Nina Breland v. Trustmark Corporation d/b/a Trustmark National Bank, Proctor Financial Inc. a/k/a Proctor Financial Insurance Company, and Certain Underwriters at Lloyd's of London, including Ironshore Europe Limited

• Court: Court of Appeals of Mississippi
• Decided: January 4, 2022
• Docket: 2020-CA-00970-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CA-00970-COA

NINA BRELAND APPELLANT

v.

TRUSTMARK CORPORATION D/B/A APPELLEES TRUSTMARK NATIONAL BANK, PROCTOR FINANCIAL INC. A/K/A PROCTOR FINANCIAL INSURANCE COMPANY, AND CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON, INCLUDING IRONSHORE EUROPE LIMITED

DATE OF JUDGMENT: 11/12/2019 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: CHRISTOPHER JACKSON WELDY ATTORNEYS FOR APPELLEES: WILLIAM ‘TREY’ JONES III JACOB ARTHUR BRADLEY JAMES LAWRENCE WILSON IV NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 01/04/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE BARNES, C.J., McCARTY AND SMITH, JJ.

McCARTY, J., FOR THE COURT:

¶1. A homeowner sued the bank that held her mortgage and the bank’s insurance

company. The bank had force-placed insurance on her property because she let her prior

insurance lapse. She claimed the insurance company refused to pay for damage after a storm.

¶2. The trial court granted summary judgment, finding the bank and insurance company

were not liable because she did not have a contractual relationship with the insurer. Finding there was no genuine issue of material fact, we affirm.

FACTS

A. Ms. Breland purchases a house.

¶3. In 2004, Trustmark National Bank loaned Nina Breland $78,500 to allow her to buy

a house in Gulfport. The house was financed by a Fannie Mae1 mortgage through Trustmark.

As a result, Trustmark used a series of guidelines propagated by Fannie Mae.

¶4. The Deed of Trust on the home required Ms. Breland to insure it. In pertinent part,

the Deed of Trust stated:

If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender’s option and Borrower’s expense. Lender is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower’s equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained.

(Emphasis added). She initially obtained a homeowner’s hazard insurance policy and wind

policy for the home. Ms. Breland maintained this private insurance from March 2004 to

March 2015.

B. The private insurance coverage lapses.

¶5. In 2015, Ms. Breland’s insurance carrier notified her that it was discontinuing her

insurance coverage for wind damage. Ms. Breland failed to obtain a new wind policy.

1 The Federal National Mortgage Association, known as Fannie Mae, is a Great Depression era enterprise created by Congress to “promote access to mortgage credit throughout the Nation . . . .” See 12 U.S.C. § 1716(4); 12 C.F.R. § 1253.2.

2 ¶6. Trustmark sent letters to Ms. Breland on several occasions informing her that the

hazard and windstorm coverage had lapsed. By these notices, the bank informed her that

under the Deed of Trust it intended to force-place insurance if she did not secure her own

private insurance. The letters Trustmark sent to Ms. Breland regarding the force-placed

insurance informed her that the insurance might be more expensive than private insurance

she could purchase herself and that the force-placed insurance might not provide as much

coverage as private insurance.

C. The windstorm insurance policy is issued to Ms. Breland.

¶7. After Ms. Breland failed to obtain adequate insurance coverage, Trustmark secured

force-placed insurance coverage on her house through a third-party insurance servicing

company known as Proctor Financial Inc. The force-placed policy was issued by Ironshore

Europe Limited. According to the Deed of Trust, Ms. Breland was obligated to pay the

policy premiums despite her interests being unprotected by the insurance. Notably,

Trustmark—not Ms. Breland—was the named insured under the policy. Ms. Breland was

not a party to the policy and was not an additional insured on the policy.

¶8. The policy issued windstorm coverage which ran from 2015 through 2016. The policy

charged a higher premium than Ms. Breland had paid for her private insurance. The policy

also had a $5,000 deductible, which Ms. Breland’s private insurance did not have. Ms.

Breland never obtained windstorm coverage during the 2015 through 2016 period.

¶9. As a result, the force-placed windstorm coverage was reinstated from 2016 to 2017

in the amount of $100,000.

