McGee v. Swarek

733 So. 2d 308, 1998 WL 850096
CourtCourt of Appeals of Mississippi
DecidedDecember 8, 1998
Docket97-CA-00716COA
StatusPublished
Cited by14 cases

This text of 733 So. 2d 308 (McGee v. Swarek) 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
McGee v. Swarek, 733 So. 2d 308, 1998 WL 850096 (Mich. Ct. App. 1998).

Opinion

733 So.2d 308 (1998)

Michael L. McGEE and Sherry B. McGee, Appellants,
v.
Thomas L. SWAREK, Appellee.

No. 97-CA-00716COA.

Court of Appeals of Mississippi.

December 8, 1998.
Rehearing Denied March 9, 1999.
Certiorari Denied May 20, 1999.

*309 Roy O. Parker, Tupelo, Attorney for Appellants.

Walter W. Teel, Alfred R. Koenenn, Gulfport, Attorneys for Appellee.

Before McMILLIN, P.J., and COLEMAN and SOUTHWICK, JJ.

McMILLIN, P.J., for the Court:

¶ 1. This case comes before the Court as an appeal from a grant of summary judgment in favor of the defendant in an action sounding in fraud. The appeal suggests that summary judgment was inappropriate because there are disputed issues of fact that, if resolved favorably to the plaintiffs, would establish their right to recover in this case. We conclude that the judgment of the trial court was correct and we, therefore, affirm.

I.

Facts

¶ 2. The facts of this case follow a somewhat tortured course to bring us to the claim now advanced by the plaintiffs. We will attempt to relate them as succinctly and clearly as possible. It might prove helpful to resist the urge to anticipate the path of the narrative that follows since it takes some unexpected turns.

¶ 3. The plaintiffs in the trial court in this case were Michael McGee and his wife, Sherry McGee. Hereafter, Michael McGee will be referred to simply as "McGee" since he, and not Sherry McGee, is the principal player in the drama. This case had its origins in a personal injury suffered by McGee at work, but it is important to keep in mind that the case now before this Court is not a personal injury action. As will appear more fully hereafter, McGee's claim for personal injury has been finally resolved in another proceeding.

¶ 4. McGee was employed by the defendant, Thomas Swarek, as a farm laborer. In the fall of 1992, McGee suffered a devastating injury while at work that resulted in the loss of one leg and a portion of his lower torso. McGee was not a covered employee under Mississippi Workers' Compensation laws. Rather, his sole remedy was an action in negligence. He asserted a claim for recovery against Swarek, his employer, asserting that his injury was due to the negligence of a fellow employee, *310 thus rendering Swarek vicariously liable under the doctrine of respondeat superior. Swarek was covered under a liability insurance policy issued by State Farm Fire and Casualty Company (hereafter "State Farm") with policy limits of $1,000,000.

¶ 5. The McGees retained the services of Roy O. Parker, an attorney, to represent them in pursuit of their damage claims arising out of McGee's injury. (Mrs. McGee's role in this case arises out of her belief that she had a separate loss of consortium claim based on her husband's personal injuries.) In March 1993, Parker had a telephone conversation with Swarek. The call was initiated by Parker, but was apparently in response to an earlier unsuccessful attempt by Swarek to contact Parker. Parker, without Swarek's knowledge, made a recording of the telephone conversation. A written transcript of the conversation was filed as an exhibit to the complaint in this case. A review of that conversation indicates that Swarek's principal concern was that the claim asserted by Parker exceeded the limits of the State Farm policy and he feared that State Farm might be unwilling to settle the claim at or below the policy limits, thus exposing Swarek to potential personal liability. Parker's principal concern, on the other hand, appeared to be whether there were means that could be employed to secure payment of the entire $1,000,000 policy limits since State Farm was suggesting that McGee's damages were subject to substantial reduction because of evidence that McGee's own negligence contributed to his injury. Parker and Swarek discussed possible strategies to bring pressure to bear on State Farm to settle the case within policy limits. In the course of the conversation, Swarek made certain statements that indicated to Parker his desire to put McGee back to work but that State Farm representatives were instructing him not to do so. Upon learning this fact, Parker stated that he intended to file an additional suit charging State Farm with malicious interference with contract—the contract being the at-will employment contract between Swarek and McGee. Once again, patience in following this narrative is involved because, even though this second suit was, indeed, filed, neither is it the case now before this Court.

¶ 6. The facts indicate that the contract interference suit was filed by Parker shortly after his conversation with Swarek. The exact date is unclear, but it was during the month of March 1993. Some eight months later, in January 1994, all interested parties reached an agreed settlement of McGee's personal injury claim. In the settlement, State Farm paid the entire policy limits of $1,000,000 and Swarek made no additional contribution to the settlement from his own assets. The record also indicates that, despite Swarek's alleged statements to Parker concerning State Farm's opposition to the rehire of McGee, Swarek did put McGee back to work at a higher salary the next month after the contract interference suit was filed.

¶ 7. At some point, the separate contract interference suit was removed to federal court and in late 1994, the federal district court judge presiding over the case granted summary judgment in favor of State Farm. In support of its summary judgment motion, State Farm procured an affidavit from Swarek stating that State Farm had not, at any point, attempted to interfere with Swarek's decision to put McGee back to work except to counsel him that it would be prudent to have a doctor's release before doing so. These provisions of Swarek's affidavit are, beyond question, at odds with statements made by Swarek in his telephone conversation with Parker. The federal district judge, in explaining its ruling, made it clear that the court was relying in part on Swarek's affidavit to conclude that there were no disputed issues of fact to support McGee's contract interference claim.

*311 ¶ 8. Upon the dismissal of McGee's contract interference suit against State Farm, McGee commenced the present litigation. This Court's best interpretation of the cause of action advanced by McGee in this claim is as follows: McGee reasonably believed that his personal injury claim against Swarek was worth substantially in excess of $1,000,000 and he was reluctant to settle the case for such a discounted sum. However, in reliance on Swarek's telephonic comments to his attorney, McGee was falsely led to believe that he had a separate claim against State Farm for maliciously interfering with his employment contract with Swarek. McGee reasonably believed, based on Swarek's statements, that this suit would provide an alternate source of funds that could stand in the stead of those additional amounts he might expect to recover in the personal injury suit if he declined the $1,000,000 settlement offer. In reliance on the belief that Swarek would be a credible and persuasive witness to establish State Farm's tortious ultimatum that McGee not be put back to work, McGee "reluctantly" agreed to settle the personal injury claim for the policy limits. This settlement benefitted Swarek by removing any risk to him that the McGees might recover a judgment against him that would exceed available liability insurance coverage.

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Cite This Page — Counsel Stack

Bluebook (online)
733 So. 2d 308, 1998 WL 850096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgee-v-swarek-missctapp-1998.