PierCon, Inc. v. Brierfield Insurance Company

189 So. 3d 1238, 2016 WL 1567810, 2016 Miss. App. LEXIS 226
CourtCourt of Appeals of Mississippi
DecidedApril 19, 2016
Docket2014-CA-01603-COA
StatusPublished
Cited by1 cases

This text of 189 So. 3d 1238 (PierCon, Inc. v. Brierfield Insurance Company) 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
PierCon, Inc. v. Brierfield Insurance Company, 189 So. 3d 1238, 2016 WL 1567810, 2016 Miss. App. LEXIS 226 (Mich. Ct. App. 2016).

Opinion

WILSON, J.,

for the Court:

¶ 1. PierCon Inc. and Dennis Pierce Inc. — both owned and operated by Dennis Pierce and referred to collectively as “Pierce” — dispute the amount of insurance premiums that Brierfield Insurance Company (“Brierfield”) charged under two commercial general liability policies. Pierce refused to pay certain premiums because he disagreed with Brierfield’s calculations. Brierfield eventually filed suit to collect the premiums in the County Court of Lamar County. After a trial, the county court found that language in the policies stating that premiums would be calculated in accordance “with our [i.e., Brierfield’s] rules and rates” was vague and ambiguous and that Brierfield’s methods of auditing and calculating premiums were arbitrary and capricious. The county court recalculated the premiums and entered judgment in favor of Brierfield for the recalculated amount, which was significantly less than Brierfield had demanded.

¶ 2. Brierfield appealed to Lamar County Circuit Court, and Pierce cross-appealed. Brierfield claimed that the county court erred by finding its policy language to be ambiguous and by declaring its auditing methodologies and calculations “arbitrary and capricious.” Pierce’s cross-appeal argued that the county court erred by failing to give him offsetting credit for a premium overpayment that Brierfield failed to refund. The circuit court reversed the county court’s decision, finding that the policies were neither vague nor ambiguous and that Brierfield’s auditing practices were neither arbitrary nor capricious. Accordingly, the circuit court awarded Brierfield the premiums it sought. On cross-appeal, the court granted Pierce the offset he sought.

¶ 3. Both parties appealed from the circuit court’s judgment. With respect to the policies’ language and proper application, Pierce basically argues that the county court was right and the circuit court erred. On cross-appeal, Brierfield argues that the circuit court should have awarded prejudgment and post-judgment interest and erroneously granted Pierce an offset based on the premium overpayment. In the main appeal, we affirm because the circuit court correctly interpreted the policies. In the cross-appeal, we affirm in part and reverse and remand in part. We find no abuse of discretion in the circuit court’s denial of pre-judgment interest, but Pierce confesses error as to the other two issues raised in the cross-appeal, and we reverse and remand on those issues.

FACTS AND PROCEDURAL HISTORY

¶ 4. Dennis Pierce is owner and operator of two construction businesses, Dennis Pierce Inc. (DPI) and PierCon Inc. Brier- *1241 field Insurance Company issued commercial general liability (CGL) policies -to the companies for policy periods covering December 27, 2005, through January 31, 2008. Pierce paid a deposit premium for each policy. The declaration page of each policy listed a “total advance premium” and a note that the premium was “subject to audit.” The policies all included the following provision:'

5. Premium Audits
a. We will compute all premiums for this Coverage Part in accordance with our rules and rates.
b. Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit and retrospective premiums is the
- date shown as the due date on the bill. If the sum of the advance and audit premiums paid for the policy period is greater than the earned' premium, we will return the excess to the first Named Insured.
c. The first Named Insured must keep records of the information we need for premium computation, and send us copies at such times as we may request.

¶ 5. In 2007 and 2008, Brierfield conducted premium audits to determine earned premiums for the prior policy years. Based on these audits, Brierfield billed DPI and PierCon for additional earned premiums, but DPI and PierCon refused to pay balances of $11,021 and $45,372, respectively. Pierce refused to pay these amounts because he claimed that Brierfield had misclassified some of his subcontractors, which resulted in inflated premiums. The parties were unable to resolve the dispute, so in February 2009 Brierfield sued DPI and PierCon in the County Court of Lamar County.

' ¶ 6. The case was tried in February 2010. Thomas Quaka, a vice president for Brierfield, testified that 'Brierfield met with Pierce and his representatives in De-cfember 2007 to discuss the premium audit, the rates used, and the methodology applied. Quaka said that Brierfield representatives thoroughly explained the auditing process as well as the documents and materials used to calculate the earned premium;

¶ 7. Quaka also described the rules and rates that Brierfield uses in premium audits. Quaka testified that the Insurance Services Office (ISO) is a statistical bureau that files rates, rules, and forms on behalf of insurance companies. Because. Brier-field had filed notice with the Mississippi Insurance Department (MID) that it is an “ISO company,” at all relevant times it followed ISO’s rates and rules for Pierce’s CGL policies and all other similar CGL policies. ISO’s rates and rules are filed with the MID. 1 Quaka testified that ISO also issues Premium Audit Advisory Service (PAAS) bulletins, which provide interpretations of ISO filings for use by all ISO companies. Brierfield follows ISO guidelines and PAAS bulletins when conducting premium audits.

¶ 8. The dispute in this case centers on the classification of Pierce’s subcontractors for purposes of calculating premiums. The classification matters because it determines what portion of payments to subcontractors will be treated as “Payroll” and what portion will' be treated as “Total Cost.” The allocation between Payroll and Total Cost matters because Total Cost is multiplied by factors ranging from 1.0 to *1242 2.0 per thousand dollars to calculate the premium related to the payment to the subcontractor, whereas Payroll is multiplied by factors ranging from 10 to 100 per thousand dollars to calculate the premium related to the payment. Thus, allocations to Payroll result in higher premiums.

¶ 9. For insured subcontractors, all payments are allocated to Total Cost. It does not appear.that there is any dispute in this case regarding insured subcontractors. The parties’ dispute concerns uninsured subcontractors. As Quaka explained, Bri-erfield must treat an uninsured subcontractor as though Pierce’s CGL policy covers it — as though its employees are Pierce’s — which results in a. higher premium for Pierce. With respect to uninsured subcontractors, Brierfield applies the following rules, which are set out in a January 2004 PAAS Bulletin (and in similar form in a 1992 PAAS Bulletin):

• If the actual payroll is available, include only the payroll for employee's while they were working on your insured’s project(s).

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189 So. 3d 1238, 2016 WL 1567810, 2016 Miss. App. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piercon-inc-v-brierfield-insurance-company-missctapp-2016.