3 D. Ms. Breland’s home is damaged in a windstorm.

¶10. In March 2016, Ms. Breland’s home was damaged in a windstorm. She initially

claimed a loss of $2,244. She filed a windstorm claim with Ironshore. The insurer denied

the claim on the basis that its investigation revealed that the cost to repair the home did not

exceed the $5,000 deductible. In August 2017, Ms. Breland commissioned a second

inspection of her home. This second inspection quoted Ms. Breland an estimate of $14,550

to replace her roof and decking as well as correct termite damage. Ms. Breland later obtained

private insurance coverage, and Trustmark subsequently canceled the force-placed coverage.

PROCEDURAL HISTORY

¶11. Ms. Breland had filed a complaint for damages in the Harrison County Circuit Court

in May 2017. After obtaining the second inspection, Ms. Breland filed an amended

complaint in January 2019, alleging causes of action against Trustmark for breach of duty

of good faith and faith dealing, negligence and/or negligence per se, conspiracy, and punitive

damages. In regard to Ironshore and Proctor, Ms. Breland asserted the same claims as well

as breach of contract. Ms. Breland asserted all three companies violated both Mississippi law

and Fannie Mae’s Servicing Guidelines. Trustmark and Ironshore both filed motions for

summary judgment.

¶12. In granting summary judgment, the trial court found that Ms. Breland was not a third-

party beneficiary to the force-placed insurance contract, Trustmark did not breach its contract

with Ms. Breland, and she had no private right of action to enforce federal Fannie Mae

regulations that governed her mortgage. The trial court further held that Trustmark and the

4 insurance companies did not act wrongfully and dismissed Ms. Breland’s claims of civil

conspiracy and punitive damages.

¶13. Ms. Breland appealed.

STANDARD OF REVIEW

¶14. “A trial court’s grant of summary judgment is reviewed de novo.” Phillips v. Delta

Reg’l Med. Ctr., 290 So. 3d 386, 390 (¶14) (Miss. Ct. App. 2020). “We review the grant or

denial of a motion for summary judgment de novo, viewing the evidence in the light most

favorable to the party against whom the motion has been made.” Lefler v. Wasson, 295 So.

3d 1007, 1009 (¶7) (Miss. Ct. App. 2020). “Rule 56(c) of the Mississippi Rules of Civil

Procedure provides that summary judgment is proper where ‘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.’” Bissette v. Univ. of Miss. Med. Ctr., 282 So. 3d 507, 513

(¶10) (Miss. Ct. App. 2019).

¶15. However, “summary judgment is appropriate when the non-moving party has failed

to make a showing sufficient to establish the existence of an element essential to the party’s

case, and on which that party will bear the burden of proof at trial.” Lefler, 295 So. 3d at

1009 (¶7) (quoting Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 89 (¶11) (Miss. 2013)).

Questions concerning the construction and interpretation of contracts are questions of law,

which we review de novo. Bissette, 282 So. 3d at 513 (¶10).

DISCUSSION

5 I. Ms. Breland is not a third-party beneficiary to the contract.

¶16. Ms. Breland sued Ironshore and Proctor for breach of contract, and the trial court

dismissed her cause of action on the grounds that neither company was a party to any contract

with her. On appeal, the homeowner argues that she is a third-party beneficiary to the force-

placed insurance contract.2

¶17. Our Supreme Court has explained what a party must show to establish it is a third-

party beneficiary. Adams v. Greenpoint Credit LLC, 943 So. 2d 703, 709-10 (¶15) (Miss.

2006). “In order for the third person beneficiary to have a cause of action the contracts

between the original parties must have been entered for his benefit, or at least such benefit

must be the direct result of the performance within the contemplation of the parties as shown

