerous parties, both individually and as their respective business entities. The defendant most relevant to our present purposes was Audubon Insurance Group, the insurance company that issued a commercial general liability insurance policy to Hodges Construction Company, Inc.

¶ 2. The Gregorys claimed that they were entitled to compensation as a third party beneficiary of Hodges Construction Company’s policy with Audubon. Audubon claimed that the Gregorys were not entitled to compensation because the events that led to Neil Gregory’s injuries were excluded from coverage. Consequently, Audubon filed a motion for summary judgment. The circuit court granted summary judgment in favor of Audubon. Aggrieved, the Gregorys appeal. Finding no error, we affirm.

FACTS

¶ 3. On October 8, 1998, Neil Gregory drove his dump truck to the Sand Creek Dirt Pit in Saltillo, Mississippi. Gregory planned to pick up a load of dirt and transport it to the site of a new home construction.

¶ 4. Sand Creek’s loading procedure involved driving a dump truck to the end of the line of waiting trucks and gradually moving forward until one reached the front of the line. At that point, an excavator would place a load of dirt onto the dump truck. Gregory was injured as he waited in line.

¶ 5. By Gregory’s recollection, on October 8th, there was a long line of trucks ahead of him. Larry Moore, an employee of Hodges Construction Company, Inc., operated the dump truck directly ahead of Gregory. As he waited, Gregory decided to check under his hood for oil leaks. Gregory got out of his truck and looked under his open hood. As Gregory looked for leaks, Moore attempted to reposition his truck. In so doing, Moore backed into Gregory and crushed him between the two trucks. Gregory was severely injured.

PROCEDURAL HISTORY

¶ 6. Having retained the firm of Jimmy D. Shelton and Associates, the Gregorys filed a complaint on July 21, 2000, in the Lee County Circuit Court. Neither Hodges Construction nor Audubon were named as defendants. On January 11, 2001, Michael Greer of the firm Greer & Pipkin filed an entry of appearance on behalf of the Gregorys.

[602]*602¶ 7. On March 9, 2001, the Gregorys amended their complaint and added Hodges Construction as a defendant. On July 15, 2002, the Gregorys amended their complaint for a second time. That time, the Gregorys finally added Audubon as a defendant and claimed they were entitled to recover as third party beneficiaries under Hodges Construction’s commercial general liability policy with Audubon.

¶ 8. On January 27, 2003, Audubon filed a motion for summary judgment. Audubon took the position that the Gregorys were precluded from recovery as third party beneficiaries due to the language of the policy. Meanwhile, the Gregorys settled with all named defendants except Audubon. On January 3, 2006, the circuit court conducted a hearing on Audubon’s motion for summary judgment. That same day, the circuit court entered an order and opinion. By that order, the circuit court found “that the auto exclusion forecloses coverage under the Audubon policy.” The circuit court found that, based on the circumstances of Neil’s injuries, the language of the Audubon commercial general liability policy did not allow the Gregorys to recover anything as third party beneficiaries of Hodges Construction’s commercial general liability insurance policy. Accordingly, the circuit court granted Audubon’s motion for summary judgment. The Gregorys appeal.

STANDARD OF REVIEW

¶ 9. The sole issue before us is whether the circuit court erred when it found that summary judgment on behalf of Audubon was appropriate. “This Court’s standard of review for summary judgment is well-settled and is the same standard employed by the trial court under Rule 56(c).” Titan Indem. Co. v. Estes, 825 So.2d 651(¶ 11) (Miss.2002). We conduct a de novo review of a circuit court’s decision to grant or deny summary judgment. Id.

ANALYSIS

¶ 10. According to Rule 56 of the Mississippi Rules of Civil Procedure, a circuit court may grant summary judgment “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.” “A fact is material if it ‘tends to resolve any of the issues, properly raised by the parties.’ ” Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991). The moving party bears the burden of showing that no genuine issue of material fact exists. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). Additionally, the circuit court must view the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622 (Miss.1997). Because it is generally better to err on the side of denying the motion, it has been said that the circuit court must consider motions for summary judgment with a skeptical eye. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss.1986).

¶ 11. The circuit court found that the Gregorys were precluded from recovery as third party beneficiaries under the commercial protection policy Hodges Construction purchased from Audubon. The circuit court reached its decision based on the language of what is termed the “auto exclusion.” Pursuant to the “auto exclusion,” Audubon will not pay benefits for:

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any ... “auto” ... owned or operated by or rented or loaned to any insured. Use includes operation and “loading and unloading.”

[603]*603Audubon submits that, because Moore was an employee of Hodges Construction and was driving a dump truck leased to Hodges Construction when he backed into Gregory, the Gregorys are not entitled to recover under the “auto exclusion.”

¶ 12. The Gregorys claim that they are entitled to coverage by virtue of the “parking exception” to the “auto exclusion.” The “parking exception” states that the “auto exclusion” does not apply to “[P]ark-ing an ‘auto’ on or on the ways next to, premises you own or rent, provided the ‘auto’ is not owned by or rented or loaned to you or to the insured.” Consequently, our analysis must focus on (a) whether the “auto exclusion” applies and, if so, (b) whether the “parking exception” overrides the “auto exclusion.”

a. The “Auto Exclusion”

¶ 13. As mentioned, Hodges Construction’s policy with Audubon will not extend coverage to:

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any ... “auto” ... owned or operated by or rented or loaned to any insured. Use includes operation and “loading and unloading.”

Said differently, Audubon will not compensate for injuries arising out of the use of any “auto” owned, operated by, rented to, or loaned to any “insured.” The policy specifically defined both “auto” and “insured.”

¶ 14. According to the policy, “ ‘[a]uto’ means a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment.

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Related

Webb v. Jackson
583 So. 2d 946 (Mississippi Supreme Court, 1991)
Ratliff v. Ratliff
500 So. 2d 981 (Mississippi Supreme Court, 1986)
Titan Indem. Co. v. Estes
825 So. 2d 651 (Mississippi Supreme Court, 2002)
Russell v. Orr
700 So. 2d 619 (Mississippi Supreme Court, 1997)
Tucker v. Hinds County
558 So. 2d 869 (Mississippi Supreme Court, 1990)

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Bluebook (online)
951 So. 2d 600, 2007 Miss. App. LEXIS 136, 2007 WL 738752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-v-audubon-indemnity-co-missctapp-2007.