2 In this appeal, it is clear Ms. Breland claims third-party-beneficiary status with Ironshore, the insurance company that contracted with Trustmark for windstorm coverage, and Proctor, the wholesale broker for the insurer. However, in the trial court, Ms. Breland sued “Certain Underwriters at Lloyd’s of London, including Ironshore Europe Limited.” Ironshore responded to the complaint and summons issued to that named entity. A motion to dismiss was filed in the trial court claiming there was no precise entity as “Certain Underwriters at Lloyd’s of London, including Ironshore Europe Limited,” but only the defendant Ironshore. However, that motion was never ruled upon. An appeal is only final when it “adjudicates the merits of the controversy and settles all issues between all parties.” LaFontaine v. Holliday, 110 So. 3d 785, 787 (¶8) (Miss. 2013) (emphasis added). Although no party has raised the issue of whether all parties are present for purposes of a final judgment pursuant to MRCP 54(b), “an appellate court must address issues of jurisdiction on its own motion.” Hamilton v. Southwire Co., 191 So. 3d 1275, 1279 (¶15) (Miss. Ct. App. 2016). After a review of the record, we are satisfied that the grant of summary judgment in this case resolved all of the claims and liabilities of all parties to this case. MRCP 54(b). However, we caution the parties to an appeal to ensure that the claims and defenses of all parties have been adjudicated and the judgment is final. Otherwise, the appeal will be dismissed—headed to what one commentator calls “the graveyard of appeals.” Hon. Larry Primeaux, MRCP 54(b): Graveyard of Appeals (June 11, 2012), https://betterchancery.com/2012/06/11/mrcp-54b-graveyard-of-appeals/ (last visited January 4, 2022).

6 by its terms.” Id. (emphasis in original). Next, “[t]here must have been a legal obligation

or duty on the part of the promisee to such third person beneficiary.” Id. at 710 (¶15). Last,

“the obligation must have been a legal duty which connects the beneficiary with the

contract.” Id. In other words, “the right of the third party beneficiary to maintain an action

on the contract must spring from the terms of the contract itself.” Id. (emphasis in original).

¶18. Neither this Court nor the Mississippi Supreme Court has tackled the precise question

of whether a homeowner is a third-party beneficiary to force-placed insurance. However,

several federal district courts have concluded they are not. In one decision, a federal district

court in Mississippi ruled “that any benefit to the [homeowners] under this contract would

be merely incidental, which is insufficient under Mississippi law to confer third-party

beneficiary status.” Paulk v. Balboa Ins. Co., No.1:04CV97, 2006 WL 1994864, at *3 (S.D.

Miss. July 14, 2006). In that case, a business in Bay St. Louis allowed its insurance to lapse.

Id. at *1. When the insurance company learned of the lapse in insurance, it purchased

insurance for its own benefit. Id. The Paulks sustained damage to their business as a result

of a tropical storm. Id. The Paulks claimed they were third-party beneficiaries to the flood-

insurance policy purchased by the insurance company and, as a result, were entitled to

payment for damage to their business. Id.

¶19. The district court held that the property was insured by the insurance company for its

personal benefit and found that the insurance policy provided no direct benefit to the property

owners. Id. at *3. The district court concluded the Paulks were merely incidental

beneficiaries of the insurance policy, not third-party beneficiaries, and “that any benefit to

7 the Paulks under the contract would be merely incidental, which is insufficient under

Mississippi law to confer third-party beneficiary status.” Id. As a result, the Paulks failed

to show that there was “a genuine issue of material fact for the jury regarding their status as

third-party beneficiaries.” Id.; see also Simpson v. Balboa Ins. Co., No. 2:08CV281KS-MTP,

2009 WL 1291275, at *5 (S.D. Miss. May 7, 2009) (finding homeowner was not a third-party

beneficiary to force-placed insurance, as “any benefit to the plaintiff . . . would be merely

incidental”); Bacallao v. Balboa Ins. Co., No. 1:08CV1438 LG-RHW, 2009 WL 10675164,

at *2 (S.D. Miss. Oct. 29, 2009) (same).

¶20. The approach taken by the federal courts in Paulk, Simpson, and Bacallao is the

general approach taken by courts who have examined this issue. See In re Barbel, 191 F.

App’x 101, 104-05 (3d Cir. 2006) (When “the contract at issue was between [the bank] and

the insurance providers, with [the property owner] as an additional insured,” the property

owner’s “claims necessarily fail as a matter of law.”). In a well-reasoned decision, the trial

court relied upon Paulk, Bacallao, and several other federal district court cases to conclude

that Ms. Breland was not a third-party beneficiary.

¶21. On appeal, Ms. Breland urges we instead adopt the approach taken by a single Texas

Court of Appeals case which grappled with “whether a homeowner-borrower qualifies as a

third-party beneficiary under a force-placed insurance policy entered into between the

insurance company and the mortgage company.” Alvarado v. Lexington Ins. Co., 389 S.W.3d

544, 553 (Tex. App. 2012). The Texas court first noted the general rule in that State that

there was a “presumption against finding third-party beneficiaries to contracts,” so “courts

8 will generally deny third-party-beneficiary claims” except in certain circumstances. Id. at

552.

¶22. Nonetheless, after a lengthy analysis that turned on the specific language of the policy

between the insurance company and the mortgage company and a review of the approach of

other courts, the Alvarado Court concluded that the plaintiff had third-party-beneficiary

status. Id. at 559. The Texas court viewed the policy in that case as “manifest[ing] a clear

intent to directly benefit both” the mortgage company as well as ‘any mortgagor claiming

coverage or monetary benefit’ for damage to property[.]”3 Id.

¶23. Ultimately, we find the reasoning of the federal district courts of Mississippi more

persuasive than Alvarado. The Mississippi Supreme Court has held that to receive third-

party-beneficiary status, the contract “must have been entered for his benefit.” Adams, 943

So. 2d at 708 (¶15) (emphasis added). Here, the contract for insurance between Trustmark

and Ironshore was not for the benefit of Ms. Breland, but rather for the benefit of the bank.

Additionally, it is clear under the Deed of Trust and on the plain face of the insurance

contract that Ironshore’s insurance was intended to protect the interests of Trustmark. The

whole purpose of the Deed of Trust’s clause securing force-placed insurance was to

safeguard the interests of the mortgage holder. Here, the mortgage holder is Trustmark.

¶24. The Deed of Trust provided that Trustmark could obtain insurance to protect the

3 A subsequent case at the Texas Court of Appeals has distinguished Alvarado. In re Am. Nat’l Prop. & Cas. Co., No. 01-19-00727-CV, 2020 WL 573250, at *5 (Tex. App. Feb. 6, 2020) (noting the broad language of the policy in Alvarado and concluding that the plaintiff “did not establish that he had a right to enforce the policy as a third-party beneficiary,” so the plaintiff did not have standing).

9 bank’s interest in the property in the event that Ms. Breland failed to obtain the required

insurance she was required to have on the house. According to the Deed of Trust, Ms.

Breland agreed that Trustmark was not obligated to purchase insurance, any insurance

Trustmark purchased would insure Trustmark’s interest only and not Ms. Breland’s interests,

the coverage may be greater or lesser than Ms. Breland’s previous coverage, and the cost of

the insurance coverage “might significantly exceed the cost of insurance that Borrower could

have obtained.”

¶25. Additionally, the Deed of Trust makes clear that “such coverage shall cover Lender,

but might or might not protect Borrower . . . .” (Emphasis added). In other words, the force-

placed insurance was not for her benefit. In addition, the letters sent to her indicated that

insurance was being force-placed to protect the bank’s interests, and these notices were sent

to her on more than one occasion. Furthermore, Ms. Breland is not a named insured or

categorically described insured on the contract.

¶26. As stated above, our Supreme Court has explicitly made clear that third-party-

beneficiary status “must spring from the terms of the contract itself”—i.e., it must be “shown

by [the contract’s] terms.” Id. at 709 (¶15). The contract for insurance between Trustmark

and Ironshore does not mention Ms. Breland and was not for her benefit, but for the benefit

of her mortgage holder.

¶27. As a result, the trial court properly granted the motions for summary judgment on this

point.

II. The bank and insurance companies did not breach the implied duty of good faith and fair dealing.

10 ¶28. Ms. Breland alleges that the bank and insurance companies breached the implied duty

of good faith and fair dealing.

¶29. The Supreme Court has held that “[a]ll contracts contain an implied covenant of good

faith and fair dealing in performance and enforcement.” Gulf Coast Hospice LLC v. LHC

Grp. Inc., 273 So. 3d 721, 744 (¶81) (Miss. 2019). “The duty of good faith and fair dealing

arises from the existence of a contract between parties[.]” Id. “Good faith is the faithfulness

of an agreed purpose between two parties, a purpose which is consistent with justified

expectations of the other party.” Id. at (¶82). Bad faith “requires a showing of more than

bad judgment or negligence; rather, [it] implies some conscious wrongdoing ‘because of

dishonest purpose or moral obliquity.’” Id. In other words, “[t]he covenant holds that

neither party will do anything which injures the right of the other to receive the benefits of

the agreement.” Jones v. Miss. Institutions of Higher Learning, 264 So. 3d 9, 19 (¶27) (Miss.

Ct. App. 2018). As stated above, this covenant is implied in “[a]ll contracts.” Gulf Coast

Hospice LLC, 273 So. 3d at 744 (¶81).

A. Neither Ironshore nor Proctor has a contractual relationship with Ms. Breland.

¶30. Here, Ms. Breland contends that the contracts at issue are the Deed of Trust between

herself and Trustmark and the force-placed insurance policies covering her home. However,

it is axiomatic that the duty of good faith arises only when there is a contractual relationship

between parties. See Am. Bankers’ Ins. Co. of Fla. v. Wells, 819 So. 2d 1196, 1207 (¶35)

(Miss. 2001) (“The duty of good faith and fair dealing arises from the existence of a contract

between parties.”); Cenac v. Murry, 609 So. 2d 1257, 1272 (Miss. 1992) (“Good faith is the

11 faithfulness of an agreed purpose between two parties . . . .”). As established above, neither

Ironshore nor Proctor were parties to any contract with Ms. Breland. Therefore, her claim

against the bank and insurance companies fails as a matter of law. We affirm the grant of

summary judgment on this claim.

B. Trustmark’s contract with Ms. Breland expressly allowed force-placed insurance.

¶31. Ms. Breland argues that Trustmark breached its duty of good faith under the Deed of

Trust by (1) force-placing insurance coverage that was unnecessarily high; (2) undervaluing

the cost to repair her home and misrepresenting the deductible; (3) denying her claim even

though Trustmark knew the estimate was insufficient to repair the property after she received

a second opinion that stated otherwise; and (4) canceling the force-placed insurance policy

after she submitted her claim for wind damage.

¶32. “[I]n performing a contract, the parties are not prevented from ‘protecting their

respective economic interests or from asserting their rights in the event of a default.’” Gen.

Motors Acceptance Corp. v. Baymon, 732 So. 2d 262, 269 (¶28) (Miss. 1999).

¶33. With respect to the above allegations, the record does not reflect that Trustmark

violated any of its duties of good faith and fair dealing toward Ms. Breland. Instead,

Trustmark invoked its rights as explicitly allowed by the Deed of Trust. When Ms. Breland

failed to procure home insurance, Trustmark took “actions which were duly authorized by

the contract.” Id. Notably, in Ms. Breland’s brief, she admits that Trustmark was authorized

to force-place insurance on her home per the terms of the Deed of Trust. Indeed,

Trustmark’s actions were expressly allowed under the terms of the Deed of Trust: as it

12 stated, “[B]orrower acknowledges that the cost of the insurance coverage . . . might

significantly exceed the cost of insurance that Borrower could have obtained.”

(Emphasis added).

¶34. Trustmark’s actions were expressly allowed pursuant to the Deed of Trust, and no

evidence exists to suggest that Trustmark breached its implied duty of good faith. As such,

Trustmark did not breach its implied duty of good faith and fair dealing under the contract.

III. Violations of the Fannie Mae loan-servicing guidelines do not constitute negligence or negligence per se.

¶35. Ms. Breland argues that Trustmark, Ironshore, and Proctor were required to act within

the Fannie Mae guidelines but failed to do so with regard to her mortgage. She specifically

asserts negligence per se based on “the defendant’s disregard of the duties set out in the

guidelines.” She also argues that by denying her claim, their disregard caused her house to

remain unrepaired, which “violated the expectations set by the guidelines.” She claims this

“conflicted with the purpose and intent of the guidelines and constituted negligence and

negligence per se.”

¶36. To recover for negligence, a plaintiff must prove each of the elements of a negligence

claim: (1) duty, (2) breach of duty, (3) causation, and (4) damages. Banks v. Brinker Miss.

Inc., 146 So. 3d 388, 391 (¶8) (Miss. Ct. App. 2014). The Supreme Court has also delineated

that “negligence is the result of the failure to perform a duty; therefore, actionable negligence

cannot exist in the absence of a legal duty to an injured plaintiff.” Foster ex rel. Foster v.

Bass, 575 So. 2d 967, 972 (Miss. 1990). “The existence vel non of a duty of care is a

question of law to be decided by the Court.” Id.

13 ¶37. Additionally, “Mississippi recognizes the doctrine of negligence per se, which

essentially provides that breach of a statute or ordinance may render the offender liable in tort

without proof of lack of due care.” Benson v. Rather, 211 So. 3d 748, 756 (¶29) (Miss. Ct.

App. 2016). “To prevail in an action for negligence per se, a party must prove that he was

a member of the class sought to be protected under the statute, that his injuries were of a type

sought to be avoided, and that violation of the statute proximately caused his injuries.” Id.

¶38. Crucially, in a claim of negligence, a plaintiff must establish a duty owed to it by a

defendant. Demoney v. Gateway Rescue Mission, 304 So. 3d 652, 657 (¶16) (Miss. Ct. App.

2020). So in order for Ms. Breland to survive summary judgment and claim negligence, she

will have to first prove that the defendants owed her a duty set by the Fannie Mae loan

guidelines.

¶39. However, “[f]ederal courts have uniformly held that borrowers are not third-party

beneficiaries of mortgage servicing guidelines.” Pennell v. Wells Fargo Bank N.A., No.

1:10-CV-00582-HSO, 2012 WL 2873882, at *8 (S.D. Miss. July 12, 2012), aff’d, 507 Fed.

App’x 335 (5th Cir. 2013). This is because “Fannie Mae’s servicing guide is a set of

instructions from a lender-principal to a servicer-agent; it is not a contract between borrower

and lender.” Id. (citations omitted); accord Roberts v. Cameron-Brown Co., 556 F.2d 356,

357 (5th Cir. 1977) (finding no enforceable duty under HUD disclosures).

¶40. As one federal court has concluded, Fannie Mae’s servicing guide simply “is not law.”

Hinton v. Fed. Nat’l Mortg. Ass’n, 945 F. Supp. 1052, 1056 (S.D. Tex. 1996), aff’d, 137 F.3d

1350 (5th Cir. 1998). Accordingly, we find that the Fannie Mae guidelines do not create an

14 enforceable duty of care to Ms. Breland.

¶41. Even if we interpret the guidelines as a contract, since “Mississippi law requires that

the right of a third party to maintain an action as a third-party beneficiary must ‘spring from

the contract terms[,]’” Ms. Breland cannot offer “competent summary judgment evidence to

support the conclusion that [she was an] intended third-party beneficiar[y] of Fannie Mae’s

servicing guidelines.” Pennell, 2012 WL 2873882, at *8. As such, we reach the same

conclusion as the federal court in Pennell. Just as in that case, where the district court ruled

that “[t]here can be no real dispute that Plaintiffs are not third-party beneficiaries of the

guidelines and lack standing to enforce them,” Ms. Breland likewise is not a third-party

beneficiary of the guidelines, and therefore lacks standing to enforce them. Id. As a result,

her negligence claim fails.

¶42. With respect to her negligence per se claim, in her reply brief Ms. Breland urges this

Court to consider as a matter of first impression to allow a jury to determine whether the

Fannie Mae guidelines were violated. To support her argument, she cites a Mississippi

Supreme Court case that suggests a statutory or regulatory violation can show negligence per

se. See Ala. Great S. R.R. Co. v. Lee, 826 So. 2d 1232, 1236-37 (¶¶15-17) (Miss. 2002).

¶43. While it is true that a statutory or regulatory violation can show negligence per se, the

guidelines are not law, and the guidelines were not issued to a member of a class meant to

be protected—they were issued to protect Fannie Mae’s interests by enumerating how loan

servicers were intended to manage loans as assured by Fannie Mae. In other words, Ms.

Breland was not within the realm of protection set forth by the loan servicing guidelines. As

15 a result, her negligence and negligence per se claims fail to surpass summary judgment.

IV. A civil conspiracy did not exist between the bank and the insurance companies.

¶44. Ms. Breland alleges that Trustmark, Ironshore, and Proctor “acted in concert” to apply

a higher deductible in order to deny her claim. Specifically, she contends that proof of this

conspiracy exists because Proctor told her that her electronic file showed a $1,000 deductible

rather than the $5,000 deductible that was stated in the contract.

¶45. “A conspiracy is an agreement between two or more persons for the purpose of

accomplishing an unlawful purpose or a lawful purpose unlawfully.” Bradley v. Kelley Bros.

Contractors, 117 So. 3d 331, 339 (¶31) (Miss. Ct. App. 2013). “Where damages arise as a

result, there may be a right of recovery for civil conspiracy.” Id. To establish a civil

conspiracy, the plaintiff must prove (1) an agreement between two or more persons, (2) to

accomplish an unlawful purpose or a lawful purpose unlawfully, (3) an overt act in

furtherance of the conspiracy, (4) and damages to the plaintiff as a proximate result. Id. at

(¶32). “A civil conspiracy requires a meeting of the minds on the object or course of action.”

S. Health Corp. of Houston v. Crausby, 174 So. 3d 916, 920 (¶15) (Miss. Ct. App. 2015)

(internal quotation mark omitted).

¶46. In order for Trustmark to have committed civil conspiracy, Ms. Breland would have

to first prove the first element of civil conspiracy—that there was an agreement among

Trustmark, Proctor, and Ironshore. As shown above, no unlawful acts have been committed,

let alone any rising to the level of civil conspiracy. Although Ms. Breland’s brief is ripe with

assertions that Trustmark and the insurance companies “acted in concert,” she offers no

16 evidence or reference to competent summary judgment evidence to support these assertions.

Ms. Breland merely asserts that Trustmark, Ironshore, and Proctor “acted in concert” to apply

a higher deductible as a way to deny her claim.

¶47. In any case, the higher-deductible contention that Ms. Breland makes is incorrect

because the deductible is outlined in the plain language of the policy. As such, the failure

to submit evidence of the meeting of the minds between the insurance companies negates Ms.

Breland’s allegations, because it does not meet the first element of civil conspiracy.

Accordingly, Ms. Breland’s civil conspiracy claim against Trustmark fails.

¶48. As was the case for Trustmark, there is also no evidence in the record to substantiate

Ms. Breland’s allegations of civil conspiracy in regard to Ironshore and Proctor. As stated

above, there was no agreement among the three companies to commit an unlawful act, and

as a result, her civil conspiracy claim once again fails as a matter of law.

¶49. Ms. Breland has failed to put forth sufficient evidence to support a conspiracy claim

against the bank and the insurance companies. Ms. Breland has not demonstrated the

existence of a genuine dispute as to any material fact with respect to her conspiracy claims.

As a result, we affirm.

V. Ms. Breland’s claims against the bank and insurance companies for punitive damages fail as a matter of law.

¶50. Under Mississippi law, punitive damages may be considered “[i]f, but only if, an

award of compensatory damages has been made against a party . . . .” See Miss. Code Ann.

§ 11-1-65(c) (Rev. 2019). As all the defendants correctly point out, Ms. Breland’s claim for

punitive damages fails at the outset because there was no award for compensatory damages.

17 “[W]ithout actual damages, punitive damages are not recoverable.” Boatright v. A & H

Techs. Inc., 296 So. 3d 687, 701 (¶63) (Miss. 2020).

¶51. Regardless, under Mississippi law, to obtain punitive damages, Ms. Breland must

prove that Trustmark, Ironshore, and Proctor “acted with actual malice [or] gross negligence

which evidences a willful, wanton or reckless disregard for the safety of others . . . .” See

Miss. Code Ann. §11-1-65. And as the trial court correctly pointed out in its Order, punitive

damages require proof by clear and convincing evidence, and no evidence exists in the record

to meet this burden of proof. Id. Therefore, we affirm.

CONCLUSION

¶52. Because there is no genuine issue of material fact in this case that would preclude

summary judgment, we affirm the trial court’s ruling.

¶53. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR.